{"operation":"document","citation":"09-0015","title":"MDM Ltd. & Black Mag Industries — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-08-14","effective_on":null,"summary":"09-0015 response to MDM Ltd. & Black Mag Industries concerning 173.171, 173.56, 173.59.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0015.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0015.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0015","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090015.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave, S.E.\nWash~ngton. D.C. 20590\nAUG 1 4 2009\nMr. Craig M. Sanborn\nPresident, MDM Ltd. & Black Mag Industries\nRR 1 Box 405, 67 Private West 2\nMaidstone, Vermont 05905\nRef. No. 09-00 15\nDear Mr. Sanborn:\nThis responds to your January 9,2009 letter regarding the applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 100- 185) to the packaging and transportation of\nsmokeless powder for small arms. Your letter indicates that this material is manufactured by\nGeneral Dynamics and approved as:\n-- \"Propellant, solid, 1.3C, UN0499\" under approval number EX2003030244, and then\nreclassed as:\n-- \"Smokeless powder for small arms (100 pounds or less), 4.1, NA3 178,\" under\napproval numbers EX2003030241 (Black Mag Solid Propellant in one pound plastic\ncontainers), and EX200303024 1 A (Black Mag w1Additive [P/N 90030-7 141 in one\npound plastic containers), subject to the requirements and conditions set forth in the\napprovals and 49 CFR 5 173.17 1.\nYour questions are paraphrased and answered below.\nQ1: May these products, when reclassed as \"Smokeless powder for small arms, 4.1,\nNA3 178, I,\" be shipped under the small quantity exceptions provided in 6 173.4 of the\nHMR?\nAl: No. The small quantity exceptions in 6 173.4 do not apply to explosive materials.\nWhen an explosive material (propellant, solid, 1.3C, UN0499) is reclassed as\n\"Smokeless powder for small arms (100 pounds or less), 4.1, NA3 178, PG I\" under the\nterms of an approval, the requirements and conditions of the approval and 5 173.17 1\ncontrol. Accordingly, when reclassed as a Division 4.1 material, this material may be\ntransported by motor vehicle, rail car, vessel, or cargo-only aircraft, in accordance with\nthe provisions provided therein. The approval only allows transport of a Division 1.3C\nexplosive in specified small quantities as a Division 4.1 flammable solid. No other\npackaging, hazard communication, or classification exceptions are provided and the\nmaterial is forbidden for transport on passenger aircraft.\n\n<<<PAGE 2>>>\n\nMay \"Smokeless powder for small arms, 4.1, NA3 178, I\" be shipped utilizing the\nexceptions provided Class 4 hazardous materials in 5 173.1 5 1 ?\nNo. As stated in A1 above, when examined and approved for classification as a\nDivision 1.3C explosive and reclassed as \"Smokeless powder for small arms (100\npounds or less), 4.1, NA3 178, PG I,\" the packaging specified in the approval must be\nused to transport the smokeless powder. No other packaging, hazard communication, or\nclassification exceptions are provided. The \"None\" in the entry \"Smokeless powder for\nsmall arms, 4.1, NA3 178, I,\" in Column 8A of the HMT clearly indicates that the\nexceptions in $ 173.15 1 for limited quantities and consumer commodities may not be\nutilized.\nMay \"Smokeless powder for small arms, 4.1, NA3 178, I\" be shipped as a Consumer\nCommodity eligible for the exceptions authorized Division 4.1 hazardous materials in\n$173.151?\nNo. See A2.\nMay \"Smokeless powder for small arms, 4.1, NA3 178, I\" be shipped as \"Cartridges,\nsmall arms, ORM-D?\"\nNo. \"Cartridges, small arms,\" as defined in 5 173.59, means ammunition consisting of a\ncartridge case fitted with a center or rim fire primer and containing both a propelling\ncharge and solid projectile(s). They are designed to be fired in weapons of caliber not\nlarger than 19.1 mm. Shotgun cartridges of any caliber are included in this description.\nThe term excludes \"Cartridges, small arms, blank,\" and some military small arms\ncartridges listed under \"Cartridges for weapons, inert projectile.\"\nWhen transporting \"Smokeless powder for small arms, 4.1, NA3 178, I,\" what packaging\nshould be used?\nAs authorized by approvals EX2003030241 and EX2003030241A, this classification is\nonly valid when the smokeless powder for small arms (100 pounds or less) is shipped\naccording to the requirements of 9 1 73.1 7 1 and packaged as follows:\nInner Packaging - Bottles, heavy-wall static-resistant plastic with plastic screw cap,\neach containing not more than one pound of smokeless propellant for small arms.\nOuter Packaging - Specification 4G fiberboard box, each containing not more than\ntwenty-four (24) inner packagings in up to two layers of twelve with fiberboard\ndividers separating each inner packaging in a layer and fiberboard spacer between\nlayers.\nFurther, the completed packages must be of the same type that had been examined as\nrequired in 9 173.56.\nMay UPS set additional conditions or assess a hazmat fee for shipments of \"Smokeless\npowder for small arms, 4.1, NA3 178, I?\"\n\n<<<PAGE 3>>>\n\nA6: Yes. As a common carrier, UPS may set its own conditions or requirements for\ntransporting hazardous materials, so long as those conditions or requirements do not\nprevent compliance with the HMR, and it may assess a fee for the transportation of\nhazardous materials. These fees are neither mandated nor regulated by PHMSA.