Steptoe & Johnson — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation 400 Seventh St., S.W. Research and Washington, D.C. 20590 Special Programs MAY 1 2003 Administration Mr. David H. Coburn Ms. Cynthia Taub Ref. No. 03-0095 Steptoe & Johnson 1330 Connecticut Avenue, N.W. washington, DC 20036 Dear Mr. Coburn and Ms. Taub: a product, Ty-Gard 2000® (Ty-Gard), manufactured by Walnut This is in response to your letter requesting confirmation that International Maritime Dangerous Goods Code (IMDG Code) 7.5.2.2; Industries, Inc., meets the cargo restraint requirements of the and does not require exemption DOT-E 9689 when transported in is not subject to the dunnage requirements in 49 CFR 176.76 (a); accordance with the IMDG Code. shipments have been rejected because, without the exemption, You state that several recent U.S. Coast Guard questions that fabric restraint systems such as Ty-Gard do not conform to the requirements in 49 CFR 176.76 (a). # 00-0317), addressing the same issue and ask us to confirm You also cite a March 1, 2001 clarification letter (reference whether the letter is correct. The information contained in our March 7, 2001 letter is correct. with the IMDG Code is not subject to $ 176.76 (a) and, therefore, A shipment that is transported by vessel in accordance does not require an letter, freight containers packed to meet the requirements in exemption. As stated in our previous dunnage. 7.5.2.2 of the IMDG Code do not specifically require wood With regard to your specific concerns with U.S. Coast Guard Standards Division, 202/267-1577. inspections, you may wish to contact its Hazardous Materials I hope this information is helpful. If you have additional questions, please do not hesitate to contact this office. Sincerely, Hothe z. Mithell Regulatory Review and Reinvention Hattie I. Mitchell, Chief Office of Hazardous Materials Standards 11112 030095#

Page 2STEPTOE & JOHNSON LIP 1330 Connecticut Avenue, NW Washington, DC 20036-1795 David H. Cobur ATTORNEYS AT LAW Telephone 202.429.3000 dcoburn@steptoe.com 202.429.8063 Facsimile 202.429.3902 www.staptoe.com MIntyre 2024298133 ctaub@steptoe.com 8171.12 8176-16 April 1, 2003 Vessel VIA HAND DELIVERY 03-0095 Mr. Edward T. Mazzullo Director, Office of Hazardous Material Standards Rescarch and Special Programs Administration 400 Seventh Street, SW U.S. Department of Transportation Washington, DC 20590-0001 Re: Request for Clarification Dear Mr. Mazzullo: I am writing on behalf of Walnut Industries, Inc, to request clarification regarding the applicability of certain DOT Hazardous Materials (HazMat) regulations to its product, ly-Gard 2000® ("Ty-Gard"). Walnut Industries has been manufacturing Ty-Gard for 15 years. Ty-Gard is a fabric restraint system used to block and brace cargo for all forms of transportation. Ty-Gard has been impact tested, approved and recommended by the Bureau of Explosives and the Association of American Railroads for rail transportation. See BOE pamphlet No. 6C and Intermodal Loading Guide 43-C (2001) (See Attachment 1, consisting of relevant excerpted pages from this publication). Ty-Gard is also recommended for use in surface and ocean transportation modes by the Institute of Packaging Professionals' Shipper's Guide (1999). Ty- Gard has an excellent safety record, is easier and more economical to use than wood dunnage and is well regarded by shippers. Accordingly, Ty-Gard has been applied by a large percentage of the intermodal chemical industry for more than ten years with an excellent safety and damage prevention record unparalleled by traditional wood dunnage systems. Please see the attached Ty- Gard 2000® Brochure (Attachment 2) for further background on the product. As noted, Ty-Gard is generally recognized as an acceptable restraint system for all forms of transportation. However, even though Ty-Gard is regularly used in connection with motor carrier and rail transportation, which is subject to more stresses than ocean carriage, some questions have arisen regarding the acceptability of the product for international ocean cargo vessels under DOT's HazMat regulations. Specifically, questions have arisen under 49 C.F.R. § 176.76(a)(4), which provides that for vessels, dunnage "must be secured to the floor when the cargo consists of dense materials or heavy packages." Ty-Gard does not involve any securement to the floor of a container, but instead operates through securement to the walls of the container. WASHINGTON PHOENIX LOS ANGELES LONDON BRUSSELS#

