{"operation":"document","citation":"09-0061","title":"Thompson Hine LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-06-09","effective_on":null,"summary":"09-0061 response to Thompson Hine LLP concerning 173.56.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0061.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0061.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0061","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090061.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave., SE\nWashington, DC 20590\nJUN 0 9 2009\nMr. David M. Schwartz\nCounsel to TK Holdings, Inc.\nThompson Hine LLP\n1920 N Street, NW, Suite 800\nWashington, DC 20036\nRef. No. 09-0061\nDear Mr. Schwartz:\nThis responds to your March 19, 2009 letter submitted on behalf of your client, TK Holdings,\nInc., concerning requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts\n17 1-180) regarding the transportation of an unapproved explosive for developmental testing.\nSpecifically, you ask for clarification of the meaning of the term \"explosives testing range\" as\nused in 9 173.56(e) of the HMR.\nAccording to your letter, TK Holdings manufactures air bag inflators at one facility and\nintends to transport them as an unapproved explosive to another facility for developmental\ntesting. The unapproved airbag inflators will be offered for transportation in conformance\nwith all applicable HMR requirements for Division 1 .I explosives, transported in a motor\nvehicle operated by an employee of TK Holdings, and accompanied by a person who is\nqualified to handle them. Once developmental testing is successfully completed, the airbag\ninflators will be transported to an authorized testing and examination agency under the\nprocedures specified in Q 173.56(d).\nYou are correct that the HMR do not specifically define \"explosive testing range.\" The term\nrefers to a location or facility where an explosive may safely be tested to determine its\nexplosive properties and appropriate classification. It is the opinion of this Office that the\ntesting facility you describe in your letter is an \"explosive testing range\" as that term is used\nin 3 173.56(e).\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nCINCINNATI COLUMBUS NEW YORK\nBRUSSELS CLEVELAND DAYTON WASHINGTON. D.C.\nMarch 19,2009\nBY HAND DELIVERY\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nAtt'n: PHH- I0\nU.S. Department of Transportation\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nConfidential\nRE: Request for Interpretation Letter of 49 C.F.R. 6173.56tel\nTo Whom It May Concern:\nOn behalf of TK Holdings, Inc. (\"TK Holdings\"), located at 69700 Powell Road,\nArmada, Michigan 48005, I am requesting, pursuant to 49 C.F.R. §105.20(a)(4), an\ninterpretation on the definition of the term testing range in 49 C.F.R. 8 173.56(e).'\nTK Holdings is a manufacturer of automobile safety systems and components. The\ncompany has two facilities within 28.4 miles of each other - one in Armada, Michigan and\nthe other in Auburn Hills, ~ i c h i ~ a n . ~ The Armada facility is primarily a research and\ndevelopment facility that includes administrative offices, and the Auburn Hills facility is\nI Transportation of unapproved explosives for developmental testing. Notwithstanding the requirements of\nparagraph (b) of this section, the owner of a new explosive that has not been examined or approved may\ntransport that new explosive from the place where it was produced to an explosives testing range if-\n(1) It is not a primary (I. lA initiating) explosive or a forbidden explosive according to this subchapter;\n(2) It is described as a Division 1.1. explosive (substance or article) and is packed, marked, labeled,\ndescribed on shipping papers and is otherwise offered for transportation in conformance with the\nrequirements of this subchapter applicable to Division 1.1;\n(3) It is transported in a motor vehicle operated by the owner of the explosive; and\n(4) It is accompanied by a person, in addition to the operator of the motor vehicle, who is qualified by\ntraining and experience to handle the explosive.