[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Proposed Rules]
[Pages 79363-79388]
[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 http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. Note
that all comments received will be posted without change to the docket
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov, or DOT's Docket
Operations Office (see ADDRESSES). 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 http://www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Lisa O'Donnell, Hazardous Materials
Standards and Rulemaking Division,<PHONE_NUMBER>, or Stanley
Staniszewski, Engineering and Research

Division,<PHONE_NUMBER>, 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

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.

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).

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),

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: http://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; http://www.nationalboard.org) and is subject to regular audits by ANSI.
    First published in 1946, the NBIC was established by the National
Board to provide rules and guidelines for the repair, alteration,
inspection, installation, maintenance, and testing of boilers, pressure
vessels, and other pressure retaining items. The NBIC is developed and
maintained by a consensus committee comprised of industry experts (the
NBIC Committee). The NBIC Committee consists of a main committee,
subcommittees, subgroups, and task groups of industry experts and has
Federal representation by PHMSA. Participants meet 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

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: http://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: http://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.''

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

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.

            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.

                                     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

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.

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

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:
http://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

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

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

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

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