{"operation":"document","citation":"62 FR 44038","title":"Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Revisions and Response to Petitions for Reconsideration","source_type":"rulemaking","agency":"Research and Special Programs Administration","status":"historical","official":true,"published_on":"1997-08-18","effective_on":"1997-08-16","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.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-97-21865.json","markdown":"https://regulus.evalyn.ai/document/federal-register-97-21865.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-97-21865","source_url":"https://www.federalregister.gov/documents/1997/08/18/97-21865/hazardous-materials-cargo-tank-motor-vehicles-in-liquefied-compressed-gas-service-revisions-and","body":"Federal Register, Volume 62 Issue 159 (Monday, August 18, 1997) [Federal Register Volume 62, Number 159 (Monday, August 18, 1997)] [Rules and Regulations] [Pages 44038-44058] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 97-21865] [[Page 44037]] _______________________________________________________________________ Part II Department of Transportation _______________________________________________________________________ Research and Special Programs Administration _______________________________________________________________________ 49 CFR Part 171, et al. Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Revisions and Response to Petitions for Reconsideration; Final Rule Hazardous Materials: Safety Standards for Unloading Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Advance Notice of Proposed Rulemaking; Proposed Rule Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Rules and Regulations [[Page 44038]] DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Part 171 [Docket No. RSPA-97-2133 (HM-225)] RIN 2137-AC97 Hazardous Materials: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service; Revisions and Response to Petitions for Reconsideration AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule; 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 [[Page 44039]] 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 [[Page 44040]] 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 [[Page 44041]] 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 [[Page 44042]] 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 ","truncated":true,"body_characters":170296}