{"operation":"document","citation":"22-0003","title":"Ordnance Lab LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-04-14","effective_on":null,"summary":"22-0003 response to Ordnance Lab LLC concerning 171.1, 171.8, 175.9.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76416/220003.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nApril 14, 2022\nSean Lindley\nManager\nOrdnance Lab LLC\nP.O. Box 295\nThree Rivers, TX 78071\nReference No. 22-0003\nDear Mr. Lindley:\nThis letter is in response to your January 12, 2022, email and subsequent email correspondence\nrequesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)\napplicable to transportation of Division 1.1 explosive devices onboard an aircraft. Specifically,\nyou describe a scenario in which Division 1.1 explosive devices would be loaded aboard a\nrotorcraft. The rotorcraft would transport the explosives over an explosive testing range, where\nthe explosives would be dropped to observe their explosive effects. The flight of the rotorcraft\nwith explosives on board would occur solely over contiguous private property, to which public\naccess is restricted.\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether the HMR apply to aircraft loaded with Division 1.1 explosive devices\nand flown above contiguous private property, to which public access is restricted. You\nnote that the purpose of the flight is to employ the explosives on an explosive testing\nrange, not to deliver them from one location to another.\nA1. The answer is yes. The HMR apply to the transportation of hazardous materials in\ncommerce, i.e. in support of a commercial enterprise. Section 171.1(d)(4) specifies that\nrail and motor vehicle transportation of a hazardous material within a contiguous facility\nto which public access is restricted is not subject to the requirements of the HMR.\nHowever, the transportation of a hazardous material onboard an aircraft in support of a\ncommercial enterprise—even over a contiguous facility to which public access is\nrestricted—is subject to the HMR.\n\n<<<PAGE 2>>>\n\nQ2. You ask whether there is a self-executing or default exception that would allow your\ncompany to conduct the proposed activities without direct approval from the Department\nof Transportation if the exception under § 171.1(d)(4) does not apply to this activity.\nA2. The answer is no. The HMR forbid transportation of Division 1.1 explosive devices\naboard passenger and cargo aircraft. You must obtain a Department of Transportation\nspecial permit (DOT SP) from PHMSA authorizing a variance from this restriction before\nperforming the described activity. Additionally, if the use of aircraft includes explosives\nas an external load operation, you must receive an approval from the PHMSA Associate\nAdministrator for Hazardous Material Safety in accordance with § 175.9(a).\nQ3. You ask whether the applicability of the HMR is dependent upon the 14 CFR operational\nauthority for the flight—e.g., if the aircraft is operated under 14 CFR Part 91 as a private\ngeneral aviation flight—or 14 CFR Part 135 as a chartered aircraft.\nA3. The answer is no. The HMR apply to the transportation of hazardous materials in\ncommerce. “Commerce” is defined in § 171.8 as “trade or transportation in the\njurisdiction of the United States within a single state; between a place in a state and a\nplace outside of the state; that affects trade or transportation between a place in a state\nand place outside of the state; or on a United States-registered aircraft.” The 14 CFR\noperational authority under which the flight occurs is not a factor in determining whether\nthe HMR apply to hazardous materials being transported in furtherance of a commercial\nenterprise.\nQ4. You ask whether your company, as the owner of the explosive materials, would be able\nto secure authorization to conduct the described activity or, alternatively, if the aircraft\noperator is required to secure any necessary authorizations.