The Law Offices of Paul D. Borghesani — Hazardous Materials Safety Interpretation

Page 1U.S. Department ofTransportation Pipeline and Hazardous Materials Safety Administration MAY 1 1 2011 1200 New Jersey Avenue. SE washington. DC 20590 Paul D. Borghesani The Law Offices of Paul D. Borghesani 307 S. Main Street, Suite 300 Elkhart, Indiana 46516 Ref. No.: 11-0007 Dear Mr. Borghesani: This responds to your December 14, 2010 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask ifthe HMR apply to the transportation ofpersonal belongings by a driver who is operating a leased pickup truck in commerce. The belongings in question include: battery operated cell-phones, medical devices and GPS devices, and gas cans used to fuel the driver's non-commercial vehicles and machinery. You also reference a letter ofinterpretation issued by PHMSA on April 29, 2010 (Ref. No. 09-0220), which clarified that transportation of scuba tanks for personal, non-commercial use (e.g., recreation, sport fishing) is not subject to the HMR. A driver who transports hislher own personal belongings (e.g., battery operated cell phones, medical devices and GPS devices, gas cans, etc.) for personal, non-commercial use is clearly not in commerce. Therefore, in the scenario you describe, those personal belongings are not subject to the HMR. However, any hazardous material that the driver is transporting on behalf of the motor carrier is in commerce and subject to the HMR. You also refer to the Compliance, Safety, Accountability (CSA) 2010 program in your letter. The Federal Motor Carrier Safety Administration implements the CSA 2010 program. Information on CSA 2010 is available at the following website: http://csa.fincsa.dot.gov/. I trust this satisfies your inquiry. Please contact us ifwe can be of further assistance. Sincerely, ~.5~ Ben Supko Acting Chief, Standards Development Branch Standards and Rulemaking Division#

Page 2. THE LAW OFFICES f lChtY)Jauh OF PAUL Do BORGHESANI De+jnJ't-U)Y1 r CS/7/~? "-bo01 December 14,2010 Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, D.C. 20590 RE: Personal Items Dear Ms. Mitchell: This firm represents numerous motor carriers registered with the Federal Motor Carrier Safety Administration ("Administrat:ion") and engaged in the transportation of property pursuant to either a certificate or permit issued by the Administratiori. The registered motor carriers are leasing equipment (i.e. pick-up trucks) from owners that are also 9pera!ing·the leased .equipment when transporting property for the motor carrier. As provided in 49. CFR Part 3,90, the \motQr c<wjers leasing commercial motor 'veh~c1es which, transport ,property 'in:int€rsta!e: cQmmer.ce a~e ;equirt:~ not only to be knowledgeable of and c'omply with the' Federal Motor Carrier' Safety Regulations ("Safety Regulations") but, also must instruct the owner/drivers as well as require their compliance with these Safety Regulations. With the implementation of CSA 2010, the motor ,carriers represented by this' firm have expanded' the scope of, instructions as well as compliance accountability ,wi,th' all appli<;:able ,Safety Regulations. including, ~ncreased awareness of and compliance with the Hazardous Materials Regulations in 49 CFR Part~,l71-180. , . ~ _ l' During tthe course of instructing the owner/drivers, several questions h~ve arisen concerning the Personal Items that the owner/drivers of the lease equipment may have inion the equipment while operamfg the equipment in the furtherance of the commercial enterprise of the motor carrier. These Personal Items include battery operated cell phones; battery-oR~fated medical devices (CPAP); battery-operated GPS devices, and occasionally small, empty, fuel containers ranging from five (5) to thirty (30) gallons, the latter used for personal uses including the fueling of off-road equipment, boats, and other non-comp1ercial motor vehicles. The batteries utilized for the cell phones and/or the GPS units <;lre primarily lithium ion and are rechargeable. The batteries utilized for the CP AP macliine are either lithium ion or sealed lead acid. The batteries are more specifically described in the attachments to thisco~espondence. . .~ Consideration has been given to the 'Pipeline and Hazardous ",M'aterials Safety Administrati~n . . ("PHMSA") Interpretation Number 9-0220. Therein, the PHMSA noted that under the Federal Hazardous Materials Transportation Law the . term "in ~ommerce;' means transportation in 307S. ~ain Street, Suite 300' EIJ<:hart, Indiana ·46516 Telephone (574) 389-0804 . Fax (574) 293-2214 E'mail pdborglaw@verizon.net#

