{"operation":"document","citation":"22-0024","title":"Keller and Heckman, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-06-29","effective_on":null,"summary":"22-0024 response to Keller and Heckman, LLP concerning 171.15, 171.16, 172.502, 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0024.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0024.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0024","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76596/220024.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nJune 29, 2022\nTrent Doyle\nKeller and Heckman, LLP\n1001 G Street, NW\nWashington, D.C. 20001\nReference No. 22-0024\nDear Mr. Doyle:\nThis letter is in response to your April 7, 2022, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to placarding requirements for\ncertain lead acid battery shipments. You state that “UN2794, Batteries, wet, filled with acid,\nelectric storage, 8” will be shipped by a motor carrier from a stateside facility and taken to a port\nwhere the batteries will be loaded on a vessel and transported overseas. The batteries will be\npackaged in intermodal containers that will be placarded and the completed packages will be\nprepared in accordance with the International Maritime Dangerous Goods (IMDG) Code.\nFurthermore, you state the motor vehicle portion of the shipment will be transported in\naccordance with § 173.159(e), which to your understanding provides a general exception from\nthe HMR when batteries containing acid are transported via motor vehicle. Therefore, you ask\nwhether motor vehicle drivers who are transporting these batteries to the port for vessel\ntransportation are required to have a commercial driver’s license (CDL) hazardous materials\nendorsement in accordance with the Federal Motor Carrier Safety Regulations (FMCSR) even\nthough the intermodal containers are placarded to satisfy the IMDG Code requirements for\nvessel transportation.\nThe answer is no. For purposes of the FMCSR, a hazardous materials endorsement on a CDL is\nrequired for operation of a motor vehicle used to transport hazardous materials as defined in\n49 CFR 383.5. The FMCSR define hazardous materials as any material that has been designated\nas hazardous under 49 U.S.C. 5103 and is required to be placarded under Subpart F of 49 CFR\nPart 172; or any quantity of material listed as a select agent or toxin in 42 CFR Part 73.\nAdditionally, for purposes of the HMR, if all the requirements provided in § 173.159(e) are met,\nwet electric storage batteries are not subject to any other requirements of the HMR—including\nplacarding—except for incident reporting requirements found in §§ 171.15 and 171.16. Thus, it\nis the understanding of this Office, that a driver of a commercial motor vehicle transporting this\nmaterial would not be subject to the requirements of the FMCSR for a hazardous materials\n\n<<<PAGE 2>>>\n\nendorsement on a CDL because the material is neither subject to placarding nor a select agent or\ntoxin.\nNote, in accordance with § 172.502(c), placards may be displayed for a hazardous material—\neven when not required—if the placarding otherwise conforms to the requirements of the HMR\nand thus permissive placarding does not trigger the requirements for a hazmat endorsement.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nBaker\nFrom: Kelley, Shane (PHMSA)\nTo: Cc: Date: Attachments: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA)\nDerKinderen, Dirk (PHMSA); Foster, Glenn (PHMSA); Nickels, Matthew (PHMSA)\nSubject: Fwd: request for interpretation\nThursday, April 7, 2022 8:17:07 PM\nplacarding letter of interpretation request April 2022.pdf\n22-0024\nPlease process accordingly thank you.\nFrom: Doyle, Trent <Doyle@khlaw.com>\nSent: Thursday, April 7, 2022 4:33:39 PM\nTo: Kelley, Shane (PHMSA) <shane.kelley@dot.gov>\nCc: DerKinderen, Dirk (PHMSA) <Dirk.DerKinderen@dot.gov>\nSubject: request for interpretation\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links\nor open attachments unless you recognize the sender and know the content is safe.