Law Offices of Fennemore Craig — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Washington, D.C. 20590 400 Seventh St., S.W. Special Programs Research and Administration AUG 2 0 2001 Anne N. Christenson, Esq. 3003 North Central Avenue Law Offices of Fennemore Craig Ref. No. 01-0136 Suite 2600 Phoenix, AZ 85012-2913 Dear Ms. Christenson: This is in response to your letter dated May 28, 2001, requesting clarification of the term "offeror" under the Hazardous Materials present the following two scenarios and ask whether these Regulations (HMR; 49 CFR Parts 171-180). Specifically, you activities are subject to the HMR. In the first scenario, Company A performs all offeror functions, such as selecting and preparing packages for shipment and generating shipping papers for their product. would be considered the offerer for purposes of HMR As such, Company A applicability. In the second scenario, Company B physically prepares packagings containing Company A's product and generates shipping papers with Company A's oversight. Company A selects the packaging for their product. Because Company A and Company B split the performance of offeror functions, both companies are subject to the HMR as offerors. The requirements of the HMR apply to persons who offer for materials. Any one of several entities in a transportation, accept for transportation or transport hazardous transportation movement could perform, singly or in combination, regulated fancaging, etg.) Preparation of shipping papers, selection of#

Page 2For purposes of administration and enforcement of the HMR, any person who performs, attempts to perform, or is obligated (by contract or otherwise) to perform any of the functions assigned by the HMR to an offeror in § 173.22 is subject to the HMR as an offeror. I hope this satisfies your request. Sincerely, JOhA-A. Gale Transportation Regulations Specialist Office of Hazardous Materials Standards#

Page 3: " *001* BAH HIA T 1 ... 8173.22 LAW OFFICES Shipper's Responsibity FENNEMORE CRAIG A PROFESSIONAL CORPORATION 01-0136 ANNE N, CHRISTENSON Direct Phone: (602) 916-547: schristo@fclaw.com Direct Fax: (602) 916-5673 PHOENIX, TUCSON AND NOGALES OFFICES IN: 3003 NORTH CENTRAL AVENUE PHOENIX, ARIZONA 85012-2913 SUITE 2600 PHONE: (602) 916-5000 • FAX: (602) 816-5998 May 28, 2001 Mr. Ed Mazzullo, Director Office of Hazardous Materials Standards 400 Seventh Street, SW Research and Special Programs Administration Washington, DC 20590-0001 Re: Request for Written Interpretation Dear Ed: I am writing this letter on behalf of a client who ships hazardous materials. Under the following scenarios, for purposes of applicability of 49 C.F.R. parts 170 - 179, are one or both of these companies offerors of the hazardous material ("product")? Scenario 1: Company A owns the product. Company A manufacturers the product. Company A prepares the product for shipment by marking, labeling, and packaging the product. Company A prepares the shipping papers and signs the shipper's certification. Scenario 2: Company A owns the product, it provides the raw materials to manufacture the product, and it always has title to the product. Company B manufacturers the product. Company B prepares the product for shipment by marking, labeling, and packaging the product. Company A tells Company B how to prepare shipping papers. Company B prepares the shipping the packaging (a cargo tank) and arranges for transportation of the product. papers, on Company A's bill of lading, and signs the shipper's certification. Company A selects questions. Thank you for your assistance with this matter. Please contact me if you have any Sincerely, Anne n.Christenson Anne N. Christenson PHX/ACHRISTE/1186142.1/53078.179 {0 0 20206008 1 5 96 209#

Page 4of Transportation U.S. Department Washington. DC 400 Seventh Street, S4 20590 Special Programs Research and Administration DEC 5 1994 Ms. Alice Walker, Ph.D. Regulatory Consultant 47 Country Club Drive Senatobia, MS 38668 Dear Dr. Walker: This is in response to your letter dated September 28, 1994, regarding the you ask if we concur with your opinion that mixtures containing 77% and 57.6%. classification of certain mixtures containing copper hydroxide. Specifically, 61.4% copper hydroxide are not subject to the Hazardous Materials Regulations. The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) govern the transportation of hazardous materials in commerce. Under 49 CFR 173.22, it is the shipper's responsibility to properly classify a hazardous material. However, based on the information provided in your letter, we agree that the mixtures of copper hydroxide described in your letter are not subject to the I hope this satisfies your inquiry. Sincerely, Delmer F Billings chiet, Regulations Development Office of Hazardous Materials Standards#

