Keller & Heckman — Hazardous Materials Safety Interpretation

Page 1U.S. Department 400 Seventh Street. S.W. of Transportation Washington, D.C. 20590 Research and Special Programs Administration DEC 1 6 1999 Ms. K. Jain Hershberg Ref. No. 99-0304 Keller & Heckman Washington, DC 20001 1001 G Street, N.W. Dear Ms. Hershberg: This is in response to your letter of October 22, 1999, requesting clarification of the definition for "consumer commodity" as provided by § 171.8 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if a material that is suitable for retail sale meets the definition for consumer commodity even though it is not intended for retail sale. The answer is yes. In general terms, a consumer commodity is a material that is packaged and distributed in a form intended or suitable for retail sale and personal or household use. This definition includes materials that are suitable for retail sale even if not specifically so intended and which may, in fact, be used in some other fashion. The fact that the aerosol can may display restrictive marketing information is not a factor in this determination. This exception may be used by distributors as well as manufacturers. I hope this information is helpful. Singe rely, _Mae Senior Transportation Regulations Specialist i Thomas G. Allan Office of Hazardous Materials Standards 990304 171.8#

Page 2Twitte LAW OFFICES $171.8 Consumer KELLER AND HECKMAN LIP 1001G STREET. N.W. WASHINGTON, D.C. 20001 SUITE 500 WEST MILLETT 100-0304 commodite USSELL EPPS DANIELS. DIXLER, PM. D SCIENTIFIC STAF ELSEN ROBERT A. MATHEWS, PH. D., D.A.B.T. CHARLES V. BREDER. PH. D. TELEPHONE (202) 434-4100 FACSIMILE: (202) 434-4846 RENT MICKUM ON NONTFORTRO LOUGHLIN JR RSHBERG JOHN P. MODDERMAN. PM. D. HOLLY HUTMIRE FOLEY 4066-398 JANETTE HOUR, PH. U MARRAPESE HARRISON ENBERRY LESTER BORODINSKY, PH.D. MICHAEL T. FLOOD, PH. D ANNA GERGELY, PM. 0.0 THOMAS C. BROWN SK A. STEARNS DONATH ROBERT I SCHEUPLEIN PH D. JUSTIN A FREDERICO, PH. D. STEFANE M CORGIE! ELIZABETH A HEGER RACHEL F. JOYNER WWW.TEZ.AW.COM •NOT ADMITTED IN D.C. ORESIDENT BRUSSELS TELECOMMUNICATIONS RANDALL D. YOUNG BANGNASK WRITER'S DIRECT ACCESS October 22, 1999 (202) 434-4251 hershberg@khlaw.com Delmer F. Billings, Chief Regulations Development Office of Hazardous Materials Standards RSPA, U.S. Department of Transportation 400 Seventh Street, S.W. Washington, DC 20590 Re: Clarification Dear Mr. Billings: We are requesting clarification on the applicability of the "consumer commodity" classification for the shipment of certain aerosol products by air. It is our understanding that the consumer commodity designation is appropriate if (1) a material is packaged and distributed in a form intended or suitable for sale through sale agencies or instrumentalities for consumption by individuals for purposes of personal or household use; (2) an aerosol does not exceed 17 fluid ounces; and (3) the completed package does not exceed a gross mass of 25 kg. The products at issue are aerosols intended for use as glass and metal cleaners, lubricants and degreasers. These products may be used by professionals, or in industrial applications; and they also are suitable for home use (e.g., a home workshop) should they be sold through retail stores such as Trak Auto or Radio Shack. We respectfully request your advice and opinion as to whether the products described above qualify for the "consumer commodity" description under either or both of the following circumstances: (i) If the products are marked "for professional and industrial use only," and/or#

Page 3KELLER AND HECKMAN IIP Delmer F. Billings, Chief October 22, 1999 Page 2 (i) If the offeror of the shipment is a distributor of the product rather than the manufacturer. Should you require further information, please do not hesitate to contact us. Your immediate attention to this matter would be greatly appreciated. Sincerely, the bey K. Jain Hershberg#