Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Revisions and Response to Petitions for Reconsideration

SUMMARY: RSPA is revising and extending requirements issued in an

interim final rule (IFR) on February 19, 1997. Revisions are being made

to address commenters' concerns particularly in the area of operator

attendance requirements and to improve safety. The rule adopts

temporary requirements for cargo tank motor vehicles in certain

liquefied compressed gas service. It requires a specific marking on

affected cargo tank motor vehicles and requires motor carriers to

comply with additional operational controls intended to compensate for

the inability of passive emergency discharge control systems to

function as required by the Hazardous Materials Regulations. The

interim operational controls specified in this rule will improve safety

while the industry and government continue to work to develop a system

that effectively stops the discharge of hazardous materials from a

cargo tank if there is a failure of a transfer hose or piping.

These operational controls are necessary because a substantial

portion of the industry failed to comply with an important excess flow

requirement, which has been in place since 1941, and has failed to

comply with the IFR. Because of this widespread non-compliance, RSPA

also published in today's Federal Register an advance notice of

proposed rulemaking (ANPRM) soliciting data to serve as a basis for

future rulemaking. This advance notice addresses a number of other

issues, including the ability of industry to meet a possible 1-, 2- or

3-year retrofit schedule; standards for the qualification, testing and

use of hoses used in unloading; safety procedures for persons

performing unloading operations; and, whether the Federal government

should continue to regulate in this area.

EFFECTIVE DATE: August 16, 1997.

FOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of

Hazardous Materials Technology, RSPA, Department of Transportation, 400

Seventh Street, S.W., Washington, DC 20590-0001, telephone (202) 366-

4545, or Nancy Machado, Office of the Chief Counsel, RSPA, Department

of Transportation, 400 Seventh Street, S.W., Washington, DC 20590-0001,

telephone (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

Among the liquefied compressed gases most commonly transported

throughout the nation in DOT specification cargo tank motor vehicles

are petroleum gases, anhydrous ammonia and chlorine. The risk of

personal injury due to accidental releases is high for each of these,

and, in the case of propane, the additional threat of fire and

explosion must be considered. When liquid propane is released into the

atmosphere, it quickly vaporizes into the gaseous form which is its

normal state at atmospheric pressure. This happens very rapidly, and in

the process, the propane combines readily with air to form fuel-air

mixtures which are ignitable over a range of 2.2 to 9.5 percent by

volume. If an ignition source is present in the vicinity of a highly

flammable mixture, the vapor cloud ignites and burns very rapidly

(characterized by some experts as ``explosively'').

Since September 8, 1996, renewed attention was focused on the

dangers of propane when more than 35,000 gallons were released during

delivery to a bulk storage facility in Sanford, North Carolina.

Fortunately, ignition did not occur. This incident led to the issuance

of a safety advisory notice on December 13, 1996 (61 FR 65480), and an

interim final rule (IFR) on February 19, 1997 (62 FR 7638). However,

concerns over controlling the unintended release of hazardous materials

have been expressed for decades.

B. Emergency Discharge Controls

Operations involving the transfer of liquid and gaseous hazardous

materials to, from, or between bulk packagings, such as cargo tank

motor vehicles, are recognized as posing a significant threat to life

and property in transportation. For that reason, the Hazardous

Materials Regulations (HMR; 49 CFR parts 171-180) place special

emphasis on emergency discharge controls, including requirements for

excess flow valves and internal self-closing stop valves that close

automatically upon sensing a line separation. Additionally, the HMR

require a mechanical and/or thermal means of activating the internal

self-closing stop valve. The effectiveness of these properly installed

and maintained safety appliances in safeguarding life and property at

the critical moment of an unintentional release of extremely hazardous

materials is well demonstrated and has historically been widely

recognized by representatives of industry, emergency response

organizations, and other affected parties.

In the case of specification MC 330 and MC 331 cargo tank motor

vehicles authorized for the transportation of certain liquefied

compressed gases, Federal requirements for emergency discharge controls

first appeared as regulations issued by the Interstate Commerce

Commission (ICC) on November 8, 1941, in Docket 3666. Requirements

applicable to specification MC 320 cargo tank motor vehicles and ICC

specification MC-7.6-S-1.2 have been modified slightly by RSPA over the

years, but essential elements of the regulations pertaining to excess

flow valves and internal self-closing stop valves are unchanged. This

rule applies also to provisions for secondary remote controls and for

fusible links, which cause the internal valve to close automatically in

case a cargo tank is involved in a fire. Again, related requirements in

the HMR today share the same essential elements as those originally

ordered over fifty years ago.

Section 178.337-8(a) states ``* * * each opening in a cargo tank

intended for use in transporting compressed gas (except carbon dioxide,

refrigerated liquid) must be--(i) closed with a plug, cap or bolted

flange; (ii) protected with an excess flow valve on product discharge

openings or protected with a check valve on product inlet openings; or

(iii) fitted with an internal self-closing stop valve as specified in

Sec. 178.337-11(a).'' Currently, most specification MC 330 and MC 331

cargo tank motor vehicles are fitted with an internal self-closing stop

valve which incorporates an excess flow feature. However, the

requirement in Sec. 178.337-11(a)(1)(i), that ``each self-closing stop

valve and excess flow valve must automatically close if any of its

attachments are sheared off or if any attached hoses or piping are

separated,'' can be met by manufacturers and operators of specification

MC 330 and MC 331 cargo tank motor vehicles using internal self-closing

stop valves which have no excess flow feature. The key requirement is

that the discharge valve must automatically close if any of its

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attachments are sheared off or if any attached hoses or piping are

separated. Any other equipment, such as a system which measures a

differential in pressure, a pressure drop, or a hose or piping

separation, which automatically closes the internal self-closing stop

valve on the cargo tank and stops the discharge of product in the event

of the separation or rupture of a hose or piping may be used to meet

the emergency discharge control system performance requirement

specified in Sec. 178.337-11(a)(1)(i).

Unloading With a Liquid Pump System

While it seems that the HMR's longstanding requirements should be

well understood and fully complied with by the affected industries,

unfortunately that is not the case. Instead, efforts undertaken by the

affected industries to achieve increased efficiency in the unloading of

hazardous materials by the installation of pumps on specification MC

330 and MC 331 cargo tank motor vehicles prevent emergency discharge

control systems from operating properly under all temperatures and

pressures routinely encountered during normal conditions of

transportation. The installation of pumps on specification MC 330 and

MC 331 cargo tank motor vehicles has been accompanied by the industry's

installation of internal self-closing stop valves with an emergency

feature designed to function at a flow rating well above the discharge

capacity of the pump. This assures transfer of product without

interruption by inadvertent functioning of the emergency discharge

control system. As presently found in most product discharge system

configurations, a pump functions as a regulator in the product

discharge line so as to eliminate any possibility that the emergency

discharge control system will function in event of a line separation.

Also, it has been pointed out by Mississippi Tank Company that even on

cargo tank discharge systems not fitted with pumps, the emergency

discharge control system on most LPG vehicles would fail to properly

operate under all temperatures and pressures routinely encountered

during normal conditions of transportation. The National Propane Gas

Association (NPGA) in 1978 and 1990, issued bulletins NPGA #113-78 and

NPGA #113-90, which state:

Excess flow check valves have been of help in limiting gas loss

in many incidents involving breakage of hoses and transfer piping.

Thus, they do provide a useful safety function in LP-gas systems.

However, there have also been transfer system accidents where excess

flow valves have been ineffective in controlling gas loss due to a

variety of conditions and to the inherent limitations of these

valves * * * An excess flow valve is not designed to close and thus

may not provide protection, if any of the following conditions are

present: (1) The piping system restrictions (due to pipe length,

branches, reduction in pipe size, or number of other valves)

decrease the flow rate to less than the valve's closing flow * * *

(Emphasis added).

This information demonstrates that the industry has been aware,

since at least 1978, that excess flow valves are not designed to

function where piping system restrictions (e.g., pumps) decrease the

flow rate to less than the excess flow valve's closing flow. Also, the

industry has information regarding ``many'' incidents involving hose

and transfer separation and other transfer system accidents, but this

information has not been shared with RSPA despite numerous requests.

Pressure Unloading

Unloading systems that employ pressure rather than a pump to

unload, such as a gas compressor mounted on specification MC 330 and MC

331 cargo tank motor vehicles should not be affected by the problem

identified with unloading of liquefied compressed gases by use of

pumps, provided the operating pressure of the compressor, the flow rate

of product through valves, piping and hose, and the setting of the

emergency feature conform to requirements in Sec. 178.337-11(a)(1)(v).

Vehicles unloaded by pressure and conforming to the requirements of

Sec. 178.337-11(a)(1) are not subject to the temporary regulations

specified in Sec. 171.5.

C. History of Major Incidents

The hazards associated with the transportation of liquefied

petroleum gas have been demonstrated repeatedly on U.S. highways. Based

on information contained in the Hazardous Materials Information System,

propane releases are a leading cause of death in hazardous material

transportation. A summary of major incidents over the years is

presented below. Most of these incidents were the result of collisions

rather than due to unintended release of lading during transfer

operations. However, each incident demonstrates the potential for grave

consequences which result when liquefied petroleum gases are spilled

and ignition occurs.

On July 25, 1962, in Berlin, New York, an MC 330 bulk

transport ruptured releasing about 6900 gallons of liquid propane.

Ignition occurred. Ten persons were killed and 17 others were injured.

Property damage included total destruction of 18 buildings and 11

vehicles.

On February 9, 1972, in Tewksbury, Massachusetts, while an

MC 330 bulk transport was unloading 8500 gallons of propane into two

60,000 gallon storage tanks at a Lowell Gas terminal, a second bulk

transport backed into piping at the bulkhead of the unloading terminal

causing a propane leak. Ignition occurred. In the ensuing fire, one of

the transports exploded. Two persons were killed and 21 others were

injured. Property damage included both transports, a large portion of

the operating facility and surrounding woodland.

On March 9, 1972, near Lynchburg, Virginia, an MC 331 bulk

transport overturned and slid into a rock embankment. The impact

ruptured the tank's shell, releasing about 4000 gallons of liquid

propane. Ignition occurred. Two persons were killed and five others

were injured. There was property damage to a farmhouse, outbuildings

and about 12 acres of woodland.

On April 29, 1975, near Eagle Pass, Texas, an MC 330 bulk

transport struck a concrete headwall and ruptured releasing more than

8000 gallons of liquefied petroleum gas. The ensuing fire and explosion

killed 16 persons, injured 51 others and destroyed 51 vehicles.

On December 23, 1988, in Memphis, Tennessee, an MC 330

bulk transport struck a bridge abutment and ruptured releasing 9388

gallons of liquefied propane gas. The ensuing fire and explosion killed

eight persons and injured eight others.

On November 29, 1989, in Neptune Beach, Florida, while

propane was being delivered to storage tanks at the Neptune Beach

Elementary School, an unintentional release of propane ignited. In the

resulting explosion and fire, the driver was badly burned and

subsequently died.

On July 27, 1994, in White Plains, New York, an MC 331

bulk transport struck a column of an overpass and ruptured, releasing

9200 gallons of propane. Ignition occurred. The driver was killed, 23

persons were injured and an area within a radius of 400 feet was

engulfed in fire.

On September 8, 1996, in Sanford, North Carolina, during

delivery of propane to a bulk storage facility by an MC 331 bulk

transport, more than 35,000 gallons of propane were released. The

discharge hose separated from its hose coupling at the delivery end of

the hose. Most of the transport's 9800 gallons of propane and more than

30,000 gallons from the storage tanks were released. If this quantity

of released propane ignited, local

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authorities estimated that about 125 emergency response personnel could

have been injured or killed.

On June 3, 1997, in Caro, Michigan, while unloading

propane into a storage tank at an industrial facility, the delivery

hose of an MC 331 transport ruptured. The ensuing fire and a series of

explosions seriously burned the driver, destroyed four vehicles and

extensively damaged the facility. Initial estimates of property damage

are at least $2.0 million.

Two additional examples of serious accidents involving shipments of

liquid petroleum gas are noteworthy. In what many consider the world's

most serious incident involving a motor vehicle transporting liquid

petroleum gas, on July 11, 1978, an overfilled cargo tank passing near

a campground in Spain exploded and burned. About 200 persons were

killed and 120 were badly burned. And, although no motor vehicles were

involved, another major accident occurred on February 22, 1973, in

Waverly, Tennessee, when a 30,000 gallon railroad tank car exploded and

burned. Sixteen persons were killed, 43 others were injured and $1.8

million of property damage resulted.

The history of major accidents in the transportation of anhydrous

ammonia is similar to that involving the transportation of liquefied

petroleum gases. Pulmonary injuries are more significant with ammonia

while fire damage is more significant with liquefied petroleum gases.

An example of a major accident involving the release of ammonia is an

incident that occurred May 11, 1976, in Houston, Texas. The driver of

an MC 331 transport lost control while negotiating an interstate exit

ramp. The cargo tank motor vehicle overturned and fell from the

overpass onto a major artery some 15 feet below. The cargo tank

ruptured, releasing its entire cargo of 7500 gallons of anhydrous

ammonia. The driver was killed in the crash. An additional five persons

were killed and 78 others were hospitalized, all due to inhalation of

ammonia. Another 100 persons were treated for less severe injuries.

Favorable wind conditions prevented the vapor cloud from reaching a

nearby elementary school.

D. RSPA Safety Advisory Notice and Federal Highway Administration

(FHWA) Safety Alert Bulletin

Based on preliminary information from the Sanford incident, RSPA

published an advisory notice in the Federal Register on December 13,

1996 (61 FR 65480). That notice alerted persons involved in the design,

manufacture, assembly, maintenance or transportation of hazardous

materials in MC 330 and MC 331 cargo tank motor vehicles of the problem

with emergency discharge control systems and reminded them that these

tanks and their components must conform to the HMR. At the same time,

FHWA issued and distributed 16,000 copies of a Safety Alert Bulletin on

this issue.

E. Emergency Exemption Applications

On December 2, 1996, and December 18, 1996, RSPA received

applications for emergency exemptions from the Mississippi Tank Company

and the NPGA, respectively, indicating the problem with cargo tank

motor vehicle emergency discharge systems was more extensive than

originally believed. Additionally, The Fertilizer Institute (TFI) and

National Tank Truck Carriers, Inc. (NTTC) submitted applications to

become party to these exemptions. In support of its exemption

application, the Mississippi Tank Company, a manufacturer of

specification MC 331 cargo tank motor vehicles, provided preliminary

information that there is reason to suspect the problem is common to

nearly all cargo tank motor vehicles used in liquefied compressed gas

service within the U.S. This problem is also thought to exist in the

non-specification cargo tanks authorized in Sec. 173.315(k).

In their requests for emergency exemption, the applicants asked the

agency to issue an exemption to allow the continued use of existing

cargo tank motor vehicles and the conditional operation of newly

constructed cargo tank motor vehicles while a long-term solution to the

problem is developed. NPGA suggested that long-term solutions might

include pneumatic or mechanical ``deadman'' devices, possibly combined

with a lanyard for remote activation, or the use of a differential

pressure valve.

NPGA proposed that the emergency exemption require: (1) Compliance

with applicable provisions of the HMR other than Secs. 173.315(n),

178.337-11(a)(1)(i) and 178.337-11(a)(1)(v); (2) an outreach effort by

NPGA to notify members of the Sanford, North Carolina incident and

related, identified concerns; (3) transfer hose inspection before

continued use and new hose inspection as required under the HMR; (4)

compliance with applicable provisions of the National Fire Protection

Association (NFPA) pamphlet NFPA 58, Storage and Handling of Liquefied

Petroleum Gases, 1995 edition; (5) continual driver attendance and

control of the loading/unloading operations; and (6) driver training.

Mississippi Tank Company proposed that the emergency exemption require

a warning statement and/or special operating instructions.

