Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 80765 

specialized capabilities to accept the 

transfer of inpatients whose EMC 

remains unstabilized or any other 

unintended consequences. 

D. Litigation Related to the Applicability 

of EMTALA to Hospital Inpatients 

There have been several court cases 

involving the applicability of EMTALA 

to hospital inpatients. For example, in 

Thorton v. Southwest Detroit Hospital, 

895 F.2d 1131, 1134 (6th Cir. 1990), the 

Sixth Circuit stated that, ‘‘once a patient 

is found to suffer from an [EMC] in the 

emergency room, she cannot be 

discharged until the condition is 

stabilized. * * * ’’ However, other 

courts have concluded that a hospital’s 

obligations under EMTALA end at the 

time that a hospital admits an 

individual to the facility as an inpatient. 

(See Bryan v. Rectors and Visitors of the 

University of Virginia, 95 F.3d 349 (4th 

Cir. 1996), Bryant v. Adventist Health 

System/West, 289 F.3d 1162 (9th Cir. 

2002), and Harry v. Marchant, 291 F.3d 

767 (11th Cir. 2002).) In Lima-Rivera v. 

UHS of Puerto Rico Inc., (D.P.R. No. 04– 

1798, 2007), the U.S. District Court for 

the District of Puerto Rico rejected the 

claim that EMTALA does not apply to 

inpatients. Most recently in Moses v. 

Providence Hospital and Medical 

Centers Inc., 561 F.3d 573 (6th Cir. 

2009), the court concluded that a 

hospital’s EMTALA obligations to an 

individual continue until that 

individual’s EMC is stabilized 

regardless of the individual’s status as 

an inpatient or outpatient. 

III. Intention of This Notice 

We are aware that there continues to 

be a range of opinions even at the 

Circuit Court level on the topic of 

EMTALA’s application to inpatients. 

There also continues to be various 

opinions regarding whether EMTALA 

should apply to situations where a 

hospital seeks to transfer an individual, 

admitted as a hospital inpatient after 

seeking treatment for an EMC, to a 

hospital with specialized capabilities 

because the admitted inpatient 

continued to have an unstabilized EMC 

that required specialized treatment. 

Therefore, we are interested in receiving 

comments that address whether we 

should revisit the policies that were 

established in the September 9, 2003 

final rule on EMTALA and the August 

19, 2008 IPPS final rule, respectively. 

We would find it particularly helpful 

if commenters could submit specific 

real world examples that demonstrate 

whether it would be beneficial to revisit 

the policies articulated in the September 

9, 2003 final rule on EMTALA or the 

August 19, 2008 IPPS final rule. We also 

are interested in hearing whether 

commenters are aware of situations 

where an individual who presented 

under EMTALA with an unstable EMC 

was admitted to the hospital where he 

or she first presented and was then 

transferred to another facility, even 

though the admitting hospital had the 

capacity and capability to treat that 

individual’s EMC. 

We are also interested in receiving 

information regarding the accuracy of 

our statement in the August 19, 2008 

IPPS final rule that a hospital with 

specialized capabilities would accept 

the transfer of an inpatient with an 

unstabilized EMC absent an EMTALA 

obligation. Specifically, we would be 

interested to know if commenters are 

aware of situations where an individual 

with an unstabilized EMC was admitted 

as an inpatient and continued to have 

an unstabilized EMC requiring the 

services of a hospital with specialized 

capabilities that refused to accept the 

transfer of the individual because 

current policy does not obligate 

hospitals with specialized capabilities 

to do so. 

IV. Collection of Information 

Requirements 

This document does not impose 

information collection and 

recordkeeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995. 

V. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

Authority: (Catalog of Federal Domestic 

Assistance Program No. 93.773, Medicare— 

Hospital Insurance) 

Dated: November 18, 2010. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: December 14, 2010. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2010–32267 Filed 12–22–10; 8:45 am] 

BILLING CODE 4120–01–P 

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). 

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: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• Mail: Docket Operations, U.S. 

Department of Transportation, West 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80766 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 

Building, Ground Floor, Room W12– 

140, Routing Symbol M–30, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

• 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 § 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 


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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 nonmandatory 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 allinclusive 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 nonmandatory appendices. The ten parts 

are: TG—GENERAL REQUIREMENTS; 

TM—MATERIAL REQUIREMENTS; 

TD—DESIGN REQUIREMENTS; TW— 

REQUIREMENTS FOR TANKS 

FABRICATED BY WELDING; TFFABRICATION 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 standardswriting 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 


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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 

§ 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, § 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 

§ 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 


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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 §§ 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, nonpersistent loads to that permitted for 

lading surge loads for MC 331 cargo 

tanks by § 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. Cooperative 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 nonspecification 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 § 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; 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80770 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 

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 

§ 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 § 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 ASMEdeveloped 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 (onsite) 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. 


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Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 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

Class Current specification in HMR Type of inspector 

Class 1 ............................................................... UN cryogenic portable tanks (See § 178.277); 

DOT 407 MAWP > 35 psi (See § 178.347); 

DOT 412 MAWP > 15 psi (See § 178.348); 

MC 338 (See § 178.338); MC 331 (See 

§ 178.337); DOT 106A and 110AW (See 

§ 179.300).

Authorized Inspector 

Class 2 ............................................................... ........................................................................... Qualified Inspector , or Authorized Inspector 

Class 3 ............................................................... DOT 406 (See § 178.346); DOT 407 MAWP ≤ 

35 psi (See § 178.347); DOT 412 MAWP ≤ 

15 psi (See § 178.348).

Certified Individual, Authorized Inspector, or 

Qualified Inspector 

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? 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80772 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 

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 multiunit 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 costeffective 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 

§ 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 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 crossreference 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100806326–0374–01] 

RIN 0648–AY99 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Space Vehicle 

and Missile Launch Operations at 

Kodiak Launch Complex, Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received an 

application, pursuant to the Marine 

Mammal Protection Act (MMPA), from 

the Alaska Aerospace Corporation 

(AAC) for authorization to take small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

Kodiak Launch Complex (KLC) for the 

period of February 2011 through 

February 2016. Pursuant to the MMPA, 

NMFS is requesting comments on its 

proposal to issue regulations and 

subsequent Letters of Authorization 

(LOAs) to AAC to incidentally harass 

Steller sea lions (Eumetopias jubatus) 

and harbor seals (Phoca vitulina) during 

the specified activity. 

DATES: Comments and information must 

be received no later than January 24, 

2011. 

ADDRESSES: You may submit comments, 

identified by 0648–AY99, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Hand delivery or mailing of paper, 

disk, or CD–ROM comments should be 

addressed to P. Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910–3225. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter 

N/A in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. A copy of 

the application containing a list of 

references used in this document and 

Environmental Assessments (EAs) 

related to this action may be obtained by 

writing to the above address, by 

telephoning the contact listed under FOR

FURTHER INFORMATION CONTACT, or on the 

Internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm#applications. 

Documents cited in this proposed rule 

may also be viewed, by appointment, 

during regular business hours at the 

above address. To help NMFS process 

and review comments more efficiently, 

please use only one method to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Magliocca, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

123. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the identified species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth in the regulations. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘* * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

Any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On June 4, 2010, NMFS received a 

complete application for regulations 

from AAC for the taking of small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

KLC. Noise from space vehicles and 

missile launches may result in the 

behavioral (Level B) harassment of 

hauled-out Steller sea lions and harbor 

seals and injury (Level A harassment) or 


srobinson on DSKHWCL6B1PROD with PROPOSALS