Notice2022-22200
Hazardous Materials: Safety Device Classification Policy
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 13, 2022
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is publishing this notice setting forth and requesting comments from the public and other interested parties regarding its policy on classification of articles containing hazardous materials used in vehicles, vessels, or aircraft to enhance safety to persons. These articles are described as "Safety devices, electrically initiated, 9" for purposes of transportation under the U.S. hazardous material regulations.
Full Text
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<title>Federal Register, Volume 87 Issue 197 (Thursday, October 13, 2022)</title>
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[Federal Register Volume 87, Number 197 (Thursday, October 13, 2022)]
[Notices]
[Pages 62177-62180]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22200]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket Number PHMSA-2019-0156 (Notice No. 2022-07)]
Hazardous Materials: Safety Device Classification Policy
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice; safety device classification policy.
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SUMMARY: PHMSA is publishing this notice setting forth and requesting
comments from the public and other interested parties regarding its
policy on classification of articles containing hazardous materials
used in vehicles, vessels, or aircraft to enhance safety to persons.
These articles are described as ``Safety devices, electrically
initiated, 9'' for purposes of transportation under the U.S. hazardous
material regulations.
DATES: Comments must be received by November 14, 2022.
ADDRESSES: You may submit comments identified by the docket number
PHMSA-2019-0156 by any of the following methods:
<bullet> Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the online instructions for submitting comments.
<bullet> Fax: (202) 493-2251.
<bullet> Mail: Docket Management System, U.S. Department of
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590.
<bullet> Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-
[[Page 62178]]
30, Ground Floor, Room W12-140 in the West Building, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number PHMSA-2019-0156 for this notice at the beginning of the
comment. Note that all comments received will be posted without change
to <a href="http://www.regulations.gov">http://www.regulations.gov</a> including any personal information
provided. If sent by mail, comments must be submitted in duplicate.
Persons wishing to receive confirmation of receipt of their comments
must include a self-addressed stamped postcard.
Docket: For access to the dockets to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> or DOT's Docket
Operations Office; see ADDRESSES.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and treated as private by its owner. Under the Freedom of
Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this notice contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this notice, it is important that you clearly designate
the submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPRIETARY.'' Submissions containing CBI should be
sent to Lad Falat, Sciences and Engineering Division, Office of
Hazardous Materials Safety, (202) 366-1655, PHMSA, East Building,
PHH10, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any
commentary that PHMSA receives, which is not specifically designated as
CBI, will be placed in the public docket.
FOR FURTHER INFORMATION CONTACT: Lad Falat, Sciences and Engineering
Division, (202) 366-1655, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
PHMSA publishes and seeks comments on this Safety Device
Classification Policy (Policy). This Policy outlines the parameters for
what PHMSA will approve as Class 9 (UN3268) safety devices under 49 CFR
173.166(b)(1)(iv). Specifically, PHMSA will approve as Class 9 (UN3268)
safety devices articles that are complete, assembled components used in
transportation by vehicle, vessel, or aircraft and which perform a
stand-alone mechanical action enhancing safety to persons. As explained
below, because subcomponents of safety devices do not meet the
threshold and because they pose a potential risk when transported, they
must continue to be transported under existing regulatory authorities.
This notice also provides guidance on the types of data and
documentation an applicant can provide to support an application to the
Associate Administrator for Hazardous Materials Safety for
classification of an article as a Class 9 (UN3268) safety device.
II. Background
PHMSA's Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
prescribe requirements for the transportation in commerce of safety
devices, including labeling, marking, and shipping paper requirements.
The HMR provides that articles containing Class 1 (Explosive) materials
must seek classification approval from PHMSA and adhere to important
labeling, marking, and shipping paper requirements. The HMR also
establishes requirements for assignment of shipping descriptions that
incorporate information regarding the classification of materials as
Class 1, Class 9, or another hazard class.
Section 173.166 of the HMR defines ``safety devices'' as ``articles
which contain pyrotechnic substances or hazardous materials of other
classes and are used in vehicles, vessels or aircraft to enhance safety
to persons.'' That section identifies three types of proven safety
devices (specifically, air bag inflators, air bag modules, and seat-
belt pretensioners) that, if certified by a PHMSA-certified explosives
testing laboratory as Class 9 materials, do not require PHMSA approval
for use of the shipping description ``UN3268, Safety devices,
electrically initiated, 9.'' Section 173.166, however, contemplates
that certain other articles could be eligible for approval by the
Associate Administrator for Hazardous Materials Safety for use of the
``UN3268, Safety devices, electrically initiated, 9'' shipping
description. Articles determined by a PHMSA-certified explosives
testing laboratory to have passed the testing criteria established in
Special Provision 160 and which are used in vehicles, vessels, or
aircraft to enhance the safety of persons, may be submitted to the
Associate Administrator for Hazardous Materials Safety for approval as
a Class 9 (UN3268) safety device. Other safety devices, which had been
deemed ineligible for approval as Class 9 hazardous materials by either
the terms of Sec. 173.166, or the Associate Administrator for
Hazardous Materials Safety, may apply for approval to use the shipping
description ``UN0503, Safety devices, pyrotechnic, 1.4G.'' Division
1.4G explosives are subject to enhanced labeling, marking, and shipping
paper requirements that notify transportation workers, emergency
responders, and import controllers of the presence of explosives. In
addition, division 1.4G explosives are not allowed for bulk
transportation, or transport by passenger rail or passenger aircraft.
