{"operation":"document","citation":"03-0117","title":"McCarthy, Sweeney & Harkaway, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-05-22","effective_on":null,"summary":"03-0117 response to McCarthy, Sweeney & Harkaway, P.C. concerning 177.841.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0117.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0117.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0117","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030117.pdf","body":"<<<PAGE 1>>>\n\n400 Seventh St., S.W.\nWashington, D.C. 20590\nadministratior\nMAY 2 2 2003\nLawrence W. Bierlein, Esq.\nMcCarthy, Sweeney & Harkaway, P.C.\nRef. No.: 03-0117\nSuite 600\n2175 K Street, N.W.\nWashington, D.C. 20037\nDear Mr. Bierlein:\nThis responds to your letter dated May 2, 2003, requesting a clarification of 49 CFR 177.841(e)(3)\nwhich prohibits the transportation of hazardous materials packages bearing a POISON label with\nmaterials that are marked as containing or known to contain foodstuffs, feed or edible materials for\nconsumption by humans or animals.\nYou state that Fisher Scientific Company, a laboratory chemical supplier, ships hazardous materials\npackages bearing POISON labels with other chemicals, such as dextrose, yeast extract, sodium\nchloride, sucrose, and deionized water. While, under certain circumstances, these other chemicals may\nbe used in food products or may be food products themselves, in the scenario you described, Fisher\nplainly marks and identifies these materials as \"for laboratory/manufacturing use only an not for drug,\nfood, or household use.\" You further explain that California authorities have taken the position that,\nregardless of package markings, knowledge, or intention of the shipper or carrier, a product that may\nbe found at a waste facility or unauthorized secondary market might be misused and consumed by\npeople or animals.\nYou ask whether Fisher's shipping practices violate 49 CFR 177.841(e)(3). The answer is no. There\nis no violation of § 177.841(e)(3) when a package bearing a POISON label is co-loaded with the\nmaterials as described in the above scenario. Fisher clearly does not intend that these materials be used\nas food or foodstuffs for consumption by humans or animals.\nI hope this information satisfies your inquiry. Please contact us if you require additional assistance.\nSincerely,\nDelmer F. Billings\nChief, Standards Development\nOffice of Hazardous Materials Standards\n030117\n\n<<<PAGE 2>>>\n\n15:18\nFron-KCARTHY SHEENEY & HARKAWAY, P.C.\n+202 775 5574\nT-077\nP. 002/008 F-815\n111. 84/(e)\nLAWRENCE W. BIERLEIN\nLAW OFFICES\nfoodstuffs\n00-0117\nJOHN M. CUTLER, Jr.\nDOUGLAS MA. CANTER\nMCCARTHY, SWEENEY & HARKAWAY, P.C,\nSUITE 600\nFACSIMILE\nSTEVEN J. KALISH\nANDREWP. GOLDSTEN\n2175K STREET, N.W.\n(202) 775-5574\nCHARD D. LIEBERMA\nWASHINGTON, D.C. 20037\nE-MAIL\nHANNING D. STROTHER, J\n(202) 775-5560\nMSH@MSHPC.COM\nKAREN R. O'BRIEN\nOF CoUNSEL\nhTtp://www.MsHPC.com\nWEBSITE\nMay 2, 2003\nMr. Delmer Billings\nStandards Development\nResearch and Special Programs Administratior\nWashington, DC 20590\nDepartment of Transportation\nRe: Request for interpretation\nof 49 CFR 177.841(c)\nDear Mr. Billings:\nI am writing to request an interpretation of Section 177.841 of the hazardous materials\nregulations pertaining to carriage of labeled Class 6.1 materials.\nabroad. Some of these materials are labeled for Class 6.1 and are subject to 49 CFR\nFisher Scientific Company is a major supplier of laboratory chemicals in the U.S. and\n177.841.\nAmong other laboratory products distributed by Fisher Scientific are chemicals such as\nspecial rose is eat, godam loide and denied as are or Stratic\nor manufacturing use only - not food, drug, or household use.\"\nSuch an advisory message also appears as part of each label of each inner receptacle\ncontaining this material (see atiached examples of product labels).\nsame vehicle \"with material that is marked as or known to be a foodstuffs, feed or edible\nSection 177.841(e) states in pertinent part that labeled poisons should not be loaded in the\nmaterial intended for consumption by humans or animals.\"\nCalifornia authorities have taken the position that, regardless of package markings,\nknowiedge, or intention of the shipper or the carrier, a product that might be found in a\nand consumed by people or animals. Their position is that potential misuse and\nwaste facility or in an unauthorized secondary market like a flea market might be misused\n1\n\n<<<PAGE 3>>>\n\n\"May-0z-\n15:18\nFron-MCARTHY SWEENEY & HARKARAY, P.C.\n+202 775 5574\nT-077 P.003/008 F-815\n\"foodstuffs\" and precludes loading that product on the same vehicle with labeled Class\nconsumption of a chemical product by humans or animals means that product is\n6.1 materials.\nThe extensive rulemaking record in Docker No. HIM-4, however, does not support such a\nfoods or materials that might be consumed. Hence the original 1967 rule was modified\nposition. Many commenters pointed out the difficulty in transportation in identifying\nOnc major difficulty in attempting to comply with the [original] amendment was a\nthese [co-loading] regulations.\nas proposed in 1969 remains essentially unchanged today.\nDocket No. HM-4, Notice No. 69-12; 34 Fed. Reg. 7456; May 8, 1969. The rule adopted\nFisher Scientific as well as the carriers utilized by Fisher Scientific to transport the\nhaving humans or animals consume these laboratory chemicals. Such consumption\nmaterials do not consider them to be foodstuffs or feed, nor do they have any intention of\nwould be in direct contradiction of the marking on the package.\nI would appreciate your concurrence in my interpretation of this regulation, that products\nor animal consumption, are not subject to the co-loading restrictions in Section\nthat are clearly marked as not being foodstuffs, for which there is no intention of human\n177.841(e).\nPlease contact me if you have any questions on this request for interpretation. Thank\nyou.\nSincerety,\nLawrence W. Bierlein\nFor Fisher Scientific Company\n2","truncated":false,"body_characters":5483}