Hazardous Materials: Adoption of ASME Code Section XII and the National Board Inspection Code, 79363-79388 [2013-31046]

Download as PDF Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Federal Communications Commission. Gloria J. Miles, Federal Register Liaison, Office of the Secretary, Office of Managing Director. Number of Petitions Filed: 2. Federal Communications Commission. Gloria J. Miles, Federal Register Liaison, Office of the Secretary, Office of Managing Director. [FR Doc. 2013–31127 Filed 12–27–13; 8:45 am] BILLING CODE 6712–01–P [FR Doc. 2013–31193 Filed 12–27–13; 8:45 am] BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS COMMISSION DEPARTMENT OF TRANSPORTATION 47 CFR Part 69 [WC Docket No. 05–25; RM–10593; Report No. 2995] Petitions for Reconsideration of Action in Rulemaking Proceeding Federal Communications Commission. ACTION: Petition for reconsideration. AGENCY: tkelley on DSK3SPTVN1PROD with PROPOSALS VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 49 CFR Parts 171, 173, 178, and 180 [Docket Number PHMSA–2010–0019 (HM– 241)] RIN 2137–AE58 In this document, Petitions for Reconsideration (Petitions) have been filed in the Commission’s Rulemaking proceeding, one by Gerard J. Duffy of Blooston, Modkofsky, Dickens, Duffy & Prendergrast, LLP, on behalf of Blooston Private Microwave Licenses and a second by David L. Nace, of Lukas, Nace, Gutierrez & Sachs, LLP, on behalf of Small Purchasers Coalition. DATES: Oppositions to the Petitions must be filed on or before January 14, 2014. Replies to an opposition must be filed on or before January 24, 2014. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Christopher Koves, Wireline Competition Bureau, phone: (202) 418– 1520. SUPPLEMENTARY INFORMATION: This is a summary of Commission’s document, Report No. 2995, released December 19, 2013. The full text of Report No. 2995 is available for viewing and copying in Room CY–B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission’s copy contractor, Best Copy and Printing, Inc. (BCPI) (1– 800–378–3160). The Commission will not send a copy of this Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Notice does not have an impact on any rules of particular applicability. Subject: Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking To Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, published at 78 FR 67053, November 8, 2013, in WC Docket No. 05–25, RM–10593, and published pursuant to 47 CFR 1.429(e). See also § 1.4(b)(1) of the Commission’s rules. SUMMARY: Pipeline and Hazardous Materials Safety Administration Hazardous Materials: Adoption of ASME Code Section XII and the National Board Inspection Code Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: PHMSA is proposing to amend the Hazardous Materials Regulations applicable to the design, construction, certification, recertification and maintenance of cargo tank motor vehicles, cryogenic portable tanks and multi-unit tank car tanks (ton tanks) in response to petitions for rulemaking from the American Society of Mechanical Engineers (ASME), the National Board of Boiler and Pressure Vessel Inspectors (National Board), and the Pressure Vessel Manufacturers Association (PVMA). Specifically, this NPRM proposes to allow the use of the 2013 edition of the ASME’s Boiler and Pressure Vessel Code, Section XII (Section XII) for the design, construction, and certification of cargo tank motor vehicles, cryogenic portable tanks and ton tanks. PHMSA also proposes to authorize the use of the 2013 edition of the National Board of Boiler and Pressure Vessel Inspectors’ National Board Inspection Code (NBIC), as it applies to the continuing qualification and maintenance of ASME constructed cargo tank motor vehicles, cryogenic portable tanks, and ton tanks constructed to standards in ASME’s Section XII, and existing cargo tank motor vehicles and portable tanks constructed to Section VIII, Division 1. If adopted, these amendments will allow for regulatory flexibility, without compromising safety. DATES: Submit comments by March 31, 2014. To the extent possible, PHMSA SUMMARY: PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 79363 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 https://www.regulations.gov. Follow the online instructions for submitting comments. • Fax: 1–202–493–2251. • Mail: Docket Operations, U.S. Department of Transportation, West 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 https:// www.regulations.gov, or DOT’s Docket Operations Office (see ADDRESSES). To access ASME’s Boiler and Pressure Vessel Code, Section XII (Section XII) go to: https://shop.asme.org/PublicReview/. To access the National Board Inspection Code (NBIC), Part 2, Supplement 6: Continued Service and Inspection of DOT Transport Tanks, and Part 3, Supplement 6: Repair, Alteration, and Modification of DOT Transport Tanks go to: https://www.nationalboard.org/ SiteDocuments/NBIC/ DOT_NBIC_supplements.pdf. 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 https:// www.dot.gov/privacy. FOR FURTHER INFORMATION CONTACT: Lisa O’Donnell, Hazardous Materials Standards and Rulemaking Division, (202) 366–8553, or Stanley Staniszewski, Engineering and Research E:\FR\FM\30DEP1.SGM 30DEP1 79364 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Division, (202) 366–4492, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: tkelley on DSK3SPTVN1PROD with PROPOSALS Contents I. Executive Summary II. Abbreviations and Terms Used in This Document III. Background IV. Petitions for Rulemaking A. P–1459 B. P–1474 C. P–1502 V. ASME Section XII VI. NBIC VII. Comparison of Section XII and Section VIII, Division 1 Supplemented by the Current HMR A. Design Margin B. Rational Design C. Design and Construction of CTMVs: Identified Differences Between HMR and Section XII Requirements D. Continued Service of CTMVs, Portable Tanks, and Ton Tanks: Roles of Inspectors HMR E. Summary and Supporting Research Initiatives VIII. ANPRM Comment Summary Discussion and Proposed Amendments A. Comments in Favor of Adopting Section XII and NBIC B. Comments in Opposition to Adopting Section XII and NBIC C. Miscellaneous Comments D. Proposed Amendments E. Section by Section Review IX. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866, Executive Order 13610, Executive Order 13563 and DOT C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. Executive Order 13609 International Trade Analysis I. Executive Summary In this NPRM, PHMSA (also ‘‘we’’ or ‘‘us’’) proposes to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171–180) in response to petitions submitted by industry representatives to incorporate Section XII and the 2013 edition of the NBIC as alternatives to Section VIII, Division 1 and the current HMR requirements in part 178, for the design of cryogenic portable tanks and CTMVs, part 179 for the design of ton tanks, and part 180 for the continuing qualification and maintenance of CTMVs, cryogenic portable tanks and VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 ton tanks. Section XII sets forth standards for construction 1 and continued service 2 of pressure vessels for transporting hazardous materials by highway, rail, air or water at pressures from close to 15 psig external pressure to 3,000 psig and volumes greater than 120 gallons. The 2013 edition of the NBIC provides rules and guidelines for installing, inspecting, repairing and altering boilers, pressure vessels and pressure relief devices. Section XII may be used for the following tanks: TABLE 1—PROPOSED TANKS AUTHORIZED UNDER SECTION XII Tank type Cargo Tank Motor Vehicles (CTMVs). Cryogenic Portable Tanks. Ton Tanks ................. Specification MC331, 338, 406, 407, and 412. UN T75. DOT–106A and 110AW. If the proposed amendments are adopted, manufacturers could choose to build their tanks using either the specifications set forth in Section XII or those set forth in Section VIII, Division 1. While Section VIII, Division 1 applies to construction of new tanks only, Section XII applies to both new construction and continued service. Further, as proposed, a manufacturer who builds a tank to Section VIII, Division 1 would be authorized to use either the 1992 edition of the NBIC that is currently incorporated by reference or the 2013 edition of the NBIC; whereas manufacturers who choose to build tanks to Section XII would be required to use the 2013 edition of the NBIC. Section XII and the 2013 edition of the NBIC include advancements in design, material, construction, repair and inspection of transport tanks. Incorporating Section XII and the 2013 edition of the NBIC by reference in the HMR, would allow manufacturers and owners of transport tanks to be flexible in the materials they use to build tanks, how they build tanks, and how they test and inspect tanks, while providing the same level of safety as that provided by Section VIII, Division 1 for new construction and the HMR for continued qualification and maintenance. The 2013 edition of the NBIC was developed in conjunction with Section XII to provide consistent, up-to-date 1 ‘‘Construction’’ is an all-inclusive term comprising materials, design, fabrication, examination, inspection, testing, certification, and over-pressure protection. 2 ‘‘Continued service’’ is an all-inclusive term referring to inspection, testing, repair, alteration, and recertification of a transport tank that has been in service. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 standards for the lifespan of transport tanks. Both the NBIC and Section XII were developed as international standards, and were written to be compatible with UN recommendations. Further, these standards were developed by voluntary consensus standardsdevelopment organizations comprised of all stakeholders involved in the design, certification, continued qualification and maintenance of transport tanks, including manufacturers of tanks and PHMSA engineers. These individuals have expert knowledge of how to design, construct and maintain tanks to withstand the unique dynamic conditions and stresses of a transportation environment. Several research and development projects support the adoption of both the 2013 edition of NBIC and Section XII (See Table 11 of Section VII of this document). These projects include studies on CTMV rollovers, design margins, and puncture resistance. They are discussed in Sections V and VII in this NPRM.3 Furthermore, by providing the 2013 edition of the NBIC and Section XII as options, PHMSA would allow the regulated industry to choose from various materials of construction, that we believe provide equivalent safety, to accommodate each entity’s preference (see part TM of Section XII, which specifies authorized materials). Use of the proposed voluntary standards could enable U.S. manufacturers to better compete internationally. Manufacturers, tank owners and users, maintenance and repair entities, third-party inspectors, and public sector inspectors would incur costs under the proposed adoption of Section XII and the 2013 edition of the NBIC. Manufacturers who choose to build tanks to Section XII may have to purchase new equipment to manufacture tanks to accommodate the different metals authorized in Section XII and would have to purchase the standard; however, they would also have more flexibility in the materials they use to build the tank, and take advantage of the lower priced materials at the time of purchase. Tank owners would incur the initial cost of the new tank. However, users, most likely also the owners, in many cases, would be able to haul more material in one tank, which would reduce fuel costs. Entities that repair tanks and third-party inspectors would have to be trained in 3 See www.regulations.gov, Docket Nos. PHMSA– 2010–0019–0010, PHMSA–2010–0019–0012, PHMSA–2010–0019–0013, PHMSA–2010–0019– 0014, PHMSA–2010–0019–0015, PHMSA–2010– 0019–0016, PHMSA–2010–0019–0017, PHMSA– 2010–0019–0018, and PHMSA–2010–0019–0019. E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules and purchase both Section XII and the NBIC. Public sector inspectors would have to be trained, and state and local governments would have to purchase both Section XII and the NBIC. Due to PHMSA’s three-year training cycle, all employees and inspectors will have been trained within three years, regardless of when or if they transition to HM–241. Once an entity converts to Section XII tanks, PHMSA assumes that the incremental training would be incorporated into regular training, and no further incremental expense would be incurred in future years. Annual benefits would continue to accrue. Benefits associated with the use of Section XII and the 2013 edition of the NBIC include a savings in the cost to manufacture tanks. Various economic factors cause the cost of types of materials to fluctuate. Because Section XII allows a variety of newer materials to be used to build tanks, manufacturers may choose materials with the lowest cost to construct their tanks. Also, certain tanks built to Section XII would provide lower costs per mile due to the use of lighter-weight materials of construction and increased capacity to transport product. A review of previous research by PHMSA’s Engineering and Research Division, as well as the independent research studies that are summarized in Section V and Table 11 of Section VII of this NPRM and can be found in the docket file (see www.regulations.gov, Docket Nos. PHMSA–2010–0019) indicated the Section XII standards provide an equivalent level of safety to the current standards. Section XII provides updated specifications for transport tanks. In most cases, due to substitution of material of construction, the thickness of the tanks would be reduced, permitting more material to be hauled, and reducing the number of tanks needed to handle the same volume of product. These costs and benefits of Section XII and the 2013 edition of the NBIC would 79365 affect only individuals who choose to use the standards. Therefore, PHMSA does not believe adoption of Section XII would impose costs because each entity will choose to continue to use the existing Section VIII or convert to Section XII as their economic interests dictate. For example a manufacturer would not use Section XII to build a tank unless it believes it is net beneficial to do so. Since Section XII would allow manufacturers the flexibility to purchase the raw material that is least expensive at the time, this may reduce the cost to the manufacturer, who can then pass that discount on to the buyer of the tank. Manufacturers will only elect to utilize Section XII if it makes business sense. II. Abbreviations and Terms Used in This Document The table below provides a list of abbreviations or acronyms for the terms used in this NPRM. TABLE 2—ABBREVIATIONS AND TERMS USED IN THIS DOCUMENT AI: ANSI: ASME: BPVC: CI: CTMV: DCE: FMCSA: HMR: IMDG IACS MAWP: NBIC: PHMSA: PVMA: QI: RI: Section VIII, Division 1 Section XII: Authorized Inspector American National Standards Institute American Society of Mechanical Engineers Boiler and Pressure Vessel Code Certified Individual Cargo Tank Motor Vehicle Design Certifying Engineer Federal Motor Carrier Safety Administration Hazardous Materials Regulations (49 CFR parts 171–180) International Maritime Dangerous Goods International Association of Classification Societies Ltd Maximum Allowable Working Pressure National Board Inspection Code Pipeline and Hazardous Materials Safety Administration Pressure Vessel Manufacturers Association Qualified Inspector Registered Inspector American Society Mechanical Engineers, Boiler and Pressure Vessel Code, Section VIII, Division 1 American Society Mechanical Engineers, Boiler and Pressure Vessel Code, Section XII tkelley on DSK3SPTVN1PROD with PROPOSALS III. 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 packaging requirements for the safe transportation of hazardous materials in commerce, including requirements for the design, construction, qualification, maintenance, certification and repair of bulk packagings such as CTMVs, portable tanks, and certain tank car tanks referred to as ton tanks. Under 49 CFR 1.96, PHMSA is delegated the responsibility to enforce the HMR. In addition, under 49 CFR 1.88 and 1.86, the Federal Railroad Administration (FRA) and the Federal Motor Carrier Safety Administration (FMCSA) are delegated authority to enforce the HMR 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. Within the United States, the most common modes of transportation for the tanks affected by this NPRM are highway and rail. To clearly identify the differences and unique characteristics of the tanks addressed by this NPRM, we provide the following definitions. TABLE 3—TANK TYPE DEFINITION Cargo tank motor vehicle (CTMV) .. VerDate Mar<15>2010 16:26 Dec 27, 2013 Means a motor vehicle with one or more cargo tanks permanently attached to or forming an integral part of the motor vehicle. Jkt 232001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\30DEP1.SGM 30DEP1 79366 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules TABLE 3—TANK TYPE DEFINITION—Continued Portable tank 4 ................................. UN portable tank ............................. Multi-unit tank car tank or ton tank Means a bulk packaging (except a cylinder having a water capacity of 1000 pounds or less) designed primarily to be loaded onto, or on, or temporarily attached to a transport vehicle or ship and equipped with skids, mountings, or accessories to facilitate handling of the tank by mechanical means. It does not include a CTMV, tank car, multi-unit tank car tank, or trailer carrying 3AX, 3AAX, or 3T cylinders. Means an intermodal tank having a capacity of more than 450 liters (118.9 gallons). It includes a shell fitted with service equipment and structural equipment, including stabilizing members external to the shell and skids, mountings or accessories to facilitate mechanical handling. A UN portable tank must be capable of being filled and discharged without the removal of its structural equipment and must be capable of being lifted when full. Cargo tanks, rail tank car tanks, non-metallic tanks, non-specification tanks, bulk bins, and IBCs and packagings made to cylinder specifications are not UN portable tanks. Means a flatcar railcar or flatbed trailer with up to 15 large cylindrical pressure tanks (DOT–106A and 110A tank car specification, see Part 179). In this NPRM, PHMSA is proposing to amend the HMR applicable to the design, construction, certification, recertification and maintenance of cargo tank motor vehicles, cryogenic portable tanks ton tanks, to allow the use of Section XII for the design, construction, and certification of CTMVs, cryogenic portable tanks and ton tanks. PHMSA is also proposing to authorize the use of the 2013 edition of the NBIC, as it applies to Section VIII, Division 1 or Section XII. These proposals are in response to petitions for rulemaking from ASME, the National Board of Boiler and Pressure Vessel Inspectors, and PVMA. This NPRM could affect the following entities that choose to follow Section XII and establishes the following requirements: TABLE 4—AFFECTED ENTITIES Affected entities • • • • • • • Proposed revisions Manufacturers of CTMVs, cryogenic portable tanks and ton tanks ..... Repairers of CTMVs, cryogenic portable tanks and ton tanks Testers of CTMVs, cryogenic portable tanks and ton tanks ................ Carriers of bulk liquid hazardous materials .......................................... Inspectors of CTMVs, cryogenic portable tanks and ton tanks Owners of CTMVs, cryogenic portable tanks and ton tanks Federal, state and local enforcement officials IV. Petitions for Rulemaking The Administrative Procedure Act (APA) requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a • Provides alternative design, construction, certification, recertification and maintenance to Section VIII, Division 1 and HMR. • Establishes new alternative ‘‘T’’ stamp for transport tanks • Establish different levels of inspectors as set forth in Section XII. rule (5 U.S.C. 553(e)). 49 CFR 106.95, provides the process and procedures for persons to petition PHMSA to add, amend, or delete a regulation. In this NPRM, PHMSA is considering petitions for rulemaking from ASME, the National Board, and PVMA. The following table provides a brief summary of the petitions addressed in this NPRM and affected sections: TABLE 5—PETITION SUMMARY Party submitting petition Summary P–1459 ................................. tkelley on DSK3SPTVN1PROD with PROPOSALS Petition ASME ................................. Requests PHMSA incorporate by reference the ASME Boiler and Pressure Vessel Code, Section XII, Transport Tanks—2004 edition (§§ 172.102; 173.5b; 173.24b; 173.32; 173.306; 173.315; 173.318; 173.420; 178.245–1; 178.245–3; 178.245–4; 178.245–6; 178.245–7; 178.255–1; 178.255–2; 178.255–14; 178.255–15; 178.270–2; 178.270–3; 178.270–7; 178.270–9; 178.270–11; 178.270–12; 178.271–1; 178.272–1; 178.273; 178.274; 178.276; 178.277; 178.320; 178.337– 1; 178.337–2; 178.337–3; 178.337–4; 178.337–6; 178.337–16; 178.337–18; 178.338–1; 178.338–2; 178.338–3; 178.338–4; 178.338–5; 178.338–6; 178.338– 13; 178.338–16; 178.338–18; 178.338–19; 178.345–1; 178.345–2; 178.345–3; 178.345–4; 178.345–7; 178.345–14; 178.345–15; 178.346–1; 178.347–1; 178.348–1; 179.400–3; 180.407). 4 Only cryogenic portable tanks are involved in this NPRM. VerDate Mar<15>2010 18:38 Dec 27, 2013 Jkt 232001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules 79367 TABLE 5—PETITION SUMMARY—Continued Petition Party submitting petition Summary P–1474 ................................. PVMA ................................. P–1502 ................................. National Board ................... Requests PHMSA incorporate by reference the ASME Boiler and Pressure Vessel Code, Section XII, Transport Tanks—2004 edition (§§ 172.102; 173.5b; 173.24b; 173.32; 173.306; 173.315; 173.318; 173.420; 178.245–1; 178.245–3; 178.245–4; 178.245–6; 178.245–7; 178.255–1; 178.255–2; 178.255–14; 178.255–15; 178.270–2; 178.270–3; 178.270–7; 178.270–9; 178.270–11; 178.270–12; 178.271–1; 178.272–1; 178.273; 178.274; 178.276; 178.277; 178.320; 178.337– 1; 178.337–2; 178.337–3; 178.337–4; 178.337–6; 178.337–16; 178.337–18; 178.338–1; 178.338–2; 178.338–3; 178.338–4; 178.338–5; 178.338–6; 178.338– 13; 178.338–16; 178.338–18; 178.338–19; 178.345–1; 178.345–2; 178.345–3; 178.345–4; 178.345–7; 178.345–14; 178.345–15; 178.346–1; 178.347–1; 178.348–1; 179.400–3; 180.407). Requests PHMSA incorporate by reference the National Board Inspection Code— 2007 Edition in § 180.413. P–1459 tkelley on DSK3SPTVN1PROD with PROPOSALS 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 provides requirements for construction and continued service of ASME pressure vessels for the transportation of dangerous goods with volumes greater than 450 liters (120 gallons) and design pressures appropriate for the particular transportation mode, i.e., highway, railway, air, and 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 constructed transport tanks. These transportation 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 CTMVs. The 2010 edition was expanded to include the Modal Appendix for ton tanks. We are proposing to incorporate the latest edition, which was published in 2013. [This petition can be found at www.regulations.gov under Docket No. PHMSA–2005–21351]. P–1474 On February 27, 2006, PVMA also petitioned PHMSA to revise the HMR to incorporate by reference the ASME Boiler and Pressure Vessel Code, Section XII, Transport Tanks—2004 edition. PVMA is a trade association VerDate Mar<15>2010 18:26 Dec 27, 2013 Jkt 232001 representing pressure vessel manufacturers, related component materials suppliers and regulatory organizations. Several of PVMA’s member companies participated in the development of Section XII, which contains design requirements for tanks and pressure vessels that several of its members manufacture. PVMA reasoned that adoption of Section XII into the HMR would encourage uniform design requirements and manufacturing standards for these tanks, and support the safe construction practices of this industry. [This petition can be found at www.regulations.gov under Docket No. PHMSA–2006–24712]. P–1502 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.5 While the petition asked that we incorporate the 2007 edition of the NBIC, we propose to incorporate the most up-to-date version, which is the 2013 edition. [This petition can be found at www.regulations.gov under Docket No. PHMSA–2007– 28809]. V. ASME Section XII Currently, the HMR incorporate by reference the 1998 edition of Section VIII, Division 1 as part of the standards 5 The NBIC has updated the 2007 edition with a 2013 edition. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 for the design and construction of cryogenic portable tanks and CTMVs. Section VIII, Division 1 sets forth detailed criteria for the design, construction, certification, and marking of stationary boilers and pressure vessels. Tanks constructed and certified in accordance with Section VIII, Division 1 are marked with a ‘‘U’’ stamp. While stationary tanks and transportation tanks are both subject to many of the same influences, such as pressure, temperature changes, and atmospheric conditions, transportation tanks are subject to additional, unique dynamic load conditions and stresses; Section VIII, Division 1 alone does not address the transportation conditions. To address these additional influences on tanks that are used in transportation, general operational requirements for CTMVs, portable tanks, and ton tanks, such as outage and filling limits and self-closing stop valves, are prescribed in 49 CFR part 173 subpart B. In addition, 49 CFR part 178, subpart H for specification 60, steel portable tanks, includes requirements for material construction (see § 178.255–2), expansion domes (see § 178.255–3), closures for manholes and domes (see § 178.255–4), loading and unloading accessories (see § 178.255–6), tank repair (see § 178.255–13, marking (see § 178.255–14), and reporting (see § 178.255–15). Subpart J for CTMVs and 49 CFR part 178, includes general requirements for all DOT specification cargo tank motor vehicles (see § 178.320), and then more specific requirements for types of CTMVs. For specification MC–331 tanks, requirements include, but are not limited to, structural integrity (see § 178.337–3), closures for manholes (see § 178.337–6), and accident damage protection (see § 178.337–10). For MC– 338 insulated cargo tank motor vehicles, requirements include, but are not limited to, material (see § 178.338–2), E:\FR\FM\30DEP1.SGM 30DEP1 tkelley on DSK3SPTVN1PROD with PROPOSALS 79368 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules structural integrity (see § 178.338–3), and accident damage protection (see § 178.338–10). For ton tanks, 49 CFR part 179 subpart E prescribes additional design and construction requirements than those required for stationary tanks in Section VIII, Division 1, including but not limited to, protection of fittings (see § 179.300–12), more stringent welding (see § 178.300–9), and inspection (see § 179.300–19). Furthermore, continuing qualification and maintenance requirements, which include 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. It should be noted that 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 this NPRM. 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. The Boiler and Pressure Vessel Committees of ASME meet quarterly; however, most of the work is done throughout the year through working groups and an electronic balloting process. The National Board meets biannually and also works throughout the year through working groups and the electronic balloting process. These committees 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 the ASME Board on Pressure Technology Codes and Standards formed a committee on transport tanks (SC XII) to develop new standards to specifically address transport tanks. PHMSA actively participated in the committee. SC XII currently consists of a main committee and four subgroups identified as: (1) General Requirements, (2) Fabrication, Inspection and Continued Service, (3) Design and Materials, and (4) Non-Mandatory Appendices. SC XII developed and published in July of 2004 the ASME BPVC Section XII, Rules for VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 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 Section VIII, Division 1. Section XII consists of ten parts, four modal appendices written to address different tank types, sixteen mandatory appendices, and eight non-mandatory appendices. Transport tanks are divided into categories comparable to existing DOT specifications; for example, a DOT 406 CTMV is a Category 406 tank in Article 1 of Modal Appendix 1. The newest edition contains modal appendices for CTMVs, cryogenic portable tanks, and ton tanks.6 Section XII contains ten parts, in the following order: TABLE 6—SECTION XII PART SUMMARY Part heading Part requirements TG ........... TM ........... TD ........... TW .......... TF ........... TE ........... TT ........... TR ........... TS ........... General Material Design Tanks Fabricated by Welding Fabrication Examination Testing Pressure-relief Device Stamping, Marking, Certification Reports, and Records Repair, Alteration, Testing, and Inspection for Continued Service TP ........... 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 CTMVs designed and constructed to Section VIII, Division 1 standards, currently incorporated by reference in the HMR. PHMSA is proposing to adopt Section XII, in its entirety, as an alternative to Section VIII, Division 1 for the design and construction requirements for DOT specification tanks. A copy of Section XII, 2013 edition, is available for review at www.regulations.gov under Docket Number PHMSA–2010–0019 or DOT’s Docket Operations Office (see ADDRESSES). The current price of Section XII in hard copy is $380.7 VI. NBIC The National Board of Boiler and Pressure Vessel Inspectors was formed in 1921 and is an American National 6 A rail tank car appendix may be developed in the future, and consequently, is not part of the scope of this NPRM. 7 See: https://www.asme.org/products/codes--standards/bpvc-xii---2013-bpvc-section-xii-rulesfor-constru (Accessed: March 27, 2013). PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 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; https:// 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 biannually 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, revision of existing standards, and requests to develop new standards. The standards-writing subcommittees, subgroups, and task groups are open to participation by representatives of groups that are materially affected by the code. Such groups include manufacturers, repair firms, authorized inspection agencies, and representatives of government agencies. Each year the NBIC Committee updates the NBIC and presents the updates on the National Board’s Web site for public review in April-May and August-September. Updated editions are published biannually. 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 NBIC Committee established a task group to develop requirements for continued service, repair, and alteration of Section XII transport tanks. The task group included PHMSA and industry representatives. The Committee’s efforts culminated in the issuance of two new supplements to the NBIC code. While the NBIC code applies to boilers, pressure vessels, and pressure relief devices, these supplements were added to specifically address transport tanks. The first is NBIC Part 2, Section 6, Supplement 6, ‘‘Continued Service and Inspection of DOT Transport Tanks.’’ This document describes inspection of in-service transport tanks. The second is E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules NBIC Part 3, Section 6, Supplement 6, ‘‘Repair, Alteration, and Modification of DOT Transport Tanks.’’ 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. A copy of the 2013 edition of the NBIC is available for review at www.regulations.gov under Docket Number PHMSA–2010–0019 or DOT’s Docket Operations Office (see ADDRESSES appearing earlier in this notice). The current cost of the complete NBIC set is $265 for either the hard copy or the Flash Drive edition.8 tkelley on DSK3SPTVN1PROD with PROPOSALS VII. Comparison of Section XII and Section VIII, Division 1 Supplemented by the Current HMR Currently, the HMR incorporates Section VIII, Division 1 of the ASME Code, which specifies the design and construction of stationary tanks. The HMR supplements Section VIII, Division 1, with added design, construction, certification, which are found in parts 178 and 179, and recertification and maintenance requirements, found in part 180, specific to transport tanks. Section XII and the 2013 edition of the NBIC have been developed specifically for design, construction, certification, recertification and maintenance of transport tanks. A review of differences between Section VIII, Division 1 and Section XII can be very specific. However in this section we examine the broader philosophical differences between the way in which tanks may be designed in Section VIII, Division 1 and the way tanks may be designed in Section XII. Two overarching differences in the two versions of the ASME standard are design margin allowances and design methodology; they are discussed below. Another difference between the current HMR and the Section XII is that when designing and constructing a tank to the requirements of Section XII, you must use the requirements in the 2013 edition of the NBIC for continued service of those tanks; whereas if you are using the HMR and Section VIII, Division 1 you may use the NBIC, but are not required to do so. 8 See: https://www.nationalboard.org/ Index.aspx?pageID=14&ID=20 (Accessed March 27, 2013). VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 79369 Design Margin The design margin, also known as factor of safety, is defined as the structural capacity of a system beyond the expected loads or actual loads. For the purposes of construction of transport tanks, the design margin is how much stronger than necessary we would require a tank to be built for an intended load. For example, a design margin of 3.5:1 means a tank must be built to withstand forces 3.5 times what it would be expected to endure in transportation. Meeting the required design margin exactly implies that the design meets the minimum allowable strength; however, a tank may be built to withstand greater forces than the design margin. Building a tank to withstand forces well over the required design factor sometimes implies ‘‘overengineering’’ which can result in greater weight and/or cost. Since the 1940’s ASME’s design margin for tanks has traditionally been 4.0:1 and, as far back as the 1950’s, the HMR has incorporated Section VIII, Division 1 and required the 4.0:1 design margin for transport tanks. In 1996, the ASME Pressure Vessel Research Committee instituted a research study in which it reviewed burst tests, failure data, failure modes—particularly fatigue and fracture and related toughness requirements, fabrication practices, improved materials, advances in welding, examination and testing. Notably, fracture mechanics did not exist as an engineering discipline when the design margin of 4 was established. Today, fracture mechanics allows an engineer to establish the minimum toughness required in a material based on the stress applied and the maximum credible size flaw.9 The results of the 1996 study indicated that the design margin for pressure vessels could be safely reduced from 4.0:1 to 3.5:1.10 Based on this study, and other research and data specific to transport tanks, ASME adopted a design margin of 3.5 on ultimate tensile strength in Section XII for the economic advantage of using higher allowable stresses and consequently thinner vessels. The revised design margins under Section XII may have an effect on newly constructed transport tanks. For those tanks where the minimum thicknesses are controlled by pressure, they may be thinner and lighter than those Section VIII, Division 1 and the HMR prescribe tank designs intended for a variety of situations. This approach may be attractive to the designer of a tank, as the same design may be used in a variety of situations; however, generally, this approach to design results in large built-in, design margins, over-design, and use of excess material. Rational design involves the application of a systematic method for determining the design variables that optimize a specific objective while satisfying the constraints.12 PHMSA, ASME, and industry have determined through cooperative research and development that tanks constructed using rational design methodology provide an equivalent level of safety to currently authorized tank designs, but are more efficient than currently authorized tanks. For this reason, Section XII incorporates the rational design method. When using the rational method of design, a tank designer seeks to determine, as comprehensive and rigorously as possible, the factors affecting the safety and performance throughout the life of the tank, to determine the most efficient safe design. This process involves more calculations than previous Section VIII design methodologies and can incorporate highly sophisticated computer modeling in developing tank designs. Rational design methodology enables tanks to be designed with greater efficiency and less need for high margins of safety. Rational design under Section XII, Appendix VIII has enabled non-circular shell and heads to be made of material with thicknesses up to 15% less than what tank manufacturers currently use. Such a difference results in a tank with at least 2% more payload capacity. 9 ‘‘Reduction of Design Margin in the ASME Boiler and Pressure Vessel Code in the 1999 Addenda,’’ Walter J. Sperko, P.E., available at: https://freepdfz.com/pdf/reduction-of-asme-designmargin-sperko-engineering-service-inc5156113.html (last accessed 9/30/13). 10 See www.regulations.gov docket number PHMSA–2010–0019–0016. 11 See DOT–SP 12628 and DOT–SP 14492 for 3.5:1 design margin; see DOT–SP 14483, DOT–SP 14572, DOT–SP 14578, DOT–SP 14616 and DOT– SP 15220 for 3.0:1 design margin. 12 See ‘‘A Practical Methods for the Rational Design of Ship Structures; Hughes, Mistree and Zanic; Journal of Ship Research, Vol 24, No. 2, June 1980, pp. 101–113.’’ PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 constructed using a design margin of 4.0. PHMSA has issued several special permits allowing a 3.5:1 or a 3.0:1 design margin.11 PHMSA has reviewed the incident data for these tanks and has not identified any incidents that would indicate a reduction in safety. Furthermore, PHMSA thoroughly evaluates the safety of any special permit before it is issued, and will only issue a permit if the level of safety provided is found to be equivalent to the HMR. Rational Design E:\FR\FM\30DEP1.SGM 30DEP1 79370 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Design and Construction of CTMVs: Identified Differences Between HMR and Section XII Requirements This section highlights some specific differences between the currently incorporated Section VIII that is supplemented by the HMR and Section XII. This is not an all-encompassing list of differences, and it is only meant to highlight areas in which Section XII has improved upon the current combination of Section VIII and the HMR. 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. tkelley on DSK3SPTVN1PROD with PROPOSALS Standardization of Allowable Peak Secondary Stresses for MC 331 Cargo Tanks The requirements in Modal Appendix 1–3.5.5 and 1–3.5.1(a)(1)(b) of Section XII standardize the allowable peak secondary stress levels resulting from short interval, non-persistent loads to that permitted for lading surge loads for MC 331 cargo tanks by § 178.337–3(d). 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. Defined Incident Provisions Relating to Pressure Boundaries Currently the HMR specifically requires defined incident protection (accident protection) for specification tanks throughout Part 178 subpart J. The Modal Appendix 1 Article 1–1.5 of Section XII specifies that tank attachment points shall be designed for accident protection and leakage prevention. ASME asserts that inclusion of these requirements in Section XII clarifies and improves the accident protection requirements. 13 The consolidated 49 CFR requirements are: § 178.337–1(c)(2); § 178.337–1(e)(2); § 178.337–1(f); VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 New Requirements To Account for Fatigue Loading in MC 331 Tanks Section XII includes a new requirement to account for fatigue loading due to dynamic loading and full pressure cycles in design of MC 331 cargo tanks. This consideration is a safety enhancement from the previous Section VIII and HMR combination and provides explicit criteria for fatigue failure avoidance. This requirement compensates for slightly reduced stiffness and increased elastic deflection due to thinner tank walls authorized by Section XII. Accounting for fatigue loading is also intended to provide specific design guidance that will help avoid the potential for stress corrosion cracking in tanks made of quenched and tempered steels. Consolidation of DOT’s Special Design Requirements for MC 331 Tanks In Section XII, the Modal Appendix 1–3.11.1 [Construction Requirements for Cargo Tank Vessels Used to Transport Specific Hazardous Materials]; and 1– 3.11.2 [Equivalent Material Thickness] consolidate special DOT design requirements 13 for certain MC 331 cargo tanks designed for certain specific ladings into a single place. The benefit resulting from consolidating design and construction requirements for each special lading tank vessel into its own subparagraph is that it will prevent the cargo tank designer from overlooking design requirements essential to DOT compliance. 49 CFR § 178.337 distributes these requirements throughout that section according to the particular design feature. Many DOT requirements essential to vessel construction are not found in § 178.337, but in § 173.315, which in turn references other 49 CFR sections. Specifically, the requirements for construction to an equivalent metal thickness criterion are found several places. Modal Appendix 1–3.11.2 converts these specific requirements into a generic form where it can be conveniently located. The consolidation of these requirements in Section XII is viewed as a safety enhancement as it will provide easier understanding of the requirements. Standardized Pressure Relief Devices for Both Portable and Cargo Cryogenic Tankage Both cryogenic portable tanks and cargo tanks are similar in design and § 178.337–2(b); § 178.337–2(c); § 178.337– PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 construction. Their pressure relief devices have the same function in protecting the pressure vessel against over pressure for all conditions of operation. They should be similarly specified, and this has been done in Section XII, with the exception of the pressure relief valve setting and the tag stamping of the burst disc for portable tanks. Uniformity of Piping and Valving Requirements for Cargo and Portable Cryogenic Tankage As has been done for the Pressure Relief Devices, piping, filling and discharge openings together with valve requirements have been standardized for portable and cargo cryogenic transport tanks in Section XII. The standardization of these requirements in Section XII is viewed as a safety enhancement. Continued Service of CTMVs, Portable Tanks, and Ton Tanks: Roles of Inspectors 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. Incorporating Section XII and the NBIC as an alternative for continued service requirements for these ASME stamped bulk packagings may impact the roles and responsibilities of persons who perform tests, inspections, modifications, alterations, and repairs. To ensure that DOT specification CTMVs 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 currently in the HMR for Design Certifying Engineer (DCE), Authorized Inspector (AI), and Registered Inspector (RI) perform continued service functions that are specified in the table below. 8(a)(5)(iii); § 178.337–8(b); § 178.337–8(c); § 178.337–9(a); § 173.24b(b); § 173.315. E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules 79371 TABLE 7—TYPES OF INSPECTORS CURRENTLY IN THE HMR Type of Inspector Qualifications A Design Certifying Engineer (DCE) • Is a person registered with the U.S. DOT 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. • Certifies 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. • Must fulfill the knowledge and ability requirements by meeting any one of the following qualifications: Æ Have an engineering degree and one year of work experience in cargo tank structural or mechanical design; Æ Be currently registered as a professional engineer by appropriate authority of a state of the United States or a province of Canada; or Æ Have at least three years’ experience in performing the duties of a DCE prior to September 1, 1991. • Is 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. • Is not employed by the manufacturer. • Holds 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. • Has 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. • Has knowledge of applicable sections of the ASME Code, Quality Control Programs, and requirements for the maintenance and retention of in-transit and permanent records. • Has received 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 complies with the National Board’s rules for commissioned inspectors. • Is a jurisdiction that 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 • Is an insurance company that 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. • Is a person registered with the Department in accordance with subpart F of part 107 of this chapter who has the knowledge and ability to determine whether a cargo tank conforms to the applicable DOT specification. A Registered Inspector meets the knowledge and ability requirements of this section by meeting any one of the following requirements: • Has an engineering degree and one year of work experience relating to the testing and inspection of cargo tanks; • Has an associate degree in engineering and two years of work experience relating to the testing and inspection of cargo tanks; • Has a high school diploma (or General Equivalency Diploma) and three years of work experience relating to the testing and inspection of cargo tanks; or • Has at least three years’ experience performing the duties of a Registered Inspector prior to September 1, 1991. An Authorized Inspector (AI) .......... An Authorized Inspection Agency (AIA). A Registered Inspector (RI) ............ 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). The different levels of inspectors and their required qualifications are shown in the table below. TABLE 8—TYPES OF INSPECTORS IN SECTION XII AND THE NBIC Qualifications An Authorized Inspector (AI) .......... tkelley on DSK3SPTVN1PROD with PROPOSALS Type of Inspector • Is 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. • Is not employed by the manufacturer. • Holds 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. • Has 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. • Has knowledge of applicable sections of the ASME Code, Quality Control Programs, and requirements for the maintenance and retention of in-transit and permanent records. VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 E:\FR\FM\30DEP1.SGM 30DEP1 79372 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules TABLE 8—TYPES OF INSPECTORS IN SECTION XII AND THE NBIC—Continued Type of Inspector Qualifications A Qualified Inspector (QI) ............... A Certified Individual (CI) ................ • Has received 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 complies with the National Board’s rules for commissioned inspectors. • Is an inspector regularly employed by an ASME Qualified Inspection Organization (QIO) who has been qualified to ASME-developed criteria by a written examination, to perform inspections under the rules of any jurisdiction that has adopted the ASME Code. • May not be in the employ of the manufacturer. • Holds 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. • Has satisfactory expertise, experience, and background for the inspection of boilers and pressure vessels and demonstrate the ability to perform shop and field (on-site) inspections to the satisfaction of the QIA. • Has knowledge of applicable sections of the ASME Code, Quality Control Programs, and requirements for the maintenance and retention of in-transit and permanent records. • Has received 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. • Is 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. • Is neither an AI nor a QI and must be certified and qualified to perform inspections by the CI’s employer. • May be employed by the manufacturer or assembler. • Has the following minimum qualifications: Æ Knowledge of the requirements of Section XII for application of the appropriate Code Symbol stamp; Æ Knowledge of the Manufacturer’s or Assembler’s Quality System Program; and Æ Training commensurate with the scope, complexity, or special nature of the activities to which oversight is to be provided. • Has a record 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 QA1–1, Qualifications for Authorized Inspection. For continued service, under both the current HMR and Section XII, the NBIC authorizes owner/users who meet the requirements of NB–371, ‘‘Accreditation of Owner, User, and Inspection Organizations’’ to perform service inspections, including repairs and alterations, if the owner/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. Currently, under the HMR and as proposed in this NPRM, motor carriers or CTMV owner/ operators may perform annual external visual inspections and leakage tests, with certain limitations (see 49 CFR 180.409). While Section VIII, Division 1 does not distinguish between types of tanks and levels of inspectors, 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 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 either Section VIII, Division 1 or Section XII for Class 2 tanks, which is the designation that the committee set aside originally for rail car tanks and noncryogenic portable tanks. While the specifications for Class 2 tanks are expected to be developed and incorporated into future editions of Section XII and the NBIC, the current editions do not include them. TABLE 9—ASME TRANSPORT TANK CLASSES Type of inspector Class Current specification in HMR Section VIII and the HMR tkelley on DSK3SPTVN1PROD with PROPOSALS Class 1 ................................. Class 2 ................................. Class 3 ................................. 