{"operation":"document","citation":"19-0055","title":"Dangerous Goods Transport Consulting Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-10-08","effective_on":null,"summary":"19-0055 response to Dangerous Goods Transport Consulting Inc. concerning 172.101, 173.166.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0055.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0055.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0055","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/72551/190055.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nO CT O 8 2019\nFrits Wybenga\nDangerous Goods Transport Consulting Inc.\n15108 Red Clover Drive\nRockville, MD 20853\nReference No. 19-0055\nDear Mr. Wybenga:\nThis letter is in response to your April 1 7, 2019, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 1 71-180) applicable to the reclassification of certain\nfire suppression systems as permitted by Special Permit (SP) DOT-SP 20600. Specifically, you\nask a number of questions regarding PHMSA's intent and authority as it relates to the issuance of\nthe special permit and the provisions of the International Civil Aviation Organization Technical\nInstructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions).\nPHMSA issued SP 20600 in accordance with 49 CFR Part 107, Subpart B to permit the transport\nof certain devices under alternative provisions to the requirements specified in\nthe§ 172.101 Hazardous Materials Table and§ 173.166. Because PHMSA is the competent\nauthority for the transportation of hazardous materials (dangerous goods) as cargo by air to,\nfrom, or within the United States, SP 20600 serves as a competent authority approval for the\npurposes of compliance with international transport standards and regulations. Note that under\nthe HMR, the use of the ICAO Technical Instructions is optional, and although PHMSA has\ncompetent authority status, acceptance of a shipment authorized under PHMSA's authority is\nultimately left to the discretion of the destination State.\nI hope this information is helpful. Please contact us if we can be of further assistance.\ns/4,_ c. l\nShane C. Kelley\nDirector\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nDodd, Alice (PHMSA)\nFrom:\nSent:\nTo:\nCc:\nSubject:\nAttachments:\nKelley, Shane (PHMSA)\nWednesday, April 17, 2019 6:01 PM\nHazmat Interps\nPfund, Duane (PHMSA); Tackett, Christina (PHMSA)\nFwd: Request for interpretations of international regulations/HMR as applicable to SP\n20600\nrequest for interp sp20600.docx; Fireaway Application-2 (004).pdf; SP20600\n_BRichard.pdf\nPlease process this request. I would like it assigned to a specialist that can manage quickly and prioritize - Dirk/Glenn\nplease provide an indication of whom is best suited. I will be working closely with the drafter and with Duane, Ryan P\nand Christina as this one has high implications for PHMSA.\nThanks\nFrom: Frits Wybenga <fwybenga@dg-transportation.com>\nSent: Wednesday, April 17, 2019 5:26 PM\nTo: Kelley, Shane (PHMSA)\nCc: PHMSA FOIA; PHMSA Public Affairs; McLaughlin, Janet <AWA>; Givens, Michael <AWA>\nSubject: Request for interpretations of international regulations/HMR as applicable to SP 20600\nHi Shane- please accept my attached letter requesting interpretations of the HMR as well as international regulations\nas they apply in the case of Special Permit 20600. In addition to my letter requesting interpretation, I also attach the\napplication submitted for SP 20600 and SP 20600 itself.\nHaving served as the US nominated Dangerous Goods Panel Member for many years, I am concerned that SP 20600 may\npose certain safety risks, in particular the inadvertent placement of unauthorized devices meeting explosives\nclassification criteria on commercial passenger aircraft worldwide.\nI do not believe that PHMSA has the authority to extend the relief SP 20600 provides in the case of the HMR to transport\nunder international regulations such as the ICAO Tl. Yet the relevance of SP 20600 to transport under the ICAO Tl and\nIMDG Code is unclear and may be misleading. Under international regulations, I see no basis for SP20600 relief that\nappears to be have been granted solely on the basis of commercial interests.\nSince I have submitted a FOIA request that is related to this, I have copied the PHMSA FOIA contacts. In addition due to\nthe potential safety concerns related to air transport, I am copying Janet and Michael.\nI would hope that this can be resolved through clarification with your office. Given that there are safety concerns. I hope\nthat your response will be timely. I would appreciate knowing your intent and planned timing of a response.\nIf it is not possible to address my letter for whatever reason, it may be necessary to raise my concerns wit h others within\nand outside of PHMSA. Obviously that is not my first choice.\nThanks - Frits\nFrits Wybenga\nDangerous Goods Transport Consulting Inc.