Wiley Rein LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, D.C. 20590 MAR 0 6 2014 Mr. George Kerchner Senior Regulatory Analyst Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 Ref. No. 14-0003 Dear Mr. Kerchner: This responds to your January 6, 2014 email regarding the exception for wet electric storage batteries specified in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) in § 173 .159( e). Specifically you ask if a carrier can utilize the exception for electric storage batteries in § 173.159 when the transport vehicle also contains, lithium batteries prepared in accordance with § 172.1 02( c), special provisions 188 of 189 or nickel metal hydride batteries prepared in accordance with § 172.1 02( c), special provision 130. The answer is no. One of the conditions specified in § 173 .159( e) states that no other hazardous materials may be transported in the same vehicle. The definition of a hazardous material does not exclude materials that meet one or more of the defining criteria but are being transported under exceptions. Therefore, if the transport vehicle contains any other hazardous materials, even those excepted from all or part of the HMR (e.g., lithium batteries prepared in accordance with special provisions, limited quantities, materials of trade etc.), the exception in § 173.159(e) does not apply. I hope this information is helpful. If you have further questions, please contact this office. Sincerely, -~:.:: ~~'Lt /l ·rr~-- _,~J International Standards Coordinator Office of Hazardous Materials Standards#

Page 2lJrakeford, Carolyn (PHMSA) From: Sent: To: Subject: INFOCNTR (PHMSA) Monday, January 06, 2014 3:22PM Bet +Jeri-e.:; I Lf -OOD3 Drakeford, Carolyn (PHMSA) FW: Request for Interpretation: 49 CFR 173.159(e) and Special Provisions 188 and 189 and Special Provision 130 From: Kerchner, George [mailto:GKerchner@wileyrein.com] Sent: Monday, January 06, 2014 10:36 AM To: INFOCNTR (PHMSA) Subject: Request for Interpretation: 49 CFR 173.159(e) and Special Provisions 188 and 189 and Special Provision 130 January 6, 2014 U.S. DOT PHMSA Office of Hazardous Materials Standards Attn: PHH-10 East Building 1200 New Jersey Avenue, SE. Washington, DC 20590-0001 Re: Request for Interpretation on 49 CFR 173.159(e) and Special Provisions 188 and 189 and Special Provision 130 I am writing to request a letter of interpretation on the following scenario: May a vehicle transporting lead batteries (UN2794) under the exception found at 49 CFR 173.159(e) still take advantage of this exception if it also contains the following batteries: 1. 2. Lithium batteries (UN3090 or UN3091) packaged in accordance with Special Provisions 188 and 189; or Batteries, nickel metal hydride (UN3496) packaged in accordance with Special Provision 130? 49 CFR 173.159( e) provides an exception from the HMR for lead batteries that are transported by highway and rail provided the four requirements under 173.159(e) are met. The first requirement under 49 CFR 173.159(e) states "No other hazardous materials may be transported in the same vehicle;" See 49 CFR 1 73.15 9( e )(1). (Emphasis added.) Lithium batteries packaged and offered for transportation in accordance with Special Provisions 188 and 189 are not declared or shipped as fully-regulated hazardous materials and are not subject to any other requirements of the HMR. Nickel metal hydride batteries are only regulated as hazardous materials when transported by sea and thus are excepted from the HMR when packaged in accordance with Special Provision 130. Therefore, it would appear in the two scenarios above that these batteries could in fact be transported on the same vehicle with lead batteries (UN2794) that are being transported under the exception found at 49 CFR 173.159(e). Thank you for your assistance. Sincerely, 1#

Page 3George A. Kerchner I Senior Regulatory Analyst I Wiley Rein LLP 11776 K Street NW I Washington, DC 20006 (Tel) 202.719.4109 I (Fax) 202.719.7049 I GKerchner@wileyrein.com NOTICE: This message (including any attachments) from Wiley Rein LLP may constitute an attorney-client communication and may contain information that is PRIVILEGED and CONFIDENTIAL and/or ATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that any dissemination ofthis message is strictly prohibited. If you have received this message in error, please do not read, copy or forward this message. Please permanently delete all copies and any attachments and notify the sender immediately by sending an e-mail to Information@wileyrein.com. As part of our environmental efforts, the firm is WILEY GREEN<TMl. Please consider the environment before printing this email. 2#