[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Proposed Rules]
[Pages 80765-80773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32231]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 173, 178, and 180

[Docket Number PHMSA-2010-0019 (HM-241)]
RIN 2137-AE58


Hazardous Materials: Adoption of ASME Code Section XII and the 
National Board Inspection Code

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA is considering amending the Hazardous Materials 
Regulations (HMR) to incorporate the most recent edition of the 
American Society of Mechanical Engineers' Boiler and Pressure Vessel 
Code, Section XII for the design, construction, and certification of 
cargo tank motor vehicles, cryogenic portable tanks and multi-unit-tank 
car tanks (ton tanks). PHMSA is also considering incorporating by 
reference the National Board of Boiler and Pressure Vessel Inspectors' 
National Board Inspection Code as it applies to the continuing 
qualification and maintenance of ASME stamped cargo tank motor 
vehicles, portable tanks, and multi-unit-tank car tanks (ton tanks) 
constructed to standards in ASME Section VIII or ASME Section XII. In 
this ANPRM, PHMSA is soliciting comments on the advisability of 
incorporating the most recent editions of these two standards by 
reference. We request comments to identify any gaps or inconsistencies 
between current HMR requirements and these consensus standards. 
Additionally, we seek input regarding any potential costs, benefits, 
and burdens associated with compliance with these consensus standards.

DATES: Submit comments by March 23, 2011. To the extent possible, PHMSA 
will consider late-filed comments as we determine whether additional 
rulemaking is necessary.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2010-0019; HM-241) by any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Operations, U.S. Department of 
Transportation, West

[[Page 80766]]

Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    <bullet> Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. Note 
that all comments received will be posted without change to the docket 
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov, or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kurt Eichenlaub or Ben Supko, 
Standards and Rulemaking Division, (202) 366-8553, or Charles Hochman, 
Engineering and Research Division, (202) 366-4492, Pipeline and 
Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Abbreviations and Terms Used in This Document

AI: Authorized Inspector
ANSI: American National Standards Institute
ASME: American Society of Mechanical Engineers
BPVC: Boiler and Pressure Vessel Code
CI: Certified Individual
CTMV: Cargo Tank Motor Vehicle
DCE: Design Certifying Engineer
FMCSA: Federal Motor Carrier Safety Administration
HMR: Hazardous Materials Regulations (49 CFR Parts 171-180)
MAWP: Maximum Allowable Working Pressure
NBIC: National Board Inspection Code
PHMSA: Pipeline and Hazardous Materials Safety Administration
PVMA: Pressure Vessel Manufacturers Association
QI: Qualified Inspector
RI: Registered Inspector
Section XII: ASME BPVC, Section XII

II. Background

    The Federal hazardous materials transportation law (49 U.S.C. 5101 
et seq. (Federal hazmat law)) authorizes the Secretary of 
Transportation to regulate the safe and secure transportation of 
hazardous materials in commerce. In accordance with its delegated 
authority from the Secretary, PHMSA has established hazardous materials 
safety regulations applicable to packagings used to transport hazardous 
materials in commerce, including requirements for the design, 
construction, qualification, maintenance, and repair of bulk packagings 
such as cargo tanks, portable tanks, and ton tanks.
    Under 49 CFR 1.53, PHMSA is delegated the responsibility to enforce 
the Hazardous Materials Regulations. In addition, under 49 CFR 1.49(s) 
and 1.73(d), the Federal Railroad Administration and the Federal Motor 
Carrier Safety Administration (FMCSA) are delegated authority to 
enforce the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 
with particular emphasis on railroad and highway transportation 
respectively. PHMSA, FRA and FMCSA work closely with the regulated 
industry through educational assistance activities and FRA's and 
FMCSA's compliance and enforcement programs.
    General requirements for cargo tank motor vehicles (CTMVs), 
portable tanks, and ton tanks such as outage and filling limits, are 
prescribed in Sec.  173.24b. Detailed design and construction 
requirements that encompass material of construction, structural 
integrity, closures, openings, inlets and outlets, pressure relief 
devices, valves and fittings, tests, certification, etc., are specified 
in 49 CFR part 178, subpart H for portable tanks, subpart J for CTMVs 
and 49 CFR part 179, subpart E for multi-unit tank car tanks (ton 
tanks). Requirements applicable to continuing qualification and 
maintenance encompassing periodic tests and inspections, repairs, 
modifications, alterations, and conversions are specified in 49 CFR 
part 180, subpart E for CTMVs, subpart F for ton tanks, and subpart G 
for portable tanks. Design, construction and qualification of rail tank 
cars (49 CFR part 179 and part 180, subpart F) and non-specification 
cargo tanks (i.e., nurse tanks) are not being considered in the ANPRM.
    Currently, the HMR incorporate by reference the ASME BPVC, Section 
VIII, Division I, as part of the standards for the design and 
construction of cryogenic portable tanks and CTMVs. Section VIII sets 
forth detailed criteria for the design, construction, certification, 
and marking of stationary boilers and pressure vessels. Many factors 
exerted on stationary tanks such as pressure, temperature changes, and 
atmospheric conditions are the same as those encountered by 
transportation tanks. However, Section VIII does not address unique 
conditions and stresses encountered by tanks in the transportation 
environment. To address differences between stationary tanks and 
transportation tanks, the HMR contain additional design and 
construction requirements to account for conditions and stresses likely 
to occur in transportation.

