[Federal Register Volume 78, Number 146 (Tuesday, July 30, 2013)]
[Rules and Regulations]
[Pages 45880-45893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18263]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 173

[Docket No. PHMSA-2010-0201 (HM-254)]
RIN 2137-AE62


Hazardous Materials: Approval and Communication Requirements for 
the Safe Transportation of Air Bag Inflators, Air Bag Modules, and 
Seat-Belt Pretensioners (RRR)

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
amending the Hazardous Materials Regulations applicable to air bag 
inflators, air bag modules, and seat-belt pretensioners. The revisions 
incorporate the provisions of two special permits into the regulations. 
In addition, PHMSA is amending the current approval and documentation 
requirements for a material classified as a UN3268 air bag inflator, 
air bag module, or seat-belt pretensioner. These revisions are intended 
to reduce the regulatory burden on the automotive industry and 
facilitate commerce, while continuing to maintain an equivalent level 
of safety.

DATES: Effective date: August 29, 2013. Voluntary compliance date: 
PHMSA is authorizing voluntary compliance beginning July 30, 2013.

FOR FURTHER INFORMATION CONTACT: Matthew Nickels, Standards and 
Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation, telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Amendments Adopted in Final Rule
IV. Comments Submitted Regarding the NPRM and PHMSA's Response to 
Those Comments
V. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 13610, Executive Order 13563, Executive Order 
12866, and DOT Regulatory Policies and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act of 1995
    I. Environmental Assessment
    J. Privacy Act
    K. Executive Order 13609 and International Trade Analysis
    L. National Technology Transfer and Advancement Act
    List of Subjects

I. Executive Summary

    In this final rule, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) is amending the Hazardous Materials Regulations 
(HMR) applicable to the transportation of air bag inflators, air bag 
modules, and seat-belt pretensioners in Sec.  173.166. This rulemaking 
is responsive to one petition for rulemaking submitted by an industry 
representative: P-1523, asking that PHMSA remove unnecessary burdens on 
the industry that do not advance safety. Further, this final rule is 
incorporating into the HMR the provisions of two widely used and 
longstanding special permits with established safety records (DOT-SP 
12332 and DOT-SP 13996). These revisions are intended to reduce the 
regulatory burden on the automotive industry and facilitate commerce, 
while continuing to maintain an equivalent level of safety.

[[Page 45881]]

    This rulemaking specifically finalizes revisions to five regulatory 
initiatives. The first initiative modifies the approval process and 
documentation requirements associated with classifying air bag 
inflators, air bag modules, and seat-belt pretensioners. The second 
initiative incorporates provisions of DOT-SP 12332 into the HMR by 
excepting Class 9 air bag inflators, air bag modules, or seat-belt 
pretensioners assigned to UN3268 from the requirement to provide the EX 
number on the shipping paper. The third initiative is a simple 
clarification that a safety restraint device that is installed in a 
vehicle or vehicle component is not subject to the HMR. The fourth 
initiative incorporates provisions of DOT-SP 13996 into the HMR by 
authorizing the use of non-DOT specification, reusable containers 
manufactured from high-strength plastic, metal, or other suitable 
material, or other dedicated handling devices, for transportation of 
air bag inflators, air bag modules, and seat-belt pretensioners. The 
fifth initiative permits several additional types of packaging to 
maintain alignment with the 17th revised edition of the UN Model 
Regulations.
    The costs and benefits of the amended regulations are dependent on 
the level of preexisting compliance with the two special permits and 
the overall effectiveness of the amended regulations (e.g., flexibility 
provided when incorporating portions or whole special permits). 
Additionally, we believe that this rulemaking will benefit the 
automobile industry because it will reduce the burden in how air bag 
inflators, air bag modules, and seat-belt pretensioners are authorized 
for shipment by eliminating the necessity to submit approval 
applications to PHMSA, and thus provide a significant cost savings.
    The costs associated with the rule are negligible due to minor 
revisions to the recordkeeping requirements. DOT explosives test labs 
that test and examine air bag inflators, air bag modules, or seat-belt 
pretensioners will be required to provide the manufacturer a detailed 
report on each tested design. The DOT explosives test labs already 
provide manufacturers with test reports for classification purposes, 
but the amended reporting requirements will require minimal additions 
to the report (e.g., unique product identifier, etc.). Outside of this 
marginal impact, this rulemaking provides numerous benefits. PHMSA is 
currently spending/expending an estimated $82,800 per year to process 
and review special permits and approvals associated with Class 9 
airbags and seat-belt pretensioners. Further, industry incurs an 
estimated $165,000 per year to prepare and submit applications for 
special permits and approvals, and $890,000 per year to provide the EX 
numbers on shipping papers. Combined, these costs total $1,137,800 per 
year. Since the objective of the rule is to eliminate these costs, the 
benefits that can be achieved are estimated to be $1,137,800 per year.
    However, notwithstanding the data above, because of the difficulty 
of and uncertainty associated with forecasting industry effects into 
the far future, we assumed a 10-year timeframe to outline, quantify, 
and monetize the costs and benefits of the rulemaking and to 
demonstrate the net effects of the rulemaking.
    The net benefits of the rule are calculated by subtracting the 
costs from the benefits. Since the costs are assumed to be negligible, 
the first-year net benefits are estimated to be $1.14 million. Based 
upon the market analysis presented in the regulatory impact assessment 
(RIA), it's assumed these benefits will grow at an annual average rate 
of 5 percent.\1\ Calculating the present value of this net benefit over 
ten years produces an estimated benefit of between ten and twelve 
million dollars, using the discount rates of 7 percent and 3 percent, 
respectively. A summary of the expected annualized costs and benefits 
is provided in the table below.
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    \1\ In its recent report, ``Global Automotive Airbag Market 
2011-2015,'' TechNavio is forecasting that the global airbag market 
will grow at a compounded annual average annual growth rate of 11.54 
percent. Given the maturity of the airbag market in the United 
States, we believe the growth rate in the U.S. market will be less 
than the global growth rate and therefore assumed 5 percent for the 
U.S. market.

Annualized benefit (in 2013 $).........  $1.14 million.
Annualized Cost (in 2013 $)............  $0 (negligible).
Benefit-Cost Ratio.....................  All benefits.
10-Year Benefits at 7% and 3% Discount   $10-12 million.
 Rates.
 

    With this in mind, PHMSA has concluded that the aggregate benefits 
justify the final rule. For additional information and review of the 
analysis underlying these estimates, as well as possible approaches to 
reduce the costs of this rule while maintaining or increasing the 
benefits, please review the RIA available at the public docket for this 
rulemaking.

II. Background

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
issued a notice of proposed rulemaking (NPRM) on March 26, 2012 [77 FR 
17394] under Docket No. PHMSA-2010-0201 (HM-254) to amend the Hazardous 
Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the 
transportation of air bag inflators, air bag modules, and seat-belt 
pretensioners in Sec.  173.166. This NPRM was part of an ongoing review 
by PHMSA to identify widely used and longstanding special permits with 
established safety records for adoption into HMR. The numbers of the 
special permits considered for incorporation in the NPRM were DOT-SP: 
12332 and 13996. PHMSA identified these special permits as implementing 
operational techniques that achieve a safety level that corresponds to 
or exceeds the safety level required under the HMR. In addition, this 
rulemaking addresses petition for rulemaking P-1523, dated June 24, 
2008 (P-1523) and two addendums submitted on February 26, 2009 and June 
14, 2011 by the North American Automotive Hazmat Action Committee 
(NAAHAC). NAAHAC represents numerous automobile manufacturers and 
component suppliers located in North America as well as in Asia and 
Europe. NAAHAC's petition requested revisions to requirements in the 
HMR applicable to safety restraint systems (e.g., air bag inflators, 
air bag modules, and seat-belt pretensioners). NAAHAC suggested that 
subjecting Class 9, UN3268 safety restraint systems to the EX approval 
process in accordance with Sec.  173.56 imposed an unnecessary burden 
on the industry that does not advance safety. Therefore, NAAHAC 
requested that PHMSA remove the requirement for manufacturers to apply 
for and receive an EX approval number for the shipment of Class 9, 
UN3268 safety restraint systems.
    In addition, NAAHAC suggested that PHMSA incorporate the following 
long-standing special permits into the HMR:
     DOT-SP 12332--This special permit provides relief from 
Sec.  173.166(c) in that it allows the devices to be shipped without 
listing the EX-approval numbers or product names on the shipping 
papers, and from Sec.  173.166(e) in that an alternative packaging 
method is authorized. The special permit has been in effect since 2000, 
and has been utilized by more than 2,100 grantees with no known safety 
problems. A review of the Hazardous Materials Incident Data library did 
not reveal any incidents related to this special permit since the date 
of its issuance. This special permit applies to Class 9, UN3268 
materials that are packaged using either of the two following methods:
    a. Non-specification steel drums with a wall and lid thickness not 
less than 20 gauge. The lid must be securely affixed

[[Page 45882]]

with a lever-locking or bolted-ring assembly. The threaded bung closure 
in the top of the drum must be removed prior to shipment and the bung 
opening covered with waterproof plastic tape or a waterproof soft 
plastic cap that must easily provide ventilation of the drum contents 
in the event of a fire. The drum may be filled with any combination of 
air bag inflators, air bag modules, or seat-belt pretensioner devices 
to a capacity not greater than fifty (50) percent of the drum's total 
volume; inner packagings are not necessary; or
    b. Outer packagings that are UN Standard 4H2 solid plastic boxes or 
non-specification rugged reusable plastic containers with either trays 
or cushioning material in the containers to prevent movement of 
articles during transportation. Inner packagings are static-resistant 
plastic bags or trays.
     DOT-SP 13996--This special permit provides relief from 
Sec.  173.166(e)(4) in that it authorizes the transportation, under 
certain conditions, of Class 9, UN3268 air bag inflators, air bag 
modules, and seat-belt pretensioners in reusable containers 
manufactured from high-strength plastic, metal, or other suitable 
material, or other dedicated handling devices. The special permit has 
been in effect since 2005, and has been utilized by 31 grantees with no 
known safety problems. A review of the Hazardous Materials Incident 
Data library did not reveal any incidents related to this special 
permit since the date of its issuance.
    As stated above, in addition to NAAHAC's petition suggesting that 
subjecting Class 9, UN3268 safety restraint systems to the EX approval 
process in accordance with Sec.  173.56 imposes an unnecessary burden 
on the industry that does not advance safety, the petition also 
suggested that PHMSA incorporate these two long-standing special 
permits into the HMR. PHMSA agrees with the petition and proposed to 
amend the HMR to incorporate certain requirements based on these two 
special permits issued under 49 CFR Part 107, Subpart B (Sec. Sec.  
107.101 to 107.127).

