{"operation":"document","citation":"20-0015","title":"Onepoint4 Ltd. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2020-05-28","effective_on":null,"summary":"20-0015 response to Onepoint4 Ltd. concerning 172.101, 173.50, 173.56, 173.59, 173.61.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0015.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0015.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0015","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/74046/200015.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMay 28, 2020\nP. Shelley BEng (Hons), MISEE, MIExpE\nManaging Director\nOnepoint4 Ltd.\n75 Chevington Green,\nMorpeth, Northumberland\nNE65 9AX United Kingdom\nReference No. 20-0015\nDear Mr. Shelley:\nThis letter is in response to your January 27, 2020, letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the classification\nof explosives. Your letter relates to a previously issued Letter of Interpretation (LOI) Reference\nNo. 18-0141.\nWe have paraphrased and answered your questions as follows:\nQ1: You note that LOI 18-0141 states that thermites and thermates provide a “practical\npyrotechnic effect” as defined in the United Nations (UN) Manual of Test and Criteria.\nYour understanding is that any thermite-based substance is potentially an explosive as\ndefined in § 173.50. You ask whether the manufacturer must obtain an approval from the\nPipeline and Hazardous Materials Safety Administration (PHMSA) for the shipment of\nany thermite-based substance or article(s).\nA1: The answer is yes. Materials designed with pyrotechnic intent are required to be tested in\naccordance with the HMR. As specified in § 173.56, classification of Class 1 (explosive)\nmaterials is the responsibility of the person who offers a new explosive for transportation\nin commerce and is subject to PHMSA's approval. Section 173.56 specifies that the\nperson requesting approval of the new explosive must submit to the Associate\nAdministrator of the Office of Hazardous Materials Safety a report from a DOT-approved\nexplosives test laboratory on the examination and recommended classification of the\nexplosive, which includes a recommended shipping description, division, and\ncompatibility group. If PHMSA finds that the approval request meets the regulatory\ncriteria, the explosive will be approved in writing and assigned an EX number.\nQ2: You ask whether the HMR provide any specific exemptions for the shipment of\nthermites, thermates, or articles containing thermite or thermate substances without\nobtaining a competent authority approval.\n\n<<<PAGE 2>>>\n\nA2: The answer is no. Thermites, thermates, or articles containing thermites or thermates that\nhave a pyrotechnic intent are required to undergo explosives testing in accordance with\nthe HMR. See A1.\nQ3: You ask about a thermite substance or thermite containing article that was developed\nbefore the current format of Department of Transportation (DOT)-approved test\nlaboratories came into existence. These thermites or thermite containing articles were\nself-classified as “Not Class 1” materials. You ask whether there are cases where\nmodifications or replacements of older thermite or thermate products could be\n“grandfathered” in and not be required to undergo the same examination or testing for\napproval as a totally new product.\nA3: The answer is no. The materials you describe would need to be examined to determine if\na competent authority approval is required. See A1.\nQ4: You have a thermite substance that was developed prior to the current format of DOT\napproved test laboratories came into existence. This thermite substance was later mixed\nwith additional substances. You ask whether this is a clear trigger point for the\nmanufacturer to undertake examination of the new substance and containing article(s)\nunder § 173.56.\nA4: The answer is yes. Under § 173.56(a)(2), any change to an explosive in the formulation,\ndesign, or process so as to alter any of the properties of the explosive would require\nexamination and meet the definition of a “new” explosive unless an agency listed in\n§ 173.56(b) has determined, and confirmed in writing to the Associate Administrator, that\nthere are no significant differences in hazard characteristics from the explosive\npreviously approved.\nQ5: You note that in LOI 18-0141, PHMSA stated that “extensive discussions” have taken\nplace surrounding the transport classification of thermites and thermite derivatives. You\nask PHMSA to clarify the discussions that have taken place and whether these\ndiscussions have led to any exception, conclusion, or recommendation other than\ndetermination that thermites provide a “practical pyrotechnic effect.”