{"operation":"document","citation":"21-0082","title":"Onepoint4 Ltd. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-12-09","effective_on":null,"summary":"21-0082 response to Onepoint4 Ltd. concerning 172.101, 173.22, 173.50, 173.56, 173.59.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0082.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0082.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0082","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76106/210082.pdf","body":"<<>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nDecember 9, 2021\nMr. Peter Shelley\nManaging Director\nOnepoint4 Ltd.\n75 Chevington Green,\nMorpeth, Northumberland\nNE65 9AX United Kingdom\nReference No. 21-0082\nDear Mr. Shelley:\nThis letter is in response to your July 29, 2021, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to Class 1 (explosive) and\nDivision 4.1 (flammable solid) materials and articles using hazardous materials. Specifically,\nyou ask for confirmation that highly energetic substances and associated articles—which are\nnormally classified and approved as Class 1 (explosive) materials—cannot be classified as\nDivision 4.1 (flammable solid) materials without proper testing and subsequent approval by\nPHMSA.\nWe have paraphrased and answered your questions as follows:\nQ1. You ask—specific to thermites and thermates and referencing your previous letters of\ninterpretation requests (Ref. Nos. 18-0141 and 20-0015)—whether a company can self-\ncertify a material as Class 4 or otherwise as non-hazardous and subsequently alter the\nmaterial or make it a component of an article without needing an approval.\nA1. As provided in § 173.22, it is the shipper’s responsibility to properly classify and describe\na hazardous material. If a material is not specifically listed by name in the hazardous\nmaterials table in § 172.101, then selection of a proper shipping name must be made from\nthe general description entries corresponding to the specific hazard class, packing group,\nand subsidiary hazards of the material. When a material meets the definition and criteria\nof a hazard class, the shipper must assign an appropriate proper shipping name and UN\nidentification number. While many hazardous material classification determinations are\nleft solely to the shippers based on classification criteria in the HMR, specific provisions\nfor certain hazard classes—such as Class 1 (explosive) materials and certain Class 4\nmaterials—require a government approval.\n\n<<>>\n\nFor example, where the assignment of Division 4.1 (flammable solid) material versus\nClass 1 (explosive) material is concerned, offerors cannot self-classify the material as a\nflammable solid if the material also meets the definition of an explosive—as provided in\n§ 173.50—which instead would require approval in accordance with § 173.56. The\nissuance of an approval indicates that a material—based on data from approved test\nlabs—has been verified as an explosive or not and meets the criteria for inclusion or\nexclusion from Class 1.\nWith regard to necessitating a new approval if the material is altered or made a\ncomponent of an article—as discussed in answer A3 below—any change to an explosive\nin the formulation, design, or process so as to alter any of the properties of the explosive,\nand any change to a material that is not an explosive but by the manner in which it was\nchanged may render it now an explosive, would require new examination and a new\napproval. However, any PHMSA-approved explosives test lab, as described in\n§ 173.56(b) may determine and confirm in writing to our Office that there are no\nsignificant differences in hazard characteristics from the material previously approved.\nQ2. You ask whether thermites or thermates must be tested for an approval, even if they are\nnot designed to function by explosion.\nA2. The answer is yes. Because of their energetic properties, thermites and thermates are\nprovisionally considered explosives until PHMSA issues an approval letter specifically\nexcluding the material from Class 1 based on testing conducted by a DOT-approved test\nlaboratory, in accordance with § 173.56.