III. Amendments Adopted in Final Rule

    PHMSA agrees with the petitioner that requiring documentation for 
Class 9 air bag inflators, air bag modules, and seat-belt pretensioners 
to be submitted to PHMSA and assigned an EX Number is unnecessarily 
burdensome. PHMSA believes that eliminating this requirement will not 
adversely affect safety since the devices will still continue to be 
sent to the explosive test labs for classification purposes and 
assigned a unique product identifier by the lab, but the documentation 
will no longer be forwarded to PHMSA and issued an EX Number (please 
see A. Approval Process below for further discussion). Further, PHMSA 
agrees that incorporating the terms of DOT-SP 12332 and DOT-SP 13996 
into the HMR will promote compliance and safety. As a result, PHMSA 
proposed to revise Sec.  173.166 to address the concerns highlighted in 
NAAHAC's petition. PHMSA believed that changes proposed by the NPRM 
promoted the safe transportation of Class 9 air bag inflators, air bag 
modules, and seat-belt pretensioners, while significantly reducing the 
financial burden on the overall automotive industry (and the device 
manufacturers specifically) for shipping these devices. The amendments 
adopted by this final rule are summarized below.

A. Approval Process

    In the NPRM, PHMSA proposed to allow manufacturers of air bag 
inflators, air bag modules, or seat-belt pretensioners to receive a 
classification of Class 9 (UN3268) for new designs that pass Test 
series 6(c) of the UN Manual of Tests and Criteria, which is currently 
required by Special Provision 160. As was proposed, an air bag 
inflator, air bag module, or seat-belt pretensioner would be classed as 
Class 9 (UN3268) if the air bag inflator, air bag module, or seat-belt 
pretensioner design is examined and successfully tested by a person or 
agency (authorized testing agency) who is authorized by the Associate 
Administrator to perform such examination and testing of explosives 
under 173.56(b)(1).
    As was proposed in the NPRM, persons who test and examine air bag 
inflators, air bag modules, or seat-belt pretensioners would be 
required to provide a detailed report on each tested design to the 
manufacturer. Key components of the report include a description of the 
design; explanation of the tests performed and results; and a 
recommended classification for tested designs. The manufacturer must 
retain the report for as long as the design is in production and for 15 
years thereafter. Additionally, the manufacturer must make the report 
available to Department officials upon request. This record retention 
requirement ensures that a detailed test report of each air bag 
inflator, air bag module, or seat-belt pretensioner design is 
maintained and available for the useful life of the device. These 
records may be used to verify the accuracy and validity of the tests 
and classification recommendation.
    In summary, the proposed NPRM amendments provided manufacturers of 
air bag inflators, air bag modules, or seat-belt pretensioners with the 
option to utilize new designs that are proven to meet the criteria of a 
Class 9 through established test criteria, without receiving an EX 
approval from PHMSA. The result would be a significant cost savings and 
no change in the level of safety. Additionally, we proposed to permit 
manufacturers to continue to receive EX approval by submitting their 
designs for examination and testing in accordance with Sec.  173.56(b) 
if they so choose.
    If an air bag inflator, air bag module, or seat-belt pretensioner 
fails Test series 6(c) of the UN Manual of Tests and Criteria, as 
provided by Special Provision 160, then the device must continue to be 
approved by PHMSA in accordance with the explosive examination, 
classification, and approval process in Sec.  173.56(b).

B. Shipping Papers

    PHMSA proposed in the NPRM to except Class 9 air bag inflators, air 
bag modules, or seat-belt pretensioners assigned to UN3268 from the 
requirement to provide the EX number on the shipping paper. As 
suggested by NAAHAC, the documentation requirement imposes a cost 
burden, but does not provide a safety benefit.

C. Safety Restraint Systems Installed in Vehicles

    In the NPRM, PHMSA proposed to clarify that a safety restraint 
device that is installed in a vehicle or vehicle component is not 
subject to the HMR. This change made it clear that the exception will 
continue to apply to Class 9, UN3268 materials that are not approved by 
the Associate Administrator.

D. Packaging

    In the NPRM, PHMSA also proposed to authorize the use of non-DOT 
specification, reusable containers manufactured from high strength 
plastic, metal, or other suitable material, or other dedicated handling 
devices, for transportation of air bag inflators, air bag modules, and 
seat-belt pretensioners. This change would incorporate the provisions 
of Special Permit DOT-SP 13996 into the HMR.
    Special Permit DOT-SP 13996 allows the specified packaging to be 
used for transportation from the manufacturing facility to an 
intermediate handling location; from an intermediate handling location 
to the assembly facility; from the assembly facility to an intermediate 
handling location; from the intermediate handling location back to the 
manufacturing facility; or from the

[[Page 45883]]

assembly facility directly to the manufacturer with no intermediate 
facility involved. As proposed in the NPRM, there would be no limit on 
the use of the authorized packaging to transportation between specific 
destinations. However, no modifications or changes may be made to the 
original package, and the transportation must be made by private or 
contract carrier. By prohibiting modifications to the original package, 
this would ensure that adequate packaging and handling considerations 
are maintained.
    In the NPRM, PHMSA also proposed to authorize additional packaging 
alternatives for air bag inflators, air bag modules, and seat-belt 
pretensioners that have been removed from, or were intended to be used 
in, a motor vehicle that meets the requirements for use in the United 
States. The proposed change would incorporate the provisions of Special 
Permit DOT-SP 12332 into the HMR. In accordance with the special 
permit, this additional packaging option would be limited to devices 
that are offered for transportation and transported domestically by 
highway.

E. Shipments for Recycling/Reuse

    In the NPRM, we did not propose any changes to the requirements for 
shipping air bag modules or seat-belt pretensioners for recycling. In 
the current HMR, when offered for domestic transportation by highway, 
rail freight, cargo vessel or cargo aircraft, a serviceable air bag 
module or seat-belt pretensioner removed from a motor vehicle that was 
manufactured as required for use in the U.S. may be offered for 
transportation and transported without compliance with the shipping 
paper requirement prescribed in Sec.  173.166(c), but the word 
``Recycled'' must be entered on the shipping paper immediately after 
the basic description prescribed in Sec.  172.202. However, we believed 
that the word ``Reuse'' might be a more appropriate description for the 
actual action that is taking place. We requested comments regarding a 
potential change from the word ``Recycled'' to ``Reuse'' that would 
appear on shipping papers in accordance with an altered Sec.  
173.166(d)(4).

F. Additional Packaging Authorizations

    To maintain alignment of the HMR with international requirements, 
in the NPRM, we proposed to incorporate changes based on the 
Seventeenth revised edition of the UN Model Regulations. Specifically, 
in addition to the packagings authorized currently in Sec.  
173.166(e)(1), (e)(2), and (e)(3), we proposed to permit 1N2 and 1D 
drums, 3B2 jerricans, and 4A, 4B, 4N, and 4H1 boxes.

IV. Comments Submitted Regarding the NPRM and PHMSA's Response to Those 
Comments

    In response to PHMSA's March 26, 2012 NPRM (77 FR 17394), PHMSA 
received comments from seven organizations, associations, and 
individuals. While the majority of commenters supported the proposals 
in the NPRM, some commenters had suggestions for additional revisions 
to the regulatory text. The comments, as submitted to this docket, may 
be accessed via http://www.regulations.gov and were submitted by the 
following entities:
    (1) Hapag-Lloyd America; PHMSA-2010-0201-0002.
    (2) United Parcel Service (UPS); PHMSA-2010-0201-0003.
    (3) International Vessel Operators Dangerous Goods Association 
(IVODGA); PHMSA-2010-0201-0004.
    (4) North American Automotive Hazardous Materials Action Committee 
(NAAHAC); PHMSA-2010-0201-0005.
    (5) National Fire Protection Association (NFPA); PHMSA-2010-0201-
0006.
    (6) National Automobile Dealers Association (NADA); PHMSA-2010-
0201-0007.
    (7) Council on Safe Transportation of Hazardous Articles, Inc. 
(COSTHA); PHMSA-2010-0201-0008.
    The two special permits addressed in this final rule that authorize 
the transportation in commerce of certain air bag inflators, air bag 
modules, and seat-belt pretensioners under the HMR were initially 
issued to members of industry associations or similar organizations. 
They have well established safety records, and therefore PHMSA has 
determined that they are excellent candidates for incorporation into 
the HMR. Incorporating these special permits into the HMR will 
eliminate the need for over 2,100 current grantees to reapply for the 
renewal of two special permits every four years and for PHMSA to 
process the renewal applications, thereby eliminating a significant 
paperwork burden both on industry and the government.
    Below is a discussion of comments we received regarding specific 
provisions proposed in the NPRM, and PHMSA's position regarding those 
comments. As discussed above, commenters were supportive of this 
rulemaking, and those comments within the scope of this rulemaking are 
discussed below.

