Howrey Simon Arnold & White, LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation 400 Seventh St., S.W. Washington, D.C. 20590 Special Programs Research and Administration AUG 1 0 2004 Ms. Saskia Mooney Ref No.: 04-0173 Manager Howrey Simon Arnold & White, LLP 1299 Pennsylvania Ave, NW Washington, DC 20004 Dear Ms. Mooney: This is in response to your letter dated July 29, 2004 requesting clarification of the wet battery 171-180). Specifically, you ask if § 173.159(e) requires the driver of the transport vehicle to be exception found in § 173.159(e) of the Hazardous Materials Regulations (HMR; 49 CFR Parts an employee of the shipper. Shipments of electric storage batteries are excepted from the HMR if the provisions found in the transport vehicle being employed by the shipper. Thus, a shipper may utilize the exception § 173.159(e)(1)-(4) are met. The exception in § 173.159(e) is not contingent upon the driver of even if the driver of the transport vehicle is not employed by the shipper. I hope this information is helpful. Please contact us if you require additional assistance. Office of Hazardous Materials Standards 040173 173.159 (e)#

Page 2- JUL. 28. 2004 11:50AM HOWREY-SIMON NO. 580 P. 2 CAPANALYSIS Sapko 3173.159 (e) Saskia Mooney Manager Batteries DIRECT: 202-383-7350 mooneys@capanalysis.com 04-0173 July 29, 2004 Mr. Edward Mazzullo Director of Hazardous Materials Standards Research and Special Programs Administration U.S. Department of Transportation 400 7" Street, SW Washington, DC 20590 Re: Request for Interpretation on Shipping Lead Batteries Pursuant to 49 CFR $ 173.159(e) Exception Dear Mr. Mazzullo: I am writing on behalf of Battery Council Interational (BCT) with a question regarding the provisions for shipping lead batteries pursuant to the exception contained in 49 CFR § 173.159(e) of the U.S. hazardous material regulations (HMR). BCI is a non-profit trade association representing commercial entities involved in the manufacture, distribution, sale and reclamation of lead acid batteries around the world. BCIs members and associate members include manufacturers and distributors of lead acid storage and secondary lead smelters that reclaim or recycle the batteries once they are spent. Additional batteries for automotive, marine, industrial, stationary, specialty, consumer and commercial uses, information on BCI and its members can be found at www.batterycouncil.org. Many BCI members offer and transport their products pursuant to the exception found at 49 CFR § 173.159(e) of the HMR. This provision in the HMR states that: (e) Electric storage batteries containing electrolyte or corrosive battery fluid are not subject to the requirements of this subchapter for transportation by highway or rail if all of the following requirements are met: (1) No other hazardous materials may be transported in the same vehicle; (2) The batteries must be loaded or braced so as to prevent damage and short circuits in transit; AMSTERDAM CHICAGO HOUSTON IRVINE LONDON LOS ANGELES MENLO PARK SAN FRINCISCO WASHINGTON, DC#

Page 3- - JUL. 29.2004 11:50AM HOWREY-SIMON NO. 580 P. 3 (3) Any other material loaded in the same vehicle must be blocked, braced, or otherwise secured to prevent contact with or damage to the batteries; (4) The transport vehicle may not carry material shipped by any person other than the shipper of the batteries. As you know, if a shipper or carrier complies with all the requirements of 49 CFR 173.159(e), a consignment of batteries does not require markings, placards, shipping papers, or a transportation enforcement authorities in the field interpret the exception contained at 49 CFR § Class 8 corrosive label. Unfortunately, BCI members frequently have problems with how State 173.159(e). Recently, several BCI members were issued citations by State authorities for what enforcement authorities assert that if the driver of a truck laded with lead batteries is not an they assert were violations under 49 CFR § 173.159(e)(4). These State transportation employee of the shipper of record, the batteries cannot be shipped under the exception in 49 CFR § 173.159(e). This clearly appears to be a misinterpretation of the HMR. Therefore, I writing to request that you provide an answer to the following question: In order for a shipper or carrier to offer or transport lead batteries under the exception contained at 49 CFR § 173.159(e), must the driver of the transport vehicle delivering the batteries also be an employee of the shipper? I would appreciate if your office could expedite this request for interpretation since the company that was issued a citation has a hearing on this matter in September. Please contact me at 202-383-7350 if you have any questions. Thank you. Sincerely, Sackin Money 198 Saskia Mooney 2#