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Interpretation Response #13-0051 ([Occidental Chemical Company] [Mr. Norman Dodson])

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

Interpretation Response Details

Response Publish Date:

Company Name: Occidental Chemical Company

Individual Name: Mr. Norman Dodson

Location State: KS Country: US

View the Interpretation Document

Response text:

February 18, 2014

Mr. Norman Dodson
Technical Services
Occidental Chemical Company
6200 South Ridge Road
Wichita, KS  67026

Reference No. 13-0051

Dear Mr. Dodson:

This is in response to your letter, e-mails, and telephone conversations with a member of my staff requesting that Pipeline and Hazardous Materials Safety Administration (PHMSA) reconsider its response in its December 11, 2012 clarification letter, Reference No. 12-0208, to you concerning the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the Materials of Trade (MOTs) regulations.  Specifically, you ask if the portion of transportation where your customers’ employees transport chemical samples by private motor vehicle from their places of business to the facilities of companies they hire (e.g., FedEx) to package and prepare these samples for transportation on your customers’ behalf allows the samples to qualify as MOTs.  

In addition, you state the following:  

• Your company supplies these products to its customers in bulk packages and the samples returned to your company are packaged in quantities of one pint or less;
• The chemical products your company supplies its customers meet the following hazard class definitions:  Divisions 5.1 (oxidizer) Packing Group (PG) II, and 6.1 (poisonous) PG II and III, and Class 8 (corrosive) PG II and III; and
• Your customers’ employees are not hazmat trained in conformance with Subpart H (Training) of Part 172 the HMR, and do not possess the packaging and other materials needed to prepare these samples for transportation.  

The answer is no.  The intent of the MOTs exception is to provide relief for a private carrier that permits him or her to transport by motor vehicle certain hazardous materials, other than hazardous waste, that are used in direct support of the carrier’s principal business other than transportation (see § 171.8).  Although the HMR do not specifically define “direct support of a principal business that is other than transportation,” it is this Office’s intent that this phrase means the company is transporting its own business products for the purpose of carrying out the activities of its business and not to offer these materials for transportation.  Therefore, a hazardous material prepared in conformance with the MOTs requirements no longer qualifies as a MOTs the moment a shipper offers it for transportation in a manner not authorized under § 173.6.  However, the HMR permits the hazard classes you described, with certain exceptions, to be transported by motor vehicle, rail car, and aircraft, in combination packagings that comply with the provisions in 
§ 173.13.  Packagings that comply with § 173.13 are excepted from the labeling, placarding, and segregation requirements of the HMR.  Please note that this exception does not permit materials that are poisonous by inhalation to be transported by motor vehicle, railcar, or aircraft.  Also, while employees that transport hazardous materials under the MOTs exception must be trained on and comply only with the MOTs requirements prescribed in § 173.6, employees that transport hazardous materials in conformance with § 173.13 must be hazmat trained in conformance with 49 CFR Part 172, Subpart H (Training).  

I hope this satisfies your request.

Sincerely,

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

173.6, 173.13

Regulation Sections

Section Subject
173.13 Exceptions for Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and Classes 8 and 9 materials
173.6 Materials of trade exceptions