III. Petitions for Rulemaking

    In this ANPRM, PHMSA is considering three petitions for rulemaking 
from ASME, the National Board, and the Pressure Vessel Manufacturers 
Association (PVMA).
    1. On May 10, 2005, ASME petitioned PHMSA to revise the HMR to 
incorporate by reference the ASME Boiler and Pressure Vessel Code, 
Section XII, Transport Tanks--2004 edition. Section XII of the BPVC 
contains requirements for construction and continued service of ASME 
pressure vessels for the transportation of dangerous goods with design 
pressures appropriate for the transportation mode and volumes greater 
than 450 liters (120 gallons) via highway, railway, air, or water. The 
construction requirements cover materials, design, fabrication, 
examination, inspection, testing, certification, and over-pressure 
protection. The requirements for continued service cover inspection, 
testing, repair, alteration, and recertification of in-service ASME 
stamped transport tanks. These transport tank requirements include the 
pressure vessel, appurtenances, and additional components that are 
covered by Modal Appendices for the specific transport modes and unique 
service conditions of the specific application. The 2004 edition 
contains one Modal Appendix for portable tanks carrying cryogenic 
liquids. The 2007 edition was expanded to include the Modal Appendix 
for cargo tanks. The 2010 edition was expanded to include the Modal 
Appendix for ton tanks. [P-1459; Docket No. PHMSA-2005-21351].
    2. On February 27, 2006, PVMA petitioned PHMSA to revise the HMR to 
incorporate by reference the ASME Boiler and Pressure Vessel Code, 
Section XII Transport Tanks--2004 edition. PVMA and several of its 
member companies participated in the development of Section XII, which

[[Page 80767]]

contains design requirements for tanks and pressure vessels that 
several of its members manufacture. [PHMSA; P-1474; Docket No. PHMSA-
2006-24712].
    3. On July 12, 2007, the National Board of Boiler and Pressure 
Vessel Inspectors petitioned PHMSA to revise the HMR to incorporate by 
reference the National Board Inspection Code--2007 Edition. The NBIC 
contains rules for continued service inspections, repairs, and 
modifications of transport tanks, including methods to be used and 
criteria for inspections, reports, document control, and inspector 
duties and responsibilities. The term ``inspector'' includes Authorized 
Inspector (AI), Qualified Inspector (QI), Certified Individual (CI) or 
Registered Inspector (RI) to address all aspects of continued service. 
The NBIC has updated the 2007 edition with a 2010 addendum. [P-1502; 
Docket No. PHMSA-2007-28809].

IV. ASME BPVC Section XII

    ASME is a not-for-profit membership professional organization that 
enables collaboration, knowledge-sharing, and skill development across 
all engineering disciplines. ASME is recognized globally for its 
leadership in providing the engineering community with technical 
content and a forum for information exchange. Development committees 
meet regularly to consider revisions to the ASME codes and standards 
based on safety concerns, technological advances, new data, and 
changing environmental and industry needs. All meetings are free of 
charge and open to public participation. ASME subcommittees consider 
correspondence from the general public in the form of requests for 
interpretation and revision to existing codes, requests for code cases, 
and requests to develop new standards.
    In 1995, at the request of the Research and Special Programs 
Administration, PHMSA's predecessor agency, the ASME Board on Pressure 
Technology Codes and Standards formed a subcommittee on transport tanks 
(SC XII) to develop new standards to specifically address transport 
tanks with active participation by PHMSA. SC XII presides over a main 
committee, three subgroups identified as: (1) General Requirements, (2) 
Fabrication and Examination, and (3) Design and Materials. 
Subsequently, SC XII developed and published in July of 2004 the ASME 
BPVC Section XII, Rules for Construction and Continued Service of 
Transport Tanks to address pressure vessels that are used in 
transportation. Section XII is based on the existing and long-
established BPVC Section VIII. Section XII, 2010 edition, consists of 
ten parts, four modal appendices written to address different tank 
types, sixteen mandatory appendices, and eight non-mandatory 
appendices. Transport tanks are divided into categories designed 
specifically to mirror existing DOT specifications; for example, a DOT 
406 cargo tank is a Category 406 tank in Article 1 of Modal Appendix 1. 
The 2010 edition contains modal appendices for cargo tanks, cryogenic 
portable tanks, and ton tanks. For the purposes of this notice, PHMSA 
is considering a proposal to incorporate Section XII, in its entirety, 
for Category 331, 338, 406, 407, and 412 cargo tanks, cryogenic 
portable tanks, and ton tanks. PHMSA is seeking comments as to whether 
Section XII should be proposed for incorporation into the HMR as an 
alternative or as a replacement for existing HMR requirements for DOT 
specification CTMVs, cryogenic portable tanks, and ton tanks.
    Section VIII applies to construction of new tanks only. Tanks 
constructed and certified in accordance with Section VIII are marked 
with a ``U'' stamp. Section XII applies to new construction and 
continued service. As defined in Section XII, ``continued service'' is 
an all-inclusive term referring to the inspection, testing, repair, 
alteration, and recertification of transport tanks that have been in 
service. As stated earlier, Section XII is divided into ten parts. 
PHMSA is considering incorporating all ten parts, the three modal 
appendices for specification cargo tanks, cryogenic portable tanks, and 
ton tanks, and each of the non-mandatory appendices. The ten parts are: 
TG--GENERAL REQUIREMENTS; TM--MATERIAL REQUIREMENTS; TD--DESIGN 
REQUIREMENTS; TW--REQUIREMENTS FOR TANKS FABRICATED BY WELDING; TF- 
FABRICATION REQUIREMENTS; TE--EXAMINATION REQUIREMENTS; TT--TESTING 
REQUIREMENTS; TR--PRESSURE--RELIEF DEVICES; TS--STAMPING, MARKING, 
CERTIFICATION, REPORTS, AND RECORDS; and TP--REQUIREMENTS FOR REPAIR, 
ALTERATION, TESTING, AND INSPECTION FOR COTINUED SERVICE. Section XII 
requires newly constructed transport tanks to bear a ``T'' stamp. The 
``T'' stamp is essentially equivalent to the current ``U'' stamp 
required for certain DOT cargo tanks designed and constructed to 
Section VIII standards, currently incorporated by reference in the HMR. 
PHMSA is considering whether to adopt Section XII, in its entirety, as 
a replacement for existing DOT specification tanks, or as an 
alternative to the design and construction requirements for DOT 
specification tanks.
    In this ANPRM, PHMSA refers to the 2010 edition of ASME Section 
XII. However, ASME continues to work on updates to Section XII, and we 
will consider adoption of the most recent edition if PHMSA proceeds 
with a notice of proposed rulemaking (NPRM). A copy of Section XII, 
2010 edition, is available for review at DOT's Docket Operations Office 
(see ADDRESSES). The current price of Section XII in hard copy is $450.

