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PHMSA launches new effort to outsource cargo tank regulation writing to ASME, National Board of Boiler and Pressure Vessel Inspectors

Feb. 1, 2014
Once again the Pipeline and Hazardous Materials Safety Administration (PHMSA) seems intent on letting third parties write the rules for cargo tank design, construction, and repair.

Once again the Pipeline and Hazardous Materials Safety Administration (PHMSA) seems intent on letting third parties write the rules for cargo tank design, construction, and repair. The latest attempt came in a December 30, 2013 announcement in the Federal Register.

Specifically, PHMSA is proposing to amend the Hazardous Materials Regulations applicable to the design, construction, certification, re-certification and maintenance of cargo tanks, cryogenic portable tanks, and 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).

This Notice of Proposed Rule-making (NPRM) proposes to allow the use of the 2013 edition of the ASME’s Boiler and Pressure Vessel Code, Section XII for the design, construction, and certification of cargo 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 cargo tanks, cryogenic portable tanks, and ton tanks constructed to standards in ASME’s Section XII.

PHMSA goes to some pains in the NPRM to state that tank builders (and tank truck fleets) would be given the option to stay with the existing HMRs or use the ASME’s Section XII standards that would be incorporated into the federal regulations by reference.

Skeptical response

National Tank Truck Carriers (NTTC) responded skeptically to the PHMSA announcement: “NTTC has been consistently wary of this proposal from its initial planning stages going back five-plus years, the association said in a statement. At first blush, it looks like PHMSA is allowing for some regulatory flexibility if these amendments were adopted. The language indicates that PHMSA will “allow” the use of these standards, but they are not required.

“NTTC’s concern has always been open access to the regulations (without the purchase of an expensive code book from ASME), as well as open participation in the regulatory process going forward in line with rules of the Administrative Procedures Act. We share some reservations with our partners at the Truck Trailer Manufacturers Association (TTMA) regarding PHMSA’s potential reluctance to make future improvements to the Hazardous Materials Regulations (HMR) over time if they think that such improvements are better found in Section XII.

“In our planned comments to this proposal, we seek input from our member technicians and registered inspection facilities as to the real world impact of this proposal. We anticipate asking PHMSA for an extension of the comment period as it is a complex issue. Comments are currently due by March 31, 2014.”

Repeat effort

As the NTTC statement notes, the PHMSA proposal is not new. In fact, PHMSA officials began working with ASME and NBIC in 1995 to explore “outsourcing” of some future content of the HMR via a “consensus technical body” shortly after full implementation of the HM-183 cargo tank regulations.

“NTTC and TTMA representatives began attending Section XII deliberations in 1998, and the interests of the third-party inspection agencies soon became apparent,” says John Cannon, vice-president of engineering for the Walker Group. “In 2005 and 2007, ASME and NBIC petitioned PHMSA for the adoption of new cargo tank codes. And now we’ve got the new PHMSA NPRM that proposes to allow use of Section XII and NBIC as alternatives to the HMR.

“We see it as something of a moral victory that PHMSA agreed to provide a compliance alternative. I believe most of the industry will continue to follow the HMR. I think there is little enthusiasm within the tank truck industry for PHMSA’s proposal to outsource development of cargo tank rules to other groups.”

Four alternatives

Cannon points out that PHMSA discussed four alternative approaches in the NPRM. Alternative one called for no changes in the current system. This would continue the current policy of incorporation by reference of Section VIII, Division 1 for design and construction of cryogenic portable tanks and cargo tank motor vehicles. The reference to NBIC 1992 for the continued use also would remain unchanged.

Alternative 2 is to incorporate ASME Section XII and NBIC 2013 by reference and remove Section VIII. Alternative three (PHMSA’s preference) is to allow tank manufacture and use of Section XII as an alternative to Section VIII. Alternative four would be to withdraw the rulemaking action and allow use of the standards through special permit.

“My concerns with PHMSA’s preferred alternative is that an option in the near term could become mandatory someday in the future,” Cannon says. “The preamble of the NPRM is littered with suspect assertions.”

If the industry is forced to use Section XII and NBIC, compliance could be very expensive. NTTC has estimated that it could cost upwards of $25 million for access to regulatory documents and other assorted costs. Third-party inspections could cost the industry roughly $10 million, according to TTMA.

What course of action should the tank truck industry consider? Cannon says the first step is to request a 180-day extension in the NPRM comment period. Second—express support for Alternative one, which would make no changes in the current cargo tank regulatory scheme, or offer conditional support for Alternative three, which allows the option of Section XII and NBIC, predicated on enduring freedom to choose the existing HMR.

Cannon adds that it is important for tank truck fleet managers, cargo tank repair shop operations, and cargo tank builders to carefully review the NPRM and comment on the suspect assertions contained in the proposed rule. Finally, tank truck fleet managers need to carefully consider how they want to specify equipment in the future.    ♦

About the Author

Charles Wilson

Charles E. Wilson has spent 20 years covering the tank truck, tank container, and storage terminal industries throughout North, South, and Central America. He has been editor of Bulk Transporter since 1989. Prior to that, Wilson was managing editor of Bulk Transporter and Refrigerated Transporter and associate editor of Trailer/Body Builders. Before joining the three publications in Houston TX, he wrote for various food industry trade publications in other parts of the country. Wilson has a bachelor's degree in journalism from the University of Kansas and served three years in the U.S. Army.