A. Comments on Paragraph (b) of Sec.  173.166

    Paragraph (b) of Sec.  173.166 provides for the classification 
requirements of an air bag inflator, air bag module, or seat-belt 
pretensioner. In the NPRM, PHMSA proposed to allow manufacturers of air 
bag inflators, air bag modules, or seat-belt pretensioners to receive a 
classification of Class 9 (UN3268) to new designs that pass Test series 
6(c) of the UN Manual of Tests and Criteria--currently required by 
Special Provision 160. We also proposed that, an air bag inflator, air 
bag module, or seat-belt pretensioner may be classed as Class 9 
(UN3268) if the air bag inflator, air bag module, or seat-belt 
pretensioner design is examined and successfully tested by a person or 
agency (authorized testing agency) who is authorized by the Associate 
Administrator to perform such examination and testing of explosives 
under 173.56(b)(1). PHMSA received comments in support of these 
proposed amendments because these changes would simplify the 
classification process. However, commenters did provide PHMSA with some 
modifications to the proposed language in paragraph (b).

    One commenter suggested:
    We would point out that at the present time there are air bag 
inflator designs which utilize a flammable gas mixture, and while 
these devices have tested out of Class 1 they have never been 
included in Class 9/UN3268. They have, instead, been classified as 
Class/Division 2.1. While we believe it would certainly be 
appropriate to allow flammable gas mixtures to be classed as 1.4G if 
the devices did not meet the criteria for exclusion from Class 1, we 
do not feel that they should be included in Class 9 as they meet the 
characteristics of a flammable gas.

    We agree with the commenters point and revised the language in 
paragraph (b)(1) to reflect this in this final rule.
    Another commenter suggested: ``We ask that the reference to 
`maximum parameters of each design' continue to be included in the 
regulation, as it is key to understanding that the approvals issued are 
not specific to individual part numbers but rather to design types.'' 
We agree with the commenters point and revised the language in both 
paragraph (b)(1) and (b)(2) to reflect this in this final rule.

    Regarding Sec.  173.166(b)(2), one commenter suggested:
    We would ask the complete reference to 173.56(b)(1) be included 
rather than just to 173.56. This will match the similar reference 
contained in paragraph (b)(1) above. We are requesting this so that 
all parties who read both portions of the regulations are clearly 
pointed to 173.56(b)(1) which specifies those agencies authorized by 
the DOT, and particularly that they are US citizens.


[[Page 45884]]


    We agree with the commenter's point and revised the language in 
paragraph (b)(2) to reflect this in this final rule.

B. Comments on Paragraph (c) of Sec.  173.166

    Paragraph (c) of Sec.  173.166 provides for Class 9 air bag 
inflators, air bag modules, or seat-belt pretensioners assigned to 
UN3268 to be excepted from the requirement to provide the EX number on 
the shipping paper. As suggested by the original NAAHAC petition, the 
documentation requirement imposes a cost burden, but does not provide a 
safety benefit. PHMSA received comments in support of these proposed 
amendments because these changes would simplify the hazard 
communication process. However, commenters did provide PHMSA with some 
modifications to the proposed language in paragraph (c).
    One commenter suggested: ``We find the wording of this paragraph 
extremely confusing, and we would ask that the language be made clearer 
to ensure compliance.'' Another commenter suggested that: ``PHMSA may 
simply be able to eliminate the proposed 173.166(c)(1) and create a new 
173.166(c) by adapting the language found in the proposed 
173.166(c)(2).'' After reviewing the regulatory text from the NPRM, we 
agree partially with the commenters' issue and revised the language in 
paragraph (c) to reflect this in this final rule.

C. Comments on Paragraph (d) of Sec.  173.166

    Paragraph (d) of Sec.  173.166 provides for certain exceptions for 
Class 9 air bag inflators, air bag modules, or seat-belt pretensioners. 
In the NPRM, PHMSA proposed to clarify that a safety restraint device 
that is installed in a vehicle or vehicle component is not subject to 
the HMR. PHMSA determined that this change makes it clear that the 
exception will continue to apply to Class 9, UN3268 materials that are 
not approved by the Associate Administrator. PHMSA received comments in 
support of these proposed amendments because these changes would 
simplify the exceptions provided. However, commenters did provide PHMSA 
with some modifications to the proposed language in paragraph (d).

    Regarding Sec.  173.166(d)(1), one commenter suggested:
    We are asking for the inclusion of the term `inflator' in the 
exceptions so as to harmonize with the 17th Revised Edition of the 
Recommendations on the Transport of Dangerous Goods, UN Model 
Regulations, Special Provision 289. We also feel that it is 
important to clarify that in order to utilize the exception offered 
in this paragraph in the U.S., the devices must have been classified 
as Class 9 per the 49 CFR. This is clear for the 1.4G's but not for 
the Class 9's. Additionally, we commend the DOT for clarifying that 
this relief applies to both the Class 9 and 1.4G devices.

    We agree with the commenters points and revised the language in 
paragraph (d)(1) to reflect this in this final rule.
    Regarding Sec.  173.166(d)(2), one commenter suggested: ``During 
previous discussions with PHMSA in the summer of 2011, this topic was 
addressed informally and the industry has been operating within this 
policy since that time. We strongly feel that placing this into the 
regulation significantly enhances understanding and compliance.'' After 
reviewing the language provided, we agree with the commenters point and 
revised the language in paragraph (d)(2) to reflect this in this final 
rule.

    Regarding Sec.  173.166(d)(4), one commenter suggested:
    This paragraph is the basis of the special permit DOT-SP 12332, 
which expanded upon this exception and offered additional packaging 
options. Both this paragraph and the areas where DOT-SP 12332 were 
incorporated into the regulation should address both disposal and 
recycling, not just recycling. This should apply to inflators, 
modules and pretensioners of either Class 9 or 1.4G.

    We agree with the commenter's point and revised the language in 
paragraph (d)(4) to reflect this in this final rule.
    Also, the same commenter suggested: `We do not feel that the terms 
`Reuse' or `Reused' should be substituted for ``Recycle'' or 
``Recycled''. The Automotive Safety Council (formerly Automotive 
Occupant Restraints Council--AORC) has gone on record many times 
against the reuse of airbags.'' We appreciate the feedback since we 
asked the question in the NPRM regarding using the term ``reuse'' v. 
``recycled,'' and we agree with the commenter and will not be revising 
the language in paragraph (d)(4) in this final rule.
    A commenter suggested: ``While we do feel it is helpful to have the 
word `Recycled' following the basic description when shipping to a 
recycling location, we hope that the requirement to have the word 
`waste' in association with the basic description will only come into 
play when required by 172.101(c)(9).'' We do agree with the commenter's 
point and note that while it doesn't affect the regulatory text in this 
final rule, shippers should use the word ``waste'' when required by 
Sec.  172.101(c)(9).

    Lastly, another commenter countered a previous point with:
    In addition to this possible streamlining of the text, PHMSA may 
also be able to simplify the requirements for the shipment of 
recycled Air bag inflators, Air bag modules and Seat belt 
pretensioners that are assigned to Class 9. The current proposal 
retains the requirement to include the word `Recycled' on the 
shipping paper immediately after the basic description. However, we 
submit there is no need for this additional text. The function of 
the word `Recycled' is presumably to explain the absence of the EX 
number from a shipping paper. But the very purpose of the simplified 
procedures for Class 9 Air bag inflators, Air bag modules and Seat 
belt pretensioners appears to accomplish the same goal. By proposing 
to eliminate the need for inclusion of the EX number on a shipping 
paper associated with a Class 9 shipment of these articles, PHMSA 
eliminates the need to distinguish recycled Air bag inflators, Air 
bag modules and Seat belt pretensioners from those sent in new 
condition. We believe that with the changes proposed in Docket HM-
254, there is no value in requiring the word `Recycled' to appear on 
the shipping paper. It appears that PHMSA could simply delete the 
text of Sec.  173.166(d)(4), and we respectfully requests that PHMSA 
consider this change.

    While we do appreciate the feedback regarding the recycling 
provisions, we disagree on the statement that they provide no further 
value to the HMR; and, therefore we will not be further revising the 
language in paragraph (d)(4) in this final rule.

D. Comments on Paragraph (e) of Sec.  173.166

    Paragraph (e) of Sec.  173.166 permits different types of 
packagings for Class 9 air bag inflators, air bag modules, or seat-belt 
pretensioners. In the NPRM, PHMSA proposed to authorize the use of non-
DOT specification, reusable containers manufactured from high strength 
plastic, metal, or other suitable material, or other dedicated handling 
devices, for transportation of air bag inflators, air bag modules, and 
seat-belt pretensioners. PHMSA also proposed to authorize additional 
packaging alternatives for air bag inflators, air bag modules, and 
seat-belt pretensioners that have been removed from, or were intended 
to be used in, a motor vehicle that meets the requirements for use in 
the United States. PHMSA received comments in support of these proposed 
amendments because these changes would expand the options for shipping 
these products. However, commenters did provide PHMSA with some 
modifications to the proposed language in paragraph (e).

    Regarding the introductory text of Sec.  173.166(e), one 
commenter suggested:
    During a meeting in 2011 with PHMSA, the Supplier Regulatory 
Workgroup of NAAHAC

[[Page 45885]]

explained that several of our OEMs (customers), have had difficulty 
with this paragraph in the past. The current wording of the 
regulation and the PHMSA's proposed wording do not clearly 
differentiate between the specification packagings in paragraphs 
173.166(e)(1), (2) and (3) and the non-specification packagings in 
(4). With the changes suggested here any confusion would be 
eliminated. We are in complete agreement with the last sentence of 
this paragraph, as we believe it brings clarification to the issue 
of packaging dependent classifications.

    After reviewing the introductory text to paragraph (e), we agree 
with the commenters point and revised the language to reflect this in 
this final rule.
    Regarding Sec.  173.166(e)(4)(i), one commenter suggested: ``The 
industry feels that the use of returnable packagings has proven quite 
safe over the many years of shipping Class 9/UN3268 products, and that 
there should be no limitations to the use of returnables that meet the 
performance criteria called out in 173.166(e)(4)(A)-(C).'' While we 
understand the commenter's point of view, after reviewing the issue, we 
have determined to keep the language as is in this final rule.

