Interpretation Response #98-0402 ([LAX Civil Aviation Security] [Mr. Frank L. Webb])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 04/09/1998

Company Name: LAX Civil Aviation Security

Individual Name: Mr. Frank L. Webb

Location State: CA Country: US

View the Interpretation Document

Response text:

APR 9, 1998

Mr. Frank L. Webb
LAX Civil Aviation Security
Field Office
5757 West Century Boulevard Suite 500
Los Angeles, California 90045

Dear Mr. Webb:

This is in response to your letter regarding classification of a material containing "Oleoresin capsicum," pressurized with "Nitrogen" in aerosol containers, and in liquid form, non¬pressurized, in accordance with the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). A Material Safety Data Sheet was enclosed. I apologize for the delay in responding and hope it has not caused any inconvenience.

You stated that your office is pursuing a case with Code Red Industry of W. Palm Beach, Florida, and would like to get a more accurate understanding of the nature of the material, which you have observed in bottles in liquid form and in aerosol containers. You asked whether the material should be classified as a hazardous material under the HMR.

Under the HMR, Oleoresin capsicum is not a tear gas material although when it is pressurized the result is similar to an aerosol containing tear gas. Based on the information you provided, this Office has taken the position that Oleoresin capsicum in aerosol type sprays, must be transported as an aerosol. Currently, the § 172.101 Hazardous Materials Table (HMT) includes the entry "Tear gas devices, with not more than 2 percent tear gas substances, by mass ", which references the entry for "Aerosols". The description for a mixture containing "Oleoresin capsicum," pressurized with "Nitrogen" in aerosol form is "Aerosols, non¬flammable, 2.2, UN 1950."

In liquid form, non-pressurized, Oleoresin capsicum, used for temporary disabling purposes, may meet the definition of a Class 9 material. A "Class 9tl material is defined as a material that does not meet the definition of any other hazard class but presents a hazard during transportation which has an anesthetic, noxious or other similar property, such as an irritant (see § 173.140). If Oleoresin capsicum in liquid form, non-pressurized, meets the Class 9 definition, the description would be "Environmentally hazardous substances, liquid, n.o.s., 9, UN 3082, III "

This Office is aware of misunderstanding as to how these materials are classed and described under the HMR. Both definitions for Division 6.1 and Class 9 address irritating materials, but do not specify criteria. Also, there is no specific entry in the HMT for such devices that are not aerosols. This Office regards self-defense sprays which do not meet toxicity criteria for Division 6.1 (§ 173.132) as meeting the criterion for Class 9 specified in § 173.140 (i.e., which could cause extreme annoyance or discomfort to a flight crew member so as to prevent the correct performance of assigned duties), and proposed to add an entry in the HMT to regulate them for transportation by aircraft only. On September 24, 1997, a Notice of Proposed Rulemaking, entitled "Transportation of Hazardous Materials; Miscellaneous Amendments" was published in the Federal Register (Docket HM-166Y; 62 FR 50222; copy enclosed), To clarify that both the aerosol and non-aerosol self-defense sprays are subject to the regulations, two new entries, "Self-defense sprays, aerosol, containing not more than 2 % tear gas substances, see "Aerosols" and "Self-defense sprays, non-pressurized, containing not more than 2% tear gas substances" would be added in the HMT.

I hope this information is helpful. If we can be of further assistance, please contact us. "

Sincerely,

Delmer F. Billings
Chief, Standards Development
Office of Hazardous Materials Standards

Enclosure

172.101

Regulation Sections