[Federal Register Volume 87, Number 197 (Thursday, October 13, 2022)]
[Notices]
[Pages 62177-62180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22200]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket Number PHMSA-2019-0156 (Notice No. 2022-07)]


Hazardous Materials: Safety Device Classification Policy

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

ACTION: Notice; safety device classification policy.

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SUMMARY: PHMSA is publishing this notice setting forth and requesting 
comments from the public and other interested parties regarding its 
policy on classification of articles containing hazardous materials 
used in vehicles, vessels, or aircraft to enhance safety to persons. 
These articles are described as ``Safety devices, electrically 
initiated, 9'' for purposes of transportation under the U.S. hazardous 
material regulations.

DATES: Comments must be received by November 14, 2022.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2019-0156 by any of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: (202) 493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-

[[Page 62178]]

30, Ground Floor, Room W12-140 in the West Building, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number PHMSA-2019-0156 for this notice at the beginning of the 
comment. Note that all comments received will be posted without change 
to http://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office; see ADDRESSES.
    Confidential Business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and treated as private by its owner. Under the Freedom of 
Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from public 
disclosure. If your comments responsive to this notice contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this notice, it is important that you clearly designate 
the submitted comments as CBI. Please mark each page of your submission 
containing CBI as ``PROPRIETARY.'' Submissions containing CBI should be 
sent to Lad Falat, Sciences and Engineering Division, Office of 
Hazardous Materials Safety, (202) 366-1655, PHMSA, East Building, 
PHH10, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any 
commentary that PHMSA receives, which is not specifically designated as 
CBI, will be placed in the public docket.

FOR FURTHER INFORMATION CONTACT: Lad Falat, Sciences and Engineering 
Division, (202) 366-1655, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    PHMSA publishes and seeks comments on this Safety Device 
Classification Policy (Policy). This Policy outlines the parameters for 
what PHMSA will approve as Class 9 (UN3268) safety devices under 49 CFR 
173.166(b)(1)(iv). Specifically, PHMSA will approve as Class 9 (UN3268) 
safety devices articles that are complete, assembled components used in 
transportation by vehicle, vessel, or aircraft and which perform a 
stand-alone mechanical action enhancing safety to persons. As explained 
below, because subcomponents of safety devices do not meet the 
threshold and because they pose a potential risk when transported, they 
must continue to be transported under existing regulatory authorities. 
This notice also provides guidance on the types of data and 
documentation an applicant can provide to support an application to the 
Associate Administrator for Hazardous Materials Safety for 
classification of an article as a Class 9 (UN3268) safety device.

II. Background

    PHMSA's Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 
prescribe requirements for the transportation in commerce of safety 
devices, including labeling, marking, and shipping paper requirements. 
The HMR provides that articles containing Class 1 (Explosive) materials 
must seek classification approval from PHMSA and adhere to important 
labeling, marking, and shipping paper requirements. The HMR also 
establishes requirements for assignment of shipping descriptions that 
incorporate information regarding the classification of materials as 
Class 1, Class 9, or another hazard class.
    Section 173.166 of the HMR defines ``safety devices'' as ``articles 
which contain pyrotechnic substances or hazardous materials of other 
classes and are used in vehicles, vessels or aircraft to enhance safety 
to persons.'' That section identifies three types of proven safety 
devices (specifically, air bag inflators, air bag modules, and seat-
belt pretensioners) that, if certified by a PHMSA-certified explosives 
testing laboratory as Class 9 materials, do not require PHMSA approval 
for use of the shipping description ``UN3268, Safety devices, 
electrically initiated, 9.'' Section 173.166, however, contemplates 
that certain other articles could be eligible for approval by the 
Associate Administrator for Hazardous Materials Safety for use of the 
``UN3268, Safety devices, electrically initiated, 9'' shipping 
description. Articles determined by a PHMSA-certified explosives 
testing laboratory to have passed the testing criteria established in 
Special Provision 160 and which are used in vehicles, vessels, or 
aircraft to enhance the safety of persons, may be submitted to the 
Associate Administrator for Hazardous Materials Safety for approval as 
a Class 9 (UN3268) safety device. Other safety devices, which had been 
deemed ineligible for approval as Class 9 hazardous materials by either 
the terms of Sec.  173.166, or the Associate Administrator for 
Hazardous Materials Safety, may apply for approval to use the shipping 
description ``UN0503, Safety devices, pyrotechnic, 1.4G.'' Division 
1.4G explosives are subject to enhanced labeling, marking, and shipping 
paper requirements that notify transportation workers, emergency 
responders, and import controllers of the presence of explosives. In 
addition, division 1.4G explosives are not allowed for bulk 
transportation, or transport by passenger rail or passenger aircraft.
    The above-described Sec.  173.166 construct reflects a 2015 
amendment of the HMR \2\ to account for a change in the 19th Edition of 
the United Nations Model Regulations \3\ expanding eligibility for use 
of the ``UN3268, Safety devices, electrically initiated, 9'' shipping 
description to other proven technologies. Historically, the shipping 
description for UN3268 safety devices in the UN Model Regulations 
(``UN3268, Safety devices, air bag inflators, air bag modules, or seat-
belt pretensioners'') had been explicitly limited to the specific 
safety devices identified in italics. The HMR at Sec.  173.166 had 
mirrored that limitation. However, the 19th Edition of the UN Model 
Regulations deleted the historical reference to specific safety devices 
within a revised shipping description--``UN3268, Safety devices, 
electrically initiated, 9''--to accommodate technological development 
of new safety devices for vehicles, vessels, and aircraft. PHMSA 
subsequently revised Sec.  173.166 in its HM-215M rulemaking to 
incorporate that revised shipping description within UN Model 
Regulations and introduced the approval process by which stakeholders 
can seek to use the shipping description ``UN3268, Safety devices, 
electrically initiated, 9.''
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    \2\ ``Final Rule: International Standards Harmonization (HM-
215M),'' 80 FR 1075 (Jan. 8, 2015) (HM-215M).
    \3\ United Nations Economic Commission for Europe, UN 
Recommendations on the Transport of Dangerous Goods--Model 
Regulations, Nineteenth revised edition (2015) (19th Edition of the 
UN Model Regulations).
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    Since issuance of HM-215M, PHMSA has received special permit 
applications to classify Class 1 articles, that had been classified 
through an EX approval as Division 1.4S explosives and which are not 
used in vehicle, vessel, or aircraft transportation, as Class 9 
(UN3268) safety devices. UN3268 is limited by the

