Dangerous Goods Advisory Council — Hazardous Materials Safety Interpretation

Page 1U.S. Department 400 Seventh Street, S.W. of Transportation Washington, D.C. 20590 Pipeline and Administration Hazardous Materials Safety DEC 30 2005 Mr. Alan I. Roberts Ref. No. 05-0271 President Dangerous Goods Advisory Council 1100 H Street, NW, Suite 740 Washington, DC 20005 Dear Mr. Roberts, This responds to your October 5, 2005 letter requesting additional clarification on the applicability of the Materials of Trade (MOTs) exception in § 173.6 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you request that we correct errors and reissue two letters of interpretation regarding the applicability of the MOTs exception. In the case of the July 9, 2004 letter, addressed to Mr. Steven King of Mobility Products Unlimited (Ref. No.04-0145), Ms. Mitchell's statement that "A private carrier is a carrier who transports the business's own products and does not provide such transportation service to other businesses" is correct. That statement does not contradict the definition in 49 CFR. 390.5, stating that a private carrier "means a person who provides transportation of property or passengers, by commercial motor vehicle, and is not a for- hire motor carrier." A company transporting a purchased swimming pool system for delivery and installation is a private motor carrier for purposes of the HMR. In the case: of the May 18, 2005 letter, addressed to Mr. Randy Hill of Chemtran Services USA, Inc. (Ref. No. 05-0096), the response by Mr. Gale that, based on the information in Mr. Hill's letter, his company is not a private motor carrier is correct. The company is intended for use by highway mode by a private motor vehicle in direct support a principal providing transportation services to a third party. In addition, the MOTs exception is business that is other than transportation by motor vehicle, not for transportation by aircraft. I hope this answers your inquiry. Sincerely, Acting Director Office of Hazardous Materials Standards 173.6 050271#

Page 2Dangerous Goods Advisory Council DGAC, Suite 7401100 Street AW • Washington DC 20005 • 202/289-4550 • Fax 202/289-4074 • www.dgac.org October 5, 2005 Boothe Dr. Robert A. McGuire $173.6 Associate Administrator for Hazardous Materials Safety Pipeline and Hazardous Materials Safety Administration MOT U.S. Department of Transportation Washington, DC 20590 05-0271 Dear Dr. McGuire: I request that two letters of interpretation addressing the applicability of 49 CFR 173.6 consistent with the definition of "Material of trade" in 49 CFR 171.8. be reissued to correctly state the applicability of the materials of trade (MOT) exceptions In a letter dated July 9, 2004, addressed to Mr. Steven King of Mobility Products Unlimited, Ms. Mitchell stated "A private motor carrier is a carrier who transports the business's own products and does not provide such transportation service to other businesses." While this statement has of "private motor carrier" in 49 CFR 390.5 stating "...means a person who provides no effect on the outcome of the issue addressed by the letter, it is inconsistent with the definition transportation of property or passengers, by commercial motor vehicle, and is not a for-hire motor carrier." The distinction is important since many private carriers carry the property of others in subsequently transported by the seller for installation. I assume the drafters of the MOT the conduct of their businesses, such as a swimming pool system bought and paid for and "By a private motor carrier gorin direct support of a principal business that is other than definition in Section 171.8, took this definition into account in writing subparagraph (3) stating transportation by motor vehicle:".....r "Your company is not a private motor carrier." (after he quoted subparagraph (3) mentioned In a letter dated May 18, 2005, Mr. Gale stated to an officer of Chemtran Services USA, Inc., above). A review of Chemtran's web site at www.chemtranusa.com discloses it to be a company not transportation for hire. It should be noted that private carrier delivery charges for recovery of that provides a wide array of business support services that are its principal business activities, carriage. out-of-pocket costs are common. Such charges do not change the character of private motor A number of our members are concerned that the two letters mentioned above may, be binding, thereby placing some of their business operations in jeopardy. Therefore, we request a correction of the errors in the two letters cited above, and request that we be provided a copy thereof. We appreciate in advance your action on this matter. Sincerely, 120% President Alan I. Roberts, • DGAC is a leading international membership organization representing all aspects of the hazardous materials/dangerous goods transportation industry. +#