    Regarding Sec.  173.166(e)(4)(ii), one commenter suggested:
    DOT-SP 13996 allowed for this type of activity--it was designed 
to accommodate both returns of production shipments from the OEM's 
to the supplier and for sequencers (intermediate handlers) to 
receive/open/store/re-pack and ship parts on to the customer. 
Without the change suggested here, or something similar, this new 
regulation is actually more restrictive than DOT-SP 13996.

    We agree with the commenters point and revised the language in 
paragraph (e)(4)(ii) to reflect this in this final rule.

    Regarding Sec.  173.166(e)(5), one commenter suggested:
    Since expiration dates for EX approvals are not required, it is 
unclear why specific approvals are being targeted for what we assume 
to be re-testing. In order for products to be shipped in packagings 
previously approved by the Associate Administrator, neither the 
products nor the packagings may be changed. The testing previously 
performed and the results would, therefore, not have changed. We 
strongly disagree with this restriction, and ask for its removal.

    While we understand the commenters viewpoint, the intent of 
paragraph (e)(5) was not to single out specific approvals for re-
testing but to continue to permit previously approved air bag 
inflators, air bag modules, or seat-belt pretensioners to remain in 
circulation. However, we do recognize the confusion that an end-date 
may cause industry and we agree with the commenters point and revised 
the language in paragraph (e)(5) to reflect this in this final rule.

    Regarding Sec.  173.166(e)(6), one commenter suggested:
    As noted above, DOT-SP 12332 was intended to be an expansion of 
the packaging methods allowed for disposal or recycling. We would 
ask that a clear reference to both be included. Additionally, DOT-SP 
12332 does not include 1.4G product, so we have excluded the 1.4G/
UN0431 product here as well.

    We agree with the commenters point and revised the language in 
paragraph (e)(6) to reflect this in this final rule.

    Regarding Sec.  173.166(e)(6)(i), one commenter suggested:
    When DOT-12332 was originally issued, the inclusion of the steel 
drum packaging option was based on testing performed in steel drums 
with a void in the top of the drum--no inner packagings, no 
cushioning. The void area, in combination with the lid ventilation, 
is intended to provide space for the appropriate venting of gases in 
the case of a fire without rupture of the drum. Obviously this would 
allow for movement of the devices inside the drum if there were 
rough handling, but the safety benefit of the void far outweighs 
concerns about movement of devices. Movement of devices inside a 
steel drum would not constitute a safety hazard--not regarding 
spillage or inadvertent operation.

    We agree with the commenters point and revised the language in 
paragraph (e)(6)(i) to reflect this in this final rule.

E. Comments on Paragraph (g) of Sec.  173.166

    Paragraph (g) of Sec.  173.166 provides the recordkeeping 
requirements for Class 9 air bag inflators, air bag modules, or seat-
belt pretensioners. In the NPRM, PHMSA proposed to require record 
retention requirement to ensure that a detailed test report of each air 
bag inflator, air bag module, or seat-belt pretensioner design is 
maintained and available for the useful life of the device. As such, 
these records would be used to verify the accuracy and validity of the 
tests and classification recommendation. PHMSA received comments in 
support of these proposed amendments because these changes would allow 
for better accountability of tracking test records. However, commenters 
did provide PHMSA with some modifications to the proposed language in 
paragraph (g).
    Regarding Sec.  173.166(g), one commenter suggested: ``While we see 
the need for the authorized testing agency to maintain test reports for 
a considerable period of time after testing, we feel it should be the 
manufacturer's responsibility to keep track of the duration of 
manufacture of a design type and maintain the test report for 15 years 
beyond manufacture.'' We agree with the commenters point in that a 
revision is needed to more clearly articulate a timeline for each 
stakeholder's recordkeeping requirements, and revised the language in 
paragraph (g) to reflect this in this final rule.

F. Additional Comments Outside of Sec.  173.166

    PHMSA also received some comments that did not directly pertain to 
the proposed regulatory text from the NPRM; however, is relevant to the 
discussion of air bag inflators, air bag modules, or seat-belt 
pretensioners. While the majority of commenters supported the proposals 
in the NPRM, some commenters had suggestions for new regulatory text 
not proposed in the NPRM.
Possible Revision to Sec.  171.23(b)(2)

    One commenter suggested:
    To ensure that the exception from including the EX number on the 
shipping paper for Class 9 air bag inflators, air bag modules, or 
seatbelt pretensioners is crystal clear for international shipments, 
we recommend revising Sec.  171.23(b)(2) to add the following 
statement at the end of the paragraph: This requirement does not 
apply to Class 9 air bag inflators, air bag modules, or seatbelt 
pretensioners.

    While we do understand the commenters point of view and also strive 
to be as clear as possible, we believe the current text in Sec.  
171.23(b)(2) is sufficient. We believe that the current language 
directing shippers to Sec.  173.166(c) is still appropriate since Sec.  
173.166(c)(1) discusses the requirements for 1.4G air bag inflators, 
air bag modules, or seat-belt pretensioners, while Sec.  173.166(c)(2) 
excepts Class 9 air bag inflators, air bag modules, or seat-belt 
pretensioners from the EX number requirements. Therefore, the text in 
Sec.  171.23(b)(2) will remain as currently written.
Possible Revision to Sec.  172.102(c)(1)
    Upon further PHMSA review, we noticed that there was no direct 
connection to the exception provided in Sec.  173.166(d)(1) for air bag 
inflators, air bag modules, or seat-belt pretensioners that have been 
classed as a Division 1.4G and approved by the Associate Administrator 
and are installed in a motor vehicle, aircraft, boat or other transport 
conveyance or its completed components, such as steering columns or 
door panels. To rectify this, we are revising Special Provision 161 in 
Sec.  172.102(c)(1) to direct stakeholders to Sec.  173.166(d)(1) so 
that they are aware that these installed or completed components are 
not subject to the requirements of this subchapter

[[Page 45886]]

provided they comply with Sec.  173.166(d)(1).
Possible Revision to Sec.  175.33(a)

    Another commenter suggested:
    We believe revisions in Part 175 are needed to eliminate 
misunderstanding related to information required on the NOTOC. We 
are aware that PHMSA already believes that for an air carrier, the 
EX number for UN3268 need not be shown on the NOTOC. However, the 
regulations governing the NOTOC are, by PHMSA's own admission, 
ambiguous enough that UPS urges the agency to include a 
clarification in any Final Rule for Docket HM-254. Such a revision 
is discussed in a March 28, 2011 letter of interpretation (10-0194), 
in which PHMSA explains that it did not intend the EX number to be 
required in the NOTOC for shipments of UN3268 and mentions a future 
rulemaking in which a clarification will be proposed. Because there 
are numerous Class 9 Air bag inflators, Air bag modules and Seat 
belt pretensioners for which EX numbers have been issued, the HMR 
needs to be clear as to whether the EX number is a required part of 
the NOTOC. We believe that Docket HM-254 presents the needed 
opportunity for making this clarification to the requirements for 
the NOTOC. Prompt action is required, because FAA inspectors, 
perhaps unaware of PHMSA's view on the matter, have assessed civil 
penalties for missing EX numbers on the NOTOC. A simple adjustment 
to 49 CFR 175.33 would establish that the EX number for UN3268 is 
not required to be displayed on the NOTOC. In order to avoid any 
additional misunderstandings, a similar statement should be included 
explaining that the word `Recycled' also is not required on the 
NOTOC. For example, a new subsection 175.33(a)(12) could be added, 
such as the following: (12) For articles classed as UN3268, 
notwithstanding the previous assignment of an EX number to any Air 
bag inflator, Air bag module or Seat belt pretensioner, the EX 
number is not required to be displayed on the notification of pilot-
in-command. For a recycled Air bag inflator, Air bag module or Seat 
belt pretensioner assigned to Class 9, the word `Recycled' is not 
required to be shown on the notification of pilot-in-command.

    We appreciate the point that the commenter made, but this final 
rule specifically provides the exception in Sec.  173.166(c)(2) where 
Class 9 air bag inflators, air bag modules, or seat-belt pretensioners 
are excepted from the EX number requirements on shipping papers. This 
specific revision to the way Sec.  173.166(c) currently reads makes it 
clear that moving forward there are no EX numbers on Class 9 shipping 
papers. Therefore, the text in Sec.  175.33(a) will remain as currently 
written.

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of the Federal 
Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 
5103(b) authorizes the Secretary to prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. This final rule 
incorporates the provisions of two special permits regarding air bag 
inflators, air bag modules, and seat-belt pretensioners, which will 
allow shipments of these hazardous materials more quickly and 
efficiently, without compromising safety. Furthermore, section 5120(b) 
authorizes the Secretary of Transportation to ensure that, to the 
extent practicable, regulations governing the transportation of 
hazardous materials in commerce are consistent with standards adopted 
by international authorities.