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). To be developed in future editions ............................... DOT 406 (See § 178.346) DOT 407 MAWP ≤ 35 psi (See § 178.347) DOT 412 MAWP ≤ 15 psi (See § 178.348). Repairs and alterations must be performed by organizations holding a valid National Board ‘‘TR’’ certificate of VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 Authorized Inspector ......... Authorized Inspector. N/A ..................................... Authorized Inspector ......... N/A. Certified Individual, Authorized Inspector, or Qualified Inspector. Authorization and in possession of the appropriate National Board Code symbol stamp. Alternatively, PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 Proposed section XII organizations employing Owner/User/ Inspectors and in possession of a valid Owner/User Certificate of Authorization E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules 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. Summary and Supporting Research Initiatives In this NPRM, PHMSA proposes to amend the HMR in response to petitions submitted by industry representatives to incorporate Section XII and the 2013 edition of the NBIC as alternatives to Section VIII, Division 1 and the current HMR requirements in part 178, for the design of cryogenic portable tanks and CTMVs, part 179 for the design of ton 79373 tanks, and part 180 for the continuing qualification and maintenance of CTMVs, cryogenic portable tanks and ton tanks. As mentioned previously, Section XII and the 2013 edition of the NBIC will be optional, and industry could choose to continue to use Section VIII, Division 1 and the current HMR requirements. The table below provides an overview of the options available to design, construct, repair and inspect tanks for use should the proposals in this NPRM be finalized. TABLE 10—SUMMARY OF STANDARDS OPTIONS AS PROPOSED IN THIS NPRM Standard used for: Stamp Build Repair Inspect Specification, Non-Stamped Transport tanks. ASME Section VIII with 49 CFR Parts 173 and 178. ‘‘U’’ Stamp ...................................... ASME Section VIII with 49 CFR Parts 173 and 178. ‘‘T’’ Stamp ...................................... ASME Section XII as authorized by proposed 173.14. 1992 Edition of the NBIC with 49 CFR Part 180 or 2013 Edition of the NBIC without Supplement 6 and 49 CFR Part 180. 1992 Edition of the NBIC with 49 CFR Part 180 or 2013 Edition of the NBIC without Supplement 6 and 49 CFR Part 180. 2013 Edition of the NBIC with Supplement 6. 1992 Edition of the NBIC with 49 CFR Part 180 or 2013 Edition of the NBIC without Supplement 6 and 49 CFR Part 180 1992 Edition of the NBIC with 49 CFR Part 180 or 2013 Edition of the NBIC without Supplement 6 and 49 CFR Part 180 2013 Edition of the NBIC with Supplement 6 In developing Section XII, the SC XII committee on transport tanks, as well as other stakeholders, commissioned studies on materials used in the construction of tanks, components of tanks, and tanks themselves, to aid in developing safe specifications for transport tanks. The table below highlights studies that address issues relevant to this NPRM. This table is not meant to be a definitive list of the body of research available and serves as a supplement to this rulemaking effort. The following table summarize these studies and others that relate to this NPRM, and the results of these studies: TABLE 11—SUMMARY OF SUPPORTING RESEARCH INITIATIVES Study Title/Docket No. Study summary DOT sponsored research project PO—TRS56– 02–P–7004 Dynamic Analysis of DOT 407/ 412 Cargo Tank Motor Vehicles. PHMSA–2010–0019–0010, PHMSA–2010– 0019–0017, PHMSA–2010–0019–0018. tkelley on DSK3SPTVN1PROD with PROPOSALS ASME Standards Technical Report, STP–PT– 032, Buckling of Cylindrical, Thin Wall Trailer Truck Tanks. PHMSA–2010–0019–0013 ................................. VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 Relation to ASME Section XII The study analyzed DOT 407/412 CTMVs Results showed that most severe dynamic subjected to dynamic loads. The loads were stress conditions occur rarely enough that harmonically analyzed to determine critical fatigue may not be a contributing factor and factors to the dynamic design of the CTMVs. that current DOT regulations (Section VIII and the HMR) may be too conservative. It was determined that more realistic allowable stress values for dynamic loads should be used as an alternative to the HMR. The results of this study were used in developing Section XII. This study used a full-scale trailer truck tank The results of this study noted that new speto develop rules specific to the design of cific criteria for fabrication such as straightDOT cylindrical, thin wall tanks. Specifically, ness, out of roundness, weld location, and this study focused on buckling of cylindrical use of actual material properties, incorpressure vessels under axial compression porated in Section XII, improves upon Secand examined bending. These issues are tion VIII, Division 1 and the HMR, and pronormally evaluated using the axial compresvides acceptable design basis for estabsion stress evaluation design methods in lishing buckling design criteria and shell ASME Section VIII, Division 1. However, stiffening details for transport tanks. this study sought to define new methods for determining allowable compressive stresses. PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 E:\FR\FM\30DEP1.SGM 30DEP1 79374 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules TABLE 11—SUMMARY OF SUPPORTING RESEARCH INITIATIVES—Continued Study Title/Docket No. Study summary Relation to ASME Section XII Evaluation of the Puncture Resistance for Stainless Steel and Carbon Steel Tank Heads. PHMSA–2010–0019–0012 ................................. This study conducted a series of puncture resistance tests on various tank heads. The head sections tested fabricated of stainless steel (SST) and carbon steel (CS) with nominal wall thickness of 1⁄4 inch, 3⁄8 inch and 1⁄2 inch. The objective of the puncture resistance tests was to demonstrate that SST heads are more puncture resistant than CS heads. This study conducted a series of puncture resistance tests on various types of ISO tank head sections with and without insulation and jackets. The head sections tested were SST with nominal wall thickness of 1⁄4 inches to 3⁄8 inches. The objectives of the puncture resistance tests were to demonstrate that 3⁄8-inch-thick SST heads are equal to or more puncture resistant than 1⁄4inch-thick SST heads with 41⁄4-inch-thick insulation and a 20-gage aluminum jacket. This report examines vessels designed to Section VIII, Division 1. The main issues affecting the safety of those vessels are ductile rupture and brittle fracture. Tests on vessels with different strain hardening exponents have demonstrated that ductile rupture is highly unlikely with reduced margin of 3.5 on ultimate tensile strength. ASME Pressure Vessel Research Committee instituted a research study in which it reviewed burst tests, failure data, failure modes—particularly fatigue and fracture and related toughness requirements, fabrication practices, improved materials, advances in welding, examination and testing. The study indicated that SST heads had greater puncture resistance compared with CS heads. The results of this study were used in developing Section XII specifically determining types of materials authorized and additional safety requirements for materials authorized in Section XII. Evaluation of the Puncture Resistance for Bare and Insulated Stainless Steel (ISO) Tank Heads. PHMSA–2010–0019–0015 ................................. Evaluation of Design Margins for ASME Code Section VIII, Davison 1. PHMSA–2010–0019–0016 ................................. 3.5 Material Design Factor and other Recent Changes to the ASME Boiler and Pressure Code. PHMSA–2010–0019–0014 ................................. WYKE Laboratories—Test Report ..................... PHMSA–2010–0019–0017 ................................. Report of Cargo Tank Rollover Test on an MC 305 Aluminum Trailer. PHMSA–2010–0019–0019 ................................. A Practical Methods for the Rational Design of Ship Structures; Hughes, Mistree and Zanic; Journal of Ship Research, Vol. 24, No. 2, June 1980, pp. 101–113. tkelley on DSK3SPTVN1PROD with PROPOSALS Discussion of Proposed Amendments and Applicable Comments In the ANPRM that was published on December 23, 2010, titled ‘‘Hazardous Materials: Adoption of ASME Code Section XII and the National Board Inspection Code’’ (Docket No. PHMSA– 2010–0019, (HM–241), 75 FR 80765), we asked a number of questions pertaining to the potential costs, burdens, or safety concerns associated with incorporating Section XII and the 2011 edition of the NBIC for the construction and VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 In this study a Cargo Tank was subjected to Mobility Testing. Specifically, CTMV was driven on public roads, and subjected to dynamic forces in transport. The study collected data under a broad range of transport conditions. In this study, MC305 cargo tanks were rolled over and dragged over a concrete surface. This study was designed to measure the cargo tanks response to such an incident. Studies the use of Rational design in shipbuilding and examines the application of a systematic method for determining the design variables that optimize a specific objective while satisfying the constraints. continued service of cargo tank motor vehicles, cryogenic portable tanks and ton tanks. Specifically, in the ANPRM we asked for comments on the following: • What are the differences between Section XII and the HMR requirements? • What is the potential safety and economic impacts of adopting the new Section XII requirement allowing a 3.5:1 design margin? • What are the safety and economic impacts of adopting the new Section XII PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 The results of this study indicated that 3⁄8inch-thick SST heads are equal to or more puncture resistant than 1⁄4-inch-thick SST heads with 41⁄4-inch-thick insulation and a 20-gage aluminum jacket. Section XII authorizes the use of 3⁄8-inch-thick SST heads; whereas, Section VIII and the HMR does not. This study concludes that a reduction in the present design margins from 4 to about 3.5 at temperatures below the creep range would be justified based on the improvements in the Code rules and excellent past experience with vessels built to the Code rules. The results of the study indicated that the design margin for pressure vessels could be safely reduced from 4.0:1 to 3.5:1. This study observed that most failures were the results of poor notch toughness, service degradation and operating problems. The biggest change that justifies the change in design margin is advancements in materials and more thorough understanding of materials behavior. The results of the study were used to develop design criteria for transport tanks in Section XII that had not been considered in developing Section VIII. The results demonstrated the weaknesses in the tank structure as a result of a roller. These results were used to develop built-in rollover protection in transport tanks in Section XII. Demonstrates that rational design methodology often provides an equivalent or greater level of safety to typically used practical design methods requirements for the testing and fabrication of special materials for construction and repair of MC 331 cargo tanks? • What are the safety and economic impacts of adopting the Section XII requirement for allowable peak secondary stresses for MC 331 cargo tanks? • What are the safety and economic impacts of using minimum allowed thickness for pressure parts instead of E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules nominal thickness and corrosion allowance? • Are there substantial differences between the construction and continued service requirements of the HMR and 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? • For existing cargo tanks designed, constructed and stamped with Section VIII, Division 1 ‘‘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? • Should PHMSA adopt through incorporation by reference 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? • Would incorporation of Section XII and the NBIC for construction and continued service of cargo tanks positively affect transportation safety, and/or reduce industry costs? • 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? • Are 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? • 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? • Are there substantial differences between the construction and continued service requirements of the HMR and Section XII for multi-unit tank car tanks? If so, what are the potential costs, burdens, or safety problems associated with incorporating Section XII and the NBIC for the construction and continued service of these tanks? • 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? • Should PHMSA adopt through incorporation by reference Section XII and the most recent edition of the NBIC for construction and continued service of multi-unit tank car tanks? If so, which existing requirements of the HMR should be replaced with references to these consensus standards? • Would incorporation of Section XII and the latest edition of the NBIC for construction and continued service of multi-unit tank car tanks positively affect transportation safety, and/or reduce industry costs? • Are Section XII and the NBIC rules of construction and continued service of multi-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? • Are there any potential compliance issues related to incorporating by reference Section XII and the newest 79375 edition of the NBIC in the HMR for the construction and continued service of multi-unit tank car tanks? The ANPRM generated comments from 32 stakeholders, many of whom submitted multiple comments–some on the length of the comment period and most on the substance of the ANPRM. The majority of the comments—40 different comments from 21 commenters—were in opposition to incorporating by reference the two sets of standards into the HMR.14 The ANPRM was not specific as to potential future course of action. Specifically, the ANPRM did not explicitly state whether PHMSA was going to propose to replace Section VIII, Division 1 and the HMR with Section XII and the NBIC, or if we were going to propose to allow Section XII and the NBIC to be used as alternatives. In the ANPRM, there were no proposals set forth regarding the method of incorporation into the regulations of Section XII and the NBIC (e.g. outright replacement of Section VIII, Division 1 with Section XII and the NBIC or incorporation of Section XII and the NBIC as an alternative in addition to Section VIII, Division 1). For that reason, it was the assumption of many commenters that Section XII would outright replace Section VIII, Division 1 and the HMR, and these commenters voiced their opposition to Section XII with the understanding that they would not have an option as to what requirements they would be able to use. The comments are accessible by docket number at the following URL: https://www.regulations.gov. A listing of the commenters, including the docket number associated with the comment, is provided below (company or organization abbreviations used throughout the document are also provided): TABLE 12—COMMENTERS tkelley on DSK3SPTVN1PROD with PROPOSALS Commenter Abbreviation Docket No. Alloy Custom Products .................................................................................... Altom Transport ............................................................................................... American Society of Mechanical Engineers .................................................... American Trucking Associations ...................................................................... Asian Tank Container Organization ................................................................. Baltimore Cargo Tank Services, Inc. ............................................................... Bulk Truck & Transport Service, Inc. ............................................................... C & R Fleet Services, Inc. ............................................................................... C & R Fleet Services, Inc. ............................................................................... Commercial Vehicle Safety Alliance ................................................................ Compressed Gas Association ......................................................................... Compressed Gas Association ......................................................................... ............................................................ ............................................................ ASME ................................................. ATA .................................................... ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ CVSA ................................................. CGA ................................................... CGA ................................................... PHMSA–2010–0019–0049 PHMSA–2010–0019–0003 PHMSA–2010–0019–0032 PHMSA–2010–0019–0043 PHMSA–2010–0019–0060 PHMSA–2010–0019–0046 PHMSA–2010–0019–0004 PHMSA–2010–0019–0022 PHMSA–2010–0019–0037 PHMSA–2010–0019–0056 PHMSA–2010–0019–0025 PHMSA–2010–0019–0048 14 The 21 commenters in opposition were: Alloy Custom Products, Altom Transport, ATA, Asian Tank Container Organization, Baltimore Cargo Tank Services, Inc., C & R Fleet Services, Inc, CVSA, VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 DGAC, David Fulbright/WRG, Eurotainer U.S. Inc., International Tank Container Organisation, J & S Transport Co, Inc., James K. Victory, Jerry White, NPGA, NTTC, Silver/CIMS LLC, Steigerwalt PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 Associates Inc., Stolt Nielsen USA Inc., TTMA, and Vulcraft of New York. E:\FR\FM\30DEP1.SGM 30DEP1 79376 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules TABLE 12—COMMENTERS—Continued Commenter Abbreviation Docket No. Container Technology Inc. ............................................................................... Dangerous Goods Advisory Council ................................................................ Dangerous Goods Advisory Council ................................................................ David Fulbright/WRG ....................................................................................... Eurotainer U.S. Inc. ......................................................................................... Gardner Cryogenics ......................................................................................... Heil Trailer International ................................................................................... International Tank Container Organisation ...................................................... J & S Transport Co, Inc. .................................................................................. James K. Victory .............................................................................................. Jerry White ....................................................................................................... John Counts ..................................................................................................... Monte Ward ..................................................................................................... Monte Ward ..................................................................................................... National Board of Boiler and Pressure Vessel Inspectors .............................. National Propane Gas Association .................................................................. National Propane Gas Association .................................................................. National Tank Truck Carriers, Inc. ................................................................... National Tank Truck Carriers, Inc. ................................................................... Nicholas Paulick ............................................................................................... Nicholas Paulick ............................................................................................... Pressure Sciences Incorporated ...................................................................... Silver/CIMS LLC .............................................................................................. Steigerwalt Associates Inc. .............................................................................. Stolt Nielsen USA Inc. ..................................................................................... Truck Trailer Manufacturers Association ......................................................... Truck Trailer Manufacturers Association ......................................................... Vulcraft of New York ........................................................................................ CTI ..................................................... DGAC ................................................. DGAC ................................................. ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ ............................................................ National Board ................................... NPGA ................................................. NPGA ................................................. NTTC .................................................. NTTC .................................................. ............................................................ ............................................................ PSI ..................................................... ............................................................ ............................................................ ............................................................ TTMA ................................................. TTMA ................................................. ............................................................ PHMSA–2010–0019–0059 PHMSA–2010–0019–0050 PHMSA–2010–0019–0061 PHMSA–2010–0019–0023 PHMSA–2010–0019–0054 PHMSA–2010–0019–0057 PHMSA–2010–0019–0036 PHMSA–2010–0019–0055 PHMSA–2010–0019–0034 PHMSA–2010–0019–0033 PHMSA–2010–0019–0029 PHMSA–2010–0019–0007 PHMSA–2010–0019–0040 PHMSA–2010–0019–0041 PHMSA–2010–0019–0051 PHMSA–2010–0019–0028 PHMSA–2010–0019–0053 PHMSA–2010–0019–0002 PHMSA–2010–0019–0058 PHMSA–2010–0019–0039 PHMSA–2010–0019–0052 PHMSA–2010–0019–0047 PHMSA–2010–0019–0044 PHMSA–2010–0019–0042 PHMSA–2010–0019–0062 PHMSA–2010–0019–0009 PHMSA–2010–0019–0045 PHMSA–2010–0019–0006 Comments in Favor of Adopting Section XII and NBIC Comments received to the HM–241 ANPRM in favor of incorporating Section XII and the latest NBIC can be grouped generally into three categories: (1) Use of the standards would be economically beneficial; (2) adoption of Section XII and the 2013 edition of the NBIC will enhance safety; and (3) the standards are internationally compatible. The categories in support of adopting the standards, comments that reflect the nature of the support, and our responses to the comments are as follows. tkelley on DSK3SPTVN1PROD with PROPOSALS The Use of Section XII and the 2013 Edition of the NBIC Would Be Economically Beneficial Comments received from Gardner Cryogenics and Pressure Sciences Incorporated (PSI) indicated that adoption of the two standards would be economically beneficial. Gardener Cryogenics comment pertained to benefits to industry and provided a list of examples of improvements provided in Section XII, including: Adoption of reference steel thickness and equivalent thickness gives design engineers the freedom to utilize the material properties like modulus of elasticity, tensile strength and poisson’s ratio to optimize the design for tank wall/vacuum jacket wall penetration. We agree with Gardner Cryogenics that adopting Section XII will provide VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 flexibility in design and material construction of tanks that would enable U.S. manufacturers to compete internationally without compromising safety. PSI also spoke to the benefits to manufacturers under Section XII, indicating that the standards, if adopted, would allow manufacturers the flexibility to purchase the raw material that is least expensive at the time. This flexibility may reduce the cost to the manufacturer, who can pass those reduced costs on to the buyer of the tank. We agree with PSI and believe that manufacturers would choose to build Section XII tanks only if it is economically beneficial. Adoption of the Section XII Will Increase Safety Both Thompson Tank, Inc. and Gardener Cryogenics indicated that tanks designed to Section XII would increase the safety of portable and cargo tanks. Thompson Tank, Inc. states that: ASME is an international non-profit organization of the best and brightest professional engineers who volunteer their time to protect public safely through good engineering and design practices. DOT presently refers to ASME Section VIII and requires ASME certification of the most dangerous and complicated DOT specification cargo tanks. ASME Section XII will specifically help address the additional loads and stresses encountered when traveling over the highway. PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 PHMSA agrees with Thompson Tank and Gardener Cryogenics that portable and cargo tanks designed to Section XII provide at least an equivalent level of safety to portable tanks and cargo tanks designed to Section VIII. Cargo tanks that are partially loaded with liquid cargo may become unstable during sudden starts or stops, on rough terrain, or when the vehicle is turning. The liquid will slosh and make the tank more likely to roll over. Further, cargo tanks that are frequently loaded and unloaded—called cyclic loading—such as cargo tanks used to transport hazardous materials, are more likely to become ‘‘fatigued 15’’ and crack. The design incorporated in Section XII, slightly reduces stiffness and increases elastic deflection with thinner tank walls. Section XII also provides specific design guidance to help mitigate the potential for stress corrosion cracking in tanks made of quenched and tempered steels. Additionally, in Section XII, design stress criteria is the same for different cargo tank specifications, provided the tanks are to subjected to identical loads. This consistent criteria potentially reduces the added cost and weight of 15 Fatigue is the progressive and localized structural damage that occurs when a material is subjected to cyclic loading. (Kim, W.H; Laird, C. (1978). Crack Nucleation and State I Propagation in High Strain Fatigue-II Mechanism. Acta Metallurgica. p. 789–799.) E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules certain additional accident protection devices. As a result, it allows for use of thinner materials and enables tanks to have greater capacities than those built to the Section VIII, Division 1 standards. As such, this could result in fewer tanks carrying hazardous materials on U.S. highways, which should translate to fewer hazardous materials incidents. Further, the research sponsored by the U.S. DOT and ASME, that is summarized in Section V and Table 11 of Section VII of this NPRM indicates that tanks built according to Section XII are as safe as tanks authorized currently. The Standards Are Compatible Internationally PSI indicated that tanks designed to Section XII would increase harmonization with international standards. They state: Section XII is written using terminology compatible with international standards such as UN standards and International Maritime Dangerous Goods Code (IMDG). Its intent is to be useable internationally; and several foreign manufacturers already possess the Tsymbol stamp certifying their capability to manufacture vessels using the new code. We agree with PSI that Section XII and the NBIC may be used internationally and are consistent with other international standards, including UN-based standards and regulations. Several foreign manufacturers already possess the T-symbol stamp certifying their capability to manufacture vessels using the new code. Comments in Opposition to Adopting Section XII and NBIC tkelley on DSK3SPTVN1PROD with PROPOSALS Comments in opposition to adopting the standards ranged in subject matter and can be grouped into five categories: (1) The costs are too high; costs include the cost of purchasing the standards, and training inspectors and enforcement personnel; (2) it would be difficult to comply with the standards; (3) it would be difficult to enforce the standards; (4) adopting the standards would not be in the interest of harmonization; and (5) adoption of the standards would be unsafe. The categories in opposition to adopting the standards, comments that reflect the nature of the support, and our responses to the comments are as follows. The Cost of Purchasing Section XII and the NBIC Is Too High Sixteen commenters 16 expressed concern with the costs of purchasing 16 Altom Transport, ATA, Asian Tank Container Organization, CVSA, DGAC, David Fulbright/WRG, International Tank Container Organisation, James K. Victory, Jerry White, NPGA, NTTC, Silver/CIMS VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 Section XII and the NBIC. Altom Transport indicated that they have 500 trailers maintained at 12 sites. They stated that ‘‘We would not be able to afford to buy the manuals required to get maintenance and repair information.’’ International Tank Container Organisation stated that ‘‘the cost of ASME and NBIC codes is prohibitive in the international community as in certain locations that handle UN and IMO portable tanks, the combined cost of the two codes would exceed an individual’s annual earnings.’’ DGAC stated: We believe the cost of these documents, would limit their availability to those who are subject to and use the regulations, including tank manufacturers, shippers, and carriers, as well as, those in the enforcement community. While the requirements are now readily available in 49 CFR, which can be obtained at no cost electronically, adopting the requirements by reference would mean that anyone wishing to comply with the regulations would be required to purchase publications (and updates) that would cost in the range of $650. NPGA’s echoes other commenters on this subject. They state: NPGA believes that purchasing the ANPRM’s referenced codes creates a hardship and financial barrier on small businesses and an impediment to the review of PHMSA’s proposed regulations. Further, the initial cost of approximately $1.8 million associated with purchasing the ANPRM’s referenced codes could actually double before a final rule is promulgated as these codes are in constant change by the very nature of the rules and regulations which govern their revision cycles. 79377 represents approximately 1875 individuals who need to obtain NBIC certification. Testing costs, the frequency of testing, or an estimate of the cost to train employees on non-commodity specific transport maintenance is not provided. Given these uncertainties, NPGA estimates an initial cost to our members based solely on a test cost of $200 per R.I. would be in excess of $375,000. Silver CIMS LLC commented and C & R Fleet Services, Inc., on the cost of training to comply with the new standards. Silver CIMS LLC states: Anyone that’s already developed training and quality plans would redundantly be forced to prescribe to NBIC’s training and certification scheme’s (at great cost due to the redundant training, training fees charged and loss of earnings during the non-revenue generating man hours needed to complete the redundant training). As a small business, this would be an unnecessary financial burden. And C & R Fleet Services, Inc., states: The purpose of the HMRs is to enhance the safe transportation of hazardous materials. Motor carrier compliance with the HMRs is necessary to protect the public. To ensure this compliance, motor carriers must be aware of the requirements set forth in the HMRs. Requiring motor carriers to purchase Industry Standards to ensure compliance is a serious safety breach, as some carriers may not be able to purchase copies of these regulations for each driver, maintenance professional, and operations staff. Over ninety-six percent of the trucking industry qualifies as a small business. As stated previously, in this NPRM we are not proposing to require motor carriers to use or purchase tanks built to Section XII, so an owner or user of tanks As PHMSA is not proposing to require would only choose to purchase or use manufacturers to use Section XII and the a tank built to Section XII if it makes business sense to do so. 2013 edition of the NBIC, and to do so The cost of enforcing Section XII and is completely voluntary, PHMSA is not the NBIC was a concern to also ATA, imposing any additional costs on manufacturers. A manufacturer will not John Counts and TTMA. ATA states: use Section XII to build a tank unless it PHMSA is dependent on literally hundreds of state troopers to enforce the HMRs during believes it is net beneficial to do so. roadside inspections. How many states have Those who choose to use Section XII the extra funds in their budget to purchase and the 2013 edition of the NBIC will the copyrighted standards for each of their incur some cost and realize some inspectors? If the cargo tank standards are benefits from the use of the new copyrighted and not made available to these standard. enforcement officials, how will they be Cost of Training and Inspecting Tanks Too High upheld? The inability to enforce aspects of the HMRs could create a serious safety risk. David Fulbright/WRG, NPGA, and Steigerwalt Associates Inc., commented on the costs incurred for training and inspections. NPGA stated: ATA is correct in that PHMSA regulations are enforced by hundreds of state troopers throughout the country. We understand that the cost of purchasing the standards for each inspector would be prohibitive for many state governments. It is our understanding that during roadside inspections, state officials are most often only concerned with identifying that the ASME mark is intended for the packaging on which it is stamped. This NPGA can estimate initial costs to our industry as follows. If approximately 2800 members of NPGA are retail marketers and only two-thirds of these marketers employ their own Registered Inspector, this LLC, Steigerwalt Associates, Inc., Stolt Nielsen USA, Inc., TTMA, Vulcraft of New York. PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\30DEP1.SGM 30DEP1 79378 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules would not require state governments to purchase copies of Section XII for every state trooper. Rather, the most in-depth inspection performed on a tank is handled by an independent third-party inspector, typically a National Board Commission Inspector from an insurance company. This would also apply to the repair of the ASME packaging using the NBIC, which also requires a marking. Furthermore, as engineers at PHMSA were instrumental in developing Section XII and the 2013 edition of the NBIC, they understand them and are available to help interpret the standards. As with other highly technical or scientific standards that we incorporate in the HMR, PHMSA’s Hazardous Materials Information Center staff will have access to the engineers who helped develop the standards. Furthermore, ASME issues written replies to inquiries concerning interpretation of technical aspects of the Code. PHMSA acknowledges the purchase of copies of Section XII may be cost prohibitive to certain entities. Therefore, PHMSA seeks comets on whether state and local governments will need to purchase the copies of Section XII for all applicable personnel or if interpretations issued by ASME or PHMSA will be sufficient. tkelley on DSK3SPTVN1PROD with PROPOSALS Incorporating Section XII and the Latest NBIC Is Contrary to International Harmonization The commenters who voiced their opposition to incorporating the standards for reasons pertaining to international harmonization, supply, use, or represent users or suppliers of cryogenic portable tanks. The commenters indicated that the vast majority of portable tanks are built and inspected in accordance with the IMDG, and the industry believes that switching to Section XII and the latest NBIC may impede international trade. Asian Tank Container Organization stated: Adopting ASME XII and/or NBIC for in service or Continued Use Inspection would be counter to the efforts made internationally over the past 12 years by representatives of the various countries Competent Authorities. The UN Model Regulations for the Transport of Dangerous Goods is the international consensus standard for UN Portable tanks. This document now forms the basis for UN Portable tank regulations in IMDG, RID, ADR and 49 CFR parts 100·180, as applicable. The comments provided by Eurotainer, a company that leases portable tanks to manufacturers for import and export bulk shipments of liquefied and cryogenic gases, characterize the comments provided by VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 other portable tank stakeholders. Eurotainer ‘‘would like to see a more harmonized adoption of global regulatory requirements for the design, construction and certification of UN and IM Portable tanks . . .’’ They state: As Section XII is being proposed to apply to the Cryogenic Portable tank segment (IM 7 & UN T 75), Eurotainer sees this action as segregating an equipment type and applying specialized rules that hinder the equipment in international trade. Current construction of the UN T 75 tanks in the U.S. is governed by the 49 CFR sections which include the requirement of ASME Section VIII Division I and as such section is applied currently we feel SECTION XII would be another layer of regulation that is adding no additional margin of safety but would add another layer of regulatory burden to the global community. The International Tank Container Organization states: We consider that any deviation away from the aforementioned International consensus standard would be a step backwards and a move away from the long desired goal of International Harmonization. Adopting ASME XII and/or NBIC for in-service or Continued Use Inspection would, we believe, be counter to the efforts made internationally over the past 12 years. The international consensus standards for UN Portable tanks is the aforementioned UN Model Regulations, which provides the basis for UN Portable tank requirements in set down RID, ADR, IMDG and 49 CFR parts 100–180, as applicable and not ASME XII or NBIC. As with Section VIII, Division 1, the 1992 edition of the NBIC and the HMR, which are the current requirements for design and construction of transport tanks, Section XII and the 2013 edition of the NBIC are compatible with international recommendations and standards. PHMSA fully supports the goal of international harmonization through its work with stakeholders at the UN and IMDG. PHMSA also incorporates both of these international standards by reference within the HMR. Currently there is no universally agreed upon pressure vessel code that is recognized by the committee of experts represented at the UN; however, the UN Model Regulations defer to Competent Authorities to determine what pressure vessel code is to be used for the design and construction requirements. The United States has recognized the ASME Code (Section VIII, Division 1) as the pressure vessel code for design and construction through its incorporation by reference in the HMR since inception of the UN Model Regulations. As stated earlier in this NPRM, Section XII is being proposed as an alternative to existing requirements. PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 Eurotainer asked if a foreign approval agency 17 that tests a non-U-stamped IM or UN portable tank would be required to carry an NBIC registration and wondered, if so, whether the DOT or NBIC would be able to police those agencies. 49 CFR part 107, authorizes certification agencies to witness testing and examination of portable tanks on behalf of the DOT. They further questioned whether the owner or user of non-U-stamped portable tanks would be responsible for maintaining the NBIC registration of inspectors to meet the requirements of the NBIC code in foreign countries on tanks that may be imported into or exported out of the United States. The answer is no. As is currently required in the HMR, the Designated Approval Agency (DAA) (see 49 CFR part 107) would continue to authorize repairs and witness inspections (see 49 CFR part 180). If it needs to be repaired, the facility doing the repair would need authorization from the DAA for the repair (see 49 CFR 180.605(j)), with the appropriate Authorized Inspector verifying the repair is done in accordance with the NBIC, and the DAA witnesses the final hydrostatic or pneumatic test (see 49 CFR 180.605(h)(3)), in accordance with criteria set forth in the NBIC. For the ‘‘T’’ stamped tanks, this process is similar to that in the HMR, and is specified in the 2013 edition of the NBIC. Eurotainer asked if owners and operators of the equipment would be allowed to perform their own inspections and testing per the CFR 49 § 180.605 with a staff member that is a registered NBIC inspector. If so, Eurotainer feels that ‘‘the NBIC adoption will lower the safety margin that is now in place using uninterested third parties instead of a staff member to the company owning or operating the equipment.’’ PHMSA is aware that there is always the potential that a person—either a third-party or an employee—may not comply with a requirement stipulated in a regulation, either set forth directly in the HMR or incorporated by reference in the HMR; however, a person who has function-specific training in inspecting tanks, regardless of their employer, should be able to perform the task to ensure that the tank is safe. PHMSA conducts regulatory enforcement and issues civil penalties to entities that fail 17 A foreign approval agency is an entity outside of the U.S. that PHMSA has granted authority to perform a certain function required under the HMR. In this case, a foreign approval agency would test and certify that certain transport tanks meet the NBIC (see 49 CFR 107.402). E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules to perform inspections as required by the HMR. Adopting the Standards Would Be Unsafe Five commenters 18 indicated that adopting the standards would be unsafe. Asian Tank Container Organization states: The enforcement authorities and Port Authorities in most foreign countries ONLY recognize IACS [International Association of Classification Societies, Ltd.] member Approval Agencies due to their long standing involvement in the IMDG code. Speaking from recent Industry experience, tanks inspected by non-IACS members would be stopped in transit and dangerous goods would need to be trans-loaded to an approved portable tank. The trans-load costs and increased risks would make it impractical to ship product worldwide and this would prove a barrier to International trade which may harm both the USA and third party economies. Similarly, the International Tank Container Organisation states: We anticipate that UN Portable tanks inspected by other non-IACS members would be stopped in transit and dangerous goods would need to be trans-loaded (as has been the case) to an approved portable tank (increasing both cost and risk, exponentially, as most incidents happen during load/unload operations). tkelley on DSK3SPTVN1PROD with PROPOSALS PHMSA does not intend to change the established process of using IACS preferred member Approval Agencies 19 with regard to portable tanks, nor the HMR process of authorization for foreign approval agencies (see 49 CFR 107.402). As stated above, under this NPRM the inspection of a cryogenic portable tank, whether ASME ‘‘U’’ or ‘‘T’’ marked, would follow current HMR requirements in that the manufacture or repair of the pressure vessel would be subject to an Authorized Inspector in addition to the involvement of an Approval Agency. PHMSA, by proposing to incorporate Section XII and the 2013 edition of the NBIC as alternatives to the current regulatory system is not lessening safety, or creating barriers to international trade that would harm U.S. or third-party economies. On the contrary, PHMSA believes that the proposed rulemaking will help the U.S. economy by allowing the manufacture 18 Asian Tank Container Organization, C & R Fleet Services, Inc, International Tank Container Organisation, Steigerwalt Associates Inc., and Stolt Nielsen USA Inc. 19 IACS is a membership organization that endorses member foreign approval tank inspection agencies as ‘‘preferred approval agencies.’’ Foreign enforcement and port authorities recognize these inspection agencies over non- IACS preferred inspection agencies according to IACS. VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 and repair of an internationally competitive product. Furthermore, the ASME standards have been deemed equivalent by PHMSA technical staff and have been proven to provide, through special permits, an equivalent level of safety to that of tanks constructed and designed according to the specifications currently provided in the HMR. For example, special permits SP–05749; SP–10481; and SP–12630, SP–14710, SP–14467, 14437, providing similar flexibility in materials of construction as provided by Section XII, allow reduced shell thickness and alternatives to the materials of construction specified in the HMR for portable tanks and cargo tanks. These permits have been in use for decades with over 13,000 shipments and no reported incidents. Voluntary Consensus Standards Are Inherently Inconsistent With the Administrative Procedures Act Nine additional commenters generally oppose the incorporation of voluntary consensus standards.20 NPGA opposes ‘‘DOT reliance on a third (3rd) party to write regulations that have such a profound impact on our industry.’’ This sentiment is representative of the many commenters opposed to incorporation of the standards because they are developed by voluntary consensus organizations. The commenters are concerned that they would no longer have a voice in changes to the regulations. They also are concerned that the changes made would no longer be transparent. Silver/CIMS LLC states: The UN and IMO Portable tank Industry have had NO input in the development of ASME or NBIC proposed rules. USDOT should NOT adopt ASME Chapter XII or NBIC for any other purpose as the publications are NOT International Consensus Standards for UN Portable tank construction or use. If USDOT were to replace 49 CFR 100–180 with ASME and NBIC, the UN Portable tank Industry stakeholders would be hamstrung in their abilities to influence future rules and regulations. While we understand the concerns regarding incorporating voluntary consensus standards, PHMSA and many other Federal agencies often incorporate by reference standards developed by industry experts. In fact, the National Technology Transfer and Advancement Act of 1995, Public Law 104–113, requires agencies to use technical 20 Baltimore Cargo Tank Services, Inc., Dangerous Goods Advisory Council, J & S Transport Company, Inc., Jerry White, National Propane Gas Association, National Tank Truck Carriers, Inc., Silver CIMS, LLC, Tank Truck Manufacturers Association, Vulcraft of New York. PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 79379 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 will be issued every two years. 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). We intend to continue to review these standards, and either incorporate them in their entirety, incorporate portions of these standards, or not incorporate them, depending on the outcome of our review. Furthermore, we intend to be active participants in the development of future editions of Section XII and the NBIC. Alloy Custom Products, NPGA and NTTC expressed concern that interpretations of the standards would not be readily available through PHMSA. As stated earlier, engineers at PHMSA were instrumental in the development of the standards, they understand them, and are available to help interpret them. As with other highly technical or scientific standards that we incorporate in the HMR, PHMSA’s Hazardous Materials Information Center staff will have access to the engineers who helped develop the standards. PHMSA seeks comment on the availability of interpretations of Section XII and the NBIC, specifically, if E:\FR\FM\30DEP1.SGM 30DEP1 79380 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules access to interpretations through ASME and PHMSA would be sufficient. Finally, as mentioned above the meetings of both ASME and the NBIC 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. The NBIC subcommittees consider correspondence from the general public in the form of requests for interpretation, revision of existing standards, and requests to develop new standards. The standards-writing subcommittees, subgroups, and task groups are open to participation by representatives of groups that are materially affected by the code. Each year the NBIC Committee updates the NBIC and presents the updates on the National Board’s Web site for public review in April–May and August– September. were published in 2013. They are up-todate and correct typographical errors, and clarify and simplify the previous editions. As with most in-depth, detailed publications, later editions of these standards include updates and corrections. Miscellaneous Comments In addition to the comments in support and in opposition to the ANPRM some comments were neither in support or opposed and offered other insights and suggestions. These comments are categorized and discussed further below. Four commenters suggested that if we do incorporate Section XII and the NBIC, we should only do so as an alternative, not a replacement to Section VIII, Division 1 and the HMR.21 TTMA explains that: Separate Section XII from the NBIC CTI and Gardner stated that PHMSA should separate into two separate rulemakings the incorporation of the NBIC and that of Section XII. Gardner states that: Our reservations on NBIC are based on the difficulties in implementing two new items simultaneously. We would recommend that Section XII be adopted as soon as possible with the existing DOT Registered Engineers and Inspectors while giving the interested parties extended time to familiarize, discuss and comment on NBIC for eventual adoption in two to three years. tkelley on DSK3SPTVN1PROD with PROPOSALS Since Section XII was developed to be used in conjunction with the NBIC, and that there would be no provision for continued maintenance or inspections of tanks built to Section XII in the HMR if the latest NBIC is not incorporated at the same time, we cannot incorporate them at separate times. Standards Are Not Accurate Alloy Custom Products voiced concern that ‘‘the rules for ASME Sec XII and NBIC should not be adopted as presently written and they should be sent back to the respective organizations for correction and modification.’’ There were no specific errors cited; however, the latest editions of both standards VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 Replacing Standards Would Create a Monopoly James K. Victory and NTTC indicated that incorporating the standards would create a monopoly. Victory stated that ‘‘the only profiteers from this being ASME and the National Board of Pressure Vessel Inspectors.’’ PHMSA thanks James K. Victory and NTTC for their comments. We will take this view into consideration. However, as mentioned above, we are proposing to adopt Section XII and the 2013 edition of the NBIC as alternatives to Section VIII, Division 1 and the HMR, stakeholders will be provided more options. Adopt Standards As Alternative This approach will give the regulated community the option of employing the effective existing regulations, or these other publications. We anticipate the vast majority of industry stakeholders will choose the existing HMR for their code compliance basis. We agree, and in this NPRM, we are proposing to take this suggested approach, and we believe this will diffuse much of the opposition to the new codes and allow manufacturers greater flexibility. Proposed Amendments In this NPRM, PHMSA is proposing to incorporate Section XII, with limited exceptions, as an alternative to existing standards for the following tanks: DOT Specification 331, 338, 406, 407, and 412 cargo tanks, cryogenic portable tanks, and ton tanks. Section VIII, Division 1 applies to construction of new tanks only, and requires that they are marked with a ‘‘U’’ stamp to indicate that they constructed and certified in accordance with that section. Section XII applies to both new construction and continued service, and tanks constructed under this standard will be marked with a ‘‘T.’’ Tanks that are repaired under Section XII would be 21 Heil, International Tank Container Organisation, Silver/CIMS LLC, and Truck Trailer Manufacturers Association. PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 marked with the ‘‘TR’’ stamp. Further, PHMSA is proposing to adopt the 2013 edition of the NBIC for alterations, repairs and inspections performed on all ASME constructed tanks used for the transportation of hazardous materials as an alternative to the 1992 edition that is currently incorporated by reference. The 2013 NBIC may be used for tanks constructed to the specifications set forth in Section VIII, Division 1. While the use of the 2013 edition of the NBIC would be optional under this proposed rulemaking, PHMSA believes that most manufacturers building to Section VIII, Division 1 would choose to use the 2013 edition of the NBIC as it is more current. Under this proposed rule, the 2013 edition of the NBIC must be used for tanks constructed to the specification set forth in Section XII. The research and development projects summarized in Section V and Table 11 of Section VII of this NPRM support the proposed codes and standards to be adopted in this rulemaking. These research and development projects are available in the public docket for this rulemaking. From the results of the studies and its own analysis, PHMSA has concluded that the proposed standards, as described in this NPRM, provide an equivalent level of safety to the current standards. Furthermore, by providing the 2013 edition of the NBIC and Section XII as options, industry may choose modern materials to fabricate tanks, enabling the use of different, equally safe, materials predicated on market value.22 The assortment of materials described in Section XII include different formulations of carbon steel and alloy/ stainless steel, such as ChromiumNickel Stainless Steel, ChromiumMolybdenum-Vanadium alloy steel, and titanium alloy. Section XII also includes specifications for steel fabrication and treatment, such as tempering, quenching, and forging (See Section XII Part TM). This variety of approved materials will enable U.S. manufacturers to better compete internationally. It will allow for greater capacity per tank, and reduce the number of tanks on highways in certain circumstances. This reduction of motor vehicles hauling hazardous materials on the highways would reduce the potential for hazardous material 22 PHMSA has authorized through special permit some of these new materials authorized in ASME Section XII specifically Heat Resting Chromium and Chromium-Nickel Stainless Steel Plate, Sheet and Strip for Pressure Vessels (DOT SP–14467) and Titanium and Titanium Alloy Strip, Sheet and Plate (DOT SP–14710) see https://phmsa.dot.gov/hazmat/ permits-approvals/special-permits. E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules incidents, and consequently, improve safety. Section By Section Review The following is a section-by-section review of the amendments proposed in this rulemaking. Part 107, Subpart F This subpart establishes a registration procedure for persons who are engaged in the manufacture, assembly, inspection and testing, certification, or repair of a cargo tank or a cargo tank motor vehicle manufactured in accordance with a DOT specification under subchapter C of this chapter or under terms of a special permit issued under this part. In this NPRM, we are not proposing to revise this subpart, but we are referring to it in section 173.14, where we propose to add the terminology ‘‘inspectors or their employer must be registered with DOT.’’ Part 171 Section 171.7 This section lists material incorporated by reference into the HMR. This NPRM proposes to amend § 171.7, Matter incorporated by reference, to list the 2013 edition of ASME Boiler and Pressure Vessel Code, Section XII and the 2013 edition of the National Board of Boiler and Pressure Vessel Inspectors’ National Board Inspection Code (NBIC). Specifically, § 171.7(g)(1) will be revised to include ASME Boiler and Pressure Vessel Code, Section XII in addition to the currently reference Section VIII, Division 1. The section references in this paragraph will remain the same. In addition, § 171.7(x)(1) and (2) will be revised to include the 2013 edition of NBIC. The section references in this paragraph will remain the same. tkelley on DSK3SPTVN1PROD with PROPOSALS Part 173 Section 173.14 In this NPRM we are proposing to establish new Section 173.14 for authorization and conditions for the use of Section XII. • This NPRM proposes to revise part 173 by adding § 173.14 to set forth the authorization for the use of Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code. Further, in proposed § 173.14 we are setting forth conditions for the use of Section XII, specifically with respect to continued service of transport tanks, where Section XII conflicts with the NBIC. Conditions for all tanks will be specified in paragraph (a)(1) and include: The 2013 edition of the National Board Inspection Code (NBIC) must be used for the design, VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 construction, and certification qualification and maintenance of cargo tank motor vehicles, cryogenic portable tanks and multi-unit tank car tanks (ton tanks) • ASME Section XII includes use of ASME Sections II Materials, Section V Nondestructive Examination, Section VIII, Division 1 for Parts only, Section VIII, Division 2 for fatigue analysis only, Section IX Welding and Brazing, and the NBIC Parts 1, 2 and 3, including Supplement 6 of Parts 2 and 3; • Nameplate character markings must be a minimum 4 mm (5/32″), markings directly on the tank must be a minimum 8 mm (5/16″); • Periodic test information must not be allowed on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6; • Inspection personnel must have qualifications as required by ASME Section XII, Article TG–4, and be qualified as evident by having a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable; • Inspectors or their employer must be registered with DOT. • Repairs must be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. Conditions and requirements for cargo tanks will be specified in paragraph (a)(2) and must conform to all applicable requirements of part 173; and must meet ASME Section XII Modal Appendix 1, the appropriate Article for the category of cargo tank, all Mandatory Appendices and Non Mandatory Appendices A thru E and G thru H, except as follows: • Repairs must be performed by a DOT-registered facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. • For Category 338 Cargo Tanks, ASME Section XII, Modal Appendix 1, Article 4, paragraph 1–4.4(g)(6) does not apply. A minimum jacketed thickness of 2.4 mm (0.0946 in) 12 gauge in the reference steel is permitted (IBR see § 171.7). Conditions and requirements for cryogenic portable tanks will be set forth in paragraph (a)(3) and must conform to all applicable requirements of this Part; and must meet ASME Section XII Modal Appendix 3, Article 1, all Mandatory Appendices and Non Mandatory Appendices A thru E and G thru H, except as follows: • External and internal visual inspection in accordance with NBIC Part 2 Supplement 6 are required in PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 79381 addition to ASME Section XII, Modal Appendix 3, Article 1, paragraph 3– 1.10(b), and Article 1, 3–1.10(b)(5) (IBR see § 171.7); • ASME Section XII, Modal Appendix 3, Article 1, paragraph 3– 1.10(b)(6) does not apply. Periodic test information must not be allowed on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable. (IBR see § 171.7); • ASME Section XII, Modal Appendix 3, Article 1, paragraph 3– 1.10(d) must require inspection personnel to have qualifications as required by ASME Section XII, Article TG–4, as evident by having a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable. (IBR see § 171.7); and • ASME Section XII, Modal Appendix 3, Article 1, paragraph 3–1.10 must require Repairs to be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. Records must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable.(IBR see § 171.7). Conditions and requirements for ton tanks will be set forth in paragraph (a)(4). Ton tanks must conform to all applicable requirements of part 173 and must meet Modal Appendix 4, Article 1, all Mandatory Appendices and Non Mandatory Appendices A thru E and G thru H except as follows: • ASME Section XII, Modal Appendix 4, Article 1, paragraph 3–1.10 Manufacturer-certified fusible plugs, tested and qualified under the fuse plug manufacturers’ written Quality Control system are required. (IBR see § 171.7); • ASME Section XII, Modal Appendix 4, Article 1, paragraph 4–8 must allow non-ASME marked fusible plugs.; • ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(a) must require external and internal visual inspection in accordance with NBIC Part 2 Supplement 6, S6.15. (IBR see § 171.7); • ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(a)) does not apply. Periodic test information must not be allowed on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable.(IBR see § 171.7); • ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(e) must require records to be in accordance with the NBIC Part 2 or Part 3, Supplement 6 (IBR see § 171.7); E:\FR\FM\30DEP1.SGM 30DEP1 79382 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules • Inspection personnel must have qualifications as required by ASME Section XII, Article TG–4, as evident by holding a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable; • A ton tank that fails a prescribed test or inspection must be repaired as specified in the 2013 NBIC or removed from service; • Repairs must be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. Part 178 Section 178.200 In this NPRM we are proposing to establish a new § 178.200 for the authorization for the use of Section XII and the NBIC for cryogenic portable tanks. Section 178.300 In this NPRM, we are proposing to establish a new § 178.300 for the authorization for the use of Section XII and the NBIC for cargo tank motor vehicles. Part 179 Section 179.300 In this NPRM, we are proposing to revise § 179.300 to establish paragraphs (a) and (b). Paragraph (a) would continue to require that multi-unit tank car tanks must meet the requirements set forth in the HMR and paragraph (b) would provide a new authorization for multi-unit tank car tanks to be designed, constructed and certified in accordance with Section XII with the conditions and limitations set forth in § 173.14. Part 180 tkelley on DSK3SPTVN1PROD with PROPOSALS Section 180.402 In this NPRM, we are proposing to add a new § 180.402 for authorization for the use of the 2013 Edition of the NBIC with Section VIII, Division 1 for the qualification and maintenance of cargo tanks. Section 180.502 In this NPRM, we are proposing to add a new § 180.502 for authorization for the use of the 2013 Edition of the NBIC with Section VIII, Division 1 for the qualification and maintenance of tank cars. Section 180.602 In this NPRM, we are proposing to add a new § 180.602 for authorization for the use of the 2013 Edition of the NBIC with Section VIII, Division 1 for VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 the qualification and maintenance of cryogenic portable tanks. IX. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This NPRM is published under the authority of the Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 5103(b) authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This NPRM provides an alternative to the current process for the design, fabrication, maintenance and continued service of CTMVs, cryogenic portable tanks and ton tanks, without compromising safety. The Administrative Procedure Act (APA) requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule (5 U.S.C. 553(e)). 49 CFR 106.95, provides the process and procedures for persons to petition PHMSA to add, amend, or delete a regulation. In this NPRM, PHMSA is addressing this statutory requirement by considering petitions for rulemaking from ASME, the National Board, and PVMA. B. Executive Order 13610, Executive Order 13563, Executive Order 12866, and DOT Regulatory Policies and Procedures This NPRM is not considered a significant regulatory action under section 3(f) Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). The proposed rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. Executive Order 13563, issued January 18, 2011, notes that our nation’s current regulatory system must not only protect public health, welfare, safety, and our environment but also promote economic growth, innovation, competitiveness, and job creation.23 Further, this executive order urges government agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of 23 See https://www.whitehouse.gov/the-pressoffice/2011/01/18/improving-regulation-andregulatory-review-executive-order. PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 choice for the public. In addition, federal agencies are asked to periodically review existing significant regulations, retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and modify, streamline, expand, or repeal regulatory requirements in accordance with what has been learned. Executive Order 13610, issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies.24 By building off of each other, these three Executive Orders require agencies to regulate in the ‘‘most cost-effective manner,’’ to make a ‘‘reasoned determination that the benefits of the intended regulation justify its costs,’’ and to develop regulations that ‘‘impose the least burden on society.’’ PHMSA believes that if Section XII and the 2013 edition of the NBIC are incorporated as alternatives to Section VIII, Division 1 and the HMR, tank manufacturers would be given more flexibility in their choice of material and design, allowing carriers of bulk liquid hazardous materials to purchase lighterweight, higher-capacity tanks capable of transporting more material per shipment. Tanks built to the design and construction requirements in Section XII have been tested by ASME to ensure that they withstand conditions and stresses unique to transportation, such as rollovers, bottom damage, or piping damage. The flexibility in selection of ASME standards will facilitate international competitiveness for the transport of hazardous materials and eliminate barriers to U.S. manufacturers transporting goods internationally that are created by the rigid material construction requirements in Section VIII, Division 1 and the HMR. Further, the ASME standards have been deemed equivalent by PHMSA technical staff and have been proven to provide, through special permits, an equivalent level of safety to that of tanks constructed and designed according to the specifications currently provided in the HMR. As PHMSA is not proposing to require manufacturers to use Section XII and the 2013 edition of the NBIC, and to do so is completely voluntary, PHMSA is not imposing any additional costs. A manufacturer will not use Section XII to build a tank unless it believes it is net beneficial to do so. Since Section XII 24 See https://www.gpo.gov/fdsys/pkg/FR-2012-0514/pdf/2012-11798.pdf. E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS would allow manufacturers the flexibility to purchase the raw material that is least expensive at the time, this may reduce the cost to the manufacturer, who can then pass on that discount to the buyer of the tank. We know that any rational manufacturer will not avail itself to this option unless it makes business sense. While we don’t believe that this rule imposes any new costs, we 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. C. Executive Order 13132 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (‘‘Federalism’’), and the President’s memorandum on ‘‘Preemption’’ published in the Federal Register on May 22, 2009 (74 FR 24693). This proposed rule will preempt State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazardous materials transportation law, 49 U.S.C. 5101– 5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on the following subjects: (1) The designation, description, and classification of hazardous materials; (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials; (3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents; (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and (5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. This proposed rule addresses packaging for hazardous materials, covered in number 2 above. If adopted as final, this rule will preempt any State, local, or Indian tribe requirements concerning packaging for hazardous VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 materials unless the non-Federal requirements are ‘‘substantively the same’’ as the Federal requirements. Furthermore, this proposed rule is necessary to update, clarify, and provide relief from regulatory requirements. 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 new Section XII consensus standards and training employees in the use of this consensus standard. However, PHMSA notes that currently many of state enforcement personnel are not equipped with Section VIII, Division 1 and must use outside sources to reference this standard. It is our understanding that during roadside inspections, state officials are most often concerned with identifying that the ASME mark is intended for the packaging on which it is stamped. This would not require state governments to purchase copies of Section XII for every state trooper. Rather, the most in-depth inspection performed on a tank is handled by an independent third-party inspector, typically a National Board Commission Inspector from an insurance company. This would also apply to the repair of the ASME packaging using the NBIC, which also requires a marking. Furthermore, as engineers at PHMSA were instrumental in developing Section XII and the 2013 edition of the NBIC, they understand them and are available to help interpret the standards. As with other highly technical or scientific standards that we incorporate in the HMR, PHMSA’s Hazardous Materials Information Center staff will have access to the engineers who helped develop the 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 proposed rule may cause. D. 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. PHMSA is not aware of any significant or unique effects or substantial direct compliance costs on the communities of the Indian tribal governments. Therefore, we conclude that the funding and consultation requirements of Executive Order 13175 do not apply. We invite Indian tribal governments to provide PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 79383 comments if they believe there will be an impact. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. This notice has been 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 of draft rules on small entities are properly considered. The adoption of Section XII should not have any impact on small businesses, given that the standard is optional. After reviewing the safety records of both current tanks and new models of tanks constructed under special permit, PHMSA analysts found no disparities between the safety records. We estimate that there are 5,166 businesses likely to be affected by this rule. The Small Business Administration (SBA) uses industryspecific standards to estimate which of those are ‘‘small businesses’’, which could be based on employment or revenue. PHMSA assumes that a significant number of businesses within the regulatory scope (nearly all) are small. Based on our analysis, the three major industries—manufacturers, third party inspection agencies, and tank repair services—could, at their discretion— conform to the new standards. Manufacturers could introduce new materials. Third party inspectors would conduct tests under more current, meaningful testing relevant to more modern designs. Tank repair services could expand to accommodate the new standards. Given the expected service life of about 30 years, we assume that only 1/ 30 of all tanks will be replaced each year. Given the optional nature of the rule, the new tanks will consist of some newer Section XII tanks and some Section VIII tanks. Any manufacturer would build tanks according to the needs of the customer, including price. At the same time, the small number of Section XII tanks entering the market each year will allow repairers and inspectors to transition their workforce smoothly. E:\FR\FM\30DEP1.SGM 30DEP1 79384 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Based upon the above estimates and assumptions, PHMSA certifies that the proposals in this NPRM will not have a significant economic impact on a substantial number of small entities. In this notice, PHMSA is soliciting comments on the preliminary conclusion that the proposals in this NPRM will not cause a significant economic impact on a substantial number of small entities. F. 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. The recordkeeping requirements in Section XII and the 2013 edition of the NBIC are analogous; the recordkeeping costs of complying with Section XII and the 2013 edition of the NBIC are not significantly different than those currently required under the current regulatory scheme. G. 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. tkelley on DSK3SPTVN1PROD with PROPOSALS H. Unfunded Mandates Reform Act This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. I. Environmental Assessment The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321–4347), and implementing regulations by the Council on Environmental Quality (40 CFR part 1500) require Federal agencies to consider the consequences of Federal actions and prepare a detailed statement on actions that significantly affect the quality of 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 VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 action and alternatives, and (4) the agencies and persons consulted during the consideration process (see 40 CFR 1508.9(b)). Description of Action PHMSA is considering the following alternatives: Alternative 1 is to take no action; Alternative 2 is to incorporate ASME Section XII and NBIC 2013 by reference and remove Section VIII; Alternative 3 is to allow tank manufacture and use of Section XII as an alternative to Section VIII. Use of the 2013 NBIC for continued service under Section VIII is optional, while use of the 2013 NBIC with Section XII is required; and Alternative 4 is to withdraw the rulemaking action and allow use of the standards through Special Permit. Each alternative presented below represents different levels of adoption of the new Section XII code, from Alternative 1 (0%) to Alternative 2 (100%). Alternatives 3 and 4 may result in a proportion between and including these extremes—i.e., Alternative 3 may result in all or no manufacturers choosing to use the Section XII specifications. Similarly, reliance on the special permit process could result in all or none of the manufacturers requesting a special permit. At this point, it is difficult to find a basis to project future, based on market activity. However, PHMSA believes that the adoption of the new standard would yield substantial savings to both the manufacturer and the user of the tanks. Alternative 1: No action. This is not the preferred alternative. This would continue the incorporation by reference of Section VIII, Division 1 for design and construction of cryogenic portable tanks and CTMVs (The reference to NBIC 1992 for the continued use would also remain unchanged). Though Section VIII, Division 1 sets forth detailed criteria for the design, construction, certification, and marking of stationary boilers and pressure vessels, it does not address unique conditions and stresses encountered by tanks in the transportation environment. The HMR addresses this deficiency by adding requirements to account for conditions and stresses likely to occur in transportation. This alternative would not impose any costs, but it would prevent the opportunity to realize any efficiency benefits. Alternative 2: Incorporate ASME Section XII and NBIC 2013 by reference and remove Section VIII, Division 1. This is not the preferred alternative. It would promote more current design standards, by ridding the HMR of outdated information and incorporating standards that address modern PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 manufacturing and welding methods. Efficiency improvements would provide manufacturers more flexibility in design, and allow for lighter-weight tanks that would use less fuel to transport, with larger capacities. Section XII would also provide for more uniform enforcement over time. However, it may preclude a normal market-based transition from one standard to another and force manufacturers to incur investments and staffing changes to comply with new standards. Many commenters expressed concern that they would be unduly burdened either immediately or in the future by ASME standards that they have no recourse to appeal. The costs would be the purchase of Section XII; the minimal facility transition costs discussed above; and the initial training that may occur before the usual threeyear cycle. Alternative 3: Allow tank manufacture and use under Section XII as an alternative to Section VIII, Division 1 and the applicable NBIC for continued use. This option is the preferred alternative, because it would provide regulatory flexibility, without imposing burdensome costs. It would also leave the manufacturers and buyers to negotiate which design best meets their needs, in terms of cost, resilience, and operations. Lastly, it would authorize the use of the 2013 edition of the NBIC as it applies to existing tanks and would require its use for those tanks built to Section XII specifications. It may, however, create inefficiencies among inhouse, third-party and state inspectors, because inspectors would have to be trained to two distinct standards. This alternative would provide regulatory flexibility, without diminishing safety from current levels. It would also leave the manufacturers and buyers to negotiate which design best meets their needs, in terms of cost, resilience, and operations. Alternative 4: Withdraw the Rulemaking Action and Allow Use of Standards through Special Permit. This is not the preferred alternative. This option would grant permission to produce, use, and maintain tanks manufactured to Section XII through a special permit. This would allow PHMSA to promote technological advancement while maintaining the ability to closely monitor performance. PHMSA has already issued one competent authority approval and one special permit related to Section XII. This option would require positive action by manufacturers to apply for a special permit and meet PHMSA’s standards for fitness. While this may be a more cautious approach, each special E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS permit application, including technical drawings and costs associated with party-to applications, such as proof of fitness, would be incurred under this option. PHMSA estimates that the typical special permit application costs $45 to the applicant and $3,000 for PHMSA to evaluate. A full analysis of the advantages and disadvantages and the cost and benefits associated with each alternative can be found in the regulatory evaluation in the docket for this rulemaking. PHMSA is proposing Alternative 3, as it was found to be the most optimal. Benefits associated with the rule include lower manufacturing costs and higher capacities for shippers. Costs to industry are minimal and incurred only when the manufacturer decides to fabricate tanks to the Section XII standards. Environmental Consequences When developing potential regulatory requirements, PHMSA evaluates those requirements to consider the environmental impact of each amendment. Specifically, PHMSA evaluates the: risk of release and resulting environmental impact; risk to human safety, including any risk to first responders; longevity of the packaging; and if the proposed regulation would be carried out in a defined geographic area, the resources, especially any sensitive areas, and how they could be impacted by any proposed regulations. Of the regulatory changes proposed in this rulemaking, the non-editorial amendments are discussed in further detail and evaluated based on their overall environmental impact as follows. Environmental benefits result from the fact that fewer CTMVs, ton tanks and cryogenic tanks will be required to transport the same quantities of hazardous materials. In most cases, due to substitution of material of construction, the thickness of the tanks would be reduced, permitting more material to be hauled, and reducing the number of tanks needed to handle the same volume of product.25 As supported by the studies referenced in Table 11 of Section VII and based on the analysis of both versions of the ASME codes, PHMSA’s Engineering and Research Division asserts that despite the reduction in the design margin between Section VIII and Section XII, the 25 For example, a MC 331 propane tank manufactured according to the Section XII would have a 12.5% reduction in wall thickness when compared to Section VIII, Division 1. This reduction would lead to at least a 2% increase in product capacity while maintaining the current level of safety. VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 standards provide an equivalent level of safety. As the proposed alternatives would provide the same level of safety as the currently authorized tanks, the risk of incidents is reduced proportionately to the reduction of the number of tanks in commerce. • Add a new section to part 173 that will provide authorization and conditions for the use of 2013 edition of the NBIC in conjunction with Section VIII, Division 1 as an alternative. The levels of inspectors set forth in the 2013 edition of the NBIC provide the same level of oversight as those set forth in the currently incorporated 1992 edition of the NBIC combined with the specifications set forth in the HMR. For that reason, PHMSA anticipates that use of the 2013 edition of the NBIC compared to use of the 1992 edition and the HMR will not result in any significant impact to the human environment. Federal Agencies Consulted In an effort to ensure all appropriate federal stakeholders are provided a chance to provide input on potential rulemaking actions, PHMSA as part of its rulemaking development consults other federal agencies that could be potentially affected. In developing this rulemaking action PHMSA consulted the Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), Environmental Protection Agency (EPA), and Occupational Safety and Health Administration (OSHA). Conclusion This NPRM proposes to incorporate by reference Section XII and the NBIC as alternatives to Section VIII, Division 1 and the HMR. As discussed above PHMSA believes standards provide an equivalent level of safety and the proposals in this NPRM are environmentally neutral. In fact, dependent on the level of usage of Section XII and subsequent reduction of the number of tanks needed to handle the same volume of product this rule may prove environmentally beneficial over time. However, PHMSA welcomes any data, information, or comments related to environmental impacts that may result from the proposal discussed in this notice. J. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 79385 review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78) or you may visit https://www.dot.gov/privacy. K. 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 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. Section XII is written using terminology compatible with international standards such as UN standards and IMDG. Its intent is to be useable internationally; and several foreign manufacturers already possess the T-symbol stamp certifying their capability to manufacture vessels using the new code. Accordingly, incorporating Section XII and the NBIC as alternatives to Section VIII, Division 1 and the HMR would be consistent with PHMSA’s obligations under the Trade Agreement Act, as amended. List of Subjects 49 CFR Part 171 Applicability, General Requirements, North American shipments, Exports, Hazardous materials transportation, Imports, Incorporated by reference, Definitions. 49 CFR Part 173 Hazardous materials transportation, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 180 Qualification and maintenance of cargo tanks, tank cars and portable tanks. In consideration of the foregoing, 49 CFR chapter I is amended as follows: E:\FR\FM\30DEP1.SGM 30DEP1 79386 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 1. The authority citation for part 171 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; Pub. L. 101–410 section 4 (28 U.S.C. 2461 note); Pub. L. 104–134, section 31001; 49 CFR 1.81 and 1.97. Subpart A—Applicability, General Requirements, and North American Shipments 2. In § 171.7, paragraphs (g)(1), (x)(1), and (x)(2) are revised to read as follows: ■ § 171.7 Reference material. * * * * (g) * * * (1) ‘ASME Code’; ASME Code, Sections II (Parts A and B), V, VIII (Division 1), and IX of 1998 Edition of American Society of Mechanical Engineers Boiler and Pressure Vessel Code, into §§ 172.102; 173.5b; 173.24b; 173.32; 173.306; 173.315; 173.318; 173.420; 178.255–1; 178.255–2; 178.255–14; 178.255–15; 178.272–1; 178.273; 178.274; 178.276; 178.277; 178.320; 178.337–1; 178.337–2; 178.337–3; 178.337–4; 178.337–6; 178.337–16; 178.337–18; 178.338–1; 178.338–2; 178.338–3; 178.338–4; 178.338–5; 178.338–6; 178.338–13; 178.338–16; 178.338–18; 178.338–19; 178.345–1; 178.345–2; 178.345–3; 178.345–4; 178.345–7; 178.345–14; 178.345–15; 178.346–1; 178.347–1; 178.348–1; 179.400–3; 180.407 and Section XII of the 2013 Edition of American Society of Mechanical Engineers Boiler and Pressure Vessel Code into § 173.14, § 178.200, § 178.300, § 179.301(b). * * * * * (x) * * * (1) NB–23, National Board Inspection Code, A Manual for Boiler and Pressure Vessel Inspectors, 1992 Edition, into § 180.413. (2) National Board Inspection Code, A Manual for Boiler and Pressure Vessel Inspectors, 2013 Edition, into § 180.402; § 180.602, and § 180.502. * * * * * tkelley on DSK3SPTVN1PROD with PROPOSALS * PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 3. The authority citation for part 173 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.81, 1.96 and 1.97. 4. Add § 173.14 to subpart A to read as follows: ■ VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 § 173.14 Authorization and conditions for the use of Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code. (a) This section authorizes, with certain conditions and limitations, the use of Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR see § 171.7) as an alternative to ASME Code Section VIII, Division 1 (IBR, see § 171.7). (b) Limitations on the use of the ASME Code Section XII for cargo tank motor vehicles, cryogenic portable tanks, and multi-unit tank car tanks (ton tanks) designed, constructed, and certified qualified and maintained in accordance with ASME Code Section XII authorized in paragraph (a) of this section— (1) Conditions and requirements for all tanks. (i) The 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) must be used for the design, construction, and certification qualification and maintenance of cargo tank motor vehicles, cryogenic portable tanks and multi-unit tank car tanks (ton tanks). (ii) ASME Section XII must include use of ASME Sections II Materials, Section V Nondestructive Examination, Section VIII, Division 1 for Parts only, Section VIII, Division 2 for fatigue analysis only, Section IX Welding and Brazing, and the NBIC Parts 1, 2 and 3, including Supplement 6 of Parts 2 and 3; (iii) Nameplate character markings must be a minimum 4 mm (5/32″), markings directly on the tank must be a minimum 8 mm (5/16″); (iv) Periodic test information is not permitted on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6; (v) Inspection personnel must have qualifications as required by ASME Section XII, Article TG–4, and be qualified as evident by holding a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable; (vi) Inspectors or their employer must be registered with DOT; (vii) Repairs must be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. (2) Conditions and requirements for cargo tanks. Cargo tanks must conform to all applicable requirements of this Part; and must meet ASME Section XII Modal Appendix 1, the appropriate Article for the category of cargo tank, all Mandatory Appendices and Non PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 Mandatory Appendices A thru E and G thru H, except as follows: (i) Repairs must be performed by a DOT-registered facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. (ii) For Category 338 Cargo Tanks, ASME Section XII, Modal Appendix 1, Article 4, paragraph 1–4.4(g)(6) does not apply. A minimum jacketed thickness of 2.4 mm (0.0946 in) 12 gauge in the reference metal is permitted (IBR see § 171.7). (3) Conditions and requirements for cryogenic portable tanks. Cryogenic portable tanks must conform to all applicable requirements of this Part; and must meet ASME Section XII Modal Appendix 3, Article 1, all Mandatory Appendices and Non Mandatory Appendices A thru E and G thru H, except as follows: (i) External and internal visual inspection in accordance with NBIC Part 2 Supplement 6 are required in addition to ASME Section XII, Modal Appendix 3,Article 1, paragraph 3– 1.10(b), and Article 1, 3–1.10(b)(5) (IBR see § 171.7); (ii) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3– 1.10(b)(6) does not apply. Periodic test information is not permitted on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable. (IBR see § 171.7); (iii) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3– 1.10(d) requires inspection personnel to have qualifications set forth in ASME Section XII, Article TG–4, as evident by having a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable. (IBR see § 171.7); and (iv) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3–1.10 requires repairs to be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. Records must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable. (IBR see § 171.7). (4) Conditions and requirements for ton tanks. Ton tanks must conform to all applicable requirements of this Part and must meet Modal Appendix 4, Article 1, all Mandatory Appendices and Non Mandatory Appendices A thru E and G thru H except as follows: (i) ASME Section XII, Modal Appendix 4, Article 1, paragraph 3– 1.10) Manufacturer-certified fusible plugs, tested and qualified under the fuse plug manufacturers’ written E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Quality Control system are required. (IBR see § 171.7); (ii) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4–8 must allow Non ASME marked fusible plugs; (iii) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(a) must require external and internal visual inspection in accordance with NBIC Part 2 Supplement 6, S6.15. (IBR see § 171.7); (iv) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(a)) does not apply. Periodic test information is not allowed on the ASME nameplate. Marking must be in accordance with the NBIC Part 2 or Part 3, Supplement 6 as applicable (IBR see § 171.7); (v) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4– 12(e) must require records to be in accordance with the NBIC Part 2 or Part 3, Supplement 6 (IBR see § 171.7); (vi) Inspection personnel must have qualifications as required by ASME Section XII, Article TG–4, as evident by having a current NBIC commission with endorsement for the level/type of inspection to be performed or certification from their employer when applicable; (vii) A ton tank that fails a prescribed test or inspection must be repaired or removed from service; (viii) Repairs must be performed by a facility holding a current NBIC certificate of authorization for the use of the National Board ‘‘TR’’ Stamp. PART 178—SPECIFICATIONS FOR PACKAGINGS § 178.300 Authorization for the use of Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code and the National Board, National Board Inspection Code for cargo tank motor vehicles. As alternative to ASME Code Section VIII, Division 1 (IBR, see § 171.7) and the requirements of this subpart, DOT Specification cargo tank motor vehicles may be designed, constructed and certified in accordance with Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR see § 171.7), with the conditions and limitations set forth in § 173.14. PART 179—SPECIFICATIONS FOR TANK CARS 7. The authority citation for part 179 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.81, 1.96 and 1.97. ■ 8. Revise § 179.300 to read as follows: § 179.300 General specifications applicable to multi-unit tank car tanks designed to be removed from car structure for filling and emptying (Classes DOT–106A and 110AW). (a) Multi-unit tank car tanks must meet the requirements set forth in this subpart; or (b) Multi-unit tank car tanks may also be designed, constructed and certified in accordance with Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR see § 171.7), with the conditions and limitations set forth in § 173.14 5. The authority citation for part 178 continues to read as follows: PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.81, 1.96 and 1.97. ■ ■ 6. Add § 178.200 to subpart H to read as follows: ■ tkelley on DSK3SPTVN1PROD with PROPOSALS § 178.200 Authorization for the use of Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code and the National Board, National Board Inspection Code for cryogenic portable tanks. As alternative to ASME Code Section VIII, Division 1 (IBR, see § 171.7) and the requirements of this subpart, UN T75 cryogenic portable tanks may be designed, constructed and certified in accordance with Section XII of American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR see § 171.7), with the conditions and limitations set forth in § 173.14. ■ 7. Add § 178.300 to subpart J to read as follows: VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 9. The authority citation for part 180 is revised to read as follows: Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.81, 1.96 and 1.97. 10. Add § 180.402 to subpart E to read as follows: ■ § 180.402 Authorization for the use of the 2013 Edition of the National Board, National Board Inspection Code with Section VIII, Division 1 of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. This section authorizes, with certain conditions and limitations set forth in § 173.14, the use of the 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) for the maintenance of cargo tanks constructed to Section VIII, Division 1 of the 1998 Edition of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. DOT PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 79387 Specification cargo tanks constructed to the 1998 Edition of the ASME Code Section VIII, Division 1 that bear a U Stamp may be examined, inspected, and tested under Part 180 Subpart E and the NBIC Parts 1, 2, and 3, excluding Supplement 6 of Parts 2 and 3. The 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) must be used for the maintenance of cargo tanks constructed to ASME Code Section XII as set forth in § 178.300. ■ 11. Add § 180.502 to subpart F to read as follows: § 180.502 Authorization for the use of the 2013 Edition of the National Board, National Board Inspection Code with Section VIII, Division 1 of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. This section authorizes, with certain conditions and limitations set forth in § 173.14, the use of the 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) for the maintenance of ton tanks constructed to Section VIII, Division 1 of the 1998 Edition of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. The 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) must be used for the maintenance of ton tanks constructed to ASME Code Section XII as set forth in § 178.200. ■ 12. Add § 180.602 to subpart G to read as follows: § 180.602 Authorization for the use of the 2013 Edition of the National Board, National Board Inspection Code with Section VIII, Division 1 of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. This section authorizes, with certain conditions and limitations set forth in § 173.14, the use of the 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) for the maintenance of cryogenic portable tanks constructed to Section VIII, Division 1 of the 1998 Edition of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code. Portable tanks designed, fabricated, examined, inspected, and tested to Section VIII, Division 1 of the ASME Code may be used with the NBIC Parts 1, 2 and 3, excluding Supplement 6 of Parts 2 and 3. The 2013 edition of the National Board Inspection Code (NBIC) (IBR, see § 171.7) must be used for the maintenance of cryogenic portable tanks constructed to ASME Code Section XII as set forth in § 178.200. * * * * * E:\FR\FM\30DEP1.SGM 30DEP1 79388 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Proposed Rules Issued in Washington, DC, under authority delegated in 49 CFR part 1.97(b). Magdy El-Sibaie, Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2013–31046 Filed 12–27–13; 8:45 am] BILLING CODE 4910–60–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 RIN 0648–BD46 Western Pacific Pelagic Fisheries; Catch and Effort Limits for the U.S. Participating Territories National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of availability of fishery ecosystem plan amendment; request for comments. AGENCY: NMFS announces that the Western Pacific Fishery Management Council proposes to amend the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region. If approved, Amendment 7 would establish a management framework and process for specifying fishing catch and effort limits and accountability measures for pelagic fisheries in the U.S. Pacific territories (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands). The framework would authorize the government of each territory to allocate a portion of its specified catch or effort limit to a U.S. fishing vessel or vessels through a specified fishing agreement, and establish criteria, which a specified fishing agreement must satisfy. The framework also includes measures to ensure accountability for adhering to fishing catch and effort limits. DATES: NMFS must receive comments on the proposed amendment and the included environmental assessment by February 28, 2014. ADDRESSES: You may send comments on the proposed amendment and environmental assessment, identified by NOAA–NMFS–2012–0178, to either of the following addresses: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20120178, click the ‘‘Comment Now!’’ icon, tkelley on DSK3SPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 16:26 Dec 27, 2013 Jkt 232001 complete the required fields, and enter or attach your comments. • Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814–4700. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous), and will accept attachments to electronic comments in Microsoft Word, Excel, or Adobe PDF file formats only. The Western Pacific Fishery Management Council (Council) prepared Amendment 7 to the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region (Pelagics FEP), including an environmental assessment and regulatory impact review, that provides background information on the proposed action. The amendment is available from www.regulations.gov or the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808–522–8220, fax 808– 522–8226, www.wpcouncil.org. FOR FURTHER INFORMATION CONTACT: Adam Bailey, Sustainable Fisheries Division, NMFS PIR, 808–944–2248. SUPPLEMENTARY INFORMATION: NMFS and the Council manage the pelagic fisheries of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) and Hawaii under the Pelagics FEP. Typically, the Council recommends conservation and management measures for NMFS to implement under the authority of Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act (16 U.S.C. 1801 et seq.)). Certain pelagic fish stocks, including tunas, are also subject to conservation and management measures cooperatively agreed to by the Western and Central Pacific Fisheries Commission (WCPFC), an international regional fisheries management organization that has jurisdiction over fisheries harvesting highly migratory species in the western and central Pacific Ocean (WCPO, generally west of 150° W. longitude). Although NMFS PO 00000 Frm 00061 Fmt 4702 Sfmt 4702 often implements these decisions directly under the authority of the Western and Central Pacific Fisheries Convention Implementation Act, the Council may also recommend conservation and management measures applicable to the U.S. component of internationally-managed fisheries for implementation by NMFS under the Magnuson-Stevens Act. In 2008, the WCPFC adopted Conservation and Management Measure (CMM) 2008–01, ‘‘Conservation and Management Measure for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean,’’ which established an annual bigeye tuna catch limit for longline fisheries of the United States operating in the WCPO, as well separate longline bigeye tuna catch limits for the U.S. participating territories to the WCPFC, which are American Samoa, Guam, and the CNMI. The annual bigeye tuna catch limit for the United States (U.S. bigeye tuna limit) established through CMM 2008– 01 was 3,736 mt, which NMFS implemented in fishing years 2009, 2010, and 2011 (December 7, 2009, 74 FR 63999). This limit applied only to the Hawaii-based longline fisheries or longline vessels based on the West Coast of the United States that fish in the WCPO; the limit did not apply to longline fisheries of the U.S. participating territories. CMM 2008–01 also provided that members and participating territories that caught less than 2,000 mt of bigeye tuna in 2004 would be subject to an annual limit of 2,000 mt, except that Small Island Developing States and Participating Territories of the WCPFC undertaking responsible development of their fisheries would not be subject to individual annual limits for bigeye tuna. The three U.S. participating territories fell into this category. The WCPFC extended the U.S. bigeye tuna limit for 2012 through CMM 2011– 01 (August 27, 2012, 77 FR 51709), and for fishing year 2013 through CMM 2012–01 (September 23, 2013, 78 FR 58240). In addition, under CMM 2012– 01, Small Island Developing States and Participating Territories of the WCPFC, including American Samoa, Guam, and the CNMI, were not subject to individual longline limits for bigeye tuna for fishing year 2013. Subsequently, in December 2013, the WCPFC adopted a new tropical tuna conservation and management measure, which maintain the U.S. longline bigeye tuna catch limit of 3,763 mt for 2014, and reduces the limit to 3,554 mt in 2015 and 2016, and to 3,345 mt for 2017. CMM 2013–01 further provides that members that caught less than E:\FR\FM\30DEP1.SGM 30DEP1