Both applicants stressed the urgent need for an expedited response

from RSPA. Mississippi Tank indicated that an emergency exemption was

needed ``to allow the continued use of existing equipment and to allow

badly needed new equipment to continue to be made available to the

industry.'' In the section of its application entitled ``Treatment as

an Emergency Exemption,'' NPGA indicated that the propane industry was

in the midst of the winter heating season, that over 80 percent of the

7-9 billion gallons of propane delivered annually was to be used as a

residential heating fuel, and that all of the existing cargo tanks were

needed to deliver the heating fuel for residential and agricultural

purposes. In further support of its argument that an emergency existed,

NPGA also stated that ``the ability to be able to operate propane

bobtails and highway transports has so many impacts and is so pervasive

as to be almost incalculable from an economic impact viewpoint.'' NPGA

concluded its application by stating that ``a true emergency exists for

handling this Exemption request in an expedited manner * * *''

After evaluating the facts before it, and the NPGA's and

Mississippi Tank Company's emergency exemption applications, RSPA

agreed that an emergency existed. However, the agency denied the

applications for emergency exemption on January 13, 1997, because they

failed to provide for an equivalent level of safety as required by

Sec. 5117 of the Federal hazardous materials transportation law, 49

U.S.C. Sec. 5117, and 49 CFR 107.113(f)(2). Also, RSPA found that the

issues addressed in the applications have serious safety and economic

implications for a broad range of persons, including a significant

number of regulated entities facing a possible interruption in

transportation services because of widespread non-conformance with the

HMR's requirement for a passive emergency discharge control system.

Consequently, RSPA believed that the issues raised by the applicants

were better addressed through the rulemaking process. See 49 CFR

107.113(i). Thus, RSPA published the IFR because of the emergency

situation described by NPGA and Mississippi Tank Company in their

applications for emergency exemption, and the applicants' requests for

expedited relief.

F. The Interim Final Rule

The IFR was issued to enhance safety of product transfer operations

while allowing for the continued

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transportation of liquefied compressed gases (principally propane,

other liquefied petroleum gases and anhydrous ammonia). The IFR was

made effective for a six-month period, until August 15, 1997, to allow

industry time to develop at least an interim solution to the problem

with emergency discharge control systems. RSPA and the FHWA believed

that, without the authorization for continued operation provided by the

IFR, persons who depend on propane and other liquefied compressed gases

for residential, industrial, and agricultural purposes, as well as

cargo tank motor vehicle operators and manufacturers, would be severely

impacted by service interruptions in these industries. Because there

are no acceptable alternatives for distributing these materials to most

residences and facilities served by cargo tank motor vehicles, RSPA and

FHWA believed the IFR was necessary to avoid other potentially serious

safety and economic consequences that might have resulted from an

inability to secure these essential materials.

In order to enhance the level of safety during transfer operations

using current equipment, the IFR specified special conditions for

continued operations in new Sec. 171.5. These conditions offered an

alternate means of compliance with existing emergency discharge

controls required by Sec. 178.337-11. Those conditions included:

Paragraph (a)(1). Use provisions under which MC 330, MC 331, and

non-specification cargo tank motor vehicles authorized under

Sec. 173.315(k) may be operated and unloaded.

Paragraph (a)(1)(i). A requirement to verify the integrity of

components making up the cargo tank motor vehicle's discharge system

before initiating any transfer.

Paragraph (a)(1)(ii). A requirement that prior to using a new or

repaired transfer hose or a modified hose assembly, the hose must be

pressure tested at no less than 80 percent of the design pressure or

maximum allowable working pressure (MAWP) marked on the cargo tank.

Paragraph (a)(1)(iii). A requirement that a qualified person in

attendance of the cargo tank motor vehicle during the unloading

operation must have the capability to manually activate the emergency

discharge control system to stop the release of the hazardous material

from the cargo tank.

Paragraph (a)(1)(iv). A requirement that in event of an

unintentional release of lading, the internal self-closing stop valve

be activated and all motive and auxiliary power equipment be shut down.

Paragraph (a)(1)(v). A requirement for the development, and

maintenance on the cargo tank motor vehicle, of comprehensive emergency

operating procedures for all transfer operations.

Paragraph (a)(1)(vi). A requirement that each manufacturer,

assembler, retester, motor carrier and other hazmat employer provide

training to its hazmat employees so that they may properly perform the

new function-specific requirements in Sec. 171.5.

Paragraph (a)(2). Conditions for continued qualification of

existing in-service cargo tank motor vehicles.

Paragraph (a)(3). Requirements for new vehicles, including a

special entry on the Certificate of Compliance required by

Sec. 178.337-18.

Paragraph (b). A requirement for a specific marking to be displayed

on each cargo tank motor vehicle operating under Sec. 171.5.

Paragraph (c). An August 15, 1997 expiration date for this

temporary regulation.

The IFR, and a subsequent notice in the Federal Register, advised

of two public meetings and two public workshops scheduled to gather

information and allow comment on the IFR requirements. In the IFR, RSPA

also solicited comments and data on the costs and effectiveness of

alternate means of achieving a level of safety for the long-term

comparable to that provided by current requirements. Finally, RSPA

solicited comments on the costs and benefits of the interim measures

adopted under the IFR.

As the investigation of the Sanford incident proceeded, it became

apparent that certain assumptions made both by RSPA and FHWA and by

parts of the industry were invalid regarding the emergency discharge

control systems. These systems were previously thought to conform to

requirements of Sec. 178.337-11(a)(1)(i) established under Docket HM-

183 [54 FR 24982; June 12, 1989]. Both the NPGA and TFI quickly set up

special task forces to deal with the shortcomings of existing product

delivery systems.

Since mid-December 1996, and while maintaining close liaison with

RSPA and FHWA, much has been accomplished by industry. For example,

off-the-shelf radio remote control and telemetry equipment has been

identified which, with relatively simple modifications, may be used to

stop the delivery of product from a distance while meeting requirements

for ``unobstructed view'' in Sec. 177.834(i)(3) of the HMR. This

equipment has been in use for many years in various industrial

applications. Similarly, several manufacturers have developed other

promising radio remote control systems aimed at this problem; some of

these have been demonstrated and are currently being marketed by

equipment suppliers serving the propane industry.

Additionally, some manufacturers have demonstrated systems capable

of automatically closing discharge valves in the event of separation of

hoses or piping. The range of conditions under which these systems can

be counted on to offer reliable operation for liquefied compressed

gases has not been determined as yet, and additional field testing is

called for, but the accomplishments to date are encouraging.

During the two public meetings and two public workshops, RSPA and

industry explored possible long- and short-term solutions to enhance

the safety of product transfer operations. RSPA also worked with the

Volpe National Transportation Systems Center to identify off-the-shelf

technology that might offer possible solutions, and TFI engaged the

Pennsylvania Transportation Institute to conduct related research.

Also, RSPA and FHWA staff participated in several industry-sponsored

meetings and witnessed the demonstration of new technologies being

developed to enhance safety during the unloading of hazardous materials

from MC 330 and MC 331 cargo tank motor vehicles. As a result of these

joint efforts, industry developed and tested at least two passive

systems and several remote control systems using radio signals, all of

which show great promise. Several operators have installed these

devices on a limited number of cargo tank motor vehicles in order to

test them in actual operation.

G. Petitions for Reconsideration

On March 21, 1997, RSPA received a petition for reconsideration of

the IFR from the NPGA, on behalf of its members, and a petition for

reconsideration jointly filed by Ferrellgas, L.P., Suburban Propane,

L.P., AmeriGas Propane, L.P., Agway Petroleum Corporation and

Cornerstone Propane Partners, L.P. (Those petitions are attached, in

their entirety, as Appendices A and B, respectively.) Petitioners

specifically requested that RSPA reconsider the additional attendance

requirement in Sec. 171.5(a)(1)(iii), which they contend effectively

mandates that two or more attendants travel to and be present during

the unloading of propane gas from a cargo tank motor vehicle. They

assert that the high cost of compliance with the additional requirement

is not

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supported by the safety record for propane gas delivery, and they

provided some cost and safety data to support their views.

A significant number of commenters to the IFR raised issues

regarding cost and safety identical to those raised by petitioners.

Numerous commenters cited compliance cost estimates that they

considered excessive, based on their assertion that they have long

operated cargo tank motor vehicles without experiencing problems with

the currently installed emergency discharge control systems. These same

issues were among the topics raised by participants in the two public

meetings and the two public workshops conducted by RSPA.

In its petition, NPGA also asked for an immediate stay of the

additional attendance requirement pending a decision on its petition.

Ignoring statements made in its emergency exemption application, NPGA's

request for a stay was based on its assertion that an emergency did not

exist and, therefore, that RSPA was not justified in foregoing notice

and comment before immediately imposing new requirements. NPGA further

argued that because RSPA should have issued a notice of proposed

rulemaking (NPRM) prior to imposing new requirements, the agency should

have done a full economic analysis of the effect of the new

requirements on small businesses, as required under the Regulatory

Flexibility Act, 5 U.S.C. 601-612.

In order not to prejudge the additional attendance requirement

issue before all interested parties had an opportunity to comment on

the IFR requirements, RSPA did not respond to the petitions for

reconsideration prior to the close of the IFR comment period. Also,

because of the fast-approaching expiration date of the IFR, the need to

take further regulatory action to ensure an acceptable level of safety

during the transportation, including unloading, of liquefied compressed

gases, and the identical nature of the issues raised by petitioners and

commenters alike, RSPA found that it was impractical to make a decision

on the petitions for reconsideration prior to issuance of this final

rule. On June 9, 1997, RSPA published a notice in the Federal Register

(62 FR 31363) announcing its intent to defer a decision on the

petitions for reconsideration of the IFR and to hold a second public

meeting at industry's request. RSPA indicated that it would address the

issues raised by petitioners and commenters regarding the IFR

requirements in a final rule that it intended to issue prior to the

expiration date of the IFR. RSPA also indicated in that notice that

after publication of the final rule, it intended to issue an NPRM to

address broader issues raised during the course of this rulemaking,

including the ``unobstructed view'' requirement in Sec. 177.834(i) and

the need for hose management program requirements.

A significant basis for RSPA's finding that an emergency exists is

NPGA's and Mississippi Tank Company's assertions of the urgent need for

propane as a fuel for heating homes and agricultural facilities, as

well as the potentially serious adverse financial impacts on propane

marketers, propane producers, common carriers, vehicle assemblers and

equipment manufacturers. As RSPA noted in the IFR, ``After evaluating

the situation and the NPGA and Mississippi Tank Company emergency

exemption applications, RSPA finds that this situation constitutes an

emergency with broad applicability to many persons and far reaching

safety and economic impacts.'' (62 FR at 7644). Indeed, NPGA stated

that the operation of the affected cargo tank motor vehicles has

impacts ``almost incalculable from an economic standpoint,'' and that

an interruption of service by the industry would pose safety risks to

the large number of people in rural areas who depend on propane as fuel

for heating and cooking. The finding by RSPA that an economic and

safety emergency exists led the agency to issue the IFR in order to

provide industry with an immediate means of compliance with the HMR,

thereby avoiding an interruption of service and the resulting economic

and safety impacts described by the petitioners.

Because RSPA did not issue an NPRM in this rulemaking, it was not

required under the Regulatory Flexibility Act, 5 U.S.C. 601-612, to do

a full regulatory flexibility analysis regarding the impact of the IFR

on small entities.

As RSPA stated in the IFR:

The Regulatory Flexibility Act (Act), as amended, 5 U.S.C. 601-

612, directs agencies to consider the potential impact of

regulations on small business and other small entities. The Act,

however, applies only to rules for which an agency is required to

publish a notice of proposed rulemaking pursuant to Sec. 553 of the

Administrative Procedure Act (APA), 5 U.S.C. 553. See 5 U.S.C.

603(a) and 604(a). Because of the emergency nature of this rule,

RSPA is authorized under Sec. 553(b)(B) and Sec. 553 (d)(3) of the

APA to forego notice and comment and to issue this rule as an

interim final rule with an immediate effective date. Consequently,

RSPA is not required under the Act to do a regulatory flexibility

analysis in this rulemaking.

Specifically, Sec. 553(b)(B) and Sec. 553(d)(3) of the APA

authorize agencies to dispense with certain procedures for rules,

including notice and comment, when they find ``good cause'' to do

so. ``Good cause'' includes a finding that following notice-and-

comment procedures would be ``impracticable, unnecessary, or

contrary to the public interest.'' Section 553(d)(3) allows an

agency, upon a finding of good cause, to make a rule effective

immediately. ``Good cause'' has been held to include situations

where immediate action is necessary to reduce or avoid health

hazards or other imminent harm to persons or property, or where

inaction would lead to serious dislocation in government programs or

the marketplace.

Nevertheless, RSPA is concerned with the effect this rule may

have on small business. Consequently, in preparing a preliminary

regulatory evaluation under Executive Order 12866, RSPA has

analyzed, based on information currently available to the agency,

the impact of this rule on all affected parties, including small

businesses. The preliminary regulatory evaluation is available for

review in the public docket (62 FR 7646).

In the IFR, RSPA also asked a series of questions intended to

elicit economic, safety and technical data for use in the preparation

of a final regulatory evaluation. A discussion of the economic impacts

of this rule appears below and in the final regulatory evaluation that

is available in the public docket.

II. Issues and Comments

RSPA received over 90 comments on the provisions specified in the

IFR. These comments were from Members of Congress, trade associations,

marketers, carriers, and State and local agencies. All comments,

including late submissions and comments made at the meetings and

workshops, were considered by RSPA to the extent practicable. Most

commenters stated that they could comply with the provisions of the

IFR, except for those provisions requiring the person attending the

unloading to have an unobstructed view of the discharge system, and be

within arm's reach of a means for closure of the internal self-closing

stop valve or other device that will immediately stop the discharge of

product from the cargo tank. (See Sec. 171.5(a)(1)(iii)). While the

affected industries expressed their interest in working with RSPA to

develop systems and procedures that assure safe unloading of hazardous

materials from the MC 330 and MC 331 cargo tank motor vehicles in every

circumstance, the propane industry adamantly opposes these particular

elements of the IFR which it characterizes as being neither

practicable, reasonable, nor in the public interest. Specifically, the

NPGA estimated annual costs of $660 million to its member companies in

order to comply with the attendance requirement in the IFR. This cost

[[Page 44043]]

estimate is attributed largely to the NPGA's understanding that a

literal interpretation of the rule effectively requires at least two,

and possibly three, operators for each unloading operation. NPGA

explained that, in addition to the current operator who attends to the

delivery of propane at the receiving tank, a second operator would be

required to be under the truck to observe the piping and a third

operator would be required at the remote control on the internal valve

in order to have all the discharge system in view during the transfer

operation. If a third operator were actually required, as hypothesized,

the NPGA contends the cost of compliance would double to $1.32 billion.

The $660 million estimate of annual costs calculated by NPGA

results from a misreading of the rule. In the preamble to the IFR, RSPA

set forth several options for complying with ``the unobstructed view''

and ``arm's reach'' requirements. In that discussion, RSPA stated

``(u)ntil an automatic flow control system is developed, this may

require two operator attendants on a cargo tank motor vehicle or the

use of a lanyard, electro-mechanical, or other device or system to

remotely stop the flow of product.'' (62 FR at 7643).

The cost of various alternatives was analyzed by RSPA in the

preliminary regulatory evaluation prepared in support of the IFR. Where

two operators would be required, RSPA estimated additional annual costs

in the amount of $237 million. RSPA recognized the cost estimate as

being so great as to effectively eliminate the two-person method of

compliance from consideration as a feasible alternative. RSPA

subsequently assessed the NPGA's suggested use of a lanyard and that

resulted in the significantly lower estimate of costs of compliance of

$12.5 million. Therefore, the lanyard system and equally efficient

means of achieving compliance with the IFR were determined by RSPA to

be among the common-sense approaches that could be taken by industry to

permit its continued operation of the non-conforming cargo tank motor

vehicles.

