{"operation":"document","citation":"09-0245","title":"Mr. Andrew Abrams — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-05-12","effective_on":null,"summary":"09-0245 concerning 173.315.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0245.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0245.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0245","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/090245.pdf","body":"<<>>\n\nU.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration\n)!AY 12 2010\n1200 New Jersey Ave, SE\nWashington, D.C. 20590\nMr. Andrew Abrams\n761 West Sproul Road #208\nSpringfield, PA 19064\nRef. No.: 09-0245\nDear Mr. Abrams:\nThis responds to your October 21, 2009 letter requesting clarification of the requirements for\nDesign Certifying Engineers (DCE's) under the Hazardous Materials Regulations (HMR; 49\nCFR Parts 171-180). Specifically, you ask about DCE certification of a design for an\nemergency discharge control system for a cargo tank motor vehicle in liquefied compressed\ngas service in accordance § 173.315(n). Your questions are paraphrased and answered as\nfollows:\nQ1: A hose system designed to automatically shut off the flow of product without human\nintervention in accordance with § l73.3l5(n)(2) may be intended for a specific\napplication and, thus, may include components, such as pressure-specific rubber, metal,\nor PTFE hose material, or metallurgic fittings, that are unique for the intended\napplication. For such unique designs, may the DCE elect to issue a certification utilizing\nspecific serial numbers with contemporaneous hose test dates rather than a more general\ndesign certification?\nAI: Yes. The DCE may issue a unique certification that would apply to a single hose system\nrather than a more general certification for a hose system design. In that circumstance,\nthe certification could identify, by serial number and test date, the specific hose system to\nwhich the certification applies.\nQ2: If the above design certification process is appropriate, maya facility continue to issue\ndate and hose specific certifications bearing the DCE's signature when the DCE is no\nlonger employed at the facility? Or would PHMSA expect the facility to retain a new\nDCE?\nA2: The DCE certification remains effective for the service and parameters cited in the\ncertification with or without the consent ofthe DCE and even in the event that the DCE\ndies. The DCE certification, however, applies only to the specific design described in the\ncertification. A new DCE certification is required if the previously-approved design is\n\n<<>>\n\nmodified. In the event a DCE issues a unique certification for a single hose system, the\ncertification may not be used for a different hose system.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\n<, l ,/~ t ..-\\--~-.-- /.{ , l,:l'I\n'/ ,/1,'1 ,/1\n~'d/tu-<-\"- '-'/ \" /' I'/~L rrr C£O'\nI \" /\nEdward T. Mazzullo ' (/,'\nDirector, Office of Hazardous Materials Standards\n\n<<>>\n\nAndrew Abrams\n76 I VIIest Sproul Road Unit 208 Springfield, P A ] 9064 Wednesday, October 21,2009\nIV I e/t.el.s\n7s 173· 3/..3\nCargo TCU1 kS\n() 7 -t):L'f~\nMr. Edward T. Mazzuilo\nDirector - Office ofHazardous Materials Standards\nPipeline and Hazardous Materials Administration\nUS Department ofTransportation\n1200 New Jersey Avenue, SE Building 2nd Floor\nWashington, DC 20590\nRe: Letter ofInterpretation - 49 CFR 173.315-F(Jlfm}'~li!}\nDear Mr. Mazzullo\nI am writing to follow-up on my January 22 2009 letter, and my correspondence with Ms.\nSusan Gorsky, related to the above-captioned inquiry to ask for further and more specific\nclarification ofthe regulations as they relate to the role ofa Design Certifying Engineer\n(\"DCE\") in the assembly and installation ofspecific passive shut-off devices. Based upon\nour previous conversation, you indicated that the January 22 letter was not inputted into\nyour system, so I am sending it as an attachment to this letter.