Page 3Mr. Edward T. Mazzullo April 1, 2003 Page 2 heavy products using Ty-Gard in vessels. Please see the original exemption application, which Gard in vessels, Olin Corporation applied for an exemption in 1986 that allowed Olin to ship describes how Ty-Gard was tested and approved by the U.S. Coast Guard and the National Cargo Bureau (Attachment 3). The exemption was granted later that year. See Exemption No. 9689, Attachment 4. Exemption 9689 was subsequently reissued to Air Products and Chemicals, In November 2000, Air Products and Chemicals wrote to DOT to request a clarification that the above-mentioned exemption was not necessary when imported or exported hazardous materials cargo is shipped by ocean vessel between the United States and a foreign point in conformity with the International Maritime Dangerous Goods Code ('IMDG Code"). See November 10, 2000 Letter, Attachment 5. The Air Products letter relied on § 171.12 of the DOT connection with ocean transportation to or from the United States. Under the performance-based regulations, noting that that section allows shippers the option to rely upon the IMDG Code in standard incorporated into the IMDG Code (specifically, section 7.5.2.2 of that Code), wood dunnage is not required. Mr. Gale stated as follows: John Gale from your Office responded to Air Products on March 7, 2001 (Attachment 6). As provided by [49 C.F.R.] § 171.12, a hazardous material that is packaged, marked, classed, labeled, placarded, described, stowed and segregated, and certified in accordance with the IMDG Code may be offered and accepted for transportation and transported limitations. Since none of these conditions and limitations include within the United States subject to certain conditions and specific compliance with § 176.76(a), a containerized shipment that is transported by vessel may be prepared in accordance with the IMIDG Code instead of the specific provisions of § 176.76(a).#

Page 4• Mr. Edward T. Mazzullo Page 3 April 1, 2003 requirements in § 176.76(a) of the HMR would also meet the IMDG Code requirements for cargo securement. Mr. Gale also stated that because a containerized hazardous materials shipment that is prepared and transported in accordance with the IMIDG Code need not comply with the specific provisions of § 176.76(a), Exemption 9689 was not required for such shipments. Mr. Gale's letter makes clear that a fabric restraint system that satisfies the IMDG Code by the U.S. Coast Guard based on the incorrect premise that Ty-Gard does not meet the HazMat regulations for vessels without Exemption 9689. Further, on several occasions, the National Cargo Bureau has advised its members that Ty-Gard does not conform to the requirements of DOT's HazMat regulations. In this context, questions have also arisen regarding whether Ty- Gard meets the IMD Code requirements for dunnage. Accordingly, Walnut Industries is writing to obtain further clarification about the use of fabric restraints such as Ty-Gard in ocean vessels in settings where § 171.12 is applicable. Specifically, Walnut Industries requests that DOT confirm the following in writing: 1. Ty-Gard 2000° system, when used properly, adequately braces and secures the cargo restraint requirements of IMDG Code § 7.5.2.2 (2000). cargo, and minimizes the likelihood of damage to fittings, and therefore meets the 2. Import/export shipments using Ty-Gard 2000° shipped under the IMDG Code are requirements for wood dunnage and for securing dunnage to the vessel floor, not subject to the dunnage requirements of 49 C.F.R. § 176.76, including the pursuant to 49 C.F.R. § 171.12. shipped in conformity with the IMDG Code. Exemption 9689 is not necessary for shipments using Ty-Gard 2000® that are As stated above, several recent shipments have been rejected based on concerns that fabric restraints systems such as Ty-Gard are not permitted under 49 C.F.R. § 176.76(a) without an exemption. Such rejections have seriously injured the market for Ty-Gard, as customers are reluctant to use the product if it may lead to the rejection of a shipment. Walnut Industries therefore requests that DOT handle this request on an expedited basis so that this confusion in#

Page 5Mr. Edward T. Mazzullo April 1, 2003 Page 4 429-3000 if you have any questions regarding this request. We appreciate your prompt attention to this matter. Please call the undersigned at (202) Sincerely, On tal David H. Coburn Cynthia Taub Attorneys for Walnut Industries, Inc.#