Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Interim Final Rule

SUMMARY: In this interim final rule, RSPA is amending the Hazardous

Materials Regulations (HMR) to specify the conditions under which

certain cargo tank motor vehicles may continue to be used on an interim

basis, even if they are equipped with emergency discharge control

systems which may not function as required by the regulations under all

operating conditions. This rule addresses specification MC 330, MC 331,

and certain non-specification cargo tank motor vehicles which are used

to deliver propane and other liquefied compressed gases. It responds to

a recently discovered safety deficiency which may affect many of these

cargo tank motor vehicles. The intended effect of this action is to

ensure, on an interim basis, an acceptable level of safety for delivery

of liquefied compressed gases while a permanent solution to the problem

is developed and implemented.

During the term of this interim rule, RSPA is seeking comments and

data on the costs and effectiveness of alternative means of achieving a

level of safety for the long term comparable to that provided by its

long-standing regulation. At the same time, the Agency is also seeking

comments on the costs and benefits of the interim measures adopted in

this rule.

A public meeting is scheduled for March 20, 1997, to receive

comments and recommendations in regard to the measures adopted in this

interim final rule and to solicit recommendations for a permanent

solution. Additionally, two workshops have been scheduled for March 4-

5, 1997 and April 8-9, 1997. All interested persons, including trade

organizations, cargo tank producers, individual wholesale and retail

entities involved in the distribution of liquefied compressed gases and

representatives of public protection organizations, are encouraged to

participate.

DATES: Effective date: This interim final rule is effective February

19, 1997 through August 15, 1997.

Comment date: Comments must be received by April 21, 1997.

Public meeting: A public meeting will be held on Wednesday, March

20, 1997, from 9:00 a.m. to 5:00 p.m. in Washington, D.C.

Workshops: Workshops will be held on--March 4-5, 1997, and April 8-

9, 1997, 9:00 a.m. to 5:00 p.m. in Washington, D.C.

Oral presentations: Any person wishing to present an oral statement

at the public meeting should notify Jennifer Karim by telephone or in

writing, on or before March 12, 1997.

ADDRESSES: Written comments: Address comments to the Dockets Office,

U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW,

Washington, D.C. 20590-0001. Comments should identify the docket number

and be submitted in two copies. Persons wishing to receive confirmation

of receipt of their comments should include a self-addressed, stamped

postcard. The Dockets Office is located on the Plaza Level of the

Nassif Building at the Department of Transportation at the above

address. Public dockets may be reviewed there between the hours of

10:00 a.m. and 5:00 p.m., Monday through Friday, except Federal

holidays.

Public meeting: The public meeting will be held at the Federal

Aviation Administration (FAA) Auditorium, 800 Independence Avenue, SW,

Washington, D.C. 20591.

Workshops: (1) March 4-5, 1997, U.S. Department of Transportation

(Room 6244, Nassif Building), 400 Seventh Street, SW, Washington, D.C.

20590; (2) April 8-9, 1997, U.S. Department of Transportation (Room

6200, Nassif Building), 400 Seventh Street, SW, Washington, D.C. 20590.

Oral presentations: Submit written text of oral statement to

Jennifer Karim, U.S. Department of Transportation, Room 8100, 400

Seventh Street, S.W., Washington, D.C. 20590. Five copies of written

text of oral statements should be presented to RSPA staff immediately

prior to the oral presentation.

FOR FURTHER INFORMATION CONTACT: Ronald Kirkpatrick, Office of

Hazardous Materials Technology, Research and Special Programs

Administration, telephone (202) 366-4545, or Stephen Keppler, Office of

Motor Carrier Safety and Technology, Safety and Hazardous Materials

Division, Federal Highway Administration, telephone (202) 366-2978,

U.S. Department of Transportation, 400 Seventh Street, SW, telephones

20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On September 8, 1996, more than 35,000 gallons of propane were

released during a delivery at a bulk storage facility in Sanford, North

Carolina. During the unloading of a specification MC 331 cargo tank

motor vehicle into two 30,000-gallon storage tanks, the discharge hose

from the cargo tank separated at its hose coupling at the storage tank

inlet connection. Most of the cargo tank's 9,800 gallons and more than

30,000 gallons from the storage tanks were released during this

incident. If this large quantity of propane had reached an ignition

source, 125 people (workers, residents and emergency responders) could

have been killed.

The hazards associated with transportation of liquefied petroleum

gas have been demonstrated repeatedly on U.S. highways. In fact,

propane releases are the second leading cause of death in hazardous

materials transportation. Between 1990 and 1991, five reported deaths

and 695 injuries resulted from propane incidents in highway

transportation. For example, when liquid propane is released into the

atmosphere, it quickly vaporizes into its normal non-pressurized

gaseous form. 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 such highly flammable mixtures,

the vapor cloud ignites and burns very rapidly (characterized by some

experts as ``explosively''). This has occurred a number of times over

the years, and even though the incidents described below were not

caused by spills during lading transfer, they illustrate the grave

consequences of a large propane release when ignition occurs:

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.

[[Page 7639]]

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, 1973, 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 9388

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.

In the Sanford incident, the driver became aware of the system

failure when the hose began to violently oscillate while releasing

liquid propane. He immediately shut down the engine, stopping the

discharge pump, but he could not access the remote closure control to

close the internal stop valve. The excess flow feature of the emergency

discharge control system did not function, and propane continued to be

released from the system. Additionally, the back flow check valve on

the storage tank system did not function and propane was released from

the storage tanks. In light of the large quantity of propane released,

this incident could have resulted in a catastrophic loss of life and

extensive property damage if the gas had reached an ignition source.

Fortunately, there was no fire.

Based on the preliminary information from the Sanford incident,

RSPA published an advisory notice in the Federal Register on December

13, 1996 (61 FR 65480). This 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

this problem with the excess flow feature of the emergency discharge

control systems and reminded them that these tanks and their components

must conform to the Hazardous Materials Regulations (49 CFR Parts 171-

180; HMR). Since that time, RSPA has received applications for

emergency exemptions from both the National Propane Gas Association

(NPGA) and the Mississippi Tank Company that indicate the problem is

more extensive than originally believed. Additionally, The Fertilizer

Institute (TFI) and National Tank Truck Carriers, Inc. (NTTC) have

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, has

provided preliminary information that there is reason to suspect the

problem may be common to nearly all cargo tank motor vehicles used in

liquefied compressed gas service within the United States. This problem

may exist also in the non-specification cargo tanks authorized in

Sec. 173.315(k). Both applications for exemption are reprinted in their

entirety and discussed in detail below.

II. National Propane Gas Association Application for Emergency

Exemption

The body of NPGA's application for exemption is reproduced as

follows (numbers in brackets have been added for ease of reference in

the following discussion):

[1] The National Propane Gas Association (NPGA), acting as an

agent for its members, presents here an application for a DOT

Exemption to the Hazardous Materials Regulations (HMR) to permit the

continued operation of certain cargo tank motor vehicles in propane

service pending development and installation of equipment intended

to overcome an operational difficulty identified recently. The

Association also requests that this application be handled as an

emergency exemption under the procedures outlined in 49 CFR 107.113.

