[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Proposed Rules]
[Pages 17394-17401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7169]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 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

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: In this NPRM, PHMSA is proposing to revise the Hazardous 
Materials Regulations applicable to air bag inflators, air bag modules, 
and seat-belt pretensioners. The proposed changes would incorporate the 
provisions of two special permits into the regulations. In addition, 
PHMSA proposes to revise the current approval and documentation 
requirements for a material appropriately classified as a

[[Page 17395]]

UN3268 air bag inflator, air bag module, or seat-belt pretensioner. The 
proposed changes will, if adopted, reduce the regulatory burden on the 
automotive industry while maintaining the current level of safety.

DATES: Comments must be submitted by May 25, 2012. To the extent 
possible, PHMSA will consider late-filed comments as a final rule is 
developed.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2010-0201 (HM-254)) by any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
    <bullet> Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of 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 for this notice at the beginning of the comment. All 
comments received will be posted without change to the Federal Docket 
Management System (FDMS), including any personal information. Please 
see the Privacy Act section within the Regulatory Analyses and Notices.
    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).
    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 comment (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) or you may visit 
http://www.dot.gov.

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. Background
II. Summary Review of Proposed Amendments
III. Regulatory Analyses and Notices
IV. List of Subjects

I. Background

    The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) are 
issued by the Pipeline and Hazardous Materials Safety Administration 
(PHMSA) and govern the safe transportation of hazardous materials by 
highway, rail, vessel, and air. The scope of the HMR includes hazardous 
materials classification, packaging, hazard communication, emergency 
response information, and training, etc. Furthermore, included within 
these provisions are the regulations for the transportation of air bag 
inflators, air bag modules, and seat-belt pretensioners in Sec.  
173.166.
    Found in Sec.  173.166(a), PHMSA provides definitions for an air 
bag inflator (a gas generator used to inflate an air bag in a 
supplemental restraint system in a motor vehicle), an air bag module 
(the air bag inflator plus an inflatable bag assembly), and a seat-belt 
pretensioner (containing similar hazardous materials and is used in the 
operation of a seat-belt restraining system in a motor vehicle). In 
Sec.  173.166(b)-(f), PHMSA also provides the regulatory requirements 
for the classification, EX number assignments, exceptions, packagings, 
and labeling requirements for these air bag inflators, air bag modules, 
and seat-belt pretensioners.
    In a petition dated June 24, 2008 (P-1523) and two addendums 
submitted on February 26, 2009 and June 14, 2011, the North American 
Automotive Hazmat Action Committee (NAAHAC), representing numerous 
automobile manufacturers and component suppliers located in North 
America as well as in Asia and Europe, 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 suggests 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.
    In addition, NAAHAC suggests that PHMSA incorporate the following 
long-standing special permits into the HMR:
    <bullet> DOT-SP 12332--This special permit authorizes the 
transportation in commerce of certain air bag inflators, air bag 
modules, and seat-belt pretensioners that meet the requirements for use 
in the United States, and have been removed from or were intended to be 
used in a motor vehicle without listing the EX-approval numbers or 
product names on the shipping papers. 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 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, as appropriate.
    <bullet> 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.
    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 
suggests that PHMSA incorporate these two long-standing special permits 
into the HMR. PHMSA agrees with the petition and proposes to amend the 
HMR to incorporate certain requirements based on these two existing 
special permits issued under 49 CFR Part 107, Subpart B (Sec. Sec.  
107.101 to 107.127). These special permits set forth alternative 
requirements (variances) to the requirements in the HMR by means that 
achieve a safety level that at the least corresponds to the safety 
level required under the regulations and that is consistent with the 
public interest. Congress expressly authorized DOT to issue variances 
in the Hazardous Materials Transportation Act of 1975, when 
appropriate.

[[Page 17396]]