Page 5DB Fle: 173,22 REGUILATORY CONBULTING • T UNTRY CLUB DRIVE • SENATORIA, MS 38668SL: 174,399 Alice Walker, Ph.D. September 28, 1994 Mr. Delmer F. Billings Chief, Regulations Development do a read Mangar Standarde OCT - 6 1994 Washington, D.C. 20590 4.C. Request for Interpretation of the Appropriate Shipping Classification for Copper (or Cupric) Hydroxide Products Dear Mr. Billings: I am writing this letter to you on behalf of Cuproquim Corporation, Agtrol Chemical Products, and Griffin Corporation who manufacture and ship in the United States copper (cupric) hydroxide products. There is much concern and or two of their formulations. These are (1) a 77% copper hydroxide dry material, liscussion within these companies about the appropriate shipping descriptior variously shipped as Blue Shield DF, Blue Shield WP, Champion WP, and Kocide 101, and (2) a 57.6 - 61.4% copper hydroxide dry product shipped as Blue Shield 40DF, Agtrol Champ Formula II DF, and Kocide DF. On DOT's Hazardous Materials Table in 49 CFR § 172.101, copper (cupric) hydroxide is not listed. However, a category called "copper based fungicides" is. These manufacturers are currently shipping their products under this category. Their shipping description reads: "Copper based pesticides, solid, toxic, n.o.s., (copper hydroxide), 6.1, UN 2775, III. I have been asked to prepare a consolidated acute toxicology profile in an effort to found below: contirm or correct this shipping description. I have duplicated the information I Copper Hydroxide (77%)*: Acute Tox. Profile DOT Limits Acute Oral LD50 - Rats: male - 2400 mg/kg female - 2200 mg/kg 200 mg/kg (solid) Acute Dermal LD50 - Rabbits: >2000 mg/kg 1000 mg/kg Acute Inhalation LC50 - Rats: 28.8 mg/L (nominal concen- tration on a 1 hr basis) 10 mg/L *(Includes Cuproquim Blue Shield DF, Cuproquim Blue Shield WP, Agtrol Champion WP and Griffin Kocide 101). Phone 601 562-5995 • Fax 601 562-7404#

Page 6Letter to Mr. Billings September 28, 1994 Page Two Copper Hydroxide DF (57.6-61.4%)*: Acute Oral LD50 - Rats: >646 mg/kg 200 mg/kg (solid) Acute Dermal LD50 - Rabbits: >2000 mg/kg 1000 mg/kg Acute Inhalation LC50 - Rats: >55.51 mg/L (nominal con- centration on a 1 hr basis 10 mg/L * Includes Cuproquim Blue Shield 40DF, Agtrol Champ Formula II DF, and Griffin Kocide DF). It is my interpretation that none of these copper hydroxide products falls under the criteria for oral, dermal, or inhalation toxicity as prescribed in 49 CFR 173.132(a)(1)(i)(ii)(iii) and, therefore, none of them meets the definition for 6.1 poisonous materials. that copper (cupric) hydroxide is not on Table 1 of the Hazardous Substances List. Further in my quest for hazardous material shipping information, I determined It is not included on the Marine Pollutant List. I have concluded that these materials are not regulated by DOT. Mr. Billings, the inclusion of the generic, "copper based pesticides," on the current shipping descriptions. However, confirmatory correspondence from you materials meeting the toxicity criteria for poisonous materials in Division 6.1, PG officials. May we hear from you soon? I understand that labeling changes to IIl will be required January 1, 1995. Your reply before then would be extremely helpful. Sincerely, Alice Weeker Alice Walker, Ph.D Regulatory Consultant CC: P. Haaf, J. Kirk, L. Horne, Cuproquim H. O'Neal, Agtrol J. Yowell, Griffin J. Rathvon, Piper & Marbury#