\nMs. Gorsky previously opined about the role of a DCE as it relates to the historic class of\nsystems that are typically certified. I regret that we were not more specific in our inquiry\nto her, as the system in question poses a unique situation. Ms. Gorsky's opined after on\nJuly 18, 2008, when the DOT conducted a compliance review at Zena to determine its\ncompliance with federal regulations. During the review, the DOT determined that Zena\nhad violated the regulatory scheme with respect to the hose certifications bearing Joseph\nAbrams' signature after his termination. Specifically, the DOT determined that Zena had\nviolated federal regulations because \"The Company's Design Certitying Engineer (DCE)\nwas terminated on 3/3/08. The company continued to use the terminated DCE name on\ntest certifications after 3/3/08.\" As a result, the DOT subsequently served Zena with a\n\"Notice ofClaim\" in the amount 01'$21,480 as a fine for its violations. A copy of the\nfindings are attached to the enclosed letter.\nTo reiterate the fundamental regulatory provisions: 49 C.F.R. Section 173.315(n)(2)(ii)\nprovides that a certification must \"consider any specification ofthe original component\nmanufacturer\" and must explain how the passive means to shut offthe now of product\noperates. It must also outline the \"parameters (e.g., temperature, pressure, types of\nproduct) within which the passive means to shut offthe flow is designed to operate\" and\nthat a copy ofthe design certification must be provided to the owner of the cargo tank\nmotor vehicle on which the equipment will be installed.\nIn her letter dated December 5, 2008 (a response to my October 8 200& tetteT, bofu of\nwhich are enclosed), Ms. Gotsk:y indicated that the DeE certification process is intended\n\n<<>>\n\nto be a \"one-time\" process as it was historically developed for cargo tank and unchanging\nstandard passive shut-off technology systems.\nWhat we neglected to ask Ms. Gorsky, and the questions that require clarification, are the\nfollowing:\n1. If a DCE, when \"consider[ing] any specification of the original component\nmanufacturer,\" determines that a \"one-time\" certification is not appropriate because the\npassive device hose system that he is certifying requires the combination ofvarious\ncomponents, such as pressure specific rubber, metal or PTFE hose materials with the\nproper metallurgic fittings (and other additional components), all considered in the\ncontext of the application to which the hose will be put, can he more appropriately choose\nto issue a date and hose specific certification, utilizing hose specific serial numbers with\ncontemporaneous hose test dates?1 (A copy ofthe date and hose specific form of\ncertification that Smart-Hose Technologies Inc. and then Zena Associates LLC d/b/a\nSmart-Hose Technologies has used is attached hereto.) Note: the attached New Hose\nCertifICation was issued on 4///08 after the DCE was employed at Smart-Hose andpart\nofthe aforesaid DOT investigation.\n2. If the aforesaid design certification process is appropriate, would it be compliant\nfor a facility to continue issuing date and hose specific certifications bearing the DCE's\nsignature when the DCE is no longer employed at the facility or would you expect them\nto retrun a new DCE?\nThank you for your consideration.\n1 . \"Date and hose specific\" meaning that each time a hose is sold a certification is prepared attesting that the specitic\ntechnology incorporated in the specific hose being sold is appropriate for use at a certain working pressure in a specific\napplication, and when installed on specified equipment will satisfY the passive shut-down feature required by 49 C.F.R.\n173.31 S.\n\n<<>>\n\nSMART HOSE\nTECHNOLOGIES\nNew Hose\nTest Certification\nThe Smart-Hosetm technology is a proven hose technology designed to\ncounteract the hazardous effect of hose rupture or failure during fluid or gaseous '\ntM\ntransfer operations. All Smart....ose designs. Smart-Hosetm It Smart-Hosetm I\nwith breakaway, Smart-Hoselm It and Smart-Hosetm lit utilize the unique,\npatented and patent pending designs which eUmlnates the potential for disaster\n'';' through the use of an internal cable connected to specially designed, normally\nunseated vaive \"wedges or plungers\" located on each end of the cable. In the event\nof hose separation. stretching to the point of an unsafe condition, or coupling-tohose\nseparaUon, the valve \"wedges or plungers or flappers\" are released and\nlnstantiy seat stopping the flow In both dlractrons. (Operating temp. -4O\"F to 160\"F)\nI certify that this hose a8sembly meets all the requirements of the DOT and when Installed\non any MC330. MC331 or authorized non-specification compressed gas cargo tank will\nsatisfy the requirements for the passive shut down feature required for these cargo tanks\nby 49CFR 173.315 US DOT.