    The HMR generally are performance-oriented regulations that provide 
the regulated community a certain amount of flexibility in meeting 
safety requirements. Even so, not every transportation situation can be 
anticipated and built into the regulations. The hazardous materials 
community is particularly strong at developing new materials and 
technologies and innovative ways of moving materials. Special permits 
enable the hazardous materials industry to quickly, effectively and 
safely integrate new products and technologies into the production and 
transportation stream. Thus, special permits allow developing products 
and technologies to move in commerce for testing and other purposes, 
promote increased transportation efficiency and productivity, and 
support global competitiveness.
    A special permit must achieve at least an equivalent level of 
safety to that specified in the HMR. Implementation of new technologies 
and operational techniques can enhance safety because the authorized 
operations or activities achieve a greater level of safety than 
currently required under the regulations. Special permits also reduce 
the volume and complexity of the HMR by addressing unique or infrequent 
transportation situations that would be difficult to accommodate in 
regulations intended for use by a wide range of shippers and carriers. 
PHMSA conducts ongoing reviews of special permits to identify widely-
used and longstanding special permits with established safety records 
for incorporation into the HMR for broader applicability.
    Incorporating these two special permits into regulations reduces 
paperwork burdens and facilitates commerce while maintaining an 
acceptable level of safety. Additionally, adoption of special permits 
as rules of general applicability provides wider access to the benefits 
and regulatory flexibility of the provisions granted in the special 
permits. Factors that influence whether a specific special permit is a 
candidate for regulatory action include: The safety record for 
hazardous materials transported; transportation operations conducted 
under a special permit; the potential for broad application of a 
special permit; suitability of provisions in the special permit for 
incorporation into the HMR; rulemaking activity in related areas; and 
agency priorities.
    Regarding the proper classifying of air bag inflators, air bag 
modules, and seat-belt pretensioners, NAAHAC notes that it is the 
responsibility of the device manufacturer to ensure that testing, 
verification, and classification of its products has been conducted in 
accordance with the HMR. Special Provision 160 (see Sec.  172.102 of 
the HMR) requires the manufacturer to get the air bag inflators, air 
bag modules, and seat-belt pretensioners tested by a DOT explosives 
test lab, in accordance with Test series 6(c) of Part I of the UN 
Manual of Tests and Criteria (incorporated by reference; see Sec.  
171.7 of the HMR), and then the manufacturer must submit a hazard 
classification recommendation from that DOT explosives test lab to the 
DOT. This test is performed to ensure that air bag inflators, air bag 
modules, and seat-belt pretensioners meet the criteria for 
classification as Class 9 materials. To pass the test there must be no 
fragmentation of the device casing or pressure vessel, and no 
projection hazard or thermal effect that would significantly hinder 
emergency response efforts in the immediate vicinity. Failure of Test 
series 6(c) necessitates treatment as an explosive in Class 1, 
including the EX approval process and inclusion of the EX number on the 
shipping documentation.
    NAAHAC indicates that the current requirement to reference the EX 
number on the shipping paper for Class 9, UN3268 safety restraint 
systems is a burden that offers little in terms of hazard communication 
or transportation safety. In fact, NAAHAC states that the requirement 
imposes unnecessary costs to obtain, record, and transfer the EX number 
to shipping documents. According to NAAHAC, the industry-wide costs 
associated with first verifying and then transferring the EX number to 
the shipping paper is in excess of $890,000.00 annually.

II. Summary Review of Proposed Amendments

    PHMSA agrees with the petitioner that requiring Class 9 air bag 
inflators, air bag modules, and seat-belt pretensioners to be subjected 
to the EX approval process is unnecessarily burdensome and that 
eliminating the approval requirement will not adversely affect safety. 
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 proposes to revise Sec.  173.166 to address the concerns 
highlighted in NAAHAC's petition. PHMSA believes changes proposed by 
this NPRM will promote the safe transportation of Class 9 air bag 
inflators, air bag modules, and seat-belt pretensioners, while 
significantly reducing the financial burden on the automotive industry 
for shipping these devices. The changes proposed by this NPRM are 
described in detail below.

A. Approval Process

    In this NPRM, PHMSA proposes 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. As proposed, 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).
    As proposed in this NPRM, persons who test and examine air bag 
inflators, air bag modules, or seat-belt pretensioners will 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 amendment provides 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 is a significant cost savings and no 
change in the level of safety. Additionally, we propose 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.
    Air bag inflators, air bag modules, or seat-belt pretensioners that 
meet the criteria for a Division 1.4G explosive, (e.g., a device that 
fails Test series 6(c) of the UN Manual of Tests and Criteria, as 
provided by Special Provision 160) must continue to be approved by

[[Page 17397]]

PHMSA in accordance with the explosive examination, classification, and 
approval process in Sec.  173.56(b).

B. Shipping Papers

    PHMSA is proposing in this 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 this NPRM, PHMSA proposes to clarify that a safety restraint 
device that is installed in a vehicle or vehicle component is not 
subject to the HMR. 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.