The NPGA then contrasted its extremely high estimate of costs to

comply with the arm's reach and unobstructed view provisions of the IFR

with the comparatively low estimate of $322,192 to $1.5 million in

annual benefits to society calculated by RSPA in the preliminary

regulatory evaluation. RSPA calculated those benefits on the basis of

sixteen actual incidents contained in the Hazardous Materials

Information Reporting System database that occurred between 1990-1996.

The approach taken by RSPA was an attempt to determine the average cost

of each gallon of propane unintentionally released to the environment

so it might be used to compare the estimated cost-per-gallon price

increase attributed to the IFR that likely would be passed on to the

ultimate consumer of propane. The costs to society of each gallon of

propane spilled was estimated in a range of $115.98 to $547.41, or

$0.00164 per gallon of propane unloaded from cargo tank motor vehicles.

When RSPA compared these costs to the calculated additional costs of

compliance, the decision to apply temporary operational controls

contained in the IFR was fully justified and quite reasonable. When

RSPA considered further the potential threats to life and property

posed by plausible accident scenarios, such as the possible

consequences that may have occurred in Sanford, NC, had the spilled

propane ignited, the reasonableness of the temporary rules became even

more apparent.

Numerous comments submitted by small propane dealers serving

agricultural interests in the midwestern United States cited an

estimate of approximately $2,500 per vehicle to replace non-performing

(defective) emergency discharge control systems with a fully

operational passive shut-off system. They claimed this cost is

excessive and unnecessary, especially considering that none of those

commenters had ever experienced a failure of the emergency discharge

control system to function properly. Related comments suggested that

these small businesses accepted in good faith claims made by equipment

manufacturers that their cargo tank motor vehicles met all technical

requirements of the HMR. Furthermore, those commenters claimed they

should not be penalized for equipment deficiencies that they could not

reasonably be expected to identify through an independent evaluation.

Some conclude by suggesting that RSPA should require persons that

completed the certificate of compliance for each cargo tank motor

vehicle to bear the cost of a retrofit, following the example of the

National Highway Traffic Safety Administration in ordering automobile

manufacturers to correct identified safety defects.

RSPA does not agree with the commenters' reasoning that, because it

was only recently determined that most of the affected cargo tank motor

vehicles do not conform to a long-standing safety requirement, the

agency should accept the status quo as the officially recognized

standard for safety. As indicated earlier in this preamble, the need

for and value of fully operational emergency discharge controls is

undisputed. Actual threats to life and property posed during the

unloading of liquefied compressed gases demand that RSPA require

compliance with a performance standard that appears to be reasonably

achievable through technological innovations that are now undergoing

field tests.

A. Barriers to Compliance

A number of motor carriers noted practical barriers to their full

compliance with requirements in the interim final rule. One problem

concerns the regulatory requirement that the operator be within arm's

reach of a means for closure of the internal self-closing stop valve

while operational necessity sometimes calls for the operator to enter

the vehicle's cab in order to engage the power take-off for the pump.

For large capacity trailers, (e.g., those with a nominal capacity of

10,500 gallons), those controls are normally accessible only from the

vehicle operator's position in the truck tractor. A few operators

reported that while most bobtail trucks have the controls mounted on

the rear deck of the vehicle, unloading controls for some bobtail

trucks also are located in the vehicle cab. Thus, these operators

claimed the need for two operators.

With respect to retail deliveries of propane to residential and

industrial customers, numerous commenters noted that the operator is

most frequently located at the delivery end of the hose which may be

100 feet, or farther, from the vehicle. Additionally, these commenters

noted that it is not unusual for the receiving tank to be located in a

position that prohibits the operator from having an unobstructed view

of the cargo tank motor vehicle, as required by Sec. 177.834(i)(3). The

commenters state that, in their opinion, because Sec. 177.834(i)(5)

specifies that the delivery hose when attached to the cargo tank is

considered part of the vehicle, the operator in these circumstances is

in compliance with Sec. 177.834(i)(3). Also, where the receiving tank

and the cargo tank motor vehicle are in positions which do not allow

for a direct line of sight, these carriers believe that compliance is

possible by having the operator assume a position within 25 feet of the

hose at the corner of the house, or other structure, from which point

both cargo tank and receiving tank may be observed. The impediment to

compliance in these cases is that, for relatively short periods when

the operator is connecting/disconnecting the hose to the receiving

tank, it is

[[Page 44044]]

impossible to observe the cargo tank. To avoid the high costs of

compliance associated with hiring and training a second operator to

assist in these frequently occurring situations, the commenters

petitioned for relief from the requirements of Sec. 171.5(a)(1)(iii) by

requesting the following amendment:

In addition to the attendance requirements in Sec. 177.834(i) of

this subchapter, the person who attends the unloading of a cargo

tank vehicle must, except as necessary to facilitate the unloading

of product or to enable that person to monitor the receiving tank,

remain within arm's reach of a remote means of automatic closure

(emergency shut-down device) of the internal self-closing stop

valve.

See Ferrellgas et al. Petition for Reconsideration of Interim Final

Rule (Appendix B).

RSPA rejects the industry's interpretation of the long-standing

operator attendance rules in Sec. 177.834(i)(3) that a single operator

satisfies requirements for an unobstructed view of the cargo tank, and

is within 25 feet of the cargo tank, merely by being in proximity to,

and having an unobstructed view of, any part of the delivery hose,

which may be 100 feet or more away from the cargo tank motor vehicle,

during the unloading (transfer) operation. The rule clearly requires an

operator be in a position from which the earliest signs of problems

that may occur during the unloading operation are readily detectable,

thereby permitting an operator to promptly take corrective measures,

including moving the cargo tank, actuating the remote means of

automatic closure of the internal self-closing stop valve, or other

action, as appropriate. RSPA contends the rule requires that an

operator always be within 25 feet of the cargo tank. Simply being

within 25 feet of any one of the cargo tank motor vehicle's

appurtenances or auxiliary equipment does not constitute compliance.

B. Transports

Compliance with the long-standing attendance requirements is rather

easily achieved by a single operator in most instances involving the

unloading of ``transports'' at bulk plants, similarly configured

industrial facilities, neighborhood gasoline service stations, and

other delivery sites which generally provide for use of transfer hoses

that do not exceed 20 feet in length. It is the provision in the IFR,

requiring the operator to be within arm's reach of a means for closure

of the internal self-closing stop valve or other device that will

immediately stop the discharge of product from the cargo tank at all

times, that makes compliance by a single operator difficult or

impossible.

In order to assure that temporary operational safety controls

specified in Sec. 171.5 may be reasonably complied with by the

operating motor carriers, RSPA is revising the rule by providing that

the person in attendance of the cargo tank may be away from the

mechanical means for closure of the internal self-closing stop valve

for the short period necessary to engage or disengage the motor vehicle

power take-off or other mechanical, electrical, or hydraulic means used

to energize the pump and other components of the discharge system. RSPA

believes this provision allows for a single operator to perform

necessary unloading functions, while also reducing potential threats to

safety by requiring the operator to quickly assume a position within

arm's reach of the emergency discharge control mechanism. With this

revision, RSPA is satisfied that compliance with the temporary rule may

be accomplished by one operator and without requiring the additional

use of a lanyard, electro-mechanical, or other device or system to

remotely stop the flow of product. Thus, under this final rule,

operators of transports may avoid the costs associated with equipping

the cargo tanks with devices or systems that provide an alternative

means of compliance with the HMR. This provision is responsive to

concerns raised by petitioners representing the propane industry. See

Appendices A and B.

C. Bobtails (Local Delivery Trucks)

Issues raised by commenters concerning general applicability of

requirements in Sec. 177.834(i) pertaining to operator attendance

during the unloading of cargo tank motor vehicles relate to a larger

number of motor carriers and specification cargo tanks than those

addressed in this final rule. Therefore, the attendance issue is

addressed only to the extent it bears on temporary operational controls

set-out in this rule. In an ANPRM published in today's Federal Register

RSPA addresses those broader issues with respect to liquefied

compressed gases transported in specification MC 330, MC 331 and

certain non-specification cargo tank motor vehicles. That rulemaking

proposal specifically solicits participation by emergency responders

and other affected persons whose concerns were not made known during

the course of this rulemaking action.

RSPA is revising the IFR attendance requirements to address

economic concerns raised by petitioners on behalf of operators of

bobtail trucks. Peculiarities in the siting of receiving tanks,

accessibility of a cargo tank motor vehicle to the vicinity of the

receiving tank, permanent structures, including high fences, walls, and

the like, create scenarios that need to be addressed separately.

When a bobtail truck is used solely to service receiving tanks that

are located within 25 feet of the cargo tank and the operator has a

direct line of sight, RSPA is confident that compliance with the

temporary rule may be accomplished by one operator and without

incurring additional costs for the application of a lanyard, electro-

mechanical, or other device or system to remotely stop the flow of

product.

Another scenario common to bobtail operations involves the delivery

of propane to a receiving tank which provides for an unobstructed view

of the cargo tank, but is at a distance greater than 25 feet from the

cargo tank. In this situation, a single operator conceivably could

comply with the temporary operational controls in the same manner as

discussed above for transports. However, the need to closely observe

the receiving tank takes the operator more than 25 feet from the cargo

tank motor vehicle and effectively mandates installation of a remote

control system or other system that allows the operator to promptly

activate the emergency discharge controls. Installation of a remote

control system allows the motor carrier to avoid high labor costs

identified by the industry that would otherwise be incurred when a

second operator is employed to achieve compliance with these temporary

regulations. Data provided by the industry concerning radio-controlled

systems that are capable of stopping the engine and, in turn, shutting-

down the operation of the pump, thereby allowing the internal self-

closing stop valve to revert to its fail-safe position, indicate that

most bobtail cargo tanks could be so equipped at a unit cost of

approximately $250 to $500.

Still another frequently reported unloading scenario involves

situations where the receiving tank is more than 25 feet from the cargo

tank motor vehicle and the operator's view is obstructed by a

structure, a natural formation, foliage, or some other barrier. RSPA

understands further that many residential deliveries of propane fall

into this unloading scenario. This situation is of greatest concern to

RSPA because the possibility exists that a failure of a discharge

valve, pump seal, hose reel swivel joint, or hose during unloading

(transfer) may not be immediately detected. Should that occur, a

dangerous quantity of propane

[[Page 44045]]

could be released to the environment, possibly ignite, and result in

serious injuries, extensive property damage, or both.

In the unloading scenario described above, when a single operator

attends to the unloading operation, that person is required by this

final rule to take additional safety precautions. Before commencing the

transfer of product, (i.e., opening the internal valve), the operator

must assume a position near the cargo tank motor vehicle that is within

arm's reach of the emergency discharge controls. Alternatively, if the

operator has a remote control system, or other device, that has a

capability to immediately close the internal valve, the operator must

assume a position that assures an unobstructed view of the cargo tank.

In either event, a transfer of product may be affected only at such

times as the operator has an unobstructed view of the cargo tank.

RSPA believes this final rule clearly provides motor carriers with

the ability for a single operator to safely unload liquefied compressed

gases transported in specification MC 330 and MC 331 cargo tank motor

vehicles in most circumstances and at a minimal cost for installation,

maintenance, and training in the use of remote control systems, or

other devices, that permit the operator to promptly stop the flow of

product in the event of an unintentional release to the environment.

The temporary rules permit motor carriers to continue until March 1,

1999, their use of cargo tank motor vehicles that do not conform to

Sec. 178.337-11 for the transportation of hazardous materials that are

essential to home, agriculture, and industry.

Prior to March 1, 1999, RSPA anticipates the industry will have

perfected passive shut-off systems that allow motor carriers to bring

their cargo tank motor vehicles into compliance with requirements of

Sec. 178.337-11.

D. Need for Passive System Requirements

Several commenters question whether the emergency discharge

requirement in Sec. 178.337-11 is necessary. ICI Technology and Barrett

Transportation Compliance state that RSPA is placing too much emphasis

on a passive automatic shut-down device. They believe that knowing the

cause of accidents and focusing on prevention is better than trying to

mitigate the incident once it occurs.

TFI believes that a hose management program, along with industry

awareness training programs, possible requirements for brake interlock

systems, and improvements to the delivery system of cargo tanks in

ammonia service, including the emergency-shut-off valve, are sufficient

to provide an equivalent level of safety to a fully passive excess flow

valve, and may be one possible long-term solution to the problem at

hand. NPGA supports TFI's position and believes that enhanced hose

testing, training and inspection procedures would provide an equivalent

level of safety inasmuch as the majority of product discharges are the

result of hose ruptures rather than complete separations which excess

flow valves are intended to address.

The HMR address two unintentional release scenarios, specifically:

(1) Total hose or piping rupture or separation; and (2) partial hose or

piping rupture, separation, or leak. Commenters correctly note that the

passive emergency discharge control requirement in Sec. 178.337-

11(a)(1)(i) is meant to protect against the unintentional discharge of

liquefied compressed gases where there is a total hose or piping

rupture or separation. Such events have potentially large consequences

and high probability of incapacitating the operator to the extent that

person cannot perform emergency procedures. For partial hose or piping

rupture, separation, or leak, operator-dependent countermeasures are

the primary safety measure. The operator-attendance requirements for

unloading operations in Sec. 177.834(i)(2) ensure that the person

attending an unloading operation is alert, can see the cargo tank

during the unloading operation and is close enough to the cargo tank to

reach the emergency shut-off system in the event of an emergency. The

training requirements in Sec. 172.700 are intended to ensure that the

person attending the unloading operation is aware of safety procedures

and is familiar with the HMR in general and the requirements that apply

specifically to the functions the employee performs. Where a partial

hose or piping rupture, separation, or leak occurs, only the operator-

dependent countermeasures come into play.

With issuance of this final rule and the ANPRM, RSPA is reviewing

and addressing existing HMR requirements, including the passive system

requirement in Sec. 178.337-11. RSPA also is considering the need for a

hose management program and other measures that address the problem of

hose ruptures. RSPA will review these requirements from a cost/benefit

perspective, especially in light of new technologies that are available

now or will shortly be available.

E. Decisions on Petitions for Reconsideration

Based on the above information and discussions, NPGA's March 21,

1997 petition for reconsideration of the ``arm's reach'' requirement

contained in the February 19, 1997 IFR is denied. Based on the same

information and discussions, the March 21, 1997 petition for

reconsideration of the IFR filed by Ferrellgas, et al (joint

petitioners) is granted in part and denied in part. Specifically, as

requested by the joint petitioners, this final rule authorizes the

person attending the unloading of a cargo tank motor vehicle to step

away from the mechanical means of closure of the internal self-closing

stop valve for the short duration necessary to engage or disengage the

motor vehicle power take-off or other mechanical, electrical, or

hydraulic means used to energize the pump and other components of the

discharge system on the cargo tank. It does not, however, authorize

that person to step away from the means of immediate closure of the

internal self-closing stop valve for any other reason.

III. Provisions of the Final Rule

A. Section 171.5

Paragraph 171.5(a)(1) sets forth use provisions under which MC 330,

MC 331 and non-specification cargo tank motor vehicles authorized under

Sec. 173.315(k) may be operated and unloaded. Also, this paragraph

makes clear that Sec. 171.5 does not apply to cargo tank motor vehicles

used to transport carbon dioxide.

Paragraph 171.5(a)(1)(i) requires that, before each transfer of

product is initiated from a cargo tank motor vehicle, the person

performing the unloading function should verify that each component of

the discharge system is of sound quality, is free of leaks, and that

all connections are secure. Also, the transfer hose must be subjected

to full transfer pressure prior to the first unloading of product each

day.

Paragraph 171.5(a)(1)(ii) requires that, before the transfer of

product is initiated from a cargo tank motor vehicle using a new or

repaired transfer hose, or a modified hose assembly for the first time,

the hose assembly must be subjected to a specified pressure test. This

paragraph also provides that a hose or associated equipment that shows

signs of leakage, significant bulging or other defects may not be used.