B. Executive Order 13610, Executive Order 13563, Executive Order 12866, 
and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and was not reviewed by the 
Office of Management and Budget (OMB). The final rule is not considered 
a significant rule under the Regulatory Policies and Procedures order 
issued by the Department of Transportation [44 FR 11034]. However, for 
those stakeholders who might be interested, a regulatory impact 
assessment (RIA) was developed for this final rule and is available for 
review in the public docket for this rulemaking.
    Executive Order 13563 is supplemental to and reaffirms the 
principles, structures, and definitions governing regulatory review 
that were established in Executive Order 12866 Regulatory Planning and 
Review of September 30, 1993. Executive Order 13563, issued January 18, 
2011, notes that our nation's current regulatory system must not only 
protect public health, welfare, safety, and our environment but also 
promote economic growth, innovation, competitiveness, and job 
creation.\2\ Further, this executive order urges government agencies to 
consider regulatory approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public. In addition, federal 
agencies are asked to periodically review existing significant 
regulations, retrospectively analyze rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and modify, 
streamline, expand, or repeal regulatory requirements in accordance 
with what has been learned.
---------------------------------------------------------------------------

    \2\ See http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order.
---------------------------------------------------------------------------

    Executive Order 13610, issued May 10, 2012, urges agencies to 
conduct retrospective analyses of existing rules to examine whether 
they remain justified and whether they should be modified or 
streamlined in light of changed circumstances, including the rise of 
new technologies.\3\
---------------------------------------------------------------------------

    \3\ See http://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf.
---------------------------------------------------------------------------

    By building off of each other, these three Executive Orders require 
agencies to regulate in the ``most cost-effective manner,'' to make a 
``reasoned determination that the benefits of the intended regulation 
justify its costs,'' and to develop regulations that ``impose the least 
burden on society.''
    In this final rule, PHMSA is amending the HMR to incorporate 
alternatives this agency has permitted under widely used and 
longstanding special permits and competent authority approvals with 
established safety records that we have determined meet the safety 
criteria for inclusion in the HMR. Incorporation of these provisions 
into the regulations of general applicability will provide shippers and 
carriers with additional flexibility to comply with established safety 
requirements, thereby reducing transportation costs and increasing 
productivity. In addition, the final rule will reduce the paperwork 
burden on industry and this agency resulting from putting an end to the 
need for renewal applications for special permits. Taken together, the 
provisions of this final rule will promote the continued safe 
transportation of hazardous materials while reducing transportation 
costs for the industry and administrative costs for the agency.
    PHMSA considered five potential regulatory alternatives.
     Alternative 1: No Action. Under this option, PHMSA would 
continue existing requirements for Special Permits to air bag 
inflators, air bag modules, and seat-belt pretensioners by taking no 
action. However, PHMSA believes that there are considerable benefits to 
taking action provided that a high level of safety is maintained. 
Furthermore, all costs and benefits are relative to this option.
     Alternative 2: Expanding Provisions of DOT-SP 13996. In 
incorporating the provisions of DOT-SP 13996, the final rule authorizes 
the use of certain types of packaging, as long as the transportation is 
conducted by private carrier or contract carrier. One alternative would 
be to extend that packaging options to common carriers

[[Page 45887]]

as well. However, while this option may grant additional regulatory 
relief to industry beyond that being provided by the final rule, we 
believe that it does so at the expense of safety and is, therefore, not 
viable.
     Alternative 3: Expanding Provisions of DOT-SP 12332. In 
incorporating the provisions of DOT-SP 12332, the final rule authorizes 
the use of certain types of packaging but limits that option to 
products between transported domestically on highways. A second 
alternative would be to allow such packaging to be used when such 
products are transported by air or rail. However, while this option may 
grant additional regulatory relief to industry beyond that being 
provided by the final rule, we believe that it does so at the expense 
of safety and is, therefore, not viable.
     Alternative 4: Relaxing New Packaging Options. The new 
packaging options being permitted in this final rule could be further 
relaxed, or industry could be permitted to adhere to voluntary 
packaging standards for Class 9 airbags and seat-belt pretensioners. 
However, while this option may grant additional regulatory relief to 
industry beyond that being provided by the final rule, we believe that 
it does so at the expense of safety and is, therefore, not viable.
     Alternative 5: Incorporate Two Special Permits and Reduce 
Burdensome/Extraneous Provisions. Under this option, PHMSA would 
incorporate DOT-SP 13996 and DOT-SP 12332, and streamline the 
classification process for Class 9 air bag inflators, air bag modules, 
and seat-belt pretensioners. More specifically, the revisions include 
five regulatory initiatives: (1) Modifies the approval process and 
documentation requirements associated with classifying air bag 
inflators, air bag modules, and seat-belt pretensioners; (2) 
incorporates provisions of DOT-SP 12332 into the HMR by excepting Class 
9 air bag inflators, air bag modules, or seat-belt pretensioners 
assigned to UN3268 from the requirement to provide the EX number on the 
shipping paper; (3) a simple clarification that a safety restraint 
device that is installed in a vehicle or vehicle component is not 
subject to the HMR; (4) incorporates provisions of DOT-SP 13996 into 
the HMR by authorizing the use of non-DOT specification, reusable 
containers manufactured from high-strength plastic, metal, or other 
suitable material, or other dedicated handling devices, for 
transportation of air bag inflators, air bag modules, and seat-belt 
pretensioners; and (5) permits several additional types of packaging to 
maintain alignment with the 17th revised edition of the UN Model 
Regulations.
    The final rule adopts Alternative 5, ``Incorporate Two Special 
Permits and Reduce Burdensome/Extraneous Provisions.'' By amending the 
HMR with these requirements, PHMSA will be incorporating the provisions 
contained in two widely used or longstanding special permits that have 
established safety records. These revisions are intended to eliminate 
the need for future renewal requests, thus reducing paperwork burdens 
and facilitating commerce while maintaining an equivalent level of 
safety.
Current Compliance Costs
    As noted previously, current compliance costs consist primarily of 
paperwork requirements for both industry and the Government. Paperwork 
burden is encountered in three different areas: in the class approval 
process, in the granting of special permits, and in providing the 
required information on shipping papers.
    Based upon a review of our special permits and general approvals 
databases, it is estimated that PHMSA reviews approximately 200 
applications per year for classification approvals, other general 
approvals, and special permits associated with Class 9 air bags 
inflators, air bag modules, and seat-belt pretensioners. Assuming that 
PHSMA spends $414 per application,\4\ it's estimated the annual cost to 
the Government to be $82,800.
---------------------------------------------------------------------------

    \4\ This figure is based on an estimate provided by the Special 
Permits and Approvals Division regarding the cost of reviewing 
special permits for bulk explosives (email dated July 17, 2012).
---------------------------------------------------------------------------

    Industry also incurs a cost for preparing and submitting these 
applications, as well as retaining records. According to the Institute 
for the Makers of Explosives, industry spends approximately $825 to 
apply for each renewal, party status, or modification of a special 
permit that deals with the transportation of bulk explosives using 
multipurpose bulk trucks. Using this figure as a proxy for the cost to 
industry for preparing and submitting applications regarding air bag 
inflators, air bag modules, and seat-belt pretensioners, it's estimated 
the annual cost to the automobile industry to be $165,000. Grantees are 
currently required to retain a copy of their application and all 
supporting documentation, but these recordkeeping costs are assumed to 
be negligible; even at 1 cent per page per year and 100 pages of 
documentation, such costs would only amount to $200 per year.
    The biggest cost to industry is assumed to be the cost of verifying 
and then transcribing the EX number on shipping papers. In its 
petition, NAAHAC estimated this cost to be approximately $890K per 
year.
Timeframe for the Analysis
    PHMSA estimates that the economic effects of this rulemaking, once 
finalized and adopted, will be sustained for many years into the 
future. Notwithstanding this, because of the difficulty of and 
uncertainty associated with forecasting industry effects into the far 
future, PHMSA assumes a 10-year time period to quantify and monetize 
the costs and benefits and demonstrate the net effects of the proposal.
Costs of the Final Rule
    Costs to the public and PHMSA accrue from the factors associated 
with the requirements set forth in the regulations and the enforcement 
methods and procedures adopted by the Federal Government for carrying 
out the objectives of the rules and regulations. Examples of costs 
include (but are not limited to): Goods and services required to comply 
with the regulation; measures of productivity, such as losses related 
to work time; increases in incident-related death, illness, or 
disability that can be attributed to the rule; and payments to 
standard-setting organizations for the standards.
    In this analysis, we consider two different costs of the rule. The 
primary cost is likely to be the increased risk associated with 
streamlining the class approval process for air bags and seat-belt 
pretensioners. Removing DOT's review of the explosives lab test results 
increases the chance that a product that should be designated as Class 
1.4 is designated as Class 9. It is difficult to quantify this cost, 
but we do not believe it to be significant for two reasons. A review of 
PHMSA's approvals database finds that PHMSA has denied or rejected only 
1.7 percent of UN3268 approval applications it has received. These 
denials include requests for consideration that fall outside the scope 
of the test result and only 0.5 percent was denied for technical 
reasons. Therefore, the chance of an incorrect class assignment is 
likely to be less than 0.5 percent. Second, a review of PHMSA's 
incident database shows that there have only been four incidents 
involving properly packaged and declared UN3268 air bags or seat-belt 
pretensioners since 1996. Minimal damages were reported for all four 
incidents. Therefore, even if a product

