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Interpretation Response #14-0103 ([Von Briesen & Roper, S.C. Attorneys at Law] [Mr. Mark F. Foley])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Von Briesen & Roper, S.C. Attorneys at Law

Individual Name: Mr. Mark F. Foley

Location State: WI Country: US

View the Interpretation Document

Response text:

September 30, 2014

Mr. Mark F. Foley
von Briesen & Roper, S.C. Attorneys at Law
411 East Wisconsin Avenue, Suite 1000
Milwaukee, WI 53202-4409

Ref. No. 14-0103

Dear Mr. Foley:

This responds to your May 21, 2014 letter requesting clarification of the marking and labeling requirements of a packaging under the hazardous materials regulations (HMR; Parts 171-180).  Specifically, you request clarification of the appropriateness of the display of a “UN2794, Batteries, wet, filled with acid” marking and a Class 8 (corrosive) material label on a packaging when shipping under the exception provided in § 173.159(e) of the HMR.  

A company you represent manufactures a “kit” designed to provide a safer means to transport by motor vehicle damaged or leaking lead-acid batteries.  The “kit” consists of a foldable plastic bag inside a fiberboard box wrapped in a second plastic bag and finally placed in another outer fiberboard box.  By providing cushioning and containment, it is your understanding that the “kit” satisfies HMR requirements that leaking batteries may not be transported under the § 173.159(e) exception.  These “kits” are shipped empty for use by battery manufacturers, distributors, and retailers.

Furthermore, you indicate that this manner of packing and transport of damaged or leaking acid batteries has been accepted by PHMSA as a practical approach to satisfy the HMR and the conditions for exception under § 173.159(e) based on previous communication between PHMSA and a third party.  However, the communication offered instruction that a shipper using the “kit” must cover the “UN designation” (i.e., the marking and label).  Your understanding is that this instruction is based on the § 172.303(a) marking prohibition and the § 172.401(a) labeling prohibition which restrict marking and labeling of packages to only those that actually contain the material and hazard described.  In order to avoid this problem, your client has modified the design of the “kit” in such a manner as to cover a pre-printed marking and label with an opaque film lightly glued in place.  Thus, with the film in place the marking and label are not visible before use.  This film also stretches across the opening of the “kit” and prevents a battery from being packed in the “kit” without first removing the film.  On behalf of your client, you are asking for confirmation that this system for the “kit” satisfies the conditions set by PHMSA for compliance with the HMR.

The “kit” and the application of the film covering the display of the “UN2794, Batteries, wet, filled with acid” marking and Class 8 (corrosive) material label to prevent display prior to packing of a battery is acceptable.  However, conditions for use of the exceptions in
§ 173.159(e) do not include hazard communication requirements including labeling or marking.  You do not have to label or mark the packaging when complying with this exception, including instances when there are multiple shippers if you are a holder or party to Special Permit 15161.  Although, you may continue to permissively label and mark a package so long as the package contains the material and presents the hazard described by the mark and label.  Note also, however, that currently the “kit” is only considered acceptable for use for packing of batteries transported under the conditions of § 173.159(e).  

I hope this information is helpful.  If you have further questions, please contact this office.


Charles E. Betts
Standards and Rulemaking Division

173.159(e), 172.401(a), 172.303(a)

Regulation Sections

Section Subject
172.303 Prohibited marking
172.401 Prohibited labeling
173.159 Batteries, wet