The above-described Sec. 173.166 construct reflects a 2015
amendment of the HMR \2\ to account for a change in the 19th Edition of
the United Nations Model Regulations \3\ expanding eligibility for use
of the ``UN3268, Safety devices, electrically initiated, 9'' shipping
description to other proven technologies. Historically, the shipping
description for UN3268 safety devices in the UN Model Regulations
(``UN3268, Safety devices, air bag inflators, air bag modules, or seat-
belt pretensioners'') had been explicitly limited to the specific
safety devices identified in italics. The HMR at Sec. 173.166 had
mirrored that limitation. However, the 19th Edition of the UN Model
Regulations deleted the historical reference to specific safety devices
within a revised shipping description--``UN3268, Safety devices,
electrically initiated, 9''--to accommodate technological development
of new safety devices for vehicles, vessels, and aircraft. PHMSA
subsequently revised Sec. 173.166 in its HM-215M rulemaking to
incorporate that revised shipping description within UN Model
Regulations and introduced the approval process by which stakeholders
can seek to use the shipping description ``UN3268, Safety devices,
electrically initiated, 9.''
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\2\ ``Final Rule: International Standards Harmonization (HM-
215M),'' 80 FR 1075 (Jan. 8, 2015) (HM-215M).
\3\ United Nations Economic Commission for Europe, UN
Recommendations on the Transport of Dangerous Goods--Model
Regulations, Nineteenth revised edition (2015) (19th Edition of the
UN Model Regulations).
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Since issuance of HM-215M, PHMSA has received special permit
applications to classify Class 1 articles, that had been classified
through an EX approval as Division 1.4S explosives and which are not
used in vehicle, vessel, or aircraft transportation, as Class 9
(UN3268) safety devices. UN3268 is limited by the
[[Page 62179]]
HMR for use in transportation, therefore, safety-enhancing articles
containing pyrotechnic substances or other hazardous materials that are
not used in a vehicle, vessel, or aircraft, such as those for table
saws, non-vehicular mining equipment, and life-saving appliances as
described in Sec. 173.219 cannot be considered ``UN3268, Safety
Devices, electrically initiated, 9.'' PHMSA has also received inquiries
and requests for interpretations concerning whether subcomponents of
vehicle, vessel, or aircraft safety devices could themselves be
eligible for use of the shipping description ``UN3268, Safety devices,
electrically initiated, 9.''
In response to those inquiries about implementation of Sec.
173.166, PHMSA in June 2020 issued a request for information \4\
seeking public input on specific questions and issues relevant to the
shipping description ``UN3268, Safety devices, electrically initiated,
9.'' These questions sought general information and data on the scope
and expansion of the safety device application under Sec. 173.166, the
testing required for consideration and approval as a Class 9 (UN3268)
safety device, and the conditions for transport and carriage aboard
aircraft for items classified as Class 9 (UN3268) safety devices under
Sec. 173.166. PHMSA received 14 total comments from various
stakeholders including safety device manufacturers, explosive testing
labs, and trade associations. The input received from these commenters
has been considered in formulating this Policy.
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\4\ 85 FR 35368 (June 8, 2020).
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PHMSA publishes this Policy set forth below and seeks comments from
the public and interested stakeholders thereon.
III. Policy on Classification of Articles Used in Vehicles, Vessels, or
Aircraft as Class 9 (UN3268) Safety Devices
In order to provide clarity on what types of articles PHMSA will
consider for shipping description ``UN3268, Safety devices,
electrically initiated, 9'' under 49 CFR 173.166, PHMSA issues this
Policy and guidance. This document outlines the types of safety devices
PHMSA will consider for approval as Class 9 (UN3268) safety devices,
the process to seek such approval, and documentation to support such an
application for approval.
Limitation to Transportation Sector
Section 173.166 limits applicability of the shipping description
``UN3268 Safety devices, electrically initiated, 9'' to ``articles
which . . . are used in vehicles, vessels, or aircraft to enhance
safety to persons.'' The phrase ``used in vehicles, vessels, or
aircraft'' limits eligibility to articles used in transportation by
vehicle, vessel, or aircraft. Therefore, if an article is intended to
enhance safety to persons, but is not used in a vehicle, vessel, or
aircraft, it cannot be considered an eligible device under Sec.
173.166 at this time.