\nA5: PHMSA continues to have regular and ongoing discussions with our explosive test labs,\nforeign competent authorities, and our regulated stakeholders, but does not have\nadditional information at this time. However, it should be noted that PHMSA has\ninitiated a long-term study on thermite and thermate materials to determine the hazards\nand risks in transportation. Additional information on thermite research conducted by\nPHMSA can be found at https://www.phmsa.dot.gov/hazmat/reports/energetic-properties-\nthermite.\nQ6: When conducting Test Series 6 of the UN Manual of Test and Criteria, you ask whether it\nis required that any substance and/or article testing of the packaged product include other\nenergetic articles that are being shipped within the same box.\n\n<<<PAGE 3>>>\n\n3\nA6: Test Series 6 requires explosives to be examined in the configuration as intended for\ntransport. For approved substances and articles, limited changes to the configuration may\nthen be authorized as mixed packagings under § 173.61(e).\nQ7: If a manufacturer, company, or individual makes changes to a thermite substance or\nthermite containing article that a DOT test laboratory determined to be “not Class 1,\n” you\nask whether such changes render any prior approval or determination as “not Class 1” to\nbe invalid.\nA7: The answer is yes. Any modified material that exceeds the parameters authorized by a\nprior approval meets the definition of a “new” explosive under § 173.56(a). See A4.\nQ8: You describe a manufacturer that has self-classified a substance as Class 4.1 either by\ncarrying out Test Series 1 and 2 of the UN Manual of Test and Criteria, or by defining the\nsubstance as already listed in the Hazardous Materials Table (HMT) as a “Flammable\nSolid.” You ask whether this allows the manufacturer to avoid Test Series 3, 4, and 6 of\nthe UN Manual of Test and Criteria and the need to seek DOT approval prior to shipping\nthe substance or articles.\nA8: The answer is no. Manufacturers may not self-classify substances that are provisionally\nclassified as a Class 1 explosive materials. The DOT-approved laboratories will\ndetermine which UN Test Series need to be conducted to make a hazard class\nrecommendation in accordance with the UN Manual of Test and Criteria.\nQ9: You ask whether you may self-classify a new or modified thermite as a Class 4.1,\n“Flammable Solid” or must a DOT-approved Test Laboratory commence examination of\nthe substance, article, or packaged substance with Test Series 3, 4 and 6 of the UN\nmanual test and criteria.\nA9: The answer is no. All Class 1 explosives require a competent authority approval and are\nnot eligible for self-classification. The explosives test lab would determine the\nappropriate test configuration. See A1 and A8.\nQ10: You note that a manufacturer has previously self-classified a thermite related substance\nas Class 4.1 either by carrying out Test Series 1 and 2 of UN Manual of Test and Criteria\non the substance only, and thereby self-determining exclusion from Class 1, or by\ndefining the substance as already listed on the Dangerous Goods List as a Flammable\nSolid. You ask whether there is a time limit that would allow the manufacturer to\npermanently avoid Test Series 3, 4 and 6 of the UN manual test and criteria and the need\nto seek DOT approval for the substance or articles prior to shipment.\nA10: The answer is no. See A8 and A9.\nQ11: You ask whether an explosives approval of a “not Class 1” material is only relevant to the\nentity or person to whom it is addressed. That is, if another entity manufactures the same\n3\n\n<<<PAGE 4>>>\n\nsubstance or article, does the substance or article still meet the definition of a “new\nexplosive” and therefore require its own approval under § 173.56.\nA11: The answer is yes. Under § 173.56(a)(1), the new manufacturer is producing a new\nexplosive and requires its own competent authority approval.\nQ12: It is your understanding of the HMR that explosives approved and manufactured by\ndifferent entities must seek their own EX number approval. You describe a scenario\nwhen an employee (particularly a senior employee such as a president or CEO) of an\nentity manufacturers a substance and has received a “not Class 1” determination from\nDOT. You ask whether that employee can subsequently take that “not Class 1”\ndetermination to another entity and allow the second entity to manufacture and self-\nclassify the substance using the previous determination.\nA12: The answer is no. See A11.\nQ13: You cite the definition for “igniters” and “ignition, means of” in § 173.59 of the HMR.