{"operation":"document","citation":"13-0134","title":"Battery USA — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-08-29","effective_on":null,"summary":"13-0134 response to Battery USA concerning 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0134.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0134.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0134","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130134.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Avenue, SE\nWashington. DC 20590\nAUG 2 9 2013\nMr. Jim Lawless\nBattery USA\n1840 S Combee Rd.\nLakeland, FL 33801\nRef. No.: 13-0134\nDear Mr. Lawless\nThis is in response to your June 20, 2013 email requesting clarification of exceptions for\nwet (electric storage) batteries under the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180). Specifically you request confirmation that your company's practice of\nexchanging a new battery for a used battery complies with the condition found in\n§ 173.159(e)(4). You contend that after the transaction is completed you become the\nshipper of all of the batteries on the transport vehicle. You ask if this practice complies\nwith the requirements found in § 173.159(e)(4).\nSection 173.159(e) provides relief from the requirements of the HMR for highway or rail\nshipments of electric storage batteries containing electrolyte or cotTosive battery fluid\nwhen the following conditions are met:\n(1) No other hazardous materials are transported in the same vehicle;\n(2) The batteries are loaded or braced to prevent damage or short circuits during\ntransportation;\n(3) Any other material loaded in the same vehicle is blocked, braced, or otherwise secured\nto prevent contact with or damage to the batteries; and\n( 4) The transport vehicle does not carry material shipped by any person other than the\nshipper of the batteries.\nFor purposes of the HMR, an \"offeror\" is any person who performs, or is responsible for\nperforming a pre-transportation function required under the HMR for transportation of a\nhazardous material in commerce, or who tenders or makes the hazardous material\navailable to a carrier for transportation in commerce (see § 171.8). The conditions\nrequired to be a shipper are independent of possession or ownership of cargo. If after\ntaking possession of the battery your company performs all pre-transportation functions\nnecessary for the shipment you are acting as the shipper of the batteries.\n\n<<<PAGE 2>>>\n\nI hope this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nSincerely,\n.::;----~--) / /_,..~.,.,. n ·-~- J J\n-.f___---· (,~ ~ ~. c.\nDuane Pfund\nInternational Standards oordinator\nStandards and Rulemaking Division\n-·----··--··--··------\n\n<<<PAGE 3>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent:\nTo:\nSubject: Tuesday, June 25, 2013 11:18 AM\nDrakeford, Carolyn (PHMSA)\nFW: HQ Feedback: Hazardous Materials Regulations Question\nHi Carolyn,\nThis caller requested we submit this e-mail as a formal letter of interpretation.\nThanks,\nVictoria\n-----Original Message-----\nFrom: PHMSA Webmaster\nSent: Thursday, June 20, 2013 4:50 PM\nTo: HMIS (PHMSA); PHMSA Webmaster\nSubject: HQ Feedback: Hazardous Materials Regulations Question\nTrying to get an interpretation of 173.159(e)(4) Batteries, Wet.\nWe are being told by a DOT official that when we sell a battery to a customer off of our route trucks, the exchange( old)\nbattery traded in for this purchase is voiding the exemption. Reason given was that the customer becomes another\n'shipper'. We contend that after the transaction is completed, the old trade in battery which is required as 'exchange'\nbecomes property of our company, therefore not creating another shipper. This is typical day to day route delivery\nbusiness similar to Interstate Battery, the largest battery distributor in the US. Can you provide info for us?\nJim\nAffiliation: Other()\nAddress: 1840 S Combee Road\nLakeland FL 33801\nPhone: 863-665-6317\nFax: 863-666-5004\nEmail: Lawless\n1\n\n<<<PAGE 4>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration Office of\nChief Counsel\n1200 New Jersey Avenue. S.E ..\nPHC-10, Room E26-33l\nWashington, D.C. 20590-0001\nPhone: (202}366-4400\nFax: (202) 366-7041\nEmail: joe.solomey@dot.gov\nHazardous Materials Safety\nLaw Division\nRef. No.: 10-0025\nLETTER OF INTERPRETATION\nNovember 4, 2009\nMr. Thomas E. Evans\nWal-Mart Stores, Inc.\n601 North Walton Boulevard, MS-L20\nBentonville, Arkansas 72716-0710\nDear Mr. Evans:\nThis letter is in response to the meeting that occurred on September 22, 2009 between\nMessrs. Sharkey, Dragash, yourself, and PHMSA. You asked PHMSA to clarify whether\nexception four in 49 C.F .R. § 173 .159( e) applies to only one shipper.\nThe answer to your question is yes, 49 C.F.R. §173.159(e)(4) applies to only one shipper.\nYou suggest there is ambiguity in reading exception four: the transport vehicle may not carry\nmaterial shipped by any person other than the shipper of the batteries. The Rules of\nConstruction, which are found in 49 C.F.R. §171.9, state that \"words imparting the singular\ninclude the plural\" and vice versa. Based on 49 C.F.R. § 171.9, the word shipper can be a\nsingular shipper, or it can be multiple shippers. This creates ambiguity.\nIf a regulation is ambiguous, we would consult the preamble of the final rule as evidence\nof context or intent of the agency promulgating the regulations. The preamble provides\n~uidance. In this situation, the preamble to the final rule stated that:\n\"interested persons were afforded an opportunity to participate in this rule\nmaking. Of the comments received no objection was taken to the\nprovisions of the basic proposal except that one comrnenter believes the\nexemption extension is discriminatory because rail transportation was not\nincluded. The Board will consider this comment as a petition for further\nrule making since such a proposal was not made by the Board in the\nnotice.\" HM-21, 34 Fed.Reg. 13871 (1969), 8/29/1969\n\n<<<PAGE 5>>>\n\n2\nThe preamble was silent with respect to this exception. There was no mention of any objections,\ntherefore no changes were proposed from the Notice of Proposed Rulemaking (NPRM.) In order\nto fully understand the intent of the exception, the preamble to the NPRM must be examined to\ndetermine the regulatory intent. It can be found under docket number HM-21, 34 Fed.Reg. 6444\n(1969), 4112/1969, which states:\nthe Board believes that the exception should cover only those shipments where a\nmotor vehicle is carrying only one shipper's goods. This limitation will thus\nachieve substantially the same type of control that is available in a private carriage\nshipment while not so limiting the types of carriage that may be used.\nThe plain language of the preamble to the NPRM clearly states only one shipper's goods are\nallowed on a transport vehicle under the exception. Interested parties had the opportunity to\ncomment on the NPRM. In the final rule, no one proposed a change to the NPRM, therefore the\noriginal intent of the NPRM should stand.\nTo be consistent with the intent of the NPRM, only one shipper's goods are allowed on a\ntransport vehicle under the exceptions listed in 49 C.F.R. § 173.159(e).\nI hope this information is helpful.\nSincerely,\n~lomey,..,...- .... \"-~~\":_:~-Assistant\nChief Counsel for\nHazardous Materials Safety\n2","truncated":false,"body_characters":6993}