Upon issuance of this emergency exemption, NPGA will submit a second

request to convert the emergency exemption to a conventional

exemption.

[2] NPGA is the national trade association of the LP-gas

(principally propane) industry with a membership of about 3,500

companies, including 37 affiliated state and regional associations,

representing members in all 50 states. Although 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.

[3] On September 8, 1996, a cargo tank motor vehicle, of the

type in the industry known as a highway transport--a large cargo

tank semi-trailer pulled by a highway truck tractor--was unloading a

cargo of propane into permanent storage tanks at a propane marketing

facility in Sanford, North Carolina. 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 to 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 inspector, the driver was not able to get to the

remote controls to close the internal stop flow valve. The driver

then ran to an adjacent residential area to warn residents to

immediately evacuate the area. As will be discussed later in this

letter, the excess flow protection in the cargo tank did not

activate and the entire propane cargo was discharged to the

atmosphere.

[4] Likewise, emergency flow protection in the plant piping did

not activate automatically as designed and intended. As a result,

the entire contents of the storage facility--something in excess of

35,000 gallons of propane--was also discharged to the atmosphere.

While the emergency flow control system on the transport is subject

to the HMR, the storage tank system is subject to regulations of the

State of North Carolina. Investigation of that segment of the

incident is being handled as a separate matter. The purpose of this

letter is to discuss the transport system, applicable regulations

and what can be done to prevent such an incident from recurring.

[5] Mr. Samuel E. McTier, NPGA President, has appointed a

special task force to work directly under the NPGA Executive

Committee to determine the extent and nature of the underlying

causes of this incident. The task force was directed to study this

incident and develop two plans of action: First, how to provide for

continued safe operation of existing propane cargo tanks while

necessary changes are developed and put into place [including those

cargo tanks to be built during this transition period], and second,

how to correct safety and operational problems for the long term

through changes to the MC-331 specification, if necessary, and to

industry recommended safety and operating practices to preclude such

an incident from happening again. This task force first met December

12-13, 1996 in Atlanta, Georgia. The enclosed recommendations and

accompanying comments are based on their deliberations.

[6] NPGA understands that Mississippi Tank Company has already

submitted an application for an emergency exemption and supports the

technical discussions in that application as a succinct presentation

of the overall problem. In the time that has passed since that

application was filed with DOT, however, additional information has

become available. As a consequence, while much of the Mississippi

Tank information has been incorporated into this application, there

are certain significant differences between the NPGA application and

the Mississippi tank document.

[7] It is important to recognize that the situation described in

the Mississippi Tank application is not unique to that company.

Rather, that situation can reasonably be expected to occur with

propane transports from other assemblers.

[[Page 7640]]

[8] In the smaller propane cargo tank motor vehicles (typically

smaller than 3,500 gallons water capacity, called bobtails), the

cargo tank is mounted directly on the vehicle chassis. These

vehicles have a somewhat different piping arrangement than that used

on transports. Consequently, on preliminary review, bobtails do not

appear to have the same operating characteristics as transports. As

a result, the first priority of this NPGA special task force has

been directed at the transports; once the situation with the

transports has been brought under control for the short term, the

task force will immediately make similar investigations and studies

of the bobtail vehicles.

[9] NPGA is gravely concerned about the underlying causes of the

North Carolina incident and is committed to identifying and

implementing appropriate changes to industry recommended safety and

operating practices and to the HMR requirements to preclude such an

incident occurring again.

[10] The propane industry transports between 7 and 10 billion

gallons annually in these highway transports; that same volume is

transported again in these local delivery bobtail tank trucks. In

the past 10 years, there has not been a similar reported incident

during the unloading of a transport. According to DOT's information,

some 8 or 10 events have occurred unloading bobtails. That incident

rate works out to be less than one per year.

[11] The propane industry is committed to prompt correction of

any problems or concerns that are identified with DOT by this

special task force as part of our continuing desire and goal to

continue that safety record. We also believe that the current

incident experience record is testimony to the validity and

effectiveness of the safety and operating systems presently in use

for transportation of propane, both in the Hazardous Materials

Regulations and in industry safety and operating practices.

The Difficulty

[12] 49 CFR 178.337-11(a)(1)(i) requires each internal self-

closing stop valve and excess flow valve to automatically close if

any of its attachments are sheared off or if any attached hose or

piping is separated. 49 CFR 178.337-11(a)(1)(v) expands on the

requirements for properly sizing excess flow valves regarding

branching or other restrictions and the addition of additional

smaller capacity excess flow valves, where required.

[13] Mississippi Tank Company recently conducted tests in an

effort to determine why the excess flow feature of the internal

valve in the transport cargo tank outlet flange in the Sanford,

North Carolina incident did not function as intended by the MC-331

specification requirements. The Mississippi Tank tests clearly show

that the internal stop flow valves available for use with flange

mounted pumps will not always close automatically under conditions

simulating the situation where the hoses or piping might be sheared

off or separated from the pump. Mississippi Tank has also determined

that there are no such internal valves presently available that will

provide the protection required by Secs. 178.337-11 (a)(1)(i) and

(a)(1)(v).

[14] Principal among the conclusions reached from the

Mississippi Tank tests is that the internal valve equipped with the

400 gpm spring (which operates the excess flow feature to provide

automatic closure) would close dependably with tank pressures as low

as 65 psig but that the excess flow feature would not operate at

tank pressures lower than 65 psig.

Rather than repeat the discussion of the test results in the

Mississippi Tank application, in the interests of brevity, we refer

you to that application.

Solutions to the Situation--Long Term

[15] From the Mississippi Tank tests and from discussions with

the manufacturers of the cargo tank pumps and the internal valves,

NPGA has concluded that the second and third sentences of

Sec. 178.337-11(a)(1)(v) are self-conflicting and mutually

exclusive. Based on present technology and equipment, it simply is

not possible to comply with both provisions.

[16] When this provision was reworded in the HM-183 amendments,

industry review of the new provisions indicated that there would be

no problem in complying with the requirement. The revised wording

was accepted at face value merely as a rewording of the provisions

that existed at that time in the MC-331 specification prior to the

amendments. At the time, all of the vehicle assemblers believed that

their individual practices for compliance with the specification

requirements were appropriate and adequate to the need. However, the

studies and discussions undertaken as a consequence of this North

Carolina incident have demonstrated, and have been confirmed by the

Mississippi Tank tests, that there is a basic conflict in the

provisions contained in these two sentences in Sec. 178.337-

11(a)(1)(v).