\n1\n\n<<<PAGE 3>>>\n\n15108 Red Clover Drive\nRockville, MD 20853\n301-929-1668\nMobile 301-356-2096\nwww.dg-transportation.com\n2\n\n<<<PAGE 4>>>\n\nU.S Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nEast Building, PHH-30\n1200 New Jersey Avenue S.E\nWashington, D.C. 20590\nDOT-SP 20600\n(THIRD REVISION)\nEXPIRATION DATE: 2022-04-30\nII\n(FOR RENEWAL, SEE 49 CFR 107.109)\n1.\nGRANTEE: Fireaway Inc.\nMinnetonka, MN\n2. PURPOSE AND LIMITATION:\na. This special permit authorizes the manufacture, mark,\nsale, and use of certain fire suppression devices as safety\ndevices when transported by highway, rail, cargo vessel and\ncargo-only aircraft. This special permit provides no relief\nfrom the Hazardous Materials Regulations (HMR) other than as\nspecifically stated herein. The most recent revision\nsupersedes all previous revisions.\nb. The safety analyses performed in development of this\nspecial permit only considered the hazards and risks\nassociated with transportation in commerce. The safety\nanalyses did not consider the hazards and risks associated\nwith consumer use, use as a component of a transport vehicle\nor other device, or other uses not associated with\ntransportation in commerce.\nc. In accordance with 49 CFR 107.107(a) party status may\nnot be granted to a manufacturing permit. These fire\nsuppression devices may be packaged and offered for\ntransportation in accordance with 49 CFR 173.22a.\n3.\nREGULATORY SYSTEM AFFECTED: 49 CFR Parts 106, 107 and 171-\n180.\nTracking Number: 2018029335\n\n<<<PAGE 5>>>\n\nContinuation of DO T- SP 20600 (3 rd Rev.) Page 2\nOctober 30, 2018\n4. REGULATION FROM WH I CH EXEMPTED: 49 CFR 173 . 166 in that these\ndevices are not required to be installed in vehicles,\nvessels or aircraft to enhance safety to persons are\nconsidered as safety devices and 172.l0l(c) in that these\ndevices may be thermal l y initiated.\n5 .\n6.\nBASIS: This special permit is based on the application of\nFireaway I nc. dated February 15 , 2018 , submitted in\naccordance with § 107.105.\nHAZARDOUS MATE RIALS (49 CFR 172.101):\nHazardous Materials Description\nProper Shipping Name Hazard Identi- Packing\nClass/ fication Group\nDivision Number\nSafety devices 9 UN3268 N/A\n7 . SAFE TY CONTROL MEASURES:\na. FIRE SUPPRESSION DEVICES: The devices authorized under\nthe provi sions of this permi t a r e e l ectri cally or thermally\ninitiated fire suppression devices intended to protect life\nor property . Except as specified in Paragraph 4 , the device\ndesigns meet a ll the applicable requirements of 49 CFR\n173.166 and Special Provision 160.\nb . TESTING : These articl es must be successfully tested in\naccordance with Test series 6(c) of Part I of the UN Manual\nof Tests and Criteria with no explos i on of the device , no\nfragmentation of device casing or pressure vessel , and no\nprojection hazard or thermal effect that would significantly\nhinder fire-fighting or other emergency response efforts in\nthe immediate vicini ty .\nc. PACKAGING: The fire suppression devices prepared for\ntransport must be packaged in a manner that provides\nprotection from accidental initiation, including but not\nlimited to positive restraint system to prevent accidental\ninitiation, and rigid outer packaging to control movement of\nthe article within the packaging under conditions normally\nincident to transportation.\n\n<<<PAGE 6>>>\n\nContinuation of DOT-SP 20600 (3r d Rev.)\nPage 3\nOctober 30, 2018\n8. SPECIAL PROVISIONS:\na. In accordance with the provisions of Paragraph (b) of\n§ 173.22a, persons may package and offer for transportation\nthe fire suppression device authorized by this special\npermit under the hazardous materials description specified\nin paragraph 6, only in conformance with the terms of this\nspecial permit.\nb. A person who is not a holder of this special permit,\nbut receives a fire suppression device covered by this\nspecial permit, may reoffer it for transportation provided\nno modification or change is made to the fire suppression\ndevice and it is offered for transportation in conformance\nwith this special permit and the HMR.\nc. A current copy of this special permit must be\nmaintained at each facility where the fire suppression\ndevice is offered or reoffered for transportation.\nd. Each fire suppression device manufactured under the\nauthority of this special permit must be either (1) marked\nwith the name of the manufacturer and location (city and\nstate) of the facility at which it is manufactured or (2)\nmarked with a registration symbol designated by the Office\nof Hazardous Materials Special Permits and Approvals for a\nspecific manufacturing facility.\ne. A current copy of this special permit must be\nmaintained at each facility where the fire suppression\ndevice is manufactured under this special permit. It must\nbe made available to a DOT representative upon request.\nf. For each manufacturing run, when fire suppression\ndevices are initially offered for transportation the grantee\nmust maintain the following record and upon request and make\nthis record available to DOT representatives or enforcement\nofficials. The record to be maintained is as follows:\n(1) Dates and description of each shipment; and\n(2) Description of each type of shipment.