[[Page 45888]]

is incorrectly assigned as Class 9, the risks associated with it will 
be small.
    The other costs associated with the rule are negligible due to 
minor revisions to the recordkeeping requirements. People who test and 
examine air bag inflators, air bag modules, or seat-belt pretensioners 
will be required to provide the manufacturer a detailed report on each 
tested design. Key components of the report include a description of 
the design, an explanation of the tests performed and results, and a 
recommended classification for tested designs. The manufacturer must 
retain the report for as long as the design is in production and for 15 
years thereafter. Additionally, the manufacturer must make the report 
available to DOT officials upon request. This record retention 
requirement ensures that a detailed test report of each air bag 
inflator, air bag module, or seat-belt pretensioner design is 
maintained and available for the useful life of the device. These 
records may be used to verify the accuracy and validity of the tests 
and classification recommendation.
    It should be noted that PHMSA currently requires industry to retain 
a copy of the classification application, all supporting documentation, 
and a copy of the approval, as well to make such materials available to 
DOT upon request. So while there may be a marginal increase in the 
amount of documentation retained, we believe the cost will be 
negligible.
Benefits of the Final Rule
    Typically the benefits of rules are derived from their health and 
safety factors. Since the Federal Regulatory Agencies often design 
regulation to reduce risks to life, evaluation of the benefits of 
reducing fatality risks can be the key part of the analysis. Examples 
of benefits in the form of reduced expenditures include (but are not 
limited to): Private-sector savings, Government administrative savings, 
gains in work time, and reduced costs of compliance. In this case, most 
of the benefits from the rule will be derived from reduced compliance 
costs and Government workload.
    As discussed previously, PHMSA is currently incurring an estimated 
$82,800 per year to process and review special permits and approvals 
associated with Class 9 air bags inflators, air bag modules, and seat-
belt pretensioners. As shown above, industry incurs an estimated 
$165,000 per year to prepare and submit applications for special 
permits and approvals, and $890,000 per year to provide the EX number 
on shipping papers. Combined, these costs total $1,137,800 per year. 
Since the objective of the final rule is to eliminate these costs, the 
benefits that can be achieved are estimated to be $1,137,800 per year.
    It should be noted that reductions in the costs of transporting air 
bag inflators, air bag modules, and seat-belt pretensioners could be 
passed on to automobile manufacturers, which would give rise to 
additional demand and lead to further implementation of the technology 
within the motor vehicle fleet. Such a possibility would presumably 
contribute to a reduction in injuries and fatalities, a benefit we are 
not able to quantify but believe to be small, given the small savings 
being realized.
Summary of Discounted Net Benefits of the Final Rule
    The net benefits of the final rule are calculated by subtracting 
the costs from the benefits. Since the costs are assumed to be 
negligible, the first-year net benefits are estimated to be $1.14 
million. Based upon the market analysis presented in Section 2.2 of the 
RIA, we assume these benefits will grow at an annual average rate of 5 
percent.\5\ Calculating the present value of this net benefit stream 
over a 10-year forecast horizon produces an estimate that ranges 
between $10 million and $12 million at 7 percent and 3 percent discount 
rates, respectively.
---------------------------------------------------------------------------

    \5\ In its recent report, ``Global Automotive Airbag Market 
2011-2015,'' TechNavio is forecasting that the global airbag market 
will grow at a compounded annual average annual growth rate of 11.54 
percent. Given the maturity of the airbag market in the United 
States, we believe the growth rate in the U.S. market will be less 
than the global growth rate and therefore assumed 5 percent for the 
U.S. market.
---------------------------------------------------------------------------

    Overall, in this rulemaking effort we evaluated alternative 
proposals and ultimately chose to finalize the amendments presented in 
the NPRM. The amendments from this final rule promote retrospective 
analysis to modify and streamline existing requirements that are 
outmoded, ineffective, insufficient, or excessively burdensome.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''), and 
the President's memorandum on ``Preemption'' published in the Federal 
Register on May 22, 2009 (74 FR 24693). This final rule would preempt 
State, local, and Indian tribe requirements but does not amend any 
regulation that has substantial direct effects on the States, the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125 (b)) 
that preempts State, local, and Indian tribe requirements on the 
following subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule addresses subject areas (1), (3), and (5), above. 
With the adoption of this final rule, this rulemaking would preempt any 
State, local, or Indian tribe requirements concerning these subjects 
unless the non-Federal requirements are ``substantively the same'' as 
the Federal requirements. Furthermore, this final rule is necessary to 
update, clarify, and provide relief from regulatory requirements.
    Federal hazardous materials transportation law provides at Sec.  
5125 (b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
this final rule and not later than two years after the date of 
issuance. PHMSA has determined that the effective date of Federal 
preemption for these requirements will be one year from the date of 
publication of this final rule in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments'').

[[Page 45889]]

Because this final rule does not significantly or uniquely affect the 
communities of the Indian tribal governments and does not impose 
substantial direct compliance costs, the funding and consultation 
requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines the rule is not expected to have a 
significant impact on a substantial number of small entities. The final 
rule will not impose increased compliance costs on the regulated 
industry. Rather, the final rule incorporates current approval 
procedures for the transportation of air bag inflators, air bag 
modules, and seat-belt pretensioners into the HMR and provides 
additional flexibility for persons seeking to obtain such approval. In 
addition, the rulemaking excepts certain shipments from the specific 
documentation requirements of the HMR; these exception provisions will 
increase shipping options and reduce shipment costs. Overall, this 
final rule should reduce the compliance burden on the regulated 
industry without compromising transportation safety. Therefore, we 
certify that this final rulemaking will not have a significant or 
negative economic impact on a substantial number of small entities, and 
in reality should provide positive economic benefits (i.e., reduced 
compliance burden) for those small entities.
    Consideration of alternative proposals for small businesses. The 
Regulatory Flexibility Act directs agencies to establish exceptions and 
differing compliance standards for small businesses, where it is 
possible to do so and still meet the objectives of applicable 
regulatory statutes. In the case of hazardous materials transportation, 
it is not possible to establish exceptions or differing standards and 
still accomplish our safety objectives.
    The impact of this final rule is not expected to be significant. 
The amendments are generally intended to provide relief to shippers, 
carriers, and packaging manufactures and testers, including small 
entities. This relief will provide positive economic benefits to 
shippers, carriers, and packaging manufactures and testers, including 
small entities however; these benefits are not at a level that can be 
considered economically significant.
    Therefore, this final rule will not have a significant economic 
impact on a substantial number of small entities. This rulemaking has 
been developed in accordance with Executive Order 13272 (``Proper 
Consideration of Small Entities in Agency Rulemaking'') and DOT's 
procedures and policies to promote compliance with the Regulatory 
Flexibility Act to ensure that potential impacts of draft rules on 
small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA currently has an approved information collection under Office 
of Management and Budget (OMB) Control Number 2137-0051, entitled 
``Rulemaking, Special Permits, and Preemption Requirements,'' with an 
expiration date of April 30, 2014. This final rule will result in a 
decrease in the annual burden and costs under OMB Control Number 2137-
0051 due to amendments to incorporate provisions contained in certain 
widely-used or longstanding special permits that have an established 
safety record.
    PHMSA also has an approved information collection under OMB Control 
Number 2137-0557, entitled ``Approvals for Hazardous Materials,'' with 
an expiration date of May 31, 2014. While this final rule will result 
in a slight increase in the annual burden and cost to OMB Control 
Number 2137-0557 for the minor recordkeeping requirements under Sec.  
173.166, this final rule will result in an overall decrease in the 
annual burden and cost to OMB Control Number 2137-0557 due to the 
larger cost savings of reducing the number of approvals required by 
testers of air bags inflators and air bag modules.
    PHMSA has an approved information collection under OMB Control 
Number 2137-0034, entitled ``Hazardous Materials Shipping Papers and 
Emergency Response.'' This final rule will result in a decrease in the 
annual burden and cost due to shippers no longer being required to put 
the EX numbers on shipping papers for air bag modules.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of the public and affected agencies an opportunity to comment 
on information and recordkeeping requests.
    This final rule identifies revised information collection requests 
that PHMSA will submit to OMB for approval based on the requirements in 
this final rule. PHMSA has developed burden estimates to reflect 
changes in this rule and estimates that the information collection and 
recordkeeping burdens would be revised as follows:
    OMB Control No. 2137-0051:
    Decrease in Annual Number of Respondents: 45
    Decrease in Annual Responses: 45
    Decrease in Annual Burden Hours: 360
    Decrease in Annual Burden Costs: $18,000.00

    OMB Control No. 2137-0557:
    Decrease in Annual Number of Respondents: 207
    Decrease in Annual Responses: 207
    Decrease in Annual Burden Hours: 569.25
    Decrease in Annual Burden Costs: $11,385.00

    OMB Control No. 2137-0034:
    Decrease in Annual Number of Respondents: 207
    Decrease in Annual Responses: 15,500
    Decrease in Annual Burden Hours: 285.33
    Decrease in Annual Burden Costs: $5,706.60

    PHMSA specifically requested comments on the information collection 
and recordkeeping burdens associated with developing, implementing, and 
maintaining these requirements for approval under the proposed rule; 
and we did not receive any comments disputing these numbers. Therefore, 
we are proceeding as is with these numbers.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 million or more to either state, local or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires that

[[Page 45890]]