[17] It is now clear that excess flow protection, whether when

incorporated into the discharge internal valve or as an in-line

device, will not function under all climatic conditions nor under

other low flow rate conditions. In recognition of the preliminary

conclusion that excess flow devices will not always operate as

intended or desired, the NPGA special task force has concluded that

new control and operating systems must be developed to provide the

desired level of reliability and emergency flow control during

unloading operations. Devising these new systems is the next

priority for the special task force appointed by President McTier.

[18] The task force will also review control systems and

operating procedures for loading operations to be sure that the

desired level of emergency flow control will also be available in

that operation as well. The loading operations aspect of this

project, has been assigned a second level of priority, since there

have not been any reported incidents during those operations.

[19] The special task force already has identified several

possible alternatives for emergency flow control during transport

unloading for consideration as permanent changes to industry

recommended safety and operation practices or for adoption as

regulatory provisions. These possible solutions include:

A pneumatic deadman device interlocked with the

internal stop flow valve and the tank truck brakes, possibly

combined with a lanyard for remote activation. Possibly applicable

to bobtails as well.

Note: The term ``deadman'' is used to identify a system that

must be in place and operable in order for the unloading system to

operate. If the shut-down mechanism of the system is activated for

any reason, the unloading operation is discontinued and the internal

stop flow valve closes.

A mechanical deadman device, possibly combined with a

lanyard for remote activation. Possibly applicable to bobtails as

well.

A differential valve downstream of the pump. If the

engine is shut down, the set-pressure differential is detected and

stops the flow of propane. This system would only protect piping

downstream of the differential valve. Applicable to bobtails as

well.

[20] Amendment of Sec. 173.33 will also be needed to apply this

improved level of safety on a permanent basis to the continued

operation of existing MC-330 and MC-331 propane tank trucks and the

non-specification cargo tanks operated under Sec. 173.315(k).

[21] The special task force will also study provisions for

allowance of the physical and chemical properties of the lading in

designing the emergency flow protection system required by the MC-

331 specification. Such provisions are not presently a directly-

mentioned provision in the specification. The preliminary analyses

conducted by the special NPGA task force indicate that such

considerations are of primary importance. As an example, while NPGA

has every confidence in the results of the excess flow valve

capacity tests conducted by Mississippi Tank Company, which used

water under pneumatic tank pressure as the test medium, we also now

know that those tests only approximate the performance of the same

equipment when handling propane in a general manner. Sufficient data

and other information is not presently available to satisfactorily

model the performance of that equipment in water flow to

satisfactorily predict the manner in which the same equipment would

perform when handling propane, or any other liquefied compressed

gas, for that matter.

Solutions to the Situation--Short Term

[22] Responding to the long term need for a new control system

is the ultimate goal for the NPGA special task force. Part of that

mission includes presentation of appropriate recommendations to DOT

for further consideration and adoption as amendments to the MC-331

specification for new construction and to Sec. 173.33 to provide for

the continued operation of existing cargo tanks.

[23] However, the immediate problem is how to provide for the

continued operation of (1) existing MC-330 and MC-331 cargo tank

motor vehicles in propane service, (2) the non-specification

vehicles authorized under Sec. 173.315(k) of the HMR, and (3) any

new vehicles built in the interim period pending formal amendment of

the HMR. Also, provisions must be made in this continued operation

aspect for the annual leakage test and external inspection and for

[[Page 7641]]

the five-year requalification requirements of the HMR for these

vehicles.

[24] As an agent for the members of the Association, NPGA now

submits an application for a DOT Exemption. For reasons set forth

below, NPGA also recommends that this application be handled under

the provisions for emergency exemptions (Ref: Sec. 107.113).

Following DOT's approval of such an exemption, NPGA will promptly

submit an application to convert that emergency exemption to a

conventional exemption. Such a combination of Exemptions would

provide two things:

(1) authorization for the continued operation of existing cargo

tank motor vehicles in propane service in the interim to the

adoption of appropriate regulatory provisions to correct these

technical and operational difficulties and (2) for the conditional

operation (including annual tests and inspections and the five-year

requalification) of any cargo tank motor vehicles built under the

present regulations pending adoption of said amendments. Given the

exceptional safety record discussed earlier for both transports and

bobtails, NPGA believes that the following provisions for the

proposed Exemption will continue this safety record while the

relevant changes to industry safety and operating practices and any

changes to the Hazardous Materials Regulations are developed and put

into place.

[25] NPGA is not advocating removal of Secs. 178.337-11(a)(1)(i)

and (a)(1)(v) at the present time. Rather, we believe that further

information is needed as to the nature and extent of changes to be

considered for the MC-331 specification before any proposed changes

are considered for the Hazardous Materials Regulations.

[26] NPGA recognizes the importance of prompt and expedient

action in developing recommended changes to industry safety and

operating practices and provisions of the Hazardous Materials

Regulations to improve present the respective provisions for

emergency flow control. To that end, NPGA will present a time plan

with respective completion points for identification, development,

testing and implementation of retrofits and the presentation of

proposed changes to the Hazardous Materials Regulations to DOT by

February 17, 1997. Furthermore, NPGA representatives will be in

frequent contact with RSPA/Office of Hazardous Materials Safety and

FHWA/Office of Motor Carrier Safety staff in a liaison capacity

regarding the deliberation so this NPGA special task force and will

present formal quarterly progress reports at appropriate liaison

meetings.

[27] Provisions of the Exemption:

1. Compliance with applicable provisions of the Hazardous

Materials Regulations, with the exception of Secs. 173.315(n),

178.337-11(a)(1)(i) and (a)(1)(v).

2. NPGA will contact all of its members operating or assembling

propane cargo tank motor vehicles and will work with industry trade

press and other resources to reach affected non-member companies.

The purpose of this outreach effort will be to bring the North

Carolina incident and related, identified concerns to the attention

of companies operating or assembling propane cargo tank motor

vehicles.

3. Transfer hose used under the terms of the exemption (1) will

be inspected before continued use, with particular attention to the

condition and suitability of the hose end couplings for service and

(2) otherwise comply with applicable provisions of NFPA 58, 1995

edition. New transfer hose assemblies will be tested as required by

Sec. 180.407(h)(1)(ii) before the hose assembly is placed in

service.

NFPA 58, 1995 edition designates NFPA 58 Storage and Handling of

Liquefied Petroleum Gases, published by the National Fire Protection

Association, Quincy, Massachusetts. In its capacity as an American

National Standard, NFPA 58 has been used as the basis of regulation

by virtually all of the 50 states. A copy of the 1995 edition (the

current edition) is enclosed for your information and consideration.

4. The vehicle driver will be continually in attendance and

control of the loading and unloading operations.

5. Drivers will be advised of the events leading to the December

8, 1996 incident at Sanford, North Carolina and trained against the

potential of that incident occurring again. Such training will

include the inspection of delivery hose and connections to be used

for the transfer operation to determine, among other things, that

the hose is suitable for continued service and that the hose-end

fittings and related connections to plant piping and tank truck

valves are suitable for service. Driver training as required by

Secs. 172.702 and 172.704 will include recognition of the potential

severity of equipment failure or malfunction during product transfer

and appropriate actions to be taken should such an event occur.

