Wiley Rein & Fielding LLP — Hazardous Materials Safety Interpretation

Page 1JAN 17 2006 Mr. George A. Kerchner Ref. No. 05-0312 Wiley Rein & Fielding LEP 1776 K Street NW Washington, DC 20006 Dear Mr. Kerchner: This responds to your letter of November 30, 2005, requesting clarification of the placarding requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if a shipper who offers a carrier a shipment consisting of excepted nonspillable lead acid batteries, Batteries, wet filled with acid, 8 UN2794 PG III and Battery fluid, acid, 8, UN2796, PG II must consider the weight of the excepted nonspillable batteries when determining the aggregate gross weight of Table 2 materials on the vehicle under §172.504(c) of the HMR? The answer is no. Hazardous materials listed in Table 2 in § 172.504(e) of the HMR that do not require placards are not included in the aggregate gross weight used for placarding determinations. I hope this information is helpful. Please contact us if you require additional assistance Sincerely, Office of Hazardous Materials Standards 172.504 €) 173.159(d) 050312#

Page 2PHONE • 202.719.7000 FAX. 202.719.7049 05.03/2 Virginia Office Mr. Edward Mazzullo 7925 JONES BRANCH DRIVE Pipeline and Hazardous Materials Safety Administration SUITE 6200 U.S. Department of Transportation MCLEAN, VA. 22102 RHONE 703.905.2800 400 7* Street, SW FAX 703.905.2820 Washington, DC 20590 Re: Request for Interpretation on Placarding Shipments of Nonspillable www.wrf.com Batteries, Batteries, Wet, Filled with Acid (UN2794), and Battery Fluid, Acid (UN2796) Dear Mr. Mazzullo: I am writing for a clarification on the placarding requirements for a shipper who offers a shipment consisting of the following materials: 1. Nonspillable lead acid batteries that are excepted from regulation pursuant to 49 CFR 173.159 (d); Batteries, wet, filled with acid (UN2794) - Offered as a Class 8 Corrosive hażardous material; and 3.. Battery fuid, acid (UN2796) - Offered as a Class 8 Corrosive hazardous material. It is a very common practice for a battery manufacturér or distributor to offer a carrier such as Yellow Freight or Roadway a single shipment consisting of Battery fluid, acid (UN2796), Batteries, wet, filled with acid (UN2794), and nonspillable lead acid batteries. The UN2794 and UN2796 materials are packaged and offered as fully regulated Class 8 Corrosive hazardous materials but the nonspillable batteries are packaged and offered pursuant to the exception found at 49 CFR 173.159(d). As you know, 49 CFR § 172.504(c) provides an exception from placarding requirements if the aggregate gross weight of certain hazardous materials including Class 8 Corrosives) is less than 1001 pounds.. However, the regulation is not explicit regarding how to calculate this weight when both regulated and non- regulated materials are included in a single shipment. My question therefore is as follows: If a shipper offers a carrier a shipment consisting of excepted nonspillable lead acid batteries, Batteries, wet, filled with acid (UN2794), and Battery fluid, acid (UN2796), must the shipper consider the weight#

Page 3of the excepted nonspillable batteries when determining the total weight of the hazardous materials? Thank you for your assistance on this matter. Sincerely, George A Kerchiner Goorge A, Kerchner#