\nQ3. You refer to a report which indicates that energetic properties of certain materials may be\nmanipulated by pressing and shaping of powdered energetic material to control the\nburning surface area and burn rate (e.g., pressing and shaping into pellets/donuts by\npressure, temperature, compression, sintering, etc.). You ask whether these materials—\nafter being tested in one physical form—should be resubmitted for testing and PHMSA\napproval if they are then intended to be transported in another form or intended to be\ntransported as a component of an article.\nA3. 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 a PHMSA-approved\nexplosives test lab, as described in § 173.56(b), has determined—and confirmed in\nwriting to our Office—that there are no significant differences in hazard characteristics\nfrom the explosive previously approved.\nQ4. You ask—noting that binder(s) may add additional energetic properties to a hazardous\nmaterial such as a thermite or thermate—whether an energetic material without binder(s)\nand where binder(s) are subsequently added to the material requires re-testing and re-\napproval for classification purposes.\n\n<<>>\n\nA4. The answer is yes. See answer A3.\nQ5. You ask whether PHMSA will consider the use of binders and additives—such as\npolymers (e.g., Teflon®) and their role in combustion and sensitivity—in future testing\nof such thermite- or thermate-based substances/products.\nA5. As discussed in answer A3, every separate formulation containing thermite or thermate\nwould need to be considered on its own merit. Any previously classed thermite or\nthermate material would be considered a new explosive if a change has been made in the\nformulation, particle size, design, or process, so as to alter any of the properties of the\nexplosive, including the use of binders.\nQ6. You ask whether thermite and thermate compositions—with and without additional\nbinders and additives that contribute to the overall energetic properties of the thermite\nand thermate compositions—can be transported on civil and commercial aircraft as\nsubstances or also contained in articles, without an approval.\nA6. The answer is no. As discussed in answer A2, thermites and thermates are provisionally\nconsidered explosives. The conditions for transport by aircraft would be outlined in the\nfinal classification approval issued by PHMSA.\nQ7. You ask how distinctions in classifications are made between a Division 4.1 (flammable\nsolid) material (e.g., “UN3178, Flammable solids, n.o.s.”) and a Division 1.4G\npyrotechnic material (e.g., “UN0431, Articles, pyrotechnic”) when transported in\npackagings and when contained in articles.\nA7. Thermites and thermates, including articles containing either thermites or thermates, are\nprovisionally considered explosives (see answer A2). The classification for these\nhazardous materials is based on tests and the resulting classification recommendation\nprovided by a DOT-approved explosives test laboratory, which will result in a designated\nclassification by PHMSA under § 173.56.\nQ8. Further, you ask about Division 4.1 (flammable solid) materials that have been\ntransported prior to the implementation of PHMSA’s current approval process involving\napproved explosives test labs. You ask—regarding future shipments—if such energetic\nmaterials will be transported as part of an article, whether they will require re-testing by\nan approved explosives test lab regardless of whether the hazardous material was\npreviously deemed to be a Class 1 (explosive) material or a Division 4.1 (flammable\nsolid) material.\nA8. The answer is yes. See answers A2 and A7.\nQ9. You ask whether a thermite or thermate material that has been classified as a Division 4.1\n(flammable solid) material and then is packed into a steel tube and intended to be\ntransported would be considered an article requiring testing by an approved explosives\ntest lab because thermite and thermate both have a practical pyrotechnic effect.\n\n<<>>\n\nA9. Thermite or thermate packed in this manner may be considered an article, depending on\nthe function of the steel tube. If the tube lends itself to the function of the product, then it\nmay be classified as an article. If the thermite or thermate was excluded from a Class 1\ndetermination and is subsequently transported as an article it would require re-approval as\nan explosive. However, if the tube is part of the packaging for purposes of handling and\ntransport of the material and not a component part of an article, it may be considered\npackaging and does not have to be re-examined.