Gram Safety Services — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department Washington, D.C. 20590 400 Seventh St., S.W. Special Programs Research and Administration OCT 19 Mr. Orris Gram Ref. No.: 03-0299 Gram Safety Services 59285 Lotus Court Montrose, CO 81401 Dear Mr. Gram: This is in response to your November 10, 2003 letter regarding the materials of trade exception under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if a medical home health care supplier may transport oxygen cylinders, each weighing less than 100 kg (220 pounds), as a materials of trade in accordance with § 173.6. Please accept my apology for our delay in responding to your letter. The answer is yes. Based on the information provided, delivery of oxygen cylinders is not the principal business for the home health care supplier and supplying patients with oxygen cylinders is in direct support of its business. Therefore, the oxygen cylinders carried on the health care supplier's vehicle meet the definition of a material of trade in § 171.8 and may be transported under the conditions specified in § 173.6. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Hathe Mthel Hattie Mitchell Office of Hazardous Materials Standards Chief, Regulatory Review and Reinvention 1718 030299 173.6#

Page 2Gram Safety Services 59285 Lotus Court Edmondson Montrose, CO 81401 970.240.3329 $171.8 November 10, 2003 5173.6 Mr. Edward Mazzullo, Director MOT Exception Office of Hazardous Materials Standards U.S. DOT/RSPA (DHM-10) 03 - 0299 400 7" Street NW Washington D. C. 20590-0001 Dear Mr. Mazzullo; Re: Request for clarification of applicability 171.8 and 173.6 "Materials of Trade Exception" I represent a private motor carrier engaged in the sale, rental and distribution of materials associated with medical home health care. The main portion of the business is supplying oxygen to persons requiring respatory care and durable medical equipment (beds, wheelchairs, gloves, masks, ect.). The oxygen is delivered by our vehicles in permanently mounted bulk refrigerated tanks on one half, three quarter or one-ton capacity vehicles. We are not aware of any problem with the bulk tanks as they are marked and placarded (UN1073) and the driver has in possession a shipping document for "Oxygen, refrigerated liquid, 2.2, UN1073" The drivers are qualified per FMCSA regulations and licensed CDL with "Haz Mat" endorsement. Additionally the drivers must meet the health, safety, and training requirements of HHS for home health care workers. The drivers service customers at private residences or health care facilities, delivering, servicing and filling oxygen cryogenic dewars, and checking on the proper and safe use of the medical oxygen. Question: In addition to the placarded bulk refrigerated oxygen the vehicle will have extra cylinders of "Oxygen, compressed, 2.2, UN1072" these small cylinders range from 3.5, 7.5, and 10 pound capacity. On a day in question the vehicle contained 26 of these cylinders having a gross weight under 220 upon the individual customer needs. pounds. The driver may either service and replace a cylinder or leave one or more cylinders dependent It is my opinion that that the driver is engaged in a MOT activity for the oxygen cylinders as it falls within the scope of private carriage and providing specialized door-to-door service incidental to transportation and excepted from shipping papers. The State Patrol maintains that the transportation of the cylinders is strictly a transportation activity and not within the scope of MOT exceptions and requires shipping papers. Your interpretation and clarification on the use of MOT exception will be appreciated.#