Records of this training will be included in records required by

Sec. 172.704(d). During the term of this exemption, a statement

signed by the driver acknowledging such training and operating

instructions will be filed by the employer in the files required by

Sec. 172.704.

6. The proposed exemption would apply to two types of vehicles:

(1) The continued operation of those cargo tanks already in

service--MC-330 and MC-331 cargo tank motor vehicles in propane

service and non-specification propane cargo tanks authorized for

continued operation under the provisions of Sec. 173.315(k) and (2)

the entrance into service of new or remounted vehicles that will be

built or assembled in the interim period to the adoption of formal

regulatory provisions providing new approaches to emergency flow

control as an alternative to excess flow valves.

7. The proposed Exemption will authorize continued assembler and

design certification of new MC-331 cargo tank motor vehicles and

required annual inspection and 5-year requalification certifications

that the subject vehicle complies with the Hazardous Materials

Regulations, with the exception of Secs. 173.315(n) and 178.337-

11(a)(1)(i) and (a)(1)(v).

Treatment as an Emergency Exemption

[28] In recognition of the provisions of HMR/Sec. 107.113(a), a

copy of this request for Emergency Exemption is being filed

concurrently with the Chief, Hazardous Materials and Safety

Division, Office of Safety and Technology, Federal Highway

Administration, U.S. Department of Transportation, Washington, D.C.

20590-0001.

[29] The propane industry is in the midst of the winter heating

season. Over 80 percent of the 7-9 billion gallons of propane

referenced at the beginning of this letter is used as a residential

heating fuel in rural locations where natural gas service is not

available. Virtually all of these cargo tank motor vehicles--highway

transports and bobtails alike--are needed to provide timely and

adequate delivery of this heating fuel. In addition to residential

heating fuel, the industry also provides heating fuel to dairy

barns, chicken and hog brooders, peak shaving for natural gas

utilities. In addition, propane is also widely used as an

alternative engine fuel.

[30] There is another aspect of the need for expedient action in

the approval and implementation of this exemption--financial impact

on the propane marketers, propane producers, common carriers,

vehicle assemblers and equipment manufacturers.

propane marketers--Unless they are able to deliver

fuel, these companies literally will not be able to continue in

business. Of our 3,500 member companies, some 3,200 are small,

independent businesses operating about 3,400 bulk plants (local

retail facilities). There are another 3,400 bulk plants operated by

17 multistate marketer companies. Our members sell over 85% of the

propane used as a residential heating fuel. Once the propane has

been delivered to a bulk plant by a highway transport, it is

transported again by bobtail cargo tank vehicles to the ultimate

consumer.

propane producers--Propane heating fuel has two

sources: a co-product of natural gas production and a by-product of

crude petroleum cracking and refining operations.

common carriers--Over 90 percent of the propane used as

a heating fuel is transported first by pipeline and then by highway

transport to the local propane bulk plant. While some propane

marketers have their own fleet of transport tank trucks, many of

these companies rely on motor common carriers to deliver their

propane supply. While many of these carriers carry other materials

as well (hazardous as well as non-hazardous), for many carriers,

propane transportation is a very significant part of their business.

vehicle assemblers--For some of the vehicle assemblers,

propane cargo tank motor vehicles (especially bobtails) are a very

major part of their business. The companies building propane highway

transports typically produce semi-trailer cargo tank motor vehicles

for the transportation of other hazardous materials as well.

equipment manufacturers--The manufacturers of pumps,

valves, hose and the other equipment from which a tank truck is

assembled obviously service other industries than just propane; at

the same time, supplying the propane industry has become a rather

significant part of their business.

[31] The ability to be able to operate propane bobtails and

highway transports has

[[Page 7642]]

so many impacts and is so pervasive as be almost incalculable from

an economic impact viewpoint. On the one hand, we believe the

extremely large volume of propane handled annually (9,000,000,000

gallons) by transport and then a second time by the bobtails in

local deliveries and the demonstrated safety record over the history

of the industry is clear testimony to the commitment of this

industry to safety and employee training. On the other hand, we are

committed to correction of the provisions of Sec. 178.337-11

regarding emergency flow control to address the problems that have

been identified in the subject incident.

[32] The NPGA special task force believes it can identify

alternative emergency flow control systems in the very near future.

While several systems are already under study, no preferences have

been established, nor do we know currently what present or new

equipment will be necessary to implement any changes. Also, we want

to be reasonably sure that these ``new'' systems will indeed operate

as intended to provide the desired level of safety and operation

control under emergency conditions, thus, actual service tests will

be conducted before widespread installation is undertaken.

[33] Consequently, there is an extreme and vital need to keep

the present cargo tank motor vehicles in service, albeit under

closer scrutiny and control than has previously been the case, until

these retrofit devices and systems can be developed and placed into

operation.

[34] For many years, the propane industry has demonstrated its

dedication to safety and compliance with standards and regulations.

Issuance of this exemption will in no way reduce the safe

transportation of propane. On the contrary, identification of the

hazard illustrated by the Sanford, North Carolina incident will

prompt utmost caution during the period of the proposed Exemption.

Conclusion

[35] Therefore, NPGA believes that a true emergency exists for

handling this Exemption request in an expedited manner and thus

pledges that this exemption will be continued in use no longer than

absolutely necessary during the retrofit of any propane cargo tanks

requiring the authorization for operation, recertification or

requalification provided by the Exemption.

III. Mississippi Tank Company Application for Exemption

The body of the Mississippi Tank Company application for

exemption is reproduced as follows:

The purpose of this letter is to make application for an

emergency exemption of the Hazardous Materials Regulations stated

above. We urgently need an expedited response to our request and

offer the information required by part 107.3 as follows:

1. CFR 178.337-11Ali 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 hose or piping is

separated. Paragraph 178.337-11(a)(1)(v) expands on requirements for

properly sizing excess flow valves while considering branching or

other restrictions and, the addition of additional smaller capacity

excess flow valves, where required.

We learned during recent evaluation and testing of internal self

closing stop-valves on cargo tank trailers that the flange mounted

internal valves available for use with pumps will not automatically

close under conditions simulating the situation where the hoses or

piping might be sheared off or separated from the pump. Upon further

research and consideration, it has become apparent that there are no

internal valves available that will provide protection as required

by the above paragraphs.

Some considerations of the complex series of problems that are

facing us considering these requirements are listed as follows:

A. The most commonly used internal self-closing stop valve is a

Fisher C404-M32-600 flanged internal valve whose 600 at the end of

the model number indicates the flow rating of 600 GPM (propane).

Testing at our facility under simulated conditions using air

pressure and water indicates that this internal valve with this 600

GPM spring will not close with tank pressures up to 125 psig. Other

flow rates available (which is determined by the type of internal

spring that is furnished in the internal valve) are 340 GPM, 400

GPM, 800 GPM and 1000 GPM. Both the 340 GPM and 400 GPM springs were

tested to determine their behavior, with most of the testing

performed using the 400 GPM springs.