V. NBIC

    The National Board of Boiler and Pressure Vessel Inspectors was 
formed in 1921 and is an American National Standards Institute (ANSI) 
accredited standards development organization. The National Board 
follows an approved set of standards development procedures (NB-240, 
National Board Inspection Code Procedures; http://www.nationalboard.org) and is subject to regular audits by ANSI.
    First published in 1946, the NBIC was established by the National 
Board to provide rules and guidelines for the repair, alteration, 
inspection, installation, maintenance, and testing of boilers, pressure 
vessels, and other pressure retaining items. The NBIC is developed and 
maintained by a consensus committee comprised of industry experts (the 
NBIC Committee). The NBIC Committee consists of a main committee, 
subcommittees, subgroups, and task groups of industry experts and has 
Federal representation by PHMSA. Participants meet bi-annually to 
consider revisions to the NBIC based on safety concerns, technological 
advances, new data, and industry needs. All meetings are free of charge 
and open to public participation. The NBIC subcommittees consider 
correspondence from the general public in the form of requests for 
interpretation and revision of existing standards and requests to 
develop new standards. The standards-writing subcommittees, subgroups, 
and task groups are open to participation by representatives of groups 
that are materially affected by the code. Such groups include 
manufacturers, repair firms, authorized inspection agencies, and 
representatives of government agencies. Each year the NBIC Committee 
updates the NBIC and presents the updates on the National Board's 
website for public review in April-May and August-September. Finalized 
updates are published annually as an addendum.
    Section XII requires all alterations and repairs to the pressure 
vessel of a

[[Page 80768]]

transport tank to be performed in accordance with the NBIC and requires 
an inspection to be performed by a National Board inspector. The NBIC 
Committee established a task group to develop requirements for 
continued service, repair, and alteration of Section XII transport 
tanks. The task group includes PHMSA and industry representatives. The 
Committee's efforts culminated in the issuance of two new supplements. 
The first is Supplement 6, ``Continued Service and Inspection of DOT 
Transport Tanks.'' This appears in Section 6, ``Supplements'' of Part 
2, ``Inspection.'' This document describes inspection of in service 
transport tanks. The second is Supplement 6, ``Repair, Alteration, and 
Modification of DOT Transport Tanks.'' This appears in Section 6, 
``Repairs and Alterations--Supplements'' of Part 3--``Repair.'' This 
document contains general requirements that apply to welding, repairs, 
alterations, modifications, examinations, etc. made to DOT transport 
tanks used for the transportation of hazardous materials. These 
supplements also specify the type of inspection to be performed and 
establish the criteria for inspections, reports, document maintenance, 
and inspector duties and responsibilities. The criteria are generally 
based on requirements in Part 180 of the HMR.
    PHMSA is considering whether to adopt the NBIC for alterations, 
repairs and inspections performed on ASME stamped portable tanks, 
specification cargo tanks, and ton tanks used for the transportation of 
hazardous materials. In this ANPRM, we refer to the 2007 edition of the 
NBIC and the 2010 addendum. However, the National Board continues to 
work on updates to the NBIC, and PHMSA will consider adoption of the 
most recent edition if we proceed with an NPRM. A copy of the 2007 
edition of the NBIC is available for review at DOT's Docket Operations 
Office (see ADDRESSES appearing earlier in this notice). The current 
cost of the complete NBIC set is $150 for the hard copy and $395 for 
the electronic format.

VI. Voluntary Consensus Standards

    The ASME BPVC and the NBIC are international voluntary consensus 
standards. The National Technology Transfer and Advancement Act of 
1995, Public Law 104-113, requires agencies to use technical standards 
that are developed or adopted by voluntary consensus standards bodies 
unless the use of such a standard is inconsistent with applicable law 
or is otherwise impractical. Public Law 104-113 requires Federal 
agencies to use industry consensus standards to the extent practical; 
it does not require Federal agencies to endorse a standard in its 
entirety. The law does not prohibit an agency from generally adopting a 
voluntary consensus standard while taking exception to specific 
portions of the standard if those provisions are deemed to be 
``inconsistent with applicable law or otherwise impractical.'' Taking 
specific exceptions furthers the Congressional intent of Federal 
reliance on voluntary consensus standards because it allows the 
adoption of substantial portions of consensus standards without the 
need to reject the standards in their entirety because of limited 
provisions that are not acceptable to the agency. It has been PHMSA's 
practice to review new editions and addenda of the ASME BPVC and NBIC 
and periodically update Sec.  171.7 to incorporate newer editions and 
addenda by reference. New editions of the subject codes are issued 
every three years; addenda to the editions are issued yearly except in 
years when a new edition is issued. The BPVC was last incorporated by 
reference into the regulations under Docket No. RSPA-99-6213 (HM-218) 
(August 18, 2000; 65 FR 50450). In that final rule, Sec.  171.7 was 
revised to incorporate by reference the 1998 edition of Sections II 
(Parts A and B), V, VIII (Division I) and IX, of the BPVC. The NBIC 
1992 Edition was incorporated by reference under Docket HM-183C 
(November 3, 1994; 59 FR 55162).