federal agencies consider the consequences of major Federal actions and 
prepare a detailed statement on actions significantly affecting the 
quality of the human environment. The Council on Environmental Quality 
(CEQ) regulations require federal agencies to conduct an environmental 
review considering: (1) The need for the action; (2) alternatives to 
the action; (3) probable environmental impacts of the action and 
alternatives; and (4) the agencies and persons consulted during the 
consideration process (40 CFR 1508.9(b)).
Description of Action
Docket No. PHMSA-2010-0201 (HM-254), Final Rule
    Transportation of hazardous materials in commerce is subject to 
requirements in the HMR, issued under authority of Federal hazardous 
materials transportation law, codified at 49 U.S.C. 5001 et seq. To 
facilitate the safe and efficient transportation of hazardous materials 
in international commerce, the HMR provide that both domestic and 
international shipments of hazardous materials may be offered for 
transportation and transported under provisions of the international 
regulations.
Purpose and Need
    Promote regulatory relief for the classification and shipment of 
air bag inflators, air bag modules, and seat-belt pretensioners while 
maintaining safety. Respond to rulemaking petitions and provide 
efficiencies available to special permit holders to the air bag 
inflator, air bag module, and seat-belt pretensioner industry.
Alternatives Considered
    No Action Alternative (1): Leave the previously-listed provisions 
in the HMR as is.
    Alternative (2): Go forward with the proposed amendments to the HMR 
in the NPRM.
    Our goal is to update, clarify and provide relief from certain 
existing regulatory requirements to promote safer transportation 
practices, eliminate unnecessary regulatory requirements, finalize 
outstanding petitions for rulemaking, and facilitate international 
commerce. Therefore, we rejected the no-action alternative and selected 
alternative 2.
Environmental Consequences
    Hazardous materials are substances that may pose a threat to public 
safety or the environment during transportation because of their 
physical, chemical, or nuclear properties. The hazardous materials 
regulatory system is a risk management system that is prevention 
oriented and focused on identifying a hazard and reducing the 
probability and quantity of a hazardous materials release. Hazardous 
materials are categorized by hazard analysis and experience into hazard 
classes and packing groups. The regulations require each shipper to 
classify a material in accordance with these hazard classes and packing 
groups; the process of classifying a hazardous material is itself a 
form of hazard analysis. Further, the regulations require the shipper 
to communicate the material's hazards by identifying the hazard class, 
packing group, and proper shipping name on shipping papers and with 
labels on packages and placards on transport vehicles. Thus, the 
shipping paper, labels, and placards communicate the most significant 
findings of the shipper's hazard analysis. Most hazardous materials are 
assigned to one of three packing groups based upon its degree of 
hazard, from a high hazard Packing Group I material to a low hazard 
Packing Group III material. The quality, damage resistance, and 
performance standards for the packagings authorized for the hazardous 
materials in each packing group are appropriate for the hazards of the 
material transported.
    Under the HMR, hazardous materials are transported by aircraft, 
vessel, rail, and highway. The potential for environmental damage or 
contamination exists when packages of hazardous materials are involved 
in transportation incidents. The need for hazardous materials to 
support essential services means transportation of highly hazardous 
materials is unavoidable. However, these shipments frequently move 
through densely populated or environmentally sensitive areas where the 
consequences of an incident could be loss of life, serious injury, or 
significant environmental damage. The ecosystems that could be affected 
by a hazardous materials release during transportation include 
atmospheric, aquatic, terrestrial, and vegetal resources (for example, 
wildlife habitats). For the most part, the adverse environmental 
impacts associated with releases of most hazardous materials are short 
term impacts that can be reduced or eliminated through prompt clean up 
and decontamination of the accident scene.
    When developing potential regulatory requirements, PHMSA evaluates 
those requirements to consider the environmental impact of each 
amendment. Specifically, PHMSA evaluates the: (1) Risk of release and 
resulting environmental impact; (2) risk to human safety, including any 
risk to first responders; (3) longevity of the packaging; and (4) if 
the proposed regulation would be carried out in a defined geographic 
area, the resources, especially any sensitive areas, and how they could 
be impacted by any proposed regulations.
    In this final rule, PHMSA revised the regulations to incorporate 
the terms of two special permits into the HMR. The revisions in this 
final rule involve the transportation of air bag inflators, air bag 
modules, or seat-belt pretensioners that have been classed as UN3268, 
miscellaneous hazardous materials (Class 9) and UN0431, Articles, 
pyrotechnic for technical purposes, Division 1.4G.
    The Class 9 classification indicates that the material presents a 
hazard during transportation (but which does not meet the definition of 
any other hazard class in the HMR), a Class 9 material ranks last in 
all items regulated by the U.S. DOT in terms of hazard precedence and 
risk. The revisions in this final rule reflect that fact and will 
reduce the unnecessary burdens on not just the offerors of these UN3268 
materials, but reduce PHMSA's own administrative costs from reviewing 
unnecessary approvals and special permits.
    A Class 1 classification indicates that the material is 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. The term 
explosive may also include a pyrotechnic substance or article, 
depending on its characteristics. The unique properties of Class 1 
materials require them to be classed and approved in accordance with 
Sec.  173.56 of the HMR. The revisions in this final rule reflect that 
fact and will still require Division 1.4G's to be classified by 
explosive test labs and submitted to PHMSA for review and issuance of 
EX number approvals.
    The primary environmental risk associated with streamlining the 
class approval process for air bags and seat-belt pretensioners is 
misclassification of devices that should be designated as Class 1.4G 
could be designated as Class 9. Removing DOT's review of the explosives 
lab test results increases this risk. It is difficult to quantify this 
risk, but we do not believe it to be significant for two reasons. A 
review of PHMSA's approvals database finds that PHMSA has denied or 
rejected only 1.7 percent of UN3268 approval applications it has

[[Page 45891]]

received. These denials include requests for consideration that fall 
outside the scope of the test result and only 0.5 percent was denied 
for technical reasons. Therefore, the chance of an incorrect class 
assignment is likely to be less than 0.5 percent. Second, a review of 
PHMSA's incident database shows that there have only been four 
incidents involving properly packaged and declared UN3268 air bags or 
seat-belt pretensioners since 1996. Minimal damages were reported for 
all four incidents. Therefore, even if a product is incorrectly 
assigned as Class 9, the risks associated with it will be small.
    In considering the potential environmental impacts of the final 
action, PHMSA does not anticipate that the incorporation of the listed 
special permits will result in any significant impact on the human 
environment because the process through which special permits are 
issued requires the applicant to demonstrate that the alternative 
transportation method or packaging proposed provides an equivalent 
level of safety as that provided in the HMR. PHMSA requested that 
commenters comment on foreseeable environmental impacts or risk 
associated with the incorporation of the proposed special permits, and 
we received no comments suggesting PHMSA overlooked any.
Agencies Consulted
    This final rule would affect some PHMSA stakeholders, including 
hazardous materials shippers and carriers by highway, rail, and vessel, 
as well as manufacturers and test labs. PHMSA sought comment on the 
environmental assessment contained in the March 26, 2012, NPRM 
published under Docket PHMSA-2010-0201 [77 FR 17394] (HM-254) however, 
PHMSA did not receive any comments on the environmental assessment 
contained in that rulemaking. In addition, PHMSA sought comment from 
the following modal partners:
     Federal Aviation Administration
     Federal Motor Carrier Safety Administration
     Federal Railroad Administration
     United States Coast Guard
    PHMSA did not receive any adverse comments on the amendments 
adopted in this final rule from these Federal Agencies.
Conclusion
    PHMSA is making numerous amendments to the HMR in response to a 
petition for rulemaking and incorporation of two special permits. The 
amendments adopted in this final rule are intended to update, clarify, 
or provide relief from certain existing regulatory requirements to 
promote safer transportation practices; eliminate unnecessary 
regulatory requirements; finalize outstanding petitions for rulemaking; 
facilitate international commerce; and, in general, make the 
requirements easier to understand and follow.
    Given that this rulemaking amends the HMR to incorporate provisions 
contained in certain widely-used or longstanding special permits that 
have an established safety record, these changes in regulation should 
in fact increase safety and environmental protections. Furthermore, 
while the net environmental impact of this rule will be positive, we 
believe there will be no significant environmental impacts associated 
with this final rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be 
viewed at: http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

K. Executive Order 13609 and International Trade Analysis

    Under E.O. 13609, agencies must consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and we have 
assessed the effects of the final rule to ensure that it does not cause 
unnecessary obstacles to foreign trade. In this final rule, PHMSA is 
revising the HMR to align with international standards by: permitting 
several additional types of packaging to maintain alignment with the 
17th revised edition of the UN Model Regulations. This amendment is 
intended to enhance the safety of international hazardous materials 
transportation through an increased level of industry compliance, 
ensure the smooth flow of hazardous materials from their points of 
origin to their points of destination, and facilitate effective 
emergency response in the event of a hazardous materials incident. 
Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's 
obligations under the Trade Agreement Act, as amended.

L. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs federal agencies to use voluntary consensus 
standards in their regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g. specification of 
materials, test methods, or performance requirements) that are 
developed or adopted by voluntary consensus standard bodies. This final 
rule does not involve a technical standard; therefore, there are no 
issues in this rulemaking that comprise the National Technology 
Transfer and Advancement Act of 1995.

List of Subjects

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Markings, Packaging and containers, Reporting and 
recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.


[[Page 45892]]


    In consideration of the foregoing, PHMSA is amending 49 CFR Chapter 
I as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING 
REQUIREMENTS, AND SECURITY PLANS

0
1. The authority citation for part 172 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 
1.97.


0
2. In Sec.  172.102 in paragraph (c)(1), special provision 161 is 
revised to read as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
    161 For domestic transport, air bag inflators, air bag modules or 
seat-belt pretensioners that meet the criteria for a Division 1.4G 
explosive must be transported using the description, ``Articles, 
pyrotechnic for technical purposes,'' UN0431. See Sec.  173.166(d)(1) 
of this subchapter for an exception regarding air bag inflators, air 
bag modules, or seat-belt pretensioners that are installed in a motor 
vehicle, aircraft, boat or other transport conveyance or its completed 
components, such as steering columns or door panels.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
3. The authority citation for part 173 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 
1.97.


0
4. Section 173.166 is revised to read as follows:


Sec.  173.166  Air bag inflators, air bag modules and seat-belt 
pretensioners.

