{"operation":"document","citation":"05-0117","title":"Law Offices of Nicholas H. Cobbs — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-05-25","effective_on":null,"summary":"05-0117 response to Law Offices of Nicholas H. Cobbs concerning 173.150.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0117.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0117.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0117","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050117.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nMAY 25 2005\n400 Seventh Street, S.WN.\nWashingion, D.C. 20590\nPipeline and\nAdministration\nHazardous Materiais Safety\nMr. Nicholas H. Cobbs\nReference No.: 05-0117\nLaw Offices of Nicholas H. Cobbs\n1730 M. Street, NW, Suite 503\nWashington, DC 20036-4516\nDear Mr. Cobbs:\nThis responds to your letter concerning the classification of vanilla extract under the\nHazardou: Materials Regulations (HMR; 49 CFR Parts 100-180). Your letter states that\nthe vanilla extract contains 35% ethyl alcohol and is packaged in 4 ounce glass bottles. You\nask if your client can take advantage of the exception for \"Alcoholic beverages\" in\n§ 173.150(d)(3).\nThe answer is no. The HMR require you to select the most appropriate shipping description\nfor your hazardous material. Vanilla extract is most appropriately described as \"flavoring\nextract\" rather than \"alcoholic beverage.\" The Hazardous Materials Table (HMT) lists two\nentries for \"Extracts, flavoring, liquid\"; one entry for a PG II material, the other for a PG III\nmaterial. Both entries reference the exceptions in § 173.150 in column 8a of the HMT. A\nmaterial that meets the limited quantities provisions in § 173.150(b) and is a consumer\ncommodity as defined in § 171.8, may be renamed \"Consumer Commodity\" and reclassed as\nORM-D. In addition to the exceptions in § 173.150(b), ORM-D materials are not subject to\nshipping paper requirements unless the material meets the definition of a hazardous substance,\nhazardous waste, marine pollutant, or is offered for transportation and transported by aircraft.\nIn addition, ORM-D materials are eligible for the exceptions provided in § 173.156.\nI trust this satisfies your inquiry.\nSincerely,\nAtle Mitator\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n173.150 (d)\n050117\n\n<<<PAGE 2>>>\n\nCorbin\nLAW OFFICES OF\n§173.150 (d)\nNICHOLAS H. CoBBs\n1730 M STREET, N.W., SUITE 503\nexceplions\nTELEPHONE\nWASHINGTON, D.C.\n20036-4516\n25-0115\n(202) 452-8222\nE-MAIL\n02 298977\nFACSIMIL\nWeb Site: www.cobbslaw.com\nncobbs@erols.com\nADMITTED IN DC, MD, VA & NY\nMay 3, 2005\nBy Facsimile and Mail: 202-366-3012\nMr. Edward 'T. Mazzullo\nUSDOT /PHMSA (DHM-10)\nDirector, Office of Hazardous Materials Standards\n400 7\" Stree: SW\nWashington DC 20590-0001\nRe:\nRequest for Interpretation\n49 C.F.R. § 173.150 (d), Alcoholic Beverages\nDear Mr. Mazzullo:\nI represent The Pampered Chef, Ltd., a company based in Addison, Illinois that sells\ncookware and food products to consumers. One of the new products that the company plans to\noffer is vanilla extract for baking. The extract contains 35% ethyl. alcohol. The product is\npackaged in 4 ounce glass bottles which may be combined with other bottles for larger orders but\nwill never be shipped in bulk quantities. Under the hazardous materials table, products\ncontaining less than 70% ethyl alcohol are classified as Class 3 flammable liquids, Packing\nGroup III. But they are eligible for the exceptions set forth in 49 C.F.R. § 173.150.\nMy client asked for an opinion as to whether the vanilla qualifies for an exception as an\n\"alcoholic beverage\" under 49 C.F.R. § 173.150 (d). If so, ground shipments of the product\nwould not be subject to hazmat regulation. § 173.150 (d) (3). Although I am confident that the\nvanilla extract qualifies as an alcoholic beverage under this section, the definition of an alcoholic\nbeverage is somewhat vague. To avoid any uncertainty, I would appreciate your confirmation of\nthis status.\nThe definition of an alcoholic beverage under § 173.150 (d) adopts the definition used by\nthe Bureau of Alcohol, Tobacco and Firearms in 27 C.F.R. § 5.11. This section defines alcoholic\nbeverage to include distilled spirits which, in turn, are definied as \"Ethyl alcohol, hydrated oxide\nof ethyl, spirits of wine, whisky, rum, brandy, gin, and other distilled spirits, including all\ndilutions and mixtures thereof, for nonindustrial use.\"\nThe presence of 35% ethyl alcohol alone would seem to define the vanilla extract as an\nalcoholic beverage under this definition. Moreover, ethyl alcohol is the product of distillation.\n\n<<<PAGE 3>>>\n\nMr. Edward T. Mazzullo\nMay 3, 2005\nPage 2\nIn addition, the extract is intended for human consumption like the other distilled spirits\nenumerated in 27 C.F.R. § 5.11. Consequently, it should qualify as an alcoholic beverage under\n27 C.F.R. § 5.11 and 49 C.F.R. § 173.150 (d).\nThe alcoholic beverage exception is not only appropriate as a chemical category; it is\nunder the relaxed requirements of the exception. The vanilla contains less alcohol than most\nalso consistent with the minimal risks that would ensue from transport of the vanilla extract\nbrands of liquor. It is packaged in small bottles and is shipped in small quantities. In the\nunlikely event that one or more of the bottles should break and spill, the possibility of fire is\nextremely remote. The product is less of a safety risk than the alcoholic beverages like rum and\nbrandy that are explicitly eligible for the exception.\nFor these reasons, I believe the vanilla extract properly falls within the alcoholic\nbeverages exception of 49 C.F.R. § 173.150 (d). Please confirm this status in writing so my\nclient can make plans to ship the product.\nWe would appreciate as quick a response as possible because my client has already made\ncommitments that are time sensitive. Please let me know you should need any further\ninformatior. or if there is anything we can do to help with your response.\nThank you.\nSincerely yours,\nmade che\nNicholas H. Cobbs\nNHC: nm\nCc:\nCathy Landman, Esq., The Pampered Chef","truncated":false,"body_characters":5625}