It was determined that the internal valve with the 400 GPM

spring would close dependably with pressures down to 65 psig but not

at all at lower pressures. This testing was performed while allowing

the pump to ``free-wheel'', which would allow the pump to pass more

product than if it were not allowed to free-wheel. Obviously, a pump

shaft held stationary would prevent the pump from allowing as much

product to pass, thereby preventing the sufficient flow of product

through the pump and discharge piping to trigger the self-closing

mechanism of the internal valve.

B. Internal valves (which are excess flow valves when open) have

springs with manufacturing tolerances of--20%/+10%, thereby allowing

a broad range of performance in a given flow-rated internal valve.

Example: a 400 GPM spring can allow a flow between 320 GPM to 440

GPM.

In order to insure proper operation of a pumping system on cargo

tanks, various sources in the industry have indicated that internal

valve flow rating have been sized with a minimum flow rating of 1.5

times the discharge capacity of the pump. This would indicate that

under the greatest flow conditions that the piping system and pump

can offer, the self-closing criteria for the internal valve would

have been exceeded by a minimum of 50%.

D. Flow rates through internal valves, and the associated

piping, is mostly determined by the internal pressure that exists in

the cargo tank. The greater the pressure, the more flow rate you

will have through a given piping system and the lower the pressure,

the lower flow rate through that same piping system. As an example,

a cargo tank that was in dedicated propane service might have

internal valves and excess flow valves that work dependably at

pressures of 125 psig or higher in warm temperatures but as the

temperature gets colder, for instance 20 deg.F, a tank pressure of

only about 41 psig would be present and it is predictable that the

internal valves and excess flow valves would no longer close due to

the reduced flow associated with lower pressures in the tank. This

problem becomes worse if a tank designed to carry products with

vapor pressures approaching 250 psig is hauling low vapor pressure

products, such as butanes, whose vapor pressures at warm

temperatures are very low and at very cold temperatures can be

practically nothing, insuring that the internal valves would not

function at these low pressures.

E. It appears obvious that if you size an internal valve to be

used with a pump that has a sufficiently low rating to insure that

the internal valve would automatically close in the event of the

separation of the discharge piping or hoses, the internal valve

would never remain open during the pumping operation. After further

study, it appears that due to the consistent volumetric displacement

of a pump, the internal valve would never close if it were sized to

allow the pump to dependably unload a product.

F. Consideration was given to the use of a lesser flow rate

excess flow valve at the pump discharge connection, but it was

determined after considerable deliberation that an excess flow valve

that was sized so as to allow the pump to discharge product

dependably might never close in the event the piping or hoses became

separated, as the flow rating must be sufficient to allow pumping

without causing the internal valve to close. If separation occurred,

the pump would still be turning at the same RPMs, thereby producing

roughly the same amount of flow rate as it was while the piping was

still connected. Again it becomes apparent that the downstream

excess protection appears not to be a viable solution either.

G. One internal valve manufacturer offers internal valves that

open and close using pump differential pressure, but due to the

nature of the way the pump must create differential pressure to

allow the internal valve to stay open, it has been determined during

discussions with the internal valve manufacturer that this internal

valve might not close in all conditions as it should.

2. The problem meeting this requirement applies to all

compressed gas cargo tanks of the MC331 classification (and possibly

the MC338 classification) that utilize internal self-closing stop

valves and excess flow valves in conjunction with pumps and in some

cases simply in conjunction with discharge piping. This problem is

not specific to any one class of product and would include all

products that require the use of these type cargo tanks.

3. Using the internal valves presently available, our company

has been producing between 40-200 cargo tanks a year for more than

35 years. Our company has no knowledge of any problems or safety

related issues resulting from the use of these valves. Although all

the cargo tanks in operation today apparently do not comply with the

[[Page 7643]]

above requirements, the compressed gas industry does not appear to

have a record of major problems in this area.

If an emergency exemption were granted to allow the continued

use and certification of these cargo tanks, a warning statement and/

or special operating instructions could be a new requirement as part

of the conditions allowing for the exemption. This would provide for

increased safety compared to what is presently available.

4. We feel that a special exemption is required for duration of

18-24 months minimum to allow all of the assemblers, equipment

manufacturers and owners to help work out a solution to this

problem. Equipment manufacturers advise that it takes a minimum of

12-15 months to design, test and make available new designs of

valving. If it is determined that this will be part of the solution,

the addition of ``dead-man'' type devices that cause the internal

valves to close when the operator is not present may be incorporated

as part of the solution as well.

We urgently request that you act upon our application for an

emergency exemption for the reasons explained above. This exemption

is 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.

Your expedited response on a priority basis is appreciated in

advance.

IV. RSPA'S and FHWA's Review

From the four emergency exemption applications, discussion with the

applicants, information developed from the Federal Highway

Administration (FHWA) investigation of the Sanford incident, the

regulatory history related to these issues and knowledge of the

liquefied compressed gas industry, RSPA and FHWA have developed the

following information and opinions related to the situation associated

with the failure of the excess flow feature with the emergency

discharge control system on cargo tanks used to transport liquefied

compressed gases.

Emergency discharge control systems on cargo tanks used to

transport liquefied gases provide two basic safety features. First, an

excess flow feature is designed to automatically stop the flow of gas

when piping, fittings or hoses rupture or separate. The second feature

is a remotely controlled internal self-closing stop valve designed to

stop the flow of product from a cargo tank. Cargo tanks having

capacities over 3500 gallons must have remote means of automatic

closure, both mechanical and thermal, of the internal self-closing stop

valve; the remote operators must be installed at the ends of the tank

in at least two, diagonally opposite locations. Cargo tanks of 3500

gallons capacity or less must have at least one remote means of

closure, which may be mechanical, installed on the end of the cargo

tank farther away from the loading/unloading connection area. The HMR

require the excess flow feature to function in the event of a complete

failure (separation) of any attached hoses or piping. The HMR do not

require the excess flow feature to function in response to leaks or

partial failure of a pipe, fitting or hose. Manual activation of the

self-closing valve is the primary safety feature for pipe, fitting or

hose failures during product transfer. RSPA does not agree with the

NPGA statement (paragraph 15) that the second and third sentences of

Sec. 178.337-11(a)(1)(v) are ``self-conflicting and mutually

exclusive.''

When the equipment and regulations for excess flow features on

cargo tanks transporting liquefied gases were first developed, cargo

tank motor vehicles were unloaded using internal pressure, by

pressurizing them, or by use of pumps installed at unloading

facilities. With such unloading systems, an excess flow feature

properly designed for a cargo tank and the products the tank is

designed to transport would reliably function in the event of a total

pipe, fitting, or hose failure. Over time, in response to customer

demand, most cargo tank motor vehicles delivering liquefied gases to

customer bulk storage facilities have been equipped with pumps to speed

product transfer. The tests performed by Mississippi Tank Company

following the Sanford incident demonstrated that a pump in the

discharge system functions as a product flow regulator that restricts

excess flow, thereby preventing functioning of the excess flow feature.