\nnumber of items shipped.\nIncluding\n9. MODES OF TRANSPORTATION AUTHORIZED: Motor vehicle, rail,\ncargo vessel, and cargo-only aircraft.\n10. MODAL REQUIREMENTS: A current copy of this special permit\n\n<<<PAGE 7>>>\n\nContinuation of DOT-SP 20600 (3 rd Rev.) Page 4\nOctober 30, 2018\nmust be carried aboard each motor vehicle, cargo vessel, or\ncargo-only aircraft used to transport packages covered by\nthis special permit. The shipper must furnish a c opy of\nthis special permit to the air carrier before or at the time\nthe shipment is tendered.\n11. COMPLIANCE: Failure by a person to comply with any of the\nfollowing may result in suspension or revocation of this\nspecial permit and penalties prescribed by the Federal\nhazardous materials transportation law, 49 U.S.C. 5101 et\nseq:\no All terms and conditions prescribed in this special\npermit and the Hazardous Materials Regulations, 49 CFR\nParts 171-180.\no Persons operating under the terms of this special\npermit must comply with the security plan requirement\nin Subpart I of Part 172 of the HMR, when applicable.\no Registration required by § 107.601 et seq., when\napplicable.\nEach \"Hazmat employee\", as defined in § 171.8, who performs\na function subject to this special permit must receive\ntraining on the requirements and c o nditions of this special\npermit in addition to the training required by §§ 172.700\nthrough 172.704.\nNo person may use or apply this special permit, including\ndisplay of its number, when this special permit has expired\nor is otherwise no longer in effect.\nUnder Title VII of the Safe, Accountable, Flexible,\nEfficient Transportation Equity Act: A Legacy for Users\n(SAFETEA-LU) - \"The Hazardous Materials Safety and Security\nReauthorization Act of 2005\" (Pub. L. 109-59), 119 Stat.\n1144 (August 10, 2005), amended the Federal hazardous\nmaterials transportation law by changing the term\n\"exemption\" to \"special permit\" and authorizes a special\npermit to be granted up to two years for new special permits\nand up to four years for renewals.\n12. REPORTING REQUIREMENTS:\na. Shipments or operations conducted undel this special\npermit are subject to the Hazardous Materials Incident\nReporting requirements specified in 49 CFR §§ 171.15 -\n\n<<<PAGE 8>>>\n\nContinuation of DOT-SP 20600 (3 rd Rev.) Page 5\nOctober 30, 2018\nImmediate notice of certain hazardous materials incidents,\nand 171.16 - Detailed hazardous materials incident reports.\nIn addition, the grantee(s) of this special permit must\nnotify the Associate Administrator for Hazardous Materials\nSafety, in writing, of any incident involving a package,\nshipment or operation conducted under terms of this special\npermit. If an incident occurs during air transportation, the\nAssociate Administrator must be notified in writing at\nspecial permits@dot . gov _\nof the incident within 7 days of the\nincident.\nb. Annual reporting of number of devices shipped shall be\ndue no later than March 1st of every year that the permit\nis active. This annual repoit shall be submitted to\nspecialpermits@dot . gov . Failure to report could lead to\nsuspension and/or termination of this special permit.\nIssued in Washington, D.C.:\n,,~ r) _L\n~ \\-7\n. ::: ✓ \\\nfor William Schoonover\nAss ociate Administrator for Hazardous Materials Safety\nAddress all inquiries to: Associate Administrator for Hazardous\nMaterials Safety, Pipeline and Hazardous Material Safety\nAdministration, U.S. Department of Transportation, East Building\nPHH-30, 1200 New Jersey Avenue, Southeast, Washington, D.C.\n20590.\nCopies of this special permit may be obtained by accessing the\nHazardous Materials Safety Homepage at\nhttp : //hazmat . dot.gov/sp app/special permits/spec perm index . htm .\nPhoto reproductions and legible reductions of this special permit\nare permitted. Any alteration of this special permit is\nprohibited.\nPO: TG\n\n<<<PAGE 9>>>\n\nContinuation o f DOT-SP 20600 (3 rd Rev.)\nPage 6\nOctober 30, 2018\nAppendix 1 - Authorized devices\nStat- X 30 E (P/N 15100); Stat-X 60 E (P/N 15110); Stat-X 100 E (P/N\n15120); Stat- X 250 E (P/N 15130); Stat-X 500 E (P / N 15140); Stat-X\n1000 E (P/N 15150); Stat-X 1500 E (P/N 15160); Stat-X 2500 E (P/N\n15170); Stat-X 30 T (P/N 15300); Stat- X 60 T (P/N 15310); Stat-X\n100 T (P/N 15410); Stat-X 250 T (P/N 15510); Stat-X 500 T (P/N\n15610); Stat-X 1000 T (P/N 15710); Stat-X 1500 T (P/N 15810); Stat- X\n2500 T (P / N 15910); Stat- X 30 MT (P / N 1 5301) ; Stat-X 60 MT (P/N\n15311) ; Stat- X 100 MT (P/N 15411); Stat-X 250 MT (P/N 15511); Stat-\nx 500 MT (P/N 15611); Stat- X 1000 MT (P/N 15711); Stat-X 1500 MT\n(P/N 15811); Stat-X 2500 M T (P/N 15911); Stat- X 30 ME (P/N 15500);\nStat-X 60 ME (P/N 15510); Stat-X 100 ME (P/N 15520); Stat-X 250 ME\n(P / N 15530); Stat-X 500 ME (P / N 15540); Stat- X 1000 ME (P / N 15550);\nStat- X 1500 ME (P / N 15560) ; Stat-X 2500 ME (P/N 15570), (11700),\n(11855), (11895), (11935), (11705), (11860), (11900), (11940),\n(11740), (11865), (11905), (11945), (11710), (11870), (11910),\n(11950), (11000), (11100), (11200), (11300), (11010), (11110),\n(11210), (11310), (11020), (11120), (11220), (11320), (11030),\n(11130), (11230), (11330), (15140), (15610), (15611), (15540),\n(15150), (15710), (15711), (15550), (15160), (15810), (15811),\n(15560), (15170), (15910), (15911), (15570), (11690), (11875),\n(11915), (11955), (11770), (11880), (11920), (11960), (11800),\n(11885), (11925), (11965), (11850), (11890), (11930), (11970),\n(11040), (11140), (11240), (11340), (11050), (11150), (11250),\n(11350), (11060), (11160), (11260), (11360), (11070), (11170),\n(11270), (11370)\nIf any of the listed devices are initiated in a manner that is\nnot thermal or electrical, they are excluded from transport under\nthe terms of the specia l permit.