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nEdward T. Mazzullo\nDirector, O a c e of Hazardous\nMaterials Standards\n\n<<<PAGE 4>>>\n\nMDM\nRR 1 Box 405,67 Private West 2\n3 173. b 3\nMaidstone, Vermont 05905\nPhone: (802) 676-331 1 Fax: (802) 676-3322 EX cept1011~\nJanuary 9,2009\nE24-3 14\nOffice of Hazardous Material\nStandards\nPHH- 1 0\nAttn: Mr. Edward Mazzullo, Director\nDear Mr. Mazzullo,\nLet me introduce myself, Craig Sanborn, president of Millennium Designed Muzzleloaders, dba\nMDM. We have been in the muzzleloading business since 1997.\nIn May of 2008 we invested in MagKor Corporation and established a new company called\nBlackMag Industries. The intent of this newly formed company is to manufacture the patent\nprotected material referred to as BlackMag powder. Part of the transaction included all the\npowder in inventory which was manufactured by General Dynamics for MagKor to the\nreferenced classifications listed below. The busineks plan was to distribute the powder as\ncurrently packaged by General Dynamics, introduce the patent pending Consumable\nMuzzleloading Cartridge and ship sample quantities as allowed by 49CFR.\nI have been prompted to write this \"Letter of Interpretation\" by both Robert Lynch, Sr. and\nHarprett Sin>;h as a follow-up to Robert's sight visit to our operations located in Maidstone,\nVermont. I 1 elieve that the visit was driven by a complaint that we are shipping product via UPS\nground, classifying it as an ORM-D and not as a Hazmat product.\nWe believe our shipping method is clearly defined by your regulations and allowable under\n49CFR, 173.4 Small Quantity Exceptions, 173.15 1 Exceptions for Class 4 and 173.63 Packaging\nexceptions to include 172.101 Hazardous Materials Table. This\nORM-D method of classification was presented to UPS, our only means for distributing this\nproduct, and reviewed by our district account representative, Justin Kipp. He confirmed and\nauthorized this shipping method and established competitive rates and assisted in the process of\nallowable shipping via UPS, both ground and air. To this date we have only shipped via ground.\nWe are requesting your written approval, and classification if required to continue the ORM-D\nshipping of this product in two forms. The Lightning Loads as defined and also the Consumable\nMuzzleloading Cartridge as defined. Please see attachment for packaging materials and inserts.\nLet me start by identifying the classification of the powder as tested by Dr. W.S. Chang.\nHis original approval, number EX2003030244, classified the powder as 1.3C. He further tested\nand became classified as a 4.1, approval number EX2003030241 and EX2003030241A. We are\nusing the 4.1 classification in support of this packaging method. We are also using the powder\nsupplied to MagKor by General Dynamics as shipped as a 4.1 classified material and distributed\naccordingly.\n\n<<<PAGE 5>>>\n\n173.4 Small quantity exceptions:\nSection (a) identifies exception of 4.1 classification and states that it is \"not subject to any other\nrequirements of this subchapter whenw-\nWe are packaging a 4.1 material which is identified here as acceptable.\n(1) \"The maximum quantity of material per inner receptacle or article is limited to\"-\n(ii) \"Thirty (30) g (1 ounce) for authorized solid material:\"\nWe are packaging 5 tubes in a package with a qualified standard charge weighing an\naverage of .I61 ounces and a qualified magnum charge weighing an average of .213 ounces.\nBoth of these load charges are well below your authorized limit.\n(2)(ii) \"is constructed of plastic having a minimum thickness of no less that 0.2 mm (0.008 inch),\nor earthenware, glass, or metal:\"\nWe are packaging the sample charges in clear waterproof sealed tubes which measure .021\ninches thick, more than 2 '/z times the minimum requirement.\n(3) \"Each inner receptacle with a removable closure has its closure held securely in place with\nwire, tape, or other positive means;\"\nWe package our inner receptacle in a welded plastic tube with a compression fit cap that\nfits over the outside of tube and is pressed down over the tube by more that '/z inch.\n(4) \"each inner receptacle is securely packaged in an inside packaging with cushioning and\nabsorbent material that:\"\n(i) \"Will not react chemically with the material\"\nWe package our inner receptacle tubes in a plastic tray securely holding each tube in it own\ncavity with sufficient room to absorb impacts.\n(5) The inside packaging is securely packaged in a strong outside packaging;\nWe then package each tray of 5 tubes in a heavy duty outer clamshell with compression\nsnap closure design.\n(6) The completed package, as demonstrated by prototype testing, is capable of sustaining-\n(i) Each of the following free drops made from a height of 1.8 m (5.9 feet) directly onto a solid\nunyielding surface without breakage or leakage from any inner receptacle and without a\nsubstantial reduction in the effectiveness of the package:\n(A) One drop flat on bottom:\n(B) One drop flat on top:\n(C) One drop flat on the long side:\n(D) One drop flat on the short side:\nAnd\n(E) One drop on a corner at the junction of three intersecting edges: and\n(ii) A compressive load as specified in 178.6060 Of this subchapter.