VII. Current HMR, Section XII, and NBIC Requirements

A. Design and Construction of Cryogenic Portable Tanks

    Sections 178.274 and 178.277 of the HMR contain requirements for 
the design, construction, certification, inspection, and testing of UN 
portable tanks intended for the transportation of refrigerated 
liquefied gases. The HMR requires that the shells and welds of these 
portable tanks must be designed, constructed, certified, inspected, 
tested and stamped in accordance with Section VIII of the BPVC. BPVC 
Section XII includes rules for the design, construction, certification, 
inspection, and testing of cryogenic portable tanks that address 
conditions and stresses unique to the transportation of cryogenic 
portable tanks. However, Section XII differs from the HMR with respect 
to design margins for cryogenic portable tanks (i.e., 3.5:1 rather than 
4.0:1). The 3.5:1 design margin is based upon successful experience 
with vessels designed to the Code rules, improved materials and 
fabrication practices, new and more sophisticated design methods, 
toughness requirements, and nondestructive examination technology. 
PHMSA believes that adopting this new design margin by incorporating 
Section XII in the HMR would update current regulations in recognition 
of the technological enhancements referred to above, maintain an 
equivalent level of safety to existing regulations, and relieve 
unnecessary economic burden to manufacturers and users of cryogenic 
portable tanks by allowing for the design and construction of thinner 
walled tanks. Therefore, PHMSA is considering whether to permit the 
design, construction, certification, inspection, and testing of UN 
portable tanks intended for the transportation of refrigerated 
liquefied gases in accordance with Section XII.

B. Design and Construction of CTMVs: Identified Differences Between HMR 
and Section XII Requirements

    Sections 178.337-178.348 of the current HMR contain requirements 
for the design, construction, certification, inspection, and testing of 
CTMVs intended for the transportation of hazardous materials. CTMVs 
conforming to the MC 331, MC 338, and DOT 407 specifications with a 
maximum allowable working pressure (MAWP) greater than 35 psig or 
designed to be loaded by vacuum, and to the DOT 412 specification with 
a MAWP greater than 15 psig must be designed, constructed, and 
certified in accordance with Section VIII, Division 1 of the 1998 ASME 
Code. As defined in Sec.  173.320, the term ``constructed and certified 
in accordance with the ASME Code'' means a cargo tank is constructed 
and stamped in accordance with the ASME Codes and is inspected and 
certified by an AI. CTMVs conforming to the DOT 406, and the lower 
pressure DOT 407 and 412 specifications must be constructed in 
accordance with the ASME Code. The term ``constructed in accordance 
with the ASME Code'' means a cargo tank is constructed in accordance 
with Section VIII, Division 1 of the ASME Codes with authorized 
exceptions and is inspected and certified by a RI. The manufacturer of 
the cargo tank or CTMV must hold a current ASME Certificate for use of 
the ASME ``U'' stamp but the tank is not required to be ASME stamped. 
Under Section XII, all newly manufactured cryogenic portable tanks and 
specification CTMVs constructed in accordance with the Code must be 
stamped with a ``T'' stamp.
    The Section XII requirements were harmonized with the HMR 
requirements to the extent practicable. During the development of 
Section XII, the SC XII

[[Page 80769]]