Thus, excess flow valves or features will not function when pumps are

used in a cargo tank's discharge system. NPGA addresses this issue in

its discussion on ``Solutions to the Situation-Long Term'' (paragraphs

15 through 21).

RSPA and FHWA do not agree with the position of the NPGA task

force, expressed in paragraph 8, that transport vehicles should be

given first priority in addressing this situation. While the capacity

of bobtail cargo tanks is lower than that of transports, far more

bobtails are in use and many more local deliveries are made each day

than are deliveries to bulk storage facilities. Thus, the risk of an

accidental discharge of product is much higher for bobtails than for

transports. Because bobtail cargo tank motor vehicles are fitted with

pumps and discharge systems very similar to transports, RSPA and FHWA

believe that the excess flow features of these smaller vehicles also

may not function when a pipe, fitting or hose ruptures or separates.

This conclusion is supported by nine instances reported to RSPA over

the last ten years of propane releases involving the failure of the

excess flow system on bobtails.

As previously stated, RSPA and FHWA believe that manual activation

of the internal self-closing stop valve is the primary means of

stopping the flow of product from a cargo tank motor vehicle in the

event of pipe, fitting or hose failure during transfer operations. The

vehicle operator is the individual responsible for the manual

activation of the internal stop valve in the event of pipe, fitting or

hose failure. Under the present circumstances, where the excess flow

feature of the emergency discharge control system may not function,

RSPA and FHWA believe that special operator attendance requirements are

necessary to ensure that a qualified person will always be in a

position to immediately activate the internal stop valve in the event

of a release. In addition to the requirements of Sec. 177.834(i), RSPA

and FHWA believe that the operator must 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. Until 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. If a lanyard or other device or system is used, it

must meet the performance standard in the regulation (``will

immediately stop the discharge of product from the cargo tank'). For

example, there must be adequate space for use of, and appropriate

tautness in, a lanyard being used to meet this requirement.

A number of other measures can be taken to mitigate the problem

experienced in Sanford. Among these are the following:

Remove pumps and compensate for decreased discharge flow

by means of:

--enlarging piping, fittings and hose downstream of existing internal

valves, retaining their excess flow features.

--increase pressure in the vapor space of the cargo tank, e.g., with a

nitrogen pad.

Relocate pumps to the receiving end of the unloading

system.

Transmit readout from storage tank filling instrumentation

back to the cargo tank so that operator/attendant can remain in close

proximity to internal valve closure devices.

Increase frequency and thoroughness of maintenance

actions; for example, systems for remote closure

[[Page 7644]]

of internal valves demand regular inspection, test and adjustment.

It has been reported that the propane release in the Sanford

incident was from the hose used for delivery and that the hose was new

and had not been pressure tested prior to attachment. Also, it was

reported that the hose coupling on the storage tank end had not been

firmly attached to the hose by means of the two machine bolts provided

for this type coupling.

On large MC 330/331 transport vehicles, hoses typically are not

attached to the cargo tank piping during transit, while on small local

delivery cargo tanks, hoses typically remain attached to the piping and

are under pressure during transit. Technically, hoses attached to

piping and under pressure during transit form part of the cargo tank

wall as defined in Sec. 178.320(a)(1). This means that they should be

tested in accordance with Sec. 180.407(g) at the test pressure required

for MC 330/331 cargo tanks in Sec. 180.407(g)(1)(iv), i.e., at 1.5

times either the maximum allowable working pressure (MAWP) or the re-

rated pressure, whichever is applicable. However, because of the

difficulties that may be encountered at these high pressures, and due

to the potential for over-stressing hose reinforcement fibers during

such a test, RSPA and FHWA believe the test should be conducted at no

less than 80 percent of the design pressure or maximum allowable

working pressure (MAWP) marked on the cargo tank. This pressure test

requirement includes couplings or other fittings which are part of the

assembled hose as used. It must be repeated after any repair or

modification of the assembled hose before it is re-used.

Non-specification cargo tanks. Potential difficulties with excess

flow protection are not well defined for the group of non-specification

cargo tanks which are authorized for transportation of liquefied

petroleum gas by Sec. 173.315(k). These cargo tanks were manufactured

before January 1, 1981, in conformance with the editions of the ASME

Code and NFPA Standard 58 which were in effect at the time of

manufacture. They must conform with applicable laws of the states in

which they operate; and they must be tested and inspected periodically

in accordance with subpart E of part 180, as specified for MC 331 cargo

tank motor vehicles.

RSPA and FHWA recognize that the situation described for MC 330 and

331 cargo tanks is no less severe for these non-specification vessels.

RSPA and FHWA encourage responsible authorities in every jurisdiction

to give special attention to NFPA provisions for vapor and liquid

withdrawal requirements for internal valves with integral excess-flow

valves or excess-flow protection.

V. RSPA's and FHWA's Evaluation of the Applications for Exemption

As a frame of reference for evaluation of the applications for

exemption, the specification requirements for emergency discharge

control can be achieved by means of either an internal self-closing

stop valve or an excess flow valve. The most important performance

standard relevant to this issue is 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

separated.'' [See Sec. 178.337-11(a)(1)(i)]. Provisions of

Sec. 178.337-11(a)(1)(v) come into play only if and when excess flow

valves are used anywhere in the system.

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. RSPA also is not

aware of readily available, off-the-shelf equipment that can provide a

functioning automatic excess flow feature on cargo tanks without

removal of pumps and other restrictions. The applicants propose an

outreach effort to inform tank users of the Sanford incident and the

safety issues related to product transfer operations and a research and

development program to design a system which will provide greater

safety in product transfer operations.

During evaluation of the Sanford incident, it has become evident

that the level of safety provided by the HMR is not being achieved on

equipment currently being produced and certified by manufacturers of

these cargo tanks. Specifically, these tanks do not meet the

requirement for automatic closure of internal self-closing stop valves

and excess flow valves in the event of separation of hoses or piping.

The regulatory language is intended to ensure a certain level of safety

in these vehicles. However, the level of safety provided by the

immediate steps proposed by NPGA is not equivalent to the level of

safety provided by Sec. 178.337-11(a)(1)(i). The NPGA proposes

requirements regarding driver training, testing and inspection of

equipment, and driver attendance during unloading operations (see

paragraph 27 of the NPGA application). These proposed requirements are

effectively the same as those already set forth in 49 CFR. In the

Mississippi Tank application, it was suggested that ``a warning

statement and/or special operating instructions'' could be required,

but no details were offered on how that would achieve a level of safety

equivalent to that provided by the existing regulatory requirements in

Sec. 178.337-11(a)(1)(i). Thus, neither application proposes procedures

that would compensate for the absence of excess flow features that

function reliably and in a passive manner.