\nWe tested a single package of 5 tube receptacles packaged in the inner trays and enclosed it\na heavy duty clamshell as defined above. This packaging method withstood this defined\ntesting procedure without breakage or leakage from any inner receptacle and without a\nsubstantial reduction in the effectiveness of the package.\nWe then continued to test and repeated all required procedures for all the different\npackaging methods of master packages that we use for shipment of the 5-packs which was\ntested above:\n(1)We tested 2 packs; packaged in a flat cardboard envelope and shipped in a Tyvek\nenvelope.\n(2) We tested 4 packs: packaged in a fiberboard box.\n(3) We tested 8 packs; packaged in a fiberboard box.\n(4) We tested 24 packs; packaged in a fiberboard box.\n\n<<<PAGE 6>>>\n\nAll of these packaging methods withstood the above defined testing procedures without\nbreakage or leakage from any inner receptacle and without a substantial reduction in the\neffectiveness of the package.\n(7) Placement of the material in the package or packaging different materials in the package does\nnot result in a violation of 173.2 1 :\nThis further supports the same packaging for our consumable muzzleloading cartridge and\nthe same packaging for compressed charges.\n(8) The gross mass of the completed package does not exceed 29 kg (64 pounds):\nAll our packaging and shipments to date do not exceed 6 pounds gross weight which is only\n9% of the allowable weight as per 49 CFR specifications.\n(9) The package is not opened or otherwise altered until it is no longer in commerce; and\n(1 0) The shipper certifies conformance with this section by marking the outside of the package\nwith the statement \"This package conforms to 49CFR 173.4.\"\nThe packaging process in current use prepares all shipments with proper sealant tapes and\na clear shipping envelope encloses the shipping document which is adhesively affixed to\npackage. Our marking of the outside of package in order to be in compliance with 49 CFR\n173.4 is using the standard printed label from Hazmat Source labels, CONSUMER\nCOMMODITY ORM-D. It would be our further intent to use their standard printed label\nto identify CARTRIDGES, SMALL ARMS ORM-D for our Consumable Muzzleloading\nCartridge.\nMr. Mazzullo, I am very concerned about this entire site visit, the time frame in which it was\nconducted and mainly the sole reason why a competitor of ours can trigger this type of\ninvestigation. At the onsite visit of Mr. Lynch he generated a phone call made to Mr.Singh.\nDuring the middle of their phone discussion the phone was passed to me and for what reason I\nam still not sure. I started to explain my shipping procedure to Mr. Singh and I was promptly cut\nshort with his response: \"Don't you think that your shipping methods would be used by\nHODGDEN POWDER COMPANY if it was acceptable?\" I was speechless, upset and\nappalled to think that a government agency would have one line of defense alluding to the fact\nthat our major competitor was controlling DOT and we could not be a little more creative in our\nmarketing and distribution because it had not been contemplated by the folks at Hodgden. In\nfurther discussions Mr. Lynch seemed to accept our method of shipment as ammunition but\nsuggested that ours would be considered \"HOME MADE AMMUNITION\" and this is what your\nagency is trying to regulate and control.\nMy belief has always been that government agencies provide assistance and support for\ncommerce in a productive manner; however, it now seems apparent that your agency has other\nmotives based on some level of duplicity - one such aim appears to be shutting our operations\ndown.\nFurthermore, your surprise visit was conducted right during the height of our busiest time of\nyear, yet we have been advertising the products under review for two years on our web sites,\nbrochures, through national media publications and on a number of television outdoor programs.\nI am still uncertain whether we were expected to cease all shipping (or not) because we never\nreceived any written communication, but the bottom line is that not shipping our products has\nresulted in substantial revenue loss which, as I am sure you understand, has been a tremendous\nfinancial strain during this time of great recession.\n\n<<<PAGE 7>>>\n\nI would appreciate being provided with a complete review of product that we believe are allowed\nshippable without Hazmat cost. Also, I would welcome discussion regarding the manner in\nwhich we have been treated, as well as the factual reason(s) for the investigation.\nPlease contact me directly if I can be of any additional assistance, answer any questions or\nsupply you with any of our product and / or packaging materials.\nThank you for your time and I would appreciate your promptness with some direction as we are\nmaking these products available nationally and internationally at upcoming trade shows. We\nhave gone to great lengths with very time-consuming research and investigation in order to meet\nyour published shipping requirements and beyond to provide safe packaging and transportation\nand would like to continue with the full support of your agency.\nSincerely,\nCraig M. Sanborn\nPresident, MDM Ltd. and BlackMag Industries\ncc: Mr. Robert Lynch, Sr. Investigator\nGeneral Council / MDM Ltd.\nEncl: 2\nLightning Load sheet\nThundercharge sheet\nBoth of these enclosures can be viewed on our web site @\nwww.MDM-muzzleloading.com","truncated":false,"body_characters":15645}