    (a) Definitions. An air bag inflator (consisting of a casing 
containing an igniter, a booster material, a gas generant and, in some 
cases, a pressure receptacle (cylinder)) is a gas generator used to 
inflate an air bag in a supplemental restraint system in a motor 
vehicle. An air bag module is the air bag inflator plus an inflatable 
bag assembly. A seat-belt pretensioner contains similar hazardous 
materials and is used in the operation of a seat-belt restraining 
system in a motor vehicle.
    (b) Classification. (1) An air bag inflator, air bag module, or 
seat-belt pretensioner, excluding those which contain flammable or 
toxic gases or mixtures thereof, may be classed as Class 9 (UN3268) if 
the air bag inflator, air bag module, or seat-belt pretensioner, or if 
more than a single air bag inflator, air bag module, or seat-belt 
pretensioner is involved then the representative of the maximum 
parameters of each design type, is examined and successfully tested by 
a person or agency who is authorized by the Associate Administrator to 
perform examination and testing of explosives under Sec.  173.56(b)(1), 
and who:
    (i) Does not manufacture or market explosives, air bag inflators, 
air bag modules, or seat-belt pretensioners, is not owned in whole or 
in part, or is not financially dependent upon any entity that 
manufactures or markets explosives, air bag inflators, air bag modules, 
or seat-belt pretensioners;
    (ii) Performs all examination and testing in accordance with the 
applicable requirements as specified in Special Provision 160 (see 
Sec.  172.102 of this subchapter); and
    (iii) Maintains records in accordance with paragraph (g) of this 
section.
    (iv) By adhering to all the provisions specified in paragraph 
(b)(1) of this section, the Class 9 (UN3268) air bag inflator, air bag 
module, or seat-belt pretensioner design is not required to be 
submitted to the Associate Administrator for approval or assigned an EX 
number;
    (2) An air bag inflator, air bag module, or seat-belt pretensioner 
may be classed as Division 1.4G if the maximum parameters of each 
design type has been examined and successfully tested by a person or 
agency who is authorized by the Associate Administrator to perform such 
examination and testing of explosives under Sec.  173.56(b)(1). For 
domestic transport, air bag inflators, air bag modules or seat-belt 
pretensioners that meet the criteria for a Division 1.4G explosive must 
be transported using the description, ``UN0431, Articles, pyrotechnic 
for technical purposes'' as specified in Special Provision 161 (see 
Sec.  172.102 of this subchapter). Further, as a Class 1 explosive, the 
manufacturer must submit to the Associate Administrator a report of the 
examination and assignment of a recommended shipping description, 
division, and compatibility group, and if the Associate Administrator 
finds the approval request meets the regulatory criteria, the explosive 
may be approved in writing and assigned an EX number; or
    (3) The manufacturer has submitted an application, including a 
classification issued by the competent authority of a foreign 
government to the Associate Administrator, and received written 
notification from the Associate Administrator that the device has been 
approved for transportation and assigned an EX number.
    (c) EX numbers. (1) When an air bag inflator, air bag module, or 
seat-belt pretensioner is classed and approved as a Division 1.4G and 
offered for transportation, the shipping paper must contain the EX 
number or product code for each approved inflator, module, or 
pretensioner in association with the basic description required by 
Sec.  172.202(a) of this subchapter. Product codes must be traceable to 
the specific EX number assigned to the inflator, module, or 
pretensioner by the Associate Administrator. Further, if the EX number 
or product code is contained on the shipping paper then it is not 
required to be marked on the outside package.
    (2) An air bag inflator, air bag module, or seat-belt pretensioner 
when classed as a Class 9 (UN3268) under the terms of paragraph (b)(1) 
of this section, is excepted from the EX number requirements of this 
paragraph (c).
    (d) Exceptions. (1) An air bag inflator, air bag module, or seat-
belt pretensioner that is classed as a Class 9 (UN3268) under the terms 
of paragraph (b)(1) of this section and is installed in a motor 
vehicle, aircraft, boat or other transport conveyance or its completed 
components, such as steering columns or door panels, is not subject to 
the requirements of this subchapter. An air bag inflator, air bag 
module, or seat-belt pretensioner that has been classed as a Division 
1.4G and approved by the Associate Administrator and is installed in a 
motor vehicle, aircraft, boat or other transport conveyance or its 
completed components, such as steering columns or door panels, is not 
subject to the requirements of this subchapter.
    (2) An air bag module containing an inflator that has been 
previously approved by the Associate Administrator for transportation 
is not required to be submitted for further examination or approval. 
For classifications granted after July 30, 2013, if the Class 9 
designation for the inflator is contingent upon packaging or other 
special means specified by the authorized testing agency, the modules 
must be tested and certified separately to determine if they can be 
shipped as ``UN3268, Air bag modules, 9, PG III''.
    (3) An air bag module containing an inflator that has previously 
been approved by the Associate Administrator as a Division 2.2 material 
is not required to be submitted for

[[Page 45893]]

further examination to be reclassed as a Class 9 material.
    (4) Shipments to recycling or waste disposal facilities. When 
offered for domestic transportation by highway, rail freight, cargo 
vessel or cargo aircraft, a serviceable air bag inflator, air bag 
module, or seat-belt pretensioner classed as either Class 9 (UN3268) or 
Division 1.4G removed from a motor vehicle that was manufactured as 
required for use in the United States may be offered for transportation 
and transported without compliance with the shipping paper requirement 
prescribed in paragraph (c) of this section. However, when these 
articles are shipped to a recycling facility, the word ``Recycled'' 
must be entered on the shipping paper immediately after the basic 
description prescribed in Sec.  172.202 of this subchapter. No more 
than one device is authorized in the packaging prescribed in paragraph 
(e)(1), (2) or (3) of this section. The device must be cushioned and 
secured within the package to prevent movement during transportation.
    (e) Packagings. Rigid, outer packagings, meeting the general 
packaging requirements of part 173 are authorized as follows. 
Additionally, the UN specification packagings listed in paragraphs 
(e)(1), (2), and (3) of this section must meet the packaging 
specification and performance requirements of part 178 of this 
subchapter at the Packing Group III performance level. The packagings 
must be designed and constructed to prevent movement of the articles 
and inadvertent activation. Further, if the Class 9 designation is 
contingent upon packaging specified by the authorized testing agency, 
shipments of the air bag inflator, air bag module, or seat-belt 
pretensioner must be in compliance with the prescribed packaging.
    (1) 1A2, 1B2, 1N2, 1D, 1G, or 1H2 drums.
    (2) 3A2, 3B2, or 3H2 jerricans.
    (3) 4A, 4B, 4N, 4C1, 4C2, 4D, 4F, 4G, 4H1, or 4H2 boxes.
    (4) Reusable high-strength containers or dedicated handling 
devices. (i) Reusable containers manufactured from high-strength 
plastic, metal, or other suitable material, or other dedicated handling 
devices are authorized for shipment of air bag inflators, air bag 
modules, and seat-belt pretensioners from a manufacturing facility to 
the assembly facility, subject to the following conditions:
    (A) The gross weight of the containers or handling devices may not 
exceed 1000 kg (2205 pounds). Containers or handling devices must 
provide adequate support to allow stacking at least three units high 
with no resultant damage;
    (B) If not completely enclosed by design, the container or handling 
device must be covered with plastic, fiberboard, metal, or other 
suitable material. The covering must be secured to the container by 
banding or other comparable methods; and
    (C) Internal dunnage must be sufficient to prevent movement of the 
devices within the container.
    (ii) Reusable containers manufactured from high-strength plastic, 
metal, or other suitable material, or other dedicated handling devices 
are authorized for shipment of air bag inflators, air bag modules, and 
seat-belt pretensioners only to, between, and from, intermediate 
handling locations, provided they meet the conditions specified in 
paragraphs (e)(4)(i)(A) through (C) of this section and:
    (A) The packages may be opened and re-packed by an intermediate 
handler as long as no modifications or changes are made to the 
packagings; and
    (B) Transportation must be made by private or contract carrier.
    (5) Packagings which were previously authorized in an approval 
issued by the Associate Administrator may continue to be used, provided 
a copy of the approval is maintained while such packaging is being 
used.
    (6) Devices removed from a vehicle. When removed from, or were 
intended to be used in, a motor vehicle that was manufactured as 
required for use in the United States and offered for domestic 
transportation by highway to Recycling or Waste Disposal facilities, a 
serviceable air bag inflator, air bag module, or seat-belt pretensioner 
classed as Class 9 UN3268 may be offered for transportation and 
transported in the following additional packaging:
    (i) Specification and non-specification steel drums with a wall and 
lid thickness not less than 20 gauge. The lid must be securely affixed 
with a lever-locking or bolted-ring assembly. The lid of the drum must 
provide ventilation of the drum contents in a fire. The drum may be 
filled with any combination of air bag inflators, air bag modules, or 
seat-belt pretensioner devices to a capacity not greater than fifty 
(50) percent of the drum's total volume. In addition, inner packagings 
or cushioning may not be used to fill the void space; or
    (ii) Outer packaging consisting of 4H2 solid plastic boxes or non-
specification rugged reusable plastic outer packaging and inner static-
resistant plastic bags or trays. If not completely enclosed by design, 
the container or handling device must be covered with plastic, 
fiberboard, metal or other suitable material. The covering must be 
secured to the container by banding or other comparable methods. The 
articles must be packed to prevent movement within the container during 
transportation.
    (f) Labeling. Notwithstanding the provisions of Sec.  172.402 of 
this subchapter, each package or handling device must display a CLASS 9 
label. Additional labeling is not required when the package contains no 
hazardous materials other than the devices.
    (g) Recordkeeping requirements. (1) Following the examination of 
each new design type classed as a Class 9 in accordance with paragraph 
(b)(1) of this section, the person that conducted the examination must 
prepare a test report and provide the test report to the manufacturer 
of the air bag inflator, air bag module, or seat-belt pretensioner. At 
a minimum, the test report must contain the following information:
    (i) Name and address of the test facility;
    (ii) Name and address of the applicant;
    (iii) Manufacturer of the device. For a foreign manufacturer, the 
U.S. agent or importer must be identified;
    (iv) A test report number, drawing of the device, and description 
of the air bag inflator, air bag module, or seat-belt pretensioner in 
sufficient detail to ensure that the test report is traceable (e.g. a 
unique product identifier) to a specific inflator design;
    (v) The tests conducted and the results; and
    (vi) A certification that the air bag inflator, air bag module, or 
seat-belt pretensioner is classed as a Class 9 (UN3268).
    (2) For at least fifteen (15) years after testing, a copy of each 
test report must be maintained by the authorizing testing agency. For 
as long as any air bag inflator, air bag module, or seat-belt 
pretensioner design is being manufactured, and for at least fifteen 
(15) years thereafter, a copy of each test report must be maintained by 
the manufacturer of the product.
    (3) Test reports must be made available to a representative of the 
Department upon request.

    Issued in Washington, DC on July 25, 2013, under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-18263 Filed 7-29-13; 8:45 am]
BILLING CODE 4910-60-P