\nQ10. You ask whether a thermite or thermate material packaged in an oilwell cartridge would\nnow fall under Class 1 (explosive) material or be required to undergo testing by an\napproved explosives testing lab.\nA10. Oil well cartridges are defined explosives in § 173.59. Any article meeting this definition\nrequires examination as an explosive under § 173.56.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nCasey\n21-0082\nFrom: Foster, Glenn (PHMSA)\nTo: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA)\nSubject: FW: Interpretation Final Response Letter\nDate: Friday, July 30, 2021 1:28:35 PM\nAttachments: Letter to US Director DOT PHMSA FINAL.docx\nAlice/Ikeya,\nPlease have the attached checked in as an Interp and ask the assigned Specialist to expedite a\nresponse.\nThanks,\nGlenn\nFrom: peter.shelley@onepoint4.co.uk \nSent: Thursday, July 29, 2021 12:03 PM\nTo: January, Ikeya CTR (PHMSA) \nCc: Foster, Glenn (PHMSA) ; DerKinderen, Dirk (PHMSA)\n; Andrews, Steven (PHMSA) ; Dodd, Alice\n(PHMSA) \nSubject: Re: Interpretation Final Response Letter\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nDear Ikeya,\ncould you please provide an update on the progress of any replies to the questions sent to the Hazmat\nInfo Center at Infocntr@dot.gov on the 18th August 2020.\nI have re-attached the questions to assist you in responding.\nRegards,\nPeter.\n---\nPeter Shelley\nManaging Director\nOnePoint4 Limited\n07920 460 717\nwww.onepoint4.co.uk\n\n<<>>\n\nOnePoint4 Ltd.,\n75 Chevington Green,\nMorpeth,\nNorthumberland\nNE65 9AX.\nUnited Kingdom.\nMobile: +44 (0)7920460717\nE-mail: enqiries@OnePoint4.co.uk\n18th August 2020 Our ref: Technical Note 180820-DOT\nClarification on Class 1/Class 4.1 Energetic Materials and Articles\nusing Energetic Materials\nReferences\n1. Questions for the US side of Dangerous Goods Classification and Testing, Technical Note\n261018-DOT, 26th October 2018.\n2. DoT Response Letter to Reference 1 above 18-0141 dated 9th May 2019.\n3. Supplemental Questions for the US Department of Transport, Pipeline and Hazardous\nMaterials Safety Administration. Technical Note 200120-DOT, 20th January 2020.\n4. DoT Response Letter to Reference 3 above 20-0015 dated 28th May 2020.\n5. Energetic Properties of Thermites, Final Report, DOT Contract #DTPH5616D00001, SwRI®\nProject # 24178. Prepared for: DOT PHMSA, November 27, 2019 (Rev 1).\n6. DOT Letter to Diamondback Industries Inc 17 May 2006,\n0_EX2006050012_2006055032.pdf\n7. DOT Letter to Diamondback Industries Inc 27 May 2014 - Deny\n0_EX2013120248_2013120384.pdf\n8. US DOT Letter to Diamondback Industries 29 April 2015 - Deny\n0_EX2014060446_2014060989.pdf\n9. Fast reaction of Nano-Aluminum: A study on fluorination versus oxidation - Kyle Watson,\nAug 2007.\nIntroduction\nFirst let me thank you once again for your technical competence in responding to my previous\nrequests for information and analysis of the data presented.\nHaving reviewed the DoT PHMSA responses, Refs 1 to 4, and the DoT PHMSA Ref 5 report,\nthis has inevitably prompted new questions. Which I now pose to you the DoT PHMSA for\nclarification. In particular I wish to clarify that highly energetic substances and associated\narticles which are normally classified and approved by DoT PHMSA as Class 1, cannot be\nclassified as Class 4.1 without proper testing and subsequent approval by DoT PHMSA.\nPlease note: References 5 to 8 were obtained from the DoT PHMSA's website and approvals\nweb page and Reference 9 is publicly available from the internet.\nQuestions\n1. Background: I note the Ref 6 letter and Refs 7 and 8 denial letters to Diamondback\nIndustries and have interest in thermites and thermates as described in Refs 1 and 2.\n\n<<>>\n\nQuestion: If a thermite or thermate substance were packaged in an oilwell cartridge would\nthis cause the article (i.e. the oilwell cartridge) to fall under Hazard Class 1; or at least\nrequire to undergo Class 1 testing by an approved DoT Explosive Test Lab?\n2. Background: I note the type of materials tested in Ref 5 and that the energetic properties\nof such materials may be manipulated by pressing and shaping of powdered energetic\nmaterial into pellets/donuts by pressure, temperature, compression, sintering etc., which\ncontrols the burning surface area and burn rate.