Interpretation Response #10-0268
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
March 7, 2011
Mr. Brent Raiber
Cobham Mission Systems Division
10 Cobham Drive
Orchard Park, NY 14127
Reference No.: 10-0268
Dear Mr. Raiber:
This letter responds to your e-mail concerning third party inspection of pressurized cylinders that have a Department of Defense (DOD) Certificate of Equivalency (COE) under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask the Pipeline and Hazardous Materials Safety Administration (PHMSA) to clarify a previously issued letter of interpretation, issued on October 23, 2003 [Ref. No. 03-0261] and addressed to Carleton Technologies Inc. This letter specified that if a company has a COE for a cylinder, under certain circumstances, the cylinder may be certified by a "resident government inspector," as opposed to using a third party Department of Transportation (DOT) inspector.
Currently, Cobham Mission Systems Division, previously known as Carleton Technologies Inc., employs Defense Contract Management Agency (DCMA) to act as government officials to ensure compliance. In your email, you state that DCMA is the same entity previously identified by Carleton in the prior letter of interpretation as the resident government inspector, and that DCMA is not identified as a current approved third party inspector by PHMSA.
In accordance with the requirements of § 173.7(a), hazardous materials offered for transportation by, for, or to the DOD of the U.S. Government, including commercial shipments pursuant to a DOD contract, must be packaged in accordance with the regulations of the HMR or in packagings of equal or greater strength as certified by DOD in accordance with the procedures prescribed by "Packaging of Hazardous Material, DLAD 4145.41/AR 700"143/AFJI 24"210/NAVSUPINST 4030.55B/MCO 4030.40B."
A "resident government inspector" is not defined in the HMR. However, in the context used in the previously issued letter of interpretation, the term refers to an individual who has been trained in accordance with § 172.704 of the HMR and the DOD regulations, specifically the procedures prescribed by "Packaging of Hazardous Material, DLAD 4145.41/AR 700"143/AFJI 24"210/NAVSUPINST 4030.55B/MCO 4030.40B." In accordance with § 173.7(a), hazardous materials packagings offered for transportation by, for, or to the DOD of the U.S. Government, including commercial shipments pursuant to a DOD contract may be inspected by a "resident government inspector" to determine equivalence to an appropriate DOT specification.
You also seek clarification as to the exact roles and responsibilities required of the "resident government inspector" with regard to § 178.35 of the HMR. Section § 173.7(a) applies to the continued use of a packaging and not to the manufacture of that packaging. The previous letter you referenced, Ref. No. 03-0261, allows for the inspection of a COE cylinder for reshipment in order to determine equivalence to an appropriate DOT specification, but does not address the manufacturing of COE cylinders. A "resident government inspector" may certify a packaging is of equal or greater strength and efficiency to those specifications detailed in the HMR. However, a "resident government inspector" is not authorized to conduct an inspection of a cylinder manufacturer in accordance with § 178.35. Only an independent inspection agency approved in writing by the Associate Administrator may inspect and certify that a cylinder is manufactured in accordance with § 178.35.
I hope this satisfies your inquiry. Please contact us if we can be of further assistance.
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
173.7, 172.704, 178.35
|§ 173.7||Government operations and materials|