Agencies

[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Proposed Rules]
[Pages 79363-79388]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31046]

=======================================================================
-----------------------------------------------------------------------

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: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: PHMSA is proposing to amend the Hazardous Materials
Regulations applicable to the design, construction, certification,
recertification and maintenance of cargo tank motor vehicles, cryogenic
portable tanks and multi-unit tank car tanks (ton tanks) in response to
petitions for rulemaking from the American Society of Mechanical
Engineers (ASME), the National Board of Boiler and Pressure Vessel
Inspectors (National Board), and the Pressure Vessel Manufacturers
Association (PVMA). Specifically, this NPRM proposes to allow the use
of the 2013 edition of the ASME's Boiler and Pressure Vessel Code,
Section XII (Section XII) for the design, construction, and
certification of cargo tank motor vehicles, cryogenic portable tanks
and ton tanks. PHMSA also proposes to authorize the use of the 2013
edition of the National Board of Boiler and Pressure Vessel Inspectors'
National Board Inspection Code (NBIC), as it applies to the continuing
qualification and maintenance of ASME constructed cargo tank motor
vehicles, cryogenic portable tanks, and ton tanks constructed to
standards in ASME's Section XII, and existing cargo tank motor vehicles
and portable tanks constructed to Section VIII, Division 1. If adopted,
these amendments will allow for regulatory flexibility, without
compromising safety.