Page 312/14/2010 Hattie L. Mitchell furtherance of a commercial enterprise. Based thereon, it was concluded that "the individual who transports his/her own scuba tank for personal, non commercial use (e.g., recreation, sport fishing) is not subject to the HMR." The questions being presented include the following: 1. Is the individual owner/driver having the described battery~operated Personal Items in the leased equipment while the owner/driver is operating the leased equipment in the furtherance of the commercial enterprise of the motor carrier subject to the Hazardous Materials Regulations? 2. In these circumstances, is the motor carrier subject to the Hazardous Materials Regulations? As noted, the Personal Items of the owner/drivers also include empty fuel tanks having a capacity of five (5) to thirty (30) gallons that the owner/drivers use to fuel off~road equipment, boats, and other non-commercial motor vehicles of the owner/driver. Generally, the equipment, boats and other non-commercial vehicles are gasoline powered. As with the personal battery-operated items, the leased equipment is being utilized to transport other property in furtherance of the commercial enterprise of the motor carrier and the fuel tanks are not required by the motor carrier for such transportation. 3. Noting that 49 CFR Part 390.3 excepts from the applicability of the rules in subchapter B the occasional transportation of personal property by individuals not for compensation nor in the furtherance of a commercial enterprise also except the applicability of the Hazardous Materials Regulations for the occasional transportation of the described personal property of the owner/drivers herein? 4. Are the described fuel tanks utilized for gasoline either empty or full considered materials of trade as noted in 49 CFR Part 392.51 and as defined in 49 CFR Part 171.8? 5. If the small amounts of fuel are considered materials of trade, what if any provisions of the Hazardous Materials Regulations would be applicable to the individual owner/driver as well as the motor carrier leasing the equipment from the owner/driver? The consideration of the foregoing and response(s) by the PHMSA will serve to enhance the instruction and compliance with the Safety Regulations including the Hazardous Materials Regulations by the motor carriers and the owner/drivers leasing equipment to the motor carriers. Very Truly Yours, The Law Offices ofPaul D. Borghesani ~tw.9 \) . t30 r()~ p9.-. Paul D. Borghesani PDB/alh 2#