\nQuestion: If such energetic materials after being tested in one physical form by the DoT\nPHMSA, an approved DoT Explosive Test Lab/Competent Authority or a company, e.g. as\na powder. Should an energetic material be resubmitted for testing and DoT PHMSA\napproval if it is then transported in another form i.e. pressed pellets or donuts or if the\nenergetic materials are then intended to be used within articles that they are transported in?\nQuestion: If the DoT PHMSA, a Competent Authority or a company tests an energetic\nmaterial as a powder without a binder(s) and that subsequently a binder(s) is/are added to\nthe material. Noting the binder(s) may themselves add additional energetic properties to the\nenergetic material such as thermite or thermate. Does the resulting energetic material\n(which now includes one or more binder materials) require re-testing and re-approval for\nclassification by DoT PHMSA?\n3. Background: As defined by the DoT PHMSA an explosive means any article that is\ndesigned to function by explosion (i.e., an extremely rapid release of gas and heat) or\nwhich, by chemical reaction within itself, is able to function in a similar manner even if not\ndesigned to function by explosion. The term includes fireworks, which are pyrotechnic\narticles. No person may offer a new firework or explosive for transportation unless the\nsubstance or article has been classed and approved by the PHMSA. I also note that a\ndefinition of a Class 4.1 – for Flammable solids, etc., is that these will burn easily, more so\nthan ordinary combustible materials such as wood and paper. The burning may be fierce\nand rapid; creating great heat and that some Class 4.1 materials are desensitised\nexplosives, e.g. wetted trinitrotoluene (TNT) which would otherwise be in Class 1.\nQuestion: Should all Class 4.1 energetic materials used by any company have an EX\nnumber issued by DoT PHMSA, regardless of whether it's an energetic material recently\ninvented or one that has been in existence for many years (including prior to when the\ncurrent DoT PHMSA system using approved test labs came into force, which I understand\nto be in the mid-1990s)? Thus does the energetic material and article, if it were then\ntransported inside an article, require re-testing by a DoT approved Explosive Test Lab\nregardless of whether deemed by the DoT PHMSA to be a Class 1 explosive or a Class 4.1\nenergetic material.\n4. Background: I note that thermite and thermate both have a practical pyrotechnic effect as\nper Refs 2 and 4. I also note that prior to transportation into and within the U.S., all\nexplosives, including fireworks, must be classed and approved by DoT federal hazardous\nMaterials (hazmat) transportation Law, 49 U.S.C., 5101 et seq., and authorizes DoT to\nissue classification documents - EX Approvals - in accordance with the procedural\nCompany Number: No 6544864\nRegistered in England and Wales\nVAT No 937132722\nEXPLOSIVE AND PYROTECHNIC CONSULTANCY, APPLICATION AND TRAINING\n\n<<>>\n\nrequirements in Part 107 and the hazardous Materials Regulations. All explosives must be\nin compliance with the HMR, 49 CFR §173.56.\nQuestion: If a Class 4.1 thermite or thermate substance was packed into a steel tube (a\ntool) and transported in this nature, would this subsequently be considered an article and\nno longer simply a substance, and the article require testing by a DoT PHMSA approved\nExplosive Test Lab given thermite and thermate both have a practical pyrotechnic effect?\n5. Background: Energetic materials such as those in Ref 5 are often much more energetic\nthan high explosives (e.g. TNT), sometimes up to a factor of two, three or more depending\non the composition, particle sizes, shape, structure, porosity, density, flame front\npropagation etc.; Thermite and thermate additives such as polymers (e.g. PTFE/Teflon®\n(76% fluorine by weight, the other 24% being carbon)), polyester etc., are often not merely\n‘binders’ as they provide additional oxidisers to the thermite/thermate composition and\nenhance the energetic properties of the base thermite/thermate composition i.e. the overall\nenergetic composition is much more energetic than the base thermite/thermate\ncomposition. In addition they generate large volumes of gas on decomposition and during\nthe various highly exothermic chemical reactions that take place. Ref. 9 for instance is just\none of many publically available documents that describes the science and highly energetic\nproperties of such thermite-based/thermate-based compositions.