DATES: Submit comments by March 31, 2014. 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 https://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West 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 https://www.regulations.gov, or DOT's Docket
Operations Office (see ADDRESSES). To access ASME's Boiler and Pressure
Vessel Code, Section XII (Section XII) go to: https://shop.asme.org/PublicReview/. To access the National Board Inspection Code (NBIC),
Part 2, Supplement 6: Continued Service and Inspection of DOT Transport
Tanks, and Part 3, Supplement 6: Repair, Alteration, and Modification
of DOT Transport Tanks go to: https://www.nationalboard.org/SiteDocuments/NBIC/DOT_NBIC_supplements.pdf.
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 https://www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Lisa O'Donnell, Hazardous Materials
Standards and Rulemaking Division, (202) 366-8553, or Stanley
Staniszewski, Engineering and Research

[[Page 79364]]

Division, (202) 366-4492, Office of Hazardous Materials Safety,
Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Contents

I. Executive Summary
II. Abbreviations and Terms Used in This Document
III. Background
IV. Petitions for Rulemaking
A. P-1459
B. P-1474
C. P-1502
V. ASME Section XII
VI. NBIC
VII. Comparison of Section XII and Section VIII, Division 1
Supplemented by the Current HMR
A. Design Margin
B. Rational Design
C. Design and Construction of CTMVs: Identified Differences
Between HMR and Section XII Requirements
D. Continued Service of CTMVs, Portable Tanks, and Ton Tanks:
Roles of Inspectors HMR
E. Summary and Supporting Research Initiatives
VIII. ANPRM Comment Summary Discussion and Proposed Amendments
A. Comments in Favor of Adopting Section XII and NBIC
B. Comments in Opposition to Adopting Section XII and NBIC
C. Miscellaneous Comments
D. Proposed Amendments
E. Section by Section Review
IX. Regulatory Analyses and Notices
A. Statutory/Legal Authority for the Rulemaking
B. Executive Order 12866, Executive Order 13610, Executive Order
13563 and DOT
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
K. Executive Order 13609 International Trade Analysis

I. Executive Summary

In this NPRM, PHMSA (also ``we'' or ``us'') proposes to amend the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) in response
to petitions submitted by industry representatives to incorporate
Section XII and the 2013 edition of the NBIC as alternatives to Section
VIII, Division 1 and the current HMR requirements in part 178, for the
design of cryogenic portable tanks and CTMVs, part 179 for the design
of ton tanks, and part 180 for the continuing qualification and
maintenance of CTMVs, cryogenic portable tanks and ton tanks. Section
XII sets forth standards for construction \1\ and continued service \2\
of pressure vessels for transporting hazardous materials by highway,
rail, air or water at pressures from close to 15 psig external pressure
to 3,000 psig and volumes greater than 120 gallons. The 2013 edition of
the NBIC provides rules and guidelines for installing, inspecting,
repairing and altering boilers, pressure vessels and pressure relief
devices. Section XII may be used for the following tanks:
---------------------------------------------------------------------------

\1\ ``Construction'' is an all-inclusive term comprising
materials, design, fabrication, examination, inspection, testing,
certification, and over-pressure protection.
\2\ ``Continued service'' is an all-inclusive term referring to
inspection, testing, repair, alteration, and recertification of a
transport tank that has been in service.

Table 1--Proposed Tanks Authorized Under Section XII
------------------------------------------------------------------------
Tank type Specification
------------------------------------------------------------------------
Cargo Tank Motor Vehicles (CTMVs)......... MC331, 338, 406, 407, and
412.
Cryogenic Portable Tanks.................. UN T75.
Ton Tanks................................. DOT-106A and 110AW.
------------------------------------------------------------------------

If the proposed amendments are adopted, manufacturers could choose
to build their tanks using either the specifications set forth in
Section XII or those set forth in Section VIII, Division 1. While
Section VIII, Division 1 applies to construction of new tanks only,
Section XII applies to both new construction and continued service.
Further, as proposed, a manufacturer who builds a tank to Section VIII,
Division 1 would be authorized to use either the 1992 edition of the
NBIC that is currently incorporated by reference or the 2013 edition of
the NBIC; whereas manufacturers who choose to build tanks to Section
XII would be required to use the 2013 edition of the NBIC.
Section XII and the 2013 edition of the NBIC include advancements
in design, material, construction, repair and inspection of transport
tanks. Incorporating Section XII and the 2013 edition of the NBIC by
reference in the HMR, would allow manufacturers and owners of transport
tanks to be flexible in the materials they use to build tanks, how they
build tanks, and how they test and inspect tanks, while providing the
same level of safety as that provided by Section VIII, Division 1 for
new construction and the HMR for continued qualification and
maintenance.
The 2013 edition of the NBIC was developed in conjunction with
Section XII to provide consistent, up-to-date standards for the
lifespan of transport tanks. Both the NBIC and Section XII were
developed as international standards, and were written to be compatible
with UN recommendations. Further, these standards were developed by
voluntary consensus standards-development organizations comprised of
all stakeholders involved in the design, certification, continued
qualification and maintenance of transport tanks, including
manufacturers of tanks and PHMSA engineers. These individuals have
expert knowledge of how to design, construct and maintain tanks to
withstand the unique dynamic conditions and stresses of a
transportation environment.
Several research and development projects support the adoption of
both the 2013 edition of NBIC and Section XII (See Table 11 of Section
VII of this document). These projects include studies on CTMV
rollovers, design margins, and puncture resistance. They are discussed
in Sections V and VII in this NPRM.\3\ Furthermore, by providing the
2013 edition of the NBIC and Section XII as options, PHMSA would allow
the regulated industry to choose from various materials of
construction, that we believe provide equivalent safety, to accommodate
each entity's preference (see part TM of Section XII, which specifies
authorized materials). Use of the proposed voluntary standards could
enable U.S. manufacturers to better compete internationally.
---------------------------------------------------------------------------

\3\ See www.regulations.gov, Docket Nos. PHMSA-2010-0019-0010,
PHMSA-2010-0019-0012, PHMSA-2010-0019-0013, PHMSA-2010-0019-0014,
PHMSA-2010-0019-0015, PHMSA-2010-0019-0016, PHMSA-2010-0019-0017,
PHMSA-2010-0019-0018, and PHMSA-2010-0019-0019.
---------------------------------------------------------------------------

Manufacturers, tank owners and users, maintenance and repair
entities, third-party inspectors, and public sector inspectors would
incur costs under the proposed adoption of Section XII and the 2013
edition of the NBIC. Manufacturers who choose to build tanks to Section
XII may have to purchase new equipment to manufacture tanks to
accommodate the different metals authorized in Section XII and would
have to purchase the standard; however, they would also have more
flexibility in the materials they use to build the tank, and take
advantage of the lower priced materials at the time of purchase. Tank
owners would incur the initial cost of the new tank. However, users,
most likely also the owners, in many cases, would be able to haul more
material in one tank, which would reduce fuel costs. Entities that
repair tanks and third-party inspectors would have to be trained in

[[Page 79365]]

and purchase both Section XII and the NBIC. Public sector inspectors
would have to be trained, and state and local governments would have to
purchase both Section XII and the NBIC. Due to PHMSA's three-year
training cycle, all employees and inspectors will have been trained
within three years, regardless of when or if they transition to HM-241.
Once an entity converts to Section XII tanks, PHMSA assumes that the
incremental training would be incorporated into regular training, and
no further incremental expense would be incurred in future years.
Annual benefits would continue to accrue.
Benefits associated with the use of Section XII and the 2013
edition of the NBIC include a savings in the cost to manufacture tanks.
Various economic factors cause the cost of types of materials to
fluctuate. Because Section XII allows a variety of newer materials to
be used to build tanks, manufacturers may choose materials with the
lowest cost to construct their tanks. Also, certain tanks built to
Section XII would provide lower costs per mile due to the use of
lighter-weight materials of construction and increased capacity to
transport product. A review of previous research by PHMSA's Engineering
and Research Division, as well as the independent research studies that
are summarized in Section V and Table 11 of Section VII of this NPRM
and can be found in the docket file (see www.regulations.gov, Docket
Nos. PHMSA-2010-0019) indicated the Section XII standards provide an
equivalent level of safety to the current standards. Section XII
provides updated specifications for transport tanks. In most cases, due
to substitution of material of construction, the thickness of the tanks
would be reduced, permitting more material to be hauled, and reducing
the number of tanks needed to handle the same volume of product.
These costs and benefits of Section XII and the 2013 edition of the
NBIC would affect only individuals who choose to use the standards.
Therefore, PHMSA does not believe adoption of Section XII would impose
costs because each entity will choose to continue to use the existing
Section VIII or convert to Section XII as their economic interests
dictate. For example a manufacturer would not use Section XII to build
a tank unless it believes it is net beneficial to do so. Since Section
XII would allow manufacturers the flexibility to purchase the raw
material that is least expensive at the time, this may reduce the cost
to the manufacturer, who can then pass that discount on to the buyer of
the tank. Manufacturers will only elect to utilize Section XII if it
makes business sense.

II. Abbreviations and Terms Used in This Document

The table below provides a list of abbreviations or acronyms for
the terms used in this NPRM.

Table 2--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)
IMDG International Maritime Dangerous
Goods
IACS International Association of
Classification Societies Ltd
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 VIII, Division 1 American Society Mechanical
Engineers, Boiler and Pressure
Vessel Code, Section VIII,
Division 1
Section XII: American Society Mechanical
Engineers, Boiler and Pressure
Vessel Code, Section XII
------------------------------------------------------------------------

III. 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 packaging requirements for the safe
transportation of hazardous materials in commerce, including
requirements for the design, construction, qualification, maintenance,
certification and repair of bulk packagings such as CTMVs, portable
tanks, and certain tank car tanks referred to as ton tanks.
Under 49 CFR 1.96, PHMSA is delegated the responsibility to enforce
the HMR. In addition, under 49 CFR 1.88 and 1.86, the Federal Railroad
Administration (FRA) and the Federal Motor Carrier Safety
Administration (FMCSA) are delegated authority to enforce the HMR 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.
Within the United States, the most common modes of transportation
for the tanks affected by this NPRM are highway and rail. To clearly
identify the differences and unique characteristics of the tanks
addressed by this NPRM, we provide the following definitions.

Table 3--Tank Type Definition
------------------------------------------------------------------------

------------------------------------------------------------------------
Cargo tank motor vehicle (CTMV)... Means a motor vehicle with one or
more cargo tanks permanently
attached to or forming an integral
part of the motor vehicle.

[[Page 79366]]

Portable tank \4\................. Means a bulk packaging (except a
cylinder having a water capacity of
1000 pounds or less) designed
primarily to be loaded onto, or on,
or temporarily attached to a
transport vehicle or ship and
equipped with skids, mountings, or
accessories to facilitate handling
of the tank by mechanical means. It
does not include a CTMV, tank car,
multi-unit tank car tank, or
trailer carrying 3AX, 3AAX, or 3T
cylinders.
UN portable tank.................. Means an intermodal tank having a
capacity of more than 450 liters
(118.9 gallons). It includes a
shell fitted with service equipment
and structural equipment, including
stabilizing members external to the
shell and skids, mountings or
accessories to facilitate
mechanical handling. A UN portable
tank must be capable of being
filled and discharged without the
removal of its structural equipment
and must be capable of being lifted
when full. Cargo tanks, rail tank
car tanks, non-metallic tanks, non-
specification tanks, bulk bins, and
IBCs and packagings made to
cylinder specifications are not UN
portable tanks.
Multi-unit tank car tank or ton Means a flatcar railcar or flatbed
tank. trailer with up to 15 large
cylindrical pressure tanks (DOT-
106A and 110A tank car
specification, see Part 179).
------------------------------------------------------------------------

In this NPRM, PHMSA is proposing to amend the HMR applicable to the
design, construction, certification, recertification and maintenance of
cargo tank motor vehicles, cryogenic portable tanks ton tanks, to allow
the use of Section XII for the design, construction, and certification
of CTMVs, cryogenic portable tanks and ton tanks. PHMSA is also
proposing to authorize the use of the 2013 edition of the NBIC, as it
applies to Section VIII, Division 1 or Section XII. These proposals are
in response to petitions for rulemaking from ASME, the National Board
of Boiler and Pressure Vessel Inspectors, and PVMA. This NPRM could
affect the following entities that choose to follow Section XII and
establishes the following requirements:
---------------------------------------------------------------------------

\4\ Only cryogenic portable tanks are involved in this NPRM.

Table 4--Affected Entities
------------------------------------------------------------------------
Affected entities Proposed revisions
------------------------------------------------------------------------
Manufacturers of CTMVs, Provides alternative
cryogenic portable tanks and ton tanks. design, construction,
Repairers of CTMVs, cryogenic certification, recertification
portable tanks and ton tanks. and maintenance to Section
VIII, Division 1 and HMR.
Testers of CTMVs, cryogenic Establishes new
portable tanks and ton tanks. alternative ``T'' stamp for
transport tanks
Carriers of bulk liquid Establish different
hazardous materials. levels of inspectors as set
Inspectors of CTMVs, cryogenic forth in Section XII.
portable tanks and ton tanks.
Owners of CTMVs, cryogenic
portable tanks and ton tanks.
Federal, state and local
enforcement officials.
------------------------------------------------------------------------

IV. Petitions for Rulemaking

The Administrative Procedure Act (APA) requires Federal agencies to
give interested persons the right to petition an agency to issue,
amend, or repeal a rule (5 U.S.C. 553(e)). 49 CFR 106.95, provides the
process and procedures for persons to petition PHMSA to add, amend, or
delete a regulation. In this NPRM, PHMSA is considering petitions for
rulemaking from ASME, the National Board, and PVMA.
The following table provides a brief summary of the petitions
addressed in this NPRM and affected sections:

Table 5--Petition Summary
----------------------------------------------------------------------------------------------------------------
Petition Party submitting petition Summary
----------------------------------------------------------------------------------------------------------------
P-1459.................................. ASME....................... Requests PHMSA incorporate by reference
the ASME Boiler and Pressure Vessel
Code, Section XII, Transport Tanks--2004
edition (Sec. Sec. 172.102; 173.5b;
173.24b; 173.32; 173.306; 173.315;
173.318; 173.420; 178.245-1; 178.245-3;
178.245-4; 178.245-6; 178.245-7; 178.255-
1; 178.255-2; 178.255-14; 178.255-15;
178.270-2; 178.270-3; 178.270-7; 178.270-
9; 178.270-11; 178.270-12; 178.271-1;
178.272-1; 178.273; 178.274; 178.276;
178.277; 178.320; 178.337-1; 178.337-2;
178.337-3; 178.337-4; 178.337-6; 178.337-
16; 178.337-18; 178.338-1; 178.338-2;
178.338-3; 178.338-4; 178.338-5; 178.338-
6; 178.338-13; 178.338-16; 178.338-18;
178.338-19; 178.345-1; 178.345-2;
178.345-3; 178.345-4; 178.345-7; 178.345-
14; 178.345-15; 178.346-1; 178.347-1;
178.348-1; 179.400-3; 180.407).

[[Page 79367]]

P-1474.................................. PVMA....................... Requests PHMSA incorporate by reference
the ASME Boiler and Pressure Vessel
Code, Section XII, Transport Tanks--2004
edition (Sec. Sec. 172.102; 173.5b;
173.24b; 173.32; 173.306; 173.315;
173.318; 173.420; 178.245-1; 178.245-3;
178.245-4; 178.245-6; 178.245-7; 178.255-
1; 178.255-2; 178.255-14; 178.255-15;
178.270-2; 178.270-3; 178.270-7; 178.270-
9; 178.270-11; 178.270-12; 178.271-1;
178.272-1; 178.273; 178.274; 178.276;
178.277; 178.320; 178.337-1; 178.337-2;
178.337-3; 178.337-4; 178.337-6; 178.337-
16; 178.337-18; 178.338-1; 178.338-2;
178.338-3; 178.338-4; 178.338-5; 178.338-
6; 178.338-13; 178.338-16; 178.338-18;
178.338-19; 178.345-1; 178.345-2;
178.345-3; 178.345-4; 178.345-7; 178.345-
14; 178.345-15; 178.346-1; 178.347-1;
178.348-1; 179.400-3; 180.407).
P-1502.................................. National Board............. Requests PHMSA incorporate by reference
the National Board Inspection Code--2007
Edition in Sec. 180.413.
----------------------------------------------------------------------------------------------------------------

P-1459

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
provides requirements for construction and continued service of ASME
pressure vessels for the transportation of dangerous goods with volumes
greater than 450 liters (120 gallons) and design pressures appropriate
for the particular transportation mode, i.e., highway, railway, air,
and 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 constructed transport tanks. These transportation 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 CTMVs. The 2010 edition was expanded to
include the Modal Appendix for ton tanks. We are proposing to
incorporate the latest edition, which was published in 2013. [This
petition can be found at www.regulations.gov under Docket No. PHMSA-
2005-21351].

P-1474

On February 27, 2006, PVMA also petitioned PHMSA to revise the HMR
to incorporate by reference the ASME Boiler and Pressure Vessel Code,
Section XII, Transport Tanks--2004 edition. PVMA is a trade association
representing pressure vessel manufacturers, related component materials
suppliers and regulatory organizations. Several of PVMA's member
companies participated in the development of Section XII, which
contains design requirements for tanks and pressure vessels that
several of its members manufacture. PVMA reasoned that adoption of
Section XII into the HMR would encourage uniform design requirements
and manufacturing standards for these tanks, and support the safe
construction practices of this industry. [This petition can be found at
www.regulations.gov under Docket No. PHMSA-2006-24712].

P-1502

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.\5\ While the petition asked that we incorporate the 2007
edition of the NBIC, we propose to incorporate the most up-to-date
version, which is the 2013 edition. [This petition can be found at
www.regulations.gov under Docket No. PHMSA-2007-28809].
---------------------------------------------------------------------------

\5\ The NBIC has updated the 2007 edition with a 2013 edition.
---------------------------------------------------------------------------

V. ASME Section XII

Currently, the HMR incorporate by reference the 1998 edition of
Section VIII, Division 1 as part of the standards for the design and
construction of cryogenic portable tanks and CTMVs. Section VIII,
Division 1 sets forth detailed criteria for the design, construction,
certification, and marking of stationary boilers and pressure vessels.
Tanks constructed and certified in accordance with Section VIII,
Division 1 are marked with a ``U'' stamp.
While stationary tanks and transportation tanks are both subject to
many of the same influences, such as pressure, temperature changes, and
atmospheric conditions, transportation tanks are subject to additional,
unique dynamic load conditions and stresses; Section VIII, Division 1
alone does not address the transportation conditions. To address these
additional influences on tanks that are used in transportation, general
operational requirements for CTMVs, portable tanks, and ton tanks, such
as outage and filling limits and self-closing stop valves, are
prescribed in 49 CFR part 173 subpart B. In addition, 49 CFR part 178,
subpart H for specification 60, steel portable tanks, includes
requirements for material construction (see Sec. 178.255-2), expansion
domes (see Sec. 178.255-3), closures for manholes and domes (see Sec.
178.255-4), loading and unloading accessories (see Sec. 178.255-6),
tank repair (see Sec. 178.255-13, marking (see Sec. 178.255-14), and
reporting (see Sec. 178.255-15). Subpart J for CTMVs and 49 CFR part
178, includes general requirements for all DOT specification cargo tank
motor vehicles (see Sec. 178.320), and then more specific requirements
for types of CTMVs. For specification MC-331 tanks, requirements
include, but are not limited to, structural integrity (see Sec.
178.337-3), closures for manholes (see Sec. 178.337-6), and accident
damage protection (see Sec. 178.337-10). For MC-338 insulated cargo
tank motor vehicles, requirements include, but are not limited to,
material (see Sec. 178.338-2),

[[Page 79368]]

structural integrity (see Sec. 178.338-3), and accident damage
protection (see Sec. 178.338-10). For ton tanks, 49 CFR part 179
subpart E prescribes additional design and construction requirements
than those required for stationary tanks in Section VIII, Division 1,
including but not limited to, protection of fittings (see Sec.
179.300-12), more stringent welding (see Sec. 178.300-9), and
inspection (see Sec. 179.300-19). Furthermore, continuing
qualification and maintenance requirements, which include 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. It should be
noted that 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 this NPRM.
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. The Boiler and Pressure
Vessel Committees of ASME meet quarterly; however, most of the work is
done throughout the year through working groups and an electronic
balloting process. The National Board meets biannually and also works
throughout the year through working groups and the electronic balloting
process. These committees 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 the ASME Board on Pressure Technology Codes and Standards
formed a committee on transport tanks (SC XII) to develop new standards
to specifically address transport tanks. PHMSA actively participated in
the committee. SC XII currently consists of a main committee and four
subgroups identified as: (1) General Requirements, (2) Fabrication,
Inspection and Continued Service, (3) Design and Materials, and (4)
Non-Mandatory Appendices. 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 Section VIII, Division 1. Section XII consists of ten
parts, four modal appendices written to address different tank types,
sixteen mandatory appendices, and eight non-mandatory appendices.
Transport tanks are divided into categories comparable to existing DOT
specifications; for example, a DOT 406 CTMV is a Category 406 tank in
Article 1 of Modal Appendix 1. The newest edition contains modal
appendices for CTMVs, cryogenic portable tanks, and ton tanks.\6\
---------------------------------------------------------------------------

\6\ A rail tank car appendix may be developed in the future, and
consequently, is not part of the scope of this NPRM.
---------------------------------------------------------------------------

Section XII contains ten parts, in the following order:

Table 6--Section XII Part Summary
------------------------------------------------------------------------
Part heading Part requirements
------------------------------------------------------------------------
TG..................................... General
TM..................................... Material
TD..................................... Design
TW..................................... Tanks Fabricated by Welding
TF..................................... Fabrication
TE..................................... Examination
TT..................................... Testing
TR..................................... Pressure-relief Device
TS..................................... Stamping, Marking,
Certification Reports, and
Records
TP..................................... Repair, Alteration, Testing,
and Inspection for Continued
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 CTMVs designed and constructed to
Section VIII, Division 1 standards, currently incorporated by reference
in the HMR.
PHMSA is proposing to adopt Section XII, in its entirety, as an
alternative to Section VIII, Division 1 for the design and construction
requirements for DOT specification tanks. A copy of Section XII, 2013
edition, is available for review at www.regulations.gov under Docket
Number PHMSA-2010-0019 or DOT's Docket Operations Office (see
ADDRESSES). The current price of Section XII in hard copy is $380.\7\
---------------------------------------------------------------------------

\7\ See: https://www.asme.org/products/codes---standards/bpvc-xii---2013-bpvc-section-xii-rules-for-constru (Accessed: March 27,
2013).
---------------------------------------------------------------------------

VI. 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; https://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 biannually 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, revision of existing standards, and requests to develop
new standards. The standards-writing subcommittees, subgroups, and task
groups are open to participation by representatives of groups that are
materially affected by the code. Such groups include manufacturers,
repair firms, authorized inspection agencies, and representatives of
government agencies. Each year the NBIC Committee updates the NBIC and
presents the updates on the National Board's Web site for public review
in April-May and August-September. Updated editions are published
biannually.
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 NBIC Committee established a task group to develop
requirements for continued service, repair, and alteration of Section
XII transport tanks. The task group included PHMSA and industry
representatives. The Committee's efforts culminated in the issuance of
two new supplements to the NBIC code. While the NBIC code applies to
boilers, pressure vessels, and pressure relief devices, these
supplements were added to specifically address transport tanks. The
first is NBIC Part 2, Section 6, Supplement 6, ``Continued Service and
Inspection of DOT Transport Tanks.'' This document describes inspection
of in-service transport tanks. The second is

[[Page 79369]]

NBIC Part 3, Section 6, Supplement 6, ``Repair, Alteration, and
Modification of DOT Transport Tanks.'' 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.
A copy of the 2013 edition of the NBIC is available for review at
www.regulations.gov under Docket Number PHMSA-2010-0019 or DOT's Docket
Operations Office (see ADDRESSES appearing earlier in this notice). The
current cost of the complete NBIC set is $265 for either the hard copy
or the Flash Drive edition.\8\
---------------------------------------------------------------------------

\8\ See: https://www.nationalboard.org/Index.aspx?pageID=14&ID=20
(Accessed March 27, 2013).
---------------------------------------------------------------------------

VII. Comparison of Section XII and Section VIII, Division 1
Supplemented by the Current HMR

Currently, the HMR incorporates Section VIII, Division 1 of the
ASME Code, which specifies the design and construction of stationary
tanks. The HMR supplements Section VIII, Division 1, with added design,
construction, certification, which are found in parts 178 and 179, and
recertification and maintenance requirements, found in part 180,
specific to transport tanks. Section XII and the 2013 edition of the
NBIC have been developed specifically for design, construction,
certification, recertification and maintenance of transport tanks. A
review of differences between Section VIII, Division 1 and Section XII
can be very specific. However in this section we examine the broader
philosophical differences between the way in which tanks may be
designed in Section VIII, Division 1 and the way tanks may be designed
in Section XII. Two overarching differences in the two versions of the
ASME standard are design margin allowances and design methodology; they
are discussed below. Another difference between the current HMR and the
Section XII is that when designing and constructing a tank to the
requirements of Section XII, you must use the requirements in the 2013
edition of the NBIC for continued service of those tanks; whereas if
you are using the HMR and Section VIII, Division 1 you may use the
NBIC, but are not required to do so.

Design Margin

The design margin, also known as factor of safety, is defined as
the structural capacity of a system beyond the expected loads or actual
loads. For the purposes of construction of transport tanks, the design
margin is how much stronger than necessary we would require a tank to
be built for an intended load. For example, a design margin of 3.5:1
means a tank must be built to withstand forces 3.5 times what it would
be expected to endure in transportation. Meeting the required design
margin exactly implies that the design meets the minimum allowable
strength; however, a tank may be built to withstand greater forces than
the design margin. Building a tank to withstand forces well over the
required design factor sometimes implies ``over-engineering'' which can
result in greater weight and/or cost.
Since the 1940's ASME's design margin for tanks has traditionally
been 4.0:1 and, as far back as the 1950's, the HMR has incorporated
Section VIII, Division 1 and required the 4.0:1 design margin for
transport tanks. In 1996, the ASME Pressure Vessel Research Committee
instituted a research study in which it reviewed burst tests, failure
data, failure modes--particularly fatigue and fracture and related
toughness requirements, fabrication practices, improved materials,
advances in welding, examination and testing. Notably, fracture
mechanics did not exist as an engineering discipline when the design
margin of 4 was established. Today, fracture mechanics allows an
engineer to establish the minimum toughness required in a material
based on the stress applied and the maximum credible size flaw.\9\ The
results of the 1996 study indicated that the design margin for pressure
vessels could be safely reduced from 4.0:1 to 3.5:1.\10\ Based on this
study, and other research and data specific to transport tanks, ASME
adopted a design margin of 3.5 on ultimate tensile strength in Section
XII for the economic advantage of using higher allowable stresses and
consequently thinner vessels.
---------------------------------------------------------------------------

\9\ ``Reduction of Design Margin in the ASME Boiler and Pressure
Vessel Code in the 1999 Addenda,'' Walter J. Sperko, P.E., available
at: https://freepdfz.com/pdf/reduction-of-asme-design-margin-sperko-engineering-service-inc-5156113.html (last accessed 9/30/13).
\10\ See www.regulations.gov docket number PHMSA-2010-0019-0016.
---------------------------------------------------------------------------

The revised design margins under Section XII may have an effect on
newly constructed transport tanks. For those tanks where the minimum
thicknesses are controlled by pressure, they may be thinner and lighter
than those constructed using a design margin of 4.0. PHMSA has issued
several special permits allowing a 3.5:1 or a 3.0:1 design margin.\11\
PHMSA has reviewed the incident data for these tanks and has not
identified any incidents that would indicate a reduction in safety.
Furthermore, PHMSA thoroughly evaluates the safety of any special
permit before it is issued, and will only issue a permit if the level
of safety provided is found to be equivalent to the HMR.
---------------------------------------------------------------------------

\11\ See DOT-SP 12628 and DOT-SP 14492 for 3.5:1 design margin;
see DOT-SP 14483, DOT-SP 14572, DOT-SP 14578, DOT-SP 14616 and DOT-
SP 15220 for 3.0:1 design margin.
---------------------------------------------------------------------------

Rational Design

Section VIII, Division 1 and the HMR prescribe tank designs
intended for a variety of situations. This approach may be attractive
to the designer of a tank, as the same design may be used in a variety
of situations; however, generally, this approach to design results in
large built-in, design margins, over-design, and use of excess
material. Rational design involves the application of a systematic
method for determining the design variables that optimize a specific
objective while satisfying the constraints.\12\ PHMSA, ASME, and
industry have determined through cooperative research and development
that tanks constructed using rational design methodology provide an
equivalent level of safety to currently authorized tank designs, but
are more efficient than currently authorized tanks. For this reason,
Section XII incorporates the rational design method. When using the
rational method of design, a tank designer seeks to determine, as
comprehensive and rigorously as possible, the factors affecting the
safety and performance throughout the life of the tank, to determine
the most efficient safe design. This process involves more calculations
than previous Section VIII design methodologies and can incorporate
highly sophisticated computer modeling in developing tank designs.
Rational design methodology enables tanks to be designed with greater
efficiency and less need for high margins of safety. Rational design
under Section XII, Appendix VIII has enabled non-circular shell and
heads to be made of material with thicknesses up to 15% less than what
tank manufacturers currently use. Such a difference results in a tank
with at least 2% more payload capacity.
---------------------------------------------------------------------------

\12\ See ``A Practical Methods for the Rational Design of Ship
Structures; Hughes, Mistree and Zanic; Journal of Ship Research, Vol
24, No. 2, June 1980, pp. 101-113.''