Page 4CPAP Battery Pack 175 Wh http://www.cpap-supply.coruiePAP-Battery-Pack- 175-Wh-plbgI 75.htm CPA? Battery Pack RespronlCs CPAP Machmes & Masks ResMed CPAP Masks & Machines DeV~ tJ lSS CPAP Lqllipment ResMed Sq Inverter < View Cart I My Account I Order Status I 888-955-2727 Home I Ordering I Contact I Articles I FAQ I About Us I Priva. Home > CPAP Accessones > Super CPAP Battery Pack for CPAPs and BiPAPs - 175 Wh Our Price: $375.00 Qty : add to cart 1 " 'I" r rIo or Availability:: Usually Ships in 24 Hours Product Code: BG175 Searc h Bro wse Complete Packages CPAP Machines CPAPMasks CPAP Humidifiers CPAP Parts CPAP Accessories Oxygen Le a r n Price Guarantee Prescriptions Insurance CPAPFAQ CPAP Polls CPAP Articles CPAP Machine Comparison Chart Add to Wish List Super CPAP Battery Pack for CPAPs and BiPAPs - 175 Wh ~""'iiiiii"!l"liililil!ll Description Battery Type: lithium Ion Here it is. The ultimate portable lithium-ion battery pack for your CPAP machine and any other small electronics you may own. This small lightweight battery pack is ideal for car camping, RV camping, boating and any other activity that may take you "off the grid". The CPAP battery pack is available in three capacities - 175 Wh, 250 Wh, and 444 Who Now there's no need to leave home without power. This 175 Wh battery will run a CPAP machine at the most commonly prescribed pressure settings for approximately 9 - 12 hours. See the chart below for more battery capacity information. Don't forget to buy the 12V cord for your specific CPAP machine! The Super CPAP Battery Pack doesn't include the manufacturer-specific cord you'll need. L 1 1/ 23/10 - The Most Com m o n CPAP Ques t i o ns . .. 0 9 / 1 6/ 10 - Pulse Oxl m e t ers 0 8 / 1 7/10 - $50 ResM ed Rebate 07/27/ 1 0 - The B est De a ls at C P AP -S u p p l y. com 06/22 / 10 - What t o Loo k f or in a CPAP M a c hine 06 / 08 / 1 0 - Comfor tGel Bl u e D esig n ... 04 /2 0/10 - En core Vi ewer 2 . 0 Slee p Ap nea Analysis Software 0 3 / 2 6/1 0 - How Often Sh ould C P A P Equi p ment Be R eplaced? 02 / 09/10 W h a t ' s A head in CPAP D e sig n ? 1 2 /18 /09 Health Spending 1--- (=;~u;~PAP~ AV f erag~ ~~~~\~~me inrHOUrs> ~~ ~~~~ . __ 4_ ___ __ 18 2 5 _ _ ___ __ 7 12.7 -- -- ---- 10 9.7 13 - r- 8.2 --r18.8 14 3 16 7.1 12.1 --10.5 - --- 20 6 .6 9.8 CPAP Battery Features <)) Available in three different sizes and capacities (this 175 Wh battery is our lowest capacity model) • I ncludes soft side carrying case 8 Receives and delivers power from a cigarette lighter adapter built right in to the battery. • Can also be used to power other devices such as portable DVD players. Any device that can operate from 12V DC Current. it Perfect for camping' • Includes charger • Power gauge on battery indicates remaining usage time CPAP Battery Important Notes e This CPAP Battery is compatible with all makes and models of CPAP machines. Related Products... IntelliPAP 12V Co rd Our Price: $20.00 Add 12V Cord Our Price: $27.00 Add • ResMed 24V Co nverter Our price: $89.00 Add r 58 5elies 12V Converter Our Price: $79.99 Add PowerVerter I nve rter - 150 W Our Price: $45.00 Add CPA P Battery Pack 250 Wh Our Price: $435.00 Add CPAP Battery Pack 444 Wh Our Price: $795.00 Add lof3 11 124/20 10 11:31 AM#