Where hoses are used to transfer liquefied compressed gases, a

procedure must be instituted to ensure that hose assemblies are

maintained at a level of integrity suited to each hazardous material.

An acceptable procedure for maintenance,

[[Page 44046]]

testing and inspection of hoses is outlined in publication RMA/IP-11-2,

``Manual for Maintenance, Testing and Inspection of Hose'', 1989

edition, published by the Rubber Manufacturers Association.

Paragraph 171.5(a)(1)(iii) requires that, in the event of an

unintentional release of lading to the environment during transfer, the

person attending the unloading operation must promptly activate the

internal self-closing stop valve and shut down all motive and auxiliary

power equipment. This paragraph clarifies that prompt activation can be

accomplished in at least three ways, specifically: (1) Through

compliance with the requirements in Sec. 178.337-11(a)(1)(i); (2)

through the use of a qualified person positioned within arm's reach of

the mechanical means of closure throughout the unloading operation,

except during the short period of time necessary to engage or disengage

the motor vehicle power take-off or other mechanical, electrical, or

hydraulic means used to energize the pump and other components of a

cargo tank's discharge system; or (3) through the use of a fully

operational radio-controlled system that is capable of stopping the

transfer of lading by use of a transmitter carried by a qualified

person unloading the cargo tank.

This paragraph also provides that where a radio-controlled system

is used as a means of promptly activating the internal self-closing

stop valve, the attendance requirements of Sec. 177.834(i)(3) are

satisfied when the qualified person unloading the cargo tank: (1)

Carries a radio transmitter that will activate the closure of the

internal self-closing stop valve; (2) remains within the operating

range of the transmitter; and (3) has an unobstructed view of the cargo

tank motor vehicle at all times when its internal stop-valve is open.

Paragraph 171.5(a)(1)(iv) states that cargo tank motor vehicles

that meet the emergency discharge system requirements in Sec. 178.337-

11(a)(1)(i) may be operated under the provisions of Sec. 171.5(a)(1).

Paragraph 171.5(a)(1)(v) requires that a comprehensive written

emergency operating procedure be developed by persons conducting

transfer operations, that the written procedures be prominently

displayed on or in each affected cargo tank motor vehicle, and that

hazmat employees who perform unloading functions be trained in those

procedures.

Paragraph 171.5(a)(1)(vi) requires that cargo tank manufacturers,

assemblers, retesters, motor carriers, and other hazmat employers

subject to Sec. 171.5 train their employees to perform the new

function-specific requirements in Sec. 171.5 and maintain records of

this training as required under Sec. 172.704(d). As a general

provision, this requirement already exists. Section 172.702 of the HMR

requires that a hazmat employer ensure that each of its hazmat

employees is trained in accordance with Subpart H of Part 172. The

training requirements apply to persons who manufacture, maintain, and

test cargo tanks, and to persons who operate cargo tanks. Testing, and

a ``certification that the hazmat employee has been trained and

tested,'' is required by the regulation and Federal hazmat law. RSPA

views emergency discharge controls and their operation to be essential

to cargo tank safety and to be a significant element in the training

program of any involved hazmat employer. Also, there are the driver

training requirements in Sec. 177.816 that include special requirements

for operators of cargo tanks with a specific reference to training on

the operation of emergency control features.

Paragraph 171.5(a)(2), regarding the continuing qualification of a

cargo tank motor vehicle, allows existing in-service cargo tank motor

vehicles that do not meet the requirements of Sec. 178.337-11(a)(1)(i)

to continue in operation if the Certificate of Compliance and

inspection report required under Sec. 180.417(b) contain the following

statement: ``Emergency excess flow control performance not established

for this unit.''

Paragraph 171.5(a)(3), regarding new cargo tank motor vehicles

manufactured, marked and certified prior to March 1, 1999, states that

those vehicles may be marked and certified as conforming to

specification MC 331 if they meet all of the specification

requirements, with the exception of the emergency excess flow control

function, and the following statement appears on the certification

document, ``Emergency excess flow control performance not established

for this unit.''

Paragraph 171.5(b) specifies the marking that must be displayed on

a cargo tank used or represented for use under Sec. 171.5.

Paragraph 171.5(c) states that requirements specified in Sec. 171.5

are applicable from August 16, 1997, through March 1, 1999.

B. Immediate Compliance

This final rule is an alternative to existing requirements.

Industry may choose to comply with the requirements in Sec. 178.337-11,

tracing back to 1941, or with provisions in Sec. 171.5. However,

because segments of industry are in non-compliance with requirements in

Sec. 178.337.11(a)(1)(v) and the attendance requirements in

Sec. 177.834(i)(3), a serious threat to the public safety continues to

exist and must be addressed without delay. Furthermore, continued non-

compliance with the above-stated requirements poses a serious economic

threat to industry in that MC 330 and MC 331 cargo tank motor vehicles

that do not conform to the HMR may not be used to transport hazardous

materials. As stated by NPGA in its application for exemption, the

impacts of continued operation of these vehicles are ``so many'' and

``so pervasive as to be almost incalculable from an economic impact

viewpoint.'' Based on the above, and the fact that the final rule

requirements are refinements of the IFR requirements that have been in

effect since February 19, 1997, good cause exists for making this rule

immediately effective upon expiration of the IFR.

IV. Rulemaking Analyses and Notice

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a significant regulatory action under

section 3(f) of Executive Order 12866 and was reviewed by the Office of

Management and Budget. The rule is considered significant under the

Regulatory Policies and Procedures of the Department of Transportation

(44 FR 11034).

The preliminary regulatory evaluation prepared in support of the

interim final rule published on February 19, 1997, was reexamined and

modified to remove certain incidents that were not appropriate to

issues considered in this rulemaking, and to consider economic cost

data submitted to the docket by commenters. The final regulatory

evaluation is available for review in the public docket.

Most of the compliance cost burden of this rule is expected to fall

on propane dealers, and RSPA expects these costs to be passed on to

customers. A total one-time expenditure of $4.7 million to $9.2 million

is estimated as being required of these dealers. This expenditure is

very small in relation to the revenue from sales of liquefied petroleum

gas by dealers to final users, without even counting those sales that

may be made directly to industrial, agricultural or commercial

customers by merchant wholesalers or gas producers. The latest

available (1992) Census of Retail Trade showed annual sales of

liquefied petroleum gas by retail dealers alone to amount to $4.87

billion. The $4.7

[[Page 44047]]

million to $9.2 million estimated above is relatively small when

compared only to the margin between operating expenses and revenues net

of the cost of such purchases and appears to add relatively little to a

year's worth of outlays made by these dealers for capital equipment.

The U.S. Bureau of the Census has provided RSPA with 1992 sample-

survey-based estimates of these quantities that are normally not

published in such industry-specific detail since they have been

subjected to only limited review. They were only available combined

with those for fewer than 300 miscellaneous types of fuel dealers that

could not be classified as ``fuel oil'' vendors, but this minor

category accounted for only 1.3% of combined sales according to the

1992 Census of Retail Trade. 98.7% of the estimated operating margin

and of the estimated annual capital expenditure (other than for land)

amounted to $499 million and $191 million, respectively, for retail

liquefied petroleum gas dealers.

Another way of putting these estimated compliance costs in

perspective is to express their major component, the equipping of

bobtails with radio frequency devices, as an average expenditure per

retail liquefied petroleum gas business location. Using the 5393 such

locations in existence during an entire year that were shown in the

1992 Census of Retail Trade, yields an average of under $800 per

location.

These essentially one-time-only costs of $4.7 million to $9.2

million (or annualized costs of $3.13 million to $6.14 million, when

amortized over the 18 months this temporary regulation will be in

effect) compare favorably with estimated annual benefits to society, in

terms of reduced injuries, evacuations, and property damages, ranging

from a low of $322,071 to a high of $3 million. The low end of this

range is based upon data contained in fourteen unloading incidents

reported to RSPA during the past seven years. The high end of the range

considers those same incidents but then adjusts for a ten-fold estimate

of under reporting of economic losses and a two-fold estimate of under

reporting of the actual number of incidents, based upon the Office of

Technology Assessment report ``Transportation of Hazardous Materials''

(July 1986). In event the requirements specified in this revised final

rule were to prevent a major release of propane potentially threatening

the life of four or more persons, the rule would yield a net benefit to

society.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism''). The

Federal hazardous materials transportation law, 49 U.S.C. 5101-5127,

contains an express preemption provision (49 U.S.C. 5125(b)) that

preempts State, local, and Indian tribe requirements on certain covered

subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous

materials;

(2) The packing, repacking, handling, labeling, marking, and

placarding of hazardous materials;

(3) The preparation, execution, and use of shipping documents

related to hazardous materials and requirements related to the number,

contents, and placement of those documents;

(4) The written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(5) The design, manufacture, fabrication, marking, maintenance,

recondition, repair, or testing of a packaging or container

represented, marked, certified, or sold as qualified for use in

transporting hazardous material.

This interim final rule addresses covered subject item (5) above

and preempts State, local, and Indian tribe requirements not meeting

the ``substantively the same'' standard. Federal hazardous materials

transportation law provides at Sec. 5125(b)(2) that, if DOT issues a

regulation concerning any of the covered subjects, DOT must determine

and publish in the Federal Register the effective date of Federal

preemption. The effective date may not be earlier than the 90th day

following the date of issuance of the final rule and not later than two

years after the date of issuance. RSPA has determined that the

effective date of Federal preemption for these requirements will be

November 17, 1997. Thus, RSPA lacks discretion in this area, and

preparation of a federalism assessment is not warranted.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (Act), as amended, 5 U.S.C. 601-612,

directs agencies to consider the potential impact of regulations on

small business and other small entities. The Act, however, applies only

to rules for which an agency is required to publish a notice of

proposed rulemaking pursuant to section 553 of the Administrative

Procedure Act (APA), 5 U.S.C. 553. See 5 U.S.C. 603(a) and 604(a).

Because of the emergency nature of this rule, RSPA is authorized under

sections 553(b)(B) and 553(d)(3) of the APA to forego notice and

comment and to issue this final rule with an immediate effective date.

Consequently, RSPA is not required under the Act to do a regulatory

flexibility analysis in this rulemaking.

Specifically, under sections 553(b)(B) and 553(d)(3), APA

authorizes agencies to dispense with certain procedures for rules,

including notice and comment, when they find ``good cause'' to do so.

``Good cause'' includes a finding that following notice-and-comment

procedures would be ``impracticable, unnecessary, or contrary to the

public interest.'' Section 553(d)(3) allows an agency, upon a finding

of good cause, to make a rule effective immediately. ``Good cause'' has

been held to include situations where immediate action is necessary to

reduce or avoid health hazards or other imminent harm to persons or

property, or where inaction would lead to serious dislocation in

government programs or the marketplace.

Nevertheless, RSPA is concerned with the effect this rule may have

on small business. Consequently, in preparing a regulatory evaluation

under Executive Order 12866, RSPA analyzed, based on information

currently available to the agency, the impact of this rule on all

affected parties, including small businesses. The regulatory evaluation

is available for review in the public docket.

The Regulatory Flexibility Act is concerned with identifying the

economic impact of regulatory actions on small businesses and other

small entities. It requires a final rule to be accompanied by a final

regulatory flexibility analysis, consisting of a statement of the need

for the rule, a summary of public comments received on regulatory

flexibility issues and agency responses to them, a description of

alternatives to the rule consistent with the regulatory statutes but

imposing less economic burden on small entities, and a statement of why

such alternatives were not chosen. Unless alternative definitions have

been established by the agency in consultation with the Small Business

Administration, the definition of ``small business'' has the same

meaning as under the Small Business Act. Because no special definition

has been established, RSPA employs the thresholds published (in 13 CFR

121.201) of 100 employees for wholesale trade in general and $5,000,000

annual sales for retail trade in general. As noted above, liquefied

petroleum gas dealers constitute the principal type of business

[[Page 44048]]

on which significant compliance costs will be imposed by this rule, in

particular for equipment on retail-type delivery vehicles. Using the

Small Business Administration definitions and the latest (1992)

available Census of Retail Trade, it appears that over 95% of retail

liquefied petroleum gas dealers must be considered small businesses for

purposes of the Regulatory Flexibility Act. They accounted in the 1992

Census for over 50% of business locations and almost 43% of annual

sales. Unpublished 1992 Census of Wholesale Trade figures provided to

RSPA by the U.S. Bureau of the Census indicate that over 95% of

merchant wholesalers of liquefied petroleum gas also must be considered

small businesses; they accounted for approximately 40% of business

locations and over 50% of annual sales.

The Regulatory Flexibility Act suggests that it may be possible to

establish exceptions and differing compliance standards for small

business and still meet the objectives of the applicable regulatory

statutes. However, given the importance of small business in liquefied

petroleum gas distribution, especially in its retail sector where

improved emergency shut-off equipment is necessary to assure adequate

safety during delivery operations, RSPA believes that it would not be

possible to establish differing standards and still accomplish the

objectives of Federal hazardous materials transportation law (49 U.S.C.

5101 et seq.). RSPA further believes that the discussion in the

regulatory evaluation and in the February 19, 1997 Federal Register

publication of the interim final rule, as to the need for regulatory

action, issues raised by the public and the consideration of

alternatives open to the government, apply to small as well as large

businesses in the affected industries.

While certain regulatory actions may affect the competitive

situation of an industry by imposing relatively greater burdens on

small-scale than on large-scale enterprises, RSPA does not believe that

this will be the case with this rule. The principal types of compliance

expenditure effectively required by the rule, radio frequency emergency

shut-off system installation, is imposed on each vehicle, whether

operated within a large or a small fleet. While there is undoubtedly

some administrative efficiency advantage to a large firm in being able

to make a single set of arrangements for such installations on a large

number of vehicles at a time, imposition of the requirement

contemplates use of commercially-available equipment, without any need

for extensive custom development work that only a large firm could

afford. While the only other compliance expenditure that is believed to

be significant in the aggregate, that for documentation of emergency

procedures, has been projected here on a per-firm rather than a per-

vehicle or per-location basis, the average of $62 estimated for each

preparation does not appear high enough to significantly affect the

economics of small-scale as contrasted with large-scale distribution of

the affected commodities.

D. Unfunded Mandates Reform Act

This rule does not impose unfunded mandates under the Unfunded

Mandates Reform Act of 1995. It does not result in costs of $100

million or more to either State, local, or tribal governments, in the

aggregate, or to the private sector, and is the least burdensome

alternative that achieves the objective of the rule.

E. Paperwork Reduction Act

The information collection and recordkeeping requirements contained

in this final rule have been submitted for renewal to the Office of

Management and Budget (OMB) under the provisions of the Paperwork

Reduction Act of 1995. The requirement is currently approved under OMB

Control Number 2137-0595. Section 1320.8(d), Title 5, Code of Federal

Regulations requires that RSPA provide interested members of the public

and affected agencies an opportunity to comment on information

collection and recordkeeping requests. RSPA estimates that the total

information collection and recordkeeping burden in this final rule is

18,573 hours, at a cost of $422,660, for the development and

maintenance of the comprehensive emergency operating procedure. These

figures are based in RSPA's belief that standardized emergency

operating procedures can be developed for use by a majority of industry

members, thus reducing substantially the burden hours and cost to

individual industry members of compliance with the emergency operating

procedures requirement. Requests for a copy of this information

collection should be directed to Deborah Boothe, Office of Hazardous

Materials Standards (DHM-10), Research and Special Programs

Administration, Room 8102, 400 Seventh Street, SW, Washington, DC

20590-0001. Telephone (202) 366-8553. Under the Paperwork Reduction Act

of 1995, no person is required to respond to an information collection

unless it displays a valid OMB control number.

F. Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects in 49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Reporting and recordkeeping requirements.

