{"operation":"document","citation":"03-0095","title":"Steptoe & Johnson — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-05-01","effective_on":null,"summary":"03-0095 response to Steptoe & Johnson concerning 171.12.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0095.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0095.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0095","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030095.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n400 Seventh St., S.W.\nResearch and\nWashington, D.C. 20590\nSpecial Programs\nMAY 1\n2003\nAdministration\nMr.\nDavid H. Coburn\nMs. Cynthia Taub\nRef. No. 03-0095\nSteptoe & Johnson\n1330 Connecticut Avenue, N.W.\nwashington, DC 20036\nDear Mr. Coburn and Ms. Taub:\na product, Ty-Gard 2000® (Ty-Gard), manufactured by Walnut\nThis is in response to your letter requesting confirmation that\nInternational Maritime Dangerous Goods Code (IMDG Code) 7.5.2.2;\nIndustries, Inc.,\nmeets the cargo restraint requirements of the\nand does not require exemption DOT-E 9689 when transported in\nis not subject to the dunnage requirements in 49 CFR 176.76 (a);\naccordance with the IMDG Code.\nshipments have been rejected because, without the exemption,\nYou state that several recent\nU.S. Coast Guard questions that fabric restraint systems such as\nTy-Gard do not conform to the requirements in 49 CFR 176.76 (a).\n# 00-0317), addressing the same issue and ask us to confirm\nYou also cite a March 1, 2001 clarification letter (reference\nwhether the letter is correct.\nThe information contained in our March 7, 2001 letter is\ncorrect.\nwith the IMDG Code is not subject to $ 176.76 (a) and, therefore,\nA shipment that is transported by vessel in accordance\ndoes not require an\nletter, freight containers packed to meet the requirements in\nexemption.\nAs stated in our previous\ndunnage.\n7.5.2.2 of the IMDG Code do not specifically require wood\nWith regard to your specific concerns with U.S. Coast Guard\nStandards Division, 202/267-1577.\ninspections, you may wish to contact its Hazardous Materials\nI hope this information is helpful. If you have additional\nquestions, please do not hesitate to contact this office.\nSincerely,\nHothe z. Mithell\nRegulatory Review and Reinvention\nHattie I. Mitchell, Chief\nOffice of Hazardous Materials Standards\n11112\n030095\n\n<<<PAGE 2>>>\n\nSTEPTOE & JOHNSON LIP\n1330 Connecticut Avenue, NW\nWashington, DC 20036-1795\nDavid H. Cobur ATTORNEYS AT LAW\nTelephone 202.429.3000\ndcoburn@steptoe.com\n202.429.8063\nFacsimile 202.429.3902\nwww.staptoe.com\nMIntyre\n2024298133\nctaub@steptoe.com\n8171.12\n8176-16\nApril 1, 2003\nVessel\nVIA HAND DELIVERY\n03-0095\nMr. Edward T. Mazzullo\nDirector, Office of Hazardous Material Standards\nRescarch and Special Programs Administration\n400 Seventh Street, SW\nU.S. Department of Transportation\nWashington, DC 20590-0001\nRe: Request for Clarification\nDear Mr. Mazzullo:\nI am writing on behalf of Walnut Industries, Inc, to request clarification regarding the\napplicability of certain DOT Hazardous Materials (HazMat) regulations to its product, ly-Gard\n2000® (\"Ty-Gard\"). Walnut Industries has been manufacturing Ty-Gard for 15 years. Ty-Gard\nis a fabric restraint system used to block and brace cargo for all forms of transportation. Ty-Gard\nhas been impact tested, approved and recommended by the Bureau of Explosives and the\nAssociation of American Railroads for rail transportation. See BOE pamphlet No. 6C and\nIntermodal Loading Guide 43-C (2001) (See Attachment 1, consisting of relevant excerpted\npages from this publication). Ty-Gard is also recommended for use in surface and ocean\ntransportation modes by the Institute of Packaging Professionals' Shipper's Guide (1999). Ty-\nGard has an excellent safety record, is easier and more economical to use than wood dunnage\nand is well regarded by shippers. Accordingly, Ty-Gard has been applied by a large percentage\nof the intermodal chemical industry for more than ten years with an excellent safety and damage\nprevention record unparalleled by traditional wood dunnage systems. Please see the attached Ty-\nGard 2000® Brochure (Attachment 2) for further background on the product.\nAs noted, Ty-Gard is generally recognized as an acceptable restraint system for all forms\nof transportation. However, even though Ty-Gard is regularly used in connection with motor\ncarrier and rail transportation, which is subject to more stresses than ocean carriage, some\nquestions have arisen regarding the acceptability of the product for international ocean cargo\nvessels under DOT's HazMat regulations. Specifically, questions have arisen under 49 C.F.R. §\n176.76(a)(4), which provides that for vessels, dunnage \"must be secured to the floor when the\ncargo consists of dense materials or heavy packages.