{"operation":"document","citation":"13-0168","title":"Sandler, Travis & Rosenberg, P.A. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-11-05","effective_on":null,"summary":"13-0168 response to Sandler, Travis & Rosenberg, P.A. concerning 173.166.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0168.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0168.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0168","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130168.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nNO\\J 0 5 2013\n1200 New Jersey Avenue, SE\nWashington, D C. 20590\nMr. Mark Ludwikowski\nMember\nSandler, Travis & Rosenberg, P .A.\n1300 Pennsylvania Avenue, NW, Suite 400\nWashington, DC 20004\nReference No. 13-0168\nDear Mr. Ludwikowski:\nThis is in response to your July 31, August 6, and August 28, 2013 e-mails to staff members\nof the Approvals and Permits Division and the Standards and Rulemaking Division ofthe\nPipeline and Hazardous Materials Safety Administration (PHMSA). Specifically, you ask\nhow the new regulations PHMSA recently issued in a final rule under Docket No. PHMSA-\n2010-0201 (HM-254; 7/30/13, 78 FR 45880) affect approvals PHMSA issues for air bag\ninflators, herein referred to as \"inflator\" or \"inflators,\" that are transported in commerce\nunder the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). We have\nparaphrased your questions and answered them in the order provided.\nQ 1. How do the regulations issued under the Docket No. HM-254 final rule (effective\nAugust 29, 2013) affect inflator approval applications currently pending before\nPHMSA? For example, can a company that has applied to PHMSA for an inflator\nexplosive (EX) approval ship that inflator before it receives PHMSA's EX approval\nif the company has the inflator's test reports?\nA l. Inflator applications currently pending before PHMSA for an EX approval will be\nprocessed in the same manner that was required prior to issuance of the Docket No.\nHM-254 final rule. Companies with tested inflators that meet all applicable\nrequirements prescribed in § 173.166 excepting them from needing an EX approval\nnumber or from complying with the HMR may be placed in transportation without\nan EX approval number. Companies with inflators that require an EX approval\nnumber must place them in transportation only after receiving this number from\nPHMSA.\nQ2. Will PHMSA continue to allow analogies to be used in test reports?\nA2. PHMSA permits an explosive to be classified \"by analogy\" only by the laboratory\nthat performed the original classification tests on the material. Des.ig~-type .\nvariations are also permitted under § 1 73 .166(b) provided each vanatwn remams\nwithin the design type tested and the laboratory report identifies all part numbers and\nall drawings for that design type.\n\n<<<PAGE 2>>>\n\nQ3.\nA3.\nQ4.\nA4.\nQS.\nIs the company that applied for an EX approval for an inflator obligated to ensure\nthat testing on the inflator was conducted in conformance with guidelines in the\nUnited Nations (UN) Recommendations on the Transport of Dangerous Goods\n(Recommendations) Manual of Tests and Criteria or is that discretion given to the\ntesting laboratory?\nThe HMR does not require the applicant company ensure that testing on its inflator\nwas performed in conformance with the UN Recommendations Manual of Tests and\nCriteria, nor does it give test laboratories or applicants the responsibility to make this\ndetermination. Instead, § 173 .166(b )( 1 )(ii) requires that those authorized to examine\nand test inflator devices and pretensioners by PHMSA' s Associate Administrator for\nHazardous Materials Safety must perform these tasks in conformance with the\napplicable requirements specified in § 172.102, Special Provision 160. This special\nprovision requires that inflators, modules, and pretensioners must be tested in\nconformance with the UN Recommendations Manual ofTests and Criteria Test, Part\nI, Test Series 6(c), and that as a result of these tests there must be no explosion of the\ndevice, fragmentation of its casing or pressure vessel, projection hazard, or thermal\neffect that would significantly hinder fire-fighting or other emergency response\nefforts in the immediate vicinity of the inflator. The volume requirement of test\nseries 6(c) of the UN Manual of Tests and Criteria must be strictly adhered to, with\nno exceptions granted.\nWill each individual testing laboratory have its own unique identifying lab report\nnumber or certificate number that will replace the EX number? For example, in the\nlighter industry, a testing laboratory can use a certificate number like \"LAA02\" to\nidentify any tests it has performed (e.g., LAA02-0001).