Bullfrog Fire & Safety — Hazardous Materials Safety Interpretation

Page 1U.S. Department 1200 New Jersey Avenue, S.E. of Transportation Zone E26 (PHC-10) Washington, D.C. 20590-0001 Pipeline and Hazardous Phone: (202) 366-4400 Materials Safety Administration Office of Fax: (202) 366-7041 Chief Counsel Hazardous Materials Safety Law Division October 16, 2014 Ms. Kristie Rink Bulldog Fire & Safety P.O. Box 2492 Loganville, GA 30052 Dear Ms. Rink: The Pipeline and Hazardous Materials Safety Administration (PHMSA) is in receipt of your August 12, 2014 letter regarding Florida State requirements and requalification approvals issued by PHMSA. As delegated by the Secretary of Transportation, PHMSA has the authority to prescribe regulations for the safe transportation of hazardous materials in commerce, including, inter alia, the maintenance, repair, and testing of packagings used to transport hazardous materials in commerce. See 49 U.S.C. § 5107; 49 C.F.R. § 1.97. Under this authority, PHMSA may issue an approval called a Requalifier Identification Number (RIN) authorizing a person or entity to requalify DOT-specification cylinders in accordance with the Hazardous Materials Regulations (HMR; 49 C.F.R. Parts 171-180). See 49 C.F.R. §§ 107.705, 107.805, 180.205. In order to qualify for a RIN approval, an applicant must be fit to conduct the approved activity (e.g., operable hydrostatic retest equipment, trained personnel). 49 C.F.R. § 107.709. In order for PHMSA to consider and/or grant an application for a RIN approval, we must be able to evaluate the applicant's fitness, by reviewing its requalification facilities, equipment, practices, and personnel. If a RIN approval is not needed, such as when an approval-holder is not performing requalification activities, PHMSA may terminate a RIN approval. 49 C.F.R. § 107.713. For these reasons, PHMSA does not consider and/or grant RIN approvals to entities that do not perform requalification activities.#

Page 2Furthermore, PHMSA may only exercise its authority over entities that are subject to our jurisdiction. In general, PHMSA has jurisdiction over entities that perform activities that are subject to the HMR. This includes entities that perform requalification activities or otherwise affect the transportation of hazardous materials in commerce. As such, PHMSA may grant RIN approvals to entities that will operate as requalifiers, but cannot grant RIN approvals to entities that do not perform these activities. See generally, 49 C.F.R. §§ 107.805, 180.205. Your letter indicates that Bulldog Fire & Safety requires a RIN approval in order to obtain a dealer's license under Fla. Admin. Code Ann. r. 69A-21.201(12) and that your company "does not perform any hydrostatic testing on any cylinders" and "do[es] not have a facility to be inspected by the Department of Transportation." Since your company will not perform requalification activities and is not equipped to do so, PHMSA cannot issue Bulldog Fire & Safety a RIN approval. You may wish to apply to PHMSA for a preemption determination, pursuant to 49 U.S.C. § 5125 and 49 C.F.R. Part 107, Subpart C. Under certain conditions, a state requirement may be preempted, or superseded by, a federal requirement. The standards for preemption and the requirements for filing a request for determination are outlined in 49 C.F.R. §§ 107.202, 107.203, and 107.205. Generally, any person who is directly affected by a requirement of a state may apply to PHMSA's Chief Counsel for a determination by providing the following: 1) The text of the state requirements; 2) The relevant federal requirements; 3) An explanation of why the state requirements should be preempted under the standards outlined in 49 C.F.R. § 107.202; 4) An explanation of how you are affected by the state requirements; and A certification that you have mailed a copy of your application for a determination to the state and the name and address to which you directed that notice. If you have any further questions, please do not hesitate to contact this office. Sincerely. for tong Senior Assistant Chief Counsel CERTIFIED MAIL - RETURN RECEIPT REQUESTED 2#