Because the applications do not provide for an equivalent level of

safety, as required by Sec. 107.113(f)(2)(ii), of the HMR, they have

been denied by the Associate Administrator for Hazardous Materials

Safety. Also, the issues addressed in the applications have significant

safety and economic implications for a broad range of persons;

consequently, RSPA believes the issues are better addressed through the

rulemaking process. Thus, RSPA is issuing this interim final rule.

VI. Provisions of the Interim Final Rule

RSPA is publishing this interim final rule to enhance the safety of

product transfer operations as they are currently conducted, in most

cases, while allowing the continued delivery of liquefied compressed

gases (principally propane, other liquefied petroleum gases and

anhydrous ammonia). RSPA and FHWA believe that, without the

authorization for continued operation provided by this rule, the

public, industry, and cargo tank motor vehicle operators and

manufacturers would be severely impacted. The liquefied compressed

gases authorized for highway transportation under this rule are used

for home heating, support of industrial and agricultural operations,

and as fertilizer. Because there are no alternative means for

distribution of these materials in most areas served by the cargo tank

motor vehicles authorized by this rule, RSPA and FHWA believe this rule

is necessary to prevent severe shortages of liquefied compressed gases

in the areas where they are consumed.

This emergency interim final rule authorizes, under specific

conditions, the continued manufacture, assembly, certification, use and

recertification of cargo tanks that may not meet the excess flow

feature requirements for cargo tanks authorized for the transportation

of liquefied compressed gases. This rule is effective through August

15, 1997. This will allow time for implementation of changes to

equipment that will automatically shut down product transfer as

required in Sec. 178.337-11,

[[Page 7645]]

when a pipe or hose ruptures or separates.

In the next several months, RSPA and FHWA will actively pursue

technical improvements to product delivery systems, as well as other

feasible operational controls, that may be applied to minimize threats

to public safety inherent in the transportation of liquefied compressed

gases. RSPA has developed an action plan that includes the two public

workshops scheduled for March 4-5, and April 8-9, 1997. In addition,

working through its Volpe National Transportation System Center, RSPA

will examine the availability and feasibility of systems that can

achieve the purpose of the regulations; identify facilities where

automatic shut-down systems may be safely tested, and seek out other

sources of technical expertise in government, industry and academia.

The August 15, 1997 compliance date was chosen in part because it

falls between the end of the summer 1997 planting season and the

beginning of the winter 1997-1998 heating season. This date gives

industry approximately six months to bring cargo tanks into compliance

with the current (i.e., pre-IFR) regulatory requirement. Alternatively,

industry may be able to demonstrate that regulatory compliance is not

feasible, and recommend timetables for achieving compliance or

implementing alternative technology to achieve the safety objective of

a passive, automatic shut off system for emergency discharge control.

By the expiration of the interim final rule, RSPA and FHWA could

announce their intent to strictly enforce the current regulatory

requirement, unless the industry convinces us that they are making a

good faith effort to develop a properly operating system that meets the

requirements of the HMR. Alternatively, depending on the information

developed during the comment period, RSPA would implement rulemaking

either to modify the current regulatory requirement, providing a

different means of passive shut-off, or extending the provisions of the

IFR (with modification, if warranted) based on an industry-developed

timetable for implementing technological change. The rule addresses the

concerns expressed in the exemption applications of the NPGA,

Mississippi Tank Company, TFI, and NTTC.

In order to enhance the level of safety during transfer operations

using current equipment, the rule specifies special conditions for

continued operations. The following provisions are adopted in

Sec. 171.5 to provide a set of alternative safety controls for the

carriage of liquefied gases in cargo tanks that cannot be demonstrated

to conform with existing excess flow feature requirements.

Paragraph (a)(1) specifies use provisions under which MC 330, MC

331 or non-specification cargo tank motor vehicles authorized under

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

Paragraph (a)(1)(i) prescribes that before transfer from a cargo

tank motor vehicle the integrity of components making up the discharge

system must be verified. Paragraph (a)(1)(ii) prescribes 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) specifies that a qualified person in

attendance of transfer from a cargo tank must have the capability for

emergency shut-down. Paragraph (a)(1)(iv) specifies that when there is

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

valve must be activated and all motive and auxiliary power equipment

must be shut down. Paragraph (a)(1)(v) prescribes the development of

comprehensive emergency operating procedures for all transfer

operations. Paragraph (a)(1)(vi) specifies that each manufacturer,

assembler, retester, motor carrier and other hazmat employer must

provide training to its hazmat employees so that they can properly

perform the new function-specific requirements in this section.

Paragraph (a)(2) prescribes conditions for continued qualification

of existing in-service cargo tank motor vehicles.

Paragraph (a)(3) addresses new vehicles, including a special entry

on the certification required by Sec. 178.337-18.

Paragraph (b) specifies the marking to be displayed on a cargo tank

motor vehicle operating under this section.

Paragraph (c) establishes August 15, 1997, as the expiration date

for this temporary regulation.

VII. Request for Comments

To facilitate decisions on the need for this interim final rule as

a short term response to an emergency and the potential need for a

permanent change in the rule, RSPA requests comments responding to the

questions listed below. RSPA also invites comments on any aspect of

this rulemaking action not specifically addressed by the questions.

RSPA and FHWA encourage interested persons to participate in this

rulemaking by submitting written views, data, and information

concerning this interim final rule. Commenters are requested to provide

a reason or basis for each comment.

Additionally, RSPA and FHWA are seeking information pertaining to

research and development related to the issues contained in this rule.

This information may be presented at the public meeting.

1. NPGA has suggested the development of a ``deadman'' or a remote

valve actuation system, possibly using a lanyard. Automobiles are

commonly equipped with remote transmitter devices that fit on key rings

to unlock doors or open trunk lids from 50 feet away. If such a

manually activated device were used to close internal self-closing stop

valves, would it provide a level of safety equivalent to the

requirement for a passive automatic shut-down system required by

Sec. 178.337-11(a)(1)(i)?

2. What types of devices can provide the passive automatic shut-

down function required by Sec. 178.337-11(a)(1)(i)?

3. What tests are appropriate at the time of manufacture or

assembly and at the time of requalification to ensure that the product

discharge system will close as required by Sec. 178.337-11(a)(1)(i)?

4. In view of the fact that specification MC 330 and MC 331 cargo

tank motor vehicles are authorized for a broad range of hazardous

materials, is it possible to design an emergency discharge control

system that functions effectively with all liquefied compressed gases

under all conditions normal to transportation? If not, should the

manufacturer's certification required under Sec. 178.337-18 specify the

materials and conditions that are acceptable for carriage in, or

unloading of, the cargo tank?

5. Do manufacturers and assemblers of cargo tank motor vehicles

provide operational and maintenance instructions to operators on the

use of the cargo tank motor vehicles they supply? If so, provide

examples of such information to RSPA.

6. Provide any information available on other interstate or

intrastate incidents involving the failure of emergency control systems

on cargo tanks authorized to transport liquefied compressed gases.