\nYou ask, when classifying an article designed to initiate a thermite or thermate substance,\nwhether PHMSA would expect the device article initiating another device article\ncontaining a thermite or thermate substance to be called an igniter and thus require testing\nby a DOT-approved laboratory. You also ask whether the initiating article would meet\nthe description of a Class 1 Igniter as listed in the § 172.101 Hazardous Materials Table.\nA13: Any article used to initiate a thermite article or substance would need to be evaluated to\ndetermine whether it meets any hazard class definition in accordance with the HMR. If\nthe initiating article contains any explosive or pyrotechnic substance, meets the definition\nof an igniter as described in such as an igniter as defined in § 173.59, or otherwise meets\nthe definition of an explosive in § 173.50, then it must be approved in accordance with\n§ 173.56.\nQ14: You describe an article that contains a mixture of substances which are determined to\nmeet a hazard class other than Class 1. You note that when combined the substances can\nproduce a pyrotechnic effect. You ask whether such an article is automatically excluded\nfrom the hazardous materials regulations as an explosive.\nA14: The answer is no. The definition of an explosive or pyrotechnic substance in § 173.50(a)\nis not based upon the properties of its individual ingredients, but the formulation as a\nwhole. Any article containing an explosive substance is provisionally in Class 1 and\nmust be approved in accordance with § 173.56. See A1.\nQ15: You state that you have a substance contained within an article that is described by a\nmanufacturer as a “propellant.” You ask whether PHMSA expects the substance and any\narticle containing the substance to undergo explosives testing in the UN Manual of Tests\nand Criteria (i.e. test series 3 and 6 for the substance and test series 4 and 6 for the\narticle).\n\n<<<PAGE 5>>>\n\n5\nA15: The answer is yes, provided that the substance meets the definition of an explosive\nmaterial as described in § 173.50. If any article contains an explosive substance, it must\nbe approved in accordance with § 173.56. See A1.\nQ16: You describe a situation where a hazard class recommendation for a substance or article\nis submitted by a DOT-approved laboratory to PHMSA. You ask whether an “EX”\nnumber will be assigned by PHMSA, regardless of whether the approval is issued for\nClass 1 or Class 4.1.\nA16: The answer is yes. PHMSA will issue an approval with an EX number in accordance\nwith § 173.56. The EX number must then be utilized for hazard communication (e.g.,\nmarkings, labels, or shipping papers) as required by the HMR.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n5\n\n<<<PAGE 6>>>\n\nJAN 2 7 2020\nAndrews\n20-0015\nOnePoint4 Ltd.,\n75 Chevington Green,\nMorpeth,\nNorthumberland\nNE65 9AX.\nUnited Kingdom.\nMobile: +44 (0)7920460717\nE-mail: enqiries@OnePoint4.co.uk\n20th January 2020 (Q)\nOur ref: Technical Note 200120-DOT\nSupplemental Questions for the US Department of Transport, Pipeline and Hazardous\nMaterials Safety Administration\nReferences:\n1. US Department of Transport, Pipeline and Hazardous Materials Safety Administration, 18-\n0141, dated May 09 2019.\n2. Explosives, Sixth, Completely Revised Edition, Meyer et al 2007.\n3. Military and Civilian Pyrotechnics, Dr. Herbert Ellern, 1968.\n4. Encyclopedia of Explosives and Related Items, Volume 9, U.S. Army Research and\nDevelopment Command, Picatinny Arsenal, New Jersey, USA, 1980\nDefinitions:\n1. 2. Thermite, An incendiary composition consisting of 2. 75 parts of black iron oxide\n(ferrosoferric oxide) and 1.0 part of granular aluminum2\n. A mixture that produces very high\ntemperature; derived from the coined and proprietary word Thermit, [through the] reduction\nof the oxides or respective salts with Aluminum, both in more-or-less finely dispersed state3\n•\nThermate, an incendiary filler consisting of Thermite with additives3 ; the general name given\nto a number of mixtures of Thermite and pyrotechnic additives, several of which were\ndeveloped before and during WNll4\n.\nDear Dirk Der Kinderen,\nFirstly let me thank you for your reply, referenced1 above, to my earlier letter, the response is\nmuch appreciated. It was most helpful in increasing my understanding of the US approvals\nsystem and the appropriate legislation. Upon discussing your responses, I have some\nsupplementary questions as listed below which I hope you can help me with.\nAs DOT will be well aware, extractive industries make wide use of explosives and associated\nenergetic products. I write to you to further understand how Thermites and Thermates are\nrequired to be classified for transport which is of interest to clients in the oil and gas sector. I am\nspecifically interested in those substances which are classified as Thermite but which then are\nmodified to include gas generating substances such as Teflon (PTFE) and accelerants such as\nMagnesium, regardless of their quantity, as shown below in Table 1 Thermate Formulations.