\n- -\nTHOMPSON HlNE LLP 1920 N Street, N.W. www.ThornpsonHine.com\nATTORNEYS AT LAW Washington, D.C. 20036-1600 Phone 202.331.8800\nFax 202.331.8330\n\n<<<PAGE 3>>>\n\nOffice o f Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nMarch 19, 2009\nPage 2 o f 4\nboth a prototype testinglresearch and development facility and administrative office. Staff\nat these two facilities must work closely together when developing or redesigning inflators\nto meet customer specifications. Each facility's equipment differs to meet that location's\nparticular objective. For example, the Armada facility has a gas filling machine and other\nequipment used to build prototype inflators, while the Auburn Hills site has facilities for\ntesting of various prototypes - including inflators, airbag modules and seatbelts.\nOut of an abundance of caution, TK Holdings would like clarification on the\ndefinition of the term testing range in 5 173.56(e) to determine whether it can transport\nbetween its Armada facility and its Auburn Hills facility for developmental testing\nunapproved air bag inflators containing pressure vessels filled with Division 2.2\ncompressed gas. When transporting the prototype airbag inflators between these two\nfacilities, TK Holdings would ensure that the 49 C.F.R. §173.56(e) requirements are\nsatisfied in order to achieve a level of safety equal to or exceeding that contemplated by the\nprovision:\n(1) (2) The proposed devices would not be primary (1.1 A initiating)\nexplosives;3\nTK Holdings would describe, pack, mark, label, describe on\nshipping papers and otherwise offer for transportation the airbag\ninflators in conformance with the Division 1.1 requirements;\n2 The Armada testing facility is located at 2500 Takata Drive, Auburn Hills, Michigan 48326.\n3 Finished airbag inflators are usually classified and approved as Class 9, as provided for in 49 CFR\n5173.166.\n\n<<<PAGE 4>>>\n\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nMarch 19,2009\nPage 3 of 4\n(3) TK Holdings would transport the inflator in a motor vehicle\noperated by TK Holdings; and\n(4) TK Holdings would have, in addition to the motor vehicle\noperator, a person accompany the inflator who is qualified by\ntraining and experience to handle it.\nWe note that the term testing range is not explicitly defined in the regulations, but\nthat it is distinguished from an approved examination agency as described in §173.56(d).\nIn the absence of a specific definition for the term testing range, we believe that a practical\ndefinition for the term would be - a designated area where explosives testing may be safely\nconducted by appropriately trained personnel and where potential hazards arising from\nreactive chemicals and explosives are minimized. We note further that the developmental\ntesting to be performed at a testing range is intended to allow the manufacturer to prepare\nor develop its inflators to the point where a sample can be sent to a DOT-approved agency\nfor examination and classification. The Auburn Hills facility meets this definition of a\ntesting range.\nThe Auburn Hills facility is not a manufacturing site; although it does house some\nadministration and field support personnel, the facility is primarily designed to conduct\nengineering and research and development testing for the company's seat belt and airbag\ndivisions. For prototype inflators, the Auburn Hills facility contains lab and testing areas\nthat include temperature and other environmental testing chambers, an impactor lab and\nrelated facilities. When testing is conducted in the lab areas, the entry doors are secured\n\n<<<PAGE 5>>>\n\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nMarch 19, 2009\nPage 4 of 4\nwith magnetic locks to restrict entry. Operators also have the capability of safely aborting\ntests and un-securing doors as needed.\nBecause it is a developmental testing site, the Auburn Hills facility only receives\ncompleted inflators for research and development use and testing and the inflators are\ngenerally utilized (deployed) within one or two weeks of receipt. While at the facility,\nprototype inflators are stored in a secured metal cage area outside of the testing sector.\nAs noted, the testing conducted at TK Holdings' Auburn Hills facility is part of the\nresearch and development process that ultimately yields production samples to be\ntransported to an approved agency for examination and classification. Because its Auburn\nHills facility is a designated developmental testing site, TK Holdings believes that it\nshould qualify as a testing range under 49 C.F.R. $1 73.56(e).\nThank you for considering our request. Please contact me if you have any\nquestions.\nDavid M. Schwartz\nThompson Hine LLP\n1920 N Street, NW, Suite 800\nWashington, DC 20036\n(202) 263-41 70\nCounsel to TK Holdings, Inc.","truncated":false,"body_characters":8807}