In consideration of the foregoing, 49 CFR part 171 is amended as

follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for Part 171 is revised to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

2. Section 171.5 is added to read as follows:

Sec. 171.5 Temporary regulation; liquefied compressed gases in cargo

tank motor vehicles.

(a) Operation of new and existing cargo tank motor vehicles. For a

cargo tank motor vehicle used to transport liquefied compressed gases,

other than carbon dioxide, Sec. 178.337-11(a)(1)(i) of this subchapter

requires that each internal self-closing stop valve and excess flow

valve must automatically close if any of its attachments are sheared

off or if any attached hoses or piping are ruptured or separated. Other

regulations in Parts 173 and 180 of this subchapter reference this

requirement or similar requirements in effect at the time of

manufacture of a cargo tank motor vehicle. Notwithstanding this

requirement, a DOT MC 330 or MC 331 specification cargo tank motor

vehicle, or a non-specification cargo tank motor vehicle conforming to

the requirements of Sec. 173.315(k) of this subchapter, may, without

certification and demonstrated performance of the internal self-closing

stop valve or the excess flow feature or self-closing stop valve of its

emergency discharge control system, be represented for use and used to

transport certain liquefied compressed gases under the following

conditions:

(1) Use. The cargo tank motor vehicle must otherwise be operated,

unloaded and attended in full conformance with all applicable

requirements of this subchapter and the following additional

requirements:

[[Page 44049]]

(i) Before initiating each transfer from the cargo tank motor

vehicle, the person performing the function shall verify that each

component of the discharge system is of sound quality, is free of

leaks, and that connections are secure. In addition, prior to

commencing the first transfer of each day, the transfer hose shall be

subjected to full transfer pressure.

(ii) Prior to commencing transfer using a new or repaired transfer

hose or a modified hose assembly for the first time, the hose assembly

must be subjected to a pressure test. The pressure test must be

performed at no less than 120 percent of the design pressure or maximum

allowable working pressure (MAWP) marked on the cargo tank motor

vehicle, or the pressure the hose is expected to be subjected to during

product transfer, whichever is greater. This test must include all hose

and hose fittings and equipment arranged in the configuration to be

employed during transfer operations. A hose or associated equipment

that shows signs of leakage, significant bulging, or other defects, may

not be used. Where hoses are used to transfer liquefied compressed

gases, a procedure must be instituted to ensure that hose assemblies

are maintained at a level of integrity suited to each hazardous

material. An acceptable procedure for maintenance, testing and

inspection of hoses is outlined in publication RMA/IP-11-2, ``Manual

for Maintenance, Testing and Inspection of Hose'', 1989 edition,

published by the Rubber Manufacturers Association, 1400 K Street, N.W.,

Washington, DC 20005.

(iii) If there is an unintentional release of lading to the

environment during transfer, the internal self-closing stop valve shall

be promptly activated, and the qualified person unloading the cargo

tank motor vehicle shall promptly shut down all motive and auxiliary

power equipment. Prompt activation of the internal self-closing stop

valve may be accomplished through:

(A) Compliance with Sec. 178.337-11(a)(1)(i) of this subchapter; or

(B) A qualified person positioned within arm's reach of the

mechanical means of closure for the internal self-closing stop valve

throughout the unloading operation; except, that person may be away

from the mechanical means only for the short duration necessary to

engage or disengage the motor vehicle power take-off or other

mechanical, electrical, or hydraulic means used to energize the pump

and other components of the cargo tank motor vehicle's discharge

system; or

(C) A fully operational remote-controlled system capable of

stopping the transfer of lading by operation of a transmitter carried

by a qualified person attending unloading of the cargo tank motor

vehicle. Where the means for closure of the internal self-closing stop

valve includes a remote-controlled system, the attendance requirements

of Sec. 177.834(i)(3) of this subchapter are satisfied when a qualified

person:

(1) Is carrying a radio transmitter that can activate the closure

of the internal self-closing stop valve;

(2) Remains within the operating range of the transmitter; and

(3) Has an unobstructed view of the cargo tank motor vehicle at all

times that the internal stop-valve is open.

(iv) A cargo tank motor vehicle that has an emergency discharge

system conforming to the requirements in Sec. 178.337-11(a)(1)(i) of

this subchapter may be operated under the provisions of this paragraph

(a)(1).

(v) A comprehensive written emergency operating procedure must be

developed for all transfer operations and hazmat employees who perform

unloading functions must be trained in its provisions. The emergency

operating procedure must be prominently displayed in or on the cargo

tank motor vehicle.

(vi) As required by Sec. 172.704 of this subchapter, each

manufacturer, assembler, retester, motor carrier and other hazmat

employer subject to the requirements of this section shall ensure that

its hazmat employees are trained to properly perform these new

function-specific requirements including the meaning of the marking

specified in paragraph (b) of this section. The hazmat employer shall

ensure that a record of the training is created, certified, and

maintained as specified in Sec. 172.704(d) of this subchapter.

(2) Continuing qualification. An existing in-service cargo tank

motor vehicle may continue to be marked and documented as required by

Part 180 of this subchapter if the following statement is added to the

Certificate of Compliance by the owner or operating motor carrier:

``Emergency excess flow control performance not established for this

unit.''

(3) New cargo tank motor vehicles. A new (unused) cargo tank motor

vehicle manufactured, marked and certified prior to March 1, 1999, may

be marked and certified as conforming to specification MC 331 if it

otherwise meets all requirements of the specification and the following

statement is added to the certification document required by

Sec. 178.337-18 of this subchapter: ``Emergency excess flow control

performance not established for this unit.''

(b) Marking. The following marking must be displayed on a cargo

tank motor vehicle used or represented for use under this section:

BILLING CODE 4910-60-P

[GRAPHIC] [TIFF OMITTED] TR18AU97.006

BILLING CODE 4910-60-C

[[Page 44050]]

(1) The letters must be white and the background black.

(2) The letters must be at least 1.5cm in height.

(3) The marking must be 6cm x 15cm.

(c) Requirements of this section are applicable to a cargo tank

motor vehicle used to transport liquefied compressed gases, other than

carbon dioxide, from August 16, 1997 through March 1, 1999.

Issued in Washington, DC on August 13, 1997, under authority

delegated in 49 CFR part 1.

Kelley Coyner,

Acting Administrator, Research and Special Programs Administration.

Appendices

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendix A--National Propane Gas Association Petition for

Reconsideration of Interim Final Rule

March 21, 1997

By First Class Mail

The Honorable Dharmendra K. Sharma,

Administrator, Research & Special Programs Administration, U.S.

Department of Transportation, 400 7th Street, S.W., Washington, D.C.

20590-0001.

Re: Amendment to NPGA's Petition for Reconsideration

Dear Administrator Sharma: On behalf of the National Propane Gas

Association (``NPGA'' or the ``Petitioner'') and its members, we

hereby amend our Petition for Reconsideration of the Emergency

Interim Final Rule on Cargo Tank Motor Vehicles in Liquefied

Compressed Gas Service (``Interim Final Rule''), Docket No. RSPA-97-

2133 (HM-225), filed on March 21, 1997, to correct a typographical

error.

On the bottom of page eight (8) of our Petition for

Reconsideration, we inadvertently stated that the $660 million in

additional costs would represent ``a potential increase of .07 cents

per gallon to the consumer.'' The costs would reflect a potential

increase of 7 cents per gallon to the consumer. Therefore, the

sentence containing this statement should read as follows: ``This

figure represents a potential increase of $.07 per gallon to the

consumer.''

We apologize for any confusion this error may have caused.

Respectfully submitted,

Eric A. Kuwana,

Counsel for the National Propane Gas Association.

March 21, 1997

By Hand Delivery

202-457-6420

Dr. Dharmendra K. Sharma,

Administrator, Research & Special Programs Administration, U.S.

Department of Transportation, 400 7th Street, S.W., Washington, D.C.

20590-0001.

Re: Petition for Reconsideration of Interim Final Rule, Pursuant to 49

CFR Sec. 106.35; and Petition for Rulemaking Pursuant to 49 CFR

Sec. 106.31

Dear Administrator Sharma: On behalf of the National Propane Gas

Association (``NPGA'' or the ``Petitioner'') and its members, we

hereby petition the Research and Special Programs Administration

(``RSPA'') of the U.S. Department of Transportation (``DOT'') for

reconsideration of a single requirement imposed in the Emergency

Interim Final Rule on Cargo Tank Motor Vehicles in Liquefied

Compressed Gas Service (``Interim Final Rule''), Docket No. RSPA-97-

2133 (HM-225), which was published on February 19, 1997 (62 FR

7638). By this petition, NPGA and its members do not seek or

otherwise request reconsideration of the entire Interim Final Rule.

Instead, NPGA seeks reconsideration of the single requirement

addressed herein. At the same time, we remain committed to work with

RSPA to ensure the safe loading and unloading of LP-gas (or propane

gas) from cargo tank motor vehicles.

The Petitions

Pursuant to the procedural provisions in 49 CFR Sec. 106.35(a),

we specifically petition RSPA for reconsideration of the additional

attendance requirement in 49 CFR Sec. 171.5(a)(1)(iii), which

states, in relevant part, that ``[t]he person who attends the

unloading of a cargo tank motor vehicle must have an unobstructed

view of the discharge system and be within arm's reach of a means

for closure (emergency shut-down device) of the internal self-

closing stop valve or other device that will immediately stop the

discharge of product from the cargo tank.'' This language

effectively mandates that two or more attendants travel to and be

present during the unloading of propane gas from a cargo tank motor

vehicle. The additional attendance requirement is not justified by

the exceptional safety record of the propane gas industry, is not

necessary to ensure the safe unloading of propane gas from a cargo

tank motor vehicle, and will result in enormous costs and

devastating impacts to the propane gas industry.

This Petition for Reconsideration satisfies the standard set

forth in 49 CFR Sec. 106.35(a) for such petitions in that compliance

with the additional attendance requirement in Sec. 171.5(a)(1)(iii)

is neither practicable, reasonable, nor in the public interest. The

provision, which was effective immediately upon publication of the

Interim Final Rule on February 19, is extremely costly and will have

an immediate and severe financial impact on the industry. Because

the additional attendance requirement in the Interim Final Rule has

no demonstrated nexus to the reported accidents or incidents cited

by RSPA in that rule, RSPA cannot justify the approximately $660

million cost of compliance. NPGA and its members strongly believe

that, based on the clear weight of the evidence and the other

reasons set forth herein, this Petition for Reconsideration of the

additional attendance requirement in the Interim Final Rule warrants

the removal of that burdensome requirement by RSPA.\1\ Especially

because the requirement was imposed without any opportunity for

notice and comment, we further request that the effectiveness of the

additional attendance requirement be stayed pending consideration of

this petition.

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\1\ NPGA proposes instead that RSPA adopt the less burdensome,

but equally safe, requirement that ``[t]he vehicle driver be

continually in attendance and control of the loading and unloading

operations.''

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As discussed further below, NPGA believes the magnitude of the

impact on the propane gas industry justifies RSPA's acting on its

Petition for Reconsideration immediately without delay, an

opportunity for notice and comment, or any other proceedings. Such

expedited treatment is expressly contemplated in the procedural

provisions of Sec. 106.35. Nonetheless, pursuant to the provisions

in 49 CFR Sec. 106.31, we additionally petition RSPA for rulemaking

to amend 49 CFR Sec. 171.5(a)(1)(iii) in the event RSPA denies the

NPGA's Petition for Reconsideration of the Interim Final Rule.

NPGA's Efforts

Initially, we need to emphasize that NPGA and its members have

an absolute commitment to the safe unloading of propane gas from

cargo tank motor vehicles. Simply stated, the propane gas industry

must maintain a record of safety in order to keep its customers, to

receive insurance, to maintain a favorable perception in the

community and, at the bottom line, to remain in business. The

propane industry has achieved an admirable record of safety.

Consistent with this absolute commitment to safety, members of

the propane gas industry undertook an immediate investigation after

the September 1996 incident at Sanford, North Carolina, and

voluntarily evaluated and disclosed the specific issue relating to

emergency discharge control systems that triggered the Interim Final

Rule. Further, NPGA voluntarily formed a task force to identify

viable alternatives to the current emergency discharge control

systems and to ensure the safe unloading of propane gas under all

conditions.\2\ Consistent with this process, NPGA and its members

continue to embrace the opportunity to participate with RSPA to

identify and fashion measures to ensure the safe unloading of

propane gas from cargo tank motor vehicles in every circumstance.

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\2\ A brief discussion of NPGA's efforts, including those

related to the Special Presidential Task Force, can be found in

NPGA's prepared Statement submitted to Docket No. RSPA-97-2133 (HM-

225) during the public meeting on March 20, 1997. The Statement is

incorporated herein by reference.

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NPGA Membership

NPGA is the national trade association representing the LP-gas

(principally propane) industry and has about 3,500 member entities

and companies in all 50 states, including 37 affiliated state and

regional associations. Propane gas is vital to the economic well-

[[Page 44051]]

being of this nation and is distributed for critical industrial,

commercial and residential uses every single day of the year. While

the single largest group of NPGA members are retail marketers of

propane gas, the membership also includes propane producers,

transporters and wholesalers, as well as manufacturers and

distributors of associated equipment, containers and appliances.

Propane gas is used in over 18 million installations nationwide for

home and commercial heating and cooking, in agriculture, in

industrial processing, and as a clean air alternative engine fuel

for both over-the-road vehicles and industrial lift trucks.

The majority of NPGA's members are small businesses, which bear

a disproportionate burden of the Interim Final Rule. According to

its own analysis, RSPA acknowledges that at least 90 percent of the

businesses affected by the Interim Final Rule are small businesses

(62 FR 7646). It is NPGA's position that the additional attendance

requirements will have an immediate and devastating financial impact

on these small businesses.\3\ A more detailed analysis of the

economic impact of the additional attendance requirement is provided

below.

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\3\ RSPA asserts that this rulemaking is exempt from the

Regulatory Flexibility Act, as amended, 5 U.S.C. Secs. 601 et seq.,

because the Act is not applicable when a Notice of Proposed

Rulemaking is not required (62 FR 7646). RSPA's argument relies on

the validity of its ``good cause'' finding that it was

impracticable, unnecessary or contrary to the public interest to

provide for notice and comment. Because the Interim Final Rule was

not tailored carefully or otherwise necessary to avoid any imminent

harm, RSPA's finding of good cause is deficient and cannot justify

an exemption from the Act.

---------------------------------------------------------------------------

Industry Safety Record

The propane gas industry has achieved an extraordinary safety

record. From 1986 to 1995, there were almost 10 million tank

transport truck deliveries and almost 300 million bobtail deliveries

of propane. (Attachment A).

Those deliveries carried almost 90 billion gallons of propane to

residential, commercial, agricultural and industrial consumers

throughout every state and county in the United States. (Attachment

B).\4\ Except for the incident in Sanford, North Carolina described

below, NPGA is unaware of any other serious reported incident during

this 10 year period relating to a failure of the emergency discharge

control system during the unloading of a tank transport truck. There

have been no fatalities, injuries, fires or explosions caused by a

failure of the emergency discharge control system during the

unloading of a tank transport truck in more than 10 million

deliveries of propane. As to the smaller bobtail cargo tanks, RSPA

acknowledges in the Interim Final Rule that only 9 incidents of

propane release have been reported during the past 10 years

involving any allegation of a failure of the emergency discharge

control system on a bobtail cargo tank.\5\ None of the 9 incidents

of propane release cited by RSPA resulted in any fatalities. This

represents approximately one release per 30 million bobtail

deliveries. Based on these numbers, this also represents one release

per almost 10 billion gallons of propane delivered in the past ten

years.

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\4\ Based on current data compiled by NPGA, there were 9,891,403

tank transport deliveries and 296,742,077 bobtail deliveries for a

total of 306,633,479 deliveries of propane during the 10 year

period. These deliveries carried 89,022,623,000 gallons of propane.