\nTable 1 Thermate Formulations\nIngredient Name CAS No. Mixture 1 Mixture 2\nIron Oxide 1309-37-1 >55% <35%\nAluminum 7429-90-5 <35% <35%\nPolvtetrafluoroethvlene (PTFE) 9002-84-0 <35% <15%\nMagnesium 7439-95-4 <10% <5%\nMagnesium Sulfate 7487-88-9 - <25%\nPolvetvhvlene Tereohthalate 25038-59-9 - >15%\nAcetal Plastic 24969-26-4 - <30%\n\n<<<PAGE 7>>>\n\nI would also like to understand if a Thermite or Thermate substance and a containing\ndevice/article can automatically be excluded from testing under the HMR, §173.57 and §173.58\n(specifically UN \"Class 1\" Test Series 3, 4 and 6).\nThe questions are specifically made with reference to the DOT recent Letter1\n, accordingly:\nQ1 Reference 1 states that 'Thermites and Thermates would both provide a \"practical\npyrotechnic effect\" as defined by the UN Manual'. As a result my understanding is that any\nThermite-based substance is deemed an explosive by definition under HMR, §173.50 (\"The\nterm includes pyrotechnic substance or article\") and therefore the manufacturer cannot avoid\nthe tests in HMR, §173.57 and §173.58 and submission to the DOT for an approval of the\nsubstance and any article(s) which may contain the substance as shipped. Is this correct?\nQ2 Are there any exclusions relating to Thermites, Thermates or articles containing Thermite or\nThermate substances that would not require such products to receive Competent Authority\nApproval prior to shipment?\nQ3 Are there cases where modifications or replacements of older Thermite or Thermate\nproducts could be \"grand fathered\" or read-across and not be required to undergo the same\nexamination or testing for approval as a totally new product?\nFor instance, could a substance and/or containing article, having been initially developed before\nthe current format of DOT approved Test Laboratories came into existence, be \"grand fathered\"\nas \"Not Class 1\" thereby allowing the original entity to self-classify modifications to the\nsubstance and articles in which it is used if the original classification was that of a non-explosive\n(e.g. Class 4.1 Flammable Solid)?\nIf yes, can you provide further insight or information into these cases?\nQ4 If a Thermite substance was initially developed prior to the current format of DOT approved\ntest laboratories coming into existence, and, if other substances have since been mixed with\nthis Thermite substance (as mixture 1 in Table 1, which increases the energetic, pyrotechnic\nand gaseous effect of the substance and article). In your view is this a clear trigger point for the\nmanufacturer to undertake examination of the new substance and containing article(s) per the\nHMR, §173.56 and test criteria set out in HMR, §173.57 and §173.58 (UN Tests Series 3, 4 and\n6)?\nPresuming that the addition of substances such as those shown in Table 1 for mixtures 1 and 2\nare made to a Thermite composition, or if the percentages of the original or additional\nsubstances are later varied, does each set of modifications to the original and approved\nThermite composition require a new examination? Are there any exceptions that would remove\nany or all requirements for retesting under the HMR for this scenario?\nQ5 As stated in reference 1, can you clarify the \"extensive discussions\" that have taken place\nsurrounding the transport classification of Thermites (broadly defined) and Thermite derivatives\nand whether these discussions have led to any exception, conclusion or recommendation other\nthan that as you state, 'Thermites would provide a \"practical pyrotechnic effect\"?\nQ6 During Test Series 6, the UN Test Regulations require that any substance and/or containing\narticle must be packaged as it will be for shipment. Does this require that testing of the\nCompany Number: No 6544864\nRegistered In England and Wales\nVAT No 937132722\nEXPLOSIVE AND PYROTECHNIC CONSUL TAN CY, APPLICATION ANO TRAINING\n\n<<<PAGE 8>>>\n\npackaged product include any other energetic articles that are being shipped within the same\nbox?\nQ7 If the manufacturer or any other company or individual makes any changes to a substance\nor containing article (as per 04 and Q6) previously determined by the DOT to be \"not Class 1\";\ndo such changes deem any prior approval or determination as \"not Class 1\" meaningless?\nQS Conversely if a manufacturer has self-classified a substance as Class 4.1 (either by carrying\nout Test Series 1 and 2 on the substance only, and thereby allowing exclusion from Class 1, or\nby defining the substance as already listed on the Dangerous Goods List, as a Flammable\nSolid), would this allow the manufacturer to avoid Test Series 3, 4 and 6 and the need to seek\nDOT approval prior to shipping the substance or articles that utilize it?