\" Ty-Gard does not involve any securement\nto the floor of a container, but instead operates through securement to the walls of the container.\nWASHINGTON\nPHOENIX\nLOS ANGELES\nLONDON\nBRUSSELS\n\n<<<PAGE 3>>>\n\nMr. Edward T. Mazzullo\nApril 1, 2003\nPage 2\nheavy products using Ty-Gard in vessels. Please see the original exemption application, which\nGard in vessels, Olin Corporation applied for an exemption in 1986 that allowed Olin to ship\ndescribes how Ty-Gard was tested and approved by the U.S. Coast Guard and the National\nCargo Bureau (Attachment 3). The exemption was granted later that year. See Exemption No.\n9689, Attachment 4. Exemption 9689 was subsequently reissued to Air Products and Chemicals,\nIn November 2000, Air Products and Chemicals wrote to DOT to request a clarification\nthat the above-mentioned exemption was not necessary when imported or exported hazardous\nmaterials cargo is shipped by ocean vessel between the United States and a foreign point in\nconformity with the International Maritime Dangerous Goods Code ('IMDG Code\"). See\nNovember 10, 2000 Letter, Attachment 5. The Air Products letter relied on § 171.12 of the DOT\nconnection with ocean transportation to or from the United States. Under the performance-based\nregulations, noting that that section allows shippers the option to rely upon the IMDG Code in\nstandard incorporated into the IMDG Code (specifically, section 7.5.2.2 of that Code), wood\ndunnage is not required.\nMr. Gale stated as follows:\nJohn Gale from your Office responded to Air Products on March 7, 2001 (Attachment 6).\nAs provided by [49 C.F.R.] § 171.12, a hazardous material that is\npackaged, marked, classed, labeled, placarded, described, stowed\nand segregated, and certified in accordance with the IMDG Code\nmay be offered and accepted for transportation and transported\nlimitations. Since none of these conditions and limitations include\nwithin the United States subject to certain conditions and\nspecific compliance with § 176.76(a), a containerized shipment\nthat is transported by vessel may be prepared in accordance with\nthe IMIDG Code instead of the specific provisions of § 176.76(a).\n\n<<<PAGE 4>>>\n\n•\nMr. Edward T. Mazzullo\nPage 3\nApril 1, 2003\nrequirements in § 176.76(a) of the HMR would also meet the\nIMDG Code requirements for cargo securement.\nMr. Gale also stated that because a containerized hazardous materials shipment that is\nprepared and transported in accordance with the IMIDG Code need not comply with the specific\nprovisions of § 176.76(a), Exemption 9689 was not required for such shipments.\nMr. Gale's letter makes clear that a fabric restraint system that satisfies the IMDG Code\nby the U.S. Coast Guard based on the incorrect premise that Ty-Gard does not meet the HazMat\nregulations for vessels without Exemption 9689. Further, on several occasions, the National\nCargo Bureau has advised its members that Ty-Gard does not conform to the requirements of\nDOT's HazMat regulations. In this context, questions have also arisen regarding whether Ty-\nGard meets the IMD Code requirements for dunnage.\nAccordingly, Walnut Industries is writing to obtain further clarification about the use of\nfabric restraints such as Ty-Gard in ocean vessels in settings where § 171.12 is applicable.\nSpecifically, Walnut Industries requests that DOT confirm the following in writing:\n1.\nTy-Gard 2000° system, when used properly, adequately braces and secures the\ncargo restraint requirements of IMDG Code § 7.5.2.2 (2000).\ncargo, and minimizes the likelihood of damage to fittings, and therefore meets the\n2.\nImport/export shipments using Ty-Gard 2000° shipped under the IMDG Code are\nrequirements for wood dunnage and for securing dunnage to the vessel floor,\nnot subject to the dunnage requirements of 49 C.F.R. § 176.76, including the\npursuant to 49 C.F.R. § 171.12.\nshipped in conformity with the IMDG Code.\nExemption 9689 is not necessary for shipments using Ty-Gard 2000® that are\nAs stated above, several recent shipments have been rejected based on concerns that\nfabric restraints systems such as Ty-Gard are not permitted under 49 C.F.R. § 176.76(a) without\nan exemption. Such rejections have seriously injured the market for Ty-Gard, as customers are\nreluctant to use the product if it may lead to the rejection of a shipment. Walnut Industries\ntherefore requests that DOT handle this request on an expedited basis so that this confusion in\n\n<<<PAGE 5>>>\n\nMr. Edward T. Mazzullo\nApril 1, 2003\nPage 4\n429-3000 if you have any questions regarding this request.\nWe appreciate your prompt attention to this matter. Please call the undersigned at (202)\nSincerely,\nOn tal\nDavid H. Coburn\nCynthia Taub\nAttorneys for Walnut Industries, Inc.","truncated":false,"body_characters":9018}