Indeed, this estimate is conservative because in actuality, these

quantities of propane are transported twice: first by transport

truck from the terminal to the bulk storage retail facility, and

then by bobtail to the residential, commercial or industrial users.

And, each instance of transportation itself involves two transfers:

loading and unloading.

\5\ NPGA notes that the exact causes of the 9 incidents of

propane release cited by RSPA in the Interim Final Rule are not

clear. There is absolutely no evidence in the Interim Final Rule

that the additional attendance requirement in Sec. 171.5(a)(1)(iii)

would have prevented those 9 incidents or is tailored to address the

causes of those incidents. NPGA strongly believes that improved

training, hose testing and system inspections are more likely to

prevent accidental releases of propane than the burdensome and

unnecessary additional attendance requirement.

---------------------------------------------------------------------------

The Sanford Event

Notwithstanding these statistics, RSPA promulgated the Interim

Final Rule without providing for notice and comment after an

accidental release of propane that involved no fire, no explosion

and no injuries or fatalities in Sanford, North Carolina on

September 8, 1996. The release involved a large cargo tank semi-

trailer pulled by a highway truck tractor unloading a cargo of

propane into permanent storage tanks at a propane marketing

facility. Shortly after the transfer operation began, the transfer

hose separated from the transfer connection at its juncture with the

plant piping and began discharging liquid propane into the

atmosphere. The vehicle driver heard sounds unusual for a transfer

operation and shut off the vehicle engine. According to the report

of the Federal Highway Administration (``FHWA'') inspector, the

driver was not able to get to the remote controls to close the

internal stop flow valve. Nonetheless, apparently as a result of the

failure of the excess flow protection in the cargo tank motor

vehicle, the entire propane cargo of approximately 9,700 gallons was

discharged into the atmosphere. There was no ignition of the

propane, and thus no fire, explosion, loss of life or loss of

property.

More importantly, the emergency flow protection built into the

permanent storage tanks at the propane marketing facility apparently

did not activate automatically as designed and, as a result, the

approximately 35,000 gallons of propane in the storage facility were

also discharged into the atmosphere. The failure of the flow

protection built into the permanent storage tanks contributed the

vast majority of the released propane, not the cargo tank motor

vehicle. Because RSPA apparently does not have jurisdiction over the

permanent storage tanks, the Interim Final Rule does not seek to

address the most significant failure connected with the release at

Sanford, North Carolina.

There is absolutely no evidence that the event at Sanford could

not have been prevented by the improved training, hose testing and

system inspection requirements proposed by NPGA in its Application

for an Emergency Exemption and subsequently adopted by RSPA in its

Interim Final Rule.

The Other Incidents Cited By RSPA

In addition to the Sanford incident, RSPA cites to six other

unrelated incidents involving propane ignition and tragic

fatalities. Based in large part on these six unrelated incidents,

RSPA promulgated the Interim Final Rule without notice and comment

to prevent the ``grave consequences'' of an accidental release of

propane. Significantly, RSPA failed to cite a single instance of a

documented failure of an emergency discharge control system on a

cargo tank motor vehicle resulting in an explosion, fire, injury or

loss of life in the Interim Final Rule. The unrelated six incidents,

as listed by RSPA in the Interim Final Rule, are as follows:

On July 25, 1962 in Berlin, NY, an MC 330 bulk

transport ruptured releasing about 6,900 gallons of liquid propane.

Ignition occurred. Ten persons were killed, and 17 others were

injured. Property damage included total destruction of 18 buildings

and 11 vehicles.

On March 9, 1972 near Lynchburg, VA, an MC 331 bulk

transport overturned and slid into a rock embankment. The impact

ruptured the tank's shell releasing about 4,000 gallons of liquid

propane. Ignition occurred. Two persons were killed and five others

were injured. Property damage included a farmhouse, outbuildings and

about 12 acres of woodland.

On April 29, 1975, near Eagle Pass, Texas, an MC 330

bulk transport struck a concrete headwall and ruptured releasing

more than 8,000 gallons of liquefied petroleum gas. The ensuing fire

and explosion killed 16 persons, injured 51, and destroyed 51

vehicles.

On February 22, 1978, 23 tank cars derailed in Waverly,

Tennessee. During wreck-clearing operations, a 30,000 gallon tank

car containing liquefied petroleum gas ruptured. The ensuing fire

and explosion killed 16 persons, injured 43, and caused $1.8 million

in property damage.

On December 23, 1988, in Memphis, Tennessee, an MC 330

bulk transport struck a bridge abutment and ruptured releasing 9,388

gallons of liquefied petroleum gas. The ensuing fire and explosion

killed eight persons and injured eight.

On July 27, 1994, in White Plains, New York, an MC 331

bulk transport struck a column of an overpass and ruptured releasing

9,200 gallons of propane. Ignition occurred. The driver was killed,

23 people were injured, and an area within a radius of approximately

400 feet was engulfed in fire. (62 FR 7639.)

In five of the above listed incidents, a cargo tank motor

vehicle was involved in a serious accident resulting in a ruptured

tank and subsequent ignition of the propane gas. While tragic

examples of highway accidents, none of these incidents would have

been avoided or minimized in any manner by the new requirements of

the Interim Final Rule or an improved emergency discharge control

[[Page 44052]]

system. More specifically, the additional attendance requirement in

Sec. 171.5(a)(1)(iii) could not have prevented or helped to prevent

these tragic accidents.6

---------------------------------------------------------------------------

\6\ Indeed, if the Interim Final Rule had been in effect at the

time of these five accidents, a second person likely would have been

riding along with the driver of the cargo tank motor vehicle at the

time of the accident because of the additional attendance

requirement for the unloading of propane. Simply stated, the Interim

Final Rule would have increased, not decreased, the loss of life in

each incident cited by RSPA.

---------------------------------------------------------------------------

Finally, the sixth incident listed by RSPA, the February 22,

1973, accident in Waverly, Tennessee, involved rail tank cars, not

cargo tank motor vehicles, and thus is completely unrelated to the

Interim Final Rule. In fact, the rupture in this particular case did

not even occur until wreck-clearing operations had commenced. Again,

there is absolutely no evidence that this rail accident, or the five

other above listed accidents, could have been prevented to any

extent by the wholly unrelated requirements in the Interim Final

Rule.

This Petition for Reconsideration Meets the Standard Set Forth in 49

CFR 106.35(a)

The petition for reconsideration meets the standard set forth in

49 CFR 106.35(a) in that the challenged provision is not reasonable,

practicable, nor consistent with the public interest.

The Additional Attendance Requirement Is Not Reasonable

The Administrative Procedure Act (``APA''), 5 U.S.C.

Sec. 706(2)(A) provides that an agency's actions in promulgating

rules may be set aside if ``arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law.'' 7

In order to withstand a challenge that one of its rules is arbitrary

or capricious, an agency ``must examine the relevant data and

articulate a satisfactory explanation for its action including a

`rational connection between the facts found and the choice made.'

'' 8 Thus, courts will scrutinize whether relevant data

was taken into consideration by the agency when it fashioned its

regulatory requirements.9 Additionally, reviewing courts

will give increased deference (1) to an agency depending on its

degree of persuasiveness of the agency's rationale for a rule and

(2) to a long-standing rule.10

---------------------------------------------------------------------------

\7\ See also Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 414 (1971); Bowman Transportation, Inc. v. Arkansas Best

Freight System, Inc., 419 U.S. 281 (1974).

\8\ Motor Vehicle Manufacturers Association of the United

States, Inc. et al. v. State Farm Mutual Automobile Insurance Co.,

et al., 463 U.S. 29, 43 (1983) citing Burlington Truck Lines, Inc.

v. United States, 371 U.S. 156, 168 (1962).

\9\ The Court in Motor Vehicle Mfgr. Assoc. noted ``[n]ormally,

an agency rule would be arbitrary and capricious if the agency has

relied on factors which Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of agency

expertise.'' 463 U.S. at 43.

\10\ Visiting Nurse Association of North Shore, Inc. v. Bullen,

et al., 93 F.3d 997, 1007 (1st Cir. 1996); Bowen v. American Hosp.

Ass'n., 476 U.S. 610, 64 n. 34; Mayburg v. Sec. Of Health and Human

Services, 740 F.2d 100, 106 (1st Cir. 1984).

---------------------------------------------------------------------------

The new requirement added to Section 171.5(a)(1)(iii) by the

Interim Final Rule is not reasonable in that the economic burdens it

will place on the industry are not justified by the industry's

safety record and are not reasonably tailored to remedy the problems

identified by RSPA in its preamble to the Interim Final Rule, and

the explanantion provided by the agency does not provide a rational

connection between the facts found and the choices made. The six

incidents other than Sanford cited by RSPA in the Interim Final Rule

still would have occurred if the additional attendance requirement

was in effect. Conversely, there is no evidence to suggest that the

Sanford incident would not have been prevented by a combination of

the improved training, hose testing, system inspection and

qualification requirements contained in the Interim Final Rule and a

requirement that the vehicle driver be continually in attendance and

control of the loading and unloading operations. Thus, RSPA has

``offered an explanation for its decision which runs counter to the

evidence before the agency.'' 11 There is simply no

evidence that having additional service personnel at each unloading

would have prevented any of the incidents identified and cited by

RSPA in its Interim Final Rule.12 In sum, the severe

economic consequences of the challenged requirement are not

reasonably related to the goals cited by RSPA.

---------------------------------------------------------------------------

\11\ Motor Vehicle Mfgr. Assoc., supra., at 43.

\12\ See American Horse Protection Assoc. v. Lyng, 812 F.2d 1

(D.C. Cir. 1987) (agency's decision set aside where agency failed to

consider evidence which demonstrated that the factual presumptions

upon which the agency's decision was based were inaccurate).

---------------------------------------------------------------------------

The Cost/Benefit Analysis Defies Common Sense

An agency's rulemaking must be tailored to address the problem

at hand, and the economic burden to the regulated industry must bear

some reasonable relationship to the goal of the regulation. In this

case, it is obvious that RSPA either did not consider or determined

to disregard the unjustified and unnecessary economic burden on the

propane industry. While the propane industry is working diligently

to develop, manufacture and retrofit a new emergency discharge

control system for cargo tank motor vehicles, operators of all tank

transport trucks and bobtails will need to recruit, hire, train and

pay new employees to meet the additional attendance requirement in

the Interim Final Rule if it is allowed to stand.

The economic impacts of the additional attendant requirement are

extremely onerous for the propane industry and its customers. Based

on a representative survey of its members, NPGA estimates the cost

of compliance with the additional attendance requirement to be $660

million, taking into account costs associated with employee

recruitment, function specific training, salary, and employee

benefits.13 This figure represents a potential increase

of .07 cents per gallon to the consumer. Even according to the

conservative estimates in the Government's Preliminary Regulatory

Evalution for the Interim Final Rule filed in Docket No. HM-225 on

March 19, 1997, the aggregate cost to the propane industry for a

second operator to comply with the additional attendance requirement

in Sec. 171.5(a)(1)(iii) is $237,017,143 annually.14

---------------------------------------------------------------------------

\13\ Based on 1995 retail sales volume of 9,429,570 gallons

multiplied by $.07 per gallon.

\14\ The estimate on its face is faulty. On page 16 of the

Preliminary Regulatory Evaluation, RSPA concludes that only bobtails

will be required to hire a second attendant to remain with the

bobtail throughout the entire day of deliveries. RSPA apparently

hypothesizes that the only increased costs for the larger tank

transport trucks will be the use a second attendant during the two

hours of actual unloading at a total hourly rate of $13.38. RSPA

apparently makes the unsupported assumption that the larger tank

transports will be able to hire a qualified and trained individual

at the point for unloading and be able to compensate that individual

for only two hours work. This assumption is further undermined by

the fact that it is common practice in the industry for deliveries

to be made in the evenings and on weekends so as not to disturb the

operations of the recipient. As there would not ordinarily be anyone

else on site at these times, there would necessarily have to be a

second person riding in the truck, or someone would have to be hired

at overtime wages to attend the transfer during the evening or on

the weekend period.

---------------------------------------------------------------------------

The extraordinary compliance costs estimated by both NPGA ($660

million) and RSPA (almost $240 million) as a result of the

additional attendant requirement in the Interim Final Rule stand in

sharp contrast to the proven safety record of the propane industry

over many years. In the Interim Final Rule, RSPA cites to only 9

incidents of releases relating to the emergency discharge control

systems on cargo tank motor vehicles, none of which resulted in any

fatalities. RSPA also cites to 6 tragic incidents that are wholly

unrelated to emergency discharge control systems on cargo tank motor

vehicles. Even in the Government's Preliminary Regulatory

Evaluation, RSPA's search of the DOT's Hazardous Materials Incident

Reporting System (``HMIS'') found only 16 reports of propane

releases, which may or may not be related in any way to emergency

discharge control systems, from 1990 to 1996. Those 16 releases

averaged 3,109 gallons of propane15--and there were no

fatalities and only 2 serious and 2 minor injuries resulting in

total damages of $932,166.

---------------------------------------------------------------------------

\15\ The chart containing this information on page 4 of the

Preliminary Regulatory Evaluation acknowledges that the estimated

high amount of any single release was 40,000 gallons, which included

the 30,000 gallons released from the two storage tanks during the

Sanford event. Discounting the 30,000 gallons from that event, which

was completely unrelated to any failing of an emergency control

system on the cargo tank motor vehicle, the average per release

decreases from 3,109 (49,744/16) gallons to 1,234 (19,744/16)

gallons. This reduction would reduce greatly the annual cost

calculation for Alternative 1 (``do nothing'') and Alternative 2

(``temporarily withdraw the requirement for emergency discharge

system'') in the Government's Preliminary Regulatory Evaluation.

---------------------------------------------------------------------------

Most significantly, the Government's own analysis of the

aggregate total costs to society from releases of propane as a

result of a

[[Page 44053]]

decision not to implement any changes or new regulatory requirements

is between $322,192 to $1,520,705 annually.16 Simply

stated, according to the Government's own estimates, complete

Government inaction (e.g., no Interim Final Rule) on the issue of

emergency discharge control systems on cargo tank motor vehicles

would result in an annual total cost below $1.5 million. Moreover,

the Government's analysis demonstrates that a total suspension of

the regulatory requirement for an emergency discharge control system

on cargo tank motor vehicles would result in essentially the same

relatively low range of cost to society--between $322,192 to $1.5

million. Because the additional attendance requirement has not been

demonstrated to rectify any specific safety problem and its

imposition is wholly unsupported by the incidents cited by RSPA in

its Interim Final Rule, the requirement cannot be justified in light

of the incredible increase in costs to the industry ($240 to $660

million) compared to costs to society from Government inaction

($322,192 to $1.5 million).

---------------------------------------------------------------------------

\16\ As stated above, this calculation would decrease due to the

Government's overestimate of the average number of gallons released

in the 16 reported incidents.

---------------------------------------------------------------------------

Finally, NPGA submits that the additional attendance requirement

in Sec. 171.5(a)(1)(iii) will result in additional deaths and

increased costs to society based on the incidents cited by RSPA in

its Interim Final Rule. Of the five cargo tank motor vehicle

accidents cited by RSPA, an attendant passenger could not have

prevented the accidents and likely would have died in each case.

Using the Government's own estimates of $2.7 million for the value

of a single life from the Preliminary Regulatory Evaluation, those

five additional deaths would have resulted in $13.5 million

increased aggregate costs to society from that requirement. These

additional deaths and increased costs are certainly not warranted by

the wholly undocumented and questionable benefits.

The overwhelming economic evidence cited above should not be

construed in any manner to indicate a lack of concern by NPGA about

safety in the propane industry. NPGA and its members are committed

to the safe loading and unloading of propane gas from cargo tank

motor vehicles under all conditions. Moreover, we are not arguing

that regulations that increase safety cannot increase costs for the

regulated industry and its customers. But in this particular case,

the additional attendance requirement is not based on any evidence

that the requirement is reasonable, necessary, practicable and

consistent with the public interest. Simply stated, the additional

attendance requirement is regulatory overkill and an enormous burden

on the propane industry and its customers without any demonstrated

benefits to society.