Subcomponents
PHMSA has received inquiries on whether sub-components of safety
devices can themselves be considered Class 9 (UN3268) safety devices
under Sec. 173.166. Shipping description ``UN3268, Safety devices,
electrically initiated, 9'' is applicable to air bag inflators, air bag
modules, seat-belt pretensioners, and other pyromechanical devices.
Section 173.166 describes pyromechanical safety devices as ``assembled
components'' and elsewhere describes some safety devices as being
within ``completed components.'' \5\ In determining under Sec. 173.166
if an article (other than air bag inflators, air bag modules, or seat-
belt pretensioners) can appropriately be described as a Class 9
(UN3268) safety device, PHMSA will consider whether a sub-component to
a safety device will have elevated risk over the safety device they
will become a part of, which could be due to greater concentration or
total amount of explosive hazard. PHMSA will balance the potential
safety benefits to persons in vehicles, vessels, or aircraft with the
potential danger posed by shipping explosive materials that are not
incorporated in a larger component device. Many sub-components such as
pyrotechnic micro-gas generators (MGGs), that supply a burst of gas but
which itself does not produce a stand-alone safety-enhancing mechanical
action, are not expected to meet these criteria--due to the safety
burden they pose in shipment. To date, PHMSA has not received requests
to approve any subcomponents that would enhance safety to persons in
vehicles, vessels, or aircraft sufficient to outweigh the risks
presented by transporting those subcomponents as Class 9 (UN3268)
safety devices in transportation. This guidance supersedes PHMSA
Letters of Interpretation 18-0035 and 18-0113, which are hereby
withdrawn. PHMSA has not issued any approvals consistent with those
Letters of Interpretation.
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\5\ Section 173.166(d)(1) excepts from the requirements of Sec.
173.166 a safety device classified as Class 9 and which is installed
in, or is, a completed component of a vehicle, vessel, aircraft. As
for what is considered a ``completed component'' the regulation
mentions ``steering columns or door panels'' as examples, which
provides further evidence of the limitations intended in Sec.
173.166.
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Guidance for Applications for Approval as Class 9 (UN3268) Safety
Devices
Applicants seeking approval as Class 9 (UN3268) safety devices
other than air bag inflators, air bag modules, and seat-belt
pretensioners may apply for such approval pursuant to Sec. 173.166(b).
Any such articles must be examined and successfully tested by a person
or agency who is authorized to perform examination and testing of
explosives under Sec. 173.56(b)(1) and submitted to the Associate
Administrator for Hazardous Materials Safety for approval and assigned
an EX number (see Sec. 173.166(b)(1)(iv)).
In order for PHMSA to assign shipping description ``UN3268, Safety
devices, electrically initiated, 9'' to an article, an applicant must
provide, as part of the approval application, sufficient evidence that
the article under consideration has been tested, including records of
such tests as outlined in Sec. 173.166(g)(1). Additionally, applicants
may provide information that the article is used in vehicles, vessels,
or aircraft, and demonstrated to enhance safety to persons. Data on the
number of articles in use listed by vehicle type and the resulting
effects on enhancement of safety to persons is important supporting
information for an application under Sec. 173.166(b)(1)(iv).
Additional supporting documentation may include written statements
confirming the use of the subject articles to enhance safety to persons
by manufacturers or modifiers of vehicles, vessels, or aircraft, and
statements of recognition from the insurance industry, other trade
associations, and/or government bodies that the subject articles are
recognized to enhance the safety to persons when used in vehicles,
vessels, or aircraft. This may include data that demonstrates the
devices have been used in foreign vehicle, vessels, or aircraft
applications to enhance safety to persons. Applicants' claims and
supporting documentation will be reviewed and verified by the Associate
Administrator during the evaluation and approval process.
An article seeking the shipping description ``UN3268, Safety
devices, electrically initiated, 9,'' but that has not been tested and
demonstrated to enhance safety to persons when used in vehicles,
vessels, or aircraft, would not meet the Associate Administrator's
policy for shipping description ``UN3268, Safety devices, electrically
initiated, 9.'' In such a case, if the article
[[Page 62180]]
meets the definition of ``explosive'',\6\ the applicant must seek
approval under Sec. 173.56 to transport the article in accordance with
the procedures for the classification and approval of a new Class 1
explosive. If, after such approval is granted, the applicant can
demonstrate that the article is used in vehicles, vessels, or aircraft
to enhance safety to persons, then they may request that PHMSA apply
shipping description ``UN3268, Safety devices, electrically initiated,
9'' in accordance with the process described above.
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\6\ As defined in Sec. 173.50 an explosive means any substance
or article, including a device, which is designed to function by
explosion (i.e., an extremely rapid release of gas and heat) or
which, by chemical reaction within itself, is able to function in a
similar manner even if not designed to function by explosion, unless
the substance or article is otherwise classed under the provisions
of the HMR. The term includes a pyrotechnic substance or article,
unless the substance or article is otherwise classed under the
provisions of the HMR.
Signed in Washington, DC, on October 6, 2022 under authority
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2022-22200 Filed 10-12-22; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on October 13, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.