{"operation":"document","citation":"04-0173","title":"Howrey Simon Arnold & White, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-08-10","effective_on":null,"summary":"04-0173 response to Howrey Simon Arnold & White, LLP concerning 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0173.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0173.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0173","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040173.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSpecial Programs\nResearch and\nAdministration\nAUG 1 0 2004\nMs. Saskia Mooney\nRef No.: 04-0173\nManager\nHowrey Simon Arnold & White, LLP\n1299 Pennsylvania Ave, NW\nWashington, DC 20004\nDear Ms. Mooney:\nThis is in response to your letter dated July 29, 2004 requesting clarification of the wet battery\n171-180). Specifically, you ask if § 173.159(e) requires the driver of the transport vehicle to be\nexception found in § 173.159(e) of the Hazardous Materials Regulations (HMR; 49 CFR Parts\nan employee of the shipper.\nShipments of electric storage batteries are excepted from the HMR if the provisions found in\nthe transport vehicle being employed by the shipper. Thus, a shipper may utilize the exception\n§ 173.159(e)(1)-(4) are met. The exception in § 173.159(e) is not contingent upon the driver of\neven if the driver of the transport vehicle is not employed by the shipper.\nI hope this information is helpful. Please contact us if you require additional assistance.\nOffice of Hazardous Materials Standards\n040173\n173.159 (e)\n\n<<<PAGE 2>>>\n\n-\nJUL. 28. 2004 11:50AM\nHOWREY-SIMON\nNO. 580\nP. 2\nCAPANALYSIS\nSapko\n3173.159 (e)\nSaskia Mooney\nManager\nBatteries\nDIRECT: 202-383-7350\nmooneys@capanalysis.com\n04-0173\nJuly 29, 2004\nMr. Edward Mazzullo\nDirector of Hazardous Materials Standards\nResearch and Special Programs Administration\nU.S. Department of Transportation\n400 7\" Street, SW\nWashington, DC 20590\nRe:\nRequest for Interpretation on Shipping Lead Batteries Pursuant to\n49 CFR $ 173.159(e) Exception\nDear Mr. Mazzullo:\nI am writing on behalf of Battery Council Interational (BCT) with a question regarding\nthe provisions for shipping lead batteries pursuant to the exception contained in 49 CFR §\n173.159(e) of the U.S. hazardous material regulations (HMR).\nBCI is a non-profit trade association representing commercial entities involved in the\nmanufacture, distribution, sale and reclamation of lead acid batteries around the world. BCIs\nmembers and associate members include manufacturers and distributors of lead acid storage\nand secondary lead smelters that reclaim or recycle the batteries once they are spent. Additional\nbatteries for automotive, marine, industrial, stationary, specialty, consumer and commercial uses,\ninformation on BCI and its members can be found at www.batterycouncil.org.\nMany BCI members offer and transport their products pursuant to the exception found at\n49 CFR § 173.159(e) of the HMR. This provision in the HMR states that:\n(e) Electric storage batteries containing electrolyte or corrosive battery fluid are\nnot subject to the requirements of this subchapter for transportation by highway\nor rail if all of the following requirements are met:\n(1) No other hazardous materials may be transported in the same vehicle;\n(2) The batteries must be loaded or braced so as to prevent damage and\nshort circuits in transit;\nAMSTERDAM\nCHICAGO HOUSTON\nIRVINE\nLONDON\nLOS ANGELES\nMENLO PARK SAN FRINCISCO\nWASHINGTON, DC\n\n<<<PAGE 3>>>\n\n-\n- JUL. 29.2004 11:50AM\nHOWREY-SIMON\nNO. 580\nP. 3\n(3) Any other material loaded in the same vehicle must be blocked, braced,\nor otherwise secured to prevent contact with or damage to the batteries;\n(4) The transport vehicle may not carry material shipped by any person other\nthan the shipper of the batteries.\nAs you know, if a shipper or carrier complies with all the requirements of 49 CFR\n173.159(e), a consignment of batteries does not require markings, placards, shipping papers, or a\ntransportation enforcement authorities in the field interpret the exception contained at 49 CFR §\nClass 8 corrosive label. Unfortunately, BCI members frequently have problems with how State\n173.159(e). Recently, several BCI members were issued citations by State authorities for what\nenforcement authorities assert that if the driver of a truck laded with lead batteries is not an\nthey assert were violations under 49 CFR § 173.159(e)(4). These State transportation\nemployee of the shipper of record, the batteries cannot be shipped under the exception in 49 CFR\n§ 173.159(e). This clearly appears to be a misinterpretation of the HMR. Therefore, I writing to\nrequest that you provide an answer to the following question:\nIn order for a shipper or carrier to offer or transport lead\nbatteries under the exception contained at 49 CFR § 173.159(e),\nmust the driver of the transport vehicle delivering the batteries\nalso be an employee of the shipper?\nI would appreciate if your office could expedite this request for interpretation since the\ncompany that was issued a citation has a hearing on this matter in September. Please contact me\nat 202-383-7350 if you have any questions.\nThank you.\nSincerely,\nSackin Money 198\nSaskia Mooney\n2","truncated":false,"body_characters":4774}