The Additional Attendance Requirement Is Not Practicable

NPGA and its members additionally seek reconsideration of

Section 171.5(a)(1)(iii) of the Interim Final Rule in that

compliance with this requirement is not practicable.17

---------------------------------------------------------------------------

\17\ At the March 20, 1997 Public Meeting, the issue was raised

as to the requirements now contained in 49 CFR Sec. 177.834(i)(3)

that an attendant have an unobstructed view of the cargo tank and be

within 7.62 meters (25 feet) of the cargo tank. Paragraph

177.834(i)(5) provides that the delivery hose, when attached to the

cargo tank, is considered part of the vehicle. Under this

definition, an attendant monitoring the delivery within 25 feet of

the delivery hose would be in compliance with the previous section

of the regulations.

---------------------------------------------------------------------------

First, in addition to the costs of adding a second attendant

described above, two attendants may be insufficient to meet the

letter of the provisions for the majority of bobtail deliveries.

Approximately half of the piping on a bobtail delivery truck is

underneath the cargo tank between the vehicle chassis frame rails.

The piping therefore may not be in view of someone standing beside

the vehicle. Thus, to comply literally with the provisions of the

Rule, one attendant must be under the truck and a second attendant

must be at the remote control on the internal valve, in order to

have all the discharge system in view during the transfer operation.

These two attendants are, of course, in addition to the third,

principal delivery person, who would attend the transfer of product.

The economic impact outlined above therefore would be doubled.

Second, the recruiting, hiring and training of the additional

attendants required by this new requirement makes the rule not

practicable. The Interim Final Rule, by its very terms, is temporary

in nature. Nonetheless, the rule mandates a lengthy process of

recruiting, hiring and training, some of which may not be completed

by the end of the temporary period on August 15, 1997. Moreover, the

extremely high fixed costs for such a process in light of the

temporary nature of the rule magnifies that the rule is not

practicable. Finally, NPGA submits that the arm's reach requirement

now contained in Section 171.5(a)(1)(iii) violates the National Fire

Prevention Association (``NFPA'') 58's requirement for separation of

the receiving tank and source, further rendering the provision

impracticable in that compliance with the Interim Rule may cause

violation of applicable fire code provisions.

The Additional Attendance Requirement Is Contrary to the Public

Interest

An agency is to consider the important aspects of a problem in

fashioning a rule.18 Here, RSPA has failed to address

several key aspects of the issue presented and, as a result, has

promulgated a rule that is contrary to the public interest. Although

RSPA may promulgate rules for the safe transport of hazardous

materials, such rules cannot properly be issued where the burden and

impact on the public is not warranted or has not been considered in

light of its tangible benefits.

---------------------------------------------------------------------------

\18\ Motor Vehicle Manufacturers Association, 463 U.S. at 43.

---------------------------------------------------------------------------

The public interest will not be served by enforcement of the

additional attendance requirement in that the economic burden of

compliance will disproportionately impact small business. As noted

above, RSPA estimates that at least 90 percent of the businesses

impacted by the Interim Final Rule are small businesses under the

Small Business Administration's size standard definitions (62 FR

7646). Thus, the largest percentage by far of the estimated $660

million in compliance costs will be borne by small businesses.

Because the cost of an additional attendant will be a huge fixed

cost and small businesses will have less revenue to absorb this new

fixed cost, it is likely that many of these small businesses will

cease to exist. The loss of these small businesses will result in

higher unemployment and will have a very real and direct impact on

their communities. Moreover, to the extent that small businesses are

able to survive, they will pass these costs on to the consumer.

Unnecessary higher costs for all consumers of propane gas is also

contrary to the public interest.

The preamble to the Interim Final Rule specifically seeks

comment as to whether there are alternatives to the Final Rule that

accomplish RSPA's objectives, while at the same time imposing less

of an impact on small businesses. NPGA strongly believes that the

Interim Rule's testing, training, and qualification requirements,

together with the requirement that the vehicle driver be continually

in attendance and control of the loading and unloading operations,

meet RSPA's objectives, while at the same time preserving the

continued economic viability of the small businesses comprising the

majority of this industry.

Request for Relief

NPGA seeks expedited reconsideration of the additional

attendance requirement added by the new provisions of

Sec. 171.5(a)(1)(iii) to existing part 171 of Title 49, Code of

Federal Regulations, by the Interim Final Rule. The additional

attendance requirement, which effectively mandates the physical

presence of a second attendant during the unloading of a cargo tank

motor vehicle, imposes unreasonable and unnecessary financial

burdens on the affected industry, and is not in the public interest

in that it is not reasonably tailored to achieve the safety results

at which it is aimed. NPGA further submits that the requirement will

have a disproportionate and irreparable adverse effect on small

businesses nationwide. As a result, the NPGA respectfully requests

that the Administrator stay the effectiveness of the additional

attendance requirement in Sec. 171.5(a)(1)(iii) pending a decision

on this Petition.

For the reasons cited above, NPGA petitions RSPA to reconsider

the additional attendance requirement in the Interim Final Rule. As

an alternative, NPGA recommends the language from our Application

for Emergency Exemption requiring that ``[t]he driver will be

continually in attendance and control of the loading and unloading

operations.''

Conclusion

For the foregoing reasons, NPGA, on behalf of its members,

petitions RSPA to reconsider Section 171.5(a)(1)(iii) of its Interim

Final Rule, and to stay the effectiveness of this

[[Page 44054]]

provision during its consideration of our petition. In the event

RSPA denies this petition, we request that it be converted to a

petition for rulemaking to amend this provision under 49 C.F.R.

Sec. 106.31.

Please do not hesitate to contact us in the event RSPA requires

further information to process this petition.

Respectfully submitted,

Mary Beth Bosco, Eric A. Kuwana,

Counsel for the National Propane Gas Association.

Attachments

Attachment A.--Propane Tank Truck Deliveries

[1986-1995]

----------------------------------------------------------------------------------------------------------------

Number of Scheduled

Propane fuel Number of bobtail transport commercial

Year sales 1,000 deliveries deliveries airline

gallons represented represented departures

----------------------------------------------------------------------------------------------------------------

1986...................................... 7,999,283 26,664,277 888,809 ...........

1987...................................... 8,299,830 27,666,100 922,203 ...........

1988...................................... 8,484,351 28,281,170 942,706 ...........

1989...................................... 9,763,059 32,543,530 1,084,784 ...........

1990...................................... 8,281,606 27,605,353 920,178 ...........

1991...................................... 8,611,571 28,705,237 956,841 ...........

1992...................................... 9,217,256 30,724,187 1,024,140 ...........

1993...................................... 9,483,509 31,611,697 1,053,723 ...........

1994...................................... 9,452,588 31,508,627 1,050,288 ...........

1995...................................... 9,429,570 31,431,900 1,047,730 7,700,000

---------------------------------------------------------------------

Total............................... 89,022,623 296,742,077 9,891,403 7,700,000

---------------------------------------------------------------------

(1) Total Deliveries--306,633,479

----------------------------------------------------------------------------------------------------------------

Attachment B.--Sales of Propane by Principal Fuel Uses, 1986-1995

[1,000 Gallons]

----------------------------------------------------------------------------------------------------------------

Residential

Year and Industrial Engine fuel Farm Other \2\ Total

commercial \1\

----------------------------------------------------------------------------------------------------------------

1986............................ 4,368,591 1,614,711 654,168 1,131,905 229,908 7,999,283

1987............................ 4,837,271 1,387,696 629,848 1,075,463 369,552 8,299,830

1988............................ 4,806,779 1,695,978 582,749 1,063,537 335,308 8,484,351

1989............................ 5,388,742 1,709,440 581,155 1,172,811 910,911 9,763,059

1990............................ 4,974,632 1,340,196 531,325 1,135,712 299,741 8,281,606

1991............................ 5,324,740 1,287,077 542,064 1,133,539 324,151 8,611,571

1992............................ 5,213,548 1,918,169 500,092 1,363,327 222,120 9,217,256

1993............................ 5,460,571 1,914,762 500,278 1,383,022 224,876 9,483,509

1994............................ 5,375,245 2,032,765 507,193 1,405,033 132,352 9,452,588

1995............................ 5,513,207 1,994,819 466,636 1,322,556 132,352 9,429,570

-------------------------------------------------------------------------------

Total....................... ........... ............. ........... ........... ........... 89,022,623

----------------------------------------------------------------------------------------------------------------

\1\ Includes refinery fuel use, synthetic rubber manufacture, and gas utility.

\2\ Includes secondary recovery of petroleum and SNG feedstock.

Source: American Petroleum Institute.

Appendix B--Ferrellgas et al. Petition for Reconsideration of Interim

Final Rule

April 21, 1997

The Honorable Dharmendra K. Sharma,

Administrator, Research and Special Programs Administration, U.S.

Department of Transportation, 400 7th Street, SW, Room 8410,

Washington, DC 20590.

Dear Administrator Sharma: On March 21, 1997, Ferrellgas, LP.,

Suburban Propane, L.P., AmeriGas Propane L.P., Agway Petroleum

Corporation, and Cornerstone Propane Partners, L.P., (collectively

``Petitioners'') filed a Petition for Reconsideration pursuant to 49

CFR 106.35 seeking modification of an emergency interim final rule

published at 62 FR 7638 (February 19, 1997). By this letter,

National Propane, L.P., seeks to join in that Petition as a party.

With the addition of National Propane, L.P., Petitioners include six

of the eight largest propane service companies in the Nation. In

addition to adding National Propane as a party, Petitioners seek to

supplement their pending petition with the following supplemental

cost benefit information to assist you in the evaluation of their

Petition.

As discussed in their pending Petition, Petitioners' specific

concern is with an operator attendance requirement imposed as an

element of an interim compliance option provided under the emergency

rule. The operator attendance requirement in question was designed

specifically to address the risk that the automatic excess flow

feature on an MC 330, MC 331 or non-specification cargo tank vehicle

in liquefied compressed gas service may fail to operate as required

under 49 CFR 178.337-11(a) during product unloading. Under 49 CFR

178.337-11(a), the automatic shut-off systems in question are

required to function only ``in the event of a complete failure

(separation) of any attached hoses or piping,'' not ``in response to

leaks or partial failure of a pipe, fitting, or hose.'' 62 FR 7638

at 7643 col. 2 (February 19, 1997). The risk addressed by this

operator attendance requirement is thus the risk that: (1) A

complete separation of attached hoses or piping will occur; (2) that

such separation will occur during product unloading (when the

attendance requirement applies); and (3) that the automatic excess

flow feature will not actually function as required. Because

Petitioners are concerned principally with the operator attendance

requirement as it applies to bulk tank vehicles (bobtails),

Petitioners have attempted to quantify the magnitude of this risk in

the bobtail context.

[[Page 44055]]

Based on RSPA's suggestion that nine events involving the

failure of automatic excess flow features have occurred in bobtail

service over the last seven years,\1\ the likelihood of such an

event occurring during a bobtail delivery is extremely remote: on

the order of one in 35,000,000 based on calculations presented in

Petitioners' Petition for Reconsideration. Nevertheless, RSPA

Officials have expressed concern that its own data may be

underinclusive, and that the actual risk of such an event might

therefore be higher.

---------------------------------------------------------------------------

\1\ It should be noted that Petitioners are not aware of any

documented basis for this suggestion.

---------------------------------------------------------------------------

In an effort to address this concern, Petitioners have attempted

to identify any incidents in the course of their own operations in

which an excess flow feature failed (or may have failed) to operate

after a complete separation of attached hoses or piping occurred

during the unloading of a bobtail vehicle. In this effort,

Petitioners have examined their safety and insurance records, and

have consulted with employees who would be expected to be aware of

any such instances that may have occurred. In most cases,

documentary information was found to be available going back at

least three years, and employees were identified who could be

expected to be aware of any incidents that may have occurred within

the last decade (in several cases, the employees consulted had a

knowledge base going back several decades). As a result of these

efforts, Petitioners collectively have been able to identify a total

of only three such instances.\2\ Although Petitioners cannot

positively establish that they have identified every such incident

that has occurred in their operations over the last seven years,

they are very confident--based upon the nature and extent of the

inquiries undertaken--that their tally of incidents is not

substantially in error.

\2\ In one of these instances, ignition did not occur and no

injuries or property damage resulted. Petitioners also identified

one instance in which the automatic excess flow feature functioned

immediately upon separation of a hose during a bobtail delivery (no

ignition, injuries, or damage occurred). This latter instance was

not included in Petitioners' incident tally, because the operator

attendance requirement at issue would provide a benefit only in an

instance in which the automatic excess flow feature fails to

function as intended.

---------------------------------------------------------------------------

Because Petitioners collectively operate slightly over one third

of the estimated population of 18,000 bobtails in service

nationwide, their incident rate of three incidents over seven years

could reasonably be extrapolated to a rate of nine incidents over

the same period for the industry as a whole. This is the same number

of incidents that Petitioners assumed in calculating a one in

35,000,0000 incident rate in their Petition for Reconsideration.

Even if it is assumed that the industry-wide incident rate is higher

than the incident rate Petitioners have experienced, the overall

incident rate at issue would still be extraordinarily low.\3\ In

fact, as discussed in Petitioners' Petition for Reconsideration, the

estimated incident rate suggested by the available data would have

to be assumed to be five times higher before it would even approach

the incident rate of passenger deaths per enplanement for the U.S.

commercial aviation transportation system. Petitioners do not

believe that this incremental risk is of sufficient magnitude to

justify the high costs that compliance with the operator attendance

requirement of the emergency rule would entail. Petitioners

accordingly urge RSPA to take prompt and favorable action on their

pending Petition by modifying the operator attendance requirement of

the emergency rule appropriately.

---------------------------------------------------------------------------

\3\ It should further be noted that this low risk reflects the

risk that a release will occur, whether or not there is any ignition

of the gas released. See Footnote 2.

---------------------------------------------------------------------------

Please let me know if you have any questions or if additional

information would be helpful.

Sincerely,

Walter B. McCormick, Jr.

cc: Alan I. Roberts

Docket No. RSPA-97-2133 (HM-225)

March 31, 1997

Mr. Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety, Department

of Transportation, 400 7th Street, SW, Mail Code: DHM-1, Washington,

DC 20590.

Dear Mr. Roberts: This letter responds to your request for

specific suggested regulatory language designed to address the

concerns raised in the Petition of Ferrellgas, L.P., Suburban

Propane, L.P., AmeriGas Propane L.P., Agway Petroleum Corporation,

and Cornerstone Propane Partners, L.P., (collectively

``Petitioners'') for reconsideration of RSPA's emergency interim

final rule published at 62 FR 7638 (February 19, 1997).

We did not suggest specific regulatory language in our Petition

for Reconsideration because we believe that our concerns could

appropriately be addressed through a variety of different changes in

regulatory language. For example, Petitioners would fully support

adoption of the regulatory language suggested on page 2, footnote 1

of the Petition for Reconsideration filed with respect to the same

emergency rule by the National Propane Gas Association.

Alternatively, Petitioners would be satisfied if new Section

171.5(a)(1)(iii) were amended to read as follows:

``In addition to the attendance requirements in Sec. 177.834(i)

of this subchapter, the person who attends the unloading of a cargo

tank vehicle must, except as necessary to facilitate the unloading

of product or to enable that person to monitor the receiving tank,

remain within an arm's reach of a remote means of automatic closure

(emergency shut-down device) of the internal self-closing stop

valve.''

