80762 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 

Public Meeting 

The public meeting will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning the issue under 

reconsideration. Written statements and 

supporting information submitted 

during the comment period will be 

considered with the same weight as any 

oral comments and supporting 

information presented at the public 

meeting. Written comments must be 

postmarked by the last day of the 

comment period, which is February 14, 

2011. 

How can I get copies of the final rule, 

notice of reconsideration, and other 

related information? 

The final rule was published on 

March 3, 2010, and the notice of 

reconsideration and request for public 

comment was published on December 7, 

2010. Both actions can be accessed at 

the following Web site: http://

www.epa.gov/ttn/atw/rice/ricepg.html. 

EPA has established the public docket 

for the rulemaking under docket ID No. 

EPA–HQ–OAR–2008–0708, and a copy 

of the final rule is available in the 

docket. Information on how to access 

the docket is presented above in the 

ADDRESSES section. 

List of Subjects in 40 CFR Part 63 

Administrative practice and 

procedure, Air pollution control, 

Hazardous substances, 

Intergovernmental relations. 

Dated: December 20, 2010. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2010–32454 Filed 12–22–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 489 

[CMS–1350–ANPRM] 

RIN 0938–AQ51 

Medicare Program; Emergency Medical 

Treatment and Labor Act: Applicability 

to Hospital and Critical Access 

Hospital Inpatients and Hospitals With 

Specialized Capabilities 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Advance notice of proposed 

rulemaking with comment. 

SUMMARY: This advance notice of 

proposed rulemaking announces the 

intention of CMS to solicit comment on 

the need to publish a proposed rule to 

address two policies related to the 

Emergency Medical Treatment and 

Labor Act (EMTALA). Specifically, this 

document serves as a request for 

comments regarding our need to revisit 

the policies articulated in the September 

9, 2003 Federal Register (68 FR 53243) 

and the August 19, 2008 Federal 

Register (73 FR 48656) concerning the 

applicability of EMTALA to hospital 

inpatients and the responsibilities of 

hospitals with specialized capabilities, 

respectively. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. EST on February 22, 2011. 

ADDRESSES: In commenting, please refer 

to file code CMS–1350–ANPRM. 

Because of staff and resource 

limitations, we cannot accept comments 

by facsimile (FAX) transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

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

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–1350– 

ANPRM, P.O. Box 8013, Baltimore, MD 

21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–1350– 

ANPRM, Mail Stop C4–26–05, 7500 

Security Boulevard, Baltimore, MD 

21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

7195 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Renate Dombrowski (410) 786–4645. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http://www.regulations.

gov. Follow the search instructions on 

that Web site to view public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Overview 

We are issuing this advance notice of 

proposed rulemaking (ANPRM) to 

solicit public comments on the need to 

revisit through a notice of proposed 

rulemaking CMS’ current policy on the 

applicability of the Emergency Medical 

Treatment and Labor Act (EMTALA). 

Specifically, this notice concerns the 

applicability of EMTALA to individuals 

who are determined in the hospital’s 

dedicated emergency department to 

have an emergency medical condition 

(EMC) who, prior to being stabilized, are 

subsequently admitted to the hospital as 

inpatients, and then need to be 

transferred to another hospital with 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 80763 

specialized capabilities for stabilizing 

treatment. 

II. Background 

Sections 1866(a)(1)(I), 1866(a)(1)(N), 

and 1867 of the Social Security Act (the 

Act) were enacted as parts of the 

Emergency Medical Treatment and 

Labor Act (EMTALA). These statutory 

provisions impose specific obligations 

on certain Medicare-participating 

hospitals and critical access hospitals 

(CAHs). (Throughout this advance 

notice of proposed rulemaking, when 

we reference the obligation of a 

‘‘hospital’’ under these sections of the 

Act and in our regulations, we mean to 

include CAHs as well.) These 

obligations concern individuals who 

come to a hospital’s ‘‘dedicated 

emergency department’’ (as defined at 

42 CFR 489.24(b)), and request 

examination or treatment for a medical 

condition, and apply to all of these 

individuals, regardless of whether they 

are beneficiaries of any program under 

the Act. 

EMTALA, also known as the patient 

antidumping statute, was passed in 

1986 as part of the Consolidated 

Omnibus Budget Reconciliation Act of 

1985 (COBRA), Public Law 99–272. 