---------------------------------------------------------------------------

[[Page 79370]]

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

This section highlights some specific differences between the
currently incorporated Section VIII that is supplemented by the HMR and
Section XII. This is not an all-encompassing list of differences, and
it is only meant to highlight areas in which Section XII has improved
upon the current combination of Section VIII and the HMR.
Special Materials Testing and Fabrication Requirements for MC 331 Tanks
Section XII Modal Appendix 1--``Cargo Tanks'' discontinues certain
obsolete requirements for construction of MC 331 cargo tanks that are
still required in Sec. Sec. 178.337-2 and 178.337-4. This revision
modernizes material specification designations and eliminates obsolete
material specifications. It also eliminates certain obsolete material
impact test requirements, especially for quenched and tempered
materials. PHMSA has issued several special permits allowing the use of
the newer material specifications in the ASME Code for construction and
repair. A review of historical incident data shows an acceptable safety
history with no reported incidents.
Standardization of Allowable Peak Secondary Stresses for MC 331 Cargo
Tanks
The requirements in Modal Appendix 1-3.5.5 and 1-3.5.1(a)(1)(b) of
Section XII standardize the allowable peak secondary stress levels
resulting from short interval, non-persistent loads to that permitted
for lading surge loads for MC 331 cargo tanks by Sec. 178.337-3(d).
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.
Defined Incident Provisions Relating to Pressure Boundaries
Currently the HMR specifically requires defined incident protection
(accident protection) for specification tanks throughout Part 178
subpart J. The Modal Appendix 1 Article 1-1.5 of Section XII specifies
that tank attachment points shall be designed for accident protection
and leakage prevention. ASME asserts that inclusion of these
requirements in Section XII clarifies and improves the accident
protection requirements.
New Requirements To Account for Fatigue Loading in MC 331 Tanks
Section XII includes a new requirement to account for fatigue
loading due to dynamic loading and full pressure cycles in design of MC
331 cargo tanks. This consideration is a safety enhancement from the
previous Section VIII and HMR combination and provides explicit
criteria for fatigue failure avoidance. This requirement compensates
for slightly reduced stiffness and increased elastic deflection due to
thinner tank walls authorized by Section XII. Accounting for fatigue
loading is also intended to provide specific design guidance that will
help avoid the potential for stress corrosion cracking in tanks made of
quenched and tempered steels.
Consolidation of DOT's Special Design Requirements for MC 331 Tanks
In Section XII, the Modal Appendix 1-3.11.1 [Construction
Requirements for Cargo Tank Vessels Used to Transport Specific
Hazardous Materials]; and 1-3.11.2 [Equivalent Material Thickness]
consolidate special DOT design requirements \13\ for certain MC 331
cargo tanks designed for certain specific ladings into a single place.
---------------------------------------------------------------------------

\13\ The consolidated 49 CFR requirements are: Sec. 178.337-
1(c)(2); Sec. 178.337-1(e)(2); Sec. 178.337-1(f); Sec. 178.337-
2(b); Sec. 178.337-2(c); Sec. 178.337-8(a)(5)(iii); Sec. 178.337-
8(b); Sec. 178.337-8(c); Sec. 178.337-9(a); Sec. 173.24b(b);
Sec. 173.315.
---------------------------------------------------------------------------

The benefit resulting from consolidating design and construction
requirements for each special lading tank vessel into its own
subparagraph is that it will prevent the cargo tank designer from
overlooking design requirements essential to DOT compliance. 49 CFR
Sec. 178.337 distributes these requirements throughout that section
according to the particular design feature. Many DOT requirements
essential to vessel construction are not found in Sec. 178.337, but in
Sec. 173.315, which in turn references other 49 CFR sections.
Specifically, the requirements for construction to an equivalent metal
thickness criterion are found several places. Modal Appendix 1-3.11.2
converts these specific requirements into a generic form where it can
be conveniently located. The consolidation of these requirements in
Section XII is viewed as a safety enhancement as it will provide easier
understanding of the requirements.
Standardized Pressure Relief Devices for Both Portable and Cargo
Cryogenic Tankage
Both cryogenic portable tanks and cargo tanks are similar in design
and construction. Their pressure relief devices have the same function
in protecting the pressure vessel against over pressure for all
conditions of operation. They should be similarly specified, and this
has been done in Section XII, with the exception of the pressure relief
valve setting and the tag stamping of the burst disc for portable
tanks.
Uniformity of Piping and Valving Requirements for Cargo and Portable
Cryogenic Tankage
As has been done for the Pressure Relief Devices, piping, filling
and discharge openings together with valve requirements have been
standardized for portable and cargo cryogenic transport tanks in
Section XII. The standardization of these requirements in Section XII
is viewed as a safety enhancement.

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

Part 180 of the HMR specifies continued service requirements for
DOT and UN portable tanks and DOT specification and certain non-
specification CTMVs. Specific requirements for the qualification,
maintenance, repair, and testing of packagings are located in 49 CFR
part 180: subpart E for CTMVs, subpart F for ton tanks, and subpart G
for portable tanks.
Incorporating Section XII and the NBIC as an alternative for
continued service requirements for these ASME stamped bulk packagings
may impact the roles and responsibilities of persons who perform tests,
inspections, modifications, alterations, and repairs.
To ensure that DOT specification CTMVs 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 currently in the
HMR for Design Certifying Engineer (DCE), Authorized Inspector (AI),
and Registered Inspector (RI) perform continued service functions that
are specified in the table below.

[[Page 79371]]

Table 7--Types of Inspectors Currently in the HMR
------------------------------------------------------------------------
Type of Inspector Qualifications
------------------------------------------------------------------------
A Design Certifying Engineer (DCE) Is a person registered with
the U.S. DOT 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.
Certifies 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.
Must fulfill the knowledge
and ability requirements by meeting
any one of the following
qualifications:
[cir] Have an engineering degree
and one year of work experience in
cargo tank structural or mechanical
design;
[cir] Be currently registered as a
professional engineer by appropriate
authority of a state of the United
States or a province of Canada; or
[cir] Have at least three years'
experience in performing the duties
of a DCE prior to September 1, 1991.
An Authorized Inspector (AI)...... Is 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.
Is not employed by the
manufacturer.
Holds 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.
Has 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.
Has knowledge of applicable
sections of the ASME Code, Quality
Control Programs, and requirements
for the maintenance and retention
of in-transit and permanent
records.
Has received 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 complies with the National
Board's rules for commissioned
inspectors.
An Authorized Inspection Agency Is a jurisdiction that has
(AIA). 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
Is an insurance company
that 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.
A Registered Inspector (RI)....... Is a person registered with
the Department in accordance with
subpart F of part 107 of this
chapter who has the knowledge and
ability to determine whether a
cargo tank conforms to the
applicable DOT specification. A
Registered Inspector meets the
knowledge and ability requirements
of this section by meeting any one
of the following requirements:
Has an engineering degree
and one year of work experience
relating to the testing and
inspection of cargo tanks;
Has an associate degree in
engineering and two years of work
experience relating to the testing
and inspection of cargo tanks;
Has a high school diploma
(or General Equivalency Diploma)
and three years of work experience
relating to the testing and
inspection of cargo tanks; or
Has at least three years'
experience performing the duties of
a Registered Inspector prior to
September 1, 1991.
------------------------------------------------------------------------

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). The different levels of
inspectors and their required qualifications are shown in the table
below.

Table 8--Types of Inspectors in Section XII and the NBIC
------------------------------------------------------------------------
Type of Inspector Qualifications
------------------------------------------------------------------------
An Authorized Inspector (AI)...... Is 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.
Is not employed by the
manufacturer.
Holds 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.
Has 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.
Has knowledge of applicable
sections of the ASME Code, Quality
Control Programs, and requirements
for the maintenance and retention
of in-transit and permanent
records.

[[Page 79372]]

Has received 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 complies with the National
Board's rules for commissioned
inspectors.
A Qualified Inspector (QI)........ Is an inspector regularly
employed by an ASME Qualified
Inspection Organization (QIO) who
has been qualified to ASME-
developed criteria by a written
examination, to perform inspections
under the rules of any jurisdiction
that has adopted the ASME Code.
May not be in the employ of
the manufacturer.
Holds 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.
Has satisfactory expertise,
experience, and background for the
inspection of boilers and pressure
vessels and demonstrate the ability
to perform shop and field (on-site)
inspections to the satisfaction of
the QIA.
Has knowledge of applicable
sections of the ASME Code, Quality
Control Programs, and requirements
for the maintenance and retention
of in-transit and permanent
records.
Has received 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 Certified Individual (CI)....... Is 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.
Is neither an AI nor a QI
and must be certified and qualified
to perform inspections by the CI's
employer.
May be employed by the
manufacturer or assembler.
Has the following minimum
qualifications:
[cir] Knowledge of the requirements
of Section XII for application of
the appropriate Code Symbol stamp;
[cir] Knowledge of the
Manufacturer's or Assembler's
Quality System Program; and
[cir] Training commensurate with the
scope, complexity, or special
nature of the activities to which
oversight is to be provided.
Has a record 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 QA1-1,
Qualifications for Authorized
Inspection.
------------------------------------------------------------------------

For continued service, under both the current HMR and Section XII,
the NBIC authorizes owner/users who meet the requirements of NB-371,
``Accreditation of Owner, User, and Inspection Organizations'' to
perform service inspections, including repairs and alterations, if the
owner/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.
Currently, under the HMR and as proposed in this NPRM, motor carriers
or CTMV owner/operators may perform annual external visual inspections
and leakage tests, with certain limitations (see 49 CFR 180.409).
While Section VIII, Division 1 does not distinguish between types
of tanks and levels of inspectors, 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 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 either Section
VIII, Division 1 or Section XII for Class 2 tanks, which is the
designation that the committee set aside originally for rail car tanks
and non-cryogenic portable tanks. While the specifications for Class 2
tanks are expected to be developed and incorporated into future
editions of Section XII and the NBIC, the current editions do not
include them.

Table 9--ASME Transport Tank Classes
----------------------------------------------------------------------------------------------------------------
Type of inspector
Current specification in -----------------------------------------------
Class HMR Section VIII and the
HMR Proposed section XII
----------------------------------------------------------------------------------------------------------------
Class 1............................ UN cryogenic portable tanks Authorized Inspector.. Authorized Inspector.
(See Sec. 178.277) DOT
407 MAWP > 35 psi (See
Sec. 178.347) DOT 412
MAWP > 15 psi (See Sec.
178.348) MC 338 (See Sec.
178.338) MC 331 (See Sec.
178.337) DOT 106A and
110AW (See Sec. 179.300).
Class 2............................ To be developed in future N/A................... N/A.
editions.
Class 3............................ DOT 406 (See Sec. Authorized Inspector.. Certified Individual,
178.346) DOT 407 MAWP <= Authorized Inspector,
35 psi (See Sec. or Qualified
178.347) DOT 412 MAWP <= Inspector.
15 psi (See Sec.
178.348).
----------------------------------------------------------------------------------------------------------------

Repairs and alterations must be performed by organizations holding
a valid National Board ``TR'' certificate of Authorization and in
possession of the appropriate National Board Code symbol stamp.
Alternatively, organizations employing Owner/User/Inspectors and in
possession of a valid Owner/User Certificate of Authorization

[[Page 79373]]

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.

Summary and Supporting Research Initiatives

In this NPRM, PHMSA proposes to amend the HMR in response to
petitions submitted by industry representatives to incorporate Section
XII and the 2013 edition of the NBIC as alternatives to Section VIII,
Division 1 and the current HMR requirements in part 178, for the design
of cryogenic portable tanks and CTMVs, part 179 for the design of ton
tanks, and part 180 for the continuing qualification and maintenance of
CTMVs, cryogenic portable tanks and ton tanks.
As mentioned previously, Section XII and the 2013 edition of the
NBIC will be optional, and industry could choose to continue to use
Section VIII, Division 1 and the current HMR requirements. The table
below provides an overview of the options available to design,
construct, repair and inspect tanks for use should the proposals in
this NPRM be finalized.

Table 10--Summary of Standards Options as Proposed in This NPRM
----------------------------------------------------------------------------------------------------------------
Standard used for:
Stamp --------------------------------------------------------------------------
Build Repair Inspect
----------------------------------------------------------------------------------------------------------------
Specification, Non-Stamped Transport ASME Section VIII with 1992 Edition of the 1992 Edition of the
tanks. 49 CFR Parts 173 and NBIC with 49 CFR Part NBIC with 49 CFR Part
178. 180 or 2013 Edition of 180 or 2013 Edition of
the NBIC without the NBIC without
Supplement 6 and 49 Supplement 6 and 49
CFR Part 180. CFR Part 180
``U'' Stamp.......................... ASME Section VIII with 1992 Edition of the 1992 Edition of the
49 CFR Parts 173 and NBIC with 49 CFR Part NBIC with 49 CFR Part
178. 180 or 2013 Edition of 180 or 2013 Edition of
the NBIC without the NBIC without
Supplement 6 and 49 Supplement 6 and 49
CFR Part 180. CFR Part 180
``T'' Stamp.......................... ASME Section XII as 2013 Edition of the 2013 Edition of the
authorized by proposed NBIC with Supplement 6. NBIC with Supplement 6
173.14.
----------------------------------------------------------------------------------------------------------------

In developing Section XII, the SC XII committee on transport tanks,
as well as other stakeholders, commissioned studies on materials used
in the construction of tanks, components of tanks, and tanks
themselves, to aid in developing safe specifications for transport
tanks. The table below highlights studies that address issues relevant
to this NPRM. This table is not meant to be a definitive list of the
body of research available and serves as a supplement to this
rulemaking effort. The following table summarize these studies and
others that relate to this NPRM, and the results of these studies:

Table 11--Summary of Supporting Research Initiatives
------------------------------------------------------------------------
Relation to ASME
Study Title/Docket No. Study summary Section XII
------------------------------------------------------------------------
DOT sponsored research The study analyzed Results showed that
project PO--TRS56-02-P-7004 DOT 407/412 CTMVs most severe dynamic
Dynamic Analysis of DOT 407/ subjected to stress conditions
412 Cargo Tank Motor dynamic loads. The occur rarely enough
Vehicles. loads were that fatigue may
PHMSA-2010-0019-0010, PHMSA- harmonically not be a
2010-0019-0017, PHMSA-2010- analyzed to contributing factor
0019-0018. determine critical and that current
factors to the DOT regulations
dynamic design of (Section VIII and
the CTMVs. the HMR) may be too
conservative. It
was determined that
more realistic
allowable stress
values for dynamic
loads should be
used as an
alternative to the
HMR. The results of
this study were
used in developing
Section XII.
ASME Standards Technical This study used a The results of this
Report, STP-PT-032, full-scale trailer study noted that
Buckling of Cylindrical, truck tank to new specific
Thin Wall Trailer Truck develop rules criteria for
Tanks. specific to the fabrication such as
PHMSA-2010-0019-0013........ design of DOT straightness, out
cylindrical, thin of roundness, weld
wall tanks. location, and use
Specifically, this of actual material
study focused on properties,
buckling of incorporated in
cylindrical Section XII,
pressure vessels improves upon
under axial Section VIII,
compression and Division 1 and the
examined bending. HMR, and provides
These issues are acceptable design
normally evaluated basis for
using the axial establishing
compression stress buckling design
evaluation design criteria and shell
methods in ASME stiffening details
Section VIII, for transport
Division 1. tanks.
However, this study
sought to define
new methods for
determining
allowable
compressive
stresses.

[[Page 79374]]

Evaluation of the Puncture This study conducted The study indicated
Resistance for Stainless a series of that SST heads had
Steel and Carbon Steel Tank puncture resistance greater puncture
Heads. tests on various resistance compared
PHMSA-2010-0019-0012........ tank heads. The with CS heads. The
head sections results of this
tested fabricated study were used in
of stainless steel developing Section
(SST) and carbon XII specifically
steel (CS) with determining types
nominal wall of materials
thickness of \1/4\ authorized and
inch, \3/8\ inch additional safety
and \1/2\ inch. The requirements for
objective of the materials
puncture resistance authorized in
tests was to Section XII.
demonstrate that
SST heads are more
puncture resistant
than CS heads.
Evaluation of the Puncture This study conducted The results of this
Resistance for Bare and a series of study indicated
Insulated Stainless Steel puncture resistance that \3/8\-inch-
(ISO) Tank Heads. tests on various thick SST heads are
PHMSA-2010-0019-0015........ types of ISO tank equal to or more
head sections with puncture resistant
and without than \1/4\-inch-
insulation and thick SST heads
jackets. The head with 4\1/4\-inch-
sections tested thick insulation
were SST with and a 20-gage
nominal wall aluminum jacket.
thickness of \1/4\ Section XII
inches to \3/8\ authorizes the use
inches. The of \3/8\-inch-thick
objectives of the SST heads; whereas,
puncture resistance Section VIII and
tests were to the HMR does not.
demonstrate that \3/
8\-inch-thick SST
heads are equal to
or more puncture
resistant than \1/
4\-inch-thick SST
heads with 4\1/4\-
inch-thick
insulation and a 20-
gage aluminum
jacket.
Evaluation of Design Margins This report examines This study concludes
for ASME Code Section VIII, vessels designed to that a reduction in
Davison 1. Section VIII, the present design
PHMSA-2010-0019-0016........ Division 1. The margins from 4 to
main issues about 3.5 at
affecting the temperatures below
safety of those the creep range
vessels are ductile would be justified
rupture and brittle based on the
fracture. Tests on improvements in the
vessels with Code rules and
different strain excellent past
hardening exponents experience with
have demonstrated vessels built to
that ductile the Code rules.
rupture is highly
unlikely with
reduced margin of
3.5 on ultimate
tensile strength.
3.5 Material Design Factor ASME Pressure Vessel The results of the
and other Recent Changes to Research Committee study indicated
the ASME Boiler and instituted a that the design
Pressure Code. research study in margin for pressure
PHMSA-2010-0019-0014........ which it reviewed vessels could be
burst tests, safely reduced from
failure data, 4.0:1 to 3.5:1.
failure modes-- This study observed
particularly that most failures
fatigue and were the results of
fracture and poor notch
related toughness toughness, service
requirements, degradation and
fabrication operating problems.
practices, improved The biggest change
materials, advances that justifies the
in welding, change in design
examination and margin is
testing. advancements in
materials and more
thorough
understanding of
materials behavior.
WYKE Laboratories--Test In this study a The results of the
Report. Cargo Tank was study were used to
PHMSA-2010-0019-0017........ subjected to develop design
Mobility Testing. criteria for
Specifically, CTMV transport tanks in
was driven on Section XII that
public roads, and had not been
subjected to considered in
dynamic forces in developing Section
transport. The VIII.
study collected
data under a broad
range of transport
conditions.
Report of Cargo Tank In this study, MC305 The results
Rollover Test on an MC 305 cargo tanks were demonstrated the
Aluminum Trailer. rolled over and weaknesses in the
PHMSA-2010-0019-0019........ dragged over a tank structure as a
concrete surface. result of a roller.
This study was These results were
designed to measure used to develop
the cargo tanks built-in rollover
response to such an protection in
incident. transport tanks in
Section XII.
A Practical Methods for the Studies the use of Demonstrates that
Rational Design of Ship Rational design in rational design
Structures; Hughes, Mistree shipbuilding and methodology often
and Zanic; Journal of Ship examines the provides an
Research, Vol. 24, No. 2, application of a equivalent or
June 1980, pp. 101-113. systematic method greater level of
for determining the safety to typically
design variables used practical
that optimize a design methods
specific objective
while satisfying
the constraints.
------------------------------------------------------------------------

Discussion of Proposed Amendments and Applicable Comments

In the ANPRM that was published on December 23, 2010, titled
``Hazardous Materials: Adoption of ASME Code Section XII and the
National Board Inspection Code'' (Docket No. PHMSA-2010-0019, (HM-241),
75 FR 80765), we asked a number of questions pertaining to the
potential costs, burdens, or safety concerns associated with
incorporating Section XII and the 2011 edition of the NBIC for the
construction and continued service of cargo tank motor vehicles,
cryogenic portable tanks and ton tanks. Specifically, in the ANPRM we
asked for comments on the following:
What are the differences between Section XII and the HMR
requirements?
What is the potential safety and economic impacts of
adopting the new Section XII requirement allowing a 3.5:1 design
margin?
What are the safety and economic impacts of adopting the
new Section XII requirements for the testing and fabrication of special
materials for construction and repair of MC 331 cargo tanks?
What are the safety and economic impacts of adopting the
Section XII requirement for allowable peak secondary stresses for MC
331 cargo tanks?
What are the safety and economic impacts of using minimum
allowed thickness for pressure parts instead of

[[Page 79375]]

nominal thickness and corrosion allowance?
Are there substantial differences between the construction
and continued service requirements of the HMR and 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?
For existing cargo tanks designed, constructed and stamped
with Section VIII, Division 1 ``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?
Should PHMSA adopt through incorporation by reference
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?
Would incorporation of Section XII and the NBIC for
construction and continued service of cargo tanks positively affect
transportation safety, and/or reduce industry costs?
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?
Are 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?
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?
Are there substantial differences between the construction
and continued service requirements of the HMR and Section XII for
multi-unit tank car tanks? If so, what are the potential costs,
burdens, or safety problems associated with incorporating Section XII
and the NBIC for the construction and continued service of these tanks?
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?
Should PHMSA adopt through incorporation by reference
Section XII and the most recent edition of the NBIC for construction
and continued service of multi-unit tank car tanks? If so, which
existing requirements of the HMR should be replaced with references to
these consensus standards?
Would incorporation of Section XII and the latest edition
of the NBIC for construction and continued service of multi-unit tank
car tanks positively affect transportation safety, and/or reduce
industry costs?
Are Section XII and the NBIC rules of construction and
continued service of multi-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?
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 multi-
unit tank car tanks?
The ANPRM generated comments from 32 stakeholders, many of whom
submitted multiple comments-some on the length of the comment period
and most on the substance of the ANPRM. The majority of the comments--
40 different comments from 21 commenters--were in opposition to
incorporating by reference the two sets of standards into the HMR.\14\
The ANPRM was not specific as to potential future course of action.
Specifically, the ANPRM did not explicitly state whether PHMSA was
going to propose to replace Section VIII, Division 1 and the HMR with
Section XII and the NBIC, or if we were going to propose to allow
Section XII and the NBIC to be used as alternatives. In the ANPRM,
there were no proposals set forth regarding the method of incorporation
into the regulations of Section XII and the NBIC (e.g. outright
replacement of Section VIII, Division 1 with Section XII and the NBIC
or incorporation of Section XII and the NBIC as an alternative in
addition to Section VIII, Division 1). For that reason, it was the
assumption of many commenters that Section XII would outright replace
Section VIII, Division 1 and the HMR, and these commenters voiced their
opposition to Section XII with the understanding that they would not
have an option as to what requirements they would be able to use.
---------------------------------------------------------------------------

\14\ The 21 commenters in opposition were: Alloy Custom
Products, Altom Transport, ATA, Asian Tank Container Organization,
Baltimore Cargo Tank Services, Inc., C & R Fleet Services, Inc,
CVSA, DGAC, David Fulbright/WRG, Eurotainer U.S. Inc., International
Tank Container Organisation, J & S Transport Co, Inc., James K.
Victory, Jerry White, NPGA, NTTC, Silver/CIMS LLC, Steigerwalt
Associates Inc., Stolt Nielsen USA Inc., TTMA, and Vulcraft of New
York.
---------------------------------------------------------------------------

The comments are accessible by docket number at the following URL:
https://www.regulations.gov. A listing of the commenters, including the
docket number associated with the comment, is provided below (company
or organization abbreviations used throughout the document are also
provided):

Table 12--Commenters
----------------------------------------------------------------------------------------------------------------
Commenter Abbreviation Docket No.
----------------------------------------------------------------------------------------------------------------
Alloy Custom Products.................. .......................... PHMSA-2010-0019-0049
Altom Transport........................ .......................... PHMSA-2010-0019-0003
American Society of Mechanical ASME...................... PHMSA-2010-0019-0032
Engineers.
American Trucking Associations......... ATA....................... PHMSA-2010-0019-0043
Asian Tank Container Organization...... .......................... PHMSA-2010-0019-0060
Baltimore Cargo Tank Services, Inc..... .......................... PHMSA-2010-0019-0046
Bulk Truck & Transport Service, Inc.... .......................... PHMSA-2010-0019-0004
C & R Fleet Services, Inc.............. .......................... PHMSA-2010-0019-0022
C & R Fleet Services, Inc.............. .......................... PHMSA-2010-0019-0037
Commercial Vehicle Safety Alliance..... CVSA...................... PHMSA-2010-0019-0056
Compressed Gas Association............. CGA....................... PHMSA-2010-0019-0025
Compressed Gas Association............. CGA....................... PHMSA-2010-0019-0048

[[Page 79376]]

Container Technology Inc............... CTI....................... PHMSA-2010-0019-0059
Dangerous Goods Advisory Council....... DGAC...................... PHMSA-2010-0019-0050
Dangerous Goods Advisory Council....... DGAC...................... PHMSA-2010-0019-0061
David Fulbright/WRG.................... .......................... PHMSA-2010-0019-0023
Eurotainer U.S. Inc.................... .......................... PHMSA-2010-0019-0054
Gardner Cryogenics..................... .......................... PHMSA-2010-0019-0057
Heil Trailer International............. .......................... PHMSA-2010-0019-0036
International Tank Container .......................... PHMSA-2010-0019-0055
Organisation.
J & S Transport Co, Inc................ .......................... PHMSA-2010-0019-0034
James K. Victory....................... .......................... PHMSA-2010-0019-0033
Jerry White............................ .......................... PHMSA-2010-0019-0029
John Counts............................ .......................... PHMSA-2010-0019-0007
Monte Ward............................. .......................... PHMSA-2010-0019-0040
Monte Ward............................. .......................... PHMSA-2010-0019-0041
National Board of Boiler and Pressure National Board............ PHMSA-2010-0019-0051
Vessel Inspectors.
National Propane Gas Association....... NPGA...................... PHMSA-2010-0019-0028
National Propane Gas Association....... NPGA...................... PHMSA-2010-0019-0053
National Tank Truck Carriers, Inc...... NTTC...................... PHMSA-2010-0019-0002
National Tank Truck Carriers, Inc...... NTTC...................... PHMSA-2010-0019-0058
Nicholas Paulick....................... .......................... PHMSA-2010-0019-0039
Nicholas Paulick....................... .......................... PHMSA-2010-0019-0052
Pressure Sciences Incorporated......... PSI....................... PHMSA-2010-0019-0047
Silver/CIMS LLC........................ .......................... PHMSA-2010-0019-0044
Steigerwalt Associates Inc............. .......................... PHMSA-2010-0019-0042
Stolt Nielsen USA Inc.................. .......................... PHMSA-2010-0019-0062
Truck Trailer Manufacturers Association TTMA...................... PHMSA-2010-0019-0009
Truck Trailer Manufacturers Association TTMA...................... PHMSA-2010-0019-0045
Vulcraft of New York................... .......................... PHMSA-2010-0019-0006
----------------------------------------------------------------------------------------------------------------

Comments in Favor of Adopting Section XII and NBIC

Comments received to the HM-241 ANPRM in favor of incorporating
Section XII and the latest NBIC can be grouped generally into three
categories: (1) Use of the standards would be economically beneficial;
(2) adoption of Section XII and the 2013 edition of the NBIC will
enhance safety; and (3) the standards are internationally compatible.
The categories in support of adopting the standards, comments that
reflect the nature of the support, and our responses to the comments
are as follows.

The Use of Section XII and the 2013 Edition of the NBIC Would Be
Economically Beneficial

Comments received from Gardner Cryogenics and Pressure Sciences
Incorporated (PSI) indicated that adoption of the two standards would
be economically beneficial. Gardener Cryogenics comment pertained to
benefits to industry and provided a list of examples of improvements
provided in Section XII, including:

Adoption of reference steel thickness and equivalent thickness
gives design engineers the freedom to utilize the material
properties like modulus of elasticity, tensile strength and
poisson's ratio to optimize the design for tank wall/vacuum jacket
wall penetration.

We agree with Gardner Cryogenics that adopting Section XII will
provide flexibility in design and material construction of tanks that
would enable U.S. manufacturers to compete internationally without
compromising safety.
PSI also spoke to the benefits to manufacturers under Section XII,
indicating that the standards, if adopted, would allow manufacturers
the flexibility to purchase the raw material that is least expensive at
the time. This flexibility may reduce the cost to the manufacturer, who
can pass those reduced costs on to the buyer of the tank. We agree with
PSI and believe that manufacturers would choose to build Section XII
tanks only if it is economically beneficial.

Adoption of the Section XII Will Increase Safety

Both Thompson Tank, Inc. and Gardener Cryogenics indicated that
tanks designed to Section XII would increase the safety of portable and
cargo tanks. Thompson Tank, Inc. states that:

ASME is an international non-profit organization of the best and
brightest professional engineers who volunteer their time to protect
public safely through good engineering and design practices. DOT
presently refers to ASME Section VIII and requires ASME
certification of the most dangerous and complicated DOT
specification cargo tanks. ASME Section XII will specifically help
address the additional loads and stresses encountered when traveling
over the highway.

PHMSA agrees with Thompson Tank and Gardener Cryogenics that
portable and cargo tanks designed to Section XII provide at least an
equivalent level of safety to portable tanks and cargo tanks designed
to Section VIII. Cargo tanks that are partially loaded with liquid
cargo may become unstable during sudden starts or stops, on rough
terrain, or when the vehicle is turning. The liquid will slosh and make
the tank more likely to roll over. Further, cargo tanks that are
frequently loaded and unloaded--called cyclic loading--such as cargo
tanks used to transport hazardous materials, are more likely to become
``fatigued \15\'' and crack. The design incorporated in Section XII,
slightly reduces stiffness and increases elastic deflection with
thinner tank walls. Section XII also provides specific design guidance
to help mitigate the potential for stress corrosion cracking in tanks
made of quenched and tempered steels.
---------------------------------------------------------------------------

\15\ Fatigue is the progressive and localized structural damage
that occurs when a material is subjected to cyclic loading. (Kim,
W.H; Laird, C. (1978). Crack Nucleation and State I Propagation in
High Strain Fatigue-II Mechanism. Acta Metallurgica. p. 789-799.)
---------------------------------------------------------------------------

Additionally, in Section XII, design stress criteria is the same
for different cargo tank specifications, provided the tanks are to
subjected to identical loads. This consistent criteria potentially
reduces the added cost and weight of

[[Page 79377]]

certain additional accident protection devices. As a result, it allows
for use of thinner materials and enables tanks to have greater
capacities than those built to the Section VIII, Division 1 standards.
As such, this could result in fewer tanks carrying hazardous materials
on U.S. highways, which should translate to fewer hazardous materials
incidents. Further, the research sponsored by the U.S. DOT and ASME,
that is summarized in Section V and Table 11 of Section VII of this
NPRM indicates that tanks built according to Section XII are as safe as
tanks authorized currently.