\n\n<<<PAGE 10>>>\n\nHAZMAT SAFETY CONSULTING, LLC\nDecember 20, 2017\nAssociate Administrator for Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\nAttention: Energetic Materials PHH-32\n1200 New Jersey Avenue, SE\nEast Building, 2nd floor\nWashington, DC 20590-0001\nSubject: Emergency Application for Special Permit\nFireaway Inc. (\"Fireaway\") requests that the Pipeline and Hazardous Material Safety\nAdministration (\"PHMSA\") consider this application for a special permit and also ~equests that\nthe application be considered for emergency processing on the basis of the justification\nprovided herein.\nWe believe that classifying our fire suppression safety articles as \"Safety Devices, UN 3268 is\nappropriate. We believe that since the product we are addressing is an article as opposed to a\nsubstance, that it is used in vehicles and that it acts much like an airbag that the UN 3268\nclassification is most appropriate. We are providing a copy of the results of the Test Series 6(c)\ntesting that demonstrates no explosion of the device, no fragmentation of device casing or\npressure receptacle, and no projection hazard nor thermal effect which would significantly\nhinder fire-fighting or emergency response efforts. In this application, we explain why the\ncriteria in the 6c test is not entirely appropriate for our device.\nFireaway Inc.\n,:;,Qi:;') i:l':llrcr Dn-::::1rl\nwww. statx.com\n\n<<<PAGE 11>>>\n\nTABLE OF CONTENTS\nApplicant Information ..................................................................................................................... 1\nApplicant Name, Address & Principal Place of Business ................................................................ 1\nDesignated Point of Contact .......................................................................................................... 1\nCompany CEO & DUNS Identifier ................................................................................................ .. .. 1\nDesignated Agent for Service .......................................................................................................... 1\nEmergency Processing ..................................................................... ...... .................. ...... ............................ 1\nHazardous Materials Registration .................................................................................................. 1\nLocations Where Special Permit Will be Used ........................................................................................ 1\nDescription of Special Permit ....................... ............................................................................................ 1\nRegulations from Which Applicant Seeks Relief ............................................................................. 2\nProposed Modes of Transport ........................................................................................................ 3\nIdentification and Description of Each Shipment ........................................................................... 3\nPackage Handling Procedures ............................................................................................. ............ 3\nPackaging Description & Specifications .......................................................................................... 3\nBasis for Relief ............................................................................................................................................. 3\nSpecial permit Use and Estimated Volumes ................................................................................. .......... 5\nShipper/Carrier Status ............................................................................................................................... 5\nEquivalent Level of Safety Justification ....................................... .............................. ........................... ... 5\nEmergency Processing ............................................................................................................................... 5\nConclusion ........................ ................................................... ........................................................................ 