Congress incorporated these 

antidumping provisions within the 

Social Security Act to ensure that any 

individual with an EMC, regardless of 

the individual’s insurance coverage, is 

not denied essential lifesaving services. 

Under section 1866(a)(1)(I)(i) of the Act, 

a hospital that fails to fulfill its 

EMTALA obligations under these 

provisions may be subject to 

termination of its Medicare provider 

agreement, which would result in the 

loss of all Medicare and Medicaid 

payments. In addition, section 1867(d) 

of the Act provides for the imposition of 

civil monetary penalties on a hospital 

and physician who negligently violate a 

requirement of EMTALA under section 

1867 of the Act. 

Section 1867 of the Act sets forth 

requirements for medical screening 

examinations for individuals who come 

to the hospital and request examination 

or treatment for a medical condition. 

The section further provides that if a 

hospital finds that such an individual 

has an EMC, it is obligated to provide 

that individual with either necessary 

stabilizing treatment or an appropriate 

transfer to another medical facility 

where stabilization can occur. The 

EMTALA statute also outlines the 

obligation of hospitals to receive 

appropriate transfers from other 

hospitals. Section 1867(g) of the Act 

states that a participating hospital that 

has specialized capabilities or facilities 

(such as burn units, shock-trauma units, 

neonatal intensive care units or with 

respect to rural areas, regional referral 

centers as identified by the Secretary in 

regulation) shall not refuse to accept an 

appropriate transfer of an individual 

who requires these specialized 

capabilities or facilities if the hospital 

has the capacity to treat the individual. 

The regulations implementing section 

1867 of the Act are found at 42 CFR 

489.24. The regulations at 42 CFR 

489.20(l), (m), (q), and (r) also refer to 

certain EMTALA requirements outlined 

in section 1866 of the Act. The 

Interpretive Guidelines concerning 

EMTALA are found at Appendix V of 

the CMS State Operations Manual: 

http://www.cms.gov/manuals/

Downloads/som107ap_v_emerg.pdf. 

A. Applicability of EMTALA to Hospital 

Inpatients 

Although the focus of EMTALA 

routinely involves the treatment of 

individuals who present to a hospital’s 

dedicated emergency department with a 

request for treatment of a medical 

condition, concerns have also arisen 

about the applicability of EMTALA to 

hospital inpatients. We have previously 

discussed the applicability of EMTALA 

to hospital inpatients in the May 9, 2002 

Hospital Inpatient Prospective Payment 

System (IPPS) proposed rule (67 FR 

31475) and the September 9, 2003 

stand-alone final rule on EMTALA (68 

FR 53243). 

As we noted in these prior proposed 

and final rules, in 1999, the United 

States Supreme Court considered a case 

(Roberts v. Galen of Virginia, 525 U.S. 

249 (1999)) that involved, in part, the 

question of whether EMTALA applies to 

hospital inpatients. In the context of 

that case, the United States Solicitor 

General advised the Court that HHS 

would develop a regulation clarifying its 

position on this issue. In the May 9, 

2002 proposed rule, we proposed that 

EMTALA continue to apply to admitted 

individuals who are not stabilized (who 

presented under EMTALA), but that it 

would not otherwise apply to 

inpatients. We indicated that 

individuals whose conditions go in and 

out of apparent stability rapidly and 

frequently would not be considered 

‘‘stabilized’’ and the hospital would 

continue to have an obligation to such 

individuals even after they are admitted. 

However, for all other inpatients we 

stated that EMTALA was intended to 

provide protection to individuals 

coming to a hospital to seek care for an 

EMC. Therefore, we stated that we 

believed the EMTALA requirements did 

not extend to stabilized inpatients even 

if they subsequently become unstable 

because those inpatients are protected 

by a number of Medicare conditions of 

participation (CoPs) as well as the 

hospital’s other legal, licensing, and 

professional obligations with respect to 

the continued proper care and treatment 

of its patients. 