Page 5CPAP Battery Pack 175 W h Accounts 11/13/09 Recognizing S l eep Apnea 9/15/09 Deregulating CPAP E qu ipment. . . 9/15/09 T r oubles h ooting CP AP Pr o b lems . 5/ 1 1/09 - Intei l iPAP Smar t Link System .. . 4/8/09 - Are Insurance Companies Crazy ... 1/15/09 - M i rage Activa LT Des ign ... 12/ 2 4/08 R e s M ed Pricing Po li cy Change ... 1 2/10/08 A erophagia in C P AP Users. 1 1 / 1 1/ 08 - Ho w Sev e r e is You r Sleep ... 7 /2 2 /0 8 - 5 Tips fo r Im proved CPA P ... 7/ 2 2/0 8 P rescr i pt ion s for CPA P ... 3/26/0 8 - Mirage M icro Design. 3/7/08 - CPAP Ma sk In su r an c e .. 1 / 12/08 - Res M ed 5 8 I I CP A P .. . 1 1 /2 8/ 07 - EncoreViewer 1.0 .. . 1 1/ 14/07 - CPAP T u bing Wrap . 10/24 / 0 7 - B r eathi n g Ne w L if e ... 9 /24/07 - Mirage Q uattro Design . .. 8 /5/07 - Battery Po w ered CPAP. 7 /2 2 /07 - W h ere 's my R E M star ... 7 / 16/07 - Is CPAP Pressure . http://www .cpap-supply.comlCPAP-Battery-Pack- 175-Wh-plbgI7S.htrn ~ The ResMed 58 and 59 requires the additional use of the ResMed DC converter or inverter (depending on model). Click here for the 58 Converter. Click here for the S9 Inverter. • Using this CPAP battery with an inverter will reduce the usage times speCified above. 8 All CPAP battery times are estimates only. Multiple factors will affect usage times. S These CPAP batteries do not have to be completely discharged before recharging 6 IMPORTANT: This battery will ONLY work on PAP devices that can use DC power. The PAP device must have a 12V barrel connector, and be capable of using a DC adaptor cable from the PAPs manufacturer. • Does your PAP not have a DC connector, such as the Fisher & Paykel modelS? You can also use our 150 watt Sine wave power inverter also featuring a built in USB charge port to plug directly into the battery and use your standard AC power cord on the PAP to plug right into the battery . • Addendum to user manual: After charging the battery, hold the battery test button for 30 seconds or until the test lights display. This will activate the battery for use. CPAP Battery Specifications • Dimensions 9.8" x 5.9" x 1.3" • Included In Box Battery, DC Adaptor cable for Respinonics M Series machines, recharging power supply. • Warranty 1 Year. We handle all warranty claims. • Weight 3 pounds. • Prescription Required NO • Battery Protection Built in circuitry protects against thermal run-away and overheating . • Charge Current 2500 mAh • Chemistry High capacity, premium grade lithium-ion cells • Output Current 8A max • Output Voltage 12 Volts • Power Gauge Five Stage charge level indicator • Recharge nme 4-5 hours. • MSRP (Manufactures Suggested Retail Price) $375 Take your CPAP machine anywhere with our CPAP battery! Share your knowledge of this pnoduct with other customers... Be the first to wnte a review Browse for more products in the same category as this item: CPAP Accessories CPAP Accessories > Battery Packs CPAP Accessories > Machine Cords and Cables UnIVersal Portable Battery Pdck $299.00 20f3 11/24/201011 :31 AM#

Page 6Unjversal Portable Battery Pack http://www.cpap-supply.comlUniversal- Portable-Battery-Pack-pi J028 ... CPAP Battery Pack RespronlCs CPAP Machines & MasKs ResMed CPAP Masks & Machines DeVilbISS CPAP F.qulpment RI'.sMed S9 Inv~rter ( View Cart My Account I Order Status 888-955-2727 Horne I Ordering I Contact I Articles I FAQ I About Us I Priva, Search Bro w s e Complete Packages CPAP Machines CPAP Masks CPAP Humidifl8rs CPAP Parts CPAP Accessories Oxygen Learn Price Guarantee Prescriptions Insurance CPAP FAQ CPAP Polls CPAP Articles CPAP Machine Comparison Chart Home > CPAP AcceSSO ries > Universal Portable Battery Pack Our Price: $299.00 FREE SHIPPING If 'I 0 or 0 Availability:: Usually Ships in 24 to 48 Hours Product Code: 1028869 Qty: add to cart 1 Add to Wi. h Ust 11 /2 3 /1 0 - The Mo st C o m m o n C P AP Q ue st ions . 0 9/16/10 - Pulse O x imeters 0 8 /1 7/10 - $ 50 Res M ed Reb a t e 07/27/10 - The B e s t D ea ls at C P A P-Su p p ly . com 06 /22 /10 - Wh at to L o o k for in a CPAP Ma c h ine 06/08/10 C o mfortGel Bl ue D esi gn ... 04/20/10 E n coreViewer 2.0 S l ee p Ap ne a Analysis Soft wa r e 0 3/2 6/10 - How Of t en Should CP AP Equipment Be Replaced) 0 2/ 09/10 - Wh at's Ahead i n CPA P De sign? 1 2 /18/09 He a l th Spend in g Respironics Universal Portable Battery Pack U Description Battery Type: Sealed lead-Acid The Respironics Universal Portable Battery Pack is designed to allow you to power your CPAP machine anywhere life takes you. Coupled with the DC power cord speCific to your particular CPAP machine model, the Universal Portable Battery Pack will power a CPAP machine for up to 20 hours at a pressure setting of 12. As the name suggests, the Universal Portable Battery Pack can be used with any CPAP machine manufactured by any company. The Universal Portable Battery Pack is a sealed lead-acid battery that can be used with any make and model of CPAP machine. The correct DC power cord is necessary, and in some cases (for example, with the ResMed 58 or 59 machines) an inverter must be placed between the battery and the CPAP machine. If you don't know exactly what you need, give us a call and we can help you l Features • 14 pounds - smaller and lighter than traditional gel cell, marine-type batteries • Carrying case • One year warranty • Average run times of 16 to 24 hours for most CPAP machines • Smart charger to prevent overcharging of battery • LED lights to indicate charging level Contents • Sealed lead-acid battery • Charger with standard power cord for recharging from wall outlet • Carrying case • NOTE: Don't forget that you'll need the 12V cord specfic to your CPAP machine in order to be able to plug your CPAP machine into this battery. • NOTE: This battery DOES NOT include a 12V cord or 12V cord adapters for your CPAP machine. • NOTE: Our lithium ion Super CPAP battery packs include a 12V cord that's compatible with most REMstar machines, along with seven adapters for that 12V cord. This Respironics lead-acid battery featured on this page does not include any 12V cords or adapters. Related Products... 58 Series 12V Converter Our Price: $79.99 Add 12V Cord Our P rice: $27.00 Add l, IntelliPAP 12V Cord Our Price: $20.00 Add ResHed 24V Converter Our Price: $89.00 Add Battery Adapter Cable and 12V Cord Our Price: $43.00 Add I PowerVerter I nverter - ISO W Our P rice: $45.00 Add 1 0f3 11 124/2010 t I :30 AM#