If neither of these suggested regulatory amendments is

acceptable to the Agency, Petitioners would be satisfied with any

alternative regulatory amendment that would reasonably meet their

needs as articulated in their Petition for Reconsideration. It

should be emphasized, however, that Petitioners' need for relief is

most urgent. As the attached documents demonstrate, local

authorities are already beginning to enforce the requirements of the

emergency rule at issue, a factor that is exacerbating the already

impossible problems Petitioners face under that rule. Accordingly,

we urge RSPA to provide appropriate relief in some form as quickly

as possible.

As we have discussed, Petitioners would appreciate the

opportunity to meet with the Agency to discuss their Petition, to

provide supplementary information, and to discuss any questions or

concerns you or your staff may have. In the interim, we hope that

this clarification of the relief we seek is useful.

Thank you for the personal attention you have paid to this

important matter.

Sincerely,

Barton Day,

Counsel for Petitioners Ferrellgas, L.P., Suburban Propane, L.P.,

AmeriGas Propane L.P., Agway Petroleum Corporation, and Cornerstone

Propane Partners, L.P.

Attachment

March 21, 1997

The Honorable Dharmendra K. Sharma,

Administrator, Research and Special Programs Administration, U.S.

Department of Transportation, 400 7th Street, S.W., Room 8410,

Washington, DC 20590.

Dear Administrator Sharma: Enclosed pursuant to 49 CFR 106.35 is

a Petition for Reconsideration of the emergency interim final rule

published at 62 FR 7638 (February 19, 1997). This petition is being

filed on behalf of Ferrellgas, L.P., Suburban Propane, L.P.,

AmeriGas Propane L.P., Agway Petroleum Corporation, and Cornerstone

Propane Partners, L.P., (collectively ``Petitioners''). Petitioners

are five of the eight largest propane service companies in the

United States, and together they serve over 3,000,000 customers

across all fifty states.

The emergency rule that is the subject of this Petition was

promulgated in response to information suggesting that the excess

flow control valve designs currently in use on specification MC 330,

MC 331, and certain non-specification cargo tank vehicles used to

transport propane may not satisfy the requirements of 49 CFR

178.337-11(a). As Petitioners understand it, the purpose of this

emergency rule was to provide a safe alternative means of compliance

that would allow continued operation of such vehicles on an interim

basis while a long-term solution to this problem is identified and

implemented. Unfortunately, it appears that modification of certain

operator attendance provisions included in the emergency rule, is

necessary in order for the rule to achieve its intended purpose. The

basic problem is that immediate compliance with the operator

attendance requirement of the emergency rule, as currently written,

does not appear to be possible. In fact, it is reasonable to

question whether full compliance with these interim requirements

could realistically be expected much before the interim compliance

period is scheduled to end, on August 15th 1997. In addition, it

appears that these requirements would not be reasonable interim

compliance measures even if they could be implemented relatively

quickly.

[[Page 44056]]

Petitioners believe that prompt modification of these requirements

is necessary to ensure that the requirements of the interim

compliance option provided are reasonably achievable on an interim

basis.

Petitioners appreciate the constructive manner in which RSPA has

responded to the issues underlying the emergency rule, and look

forward to working with your staff cooperatively in order to resolve

the concerns raised in the Petition.

Sincerely,

Walter B. McCormick, Jr.

Enclosure

cc: Judith S. Kaleta, Chief Counsel, Alan I. Roberts, Associate

Administrator for Hazardous Materials Safety, Docket No. RSPA-97-

2133 (HM-225)

United States Department of Transportation Research and Special

Programs Administration Before the Administrator

In Re: Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied

Compressed Gas Service; Interim Final Rule

62 FR 7638 (February 19, 1997)

[Docket No. RSPA-97-2133 (HM-225)]

Petition of Ferrellgas, L.P., Suburban Propane, L.P., Amerigas Propane,

L.P., Agway Petroleum Corporation and Cornerstone Propane Partners,

L.P. for Reconsideration of RSPA's February 19, 1997 Interim Final Rule

Pursuant to 49 CFR 106.35, Ferrellgas, L.P., Suburban Propane,

L.P., AmeriGas Propane L.P., Agway Petroleum Corporation, and

Cornerstone Propane Partners, L.P., (collectively ``Petitioners'')

hereby petition for reconsideration of the emergency interim final

rule published at 62 FR 7638 (February 19, 1997). The emergency rule

was promulgated in response to information suggesting that the

excess flow control valve designs currently in use on specification

MC 330, MC 331, and certain non-specification cargo tank vehicles

used to transport propane may not satisfy the requirements of 49 CFR

178.337-11(a). The purpose of the emergency rule, as explained at

RSPA's March 4, 1997 Workshop concerning the rule, was to provide a

safe alternative means of compliance that would allow continued

operation of such vehicles on an interim basis while a long-term

solution to this problem is identified and implemented. Petitioners

appreciate the Agency's prompt efforts to achieve this critical

objective, and support most of the requirements of the interim

compliance option provided under the emergency rule. Unfortunately,

however, the interim compliance option RSPA has provided includes

new operator attendance requirements that are unreasonable,

impracticable, and are not in the public interest. In fact, it

appears that immediate compliance with these requirements is

impossible, and that there is some basis to question whether efforts

to comply might do more to increase than to decrease the overall

risks associated with propane delivery, especially in the short

term.

To adequately protect the public interest, Petitioners urge RSPA

to take immediate action to modify the new operator attendance

requirements of its interim final rule so as to provide a reasonable

and practicable interim means of compliance for operators of the

cargo tank vehicles at issue. Such action is necessary because,

although automatic systems that should satisfy RSPA's expectations

under 49 CFR 178.337-11(a) are already under development, there

appears to be no immediate way for the propane industry to comply

either with the requirements of the interim final rule or with the

requirements of 49 CFR 178.337-11 as RSPA interprets them. As RSPA

itself has recognized, unachievable regulatory requirements for

propane delivery are unacceptable because any interruptions in

propane service would expose members of the public to ``unacceptable

threats to their safety and economic interests.'' \4\ Such

requirements are particularly inappropriate in this case, because

there is no evidence of any safety crisis that would justify them.

To the contrary, the conditions of concern to RSPA have existed

continuously over many years--and over the course of hundreds of

millions of propane deliveries--apparently without any significant

pattern of problems having occurred. In fact, based on the

information cited by the Agency itself, it seems clear that the

incremental risk at issue is extraordinarily low. It is therefore

imperative that some reasonably practicable interim means of

compliance be provided for the propane industry. It is also

important to ensure that this interim means of compliance will

provide positive safety benefits.

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\4\ Preliminary Regulatory Evaluation, Docket HM-225, Cargo Tank

Motor Vehicles in Liquified Compressed Gas Service (February 1997)

at p. 6.

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Introduction

Petitioners are the first, second, third, fifth, and eighth

largest propane service companies in the United States. Together

they provide service to some 3,039,000 customers in all fifty

states. Petitioners operate approximately 690 transports and 5,950

bulk trucks (bobtails) of the type that are the subject of the

emergency rule at issue.

Petitioners understand RSPA's concern over the suggestion that

the excess flow control valves currently in use on such vehicles may

not satisfy the requirements of 49 CFR 178.337-11. Petitioners are

committed to the highest level of safety in the conduct of their

business, and would like to work in partnership with RSPA to address

this concern. As announced at RSPA's March 4th Workshop, it appears

that at least one automatic system that should satisfy RSPA's

expectations has already been devised,\5\ and Petitioners are aware

that other such systems are also currently under development. The

problem is that it will take a significant amount of time to more

fully test such systems, to get them into commercial production, and

to retrofit existing vehicles. Until this process can be completed,

a reasonable option for interim compliance must be available.

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\5\ A copy of the announcement issued by A-B Products, Inc. on

March 3, 1997 is provided as an attachment to this Petition.

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Since the emergency rule was published, Petitioners have made

diligent efforts to understand and implement the requirements of the

interim compliance option RSPA provided.

Specifically, Petitioners have augmented their safety procedures

and operator training, and are in the process of testing potential

engineering options both for interim and long-term compliance.

Unfortunately, it appears that immediate compliance with the new

vehicle attendance requirements of this option is not possible, and

that longer-term compliance would not be reasonable. Because the

emergency rule provides neither a grace period for compliance nor

any reasonable means by which Petitioners can achieve compliance in

the near future, it leaves Petitioners in an impossible position

from which they require immediate relief. Accordingly, Petitioners

urge RSPA to act immediately to modify the vehicle attendance

requirements of its emergency rule as necessary to provide a

reasonably practicable interim compliance option that will, if

implemented, provide positive safety benefits.

Discussion

I. It Is Imperative That RSPA Provide a Reasonable and Practicable

Compliance Option for the Propane Industry

A. Continued Propane Service Is Vital to the Public

Millions of Americans are dependent on propane for their basic

energy needs. Consequently, as RSPA has acknowledged, any

interruptions in propane service would expose the public to

``unacceptable threats to their safety and economic interests.'' \6\

To protect the public interest, it is therefore vital to ensure that

propane service companies such as Petitioners have some practicable

and lawful means of continuing their operations.

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\6\ Preliminary Regulatory Evaluation, Docket HM-225, Cargo Tank

Motor Vehicles in Liquified Compressed Gas Service (February 1997)

at p. 6.

---------------------------------------------------------------------------

B. The Risks at Issue Do Not Justify Stringent Interim Regulation

RSPA's concern is essentially that excess flow control features

on specification MC 330, MC 331 and certain non-specification cargo

tank vehicles used to transport propane or other liquid compressed

gases may not function effectively under all operating conditions.

This concern is based primarily upon one confirmed incident (the

Sanford incident), although the Agency does suggest that nine other

incidents (all involving bobtails) may have occurred over the past

seven years.\7\ At the March 4th Workshop, RSPA officials indicated

that it does not receive reports of all incidents that occur, and

suggested that additional incidents involving the failure of excess

flow control devices may in fact have occurred.

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\7\ See Preliminary Regulatory Evaluation at 1. Petitioners note

that no documentation concerning these alleged incidents is included

in the administrative record.

---------------------------------------------------------------------------

Although this information is troubling, it is important to

recognize that it is indicative of only an extremely low risk. In

fact, if the suggestion that nine bobtail incidents occurred over a

seven year period is accepted at face value, this would suggest that

the risk

[[Page 44057]]

of an incident involving failure of an excess flow control device

during a bobtail delivery is in the range of one in 35 million.\8\

Even if five times this number of incidents had actually occurred,

the risk of any such incident during a residential propane delivery

would still be significantly lower than the risk of a commercial

airline passenger being killed in an air crash on any single

flight.\9\ While even one accident is too many, these are, by any

reasonable assessment, very low risks indeed.

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\8\ Assuming nine billion gallons of propane delivered by

bobtail annually, with an average of 200 gallons per delivery, it is

estimated that there were 315 million bobtail deliveries during the

seven year period at issue. If nine incidents are assumed to have

occurred in the course of these 315 million deliveries, the

corresponding incident rate is approximately 0.029 incidents per

million deliveries, for an average of less than one incident in 35

million deliveries.

\9\ Even if the kind of bobtail incidents at issue occurred at

five times the rate of the reported incidents RSPA has referred to,

the incident rate would amount to only about 0.14 incidents per

million bobtail deliveries. By contrast, although commercial

aviation accident rates fluctuate from year to year, the passenger

fatality rate for the ``extremely safe'' U.S. commercial aviation

transportation system has ranged from 0.18 to approximately 0.4

fatalities per million enplanements. National Transportation Safety

Board, A Review of Flightcrew-Involved Major Accidents of U.S.

Carriers, 1978 Through 1990 (NTSB/SS-94/01) (January 1994) at 1-2.

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Certainly these risks are too low to justify interim regulatory

controls that will impose harsh compliance burdens on the propane

industry.

II. The Emergency Rule Fails To Provide Any Reasonable and

Practicable Compliance Option for the Propane Industry

A. Immediate Compliance With the Alternative Compliance Option Provided

in the Emergency Rule Is Impossible

The alternative compliance option provided in the emergency rule

imposes a number of specific requirements. Several of these--

including certain inspection and testing requirements--are

practicable requirements that provide concrete safety benefits.

Petitioners concern is with a new operator attendance requirement

that effectively requires that the operator ``have an unobstructed

view of the cargo delivery lines, and be within an arm's reach of a

means for closure of the internal self-closing stop valve or other

device that will stop the discharge of product from the cargo

tank.'' 62 FR at 7643 col. 3. RSPA acknowledges that ``this may

require two operator attendants on a cargo tank motor vehicle or the

use of a lanyard, electro-mechanical, or other device or system to

remotely stop the flow of product.'' Id. In fact, it appears that

compliance with this requirement would always require such measures.

One of the principal practical problems is that, in almost all

cases, at least some of the controls that must be activated in the

unloading of product are located out of reach of the controls for

the emergency shut-off system.\10\ Another is that operators must at

least periodically step away from their vehicles during unloading

operations to ensure, for safety purposes, that the receiving tank

is not being overfilled or overpressurized. Immediate compliance

with this new attendance requirement is impossible because none of

the options for compliance--multiple attendants, a lanyard, or some

other remote shut-off system--can be implemented in less than a

matter of months.

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\10\ In the case of bobtails, the flow of gas is initiated from

a control located on the end of the product delivery hose. Because

bobtails, for safety purposes, are typically located more than 10

feet from the point of product transfer, this control must always be

activated from a position that is out of reach of the controls

located on the truck. In the case of transports, the clutch and

power take off controls necessary for operation of the unloading

pumps are located in the vehicle cab, generally out of reach of the

emergency shut-off system controls, out of sight of the loading

lines, or both.

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The problem with the multiple attendant option is that

Petitioners do not have enough qualified personnel to send multiple

attendants out on deliveries. To the contrary, Petitioners--being

well-run businesses--do not have substantially more operators than

they need to serve their customers. Nor can Petitioners

substantially increase the workload of the operators they do have;

indeed, regulations limiting hours of service for drivers would

prohibit them from doing so. To provide additional operators,

Petitioners would therefore have to hire them. If Petitioners were

to hire one new employee for each of their approximately 6,600

vehicles, this would amount to more than a 40% increase in the total

work force of these companies.\11\ Hiring programs of this magnitude

would obviously take months to complete, even under the best of

circumstances. Applicants would need to be solicited and

appropriately screened. Once new operators are hired, they would

then need to be appropriately trained before they could be put into

the field. In short, this option is completely unworkable as a near-

term, interim compliance option.

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\11\ Together, Petitioners have a total of approximately 15,100

employees.

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Putting aside the question of whether lanyards would function

effectively--which Petitioners contend they would not--the

inescapable problem is that they cannot be deployed quickly. All of

the propane cargo vehicles Petitioners operate are already equipped

with emergency shut-off (ESO) systems. However, Petitioners believe

that substantially all of their ESO controls would have to be

modified or repositioned before lanyard systems could be used

effectively. In most cases the necessary work would need to be

performed by a truck fabricator, and it is estimated that the work

would take a number of months to complete. The specific mechanical

problems are as follows.

Although propane cargo vehicles have ESOs of various different

designs, their basic function is to trip the integral closing

mechanism for an internal stop valve. The manually-controlled

actuating device for the ESO system is normally positioned towards

the front of the vehicle where it is more accessible to the operator

in the event that a release of product occurs towards the rear of

the vehicle where most of the pumping controls and operating valves

are located. These ESO systems are normally operated by a lever or

push-button controller mounted to the truck frame behind the driver

side of the cab. Where levers are used, they are relatively small,

and may be mounted in either a vertical or horizontal position.

Attachment of a lanyard to this type of controller would require a

series of pulleys so as to direct the force of the pull in the

proper direction to actuate the system. On a great many vehicles,

however, the controllers are of a push-button design that cannot

readily be operated by the tug of a lanyard. These systems would

need to be jerry-rigged in some manner or replaced with a lever type

controller before a lanyard system could be attached at all.

Petitioners are actively testing electro-mechanical remote

emergency shut-off systems, but are not aware of a

This text is long and has been trimmed here. Open the source document for the complete record.