[[Page 62179]]

HMR for use in transportation, therefore, safety-enhancing articles 
containing pyrotechnic substances or other hazardous materials that are 
not used in a vehicle, vessel, or aircraft, such as those for table 
saws, non-vehicular mining equipment, and life-saving appliances as 
described in Sec.  173.219 cannot be considered ``UN3268, Safety 
Devices, electrically initiated, 9.'' PHMSA has also received inquiries 
and requests for interpretations concerning whether subcomponents of 
vehicle, vessel, or aircraft safety devices could themselves be 
eligible for use of the shipping description ``UN3268, Safety devices, 
electrically initiated, 9.''
    In response to those inquiries about implementation of Sec.  
173.166, PHMSA in June 2020 issued a request for information \4\ 
seeking public input on specific questions and issues relevant to the 
shipping description ``UN3268, Safety devices, electrically initiated, 
9.'' These questions sought general information and data on the scope 
and expansion of the safety device application under Sec.  173.166, the 
testing required for consideration and approval as a Class 9 (UN3268) 
safety device, and the conditions for transport and carriage aboard 
aircraft for items classified as Class 9 (UN3268) safety devices under 
Sec.  173.166. PHMSA received 14 total comments from various 
stakeholders including safety device manufacturers, explosive testing 
labs, and trade associations. The input received from these commenters 
has been considered in formulating this Policy.
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    \4\ 85 FR 35368 (June 8, 2020).
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    PHMSA publishes this Policy set forth below and seeks comments from 
the public and interested stakeholders thereon.

III. Policy on Classification of Articles Used in Vehicles, Vessels, or 
Aircraft as Class 9 (UN3268) Safety Devices

    In order to provide clarity on what types of articles PHMSA will 
consider for shipping description ``UN3268, Safety devices, 
electrically initiated, 9'' under 49 CFR 173.166, PHMSA issues this 
Policy and guidance. This document outlines the types of safety devices 
PHMSA will consider for approval as Class 9 (UN3268) safety devices, 
the process to seek such approval, and documentation to support such an 
application for approval.

Limitation to Transportation Sector

    Section 173.166 limits applicability of the shipping description 
``UN3268 Safety devices, electrically initiated, 9'' to ``articles 
which . . . are used in vehicles, vessels, or aircraft to enhance 
safety to persons.'' The phrase ``used in vehicles, vessels, or 
aircraft'' limits eligibility to articles used in transportation by 
vehicle, vessel, or aircraft. Therefore, if an article is intended to 
enhance safety to persons, but is not used in a vehicle, vessel, or 
aircraft, it cannot be considered an eligible device under Sec.  
173.166 at this time.

