Momentive Performance Materials — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration DEC 22 2x18 1200 New Jersey Ave., SE Washington, DC 20590 Mr. Michael T. Shamulka Momentive Performance Materials 260 Hudson River Road Waterford, NY 1 2 1 88 Ref. No. 08-0284 Dear Mr. Shamulka: This responds to your October 7,2008 letter requesting clarification of the requirements for non-bulk quantities of flammable liquids under the Hazardous Materials Regulations (HMR; 49 CFR Parts 17 1 - 180). Specifically, you request clarification related to non-bulk quantities of flammable liquids that do not sustain combustion'in accordance with testing procedures in Appendix H of Part 173. You indicate the flammable liquids are not intentionally heated and do not meet the definition of any other hazard class. Your questions are paraphrased as follows: Q1. If a liquid with a flash point of not more than 60 OC does not sustain combustion, may a shipper still classify, mark, label, and transport the material as a flammable liquid. A1 . No. A liquid with a flashpoint greater than 35 OC (95 OF) that does not sustain combustion according to ASTM D 4206 or the procedure in Appendix H of Part 173 does not meet the definition of a Class 3 flammable liquid (5 173.120(a)(3)). No person may, by marking or otherwise, represent that a hazardous material is present in a package if the hazardous material is not present (5 17 1.2(k)). Therefore, a liquid with a flash point greater than 35 "C that does not sustain combustion may not be classed, marked, labeled, and transported as a Class 3 flammable liquid. A liquid with a flashpoint at or below 35 OC that does not sustain combustion is defined as a flammable liquid and therefore, must be classed, marked, labeled, and transported as a flammable liquid. 42. Is a 55-gallon drum of a liquid with a flash point of 42 "C (107 OF) that does not sustain combustion subject to the HMR when transported internationally by aircraft if the liquid may be exposed to temperatures at or above its flash point while in transportation? A2. No. A liquid with a flashpoint greater than 35 OC (95 OF) that does not sustain combustion according to ASTM D 4206 or the procedure in Appendix H of Part 173 does#

Page 2not meet the definition of a flammable liquid ( 5 173.120(a)(3)) and, therefore, is not subject to the HMR. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Charles E. Betts, Chief, Standards Development Office of Hazardous Materials Standards#

Page 3October 07,2008 Office of Hazardous Materials Standards Pipeline and Hazardous Materials Safety Administration Attn: PHH-10, U.S. Department of Transportation East Building 1200 New Jersey Avenue, SE Washington, DC 20590-0001 To Whom It May Concern: Our Company produces a number of products that meet the U.S. DOT criteria for a "flammable liquid" in Title 49 CFR $173.120(a). Our test results on some of these products indicate they do not sustain combustion according to the procedure in Appendix H of part 173 in Title 49 C.F.R. I am requesting a Letter of Interpretation answering the following questions for non-bulk packages of flammable liquids that do not sustain combustion per the procedures in Appendix H of part 173, are not intentionally heated and do not meet the definition of any other Hazard Class: 1. If a liquid with a flash point of not more than 60" C does not sustain combustion, may a shipper still classify, mark, label and ship such liquid as a flammable liquid under U.S. requirements for hazardous materials transportation? 2. Is a 55 Gallon Drum of a liquid with a flash point of 107" F that does not sustain combustion subject to U.S. hazardous materials transportation requirements when shipped internationally by aircraft, if it could be subject to temperatures at or above its flash point? Feel free to contact me if you have any questions. Thank you for your effort and cooperation in addressing these questions. Sincerely, t?.tcRo$. 7.- Michael T. Shamulka Supply Chain Regulatory Leader 260 Hudson River Road, Waterford, N.Y., 12188 T (518) 233-3413#