\nCertified By: Smart-Hose Technologies CT# 7953\nDes'ign~ertlfYinQ Eng':-~JO$ep~~~~~~te: 4;1';~~'--\nOn the above date, Smart-Hose Technologies has inspected and tested the hose\nassembly listed by serial number below.\nVisual InspectIon: Accepted\nTest Pressure: 700 PSIG Passed\nWorking Pressure: 350 PSIG Passed\nHose Type:Hose. NH3- LL 3-2\" X 18.6 31S-8S.FNPT - MNPT\nrebuilt snd-flttlng SERJAL# 416971 ~:'\n50#4520 Registered Inspec~\nCompany Owner of Hose:\n______________\nCompany Representative Signature: _____~\n_____\nThIS !&sf only represents that the hose haS passed the defined test on too dais tesled. no other wamsnty express or\nimplied is granled all a result of this certificate. Itis importanlthat all hose be inspgcf9d and tested cn a regular basis in\naccordance wllh Sman:·Hose Tecf1nol~e$ Form 1H999-1 ·Proper Hose Use, Care and MaIntl!InanCIII:\n2538 S 59 ' St, Philadelphia, PA 19143\nToll Ftee (877) 356-6278 Fax (215) 730-0558\n. Test Cerl. Form #99-9 Rav,(i (March 20()1)\n..\n~ , '.\nlOO/Loolt1\n\n<<>>\n\nU.S. Department\nofTransportation \n Pipeline and Hazardous Materials\nSafety Administration\nDEC 5 2008\n1200 New Jersey Ave., SE\nWashmgton, DC 20590\nMr. Andrew Abrams\n761 West Sproul Road Unit 208\nSpringfield, PAl 9064\nRef. No.: 08·0273\nDear Mr. Abrams:\nThis is in response to your October 28,2008 letter requesting clarification ofthe\nrequirements for Design Certifying Engineers (DCEs) and Registered Inspectors (RIs) und\nthe Hazardous Materials Regulations (HIvfR; 49 CFR Parts 171-) 80). We provided you wi~\na letter (Ref. No.: 08.0205; copy enclosed) on October 21, 2008 addressing the roles\nperformed by the DCE and RI during the assembly and installation of Smart-Hose Passive\nDevices. This letter provides additional clarification, as requested by your October 28. 2008\nletter. Your questions are restated and answered as follows:\nQl: Is the DCE's certification intended to be a \"one-timo\" certification? What if the DCE\ndies or does not provide consent for the company to use the certification?\nAI: The DCE's certification indicatos that the design and construction meets the applicable\nDOT specification. This is a \"ope-timo\" proce&Si pnce the DeE approves the design and\nprovides the necessary documentation thero is no need for the manufacturer to have the\ndesign recertified. The nCB certlfloltlon rcmftins effective with or wilhout the consent of\nthe DCE IUld even in the event th'lt th~ DeE dies. A new DCE certification is only required\nif tho provlously approved dcsiln i. ~odUied. As defined in § 180.403, a \"modification\"\nmeaQl any C!hange to the oriBimd >>\n\nintervention within 20 seconds of an unintentional release caused by a complete separation of\na liquid delivery hose (§ 173.315(n)(2)(ii». Given that the DCE approves the design of the\nemergency discharge control equipment and it is attached to a cargo tank motor vehicle in the\nsame way as an ordinary hose, Rl supervision is not necessary.\nIn addition, ifyou are aware of an operator that is using a new or modified hose design that\nhas not been approved by a DCE you may file a complaint at\nhttp://www.phmsa.dot.gov/hazmatlenforcement or contact our enforcement office directly at\n(202) 366-4700.\nI hope this infonnation is helpful. Please contact us if you require additional assistance.