Page 7Uni versal Portable Batlery Pack http://www.cpap-supply.comlUniversal-Portable-Battery-Pack-pI I028 ... Accou n t s 1 1 /13/09 R e cognizing S l eep Apnea 9/15/09 Deregulating CP A P Equipment. 9/ 15 /09 T rou b leshooting CP A P Problems. 5/1 1 /09 i nt elliPAP SmartLink System ... 4/8/09 - Are Ins u r ance C om panies C r a z y . .. 1 /15/09 - Mirage A ctiva LT D e si gn .. . 12/ 2 4/ 0 8 R e s M ed Pricing Policy Change. 12/10/08 - Aerophagia in CPAP Users .. 11 /11/08 - How S e vere is You r 5 le e p .. 7/22/08 - 5 Tips fo r I mproved C PA P .. 7 / 22/0 8 - Pr e scr i p tions for CP A P , .. 3 /26/08 - M i rage Mi cro Design . .. 3/7/08 - CP AP Mask Ins ur ance ... 1/1 2 /08 - ResMed S8 IT CPAP ... 11/28/07 - EncoreViewer 1.0 .. . 1 1/ 1 4/07 - CPAP T ub i ng Wrap . 10/2 4 /07 B r e athing New Li f e . .. 9/ 24 /07 - M i rage Quattro Design . .. 8/5/07 - Battery Powered CPAP. 7/2 2/07 W he re's my R E M star. 7/ 1 6 / 07 - Is CP A P P r ess ur e. Take your CPAP machine anywhere with our CPAP battery! Share your knowledge of this product with other customers... Be the first to write a review Browse for more products in the same category as this item: CPAP Accessories CPAP Accessories > Battery Packs CPAP Accessories > Machine Cords and Cables 2 f 3 I 1/24/20 I 0 II :30 AM#

Page 8Universal Portable Battery Pack http://www.cpap-supply.comlUni versal- Portabl e-Battery-Pack-pll 028 ... CPAP-supply.oom About Us Privacy Polley Send Us Feedback Bookmark Us (CTR L+D) 4720 E. w m ow Spnngs Rd . Spokane, WA 99223 ToU Free 888-955-2 727 Fax 509 -448-1 540 Company Info I Links I Product Index I Category Index I Help I Tenns I CMS 50F Pulse Oximeter Copyright © 2010 Senske CPAP Supply , Inc.. All Rights Reserved . Some Images Pnovided by ResMed © ResMed 20 10 Used with Penn ission Shopping Cart Software by Vo lusion 3 of] 11/24/2010 I I :30 AM#

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