D. Packaging

    In this NPRM, PHMSA is also proposing 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. 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.
    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 assembly facility directly to the 
manufacturer with no intermediate facility involved. As proposed in 
this 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 
requiring no modifications to the original package, this will ensure 
that adequate packaging and handling considerations are maintained.
    In this NPRM, PHMSA also proposes 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. 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. 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 this 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 believe 
that the word ``Reuse'' might be a more appropriate description for the 
actual action that is taking place. We request 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 this NPRM, we are proposing 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 propose to permit 1N2 and 1D 
drums, 3B2 jerricans, and 4A, 4B, 4N, and 4H1 boxes.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This notice of proposed rulemaking is published under the authority 
of 49 U.S.C. 5103(b) which authorizes the Secretary to prescribe 
regulations for the safe transportation, including security, of 
hazardous material in intrastate, interstate, and foreign commerce. 49 
U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a 
special permit from a regulation prescribed in 5103(b), 5104, 5110, or 
5112 of the Federal Hazardous Materials Transportation Law to a person 
transporting, or causing to be transported, hazardous material in a way 
that achieves a safety level at least equal to the safety level 
required under the law, or consistent with the public interest, if a 
required safety level does not exist. If adopted as proposed, the final 
rule would amend the regulations incorporating a petition and 
provisions from certain widely-used and longstanding special permits 
that have established a history of safety and which may, therefore, be 
converted into the regulations for general use.

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

    This notice of proposed rulemaking is not considered a significant 
regulatory action under section 3(f) of Executive Order 12866 and, 
therefore, was not reviewed by the Office of Management and Budget. 
Furthermore, this rule is not significant under the Regulatory Policies 
and Procedures of the Department of Transportation (44 FR 11034).
    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. By building off of each other, these two 
Executive Orders 12866 and 13563 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 NPRM, the proposed amendments to the HMR will not impose 
increased compliance costs on the regulated industry. Rather, the 
proposed 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

[[Page 17398]]

flexibility for persons seeking to obtain such approval. In addition, 
the proposals in this NPRM will reduce the paperwork burden on industry 
and this agency caused by continued renewals of special permits. The 
provisions of this proposed rule will promote the continued safe 
transportation of hazardous materials while reducing transportation 
costs for the industry and administrative costs for the agency. 
Therefore, the requirements of Executive Orders 12866 and 13563, and 
the DOT policies and procedures concerning these orders have been 
satisfied. Overall, this proposed rule should reduce the compliance 
burden on the regulated industry without compromising transportation 
safety.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). This proposed rule would preempt State, local, and 
Indian tribe requirements but does not propose 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-
5127, 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 proposed rule addresses subject areas (1), (3), and (5), 
above. If adopted as final, this rule 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 proposed 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 
the 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 a 
final rule in the Federal Register.

D. Executive Order 13175

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this NPRM 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 that a rule is not expected to have a 
significant impact on a substantial number of small entities. The 
proposed rule will not impose increased compliance costs on the 
regulated industry. Rather, the proposed 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 proposed 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 proposed rule should reduce the compliance burden on the 
regulated industry without compromising transportation safety. 
Therefore, we certify that this proposed rulemaking will not have a 
significant or negative economic impact on a substantial number of 
small entities, and in reality should provide a slight positive 
economic benefit (i.e., reduced compliance burden) for those small 
entities.
    This notice 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 NPRM may result in a decrease 
in the annual burden and costs under OMB Control Number 2137-0051 due 
to proposed changes 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 NPRM may result in a 
slight increase in the annual burden and cost to OMB Control Number 
2137-0557 for proposed minor recordkeeping requirements under Sec.  
173.166, this NPRM should 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 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 NPRM may 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 notice identifies revised information collection requests that 
PHMSA will submit to OMB for

[[Page 17399]]

approval based on the requirements in this proposed rule. PHMSA has 
developed burden estimates to reflect changes in this proposed 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 requests comments on the information collection 
and recordkeeping burdens associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.
    Requests for a copy of this information collection should be 
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 
Telephone (202) 366-8553.
    Address written comments to the Dockets Unit as identified in the 
ADDRESSES section of this rulemaking. We must receive comments 
regarding information collection burdens prior to the close of the 
comment period identified in the DATES section of this rulemaking. In 
addition, you may submit comments specifically related to the 
information collection burden to the PHMSA Desk Officer, Office of 
Management and Budget, at fax number (202) 395-6974.