\nSincerely,\n-'1 IJ·\n/V't,0L .ofo J\nSusan Gorsky\nRegulations Officer\nOffice of Hazardous Materials Standards\n\n<<>>\n\nAndrew Abrams\n761 West Sproul Road Unit 208\nSpringfield, PA 19064\nTuesday, October 28,2008\nMs. Susan Gorsky\nActing Chief, Standards DeveJopmenmt\nOffice ofHazardous Materials Technology\nUS Department of Transportation PHMSA\n1200 ~ew Jersey Avenue, SE Building 2nd Floor\nWashmgton, DC 20590\nRe: Letter of Interpretation - 49 CFR 173.315. Follow-Up\nDear Ms. Gorsky\nI am. wri~g to. follow-up on your October 21 letter in connection with the above\ncaptIoned mquuy to ask for an additional clarification ofthe regulations as it relates to\nthe ~Ie of ~ DCE and Registered Inspector in the assembly and installation of certain\npassIve deVIces.\nIn your letter you indicated that (1) Tho DeE Is only required to certifY that the design\nconfirms to the performance standard and that there is no requirement to review each\ncomponent throughout themanuflWturing process.\nIssue: if the regulatlpns indlcAto that\" All components ofthe discharge system that are\nIntegral to the design niHIl hff t\"\"/~d In the certification.\" and these components have\ncertain Inconsistency such as SQlU'Oes ofmatcrial or metallic composition, is the DCE's\ncertiflcatipn lnaonded to be .. \"o\",..tlme\" certification?\n• Can thoro bo 11 \",ertitlcaUon issued by a now deceased DCE?\n• DoOl \"'0 OCE'. certificatlort need to specifically identifY each of the components.\nso\"\"\"'. Qfmatorlal. bills ofmaterIal that they are certitying and ifthe\nmanufacturer changes these componenfs. a new DCE certification might be\nrequire\"? U'IO, what WPlJld happen ifthe DCE issued a generic system\noCl1iftcarion and then was no longer employed by the company - could the\ncompany continuo to use the certification without hislher consent?\nIssu!! In your reply ),ou indicated that the Emergency Discharge Control Equipment\nmust <'b, l7IStalled under the supervision ofa Registered Inspector\" but you identified an\nambigulf)' regarding Itoscs. Wo believe that the regulations were promulgated in\nconneotlon With systf.'ml such as RF devices that are manufactured by one company but\nuttfmlltoly both assembled and installed by the end-user (ie truck assembler) and not the\nmanufactull'r. Therefo\"\" the requirement for a Registered [nspector was to assure tbat\nthe 8!l!tem DS eOUCfrttv instaJJed and not put together by some unknowledgeable party.\n\n<<>>\n\n• Since the Smart-Hose system (or any funy installed hose based passive device)\nhas its final installation completed by its own employees and not the end-user, is\nthe intent of the regulations to not require aoy supervision while this type of\npassive device is installed? Why would we require a Registered Inspector to\ninstall an RF system but require no supervision either by the manufacturer or the\nend user in the case of a hose based system?\n• Do you agree that since the hose is installed merely by threading it onto the\nappropriate connection, if we define iristalled for hoses it would have been\nimpractical to have every truck driver become a RI. If however we define\n\"installed\" tor hose based passive device systems to be when the passive device is\ninstalled within the hose, would it not make sense for an RI to oversee this\ninstallation and therefore be consistent with the intent of the regulations?\n• Was the intent of the language \"under the supervision ora Registered Inspector\"\nto require the system to Registered Inspector to look carefully at or over; view\nclosely and critically or examine formally or officially the installation ofthe\npassive device and therefore must this function be performed contemporaneously\nwith the installation ofthe system? More succinctly, can this function be\nperformed by someone who is not present during the installation?\nThank you for your consideration.\nSincerely,\nAndy Abrams\n\n<<>>\n\nAndrew Abrams\n761 West Sproul Road Unit 208\nSpringfield, P A 19064\nJanuary 222009\nMs. Susan Gorsky\nActing Chief, Standards Development\nOffice of Hazardous Materials Technology\nUS Department ofTransportation PHMSA\n1200 New Jersey A venue, SE Building 2nd Floor\nWashington, DC 20590\nRe: Letter ofInterpretation - 49 CFR 173.315- Follow-Up -1\nDear Ms. Gorsky\nI am writing to follow-up on your December 5 2009 letter in connection with the above\ncaptioned inquiry to ask for a fonnal meeting to discuss your reply regarding your\nclarification ofthe regulations as it relates to the role of a DCE and Registered Inspector\nin the assembly and installation of certain passive devices.