Subcomponents

    PHMSA has received inquiries on whether sub-components of safety 
devices can themselves be considered Class 9 (UN3268) safety devices 
under Sec.  173.166. Shipping description ``UN3268, Safety devices, 
electrically initiated, 9'' is applicable to air bag inflators, air bag 
modules, seat-belt pretensioners, and other pyromechanical devices. 
Section 173.166 describes pyromechanical safety devices as ``assembled 
components'' and elsewhere describes some safety devices as being 
within ``completed components.'' \5\ In determining under Sec.  173.166 
if an article (other than air bag inflators, air bag modules, or seat-
belt pretensioners) can appropriately be described as a Class 9 
(UN3268) safety device, PHMSA will consider whether a sub-component to 
a safety device will have elevated risk over the safety device they 
will become a part of, which could be due to greater concentration or 
total amount of explosive hazard. PHMSA will balance the potential 
safety benefits to persons in vehicles, vessels, or aircraft with the 
potential danger posed by shipping explosive materials that are not 
incorporated in a larger component device. Many sub-components such as 
pyrotechnic micro-gas generators (MGGs), that supply a burst of gas but 
which itself does not produce a stand-alone safety-enhancing mechanical 
action, are not expected to meet these criteria--due to the safety 
burden they pose in shipment. To date, PHMSA has not received requests 
to approve any subcomponents that would enhance safety to persons in 
vehicles, vessels, or aircraft sufficient to outweigh the risks 
presented by transporting those subcomponents as Class 9 (UN3268) 
safety devices in transportation. This guidance supersedes PHMSA 
Letters of Interpretation 18-0035 and 18-0113, which are hereby 
withdrawn. PHMSA has not issued any approvals consistent with those 
Letters of Interpretation.
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    \5\ Section 173.166(d)(1) excepts from the requirements of Sec.  
173.166 a safety device classified as Class 9 and which is installed 
in, or is, a completed component of a vehicle, vessel, aircraft. As 
for what is considered a ``completed component'' the regulation 
mentions ``steering columns or door panels'' as examples, which 
provides further evidence of the limitations intended in Sec.  
173.166.
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Guidance for Applications for Approval as Class 9 (UN3268) Safety 
Devices

    Applicants seeking approval as Class 9 (UN3268) safety devices 
other than air bag inflators, air bag modules, and seat-belt 
pretensioners may apply for such approval pursuant to Sec.  173.166(b). 
Any such articles must be examined and successfully tested by a person 
or agency who is authorized to perform examination and testing of 
explosives under Sec.  173.56(b)(1) and submitted to the Associate 
Administrator for Hazardous Materials Safety for approval and assigned 
an EX number (see Sec.  173.166(b)(1)(iv)).
    In order for PHMSA to assign shipping description ``UN3268, Safety 
devices, electrically initiated, 9'' to an article, an applicant must 
provide, as part of the approval application, sufficient evidence that 
the article under consideration has been tested, including records of 
such tests as outlined in Sec.  173.166(g)(1). Additionally, applicants 
may provide information that the article is used in vehicles, vessels, 
or aircraft, and demonstrated to enhance safety to persons. Data on the 
number of articles in use listed by vehicle type and the resulting 
effects on enhancement of safety to persons is important supporting 
information for an application under Sec.  173.166(b)(1)(iv). 
Additional supporting documentation may include written statements 
confirming the use of the subject articles to enhance safety to persons 
by manufacturers or modifiers of vehicles, vessels, or aircraft, and 
statements of recognition from the insurance industry, other trade 
associations, and/or government bodies that the subject articles are 
recognized to enhance the safety to persons when used in vehicles, 
vessels, or aircraft. This may include data that demonstrates the 
devices have been used in foreign vehicle, vessels, or aircraft 
applications to enhance safety to persons. Applicants' claims and 
supporting documentation will be reviewed and verified by the Associate 
Administrator during the evaluation and approval process.
    An article seeking the shipping description ``UN3268, Safety 
devices, electrically initiated, 9,'' but that has not been tested and 
demonstrated to enhance safety to persons when used in vehicles, 
vessels, or aircraft, would not meet the Associate Administrator's 
policy for shipping description ``UN3268, Safety devices, electrically 
initiated, 9.'' In such a case, if the article

[[Page 62180]]

meets the definition of ``explosive'',\6\ the applicant must seek 
approval under Sec.  173.56 to transport the article in accordance with 
the procedures for the classification and approval of a new Class 1 
explosive. If, after such approval is granted, the applicant can 
demonstrate that the article is used in vehicles, vessels, or aircraft 
to enhance safety to persons, then they may request that PHMSA apply 
shipping description ``UN3268, Safety devices, electrically initiated, 
9'' in accordance with the process described above.
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    \6\ As defined in Sec.  173.50 an explosive means any substance 
or article, including a device, which is designed to function by 
explosion (i.e., an extremely rapid release of gas and heat) or 
which, by chemical reaction within itself, is able to function in a 
similar manner even if not designed to function by explosion, unless 
the substance or article is otherwise classed under the provisions 
of the HMR. The term includes a pyrotechnic substance or article, 
unless the substance or article is otherwise classed under the 
provisions of the HMR.

    Signed in Washington, DC, on October 6, 2022 under authority 
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2022-22200 Filed 10-12-22; 8:45 am]
BILLING CODE 4910-60-P