committees addressed various cargo tank concerns that industry brought 
to the attention of PHMSA and FMCSA, over the past several years.
    At the request of PHMSA, ASME supplemented its original petition 
for rulemaking with information identifying particular differences 
between Section XII and the HMR requirements. PHMSA encourages 
commenters to review and comment on these and any other differences 
between ASME Section XII and the HMR that are relevant to this 
endeavor. In addition, the Docket for this ANPRM includes several 
reports containing research, analysis, and evaluation of various 
technical standards that have been adopted in ASME Section XII.
1. 3.5 Design Margin in Lieu of 4.0 for All Vessels
    Improvements to Section VIII Division 1 Code rules over the past 50 
years, successful experience with vessels designed to the Code rules, 
improved materials and fabrication practices, new and more 
sophisticated design methods, toughness requirements, and 
nondestructive examination technology have led to a reduced design 
margin in Section VIII, Division 1. In 1999, ASME adopted a design 
margin of 3.5 on ultimate tensile strength in lieu of the value of 4.0 
that had existed since the 1940s. In Section XII, ASME adopted the new 
design margin after careful consideration and deliberations of the 
technical facts previously mentioned as well as other factors that 
influence transportation safety.
    The new design margins may have a significant effect on newly 
constructed transport tanks. For those tanks where the minimum 
thicknesses are controlled by pressure, they may be thinner/lighter 
than those constructed using a design margin of 4.0. PHMSA has issued 
several special permits allowing a 3.5:1 design margin. PHMSA has 
reviewed the incident data for these tanks and has not identified any 
incidents that would indicate a reduction in safety. PHMSA is 
soliciting comments on potential safety and economic impacts of 
adopting the new Section XII requirement allowing a 3.5:1 design 
margin.
2. Special Materials Testing and Fabrication Requirements for MC 331 
Tanks
    Section XII Modal Appendix 1-- ``Cargo Tanks'' discontinues certain 
obsolete requirements for construction of MC 331 cargo tanks that are 
still required in Sec. Sec.  178.337-2 and 178.337-4. This revision 
modernizes material specification designations and eliminates obsolete 
material specifications. It also eliminates certain obsolete material 
impact test requirements, especially for quenched and tempered 
materials. PHMSA has issued several special permits allowing the use of 
the newer material specifications in the ASME Code for construction and 
repair. A review of historical incident data shows an acceptable safety 
history with no reported incidents. PHMSA is soliciting comments on the 
safety and economic impacts of adopting the new Section XII reqirements 
for the testing and fabrication of special materials for construction 
and repair of MC 331 cargo tanks.
3. Standardization of Allowable Peak Secondary Stresses for MC 331 
CargoTanks
    The requirements in Modal Appendix 1-3.5.5 and 1-3.5.1(a)(1)(b) 
standardize the allowable peak secondary stress levels resulting from 
short interval, non-persistent loads to that permitted for lading surge 
loads for MC 331 cargo tanks by Sec.  178.337-3(d). See also 1-3.5.5 & 
1-3.5.6 and footnote 1. The Appendix also aligns the MC 331 cargo tank 
design with the design standard of the DOT 400-series cargo tanks for 
short interval peak loads. PHMSA-sponsored research and guidance, and 
understanding of current ASME requirements, provide the basis for 
consideration of this revision. PHMSA solicits comments on the safety 
and economic impacts of adopting the Section XII requirement for 
allowable peak secondary stresses for MC 331 cargo tanks.
4. Rational Design of Non-circular Tanks
    Rational design under Appendix VIII of Section XII leads to shell 
and head thicknesses of up to 15% less than what tank manufacturers 
currently use. Such a difference results in a tank with at least 2% 
more payload capacity. Co-operative research and development efforts by 
PHMSA, ASME, and industry have served as the technical basis for 
incorporation of the rational design method in Section XII. PHMSA is 
soliciting comments on the safety and economic impacts of incorporating 
the Section XII rational design method for non-circular tanks.
5. Non Mandatory Appendix C--Specified Minimum Thicknesses
    Non-mandatory Appendix C contains data reports that specify minimum 
allowed thickness for pressure parts instead of nominal thickness and 
corrosion allowance currently specified. PHMSA is soliciting comments 
on the safety and economic impacts of using minimum allowed thickness 
for pressure parts instead of nominal thickness and corrosion 
allowance.

C. Continued Service of CTMVs, Portable Tanks, and Ton Tanks: Roles of 
Inspectors HMR

    Part 180 of the HMR specifies continued service requirements for 
DOT and UN portable tanks and DOT specification and certain non-
specification CTMVs. Specific requirements for the qualification, 
maintenance, repair, and testing of packagings are located in 49 CFR 
Part 180: Subpart E for CTMVs, Subpart F for ton tanks, and Subpart G 
for portable tanks. Incorporation of Section XII and the NBIC for 
continued service requirements for these ASME stamped bulk packagings 
could impact the roles and responsibilities of persons who perform 
tests, inspections, modifications, alterations, and repairs. PHMSA is 
soliciting comments on how the continued service requirements and the 
role of inspectors should be addressed in the HMR if Section XII and 
the NBIC are incorporated by reference.
    To ensure that DOT specification cargo tanks are designed, 
constructed, and maintained in accordance with the applicable 
specification, the HMR require that each person who certifies CTMV 
design, construction, repair, or testing meet certain minimum 
qualifications. The qualification criteria are based on the function 
performed. Professionals who meet the qualifications set forth in the 
HMR for DCE, AI, and RI perform continued service functions.
    The HMR require the use of a DCE to certify each specification 
cargo tank or CTMV design type, including its required accident damage 
protection; the design of a modified, stretched, or rebarrelled CTMV; 
or mounting of a cargo tank on a motor vehicle chassis involving 
welding on the cargo tank head or shell or any change or modification 
of the methods of attachment. A DCE as defined in Sec.  171.8 means a 
person registered with the Department in accordance with subpart F of 
part 107 of the HMR who has the knowledge and ability to perform stress 
analysis of pressure vessels and otherwise determine whether a cargo 
tank design and construction meets the applicable DOT specification. A 
DCE must fulfill the knowledge and ability requirements by meeting any 
one of the following qualifications: (1) Have an engineering degree and 
one year of work experience in cargo tank structural or mechanical 
design: (2) be currently registered as a professional engineer by 
appropriate authority of a State of the United States or a Province of 
Canada;

[[Page 80770]]