In the September 9, 2003 stand-alone 

final rule on EMTALA, we refined this 

position to state that a hospital’s 

obligation under EMTALA ends either 

when the individual’s EMC is stabilized 

or when that hospital, in good faith, 

admits an individual with an unstable 

EMC as an inpatient. That is, we stated 

that EMTALA does not apply to any 

inpatient, even one who was admitted 

through the dedicated emergency 

department, for whom the hospital had 

initially incurred an EMTALA 

obligation to stabilize, and who 

remained unstabilized after admission 

as an inpatient. We noted that other 

patient safeguards protect all inpatients, 

including the hospital CoPs as well as 

State malpractice law. In addition, 

judicial interpretation of the matter and 

comments we received on the proposed 

rule helped shape the policy articulated 

in the final rule. However, we also 

stated in the rule that a hospital could 

not escape liability under EMTALA by 

admitting an individual with no 

intention of treating the individual and 

then inappropriately transferring or 

discharging that individual without 

having met the stabilization 

requirement. 

B. EMTALA Technical Advisory Group 

Recommendation Regarding 

Responsibilities of Hospitals With 

Specialized Capabilities 

Section 945 of the Medicare 

Prescription Drug, Improvement, and 

Modernization Act of 2003 (MMA), 

Public Law 108–173, required the 

Secretary to establish a Technical 

Advisory Group (TAG) to advise the 

Secretary on issues related to the 

regulations and implementation of 

EMTALA. The EMTALA TAG’s 

functions, as identified in the charter for 

the EMTALA TAG, were as follows: (1) 

Review EMTALA regulations; (2) 

provide advice and recommendations to 

the Secretary concerning these 

regulations and their application to 

hospitals and physicians; (3) solicit 

comments and recommendations from 

hospitals, physicians, and the public 

regarding the implementation of such 

regulations; and (4) disseminate 

information concerning the application 

of these regulations to hospitals, 

physicians, and the public. The TAG 

met 7 times during its 30-month term, 

which ended on September 30, 2007. At 

its meetings, the TAG heard testimony 


srobinson on DSKHWCL6B1PROD with PROPOSALS
80764 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 

from representatives of physician 

groups, hospital associations, and others 

regarding EMTALA issues and 

concerns. During each meeting, 

subcommittees established by the TAG 

developed recommendations, which 

were then discussed and voted on by 

members of the TAG. One of these 

recommendations, presented by the 

TAG during its September 2007 meeting 

calls for CMS to revise its regulations to 

address the situation of an individual 

who: (1) Presents to a hospital that has 

a dedicated emergency department and 

is determined to have an unstabilized 

EMC; (2) is admitted to the hospital as 

an inpatient for purposes of stabilizing 

the EMC; and (3) subsequently needs a 

transfer to a hospital with specialized 

capabilities to receive stabilizing 

treatment that cannot be provided by 

the referring hospital that originally 

admitted the individual. 

C. Applicability of EMTALA to Hospital 

Inpatients and Responsibilities of 

Hospitals With Specialized Capabilities 

To further clarify our position on the 

applicability of EMTALA and the 

responsibilities of hospitals with 

specialized capabilities to accept 

appropriate transfers, the agency 

included as part of the April 30, 2008 

IPPS proposed rule (73 FR 23669) two 

proposals that addressed the issue of 

hospital inpatients. First in the 

proposed rule, we stated that we 

believed that the obligation of EMTALA 

does not end for all hospitals once an 

individual is admitted as an inpatient to 

the hospital where the individual first 

presented with a medical condition that 

was determined to be an EMC. Rather, 

we stated, once the individual is 

admitted, the admission only affects the 

EMTALA obligation of the hospital 

where the individual first presented (the 

admitting hospital). In the proposed 

rule, we proposed that section 1867(g) 

of the Act (which refers to 

responsibilities of hospitals with 

specialized capabilities) requires a 

receiving hospital with specialized 

capabilities to accept a request to 

transfer an individual with an unstable 

EMC so long as the hospital has the 

capacity to treat that individual 

regardless of whether that individual 

was ultimately an inpatient at the 

admitting hospital. We stated that we 

believed that permitting inpatient 

admission at the admitting hospital to 

end EMTALA obligations for another 

hospital would seemingly contradict the 

intent of section 1867(g) of the Act to 

ensure that hospitals with specialized 

capabilities provide medical treatment 

to individuals with EMCs in order to 

stabilize those conditions. And we 

further noted that while a hospital 

inpatient is protected under Medicare 

CoPs and may also have additional 

protections under State law, the 

obligations of another hospital under 

the CoPs apply only to that hospital’s 

patients, and there is no CoP that 

requires a hospital to accept the transfer 

of a patient from an admitting facility. 