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 proposed 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 of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), and implementing regulations by the Council on 
Environmental Quality (40 CFR part 1500) require Federal agencies to 
consider the consequences of Federal actions and prepare a detailed 
statement on actions that significantly affect the quality of the human 
environment.
    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.
    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). The adverse environmental impacts associated with releases 
of most hazardous materials are short-term impacts that can be greatly 
reduced or eliminated through prompt clean-up of the incident scene. In 
this NPRM, we are requesting comments on the potential environmental 
impacts of the proposals.
    In this NPRM, PHMSA proposes to incorporate the terms of two 
special permits into the HMR. Further, all of the proposals in this 
NPRM 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). While this 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 proposals in this 
NPRM reflect that fact and if finalized, would 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.
    The purpose and need of this rulemaking is to incorporate widely-
used special permits or those with an established safety record into 
the HMR for universal use. More information about the advantages of the 
proposed action can be found in the preamble (i.e., Summary Review of 
Proposed Amendments) to this rulemaking. The alternatives considered in 
the analysis include: (1) The proposed action, that is, incorporation 
of the proposed special permits as amendments to the HMR; and (2) the 
``no action'' alternative, meaning that none of the proposed special 
permits would be incorporated into the HMR. PHMSA believes that either 
of these alternatives would result in equal environmental risk and/or 
impact because special permits are intended to offer equivalent safety 
and environmental protection as the HMR.
    In considering the potential environmental impacts of the proposed

[[Page 17400]]

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. However, PHMSA welcomes 
and will consider and address comments about foreseeable environmental 
impacts or risk associated with the incorporation of any proposed 
special permit that commenters believe PHMSA might have overlooked in 
this NPRM.
    Given that this rulemaking proposes to amend the HMR to incorporate 
provisions contained in certain widely-used or longstanding special 
permits that have an established safety record, these proposed changes 
in regulation should increase safety and environmental protections.

J. International Trade Analysis

    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. Pursuant to these Acts, the establishment of 
standards is not considered an unnecessary obstacle to the foreign 
commerce of the United States, so long as the standards have a 
legitimate domestic objective, such as the protection of safety, and do 
not operate in a manner that excludes 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 
notes the purpose is to ensure the safety of the American public, and 
has assessed the effects of this rule to ensure that it does not 
exclude imports that meet this objective. As a result, this proposed 
rule is not considered as creating an unnecessary obstacle to foreign 
commerce.

IV. List of Subjects in 49 CFR Part 173

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

    In consideration of the foregoing, we propose to amend 49 CFR 
Chapter I as follows:

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

    1. The authority citation for part 173 continues to read as 
follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    2. Section 173.166 is proposed to be revised 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 pre-tensioner 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 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) 
of this subchapter, 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); and
    (iii) Maintains records in accordance with paragraph (g) of this 
section.
    (iv) By adhering to all the provisions specified in Sec.  
173.166(b)(1), 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 it has been 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 of this subchapter. 
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). 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 will 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 as a Division 1.4G, the packaging is 
subject to the EX number marking requirements in Sec.  172.320 (or the 
shipping paper requirements in Sec.  172.202(a)). For shipping papers, 
the EX number or product code for each approved inflator, module or 
pretensioner must be listed 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. The EX number or product 
code 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), is excepted from the EX number 
requirements of paragraph (c).
    (d) Exceptions. (1) An air bag module or seat-belt pretensioner 
that is classed as a Class 9 (UN3268) 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 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.

[[Page 17401]]

    (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.
    (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 further examination to be reclassed 
as a Class 9 material.
    (4) Shipments for Recycling. 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 United States may be offered for transportation and transported 
without compliance with the shipping paper requirement prescribed in 
paragraph (c) of this section. However, 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, and the packaging specification and 
performance requirements of part 178 of this subchapter at the Packing 
Group III performance level are authorized as follows. The packagings 
must be designed and constructed to prevent movement of the articles 
and inadvertent operation. 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 full 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 to, between, and from, intermediate handling 
locations, provided they meet the conditions specified in paragraph 
(e)(4)(i)(A)-(C) of this section and:
    (A) 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 until 
January 1, 2018, 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, a serviceable air bag inflator, air bag 
module, or seat-belt pretensioner 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 
are not required; 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, as appropriate. 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 properly classed as a Class 9 (UN3268).
    (2) 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 authorized testing agency that performed the 
examination and testing, and 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 March 20, 2012 under authority 
delegated in 49 CFR part 106.
 Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2012-7169 Filed 3-23-12; 8:45 am]
BILLING CODE 4910-60-P