or (3) have at least three years' experience in performing the duties 
of a DCE prior to September 1, 1991.
    Additionally, the HMR require the use of an AI to certify cargo 
tanks constructed and certified in accordance with the ASME Code, as 
discussed earlier in this notice under ``B. Design and Construction of 
CTMVs: Identified Differences Between HMR and Section XII 
Requirements.'' An AI is defined in Sec.  171.8 to mean an Inspector 
who is currently commissioned by the National Board of Boiler and 
Pressure Vessel Inspectors and employed as an Inspector by an 
Authorized Inspection Agency. Also, this section defines an Authorized 
Inspection Agency to mean: (1) A jurisdiction which has adopted and 
administers one or more sections of the ASME Boiler and Pressure Vessel 
Code as a legal requirement and has a representative serving as a 
member of the ASME Conference Committee; or (2) an insurance company 
which has been licensed or registered by the appropriate authority of a 
State of the United States or a Province of Canada to underwrite boiler 
and pressure vessel insurance in such State or Province.
    The HMR require the use of an RI to certify specification cargo 
tank motor vehicle construction, assembly, or repair of a tank 
``constructed in accordance with the ASME Code.'' Section 171.8 defines 
the RI as a person registered with the Department in accordance with 
subpart F of part 107 of the HMR who has the knowledge and ability to 
determine whether a cargo tank conforms to the applicable DOT 
specification. The RI must have: (1) An engineering degree and one year 
of work experience relating to the testing and inspection of cargo 
tanks; (2) an associate degree in engineering and two years of work 
experience relating to the testing and inspection of cargo tanks; (3) a 
high school diploma (or General Equivalency Diploma) and three years of 
work experience relating to the testing and inspection of cargo tanks; 
or (4) at least three years of experience performing the duties of an 
RI prior to September 1, 1991. The RI must be familiar with DOT 
specification cargo tanks and trained and experienced in use of the 
inspection and testing equipment used. While there are narrow 
exceptions that permit persons who do not qualify as RIs to perform 
select inspections and tests (see Sec.  180.409(b), (c), and (d)), in 
general, a cargo tank constructed in accordance with a DOT 
specification for which a qualification test or inspection is due, may 
not be filled and offered for transportation or transported until the 
test or inspection has been successfully completed by the RI.
Section XII
    Section XII requires all alterations and repairs to the pressure 
vessel of a transport tank to be performed in accordance with the NBIC 
and requires an inspection to be performed by a National Board 
inspector. The inspector, depending on the class designation of the 
transport tank, must be an Authorized Inspector (AI), Qualified 
Inspector (QI), or Certified Individual (CI).
    Under Section XII, an AI is defined as an inspector regularly 
employed by an ASME-accredited Authorized Inspection Agency (AIA), who 
has been qualified to ASME-developed criteria to perform inspections 
under the rules of any jurisdiction that has adopted the ASME Code. The 
AI may not be in the employ of the manufacturer. The AIA's and 
supervisor's duties and qualifications and AI's qualifications are as 
required in the latest edition and addenda of ASME QAI-1, 
Qualifications for Authorized Inspection. Under ASME QAI-1, An 
Authorized Inspector must hold a valid Certificate of Competency (where 
required), as defined in National Board Rules for Commissioned 
Inspectors, and a valid National Board Commission with an ``A'' 
endorsement. The inspector must have satisfactory expertise, 
experience, and background for the inspection of boilers and pressure 
vessels and demonstrate the ability to perform shop and field (on-site) 
inspections to the satisfaction of the AIA. The inspector must have 
knowledge of applicable sections of the ASME Code, Quality Control 
Programs, and requirements for the maintenance and retention of in-
transit and permanent records. Finally, the inspector must receive a 
passing grade on an examination given by the National Board that 
evaluates the individual's knowledge of, and familiarity with, the ASME 
Code, and comply with the National Board's rules for commissioned 
inspectors.
    A QI is defined as an inspector regularly employed by an ASME 
Qualified Inspection Organization (QIO) who has been qualified to ASME-
developed criteria by a written examination, to perform inspections 
under the rules of any jurisdiction that has adopted the ASME Code. The 
QI may not be in the employ of the manufacturer. The QIO's and 
supervisor's duties and qualifications and the QI's qualifications are 
as required in the latest edition and addenda of ASME QAI-1, 
Qualifications for Authorized Inspection. Under ASME QAI-1, a Qualified 
Inspector must hold a valid Certificate of Competency (where required), 
as defined in National Board Rules for Commissioned Inspectors, and a 
valid National Board certification as a Qualified Inspector. The 
inspector must have satisfactory expertise, experience, and background 
for the inspection of boilers and pressure vessels and demonstrate the 
ability to perform shop and field (on-site) inspections to the 
satisfaction of the QIA. The inspector must have knowledge of 
applicable sections of the ASME Code, Quality Control Programs, and 
requirements for the maintenance and retention of in-transit and 
permanent records. Finally, the inspector must receive a passing grade 
on an examination given by the National Board that evaluates the 
individual's knowledge of, and familiarity with, the ASME Code. The 
Qualified Inspector must comply with the National Board's rules for 
qualified inspectors.
    A CI is defined as an individual certified by an ASME accredited 
organization authorized to use ASME marks, as either a full-time or 
part-time employee or contractor to the ASME certificate holder. The CI 
is neither an AI nor a QI and must be certified and qualified to 
perform inspections by the CI's employer. The CI may be in the employ 
of the manufacturer or assembler. Minimum qualifications include: (a) 
Knowledge of the requirements of Section XII for application of the 
appropriate Code Symbol stamp; (b) Knowledge of the Manufacturer's or 
Assembler's Quality System Program; and (c) Training commensurate with 
the scope, complexity, or special nature of the activities to which 
oversight is to be provided. A record must be maintained and certified 
by the manufacturer or assembler, containing objective evidence of the 
qualifications of the CI and training provided the CI's qualifications 
and duties are as required in the latest edition and addenda of ASME 
QAI-1, Qualifications for Authorized Inspection.
    Additionally, for continued service, Users may perform inspections 
and tests if no rerating, repairs, or alterations requiring welding are 
performed. Users may perform continued service inspections, including 
repairs and alterations if the User possesses a valid National Board 
Owner/User Certificate of Authorization. Inspectors employed by the 
Owner/User may perform continued service inspections, including repairs 
and alterations if the individual possesses a National Board Owner/User 
commission.

