Keller and Heckman, LLP — Hazardous Materials Safety Interpretation

Page 11200 New Jersey Avenue, SE Washington, DC 20590 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration June 29, 2022 Trent Doyle Keller and Heckman, LLP 1001 G Street, NW Washington, D.C. 20001 Reference No. 22-0024 Dear Mr. Doyle: This letter is in response to your April 7, 2022, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to placarding requirements for certain lead acid battery shipments. You state that “UN2794, Batteries, wet, filled with acid, electric storage, 8” will be shipped by a motor carrier from a stateside facility and taken to a port where the batteries will be loaded on a vessel and transported overseas. The batteries will be packaged in intermodal containers that will be placarded and the completed packages will be prepared in accordance with the International Maritime Dangerous Goods (IMDG) Code. Furthermore, you state the motor vehicle portion of the shipment will be transported in accordance with § 173.159(e), which to your understanding provides a general exception from the HMR when batteries containing acid are transported via motor vehicle. Therefore, you ask whether motor vehicle drivers who are transporting these batteries to the port for vessel transportation are required to have a commercial driver’s license (CDL) hazardous materials endorsement in accordance with the Federal Motor Carrier Safety Regulations (FMCSR) even though the intermodal containers are placarded to satisfy the IMDG Code requirements for vessel transportation. The answer is no. For purposes of the FMCSR, a hazardous materials endorsement on a CDL is required for operation of a motor vehicle used to transport hazardous materials as defined in 49 CFR 383.5. The FMCSR define hazardous materials as any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under Subpart F of 49 CFR Part 172; or any quantity of material listed as a select agent or toxin in 42 CFR Part 73. Additionally, for purposes of the HMR, if all the requirements provided in § 173.159(e) are met, wet electric storage batteries are not subject to any other requirements of the HMR—including placarding—except for incident reporting requirements found in §§ 171.15 and 171.16. Thus, it is the understanding of this Office, that a driver of a commercial motor vehicle transporting this material would not be subject to the requirements of the FMCSR for a hazardous materials#

Page 2endorsement on a CDL because the material is neither subject to placarding nor a select agent or toxin. Note, in accordance with § 172.502(c), placards may be displayed for a hazardous material— even when not required—if the placarding otherwise conforms to the requirements of the HMR and thus permissive placarding does not trigger the requirements for a hazmat endorsement. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Dirk Der Kinderen Chief, Standards Development Branch Standards and Rulemaking Division#

Page 3Baker From: Kelley, Shane (PHMSA) To: Cc: Date: Attachments: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA) DerKinderen, Dirk (PHMSA); Foster, Glenn (PHMSA); Nickels, Matthew (PHMSA) Subject: Fwd: request for interpretation Thursday, April 7, 2022 8:17:07 PM placarding letter of interpretation request April 2022.pdf 22-0024 Please process accordingly thank you. From: Doyle, Trent <Doyle@khlaw.com> Sent: Thursday, April 7, 2022 4:33:39 PM To: Kelley, Shane (PHMSA) <shane.kelley@dot.gov> Cc: DerKinderen, Dirk (PHMSA) <Dirk.DerKinderen@dot.gov> Subject: request for interpretation CAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or open attachments unless you recognize the sender and know the content is safe. Gentlemen, Please see attached request for letter of interpretation regarding applicability of placarding requirements to certain lead acid battery shipments. Let me know if there are any questions about the request. (I note that Ref. No. 15-0075 appears to address a somewhat similar scenario.) Thank you. Best regards, Keller and Heckman LLP logo Trent Doyle Partner direct 202.434.4161 Doyle@khlaw.com Keller and Heckman LLP | 1001 G Street NW, Suite 500 West | Washington, DC 20001 khlaw.com PackagingLaw.com Serving Business through Law and Science® Washington, DC Brussels San Francisco Shanghai Boulder This message and any attachments may be confidential and/or subject to the attorney/client privilege, IRS Circular 230 Disclosure or otherwise protected from disclosure. If you are not a designated addressee (or an authorized agent), you have received this e-mail in error, and any further use by you, including review, dissemination, distribution, copying, or disclosure, is strictly prohibited. If you are not a designated addressee (or an authorized agent), we request that you immediately notify us by reply e-mail and delete it from your system.#

Page 4khlaw.com 202.434.4100 Keller and Heckman LLP 1001 G Street, NW Suite 500 West Washington, DC 20001 Writer’s Direct Access T r e n t D o y l e ( 2 0 2 ) 4 3 4 - 4 1 6 1 d o y l e @ k h l a w. c o m April 7, 2022 Via Electronic Mail Shane Kelley Standards and Rulemaking Division Pipeline and Hazardous Materials Safety Administration Attn: PHH-10 U.S. Department of Transportation, East Building 1200 New Jersey Avenue, SE Washington, DC 20590-0001 Re: Request for Letter of Interpretation – Placarding Requirements for certain lead acid battery shipments Dear Mr. Kelley: Consistent with 49 C.F.R. § 105.20(a)(4), the purpose of this letter is to request clarification regarding the applicability of placarding requirements under the U.S. Department of Transportation (DOT) hazardous materials regulations (HMR) to the transport of certain lead acid batteries. Specifically, lead acid batteries (UN2794) are to be shipped from a U.S. facility by motor carrier to a port and then loaded onto a vessel for overseas transport. The batteries will be shipped in intermodal containers and, to facilitate international transport, the shipments will be prepared in compliance with the IMDG Code, which will include placarding of the intermodal containers. Per 49 C.F.R. § 171.25(a), a hazardous material may be transported to/from/within the U.S. by vessel and by motor carrier in accordance with the IMDG Code provided all or part of the movement is by vessel. 49 C.F.R. § 171.25(b)(1) provides, in part, that for transportation by highway prior to transportation by vessel of a hazardous material in accordance with IMDG Code, the motor vehicle must be placarded in accordance with subpart F of 49 C.F.R. part 172. Washington, DC Brussels San Francisco Shanghai Boulder This document was delivered electronically.#

Page 5Shane Kelley Standards and Rulemaking Division Page 2 However, in this case, for the ground leg, the batteries will be shipped in compliance with 49 C.F.R. § 173.159(e), and, accordingly, no other requirements of the HMR, including placarding, are applicable. Considering the above, we understand that because placarding is not required under subpart F of 49 C.F.R. part 172 for the ground leg by virtue of the relief provided under 49 C.F.R. § 173.159(e), the drivers of motor vehicles carrying the batteries in intermodal containers to the port would not need to have a CDL with a hazmat endorsement in accordance with 49 C.F.R. § 383.93(b)(4). Please confirm whether PHMSA agrees with this interpretation. Thank you for your assistance with this request. Please contact me at (202) 434-4161 or doyle@khlaw.com if you have any questions or desire additional information. Sincerely, Trent Doyle This document was delivered electronically. Keller and Heckman LLP#