{"operation":"document","citation":"19-0108","title":"Explosives Test Center, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2020-04-30","effective_on":null,"summary":"19-0108 response to Explosives Test Center, LLC concerning 173.56.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0108.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0108.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0108","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/73741/190108.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nApril 30, 2020\nGraham Walsh\nPresident\nExplosives Test Center, LLC\n5698 Brennan Ave\nColorado Springs, CO 80923\nReference No. 19-0108\nDear Mr. Walsh:\nThis letter is in response to your August 22, 2019, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to an approval of a\nnew explosive. In your email, you describe scenarios in which your customer is an importer\nand/or package manufacturer that has paid for the development and testing of a new explosive\nbut will not be manufacturing the new explosive itself. In these scenarios, you explain that your\ncustomers would like the EX number to be in their name to prevent the manufacturer from\nselling the exclusive product elsewhere. Therefore, you ask whether an EX number can be\ngranted to the designer of an explosive instead of the manufacturer.\nThe definition of a new explosive as defined in § 173.56 of the HMR includes a person who has\nnot previously produced that explosive. When a new person manufactures an explosive for the\nfirst time, they must obtain their own EX number and any changes to the explosive or explosive\nconfiguration would require reexamination and separate approval. As such, a person who\npurchases an approved explosive in order to repackage and offer it for transportation would be\ndefined as the manufacturer of a new explosive, and must have their configuration examined and\napproved in order to be issued a new EX number. A person who is merely importing an\napproved explosive without making changes is not producing a new explosive and would not be\nissued their own EX number. Therefore, the EX approval will be issued to the manufacturer.\nFinally, although EX numbers are not transferable, any contracts or agreements made between\nthe explosive manufacturer and importers, exporters or packaging designers to protect the\ninterests of the relevant parties is outside the scope of PHMSA regulations.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<>>\n\nHolcott\nJanuary, Ikeya CTR (PHMSA)\n19-0108\nFrom:\nINFOCNTR (PHMSA)\nSent:\nTo:\nFriday, August 23, 2019 9:57 AM\nHazmat Interps\nSubject:\nFW: Letter of Interpretation Request\nHello Alice and Ikeya,\nPlease see below for letter of interpretation request. The requester has been in contact with Ryan Larson and has been\ntold by Ryan to write in for a letter request. I have not found any existing letters that answer his request.\nThank you,\nKathryn, HMIC\nFrom: Graham Walsh [mailto:gwalsh@explosivestestcenter.com]\nSent: Thursday, August 22, 2019 6:24 PM\nTo: INFOCNTR (PHMSA) < INFOCNTR.INFOCNTR@dot.gov>\nCc: Larson, Ryan (PHMSA) \nSubject: Letter of Interpretation Request\nHello,\nPlease see below for my request for a letter of interpretation.\nEX approvals are granted to the manufacturer of the article or substance itself (except for rare circumstances where\nsomeone repackages the material, or makes a slight modification, etc). I can't point to a regulation that says that EX\napprovals MUST be issued to the manufacturer, I believe it's an internal PHMSA policy. So, my question is as follows...\nThere are situations where my customers would prefer an EX be issued to them, even if they are not the actual\nmanufacturer of the product (of course the product manufacturer is always called out in the test report). These\nsituations are:\n1. My customer is a packaging manufacturer, and has developed a packaging solution for a certain product. The\npackaging manufacturer will sell the packaging materials to the explosive manufacturer, but without the EX\nbeing issued in the packaging manufacturer's name, the explosive manufacturer can go around the packaging\nmanufacturer and buy from another packaging company. In this case the packaging manufacturer has sunk\nexpenses in development of the packaging and testing or analysis required to get the EX approval, so they\nbelieve the EX approval should be in their name.\n2. My customer is an importer (I've had this in fireworks, pyrotechnic tools and fuzes just this year), and has paid\nfor the development and testing of a new product. This product is to be sold through the importer / distributor\nexclusively. The importer/distributor wants the EX approval in their name so that the manufacturer cannot sell\nto other companies using the EX that was paid for by the importer / distributor.\n3. Basically the same as 2, but my customer (Design Firm) has developed a product and is now having that product\nbuilt by another company (Manufacture Firm). Again, the manufacturer must be called out in the report, but\nthe design firm is the one that has developed the product and it is sold as Design Firm Detonator rather than\nManufacture Firm Detonator. The EX being issued to Manufacturer can cause confusion in shipping when folks\norder a Design Firm Detonator.\n1\n\n<<>>\n\nI'm sure there are more examples, but there are a few I've run in to in the past few months. Basically my question is:\nare there times when a company that is not the manufacturer of a device or substance can be issued the EX approval? If\nyes, what instances are they, what is the justification, etc. I need to be able to tell my customer who the EX is going to\nbe issued to, because sometimes that determines who pays for testing, if they will bother running the tests at all, etc.\nThank you,\nGraham Walsh, PhD\nPresident\nExplosives Test Center, LLC\n5698 Brennan Ave\nColorado Springs, CO 80923\n505.515.4430\nFrom: INFOCNTR (PHMSA) \nSent: Wednesday, August 14, 2019 9:27 AM\nTo: Graham Walsh \nCc: Larson, Ryan (PHMSA) \nSubject: Request for a Letter of Interpretation\nDear Graham,\nWe have received your inquiry to the Pipeline and Hazardous Materials Safety Administration's (PHMSA's) Hazardous\nMaterials Information Center (HMIC). If you would like to request a formal letter of interpretation, please send an email\nto the Hazardous Materials Information Center at infocntr@dot.gov. In the subject line of the email, type \"Letter of\nInterpretation Request.\" In the body of the email, include your name, phone number, and a physical mailing address.\nPlease be as detailed as possible in your interpretation request.\nFor further assistance, you may contact the Hazardous Materials Information Center, which is staffed with regulatory\nspecialists who can quickly answer your questions by phone, Monday through Friday, 9 AM - 5 PM EST at (800) 467-4922\nor (202) 366-4488. Alternatively, if you would like a regulatory specialist to contact you directly, please respond to this\ne-mail with a telephone number where you can be reached between 9 AM and 5 PM EST.\nSincerely,\nBreanna, Hazardous Materials Specialist\nAn e-mail response from this office is considered informal guidance. Formal guidance may be requested in accordance\nwith 49 CFR 105.20. https://www.phmsa.dot.gov/standards-rulemaking/hazmat/hazardous-materials-information-\ncenter\n2","truncated":false,"body_characters":7256}