[[Page 80771]]

    Section XII assigns transport tanks to three separate classes 
depending on the design of the tank. Each class includes transport tank 
designs that generally correspond to existing DOT specifications. The 
NBIC inspection requirements correspond to the class of transport tank 
as assigned in the Section XII Modal Appendices. In the table below, 
PHMSA lists each class of transport tank to be constructed or repaired 
and the type of inspector required to perform the inspection. Currently 
there are no specifications in Section XII for Class 2 tanks. However, 
Class 2 tanks are expected to be added in future editions.

       Transport Tank Classes Under ASME Section XII, 2010 Edition
------------------------------------------------------------------------
                                        Current
              Class                specification in    Type of inspector
                                          HMR
------------------------------------------------------------------------
Class 1.........................  UN cryogenic        Authorized
                                   portable tanks      Inspector
                                   (See Sec.
                                   178.277); DOT 407
                                   MAWP > 35 psi
                                   (See Sec.
                                   178.347); DOT 412
                                   MAWP > 15 psi
                                   (See Sec.
                                   178.348); MC 338
                                   (See Sec.
                                   178.338); MC 331
                                   (See Sec.
                                   178.337); DOT
                                   106A and 110AW
                                   (See Sec.
                                   179.300).
Class 2.........................  ..................  Qualified
                                                       Inspector , or
                                                       Authorized
                                                       Inspector
Class 3.........................  DOT 406 (See Sec.   Certified
                                    178.346); DOT      Individual,
                                   407 MAWP <= 35      Authorized
                                   psi (See Sec.       Inspector, or
                                   178.347); DOT 412   Qualified
                                   MAWP <= 15 psi      Inspector
                                   (See Sec.
                                   178.348).
------------------------------------------------------------------------

    Repairs and alterations must be performed by organizations holding 
a valid National Board ``TR'' certificate of Authorization and in 
possession of the appropriate National Board Code symbol stamp. 
Alternatively, organizations employing Owner/User/Inspectors and in 
possession of a valid Owner/User Certificate of Authorization issued by 
the National Board may repair and perform alterations on transport 
tanks owned and operated by the Owner/User Certificate of Authorization 
holder.
    The periodic inspection and test frequencies for cargo tanks are 
specified in Modal Appendix 1 of Section XII. Periodic inspection and 
test frequencies for cryogenic portable tanks are specified in Modal 
Appendix 3 of Section XII. The periodic inspection and test frequencies 
are consistent with those specified currently in the HMR for cargo 
tanks and portable tanks.

VIII. Questions

    PHMSA asks commenters to provide data and information on the 
following issues:

A. Cargo Tanks

    1. Are there substantial differences between the construction and 
continued service requirements of the HMR and the ASME BPVC Section XII 
for cargo tanks? If so, what are the potential costs, burdens, or 
safety problems associated with incorporating Section XII and the NBIC 
for the construction and continued service of these tanks?
    2. For existing cargo tanks designed, constructed and stamped with 
the ASME BPVC Section VIII ``U'' stamp, are there substantial 
differences between the continued service requirements of the HMR and 
the most recent edition of the NBIC? If so, what are the potential 
costs and burdens associated with incorporating the NBIC for existing 
``U'' stamped bulk packagings?
    3. Should PHMSA adopt through incorporation by reference the ASME 
BPVC Section XII and the most recent edition of the NBIC for 
construction and continued service of cargo tanks? If so, which 
existing requirements of the HMR should be replaced with references to 
these consensus standards?
    4. Would incorporation of the ASME BPVC Section XII and the NBIC 
for construction and continued service of cargo tanks positively affect 
transportation safety, and/or reduce industry costs?
    5. If PHMSA incorporates Section XII and the NBIC for the 
construction and continued service of cargo tanks, how long of a 
transition period would be needed to train employees to use these 
consensus standards? What are the associated costs of training?
    6. Are the ASME BPVC Section XII and the NBIC rules of construction 
and continued service of cargo tanks consistent with current HMR 
requirements? If not, should PHMSA consider general adoption of the 
consensus standards while taking exception to specific portions of the 
standards?
    7. Are there any potential compliance issues related to 
incorporating by reference Section XII and the newest edition of the 
NBIC in the HMR for the construction and continued service of cargo 
tanks?

B. Cryogenic Portable Tanks

    1. Are there substantial differences between the construction and 
continued service requirements of the HMR and the ASME BPVC Section XII 
for cryogenic portable tanks? If so, what are the potential costs, 
burdens, or safety problems associated with incorporating Section XII 
and the NBIC for the construction and continued service of these tanks?
    2. For existing cryogenic portable tanks designed, constructed and 
stamped (``U'' stamp) in accordance with ASME BPVC Section VIII, are 
there substantial differences between the continued service 
requirements of the HMR and the most recent edition of the NBIC? If so, 
what are the potential costs and burdens associated with incorporating 
the latest edition of the NBIC?
    3. Should PHMSA adopt through incorporation by reference the ASME 
BPVC Section XII and the most recent edition of the NBIC for 
construction and continued service of cryogenic portable tanks? If so, 
which existing requirements of the HMR should be replaced with 
references to these consensus standards?
    4. Would incorporation of the ASME BPVC Section XII and the latest 
edition of the NBIC for construction and continued service of cryogenic 
portable tanks positively affect transportation safety, and/or reduce 
industry costs?
    5. If PHMSA incorporates Section XII and the NBIC for the 
construction and continued service of cryogenic portable tanks, how 
long of a transition period would be needed to train employees to use 
these consensus standards? What are the associated costs of training?
    6. Are the ASME BPVC Section XII and the NBIC rules of construction 
and continued service of cryogenic portable tanks consistent with 
current HMR requirements? If not, should PHMSA consider general 
adoption of the consensus standards while taking exception to specific 
portions of the standards?