The Standards Are Compatible Internationally

PSI indicated that tanks designed to Section XII would increase
harmonization with international standards. They state:

Section XII is written using terminology compatible with
international standards such as UN standards and International
Maritime Dangerous Goods Code (IMDG). Its intent is to be useable
internationally; and several foreign manufacturers already possess
the T-symbol stamp certifying their capability to manufacture
vessels using the new code.

We agree with PSI that Section XII and the NBIC may be used
internationally and are consistent with other international standards,
including UN-based standards and regulations. Several foreign
manufacturers already possess the T-symbol stamp certifying their
capability to manufacture vessels using the new code.

Comments in Opposition to Adopting Section XII and NBIC

Comments in opposition to adopting the standards ranged in subject
matter and can be grouped into five categories: (1) The costs are too
high; costs include the cost of purchasing the standards, and training
inspectors and enforcement personnel; (2) it would be difficult to
comply with the standards; (3) it would be difficult to enforce the
standards; (4) adopting the standards would not be in the interest of
harmonization; and (5) adoption of the standards would be unsafe. The
categories in opposition to adopting the standards, comments that
reflect the nature of the support, and our responses to the comments
are as follows.

The Cost of Purchasing Section XII and the NBIC Is Too High

Sixteen commenters \16\ expressed concern with the costs of
purchasing Section XII and the NBIC. Altom Transport indicated that
they have 500 trailers maintained at 12 sites. They stated that ``We
would not be able to afford to buy the manuals required to get
maintenance and repair information.'' International Tank Container
Organisation stated that ``the cost of ASME and NBIC codes is
prohibitive in the international community as in certain locations that
handle UN and IMO portable tanks, the combined cost of the two codes
would exceed an individual's annual earnings.'' DGAC stated:

\16\ Altom Transport, ATA, Asian Tank Container Organization,
CVSA, DGAC, David Fulbright/WRG, International Tank Container
Organisation, James K. Victory, Jerry White, NPGA, NTTC, Silver/CIMS
LLC, Steigerwalt Associates, Inc., Stolt Nielsen USA, Inc., TTMA,
Vulcraft of New York.
---------------------------------------------------------------------------

We believe the cost of these documents, would limit their
availability to those who are subject to and use the regulations,
including tank manufacturers, shippers, and carriers, as well as,
those in the enforcement community. While the requirements are now
readily available in 49 CFR, which can be obtained at no cost
electronically, adopting the requirements by reference would mean
that anyone wishing to comply with the regulations would be required
to purchase publications (and updates) that would cost in the range
of $650.

NPGA's echoes other commenters on this subject. They state:

NPGA believes that purchasing the ANPRM's referenced codes
creates a hardship and financial barrier on small businesses and an
impediment to the review of PHMSA's proposed regulations. Further,
the initial cost of approximately $1.8 million associated with
purchasing the ANPRM's referenced codes could actually double before
a final rule is promulgated as these codes are in constant change by
the very nature of the rules and regulations which govern their
revision cycles.

As PHMSA is not proposing to require manufacturers to use Section
XII and the 2013 edition of the NBIC, and to do so is completely
voluntary, PHMSA is not imposing any additional costs on manufacturers.
A manufacturer will not use Section XII to build a tank unless it
believes it is net beneficial to do so. Those who choose to use Section
XII and the 2013 edition of the NBIC will incur some cost and realize
some benefits from the use of the new standard.

Cost of Training and Inspecting Tanks Too High

David Fulbright/WRG, NPGA, and Steigerwalt Associates Inc.,
commented on the costs incurred for training and inspections. NPGA
stated:

NPGA can estimate initial costs to our industry as follows. If
approximately 2800 members of NPGA are retail marketers and only
two-thirds of these marketers employ their own Registered Inspector,
this represents approximately 1875 individuals who need to obtain
NBIC certification. Testing costs, the frequency of testing, or an
estimate of the cost to train employees on non-commodity specific
transport maintenance is not provided. Given these uncertainties,
NPGA estimates an initial cost to our members based solely on a test
cost of $200 per R.I. would be in excess of $375,000.

Silver CIMS LLC commented and C & R Fleet Services, Inc., on the
cost of training to comply with the new standards. Silver CIMS LLC
states:

Anyone that's already developed training and quality plans would
redundantly be forced to prescribe to NBIC's training and
certification scheme's (at great cost due to the redundant training,
training fees charged and loss of earnings during the non-revenue
generating man hours needed to complete the redundant training). As
a small business, this would be an unnecessary financial burden.

And C & R Fleet Services, Inc., states:

The purpose of the HMRs is to enhance the safe transportation of
hazardous materials. Motor carrier compliance with the HMRs is
necessary to protect the public. To ensure this compliance, motor
carriers must be aware of the requirements set forth in the HMRs.
Requiring motor carriers to purchase Industry Standards to ensure
compliance is a serious safety breach, as some carriers may not be
able to purchase copies of these regulations for each driver,
maintenance professional, and operations staff. Over ninety-six
percent of the trucking industry qualifies as a small business.

As stated previously, in this NPRM we are not proposing to require
motor carriers to use or purchase tanks built to Section XII, so an
owner or user of tanks would only choose to purchase or use a tank
built to Section XII if it makes business sense to do so.
The cost of enforcing Section XII and the NBIC was a concern to
also ATA, John Counts and TTMA. ATA states:

PHMSA is dependent on literally hundreds of state troopers to
enforce the HMRs during roadside inspections. How many states have
the extra funds in their budget to purchase the copyrighted
standards for each of their inspectors? If the cargo tank standards
are copyrighted and not made available to these enforcement
officials, how will they be upheld? The inability to enforce aspects
of the HMRs could create a serious safety risk.

ATA is correct in that PHMSA regulations are enforced by hundreds
of state troopers throughout the country. We understand that the cost
of purchasing the standards for each inspector would be prohibitive for
many state governments. It is our understanding that during roadside
inspections, state officials are most often only concerned with
identifying that the ASME mark is intended for the packaging on which
it is stamped. This

[[Page 79378]]

would not require state governments to purchase copies of Section XII
for every state trooper. Rather, the most in-depth inspection performed
on a tank is handled by an independent third-party inspector, typically
a National Board Commission Inspector from an insurance company. This
would also apply to the repair of the ASME packaging using the NBIC,
which also requires a marking. Furthermore, as engineers at PHMSA were
instrumental in developing Section XII and the 2013 edition of the
NBIC, they understand them and are available to help interpret the
standards. As with other highly technical or scientific standards that
we incorporate in the HMR, PHMSA's Hazardous Materials Information
Center staff will have access to the engineers who helped develop the
standards. Furthermore, ASME issues written replies to inquiries
concerning interpretation of technical aspects of the Code.
PHMSA acknowledges the purchase of copies of Section XII may be
cost prohibitive to certain entities. Therefore, PHMSA seeks comets on
whether state and local governments will need to purchase the copies of
Section XII for all applicable personnel or if interpretations issued
by ASME or PHMSA will be sufficient.

Incorporating Section XII and the Latest NBIC Is Contrary to
International Harmonization

The commenters who voiced their opposition to incorporating the
standards for reasons pertaining to international harmonization,
supply, use, or represent users or suppliers of cryogenic portable
tanks. The commenters indicated that the vast majority of portable
tanks are built and inspected in accordance with the IMDG, and the
industry believes that switching to Section XII and the latest NBIC may
impede international trade.
Asian Tank Container Organization stated:

Adopting ASME XII and/or NBIC for in service or Continued Use
Inspection would be counter to the efforts made internationally over
the past 12 years by representatives of the various countries
Competent Authorities. The UN Model Regulations for the Transport of
Dangerous Goods is the international consensus standard for UN
Portable tanks. This document now forms the basis for UN Portable
tank regulations in IMDG, RID, ADR and 49 CFR parts 100[middot]180,
as applicable.

The comments provided by Eurotainer, a company that leases portable
tanks to manufacturers for import and export bulk shipments of
liquefied and cryogenic gases, characterize the comments provided by
other portable tank stakeholders. Eurotainer ``would like to see a more
harmonized adoption of global regulatory requirements for the design,
construction and certification of UN and IM Portable tanks . . .'' They
state:

As Section XII is being proposed to apply to the Cryogenic
Portable tank segment (IM 7 & UN T 75), Eurotainer sees this action
as segregating an equipment type and applying specialized rules that
hinder the equipment in international trade. Current construction of
the UN T 75 tanks in the U.S. is governed by the 49 CFR sections
which include the requirement of ASME Section VIII Division I and as
such section is applied currently we feel SECTION XII would be
another layer of regulation that is adding no additional margin of
safety but would add another layer of regulatory burden to the
global community.

The International Tank Container Organization states:

We consider that any deviation away from the aforementioned
International consensus standard would be a step backwards and a
move away from the long desired goal of International Harmonization.
Adopting ASME XII and/or NBIC for in-service or Continued Use
Inspection would, we believe, be counter to the efforts made
internationally over the past 12 years. The international consensus
standards for UN Portable tanks is the aforementioned UN Model
Regulations, which provides the basis for UN Portable tank
requirements in set down RID, ADR, IMDG and 49 CFR parts 100-180, as
applicable and not ASME XII or NBIC.

As with Section VIII, Division 1, the 1992 edition of the NBIC and
the HMR, which are the current requirements for design and construction
of transport tanks, Section XII and the 2013 edition of the NBIC are
compatible with international recommendations and standards. PHMSA
fully supports the goal of international harmonization through its work
with stakeholders at the UN and IMDG. PHMSA also incorporates both of
these international standards by reference within the HMR. Currently
there is no universally agreed upon pressure vessel code that is
recognized by the committee of experts represented at the UN; however,
the UN Model Regulations defer to Competent Authorities to determine
what pressure vessel code is to be used for the design and construction
requirements. The United States has recognized the ASME Code (Section
VIII, Division 1) as the pressure vessel code for design and
construction through its incorporation by reference in the HMR since
inception of the UN Model Regulations. As stated earlier in this NPRM,
Section XII is being proposed as an alternative to existing
requirements.
Eurotainer asked if a foreign approval agency \17\ that tests a
non-U-stamped IM or UN portable tank would be required to carry an NBIC
registration and wondered, if so, whether the DOT or NBIC would be able
to police those agencies. 49 CFR part 107, authorizes certification
agencies to witness testing and examination of portable tanks on behalf
of the DOT. They further questioned whether the owner or user of non-U-
stamped portable tanks would be responsible for maintaining the NBIC
registration of inspectors to meet the requirements of the NBIC code in
foreign countries on tanks that may be imported into or exported out of
the United States. The answer is no. As is currently required in the
HMR, the Designated Approval Agency (DAA) (see 49 CFR part 107) would
continue to authorize repairs and witness inspections (see 49 CFR part
180). If it needs to be repaired, the facility doing the repair would
need authorization from the DAA for the repair (see 49 CFR 180.605(j)),
with the appropriate Authorized Inspector verifying the repair is done
in accordance with the NBIC, and the DAA witnesses the final
hydrostatic or pneumatic test (see 49 CFR 180.605(h)(3)), in accordance
with criteria set forth in the NBIC. For the ``T'' stamped tanks, this
process is similar to that in the HMR, and is specified in the 2013
edition of the NBIC.
---------------------------------------------------------------------------

\17\ A foreign approval agency is an entity outside of the U.S.
that PHMSA has granted authority to perform a certain function
required under the HMR. In this case, a foreign approval agency
would test and certify that certain transport tanks meet the NBIC
(see 49 CFR 107.402).
---------------------------------------------------------------------------

Eurotainer asked if owners and operators of the equipment would be
allowed to perform their own inspections and testing per the CFR 49
Sec. 180.605 with a staff member that is a registered NBIC inspector.
If so, Eurotainer feels that ``the NBIC adoption will lower the safety
margin that is now in place using uninterested third parties instead of
a staff member to the company owning or operating the equipment.''
PHMSA is aware that there is always the potential that a person--
either a third-party or an employee--may not comply with a requirement
stipulated in a regulation, either set forth directly in the HMR or
incorporated by reference in the HMR; however, a person who has
function-specific training in inspecting tanks, regardless of their
employer, should be able to perform the task to ensure that the tank is
safe. PHMSA conducts regulatory enforcement and issues civil penalties
to entities that fail

[[Page 79379]]

to perform inspections as required by the HMR.

Adopting the Standards Would Be Unsafe

Five commenters \18\ indicated that adopting the standards would be
unsafe. Asian Tank Container Organization states:
---------------------------------------------------------------------------

\18\ Asian Tank Container Organization, C & R Fleet Services,
Inc, International Tank Container Organisation, Steigerwalt
Associates Inc., and Stolt Nielsen USA Inc.

The enforcement authorities and Port Authorities in most foreign
countries ONLY recognize IACS [International Association of
Classification Societies, Ltd.] member Approval Agencies due to
their long standing involvement in the IMDG code. Speaking from
recent Industry experience, tanks inspected by non-IACS members
would be stopped in transit and dangerous goods would need to be
trans-loaded to an approved portable tank. The trans-load costs and
increased risks would make it impractical to ship product worldwide
and this would prove a barrier to International trade which may harm
---------------------------------------------------------------------------
both the USA and third party economies.

Similarly, the International Tank Container Organisation states:

We anticipate that UN Portable tanks inspected by other non-IACS
members would be stopped in transit and dangerous goods would need
to be trans-loaded (as has been the case) to an approved portable
tank (increasing both cost and risk, exponentially, as most
incidents happen during load/unload operations).

PHMSA does not intend to change the established process of using
IACS preferred member Approval Agencies \19\ with regard to portable
tanks, nor the HMR process of authorization for foreign approval
agencies (see 49 CFR 107.402). As stated above, under this NPRM the
inspection of a cryogenic portable tank, whether ASME ``U'' or ``T''
marked, would follow current HMR requirements in that the manufacture
or repair of the pressure vessel would be subject to an Authorized
Inspector in addition to the involvement of an Approval Agency.
---------------------------------------------------------------------------

\19\ IACS is a membership organization that endorses member
foreign approval tank inspection agencies as ``preferred approval
agencies.'' Foreign enforcement and port authorities recognize these
inspection agencies over non- IACS preferred inspection agencies
according to IACS.
---------------------------------------------------------------------------

PHMSA, by proposing to incorporate Section XII and the 2013 edition
of the NBIC as alternatives to the current regulatory system is not
lessening safety, or creating barriers to international trade that
would harm U.S. or third-party economies. On the contrary, PHMSA
believes that the proposed rulemaking will help the U.S. economy by
allowing the manufacture and repair of an internationally competitive
product.
Furthermore, the ASME standards have been deemed equivalent by
PHMSA technical staff and have been proven to provide, through special
permits, an equivalent level of safety to that of tanks constructed and
designed according to the specifications currently provided in the HMR.
For example, special permits SP-05749; SP-10481; and SP-12630, SP-
14710, SP-14467, 14437, providing similar flexibility in materials of
construction as provided by Section XII, allow reduced shell thickness
and alternatives to the materials of construction specified in the HMR
for portable tanks and cargo tanks. These permits have been in use for
decades with over 13,000 shipments and no reported incidents.

Voluntary Consensus Standards Are Inherently Inconsistent With the
Administrative Procedures Act

Nine additional commenters generally oppose the incorporation of
voluntary consensus standards.\20\ NPGA opposes ``DOT reliance on a
third (3rd) party to write regulations that have such a profound impact
on our industry.'' This sentiment is representative of the many
commenters opposed to incorporation of the standards because they are
developed by voluntary consensus organizations. The commenters are
concerned that they would no longer have a voice in changes to the
regulations. They also are concerned that the changes made would no
longer be transparent. Silver/CIMS LLC states:
---------------------------------------------------------------------------

\20\ Baltimore Cargo Tank Services, Inc., Dangerous Goods
Advisory Council, J & S Transport Company, Inc., Jerry White,
National Propane Gas Association, National Tank Truck Carriers,
Inc., Silver CIMS, LLC, Tank Truck Manufacturers Association,
Vulcraft of New York.

The UN and IMO Portable tank Industry have had NO input in the
development of ASME or NBIC proposed rules. USDOT should NOT adopt
ASME Chapter XII or NBIC for any other purpose as the publications
are NOT International Consensus Standards for UN Portable tank
construction or use. If USDOT were to replace 49 CFR 100-180 with
ASME and NBIC, the UN Portable tank Industry stakeholders would be
hamstrung in their abilities to influence future rules and
---------------------------------------------------------------------------
regulations.

While we understand the concerns regarding incorporating voluntary
consensus standards, PHMSA and many other Federal agencies often
incorporate by reference standards developed by industry experts. In
fact, the National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires agencies to use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or is
otherwise impractical. Public Law 104-113 requires Federal agencies to
use industry consensus standards to the extent practical; it does not
require Federal agencies to endorse a standard in its entirety. The law
does not prohibit an agency from generally adopting a voluntary
consensus standard while taking exception to specific portions of the
standard if those provisions are deemed to be ``inconsistent with
applicable law or otherwise impractical.'' Taking specific exceptions
furthers the Congressional intent of Federal reliance on voluntary
consensus standards because it allows the adoption of substantial
portions of consensus standards without the need to reject the
standards in their entirety because of limited provisions that are not
acceptable to the agency.
It has been PHMSA's practice to review new editions and addenda of
the ASME BPVC and NBIC and periodically update Sec. 171.7 to
incorporate newer editions and addenda by reference. New editions of
the subject codes will be issued every two years. The BPVC was last
incorporated by reference into the regulations under Docket No. RSPA-
99-6213 (HM-218) (August 18, 2000; 65 FR 50450). In that final rule,
Sec. 171.7 was revised to incorporate by reference the 1998 edition of
Sections II (Parts A and B), V, VIII (Division I) and IX, of the BPVC.
The NBIC 1992 Edition was incorporated by reference under Docket HM-
183C (November 3, 1994; 59 FR 55162). We intend to continue to review
these standards, and either incorporate them in their entirety,
incorporate portions of these standards, or not incorporate them,
depending on the outcome of our review. Furthermore, we intend to be
active participants in the development of future editions of Section
XII and the NBIC.
Alloy Custom Products, NPGA and NTTC expressed concern that
interpretations of the standards would not be readily available through
PHMSA. As stated earlier, engineers at PHMSA were instrumental in the
development of the standards, they understand them, and are available
to help interpret them. As with other highly technical or scientific
standards that we incorporate in the HMR, PHMSA's Hazardous Materials
Information Center staff will have access to the engineers who helped
develop the standards. PHMSA seeks comment on the availability of
interpretations of Section XII and the NBIC, specifically, if

[[Page 79380]]

access to interpretations through ASME and PHMSA would be sufficient.
Finally, as mentioned above the meetings of both ASME and the NBIC
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. The NBIC subcommittees
consider correspondence from the general public in the form of requests
for interpretation, revision of existing standards, and requests to
develop new standards. The standards-writing subcommittees, subgroups,
and task groups are open to participation by representatives of groups
that are materially affected by the code. Each year the NBIC Committee
updates the NBIC and presents the updates on the National Board's Web
site for public review in April-May and August-September.

Miscellaneous Comments

In addition to the comments in support and in opposition to the
ANPRM some comments were neither in support or opposed and offered
other insights and suggestions. These comments are categorized and
discussed further below.

Separate Section XII from the NBIC

CTI and Gardner stated that PHMSA should separate into two separate
rulemakings the incorporation of the NBIC and that of Section XII.
Gardner states that:

Our reservations on NBIC are based on the difficulties in
implementing two new items simultaneously. We would recommend that
Section XII be adopted as soon as possible with the existing DOT
Registered Engineers and Inspectors while giving the interested
parties extended time to familiarize, discuss and comment on NBIC
for eventual adoption in two to three years.

Since Section XII was developed to be used in conjunction with the
NBIC, and that there would be no provision for continued maintenance or
inspections of tanks built to Section XII in the HMR if the latest NBIC
is not incorporated at the same time, we cannot incorporate them at
separate times.

Standards Are Not Accurate

Alloy Custom Products voiced concern that ``the rules for ASME Sec
XII and NBIC should not be adopted as presently written and they should
be sent back to the respective organizations for correction and
modification.'' There were no specific errors cited; however, the
latest editions of both standards were published in 2013. They are up-
to-date and correct typographical errors, and clarify and simplify the
previous editions. As with most in-depth, detailed publications, later
editions of these standards include updates and corrections.

Replacing Standards Would Create a Monopoly

James K. Victory and NTTC indicated that incorporating the
standards would create a monopoly. Victory stated that ``the only
profiteers from this being ASME and the National Board of Pressure
Vessel Inspectors.'' PHMSA thanks James K. Victory and NTTC for their
comments. We will take this view into consideration. However, as
mentioned above, we are proposing to adopt Section XII and the 2013
edition of the NBIC as alternatives to Section VIII, Division 1 and the
HMR, stakeholders will be provided more options.
Adopt Standards As Alternative
Four commenters suggested that if we do incorporate Section XII and
the NBIC, we should only do so as an alternative, not a replacement to
Section VIII, Division 1 and the HMR.\21\ TTMA explains that:
---------------------------------------------------------------------------

\21\ Heil, International Tank Container Organisation, Silver/
CIMS LLC, and Truck Trailer Manufacturers Association.

This approach will give the regulated community the option of
employing the effective existing regulations, or these other
publications. We anticipate the vast majority of industry
stakeholders will choose the existing HMR for their code compliance
---------------------------------------------------------------------------
basis.

We agree, and in this NPRM, we are proposing to take this suggested
approach, and we believe this will diffuse much of the opposition to
the new codes and allow manufacturers greater flexibility.

Proposed Amendments

In this NPRM, PHMSA is proposing to incorporate Section XII, with
limited exceptions, as an alternative to existing standards for the
following tanks: DOT Specification 331, 338, 406, 407, and 412 cargo
tanks, cryogenic portable tanks, and ton tanks. Section VIII, Division
1 applies to construction of new tanks only, and requires that they are
marked with a ``U'' stamp to indicate that they constructed and
certified in accordance with that section. Section XII applies to both
new construction and continued service, and tanks constructed under
this standard will be marked with a ``T.'' Tanks that are repaired
under Section XII would be marked with the ``TR'' stamp. Further, PHMSA
is proposing to adopt the 2013 edition of the NBIC for alterations,
repairs and inspections performed on all ASME constructed tanks used
for the transportation of hazardous materials as an alternative to the
1992 edition that is currently incorporated by reference. The 2013 NBIC
may be used for tanks constructed to the specifications set forth in
Section VIII, Division 1. While the use of the 2013 edition of the NBIC
would be optional under this proposed rulemaking, PHMSA believes that
most manufacturers building to Section VIII, Division 1 would choose to
use the 2013 edition of the NBIC as it is more current. Under this
proposed rule, the 2013 edition of the NBIC must be used for tanks
constructed to the specification set forth in Section XII.
The research and development projects summarized in Section V and
Table 11 of Section VII of this NPRM support the proposed codes and
standards to be adopted in this rulemaking. These research and
development projects are available in the public docket for this
rulemaking. From the results of the studies and its own analysis, PHMSA
has concluded that the proposed standards, as described in this NPRM,
provide an equivalent level of safety to the current standards.
Furthermore, by providing the 2013 edition of the NBIC and Section
XII as options, industry may choose modern materials to fabricate
tanks, enabling the use of different, equally safe, materials
predicated on market value.\22\ The assortment of materials described
in Section XII include different formulations of carbon steel and
alloy/stainless steel, such as Chromium-Nickel Stainless Steel,
Chromium-Molybdenum-Vanadium alloy steel, and titanium alloy. Section
XII also includes specifications for steel fabrication and treatment,
such as tempering, quenching, and forging (See Section XII Part TM).
This variety of approved materials will enable U.S. manufacturers to
better compete internationally. It will allow for greater capacity per
tank, and reduce the number of tanks on highways in certain
circumstances. This reduction of motor vehicles hauling hazardous
materials on the highways would reduce the potential for hazardous
material

[[Page 79381]]

incidents, and consequently, improve safety.
---------------------------------------------------------------------------

\22\ PHMSA has authorized through special permit some of these
new materials authorized in ASME Section XII specifically Heat
Resting Chromium and Chromium-Nickel Stainless Steel Plate, Sheet
and Strip for Pressure Vessels (DOT SP-14467) and Titanium and
Titanium Alloy Strip, Sheet and Plate (DOT SP-14710) see https://phmsa.dot.gov/hazmat/permits-approvals/special-permits.
---------------------------------------------------------------------------

Section By Section Review

The following is a section-by-section review of the amendments
proposed in this rulemaking.

Part 107, Subpart F

This subpart establishes a registration procedure for persons who
are engaged in the manufacture, assembly, inspection and testing,
certification, or repair of a cargo tank or a cargo tank motor vehicle
manufactured in accordance with a DOT specification under subchapter C
of this chapter or under terms of a special permit issued under this
part. In this NPRM, we are not proposing to revise this subpart, but we
are referring to it in section 173.14, where we propose to add the
terminology ``inspectors or their employer must be registered with
DOT.''

Part 171

Section 171.7
This section lists material incorporated by reference into the HMR.
This NPRM proposes to amend Sec. 171.7, Matter incorporated by
reference, to list the 2013 edition of ASME Boiler and Pressure Vessel
Code, Section XII and the 2013 edition of the National Board of Boiler
and Pressure Vessel Inspectors' National Board Inspection Code (NBIC).
Specifically, Sec. 171.7(g)(1) will be revised to include ASME Boiler
and Pressure Vessel Code, Section XII in addition to the currently
reference Section VIII, Division 1. The section references in this
paragraph will remain the same. In addition, Sec. 171.7(x)(1) and (2)
will be revised to include the 2013 edition of NBIC. The section
references in this paragraph will remain the same.

Part 173

Section 173.14
In this NPRM we are proposing to establish new Section 173.14 for
authorization and conditions for the use of Section XII.
This NPRM proposes to revise part 173 by adding Sec.
173.14 to set forth the authorization for the use of Section XII of
American Society of Mechanical Engineers Boiler and Pressure Vessel
Code. Further, in proposed Sec. 173.14 we are setting forth conditions
for the use of Section XII, specifically with respect to continued
service of transport tanks, where Section XII conflicts with the NBIC.
Conditions for all tanks will be specified in paragraph (a)(1) and
include: The 2013 edition of the National Board Inspection Code (NBIC)
must be used for the design, construction, and certification
qualification and maintenance of cargo tank motor vehicles, cryogenic
portable tanks and multi-unit tank car tanks (ton tanks)
ASME Section XII includes use of ASME Sections II
Materials, Section V Nondestructive Examination, Section VIII, Division
1 for Parts only, Section VIII, Division 2 for fatigue analysis only,
Section IX Welding and Brazing, and the NBIC Parts 1, 2 and 3,
including Supplement 6 of Parts 2 and 3;
Nameplate character markings must be a minimum 4 mm (5/
32''), markings directly on the tank must be a minimum 8 mm (5/16'');
Periodic test information must not be allowed on the ASME
nameplate. Marking must be in accordance with the NBIC Part 2 or Part
3, Supplement 6;
Inspection personnel must have qualifications as required
by ASME Section XII, Article TG-4, and be qualified as evident by
having a current NBIC commission with endorsement for the level/type of
inspection to be performed or certification from their employer when
applicable;
Inspectors or their employer must be registered with DOT.
Repairs must be performed by a facility holding a current
NBIC certificate of authorization for the use of the National Board
``TR'' Stamp.
Conditions and requirements for cargo tanks will be specified in
paragraph (a)(2) and must conform to all applicable requirements of
part 173; and must meet ASME Section XII Modal Appendix 1, the
appropriate Article for the category of cargo tank, all Mandatory
Appendices and Non Mandatory Appendices A thru E and G thru H, except
as follows:
Repairs must be performed by a DOT-registered facility
holding a current NBIC certificate of authorization for the use of the
National Board ``TR'' Stamp.
For Category 338 Cargo Tanks, ASME Section XII, Modal
Appendix 1, Article 4, paragraph 1-4.4(g)(6) does not apply. A minimum
jacketed thickness of 2.4 mm (0.0946 in) 12 gauge in the reference
steel is permitted (IBR see Sec. 171.7).
Conditions and requirements for cryogenic portable tanks will be
set forth in paragraph (a)(3) and must conform to all applicable
requirements of this Part; and must meet ASME Section XII Modal
Appendix 3, Article 1, all Mandatory Appendices and Non Mandatory
Appendices A thru E and G thru H, except as follows:
External and internal visual inspection in accordance with
NBIC Part 2 Supplement 6 are required in addition to ASME Section XII,
Modal Appendix 3, Article 1, paragraph 3-1.10(b), and Article 1, 3-
1.10(b)(5) (IBR see Sec. 171.7);
ASME Section XII, Modal Appendix 3, Article 1, paragraph
3-1.10(b)(6) does not apply. Periodic test information must not be
allowed on the ASME nameplate. Marking must be in accordance with the
NBIC Part 2 or Part 3, Supplement 6 as applicable. (IBR see Sec.
171.7);
ASME Section XII, Modal Appendix 3, Article 1, paragraph
3-1.10(d) must require inspection personnel to have qualifications as
required by ASME Section XII, Article TG-4, as evident by having a
current NBIC commission with endorsement for the level/type of
inspection to be performed or certification from their employer when
applicable. (IBR see Sec. 171.7); and
ASME Section XII, Modal Appendix 3, Article 1, paragraph
3-1.10 must require Repairs to be performed by a facility holding a
current NBIC certificate of authorization for the use of the National
Board ``TR'' Stamp. Records must be in accordance with the NBIC Part 2
or Part 3, Supplement 6 as applicable.(IBR see Sec. 171.7).
Conditions and requirements for ton tanks will be set forth in
paragraph (a)(4). Ton tanks must conform to all applicable requirements
of part 173 and must meet Modal Appendix 4, Article 1, all Mandatory
Appendices and Non Mandatory Appendices A thru E and G thru H except as
follows:
ASME Section XII, Modal Appendix 4, Article 1, paragraph
3-1.10 Manufacturer-certified fusible plugs, tested and qualified under
the fuse plug manufacturers' written Quality Control system are
required. (IBR see Sec. 171.7);
ASME Section XII, Modal Appendix 4, Article 1, paragraph
4-8 must allow non-ASME marked fusible plugs.;
ASME Section XII, Modal Appendix 4, Article 1, paragraph
4-12(a) must require external and internal visual inspection in
accordance with NBIC Part 2 Supplement 6, S6.15. (IBR see Sec. 171.7);
ASME Section XII, Modal Appendix 4, Article 1, paragraph
4-12(a)) does not apply. Periodic test information must not be allowed
on the ASME nameplate. Marking must be in accordance with the NBIC Part
2 or Part 3, Supplement 6 as applicable.(IBR see Sec. 171.7);
ASME Section XII, Modal Appendix 4, Article 1, paragraph
4-12(e) must require records to be in accordance with the NBIC Part 2
or Part 3, Supplement 6 (IBR see Sec. 171.7);

[[Page 79382]]

Inspection personnel must have qualifications as required
by ASME Section XII, Article TG-4, as evident by holding a current NBIC
commission with endorsement for the level/type of inspection to be
performed or certification from their employer when applicable;
A ton tank that fails a prescribed test or inspection must
be repaired as specified in the 2013 NBIC or removed from service;
Repairs must be performed by a facility holding a current
NBIC certificate of authorization for the use of the National Board
``TR'' Stamp.