\nQuestion: Should the 'fierce burning' of a thermite or thermate substance (potentially\ndetermined as Class 4.1) which is then packaged and transported in a pressure producing\nvented steel tube, which produces an 'extremely rapid release of gas and heat', be tested\nfor approval as a Class 1 explosive article by an approved DoT PHMSA Explosive Test\nLab? Even if not designed to function by explosionand regardless of the classification and\nEX number DoT PHMSA ultimately assigns?\n6. Background: It is clear that some companies would prefer the classification of a Class 4.1\n(or even non-hazardous) for their materials and products as opposed to for instance a\nClass 1.4. If a company did not choose Class 1 testing of a thermite or thermate powder\ncomposition (with or without the binder and/or additives), but instead chose a Class 4.1\nburning train test. Is there a possibility that the gas produced by the burning composition\nescapes to atmosphere and pushes some of the powder mixture out of the way thereby\ndisrupting the test? However if the same composition were tested under Class 1 with\nconfinement, the test would show pressure build up from gas production and the effects\nfrom the flame front. Furthermore sensitivities of the final thermite or thermate composition\nas transported and used may not have been tested e.g. spark test, electrostatic test, drop\ntest etc.\nQuestion: From Refs 2 and 4, do thermite and thermate substances and containing\narticles, have to undergo Class 1 testing and procedures and submission to the DoT\nPHMSA for approval? Can the DoT PHMSA please also assure that there are no gaps in\nthe assessment process i.e. the interface between assessments of different hazard classes\nis robust and that a company cannot self-certify a substance as Class 4 (or even non-\nCompany Number: No 6544864\nRegistered in England and Wales\nVAT No 937132722\nEXPLOSIVE AND PYROTECHNIC CONSULTANCY, APPLICATION AND TRAINING\n\n<<>>\n\nhazardous) and alter it or package it in an article and then not re-submit to DoT PHMSA for\napproval?\n7. Background: Ref 5 seems to have been written solely from the stand point of historical\npowdered or granulated forms of thermite type compositions and in no way approaches any\ntesting of the type of compositions listed in the second letter to the US DoT, Ref. 3. The\nstated objective of the report was \"The testing may help form a technical basis for\nregulation or exemption of certain thermite formulation families\". I particularly note that the\nreport states, when discussing auto-ignition temperatures that, \"Based on the limited data\nset, the explosiveness of these Thermites appears strongly related to two parameters.\nAdditional testing is required to further investigate this relationship.\" In the case of Teflon®\n,\nthe report states \"These have common application in aircraft flares (pyrotechnic effect) and\nare generally included in Class 1 by definition\". Ref 9 is an example of the publicly available\nresearch going into the energetic properties of such highly energetic compositions.\nQuestion: In addition to the chemical formulae contained in Ref 5, will the DoT PHMSA\nconsider the use of binders and additives such as polymers e.g. Teflon®, in their future\ntesting of such 'thermite' (or thermate) based substances and products as are currently on\nthe market and their role in combustion and sensitivity?\n8. Question: Can the DoT PHMSA please clarify how the differences in assessments are\nmade between the designated Flammable Solids UN3178/UN1325 classified as 4.1, versus\na Pyrotechnic Substance UN0431/UN0432 classes 1.4G/1.4S as substances and when\ncontained in articles?\n9. Question: Finally can the DoT PHMSA please confirm if thermite and thermate\ncompositions, with and without additional binders and additives that contribute to the overall\nenergetic properties of the thermite and thermate compositions, which produce a practical\npyrotechnic effect. Can be transported on civil and commercial aircraft as substances and\nalso contained articles, without DoT PHMSA approval and an EX number from DoT\nPHMSA?\nYours sincerely,\nMr P Shelley BEng (Hons), MISEE, MIExpE\nManaging Director\nOnepoint4 Ltd\nCompany Number: No 6544864\nRegistered in England and Wales\nVAT No 937132722\nEXPLOSIVE AND PYROTECHNIC CONSULTANCY, APPLICATION AND TRAINING","truncated":false,"body_characters":22073}