McCarthy, Sweeney & Harkaway, P.C. — Hazardous Materials Safety Interpretation

Page 1400 Seventh St., S.W. Washington, D.C. 20590 administratior MAY 2 2 2003 Lawrence W. Bierlein, Esq. McCarthy, Sweeney & Harkaway, P.C. Ref. No.: 03-0117 Suite 600 2175 K Street, N.W. Washington, D.C. 20037 Dear Mr. Bierlein: This responds to your letter dated May 2, 2003, requesting a clarification of 49 CFR 177.841(e)(3) which prohibits the transportation of hazardous materials packages bearing a POISON label with materials that are marked as containing or known to contain foodstuffs, feed or edible materials for consumption by humans or animals. You state that Fisher Scientific Company, a laboratory chemical supplier, ships hazardous materials packages bearing POISON labels with other chemicals, such as dextrose, yeast extract, sodium chloride, sucrose, and deionized water. While, under certain circumstances, these other chemicals may be used in food products or may be food products themselves, in the scenario you described, Fisher plainly marks and identifies these materials as "for laboratory/manufacturing use only an not for drug, food, or household use." You further explain that California authorities have taken the position that, regardless of package markings, knowledge, or intention of the shipper or carrier, a product that may be found at a waste facility or unauthorized secondary market might be misused and consumed by people or animals. You ask whether Fisher's shipping practices violate 49 CFR 177.841(e)(3). The answer is no. There is no violation of § 177.841(e)(3) when a package bearing a POISON label is co-loaded with the materials as described in the above scenario. Fisher clearly does not intend that these materials be used as food or foodstuffs for consumption by humans or animals. I hope this information satisfies your inquiry. Please contact us if you require additional assistance. Sincerely, Delmer F. Billings Chief, Standards Development Office of Hazardous Materials Standards 030117#

Page 215:18 Fron-KCARTHY SHEENEY & HARKAWAY, P.C. +202 775 5574 T-077 P. 002/008 F-815 111. 84/(e) LAWRENCE W. BIERLEIN LAW OFFICES foodstuffs 00-0117 JOHN M. CUTLER, Jr. DOUGLAS MA. CANTER MCCARTHY, SWEENEY & HARKAWAY, P.C, SUITE 600 FACSIMILE STEVEN J. KALISH ANDREWP. GOLDSTEN 2175K STREET, N.W. (202) 775-5574 CHARD D. LIEBERMA WASHINGTON, D.C. 20037 E-MAIL HANNING D. STROTHER, J (202) 775-5560 MSH@MSHPC.COM KAREN R. O'BRIEN OF CoUNSEL hTtp://www.MsHPC.com WEBSITE May 2, 2003 Mr. Delmer Billings Standards Development Research and Special Programs Administratior Washington, DC 20590 Department of Transportation Re: Request for interpretation of 49 CFR 177.841(c) Dear Mr. Billings: I am writing to request an interpretation of Section 177.841 of the hazardous materials regulations pertaining to carriage of labeled Class 6.1 materials. abroad. Some of these materials are labeled for Class 6.1 and are subject to 49 CFR Fisher Scientific Company is a major supplier of laboratory chemicals in the U.S. and 177.841. Among other laboratory products distributed by Fisher Scientific are chemicals such as special rose is eat, godam loide and denied as are or Stratic or manufacturing use only - not food, drug, or household use." Such an advisory message also appears as part of each label of each inner receptacle containing this material (see atiached examples of product labels). same vehicle "with material that is marked as or known to be a foodstuffs, feed or edible Section 177.841(e) states in pertinent part that labeled poisons should not be loaded in the material intended for consumption by humans or animals." California authorities have taken the position that, regardless of package markings, knowiedge, or intention of the shipper or the carrier, a product that might be found in a and consumed by people or animals. Their position is that potential misuse and waste facility or in an unauthorized secondary market like a flea market might be misused 1#

Page 3"May-0z- 15:18 Fron-MCARTHY SWEENEY & HARKARAY, P.C. +202 775 5574 T-077 P.003/008 F-815 "foodstuffs" and precludes loading that product on the same vehicle with labeled Class consumption of a chemical product by humans or animals means that product is 6.1 materials. The extensive rulemaking record in Docker No. HIM-4, however, does not support such a foods or materials that might be consumed. Hence the original 1967 rule was modified position. Many commenters pointed out the difficulty in transportation in identifying Onc major difficulty in attempting to comply with the [original] amendment was a these [co-loading] regulations. as proposed in 1969 remains essentially unchanged today. Docket No. HM-4, Notice No. 69-12; 34 Fed. Reg. 7456; May 8, 1969. The rule adopted Fisher Scientific as well as the carriers utilized by Fisher Scientific to transport the having humans or animals consume these laboratory chemicals. Such consumption materials do not consider them to be foodstuffs or feed, nor do they have any intention of would be in direct contradiction of the marking on the package. I would appreciate your concurrence in my interpretation of this regulation, that products or animal consumption, are not subject to the co-loading restrictions in Section that are clearly marked as not being foodstuffs, for which there is no intention of human 177.841(e). Please contact me if you have any questions on this request for interpretation. Thank you. Sincerety, Lawrence W. Bierlein For Fisher Scientific Company 2#