\nA4. The answer is that both your company and the aircraft operator may need to receive\nauthorization in the form of a DOT SP and/or approval from the PHMSA Associate\nAdministrator for Hazardous Material Safety. As noted above, Division 1.1 explosive\ndevices are forbidden for transportation aboard passenger or cargo aircraft, including\nrotorcraft. Either your company—as the owner and offeror of the explosives—or the air\noperator acting as the carrier, may seek a special permit to authorize the transportation of\nDivision 1.1 explosive devices aboard an aircraft. The approval required in § 175.9 for\nrotorcraft external load operations, if applicable in this scenario, is typically issued to the\nrotorcraft operator.\nQ5. You ask what specific authorizations would be required from the Department of\nTransportation for the proposed operations.\nA5. The answer is dependent on the specific details of the operation. As noted previously, you\nmay require both a DOT SP for the transportation of a Division 1.1 explosive device\naboard an aircraft and a § 175.9 approval for rotorcraft external load operations from\nPHMSA. Additionally, FAA requirements will apply to this proposed operation. We\nsuggest you engage with the FAA Office of Security and Hazardous Material Safety and\n\n<<<PAGE 3>>>\n\nthe FAA Flight Standards District Office with jurisdiction over your area prior to\nengaging in the proposed flight.\nFinally, you note that you are interested in eventually conducting the described operation with an\nUnmanned Aerial System (UAS) in place of a manned rotorcraft. Please be aware that as\ndescribed, transportation of the explosives aboard a United States-registered UAS in support of a\ncommercial enterprise is subject to the requirements of the HMR, as well as all applicable FAA\nrequirements and restrictions. Specifically, please be aware that you will need to seek an FAA\nSection 363 Letter of Authorization.\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<<<PAGE 4>>>\n\nPatrick\n22-0003\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Interpretation Request for Transport of 1.1 Explosives via Aircraft\nDate: Wednesday, January 19, 2022 12:14:16 PM\nAttachments: Ordnance Lab LLC DOT Inquiry on Transport of Exploisives by Aircraft.pdf\nHello Alice,\nPlease see the attached LOI request.\nLet me know if you have any questions on anything.\nRegards,\n-Breanna\nFrom: Sean Lindley <sean@ordnance-lab.com>\nSent: Wednesday, January 12, 2022 8:49 AM\nTo: PHMSA HM InfoCenter <PHMSAHMInfoCenter@dot.gov>\nSubject: Interpretation Request for Transport of 1.1 Explosives via Aircraft\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.\nHello,\nAttached is a request for an interpretation related to the applicability of 49 CFR in regards to\ntransporting explosive weapons by aircraft for the purposes of employing them.\nThank you,\nSean Lindley\nManager\nOrdnance Lab LLC\n936-334-4748\nwww.ordnance-lab.com\nType 10, Manufacturer of Destructive Devices FFL\nType 20, Manufacturer of High-Explosives FEL\nITAR Registered Manufacturer of Defense Articles\nFor Blasting Services & Explosives Sales, Visit TXEBS\nFor Destructive Device/Less-Lethal Sales & Import/Export, Visit Ordnance Services LLC\nReservist/Disabled Veteran Owned & Operated\nYouTube\nFacebook\nInstagram\n\n<<<PAGE 5>>>\n\nLinkedIn\nWarning: This email and/or attachments may contain information that is export-controlled by the International Traffic in Arms\nRegulations (ITAR) for items on the United States Munitions List (USML) or the Export Administration Regulations (EAR) for items on\nthe Commerce Control List (CCL). If information is export-controlled, it may not be shared with any foreign national or country, without\nproper licensing.\nWarnung: Diese Email und/oder Anhang könnten Informationen enthalten, die von der International Traffic in Arms Regulations (ITAR)\norder Export Administration Regulations (EAR) reguliert werden. Falls diese Informationen vom ITAR kontrolliert werden, so könnten\nsie möglicherweise nicht mit einem Ausländer oder einer fremden Nation geteilt werden, ohne vorher den Exportbestimmungen des ITAR\nnachzukommen.\n\n<<<PAGE 6>>>\n\nORDNANCE LAB LLC\nPO BOX 295\nTHREE RIVERS, TX, 78071\nwww.ordnance-lab.com\ninfo@ordnace-lab.com\n936-334-4748\n12 January 2022\nFOR Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey\nAvenue, SE, Washington, DC 20590.\nSUBJECT: Applicability of 49 CFR for Transport of 1.1 Explosive Materials by Aircraft Over Private Property.