\nGentlemen,\nPlease see attached request for letter of interpretation regarding applicability of placarding requirements to certain\nlead acid battery shipments.\nLet me know if there are any questions about the request. (I note that Ref. No. 15-0075 appears to address a\nsomewhat similar scenario.)\nThank you.\nBest regards,\nKeller and Heckman LLP logo\nTrent Doyle\nPartner\ndirect 202.434.4161 Doyle@khlaw.com\nKeller and Heckman LLP | 1001 G Street NW, Suite 500 West | Washington, DC 20001\nkhlaw.com\nPackagingLaw.com\nServing Business through\nLaw and Science®\nWashington, DC Brussels San Francisco Shanghai Boulder\nThis message and any attachments may be confidential and/or subject to the attorney/client privilege, IRS\nCircular 230 Disclosure or otherwise protected from disclosure. If you are not a designated addressee (or an\nauthorized agent), you have received this e-mail in error, and any further use by you, including review,\ndissemination, distribution, copying, or disclosure, is strictly prohibited. If you are not a designated addressee\n(or an authorized agent), we request that you immediately notify us by reply e-mail and delete it from your\nsystem.\n\n<<<PAGE 4>>>\n\nkhlaw.com\n202.434.4100\nKeller and Heckman LLP\n1001 G Street, NW\nSuite 500 West\nWashington, DC 20001\nWriter’s Direct Access\nT r e n t D o y l e\n( 2 0 2 ) 4 3 4 - 4 1 6 1\nd o y l e @ k h l a w. c o m\nApril 7, 2022\nVia Electronic Mail\nShane Kelley\nStandards and Rulemaking Division\nPipeline and Hazardous Materials Safety\nAdministration\nAttn: PHH-10\nU.S. Department of Transportation, East\nBuilding\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe: Request for Letter of Interpretation – Placarding Requirements for certain\nlead acid battery shipments\nDear Mr. Kelley:\nConsistent with 49 C.F.R. § 105.20(a)(4), the purpose of this letter is to request clarification regarding\nthe applicability of placarding requirements under the U.S. Department of Transportation (DOT)\nhazardous materials regulations (HMR) to the transport of certain lead acid batteries.\nSpecifically, lead acid batteries (UN2794) are to be shipped from a U.S. facility by motor carrier to a\nport and then loaded onto a vessel for overseas transport. The batteries will be shipped in intermodal\ncontainers and, to facilitate international transport, the shipments will be prepared in compliance with\nthe IMDG Code, which will include placarding of the intermodal containers.\nPer 49 C.F.R. § 171.25(a), a hazardous material may be transported to/from/within the U.S. by vessel\nand by motor carrier in accordance with the IMDG Code provided all or part of the movement is by\nvessel. 49 C.F.R. § 171.25(b)(1) provides, in part, that for transportation by highway prior to\ntransportation by vessel of a hazardous material in accordance with IMDG Code, the motor vehicle\nmust be placarded in accordance with subpart F of 49 C.F.R. part 172.\nWashington, DC Brussels San Francisco Shanghai Boulder\nThis document was delivered electronically.\n\n<<<PAGE 5>>>\n\nShane Kelley\nStandards and Rulemaking Division\nPage 2\nHowever, in this case, for the ground leg, the batteries will be shipped in compliance with 49 C.F.R.\n§ 173.159(e), and, accordingly, no other requirements of the HMR, including placarding, are\napplicable.\nConsidering the above, we understand that because placarding is not required under subpart F of 49\nC.F.R. part 172 for the ground leg by virtue of the relief provided under 49 C.F.R. § 173.159(e), the\ndrivers of motor vehicles carrying the batteries in intermodal containers to the port would not need to\nhave a CDL with a hazmat endorsement in accordance with 49 C.F.R. § 383.93(b)(4).\nPlease confirm whether PHMSA agrees with this interpretation.\nThank you for your assistance with this request. Please contact me at (202) 434-4161 or\ndoyle@khlaw.com if you have any questions or desire additional information.\nSincerely,\nTrent Doyle\nThis document was delivered electronically. Keller and Heckman LLP","truncated":false,"body_characters":7864}