6\nATTACHMENTS\nAttachment 1: U.S. DOT Classification of Explosives, Fourth Revision, September 21, 2017\nAttachment 2: U.S. DOT Classification of Explosives, First Revision, September 5, 2008\nAttachment 3: Safety Data Sheets for Products Competing with Fireaway's Products\nAttachment 4: EPA Risk Assessment Final Report, October 9, 2014\nAttachment 5: Test Series 6(c)results\nII\n\n<<<PAGE 12>>>\n\nEmail: brichard@hazmatsafety.com\nThis request is made on behalf of:\nKeath E. Young\nChief Financial Officer\nFireaway Inc.\n5852 Baker Road\nMinnetonka, MN 55345\n952-935-9745 (office)\n952-847-4650 (direct)\nE-Mail Address: kyoung@statx.com\nCompany CEO & DUNS Identifier:\nGonzalo Lopez-Davila\nChief Executive Officer\n952-935-9745 (office)\n952-847-4670 (direct)\nE-Mail Address: gdavila@statx.com\nDUNS #: 61-483-3700\nDesignated Agent for Service:\nNot applicable. The company is based in the United States.\nRequest for Emergency Processing per §107.117:\nFireaway is requesting emergency processing in accordance with §107.117(a)(2) and (c), on the\nbasis of significant economic loss and immediate national security purposes. Fireaway\nproduces the only aerosol fire suppression system that is 100% manufactured in the United\nStates. The basis for this requested Emergency Special Permit is to allow Fireaway's Products to\nreach their destinations in an expedient manner and to achieve global harmonization as\nrequired by the Hazardous Materials Transportation Act, for our exports. Fireaway exports over\n755 of the Products, which are wholly manufactured in the United States, to multiple countries\nin all continents.\nSeveral foreign-based manufacturers make equivalent products to Fireaway's Products.\nThose competitors import and distribute their products as Class 9, Class 5.1, or Class 4.1\ncreating an uneven playing field and driving both U.S. and foreign customers to the\nproducts manufactured outside of the United States. Our foreign competitors' Safety\n1\n\n<<<PAGE 13>>>\n\nData Sheets identifying these classifications are included at Attachment 3. The\nrequested Special Permit will level this playing field, help achieve global harmonization\nin the screening and treatment of the products upon import/export, all while assuring\nthe safety of the products during transport.\nEmergency processing is necessary for immediate national security reasons and to prevent\neconomic loss. Fireaway's fire extinguishing products are distributed world-wide, including to\nthe U.S. military for use on MATV vehicles deployed in combat and non-combat zones,\nprotecting the lives of our military personnel. The fire extinguishing products need to reach our\ncombat personnel as expediently as possible to protect lives and suppress fires. In addition,\nFireaway will suffer economic harm if a Special Permit is not issued allowing it to ship under the\nClass 9 designation.\nHazardous Materials Registration:\nU.S. DOT Registration Number: 062816550099YA. HM Company ID: 104261\nLocations Where the Special Permit will be Used\nFireaway offers its packages for shipment from its manufacturing facilities located at 5852\nBaker Road, Minnetonka, MN and 1006 2nd Street, Area J, Camp Minden, Minden LA .\nAdditionally, the products will be shipped from authorized dealers.\nDescription of Special Permit\nFireaway submits this emergency application for a Special Permit authorizing the \"manufacture,\nmark, sale and use\" (MMS) of its fire extinguishing and suppression articles for transporting\nthem under a classification that will allow for expedient shipping and handling throughout the\nworld, or, in other words under a classification other than explosives. Emergency processing is\nnecessary in this case for immediate national security and safety reasons as described in\nparagraph 15 below. Specifically, Fireaway requests an Emergency Special Permit to ship,\ndocument, mark, label and placard using the entry \"UN 3268, Safety Devices, Class 9\".\nRegulations Which Applicant Seeks Relief:\nFireaway seeks relief from the classification of its fire extinguishing products as Division 1.4S\narticles. The basis for this request for appropriate classification under the HMR is as follows:\n-the products addressed are articles as opposed to substances;\n-the articles are clearly safety devices;\n-they should be excluded form Division 1.4S on the basis that they are not intended to function\nwith an explosive or pyrotechnic effect; and\n-that the UN 3268 classification is most appropriate.\nSpecial Provision 280 which is assigned to the entry for Safety Devices states: \"This entry\napplies to safety devices for vehicles, vessels or aircraft, e.g. air bag inflators, air bag modules,\nseat-belt pretensioners, and pyromechanical devices, which contain dangerous goods of Class 1\nor of other classes, when transported as components parts and if these articles as presented for\n2\n\n<<<PAGE 14>>>\n\ntransport have been tested in accordance with Test Series 6(c) of Part 1 of the Manual of Tests\nand Criteria, with no explosion of the device, no fragmentation of device casing or pressure\nreceptacle, and no projection hazard nor thermal effect which would significantly hinder fire-\nfighting or emergency response efforts in the immediate vicinity.