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Interpretation Response #12-0028 ([Waste and Compliance Management, Inc.] [Mr. Eric Smith])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Waste and Compliance Management, Inc.

Individual Name: Mr. Eric Smith

Location State: CA Country: US

View the Interpretation Document

Response text:

April 2, 2012



Mr. Eric Smith
Vice President of Operations
Waste and Compliance Management, Inc.
6054 Corte del Cedro
Carlsbad, CA 92011

Reference No. 12-0028

Dear Mr. Smith:

This is in response to your January 17, 2012 letter concerning how to describe and transport disposal and recycling products, including sharps, used by medical facilities to treat human and animal patients under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You state your company obtains these materials from clinics, dental offices, veterinary practices, occupational medicine providers, long-term care facilities, and other commercial and government entities. We have paraphrased your questions and answered them as follows.

Q1. Is it permissible to ship sharps that have been used to administer medicine and/or other wastes by a commercial motor carrier, such as United Parcel Service (UPS), if they are classified as "Used healthcare products" under the HMR?

A1. The answer is no. Products, including sharps, used by medical facilities to treat humans and animals that are suspected of being contaminated with a Category B, Division 6.2 (infectious substance) material and intended to be transported for disposal or recycling meet the definition provided in § 173.134(a)(5) for a "UN 3291, Regulated medical waste, n.o.s., 6.2, PG II." If these products are suspected of being contaminated with a Category A, Division 6.2 material, that product must be classed and described as either "UN 2814, Infectious substances, affecting humans, 6.2" or "UN 2900, Infectious substances, affecting animals, 6.2," as applicable. The HMR defines a used health care product as a medical, diagnostic, or research device or piece of equipment, or a personal care product that is used by consumers, medical professionals, or pharmaceutical providers, and is removed from its original packaging, contaminated with potentially infectious body fluids or materials, and not decontaminated or disinfected to remove or mitigate the infectious hazard prior to transportation. Further, it does not meet the definition of a patient specimen, biological product, or regulated medical waste (see § 173.134(a)(8)). The HMR excepts used health products from regulation if they are being returned to the manufacturer or the manufacturer"s designee and: 1) conform to the Department of Labor, Occupational Safety and Health Administration"s (OSHA"s) regulations for bloodborne pathogens under 29 CFR 1910.1030, or 2) are packaged and transported as prescribed in § 173.134(b)(12)(ii). If used health care products intended for transportation do not conform to the OSHA standard or the exception in § 173.134(b)(12)(ii), they must comply with regulations prescribed in § 173.199.

Q2. If the answer to question Q1 is yes, please specify which HMR section(s) must we follow?

A2. The answer is no. See answer A1.

Q3. If the answer to question Q1 is no, what are the consequences under the HMR for improperly classifying and shipping hazardous materials?

A3. Each person who offers a hazardous material for transportation or transports a hazardous material in commerce is responsible for compliance with the requirements of the HMR, or a special permit, approval, or registration issued under the HMR, with respect to any regulated function that the person performs or is required to perform. Under 49 CFR Part 107, Subpart D, the civil penalty for knowingly violating the Federal hazardous materials transportation law (49 U.S.C. 5101, et. seq.) or the HMR can range from $275 to $55,000 per violation per day, or up to $110,000 if the violation results in death, serious illness, severe injury to any person, or substantial destruction of property. A minimum fine of $495 applies to violations relating to training. See §§ 107.329 and 107.333. Criminal penalties may include fines and imprisonment from 5 to 10 years based on the severity of the crime. Penalties for violations of the HMR are assessed on a case-by-case basis and depend on a number of factors, including the nature, circumstances, extent, and gravity of the violation.

Q4. Which office or department within your organization is the final authority on how to classify hazardous materials and any challenges to a product"s classification that can be made?

A4. Under § 173.22, it is the shipper's responsibility to properly classify a hazardous material before it is offered for or transported in commerce. The Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration (PHMSA), is the competent authority responsible for the control and regulation of the transportation of hazardous materials in the United States (see § 171.8, "Competent authority" definition). However, disputes concerning the classification of a hazardous material are typically deferred to the appropriate staff in PHMSA"s Sciences Branch, Engineering and Research Division, telephone number (202) 366-4545.

Finally, in your letter, you also mention these materials are sometimes shipped by governmental agencies. The HMR applies to the transportation of hazardous materials in commerce. The HMR does not apply to the transportation of a hazardous material in a motor vehicle, aircraft, or vessel operated by a Federal, state, or local government employee solely for noncommercial governmental purposes because such transportation is not considered to be "in commerce" (see § 171.1(d)(5)). Thus, if a government agency"s employees prepare and transport a hazardous material for transportation, that material is not subject to the HMR. However, if a government agency contracts with a third party to class, package, prepare shipping documentation, load, or transport hazardous waste on its behalf, the contractor must comply with all applicable HMR requirements.

I hope this satisfies your request.


T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division

173.134. 173.22, 173.199, 107.329, 107.333, 171.1

Regulation Sections

Section Subject
173.134 Class 6, Division 6.2-Definitions and exceptions
173.199 Category B infectious substances
173.22 Shipper's responsibility