7. Are hoses used to transfer product from large transport cargo

tank motor vehicles permanently attached or carried on the vehicles or

supplied by the customer at the point of delivery?

8. RSPA is concerned that this problem may highlight a deficiency

in the training programs for Design Certifying Engineers and those

persons certifying cargo tanks as meeting the

[[Page 7646]]

requirements of the HMR. In addition, carrier function-specific

training programs also may not be providing sufficient training in the

specification requirements for these cargo tanks. What training is

provided to those individuals who are responsible for certifying,

operating, testing and repairing these cargo tank motor vehicles?

VIII. Rulemaking Analyses and Notices

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).

Because of the emergency nature of this rule, RSPA is not required

to prepare a regulatory evaluation. Nevertheless, in an effort to

minimize the burden of this rule, RSPA prepared a preliminary

regulatory evaluation which is available in the public docket.

Because of the potential safety risk posed by continued

transportation of liquefied compressed gases in specification MC 330

and MC 331 cargo tank motor vehicles that do not conform to the

performance criteria for emergency discharge controls, RSPA has

determined that good cause exists for making this rule effective less

than 30 days from its issuance and that prior notice and opportunity to

comment is impractical and contrary to public interest.

B. 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

section 553(b)(B) and section 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, section 553(b)(B) and section 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. In

that preliminary evaluation, RSPA estimates that where an operator of

bobtails chooses to comply with the arms-reach attendance requirement

by use of a lanyard--as suggested by NPGA in its application for

emergency exemption--the average annual cost per operator will be

$1,324. In addition, in this interim final rule RSPA is asking

commenters to provide information to the agency regarding the economic,

safety and other impacts of this rule so that the agency can make any

necessary changes to the rule.

A small entity includes a small business, small organization or

small governmental jurisdiction. For purposes of this discussion, a

small business is deemed to be one which is independently owned and

operated and which is not dominant in its field of operation. RSPA

believes that the impacts of this rule are primarily addressed to

businesses involving the distribution of liquefied petroleum gas and

anhydrous ammonia, and to manufacturers and assemblers of cargo tanks

used for the distribution of these products. Under the Small Business

Administration's size standard definitions (13 CFR Part 121), liquefied

petroleum gas distributors with $5 million or less in annual receipts,

and manufacturers of truck or bus bodies or truck trailers that employ

500 or less individuals are small businesses. Based on available

information, RSPA estimates that at least 90% of the businesses

impacted by this rule are small businesses. RSPA further estimates

there are at least 6,800 businesses and at least 25,000 cargo tank

motor vehicles (7,000 ``transports'' and 18,000 ``bobtails'') affected

by this rule.

In order for RSPA to determine the potential impacts of this rule

on small entities, small businesses affected by this final rule are

requested to submit comments addressed to the impacts of this rule and

other significant alternatives on small entities. Some of the

considerations envisioned in assessing these impacts include the

following:

1. Are RSPA's estimates as to number of businesses affected by this

rule, and the percentage of these which are small businesses,

consistent with industry estimates? Are other estimates available as to

the numbers of businesses and small businesses in each sector of

business addressed by this rule (i.e., gas distributor, cargo tank

manufacturer, cargo tank assembler) and numbers of cargo tank motor

vehicles? Are there other business sectors affected? Are some

geographic areas affected more than others (please identify)?

2. Are there alternatives to this rule which accomplish RSPA's

objectives, while imposing less of an impact on small businesses? What

are those alternatives?

3. In what manner could differing compliance or reporting

requirements be implemented for small businesses to take into account

the resources available to small businesses? In what manner could

compliance or reporting requirements be clarified, consolidated or

simplified for such small businesses?

4. What are the direct and indirect costs of compliance with the

rule, calculated both as absolute costs and as a percentage of revenue

of the regulated small business?

5. What are the direct and indirect costs of completing paperwork

or recordkeeping requirements, again both as absolute costs and as a

percentage of revenue?

6. What is the effect of this rule, if any, on the competitive

position of small entities in relation to larger entities?

7. What is the effect of this rule on the small entity's cash flow

and liquidity?

8. What is the effect of this rule on the ability of a small entity

to remain in the market?

9. What is the availability and cost to the small entity for

professional assistance to meet regulatory requirements?

10. Are there any Federal rules that duplicate, overlap or conflict

with this rule?

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C. 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 May

20, 1997. Thus, RSPA lacks discretion in this area, and preparation of

a federalism assessment is not warranted.

D. Paperwork Reduction Act

The information collection and recordkeeping requirements contained

in this final rule have been submitted for emergency approval to the

Office of Management and Budget under the provisions of the Paperwork

Reduction Act of 1995. 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 interim final

rule is 17,575 hours, at a cost of $376,875, 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. Written comments should be

received by the close of the comment period identified elsewhere in

this rulemaking and should be addressed to the Dockets Unit as

identified in the Addresses section of this rulemaking. 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.

RSPA will publish a notice advising interested parties of the OMB

control number for this information collection when assigned by OMB.

E. 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.

F. Executive Order 12778

Any interested person may petition RSPA's Administrator for

reconsideration of this final rule within 30 days of publication of

this rule in the Federal Register, in accordance with the procedures

set forth at 49 CFR 106.35. Neither the filing of a petition for

reconsideration nor any other administrative proceeding is required

before the filing of a suit in court for review of this rule.

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, 44701; Sec. 4, Pub. L. 101-410,

104 Stat. 890 (28 U.S.C. 2461 note); Sec. 31001, Pub. L. 104-134,

110 Stat. 1321; 49 CFR 1.45 and 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) Section 178.337-11 of this subchapter requires an excess flow

feature as a part of the emergency discharge control system installed

in a cargo tank motor vehicle used to transport certain liquefied

compressed gases. 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. 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 excess flow feature

of its emergency discharge control system, be represented for use and

used to transport 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:

(i) Before initiating any 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.

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

hose or a modified hose assembly, it 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. 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, is

not acceptable for use.

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

this subchapter, the person who attends the

[[Page 7648]]

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.

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

environment during transfer, the qualified person attending the cargo

tank shall immediately activate the internal self-closing stop valve

and shut down all motive and auxiliary power equipment.

(v) A comprehensive emergency operating procedure must be developed

for all transfer operations and hazmat employees who perform unloading

functions must be thoroughly 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

current inspection report required by Sec. 180.417(b) of this

subchapter: ``Emergency excess flow control performance not established

for this unit.''

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

manufactured, marked and certified prior to August 16, 1997, 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 used in or represented for use under this section:

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[GRAPHIC] [TIFF OMITTED] TR19FE97.097

(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) Expiration date. This section is effective February 19, 1997

through August 15, 1997.

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

delegated in 49 CFR part 1.

D.K. Sharma,

Administrator, Research and Special Programs Administration.

[FR Doc. 97-4116 Filed 2-14-97; 12:09 pm]

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