\nSince the exchange of infonnation has not been expressed properly and your explanation\nis directly in contradiction to the discussions that fonned the basis ofthe internal SmartHose\ncertification in 2001, I believe it would be prudent to meet.\nI have discussed your answers with Mr. Alan Roberts who expressed his strong\ndisagreement with your conclusion. As the fonner RSP A Administrator and the overseer\nof these regulations, I believe that a meeting to further clarify your interpretation would\nbe helpful to all.\nUnder your basis, you can be assured that no one would certify a system in perpetuity\nexposing themselves to liability should there be a malfunction even if they had no\noversight regarding the system at hand. Moreover, having been specifically involved in\nthe regulatory process that spawned these regulations, the hose based Registered\nInspector \"carve out\" only related to the actual attachment of the hose and not its\nassembly/installation in the system.\nIf we follow your interpretation, you would sanction a dead DCE and no inspector\nassemble \"Passive Devices\". How can we reconcile this interpretation against the\ncompanies previously adhered to two primary SOPs - Production Inspection Points\nand Quality Control Critical Inspections that specifically identify safe and proper\noperations? Should they be changed to accommodate the above missing safety;personnel\nthat the entire process clearly sought?\nDuring Joseph Abrams' tenure after we consolidated the in-house DCE with the QC\nInspector's role, he performed these duties on a regular basis. The Certification was\n\n<<>>\n\n'\ndeveloped as a hose specific certification identifying \"this hose assembly .. \"not all\nassemblies. Was this erroneous and should his signature identifying a contemporaneous\ndate with this language be acceptable. Could he continue to certify \"this hose\nassembly...\" as ofthis date ifhe were no longer alive?\nAs ofnow, despite clearly established procedures identifying a continuous need for \"the\nabove designated inspections {to beJ performed by a Quality Control Inspector\", there\nhas been a four month period without any of these procedures being adhered to.\nMoreover, the absolute need for such inspection is highlighted in internal procedures that\nspecifically call for \"random spot checks by the Q.C Inspector\". In the absence ofany\nregistered (or Q.C.) Inspector, how might this procedure be complied with? Procedures\ndeveloped based upon safe practice and the regulatory process that\nThe certification developed, based upon the regulatory process and procedures sought to\nmeet the intentions of the law and common safety practice. With all due respect, we\nbelieve that you personal interpretation is erroneous, not consistent with this type ofhose\nbased Passive Device and request a formal hearing to discuss this matter further.\nThank you for your consideration.\nSincerely,\nAndy Abrams\n\n<<>>\n\nPage 1 of 1\nDrakeford, Carolyn (PHMSA)\nFrom: Mazzullo, Ed (PHMSA)\nSent: Wednesday, October 28,20099:'10 AM\nTo: Gorsky, Susan (PHMSA); Drakeford, Carolyn (PHMSA)\nSubject: FW: Clarification\nAttachments: edward t mazullo- oct 21 2009,pdf\nCarolyn: Please assign for response,\nSusan: He may have a valid pOint What do you \"opine\"?\nEd\nFrom: Andy Abrams [mailto:acabrams@comcast.net]\nSent: Tuesday, October 27, 20094:55 PM\nTo: Mazzullo, Ed (PHMSA)\nSubject: Clarification\nDear Mr. Mazzullo\nEnclosed please find the information inquiry we discussed. A separate copy is being sent via courier\ntoday.\nIn light ofthe importance of this issue, we would respectfully request an expedite evaluation ofthis\nrequest. I am happy to visit your office and meet with you and your colleagues if this will assist in this\nprocess and expedite the reply.\nThank you in advance for your consideration.\nWarmest regards.\nAndy Abrams\n267-307-0949\n10/28/2009","truncated":false,"body_characters":21031}