[[Page 80772]]

    7. Are there any potential compliance issues related to 
incorporating by reference Section XII and the newest edition of the 
NBIC in the HMR for the construction and continued service of cryogenic 
portable tanks?

C. Multi-Unit Tank Car Tanks (Ton Tanks)

    1. Are there substantial differences between the construction and 
continued service requirements of the HMR and the ASME BPVC Section XII 
for multi-unit tank car tanks? If so, what are the potential costs, 
burdens, or safety problems associated with incorporating Section XII 
and the NBIC for the construction and continued service of these tanks?
    2. For existing multi-unit tank car tanks designed and constructed 
in accordance with the HMR, are there substantial differences between 
current continued service requirements and the NBIC? If so, what are 
the potential costs and burdens associated with incorporating the 
latest edition of the NBIC?
    3. Should PHMSA adopt through incoporation by reference the ASME 
BPVC Section XII and the most recent edition of the NBIC for 
construction and continued service of mult-unit tank car tanks? If so, 
which existing requirements of the HMR should be replaced with 
references to these consensus standards?
    4. Would incorporation of the ASME BPVC Section XII and the latest 
edition of the NBIC for construction and continued service of mult-unit 
tank car tanks positively affect transportation safety, and/or reduce 
industry costs?
    5. Are the ASME BPVC Section XII and the NBIC rules of construction 
and continued service of mult-unit tank car tanks consistent with 
current HMR requirements? If not, should PHMSA consider general 
adoption of the consensus standards while taking exception to specific 
portions of the standards?
    6. Are there any potential compliance issues related to 
incorporating by reference Section XII and the the newest edition of 
the NBIC in the HMR for the construction and continued service of mult-
unit tank car tanks?

IX. Additional Issues

    PHMSA will base any future proposal for changes on the suggestions 
and comments provided by interested parties and our own initiatives. 
Additionally, any proposals would include the analyses required under 
the following statutes and executive orders in the event we determine 
that rulemaking is appropriate:

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order (E.O.) 12866 requires agencies to regulate in the 
``most cost-effective manner,'' to make a ``reasoned determination that 
the benefits of the intended regulation justify its costs,'' and to 
develop regulations that ``impose the least burden on society.'' We 
therefore request comments, including specific data if possible, 
concerning the costs and benefits that may be associated with revisions 
to the HMR based on the issues presented in this notice. A rule that is 
considered significant under E.O. 12866 must be reviewed and cleared by 
the Office of Management and Budget before it can be issued.

B. Executive Order 13132

    E.O. 13132 requires agencies to assure meaningful and timely input 
by state and local officials in the development of regulatory policies 
that may have a substantial, direct effect on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. Incorporation of new consensus standards by reference in 
the HMR may impact state and local CTMV enforcement programs. Potential 
impacts include the cost of purchasing the consensus standards and 
training employees in the use of the consensus standards. We invite 
state and local governments with an interest in this rulemaking to 
comment on any effect that revisions to the HMR to address the issues 
outlined in this notice may cause.

C. Executive Order 13175

    E.O. 13175 requires agencies to assure meaningful and timely input 
from Indian tribal government representatives in the development of 
rules that ``significantly or uniquely affect'' Indian communities and 
that impose ``substantial and direct compliance costs'' on such 
communities. We invite Indian tribal governments to provide comments if 
they believe there will be an impact.

D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies 
and Procedures

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), we must consider whether a proposed rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. If you believe that revisions to the HMR to 
address the issues discussed in this notice would have a significant 
economic impact on small entities, please provide information on such 
impacts.
    Any future proposed rule would be developed in accordance with 
Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's procedures and policies to promote 
compliance with the Regulatory Flexibility Act to ensure that potential 
impacts on small entities of a regulatory action are properly 
considered.

E. Paperwork Reduction Act

    Section 1320.8(d), Title 5, Code of Federal Regulations requires 
that PHMSA provide interested members of the public and affected 
agencies an opportunity to comment on information collection and 
recordkeeping requests. It is possible that new or revised information 
collection requirements could occur as a result of any future 
rulemaking action.

F. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires federal agencies to analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order federal agencies to conduct an environmental review considering 
(1) the need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
alternatives, and (4) the agencies and persons consulted during the 
consideration process. 40 CFR Sec.  1508.9(b). PHMSA welcomes any data 
or information related to environmental impacts that may result from a 
future rulemaking addressing the issues discussed in this notice.

G. International Trade Analysis

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. For purposes of these requirements, Federal agencies 
may participate in the establishment of international standards, so 
long as the standards have a legitimate domestic objective, such as 
providing for safety, and do not operate to exclude imports that meet 
this

[[Page 80773]]

objective. The statute also requires consideration of international 
standards and, where appropriate, that they be the basis for U.S. 
standards. PHMSA participates in the establishment of international 
standards in order to protect the safety of the American public, and we 
would assess the effects of any rule to ensure that it does not exclude 
imports that meet this objective. Accordingly, any proposals would be 
consistent with PHMSA's obligations under the Trade Agreement Act, as 
amended.

H. Statutory/Legal Authority for This Rulemaking

    49 U.S.C. 5103(b) authorizes the Secretary of Transportation to 
prescribe regulations for the safe transportation, including security, 
of hazardous materials in intrastate, interstate, and foreign commerce.

I. 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 contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

    Issued in Washington, DC, on December 17, 2010 under authority 
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2010-32231 Filed 12-22-10; 8:45 am]
BILLING CODE 4910-60-P