\nAn information paper \"UN/SCETDG/52/INF.32 - (COSTHA) - What constitutes a SAFETY DEVICE,\nUN3268\" has been submitted to the 52nd session of the UN Sub-Committee of Experts on the\nTransport of Dangerous Goods which opens the question of what is included under this\ndesignation . We believe our device fits the description for being considered a safety device.\nWe have had discussions with several members of the PHMSA staff who support the view that\nour product can be shipped in the UN 3268 Safety Device entry.\nIn evaluating whether Fireaway's articles can be excluded from Class 1 the most important\nissue to consider is that they are NOT intended to produce a practical explosion or pyrotechnic\neffect.\nProposed Modes of Transport:\nThe packages will be transported by highway, rail, air and water.\nIdentification and Description of Each Shipment:\nFireaway requests that it be allowed to classify these materials for purposes of transport as:\nI Safety Devices I UN3268\nPackage Handling Procedures:\nThe Products will be transported by highway, rail, air and water following guidelines listed on\nthe Safety Data Sheet.\nPackaging Description & Specifications:\nThe packaging will be consistent with 49 CFR §173.166. Fireaway does not request relief from\nor propose to modify any packaging requirements.\nBasis for Relief:\nFireaway produces the only aerosol fire suppression system that is 100% manufactured in the\nUnited States. The device is clearly a \"Safety Device\". The basis for this requested Emergency\nSpecial Permit is to allow Fireaway's Products to reach their destinations in an expedient\nmanner and to achieve global harmonization as required by the Hazardous Materials\nTransportation Act, for our exports. Fireaway exports over 75% of the Products, which are\nwholly manufactured in the United States, to multiple countries in all continents. Several\nforeign-based manufacturers make equivalent products to Fireaway's Products. Those\ncompetitors import and distribute their products as Class 9, Class 5.1, or Class 4.1, creating an\nuneven playing field and driving both U.S. and foreign customers to the products manufactured\noutside of the United States. Our foreign competitors' Safety Data Sheets identifying these\n3\n\n<<<PAGE 15>>>\n\nclassifications are included at Attachment 3. The requested Special Permit will level thes\nplaying field, help achieve global harmonization in the screening and treatment of the Products\nupon import/export, all while assuring the safety of the Products during transport.\nTechnical points why Fireaway's fire extinguishing articles should be excluded from Class 1:\na. The Fireaway Stat-X/Aero-K aerosol fire suppression system is an innovation that has the\nprinciple purpose of serving as a safety device and saving lives. It is used in vehicles as required\nby special provision 160 of the HMR.\nb. The finished assembled articles are sold as USA origin products and shipped domestically and\nto global markets. 75% of total sales are products shipped overseas to foreign ports.\nc. Fireaway is seeking a Special Permit for reclassification as \"not Class 1\". We received a\nsuggestion from the US DOT Special Permits and International Standards groups that Class 9\nSafety Devices is possible and practical.\nd. The aerosol fire suppression technology is recognized as a distinct fire extinguishing\ntechnology from all other fire extinguishing technologies under NFPA 2010, Standard for Fixed\nAerosol Fire-Extinguishing Systems. Under NFPA 2010, the specific description for Stat-X/Aero-K\nproducts is listed as Condensed Aerosol agents. Definition: Condensed Aerosol, an extinguishing\nmedium consisting of finely divided solid particles, generally less than 10 microns in diameter,\nand gaseous matter, generated by a combustion process of a solid aerosol-forming compound.\ne. To relate the test results of the SMSI report with regards to obscuration, it must be\nunderstood that the fire suppressant component is the solid particle component of the aerosol\ndischarged from the article. These micro-particles are not combustible \"smoke\" that results\nfrom a typical pyrotechnic combustion or explosion, but alkali metal salts such as potassium\ncarbonate K2CO3 and potassium bi-carbonate KHCO3. These are NOT the same chemicals as\nthe original potassium nitrate, DCDA, and organic resin that formed the original pellet classed\nas 1.4G. They are also NOT SMOKE as the US DOT classed as 1.4S substances or articles,\nincluding air bag inflators or seat belt pre-tensioners.\nf. The aerosol fire suppressant extinguishes flames where the micro-particle solids come into\ncontact with the flame as a total flooding system. The thermal decomposition of the aerosol\npotassium based particle disrupts the combustion process forming the flame where the\npotassium radical is freed from the aerosol particle and bonds with the flame free radicals. This\ncontinuous reaction between the dense cloud of aerosol surrounding the flame, depopulates\nthe available flame free radicals in the combustion process causing the flame to snuff out and\nextinguish. In other words, this fire suppression agent interferes with the chemical chain\nreactions that sustains combustion and flame.