Battery USA — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington. DC 20590 AUG 2 9 2013 Mr. Jim Lawless Battery USA 1840 S Combee Rd. Lakeland, FL 33801 Ref. No.: 13-0134 Dear Mr. Lawless This is in response to your June 20, 2013 email requesting clarification of exceptions for wet (electric storage) batteries under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically you request confirmation that your company's practice of exchanging a new battery for a used battery complies with the condition found in § 173.159(e)(4). You contend that after the transaction is completed you become the shipper of all of the batteries on the transport vehicle. You ask if this practice complies with the requirements found in § 173.159(e)(4). Section 173.159(e) provides relief from the requirements of the HMR for highway or rail shipments of electric storage batteries containing electrolyte or cotTosive battery fluid when the following conditions are met: (1) No other hazardous materials are transported in the same vehicle; (2) The batteries are loaded or braced to prevent damage or short circuits during transportation; (3) Any other material loaded in the same vehicle is blocked, braced, or otherwise secured to prevent contact with or damage to the batteries; and ( 4) The transport vehicle does not carry material shipped by any person other than the shipper of the batteries. For purposes of the HMR, an "offeror" is any person who performs, or is responsible for performing a pre-transportation function required under the HMR for transportation of a hazardous material in commerce, or who tenders or makes the hazardous material available to a carrier for transportation in commerce (see § 171.8). The conditions required to be a shipper are independent of possession or ownership of cargo. If after taking possession of the battery your company performs all pre-transportation functions necessary for the shipment you are acting as the shipper of the batteries.#

Page 2I hope this information is helpful. If you have further questions, please do not hesitate to contact this office. Sincerely, .::;----~--) / /_,..~.,.,. n ·-~- J J -.f___---· (,~ ~ ~. c. Duane Pfund International Standards oordinator Standards and Rulemaking Division -·----··--··--··------#

Page 3Drakeford, Carolyn (PHMSA) From: INFOCNTR (PHMSA) Sent: To: Subject: Tuesday, June 25, 2013 11:18 AM Drakeford, Carolyn (PHMSA) FW: HQ Feedback: Hazardous Materials Regulations Question Hi Carolyn, This caller requested we submit this e-mail as a formal letter of interpretation. Thanks, Victoria -----Original Message----- From: PHMSA Webmaster Sent: Thursday, June 20, 2013 4:50 PM To: HMIS (PHMSA); PHMSA Webmaster Subject: HQ Feedback: Hazardous Materials Regulations Question Trying to get an interpretation of 173.159(e)(4) Batteries, Wet. We are being told by a DOT official that when we sell a battery to a customer off of our route trucks, the exchange( old) battery traded in for this purchase is voiding the exemption. Reason given was that the customer becomes another 'shipper'. We contend that after the transaction is completed, the old trade in battery which is required as 'exchange' becomes property of our company, therefore not creating another shipper. This is typical day to day route delivery business similar to Interstate Battery, the largest battery distributor in the US. Can you provide info for us? Jim Affiliation: Other() Address: 1840 S Combee Road Lakeland FL 33801 Phone: 863-665-6317 Fax: 863-666-5004 Email: Lawless 1#

Page 4U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration Office of Chief Counsel 1200 New Jersey Avenue. S.E .. PHC-10, Room E26-33l Washington, D.C. 20590-0001 Phone: (202}366-4400 Fax: (202) 366-7041 Email: joe.solomey@dot.gov Hazardous Materials Safety Law Division Ref. No.: 10-0025 LETTER OF INTERPRETATION November 4, 2009 Mr. Thomas E. Evans Wal-Mart Stores, Inc. 601 North Walton Boulevard, MS-L20 Bentonville, Arkansas 72716-0710 Dear Mr. Evans: This letter is in response to the meeting that occurred on September 22, 2009 between Messrs. Sharkey, Dragash, yourself, and PHMSA. You asked PHMSA to clarify whether exception four in 49 C.F .R. § 173 .159( e) applies to only one shipper. The answer to your question is yes, 49 C.F.R. §173.159(e)(4) applies to only one shipper. You suggest there is ambiguity in reading exception four: the transport vehicle may not carry material shipped by any person other than the shipper of the batteries. The Rules of Construction, which are found in 49 C.F.R. §171.9, state that "words imparting the singular include the plural" and vice versa. Based on 49 C.F.R. § 171.9, the word shipper can be a singular shipper, or it can be multiple shippers. This creates ambiguity. If a regulation is ambiguous, we would consult the preamble of the final rule as evidence of context or intent of the agency promulgating the regulations. The preamble provides ~uidance. In this situation, the preamble to the final rule stated that: "interested persons were afforded an opportunity to participate in this rule making. Of the comments received no objection was taken to the provisions of the basic proposal except that one comrnenter believes the exemption extension is discriminatory because rail transportation was not included. The Board will consider this comment as a petition for further rule making since such a proposal was not made by the Board in the notice." HM-21, 34 Fed.Reg. 13871 (1969), 8/29/1969#

Page 52 The preamble was silent with respect to this exception. There was no mention of any objections, therefore no changes were proposed from the Notice of Proposed Rulemaking (NPRM.) In order to fully understand the intent of the exception, the preamble to the NPRM must be examined to determine the regulatory intent. It can be found under docket number HM-21, 34 Fed.Reg. 6444 (1969), 4112/1969, which states: the Board believes that the exception should cover only those shipments where a motor vehicle is carrying only one shipper's goods. This limitation will thus achieve substantially the same type of control that is available in a private carriage shipment while not so limiting the types of carriage that may be used. The plain language of the preamble to the NPRM clearly states only one shipper's goods are allowed on a transport vehicle under the exception. Interested parties had the opportunity to comment on the NPRM. In the final rule, no one proposed a change to the NPRM, therefore the original intent of the NPRM should stand. To be consistent with the intent of the NPRM, only one shipper's goods are allowed on a transport vehicle under the exceptions listed in 49 C.F.R. § 173.159(e). I hope this information is helpful. Sincerely, ~lomey,..,...- .... "-~~":_:~-Assistant Chief Counsel for Hazardous Materials Safety 2#