\nPHMSA assigns each laboratory it approves to perform this type of testing its own\nunique identifying number (see § 1 07.403(a)), but this number cannot replace the EX\nnumber PHMSA assigns to each new explosive (see§§ 107.404(a)(2) and\n173 .56(b )(1 )). Following the examination of each new design type classed as a\nClass 9 (see § 173 .166(b )( 1) ), the person that conducted the examination must\nprepare a test report in conformance with § 173 .166(g). To ensure that the test report\nis traceable, it must be assigned a product identifier number that is unique. This\nnumber may include the laboratory report number or be designed so that it has a\nunique relationship with that number (see§ 173.166(g)(l)(iv)).\nWith lighter ceiiificates, the testing laboratory is required to file an activity log that\nkeeps the Department of Transportation (Department) informed of all approvals that\nhave been processed by the lab on the 15th of every month. The new infl~tor . .\nregulations do not mention keeping PHMSA involved in this process. Will a similar\nreporting requirement apply to laboratories that test inflators?\n\n<<<PAGE 3>>>\n\nAS. Although new § 173 .166(g)(3) states that test reports must be made available only\nupon request to representatives of the Department, PHMSA requires in each\nindividual \"Explosives Lab\" approval letter that EX approval testing laboratories\nmust submit their test activity logs to PHMSA's Approvals and Permits Division\nannually by February 1 of each year.\nI hope this satisfies your request.\nSincerely,\n~~~~·\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 4>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nSubject: Importance: High\nBillings, Delmer (PHMSA)\nTuesday, August 13,2013 7:05AM\nDrakeford, Carolyn (PHMSA)\nFW: Questions - New Inflator Regulations HM 254-\nCarolyn,\nPlease log this email for formal response. Have the specialist see me, before drafting.\nThanks,\nDel\nFrom: Betts, Charles (PHMSA)\nSent: Tuesday, August 06, 2013 2:19 PM\nTo: Fink, William (PHMSA); Billings, Delmer (PHMSA)\nCc: Mark Ludwikowski [mludwikowski@strtrade.com] (mludwikowski@strtrade.com); Herrera, Jacqueline (PHMSA); Singh,\nHarpreet (PHMSA)\nSubject: RE: Questions - New Inflator Regulations HM 254-\nImportance: High\nBill-\nWill do.\nThanks,\nCharles\nFrom: Fink, William (PHMSA)\nSent: Tuesday, August 06, 2013 2:10PM\nTo: Betts, Charles (PHMSA)\nCc: Mark Ludwikowski [mludwikowski@strtrade.com] (mludwikowski@strtrade.com); Herrera, Jacqueline (PHMSA); Singh,\nHarpreet (PHMSA)\nSubject: FW: Questions - New Inflator Regulations HM 254-\nMr. Betts,\nKindly can you review and answer Mr. Ludwikowski questions found below?\nMr. Ludwikowski,\nYour questions posed below have been forwarded to our Standards Division for action.\nThank you,\nBill Fink\n1\n\n<<<PAGE 5>>>\n\nFrom: Mark Ludwikowski [mailto:mludwikowski@strtrade.com]\nSent: Tuesday, August 06, 2013 9:46 AM\nTo: Fink, William (PHMSA)\nSubject: FW: Questions - New Inflator Regulations\nHi Bill,\nFurther to my voice message this morning, Jackie mentioned that you might have some insight on these\nquestions. I would greatly appreciate it if you could provide some guidance for us on this front.\nThanks.\nMark\nMark Ludwikowski\nMember\nSandler, Travis & Rosenberg, P.A.\n1300 Pennsylvania Avenue, N.W., Suite 400 Washington, D.C. 20004\nT:(202) 730-4967 C:(703) 888-8380 F:(202) 842-2247\nmludwikowski@strtrade.com I www.strtrade.com\nThe infonnation contained in this email message and any attachments is legally privileged and confidential infonnation intended only for the use of the individual or entity named\nabove. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any\ndissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please destroy it and remove it immediately\nfrom your PC and server, and notifY us by return email that it was received in error. Thank you\nFrom: Mark Ludwikowski\nSent: Wednesday, July 31, 2013 2:28 PM\nTo: Jacqueline.Herrera@dot.gov\nCc: Lana Nigro\nSubject: Questions - New Inflator Regulations\nHi Jackie,\nThank you for taking our call this morning. We have a few follow-up questions regarding the new regulations\n(attached) that remove the need for EX approvals for inflators:\n1) What happens with inflator approval applications currently pending before PHMSA? Can the company\nship the product before those EX approvals since it has the test reports?\n2) Will analogies in test reports continue to be allowed?\n3) Is the company obligated to ensure that the testing was conducted according to the UN Manual\nguidelines or is that discretion given to the lab?\nThank you in advance for your guidance.\nBest regards,\nMark\n2\n\n<<<PAGE 6>>>\n\nMark Ludwikowski\nMember\nSandler, Travis & Rosenberg, P.A.\n1300 Pennsylvania Avenue, N.W., Suite 400 Washington, D.C. 20004\nT:(202) 730-4967 C:(703) 888-8380 F:(202) 842-2247\nmludwik:owski@strtrade.com I www.strtrade.com\nThe information contained in this email message and any attachments is legally privileged and confidential information intended only for the use of the individual or entity named\nabove. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any\ndissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please destroy it and remove it immediately\nfrom your PC and server, and notifY us by return email that it Vv1lS received in error. Thank you\n3","truncated":false,"body_characters":9973}