\ng. The SMSI light transmission test is measuring the density of this aerosol fire suppressant\ncloud. The lower the density of this cloud, the less efficient the total flooding system would be\nto extinguish the fire. For this technology to PASS the obscuration test, the system would FAIL\nas a fire extinguishing system. Consequently, it is difficult to pass the obscuration test in the\nSM SI/US DOT test protocol.\nh. NFPA 2010, ISO 15779, ANSI/UL 2775 are national standards recognized by several US\nFederal agencies including the US EPA, US DOT, NASA, DOE, and US State fire codes and\nbuilding codes nationwide. All federal or state agencies that recognize or use condensed\n4\n\n<<<PAGE 16>>>\n\naerosol products recognize that these are articles that use a pyrotechnic substance that\ngenerate total flooding aerosol clouds and warm propellant gases discharged from these\ndevices.\ni. What the SMSI report defines as a risk to public safety, is UL listed as safe for use as a fire\nextinguisher and US EPA SNAP listed as a total flooding fire suppression agent approved for\npublic exposure in normally occupied areas.\nj. Consequently, these aerosol products are not manufactured by Fireaway with a view to\nproducing a practical explosive or pyrotechnic effect. In other words, this article which is type\ntested and complies with NFPA, ISO, and UL standards is not intended to be sold as an explosive\nbut as a fire suppressant product oriented to the improvement of the public safety.\nk. The aerosol cloud characteristics discharged from the article observed by the US DOT that\nthey claim defines this product as a Class 1.4S explosive based on current regulations does not\nallow for this innovation that is recognized by other Federal agencies as a non-explosive by\ntheir definition.\nI. The Special Permits group had commented during our visit to their Washington DC office that\nthe UN and Federal regulations could be revised to recognize this pyrotechnic technology as a\ndistinct technology from other explosives such as fireworks and explosives for mining, military,\nand propellant technologies. The UN Transport of Dangerous Goods Sub-Committee is also\naddressing this matter.\nm. We have type approval by independent agencies that our \"smoke\" complies with fire\nextinguishing performance requirements to those agency standards. Those agencies warrant\nthat our product is beneficial and effective for the protection of the public and property.\nn. Nearly 320,000 of these articles have been shipped domestically in the USA and to foreign\nports and destinations all over the world over the world since 2005 {12 years) . There has never\nbeen any accidental discharge nor fire damage caused by any packaged unit by any\ntransportation carrier.\no. There has never been any claim by any transportation carrier regarding the adequacy of our\npackaging.\nSpecial Permit Use and Estimated Volumes:\nIt is difficult to estimate with any degree of certainty the number of shipments that will occur\nunder this Emergency Special Permit. Fireaway typically ships between 600 - 800 orders of its\nfire suppression equipment containing various quantities of the Products over a period of six\nmonths. Some shipments may contain one unit, and others may contain hundreds of units of\nProduct.\nShipper/Carrier Status:\nFireaway will be acting as a manufacturer and shipper (offerer), offering the Products for\nshipment.\nEquivalent Level of Safety Justification:\nFireaway produces the only aerosol fire suppression system that is 100% manufactured in the\nUnited States, and our product Stat-Xis the only condensed aerosol fire suppressant carrying\nthe United States Environmental Protection Agency's approval for normally occupied spaces.\n5\n\n<<<PAGE 17>>>\n\nEPA's risk assessment on the Products, dated October 9, 2014 found that these Products are\nsafe when activated in confined spaces. See Attachment 4.\nThe 1.4S (explosives) classification causes an undue hardship on our U.S. based manufacturing\nbusiness by increasing costs, delays and even preventing the Products from being shipped to\nour customers around the world, thereby forcing customers to look to our competitors for\nsolutions. Some carriers refuse to take any Class I packages. Certain modes of transport, such\nas ship or plane, may refuse to carry the Products when classified as a 1.4S explosive. Certain\ncountries require special permits and incur customs delays when importing a l.4S labelled\npackages. This significantly delays the shipment of the Products and increases the expense, all\nat the expense of the U.S.-based manufacturer and to the benefit of our foreign-based\ncompetitors.