Wiley Rein & Fielding LLP — Hazardous Materials Safety Interpretation

Page 1S. Departmel Transportatic Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Hazardous Materials Safety Administration OCT 2 5 2006 Mr. George A. Kerchner Ref. No.: 06-0230 1776 K Street, NW Wiley Rein & Fielding LLP Washington, DC 20006 Dear Mr. Kerchner: This is in response to your October 2, 2006 letter concerning the transportation of "Battery fluid, acid, 8, UN 2796, PG II" with dry (new, empty) batteries under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). In your letter you describe the following scenario: • A dry battery (i.e., a lead acid battery that has not yet been filled with acid) is packaged in a fiberboard box that is marked and labeled for a corrosive material. • A bottle containing battery fluid, acid (UN2796) renamed "Consumer commodity" and reclassed "ORM-D" in accordance with § 173.154(b) and (c) and is packaged in a 4G fiberboard box that is properly marked in accordance with §§ 172.312 and 172.316. • These two packages are overpacked in a larger fiberboard box that is marked with orientation arrows and "Consumer commodity, ORM-D." Specifically, you ask if the package containing the dry battery, which is a non-hazardous material, may remain marked and labeled as a corrosive material if it is overpacked in a way that the corrosive markings and labels are not visible during transportation. The answer is yes, provided the packaging containing the dry battery is transported in such a larger fiberboard box), and is loaded by the shipper and unloaded by the shipper or consigner nanner that the markings and label are not visible during transportation (e.g., overpacked in (see §§ 172.303(b) and 172.401(d)). I hope this information is helpful. If you have further questions, please do not hesitate to contact this office. Sincerely. Hattie L. Mitchell Office of Hazardous Materials Standards Chief, Regulatory Review and Reinvention 173.159(€) 113.303 b) 060230 172.4016)#

Page 2WRF, LLP FAX CTR Fax: 202-719-7049 Oct 6. 2006 17:20 P. 02 Pollack Wiley Rein & Fielding LLP $173.159 (e) Batteries 08-8230 WASHINGTON, OC 20006 1776K STREET NW October 4, 2006 202.719.4109 George Kerchner gkerchner@wrf.com : 202.719.7049. YES DOES BRANCH DAVE Mr. Edward Mazzullo MCLEAN, VA 22102 SUITE 6200 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration PAX PHONE 703.905.2800 400 7' Street, SW 703.905.2820 Washington, DC 20590 www.wrt.com Re: Request for Interpretation Dear Mr. Mazzullo: certain lead acid battery products classified as Consumer Commodities. I am writing to request an interpretation on the requirements for shipping The U.S. DOT agreed in 2004 that certain lead acid battery products may be products consist of battery electrolyte in a plastic container of less than 1 liter that shipped as a Consumer Commodities. (See DOT letter Ref. No. 04.01.50.) Those "fresh packs" and are used in motorcycles, ATVs, snow mobiles, etc. For years the are packed with a dry lead acid battery. These products are commonly referred to as manufacturers and distributors are now reclassifying and offering these as battery industry shipped these as Class 8 Corrosive hazardous materials but more Consumer Commodities. During the transition from Class & Corrosive to Consumer Commodity a significant amount of changes to the fresh pack packaging is required. As a result, the question I have pertains to the following packaging scheme: 1. A fresh pack retail box (containing a 1 liter plastic container of battery electrolyte and a dry lead acid battery) is marked, labeled, and packed as a Class 8 Corrosive hazardous material. 2. In order to take advantage of the Consumer Commodity reclassification, a distributor would like to repackage the fresh pack as follows: a. Remove the 1 liter of battery electrolyte from the ietail box and place it in a 4G fiberboard box that will be marked with the Consumer Commodity/ORM-D markings and orientation arrows; b. Leave the dry lead acid battery in the retail box thạt will remain marked and labeled as a Class 8 Corrosive hazardous material; c. The battery electrolyte (marked as Consumer Commodity) and dry lead battery (marked and labeled as Class 8. Corrosive) will then be placed in an overpack that is marked Consumer Commodity/ORM-D.#

Page 3WRF, LLP FAX CTR Fax: 202-719-7049 Oct 6 2006 17:21 P. 03 Wiley Rein & Fielding uP October 4, 2006 Page 2 without battery electrolyte are not regulated as Class 8 Corrosive hazardous It is very important to recognize that dry lead acid batteries shipped materials. described in paragraph 1.c. above. Can a dry lead acid battery that is rarked and My question pertains to the packaging, marking, and labeling scenario as that is marked and packed as a Consumer Commodity be placed separately in an labeled as a Class 8 Corrosive hazardous material and a liter of Battery fluid, acid the appropriate Consumer Commodity/ORM-D and orientation arrow markings on overpack and then offered for transportation as a Consumer Commodity (with only the overpack)? Thank you for your assistance. Sincerely, George A. Kerchiner George A. Kerchiner.#