\n1. Bottom Line Up Front: This is a request for guidance on the applicability of 49 CFR for the limited transport of\nexplosive Destructive Devices categorized as 1.1 explosive materials via an aircraft over a single piece of privately\nowned property for the purposes of employing the weapons.\n2. Ordnance Lab LLC is holder of a Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), Type 10 Manufacturer\nof Destructive Devices, Federal Firearms License and a Type 20, Manufacturer of High-Explosives Federal Explosives\nLicense; is a Class 02, Manufacturer of NFA Firearms, Special Occupational Taxpayer; and a Directorate of Defense\nTrade Controls registered Manufacturer of Defense Articles under the International Traffic in Arms Regulations (ITAR).\nUnder these licenses, Ordnance Lab LLC is authorized to manufacture and use explosive weapons (bombs, grenades,\netc), which are classified as Destructive Devices under the National Firearms Act (NFA).\n3. Ordnance Lab LLC would like to conduct testing of dropping explosive Destructive Devices with a Net Explosive\nWeight of no more than ½ lb of 1.1 explosives such as hand-grenades, potential munitions for Unmanned Ariel Systems\n(UAS), and similar explosive weapons from a rotary-winged aircraft flying under a Standard Airworthiness Certificate\nover a single and contiguous piece of private property. Potentially relevant factors are:\nA. Transport Would Otherwise be Exempted: At no time would the aircraft fly over any other property or a public\nroad. Thus, if the same transportation were to be done by a land vehicle, it would not fall under the preview of 49\nCFR due to being exempted under §171.1(d)(4) “Functions not subject to the requirements of the HMR” for being\n“motor vehicle movements of a hazardous material exclusively within a contiguous facility boundary where\npublic access is restricted”\n.\nB. Transport Incidental to Use: In this particular instance the transport of explosives would be entirely for the\npurpose of their employment as weapon systems. The aircraft would take-off, fly to an altitude of between 100-\n500 feet, release the munitions, and then return to the same landing spot. No explosives would be transported for\nthe purpose of relocating them.\n4. Our questions are as follows:\nA. If the movement of hazardous materials by aircraft is conducted “exclusively within a contiguous facility\nboundary where public access is restricted”, does the exemption provided under §171.1(d)(4) apply?\n(1) If the exemption does apply, is there a limitation on the quantity of explosive materials which can be\ntransported under the exemption?\n(2) If the exemption does apply, is there an altitude above which 49 CFR would apply?\nB. If the exemption under §171.1(d)(4) does not apply to the movement of hazardous materials by aircraft, is there a\nself-executing or default exemption that would allow Ordnance Lab LLC to conduct the proposed activities\nwithout an explicit authorization from the Department of Transportation?\n\n<<<PAGE 7>>>\n\nSUBJECT: Transport of 1.1 Explosive Materials by Private Aircraft Over Private Property. 12 January 2022\nC. Is the applicability of 49 CFR in any way dependent upon if the aircraft is operated under 14 CFR, Part 91 as a\nprivate General Aviation flight, or Part 135 as a chartered aircraft?\nD. If neither §171.1(d)(4) nor a self-executing exemption applies to this situation, and 49 CFR would intrinsically\napply to the proposed operations, would Ordnance Lab LLC as the owner of the explosive materials be able to\nsecure authorization to conduct such operations or would the aircraft’s operator need to secure the authorization?\nE. If specific authorizations would be required from the Department of Transportation for the proposed operations,\nwhat authorizations would be needed?\n5. We fully understand that the Federal Aviation Administration (FAA) will have additional regulations on the dropping\nof items from aircraft under the Federal Aviation Regulations (FAR). This request is exclusively in regard to the\napplicability of 49 CFR under these particular circumstances and not intended to be a request for compliance with any\naviation regulations.\n6. Point-of-contact for this memorandum is the undersigned at 936-334-4748, sean@ordnance-lab.com or the address\non this memorandum’s letterhead.\nSean Lindley\nManager, Ordnance Lab LLC\n2","truncated":false,"body_characters":12948}