\nApproximately 250,000 Stat-X generators have been produced and shipped worldwide since\n2006, without a single transportation incident. And, since 2008, Fireaway has manufactured,\nmarked and offered to ship the Products under the 4.1 Classification, understanding that it was\napplicable. Fireaway was inspected by PHMSA in September of 2011, and no issue was raised\nconcerning classification of the Products. There is no difference in the packaging of the\nProducts, whether classified as 1.4S or 9. Therefore, there is no increased risk in transporting\nthe product as proposed in this application. The Products are designed to improve safety for\nindividuals and property, and to extinguish fires. Thousands of generators have been supplied\nto the U.S. Army, many for use on MATV's vehicles deployed in combat zones protecting lives of\nour military personnel. A l.4S classification will slow the ability to ship replacements, or spare\ngenerators, to the U.S. Army.\nHundreds of generators have been supplied to the US Navy (operating near Japan) for use on\ntheir landing craft utility (LCU). A l.4S classification will slow the ability to ship replacements,\nor spare generators to the U.S. Navy. The Products have a life of ten years, making them a\nviable solution for primary and secondary fire suppression systems in many applications, and\nmeaning many early customers need to replace these units.\nOur product is very similar to a vehicle airbag and hundreds of millions of these have been\ntransported safely under a Class 9 designation . We are providing a copy of the results of the\nTest Series 6(c) testing that demonstrates no explosion of the device, no fragmentation of\ndevice casing or pressure receptacle, and no projection hazard nor thermal effect which would\nsignificantly hinder fire-fighting or emergency response efforts.\n6\n\n<<<PAGE 18>>>\n\nConclusion:\nIn conclusion, it is requested that this application be reviewed and that an EX Approval be\ngranted as requested. We appreciate your consideration of this Approval application and look\nforward to hearing from you . If you have any questions please contact Robert Richard using the\ncontact information provided above.\nRespectfully submitted,\nRobert A. Richard\n7\n\n<<<PAGE 19>>>\n\nDangerous Goods Transport Consulting, Inc\n15108 Red Clover Drive\nRockville, Maryland 20853\n301-929-1668\nCell 301-356-2096\nr. wvbenga@comcast.net\nfwybenga@dg-transportation.com\nApril 1 7, 2019\nAssociate Administrator for Hazardous Materials Safety\n(Attention: Approvals, PHH-32)\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\nEast Building, 2nd Floor, E23-406 1200\nNew Jersey Avenue, SE.\nWashington, DC 20590-0001\nDear Mr. Kelly:\nThis is to request clarification as to whether PHMSA considers the provisions in Special\nPermit 20600 as being authorized when transport is accordance with the ICAO Technical\nInstructions on the Safe Transport of Dangerous Goods by Air (Technical Instructions or\nTl) or the IMO International Maritime Organization International Maritime Dangerous\nGoods Code (IMDG Code). Review of the application submitted to PHMSA (attached)\nwould indicate that the applicant sought relief in the case of both HMR and international\nregulations yet Special Permit 20600 (attached) is not clear as to whether PHMSA\nprovided relief in the case of international requirements. The lack of clarity of the special\npermit, presents potential safety and compliance concerns, including that articles that\nmeet explosives classification criteria other than 1 .4S and thus prohibited from transport\non passenger aircraft may inadvertently be placed on foreign and U.S. registered\npassenger aircraft.\nWhile this letter focuses on air transport, I believe some of the points below are also\nrelevant to transport in accordance with the IMDG Code as well as other international\nregulations and other national regulations.\nBackground\nThe following is provided as background:\n\n<<<PAGE 20>>>\n\nSpecial Permit 20600\nBased on the application, the Special Permit covers over 755 fire extinguishing and\nsuppression articles (devices)1. Under SP 20600:\n1. The devices are authorized to be transported as \"UN3268 Safety Devices,\nelectrically initiated\" even though they are not used for vehicles, vessels or\naircraft to enhance safety to persons as required in 173 .166 of the DOT Hazardous\nMaterials Regulation and also as required by Special Provision A 115 of the ICAO\nTI (SP280 of the UN Model Regulations); and they are exempt from the\nrequirement to be electrically initiated as implied in the shipping description\nshown in the HMR and the ICAO TI (see paragraph 4 of SP 20600).\n2. The devices are restricted to transport by \"cargo aircraft only\" (CAO) even\nthough the HMR and the ICAO TI authorize transport of UN3268 devices on both\npassenger and cargo aircraft (see paragraphs 2(a) and 9 of SP 20600).\n3. The special permit must accompany each shipment; but there is no stated\nrequirement for the shipper to provide any special notification such as a shipping\npaper warning or a CAO label to notify an air carrier that the devices may only be\ntransported on cargo aircraft only (see paragraph 10 of SP20600).\n4. In approving the devices for classification as UN3268, it appears PHMSA\noverlooks the criterion f","truncated":true,"body_characters":49145}