\nQ9 Is it true that a manufacturer cannot legally self-classify any new or modified Thermite to be\nClass 4.1 , Flammable Solid, but rather must select a DOT approved Test Laboratory and\ncommence examination of the substance, article or packaged substance or article with Test\nSeries 3, 4 and 6 as per HMR, §173.57 and §173.58?\nQ10 If a manufacturer has previously self-classified a Thermite related substance as Class 4.1\n(either by carrying out Test Series 1 and 2 on the substance only, and thereby self-determining\nexclusion from Class 1, or by defining the substance as already listed on the Dangerous Goods\nList, most likely as a Flammable Solid), and has been shipping it as such for some period of\ntime, is there a time limit that would allow the manufacturer to permanently avoid Test Series 3,\n4 and 6 and the need to seek DOT approval for the substance or articles that utilize it?\nQ11 Can you clarify whether an explosives approval or a determination as \"not Class 1\" given\nby DOT is only relevant to the entity or person it is addressed to? That is, if another entity or\nperson (\"Second Individual\") manufactures the same substance or article that has been\npreviously examined and approved for shipment by DOT for a different entity. Does it still meet\nthe definition of a \"new explosive\", and are they therefore required to obtain their own testing\nand approval under §173.56?\nQ12 I understand from the HMR that even if an explosive is approved and manufactured by\nother entities, any new entity choosing to manufacture that same explosive, must seek their own\nDOT EX approval. However, if an employee (particularly a senior employee e.g. President,\nCEO) of an entity manufacturers a substance and has a \"not Class 1\" determination for that\nsubstance confirmed by the DOT to that employee, can the employee subsequently take that\n\"not Class 1\" determination to another entity and allow the second entity to manufacture and\nself-classify the substance using this determination?\nQ13 To quote HMR, §173.59:\no lgniters. Articles containing one or more explosive substance used to start deflagration\nof an explosive train. They may be actuated chemically, electrically, or mechanically. The term\nexcludes: cord, igniter; fuse, igniter; fuse, instantaneous, non-detonating; fuze, igniting; lighters,\nfuse, instantaneous, non-detonating; fuzes, igniting; lighters, fuse; primers, cap type; and\nprimers, tubular.\no Ignition, means of. A general term used in connection with the method employed to\nignite a deflagrating train of explosive or pyrotechnic substances (for example: a primer for\npropelling charge, an igniter for a rocket motor or an igniting fuze).\nCompany Number: No 6544864\nRegistered ln England and Wales\nVAT No 937132TI2\nEXPLOSIVE ANO PYROTECHNIC CONSULTANCY, APPLICATION AND TRAINING\n\n<<<PAGE 9>>>\n\nWhen classifying an article designed to initiate a Thermite or Thermate substance, would you\nexpect the device initiating another device containing a Thermite or Thermate substance to be\ncalled an igniter?\nCan such a device be self-classified or should it be examined by an approved laboratory?\nDoes it fall under the classification identified for ignitors (all Class 1) in the Hazardous Materials\nTable in HMR, §172.101?\nQ14 If an article only contains a mixture of substances, which by themselves are determined to\nbe classed as something other than Class 1, but when combined produce a practical\npyrotechnic effect. Is the containing article automatically excluded from the explosives or\nhazardous materials regulations? Or does the article require testing and analysis to prove the\narticle is safe to transport?\nQ15 If a substance contained within an article is described by a manufacturer as a \"propellant\",\nwould you expect the substance and any article containing the substance to be UN Class 1\ntested (i.e. test series 3 and 6 for the substance and 4 and 6 for the article)?\nQ16 If any test reports/recommendations were submitted to the DOT that were obtained through\na DOT approved Test Laboratory on a substance or containing article which had gone through\nClass 1 testing, would an \"EX\" number be assigned by the DOT for the substance and any\ndevice (article) containing the substance, regardless of whether the result of the testing was\nClass 1 or Class 4.1?\nYours sincerely,\nMr P Shelley BEng (Hons), MISEE, MIExpE\nManaging Director\nOnepoint4 Ltd\nCompany Number: No 6544864\nRegistered in England and Wales\nVAT No 937132n2\nEXPLOSIVE AND PYROTECHNIC CONSULTANCY, APPLICATION AND TRAINING","truncated":false,"body_characters":23266}