Part 178

Section 178.200
In this NPRM we are proposing to establish a new Sec. 178.200 for
the authorization for the use of Section XII and the NBIC for cryogenic
portable tanks.
Section 178.300
In this NPRM, we are proposing to establish a new Sec. 178.300 for
the authorization for the use of Section XII and the NBIC for cargo
tank motor vehicles.

Part 179

Section 179.300
In this NPRM, we are proposing to revise Sec. 179.300 to establish
paragraphs (a) and (b). Paragraph (a) would continue to require that
multi-unit tank car tanks must meet the requirements set forth in the
HMR and paragraph (b) would provide a new authorization for multi-unit
tank car tanks to be designed, constructed and certified in accordance
with Section XII with the conditions and limitations set forth in Sec.
173.14.

Part 180

Section 180.402
In this NPRM, we are proposing to add a new Sec. 180.402 for
authorization for the use of the 2013 Edition of the NBIC with Section
VIII, Division 1 for the qualification and maintenance of cargo tanks.
Section 180.502
In this NPRM, we are proposing to add a new Sec. 180.502 for
authorization for the use of the 2013 Edition of the NBIC with Section
VIII, Division 1 for the qualification and maintenance of tank cars.
Section 180.602
In this NPRM, we are proposing to add a new Sec. 180.602 for
authorization for the use of the 2013 Edition of the NBIC with Section
VIII, Division 1 for the qualification and maintenance of cryogenic
portable tanks.

IX. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This NPRM is published under the authority of the Federal Hazardous
Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 5103(b)
authorizes the Secretary to prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce. This NPRM provides an
alternative to the current process for the design, fabrication,
maintenance and continued service of CTMVs, cryogenic portable tanks
and ton tanks, without compromising safety.
The Administrative Procedure Act (APA) requires Federal agencies to
give interested persons the right to petition an agency to issue,
amend, or repeal a rule (5 U.S.C. 553(e)). 49 CFR 106.95, provides the
process and procedures for persons to petition PHMSA to add, amend, or
delete a regulation. In this NPRM, PHMSA is addressing this statutory
requirement by considering petitions for rulemaking from ASME, the
National Board, and PVMA.

B. Executive Order 13610, Executive Order 13563, Executive Order 12866,
and DOT Regulatory Policies and Procedures

This NPRM is not considered a significant regulatory action under
section 3(f) Executive Order 12866 and, therefore, was not reviewed by
the Office of Management and Budget (OMB). The proposed rule is not
considered a significant rule under the Regulatory Policies and
Procedures order issued by the U.S. Department of Transportation (44 FR
11034).
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. Executive Order 13563, issued January 18,
2011, notes that our nation's current regulatory system must not only
protect public health, welfare, safety, and our environment but also
promote economic growth, innovation, competitiveness, and job
creation.\23\ Further, this executive order urges government agencies
to consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public. In addition, federal
agencies are asked to periodically review existing significant
regulations, retrospectively analyze rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and modify,
streamline, expand, or repeal regulatory requirements in accordance
with what has been learned.
---------------------------------------------------------------------------

\23\ See https://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order.
---------------------------------------------------------------------------

Executive Order 13610, issued May 10, 2012, urges agencies to
conduct retrospective analyses of existing rules to examine whether
they remain justified and whether they should be modified or
streamlined in light of changed circumstances, including the rise of
new technologies.\24\
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\24\ See https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf.
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By building off of each other, these three Executive Orders require
agencies to regulate in the ``most cost-effective manner,'' to make a
``reasoned determination that the benefits of the intended regulation
justify its costs,'' and to develop regulations that ``impose the least
burden on society.''
PHMSA believes that if Section XII and the 2013 edition of the NBIC
are incorporated as alternatives to Section VIII, Division 1 and the
HMR, tank manufacturers would be given more flexibility in their choice
of material and design, allowing carriers of bulk liquid hazardous
materials to purchase lighter-weight, higher-capacity tanks capable of
transporting more material per shipment. Tanks built to the design and
construction requirements in Section XII have been tested by ASME to
ensure that they withstand conditions and stresses unique to
transportation, such as rollovers, bottom damage, or piping damage. The
flexibility in selection of ASME standards will facilitate
international competitiveness for the transport of hazardous materials
and eliminate barriers to U.S. manufacturers transporting goods
internationally that are created by the rigid material construction
requirements in Section VIII, Division 1 and the HMR. Further, the ASME
standards have been deemed equivalent by PHMSA technical staff and have
been proven to provide, through special permits, an equivalent level of
safety to that of tanks constructed and designed according to the
specifications currently provided in the HMR.
As PHMSA is not proposing to require manufacturers to use Section
XII and the 2013 edition of the NBIC, and to do so is completely
voluntary, PHMSA is not imposing any additional costs. A manufacturer
will not use Section XII to build a tank unless it believes it is net
beneficial to do so. Since Section XII

[[Page 79383]]

would allow manufacturers the flexibility to purchase the raw material
that is least expensive at the time, this may reduce the cost to the
manufacturer, who can then pass on that discount to the buyer of the
tank. We know that any rational manufacturer will not avail itself to
this option unless it makes business sense.
While we don't believe that this rule imposes any new costs, we
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.

C. Executive Order 13132

This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''), and the President's memorandum on ``Preemption''
published in the Federal Register on May 22, 2009 (74 FR 24693). This
proposed rule will preempt State, local, and Indian tribe requirements
but does not propose any regulation that has substantial direct effects
on the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on the following
subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This proposed rule addresses packaging for hazardous materials,
covered in number 2 above. If adopted as final, this rule will preempt
any State, local, or Indian tribe requirements concerning packaging for
hazardous materials unless the non-Federal requirements are
``substantively the same'' as the Federal requirements. Furthermore,
this proposed rule is necessary to update, clarify, and provide relief
from regulatory requirements.
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 new Section XII consensus standards
and training employees in the use of this consensus standard. However,
PHMSA notes that currently many of state enforcement personnel are not
equipped with Section VIII, Division 1 and must use outside sources to
reference this standard. It is our understanding that during roadside
inspections, state officials are most often concerned with identifying
that the ASME mark is intended for the packaging on which it is
stamped. This would not require state governments to purchase copies of
Section XII for every state trooper. Rather, the most in-depth
inspection performed on a tank is handled by an independent third-party
inspector, typically a National Board Commission Inspector from an
insurance company. This would also apply to the repair of the ASME
packaging using the NBIC, which also requires a marking. Furthermore,
as engineers at PHMSA were instrumental in developing Section XII and
the 2013 edition of the NBIC, they understand them and are available to
help interpret the standards. As with other highly technical or
scientific standards that we incorporate in the HMR, PHMSA's Hazardous
Materials Information Center staff will have access to the engineers
who helped develop the 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 proposed
rule may cause.

D. 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. PHMSA is not aware of any significant or unique effects or
substantial direct compliance costs on the communities of the Indian
tribal governments. Therefore, we conclude that the funding and
consultation requirements of Executive Order 13175 do not apply. We
invite Indian tribal governments to provide comments if they believe
there will be an impact.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. This
notice has been 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 of draft rules on
small entities are properly considered.
The adoption of Section XII should not have any impact on small
businesses, given that the standard is optional. After reviewing the
safety records of both current tanks and new models of tanks
constructed under special permit, PHMSA analysts found no disparities
between the safety records.
We estimate that there are 5,166 businesses likely to be affected
by this rule. The Small Business Administration (SBA) uses industry-
specific standards to estimate which of those are ``small businesses'',
which could be based on employment or revenue. PHMSA assumes that a
significant number of businesses within the regulatory scope (nearly
all) are small.
Based on our analysis, the three major industries--manufacturers,
third party inspection agencies, and tank repair services--could, at
their discretion--conform to the new standards. Manufacturers could
introduce new materials. Third party inspectors would conduct tests
under more current, meaningful testing relevant to more modern designs.
Tank repair services could expand to accommodate the new standards.
Given the expected service life of about 30 years, we assume that
only 1/30 of all tanks will be replaced each year. Given the optional
nature of the rule, the new tanks will consist of some newer Section
XII tanks and some Section VIII tanks. Any manufacturer would build
tanks according to the needs of the customer, including price. At the
same time, the small number of Section XII tanks entering the market
each year will allow repairers and inspectors to transition their
workforce smoothly.

[[Page 79384]]

Based upon the above estimates and assumptions, PHMSA certifies
that the proposals in this NPRM will not have a significant economic
impact on a substantial number of small entities. In this notice, PHMSA
is soliciting comments on the preliminary conclusion that the proposals
in this NPRM will not cause a significant economic impact on a
substantial number of small entities.

F. 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. The recordkeeping requirements in Section XII
and the 2013 edition of the NBIC are analogous; the recordkeeping costs
of complying with Section XII and the 2013 edition of the NBIC are not
significantly different than those currently required under the current
regulatory scheme.

G. Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.

H. Unfunded Mandates Reform Act

This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141,300,000 or more to either state, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

I. Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), and implementing regulations by the Council on
Environmental Quality (40 CFR part 1500) require Federal agencies to
consider the consequences of Federal actions and prepare a detailed
statement on actions that significantly affect the quality of 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 (see 40 CFR 1508.9(b)).
Description of Action
PHMSA is considering the following alternatives: Alternative 1 is
to take no action; Alternative 2 is to incorporate ASME Section XII and
NBIC 2013 by reference and remove Section VIII; Alternative 3 is to
allow tank manufacture and use of Section XII as an alternative to
Section VIII. Use of the 2013 NBIC for continued service under Section
VIII is optional, while use of the 2013 NBIC with Section XII is
required; and Alternative 4 is to withdraw the rulemaking action and
allow use of the standards through Special Permit. Each alternative
presented below represents different levels of adoption of the new
Section XII code, from Alternative 1 (0%) to Alternative 2 (100%).
Alternatives 3 and 4 may result in a proportion between and including
these extremes--i.e., Alternative 3 may result in all or no
manufacturers choosing to use the Section XII specifications.
Similarly, reliance on the special permit process could result in all
or none of the manufacturers requesting a special permit. At this
point, it is difficult to find a basis to project future, based on
market activity. However, PHMSA believes that the adoption of the new
standard would yield substantial savings to both the manufacturer and
the user of the tanks.
Alternative 1: No action. This is not the preferred alternative.
This would continue the incorporation by reference of Section VIII,
Division 1 for design and construction of cryogenic portable tanks and
CTMVs (The reference to NBIC 1992 for the continued use would also
remain unchanged). Though Section VIII, Division 1 sets forth detailed
criteria for the design, construction, certification, and marking of
stationary boilers and pressure vessels, it does not address unique
conditions and stresses encountered by tanks in the transportation
environment. The HMR addresses this deficiency by adding requirements
to account for conditions and stresses likely to occur in
transportation. This alternative would not impose any costs, but it
would prevent the opportunity to realize any efficiency benefits.
Alternative 2: Incorporate ASME Section XII and NBIC 2013 by
reference and remove Section VIII, Division 1. This is not the
preferred alternative. It would promote more current design standards,
by ridding the HMR of outdated information and incorporating standards
that address modern manufacturing and welding methods. Efficiency
improvements would provide manufacturers more flexibility in design,
and allow for lighter-weight tanks that would use less fuel to
transport, with larger capacities. Section XII would also provide for
more uniform enforcement over time. However, it may preclude a normal
market-based transition from one standard to another and force
manufacturers to incur investments and staffing changes to comply with
new standards. Many commenters expressed concern that they would be
unduly burdened either immediately or in the future by ASME standards
that they have no recourse to appeal. The costs would be the purchase
of Section XII; the minimal facility transition costs discussed above;
and the initial training that may occur before the usual three-year
cycle.
Alternative 3: Allow tank manufacture and use under Section XII as
an alternative to Section VIII, Division 1 and the applicable NBIC for
continued use. This option is the preferred alternative, because it
would provide regulatory flexibility, without imposing burdensome
costs. It would also leave the manufacturers and buyers to negotiate
which design best meets their needs, in terms of cost, resilience, and
operations. Lastly, it would authorize the use of the 2013 edition of
the NBIC as it applies to existing tanks and would require its use for
those tanks built to Section XII specifications. It may, however,
create inefficiencies among in-house, third-party and state inspectors,
because inspectors would have to be trained to two distinct standards.
This alternative would provide regulatory flexibility, without
diminishing safety from current levels. It would also leave the
manufacturers and buyers to negotiate which design best meets their
needs, in terms of cost, resilience, and operations.
Alternative 4: Withdraw the Rulemaking Action and Allow Use of
Standards through Special Permit. This is not the preferred
alternative. This option would grant permission to produce, use, and
maintain tanks manufactured to Section XII through a special permit.
This would allow PHMSA to promote technological advancement while
maintaining the ability to closely monitor performance. PHMSA has
already issued one competent authority approval and one special permit
related to Section XII. This option would require positive action by
manufacturers to apply for a special permit and meet PHMSA's standards
for fitness. While this may be a more cautious approach, each special

[[Page 79385]]

permit application, including technical drawings and costs associated
with party-to applications, such as proof of fitness, would be incurred
under this option. PHMSA estimates that the typical special permit
application costs $45 to the applicant and $3,000 for PHMSA to
evaluate. A full analysis of the advantages and disadvantages and the
cost and benefits associated with each alternative can be found in the
regulatory evaluation in the docket for this rulemaking.
PHMSA is proposing Alternative 3, as it was found to be the most
optimal. Benefits associated with the rule include lower manufacturing
costs and higher capacities for shippers. Costs to industry are minimal
and incurred only when the manufacturer decides to fabricate tanks to
the Section XII standards.
Environmental Consequences
When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates the: risk of release and
resulting environmental impact; risk to human safety, including any
risk to first responders; longevity of the packaging; and if the
proposed regulation would be carried out in a defined geographic area,
the resources, especially any sensitive areas, and how they could be
impacted by any proposed regulations.
Of the regulatory changes proposed in this rulemaking, the non-
editorial amendments are discussed in further detail and evaluated
based on their overall environmental impact as follows.

Environmental benefits result from the fact that fewer CTMVs, ton tanks
and cryogenic tanks will be required to transport the same quantities
of hazardous materials. In most cases, due to substitution of material
of construction, the thickness of the tanks would be reduced,
permitting more material to be hauled, and reducing the number of tanks
needed to handle the same volume of product.\25\ As supported by the
studies referenced in Table 11 of Section VII and based on the analysis
of both versions of the ASME codes, PHMSA's Engineering and Research
Division asserts that despite the reduction in the design margin
between Section VIII and Section XII, the standards provide an
equivalent level of safety. As the proposed alternatives would provide
the same level of safety as the currently authorized tanks, the risk of
incidents is reduced proportionately to the reduction of the number of
tanks in commerce.
---------------------------------------------------------------------------

\25\ For example, a MC 331 propane tank manufactured according
to the Section XII would have a 12.5% reduction in wall thickness
when compared to Section VIII, Division 1. This reduction would lead
to at least a 2% increase in product capacity while maintaining the
current level of safety.
---------------------------------------------------------------------------

Add a new section to part 173 that will provide
authorization and conditions for the use of 2013 edition of the NBIC in
conjunction with Section VIII, Division 1 as an alternative. The levels
of inspectors set forth in the 2013 edition of the NBIC provide the
same level of oversight as those set forth in the currently
incorporated 1992 edition of the NBIC combined with the specifications
set forth in the HMR. For that reason, PHMSA anticipates that use of
the 2013 edition of the NBIC compared to use of the 1992 edition and
the HMR will not result in any significant impact to the human
environment.
Federal Agencies Consulted
In an effort to ensure all appropriate federal stakeholders are
provided a chance to provide input on potential rulemaking actions,
PHMSA as part of its rulemaking development consults other federal
agencies that could be potentially affected. In developing this
rulemaking action PHMSA consulted the Federal Motor Carrier Safety
Administration (FMCSA), Federal Railroad Administration (FRA),
Environmental Protection Agency (EPA), and Occupational Safety and
Health Administration (OSHA).
Conclusion
This NPRM proposes to incorporate by reference Section XII and the
NBIC as alternatives to Section VIII, Division 1 and the HMR. As
discussed above PHMSA believes standards provide an equivalent level of
safety and the proposals in this NPRM are environmentally neutral. In
fact, dependent on the level of usage of Section XII and subsequent
reduction of the number of tanks needed to handle the same volume of
product this rule may prove environmentally beneficial over time.
However, PHMSA welcomes any data, information, or comments related to
environmental impacts that may result from the proposal discussed in
this notice.

J. Privacy Act

Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, 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 (Volume 65, Number 70; Pages 19477-78) or you may visit
https://www.dot.gov/privacy.

K. 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 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. Section XII is
written using terminology compatible with international standards such
as UN standards and IMDG. Its intent is to be useable internationally;
and several foreign manufacturers already possess the T-symbol stamp
certifying their capability to manufacture vessels using the new code.
Accordingly, incorporating Section XII and the NBIC as alternatives to
Section VIII, Division 1 and the HMR would be consistent with PHMSA's
obligations under the Trade Agreement Act, as amended.

List of Subjects

49 CFR Part 171

Applicability, General Requirements, North American shipments,
Exports, Hazardous materials transportation, Imports, Incorporated by
reference, Definitions.

49 CFR Part 173

Hazardous materials transportation, Packaging and containers,
Reporting and recordkeeping requirements.

49 CFR Part 180

Qualification and maintenance of cargo tanks, tank cars and
portable tanks.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:

[[Page 79386]]

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4 (28 U.S.C. 2461 note); Pub. L. 104-134, section 31001; 49 CFR 1.81
and 1.97.

Subpart A--Applicability, General Requirements, and North American
Shipments

0
2. In Sec. 171.7, paragraphs (g)(1), (x)(1), and (x)(2) are revised to
read as follows:

Sec. 171.7 Reference material.

* * * * *
(g) * * *
(1) `ASME Code'; ASME Code, Sections II (Parts A and B), V, VIII
(Division 1), and IX of 1998 Edition of American Society of Mechanical
Engineers Boiler and Pressure Vessel Code, into Sec. Sec. 172.102;
173.5b; 173.24b; 173.32; 173.306; 173.315; 173.318; 173.420; 178.255-1;
178.255-2; 178.255-14; 178.255-15; 178.272-1; 178.273; 178.274;
178.276; 178.277; 178.320; 178.337-1; 178.337-2; 178.337-3; 178.337-4;
178.337-6; 178.337-16; 178.337-18; 178.338-1; 178.338-2; 178.338-3;
178.338-4; 178.338-5; 178.338-6; 178.338-13; 178.338-16; 178.338-18;
178.338-19; 178.345-1; 178.345-2; 178.345-3; 178.345-4; 178.345-7;
178.345-14; 178.345-15; 178.346-1; 178.347-1; 178.348-1; 179.400-3;
180.407 and Section XII of the 2013 Edition of American Society of
Mechanical Engineers Boiler and Pressure Vessel Code into Sec. 173.14,
Sec. 178.200, Sec. 178.300, Sec. 179.301(b).
* * * * *
(x) * * *
(1) NB-23, National Board Inspection Code, A Manual for Boiler and
Pressure Vessel Inspectors, 1992 Edition, into Sec. 180.413.
(2) National Board Inspection Code, A Manual for Boiler and
Pressure Vessel Inspectors, 2013 Edition, into Sec. 180.402; Sec.
180.602, and Sec. 180.502.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

0
3. The authority citation for part 173 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.

0
4. Add Sec. 173.14 to subpart A to read as follows:

Sec. 173.14 Authorization and conditions for the use of Section XII
of American Society of Mechanical Engineers Boiler and Pressure Vessel
Code.

(a) This section authorizes, with certain conditions and
limitations, the use of Section XII of American Society of Mechanical
Engineers Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR
see Sec. 171.7) as an alternative to ASME Code Section VIII, Division
1 (IBR, see Sec. 171.7).
(b) Limitations on the use of the ASME Code Section XII for cargo
tank motor vehicles, cryogenic portable tanks, and multi-unit tank car
tanks (ton tanks) designed, constructed, and certified qualified and
maintained in accordance with ASME Code Section XII authorized in
paragraph (a) of this section--
(1) Conditions and requirements for all tanks. (i) The 2013 edition
of the National Board Inspection Code (NBIC) (IBR, see Sec. 171.7)
must be used for the design, construction, and certification
qualification and maintenance of cargo tank motor vehicles, cryogenic
portable tanks and multi-unit tank car tanks (ton tanks).
(ii) ASME Section XII must include use of ASME Sections II
Materials, Section V Nondestructive Examination, Section VIII, Division
1 for Parts only, Section VIII, Division 2 for fatigue analysis only,
Section IX Welding and Brazing, and the NBIC Parts 1, 2 and 3,
including Supplement 6 of Parts 2 and 3;
(iii) Nameplate character markings must be a minimum 4 mm (5/32''),
markings directly on the tank must be a minimum 8 mm (5/16'');
(iv) Periodic test information is not permitted on the ASME
nameplate. Marking must be in accordance with the NBIC Part 2 or Part
3, Supplement 6;
(v) Inspection personnel must have qualifications as required by
ASME Section XII, Article TG-4, and be qualified as evident by holding
a current NBIC commission with endorsement for the level/type of
inspection to be performed or certification from their employer when
applicable;
(vi) Inspectors or their employer must be registered with DOT;
(vii) Repairs must be performed by a facility holding a current
NBIC certificate of authorization for the use of the National Board
``TR'' Stamp.
(2) Conditions and requirements for cargo tanks. Cargo tanks must
conform to all applicable requirements of this Part; and must meet ASME
Section XII Modal Appendix 1, the appropriate Article for the category
of cargo tank, all Mandatory Appendices and Non Mandatory Appendices A
thru E and G thru H, except as follows:
(i) Repairs must be performed by a DOT-registered facility holding
a current NBIC certificate of authorization for the use of the National
Board ``TR'' Stamp.
(ii) For Category 338 Cargo Tanks, ASME Section XII, Modal Appendix
1, Article 4, paragraph 1-4.4(g)(6) does not apply. A minimum jacketed
thickness of 2.4 mm (0.0946 in) 12 gauge in the reference metal is
permitted (IBR see Sec. 171.7).
(3) Conditions and requirements for cryogenic portable tanks.
Cryogenic portable tanks must conform to all applicable requirements of
this Part; and must meet ASME Section XII Modal Appendix 3, Article 1,
all Mandatory Appendices and Non Mandatory Appendices A thru E and G
thru H, except as follows:
(i) External and internal visual inspection in accordance with NBIC
Part 2 Supplement 6 are required in addition to ASME Section XII, Modal
Appendix 3,Article 1, paragraph 3-1.10(b), and Article 1, 3-1.10(b)(5)
(IBR see Sec. 171.7);
(ii) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3-
1.10(b)(6) does not apply. Periodic test information is not permitted
on the ASME nameplate. Marking must be in accordance with the NBIC Part
2 or Part 3, Supplement 6 as applicable. (IBR see Sec. 171.7);
(iii) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3-
1.10(d) requires inspection personnel to have qualifications set forth
in ASME Section XII, Article TG-4, as evident by having a current NBIC
commission with endorsement for the level/type of inspection to be
performed or certification from their employer when applicable. (IBR
see Sec. 171.7); and
(iv) ASME Section XII, Modal Appendix 3, Article 1, paragraph 3-
1.10 requires repairs to be performed by a facility holding a current
NBIC certificate of authorization for the use of the National Board
``TR'' Stamp. Records must be in accordance with the NBIC Part 2 or
Part 3, Supplement 6 as applicable. (IBR see Sec. 171.7).
(4) Conditions and requirements for ton tanks. Ton tanks must
conform to all applicable requirements of this Part and must meet Modal
Appendix 4, Article 1, all Mandatory Appendices and Non Mandatory
Appendices A thru E and G thru H except as follows:
(i) ASME Section XII, Modal Appendix 4, Article 1, paragraph 3-
1.10) Manufacturer-certified fusible plugs, tested and qualified under
the fuse plug manufacturers' written

[[Page 79387]]

Quality Control system are required. (IBR see Sec. 171.7);
(ii) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4-8
must allow Non ASME marked fusible plugs;
(iii) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4-
12(a) must require external and internal visual inspection in
accordance with NBIC Part 2 Supplement 6, S6.15. (IBR see Sec. 171.7);
(iv) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4-
12(a)) does not apply. Periodic test information is not allowed on the
ASME nameplate. Marking must be in accordance with the NBIC Part 2 or
Part 3, Supplement 6 as applicable (IBR see Sec. 171.7);
(v) ASME Section XII, Modal Appendix 4, Article 1, paragraph 4-
12(e) must require records to be in accordance with the NBIC Part 2 or
Part 3, Supplement 6 (IBR see Sec. 171.7);
(vi) Inspection personnel must have qualifications as required by
ASME Section XII, Article TG-4, as evident by having a current NBIC
commission with endorsement for the level/type of inspection to be
performed or certification from their employer when applicable;
(vii) A ton tank that fails a prescribed test or inspection must be
repaired or removed from service;
(viii) Repairs must be performed by a facility holding a current
NBIC certificate of authorization for the use of the National Board
``TR'' Stamp.

PART 178--SPECIFICATIONS FOR PACKAGINGS

0
5. The authority citation for part 178 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.

0
6. Add Sec. 178.200 to subpart H to read as follows:

Sec. 178.200 Authorization for the use of Section XII of American
Society of Mechanical Engineers Boiler and Pressure Vessel Code and the
National Board, National Board Inspection Code for cryogenic portable
tanks.

As alternative to ASME Code Section VIII, Division 1 (IBR, see
Sec. 171.7) and the requirements of this subpart, UN T75 cryogenic
portable tanks may be designed, constructed and certified in accordance
with Section XII of American Society of Mechanical Engineers Boiler and
Pressure Vessel Code (ASME Code Section XII) (IBR see Sec. 171.7),
with the conditions and limitations set forth in Sec. 173.14.
0
7. Add Sec. 178.300 to subpart J to read as follows:

Sec. 178.300 Authorization for the use of Section XII of American
Society of Mechanical Engineers Boiler and Pressure Vessel Code and the
National Board, National Board Inspection Code for cargo tank motor
vehicles.

As alternative to ASME Code Section VIII, Division 1 (IBR, see
Sec. 171.7) and the requirements of this subpart, DOT Specification
cargo tank motor vehicles may be designed, constructed and certified in
accordance with Section XII of American Society of Mechanical Engineers
Boiler and Pressure Vessel Code (ASME Code Section XII) (IBR see Sec.
171.7), with the conditions and limitations set forth in Sec. 173.14.

PART 179--SPECIFICATIONS FOR TANK CARS

0
7. The authority citation for part 179 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.

0
8. Revise Sec. 179.300 to read as follows:

Sec. 179.300 General specifications applicable to multi-unit tank car
tanks designed to be removed from car structure for filling and
emptying (Classes DOT-106A and 110AW).

(a) Multi-unit tank car tanks must meet the requirements set forth
in this subpart; or
(b) Multi-unit tank car tanks may also be designed, constructed and
certified in accordance with Section XII of American Society of
Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code Section
XII) (IBR see Sec. 171.7), with the conditions and limitations set
forth in Sec. 173.14

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

0
9. The authority citation for part 180 is revised to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.

0
10. Add Sec. 180.402 to subpart E to read as follows:

Sec. 180.402 Authorization for the use of the 2013 Edition of the
National Board, National Board Inspection Code with Section VIII,
Division 1 of the American Society of Mechanical Engineers Boiler and
Pressure Vessel Code.

This section authorizes, with certain conditions and limitations
set forth in Sec. 173.14, the use of the 2013 edition of the National
Board Inspection Code (NBIC) (IBR, see Sec. 171.7) for the maintenance
of cargo tanks constructed to Section VIII, Division 1 of the 1998
Edition of the American Society of Mechanical Engineers Boiler and
Pressure Vessel Code. DOT Specification cargo tanks constructed to the
1998 Edition of the ASME Code Section VIII, Division 1 that bear a U
Stamp may be examined, inspected, and tested under Part 180 Subpart E
and the NBIC Parts 1, 2, and 3, excluding Supplement 6 of Parts 2 and
3. The 2013 edition of the National Board Inspection Code (NBIC) (IBR,
see Sec. 171.7) must be used for the maintenance of cargo tanks
constructed to ASME Code Section XII as set forth in Sec. 178.300.
0
11. Add Sec. 180.502 to subpart F to read as follows:

Sec. 180.502 Authorization for the use of the 2013 Edition of the
National Board, National Board Inspection Code with Section VIII,
Division 1 of the American Society of Mechanical Engineers Boiler and
Pressure Vessel Code.

Sec. 180.602 Authorization for the use of the 2013 Edition of the
National Board, National Board Inspection Code with Section VIII,
Division 1 of the American Society of Mechanical Engineers Boiler and
Pressure Vessel Code.

This section authorizes, with certain conditions and limitations
set forth in Sec. 173.14, the use of the 2013 edition of the National
Board Inspection Code (NBIC) (IBR, see Sec. 171.7) for the maintenance
of cryogenic portable tanks constructed to Section VIII, Division 1 of
the 1998 Edition of the American Society of Mechanical Engineers Boiler
and Pressure Vessel Code. Portable tanks designed, fabricated,
examined, inspected, and tested to Section VIII, Division 1 of the ASME
Code may be used with the NBIC Parts 1, 2 and 3, excluding Supplement 6
of Parts 2 and 3. The 2013 edition of the National Board Inspection
Code (NBIC) (IBR, see Sec. 171.7) must be used for the maintenance of
cryogenic portable tanks constructed to ASME Code Section XII as set
forth in Sec. 178.200.
* * * * *

[[Page 79388]]

Issued in Washington, DC, under authority delegated in 49 CFR
part 1.97(b).
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2013-31046 Filed 12-27-13; 8:45 am]
BILLING CODE 4910-60-P

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