We proposed to interpret section 

1867(g) of the Act as creating an 

obligation on hospitals with specialized 

capabilities to accept appropriate 

transfers of individuals for whom the 

admitting hospital originally had an 

EMTALA obligation under section 1867 

of the Act, if the hospital with 

specialized capabilities has the capacity 

to treat the individuals. Thus, in the 

April 30, 2008 IPPS proposed rule, we 

proposed that when an individual 

originally covered by EMTALA is 

admitted as an inpatient at that hospital 

and continues to have an unstabilized 

EMC, a hospital with specialized 

capabilities has an EMTALA obligation 

to accept a transfer of that individual, 

assuming that the transfer of the 

individual is an appropriate transfer and 

that the participating hospital with 

specialized capabilities has the capacity 

to treat the individual. 

We received many comments 

opposing the proposal concerning 

hospitals with specialized capabilities 

included in the April 30, 2008 IPPS 

proposed rule. The commenters stated 

that the proposed rule would ‘‘reopen’’ 

EMTALA for an admitting hospital by 

extending EMTALA’s requirements for 

an ‘‘appropriate transfer’’ despite the fact 

that the admitting hospital’s EMTALA 

obligations ended, under regulation, 

when it admitted an individual as an 

inpatient. The commenters also stated 

that, because the original admitting 

hospital may claim that it lacks the 

capacity or capability to stabilize the 

individual’s EMC, finalizing the 

proposed policy would result in an 

increase in patient dumping and 

inappropriate transfers, especially to 

teaching hospitals, tertiary care centers, 

and urban safety net hospitals. 

Commenters further asserted that 

finalizing CMS’ policy as proposed 

would exacerbate confusion 

surrounding the determination of 

whether an individual is considered 

stable. That is, the admitting hospital 

would be required to continuously 

monitor the individual to determine if at 

any point in the emergency department 

or even as an inpatient, the individual 

experienced a period of stability since 

such stability would end EMTALA 

obligations for all hospitals that might 

otherwise have obligations under the 

law. Under this scenario, the 

commenters asserted that the hospital 

with specialized capabilities would be 

forced to accept the transfer of an 

individual, potentially increasing the 

number of inappropriate or unnecessary 

transfers, because that hospital would 

be unable, with complete certainty, to 

determine whether or not the individual 

being transferred had ever experienced 

a period of stability. 

As a result, in the August 19, 2008 

IPPS final rule we stated that, due to the 

many concerns that the commenters 

raised, we believe it is appropriate to 

finalize a policy to state that if an 

individual with an unstable emergency 

medical condition is admitted as an 

inpatient, the EMTALA obligation has 

ended, even if the individual’s EMC 

remains unstabilized and the individual 

requires treatment only available at a 

hospital with specialized capabilities. 

Put another way, we determined that a 

hospital with specialized capabilities 

does not have an EMTALA obligation to 

accept an appropriate transfer of an 

individual who had been admitted in 

good faith as an inpatient at the first 

hospital. We stated that we believed that 

finalizing the proposed policy might 

negatively impact patient care, due to an 

increase in inappropriate transfers, that 

could be detrimental to the physical and 

psychological health and well-being of 

patients. We further stated that we were 

concerned that finalizing the proposed 

rule could further burden the emergency 

system and could force hospitals 

providing emergency care to limit their 

services or care, thereby reducing access 

to emergency treatment. In addition, we 

stated that we were concerned about the 

possible disparate treatment of 

inpatients under the proposed policy 

because an individual who presented to 

a hospital under EMTALA might have 

different transfer rights than an 

inpatient who was admitted for an 

elective procedure. And we generally 

agreed that hospitals with specialized 

capabilities would accept the transfer of 

an inpatient with an unstable EMC even 

if there was no legal requirement under 

EMTALA to do so. We also noted that 

the recommendation provided by the 

TAG to apply EMTALA to hospital 

inpatients was endorsed by the group on 

the narrowest of margins, and that the 

majority of hospital representatives 

serving on the TAG were opposed to the 

recommendation. And while we 

adopted a final rule that limits the 

EMTALA responsibilities of a hospital 

with specialized capabilities, we 

encouraged the public to make us aware 

if the interpretation of section 1867(g) of 

the Act as set forth in the rule resulted 

in harmful refusals by hospitals with 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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