# Wiley Rein LLP — Hazardous Materials Safety Interpretation

**Citation:** 09-0143  
**Type / status:** guidance / guidance  
**Agency:** Pipeline and Hazardous Materials Safety Administration  
**Effective:** Not stated  
**Published:** 2009-08-07

09-0143 response to Wiley Rein LLP concerning 171.1, 173.185, 173.6.

## Document text

<<<PAGE 1>>>

U.S. Department
of Transportation
Pipeline and Hazardous Materials
Safety Administration
1200 New Jersey Ave., SE
Washington, DC 20590
Mr. George Kerchner
Wiley Rein LLP
1776 K Street NW
Washington, DC 20006
Ref. No.: 09-0143
Dear Mr. Kerchner:
This is in response to your June 18,2009 letter concerning the applicability of the Hazardous
Materials Regulations (HMR; 49 CFP Parts 17 1-1 80) to shipments of small lithium metal
batteries (< 2.0 grams lithium content) and small lithium ion batteries (< 8 grams equivalent
lithium content) sold over the counter at retail locations. Your questions are paraphrased and
answered below:
Ql . Are small lithium batteries assembled at retail locations and sold over the counter to
customers for personal use subject to the testing requirements outlined in Section 38.3 of the
UN Manual of Tests and Criteria?
A I. As specified in 5 1 71.1, the HMR govern the transportation of hazardous materials in
intrastate, interstate and foreign commerce. The term "in commerce" means in furtherance of
a commercial enterprise. Therefore, hazardous materials that are sold to customers for
personal, non-commercial use and transported by such persons in their personal vehicles are
not subject to the HMR. However, if the transportation is in commerce the lithium batteries
are subject to the HMR. In that case, each battery must be of a type proven to meet each of
the tests in 38.3 of the UN Manual of Tests and Criteria prior to transportation.
Q2. Can small lithium batteries transported to customers in personal or company vehicles
qualify for the materials of trade exceptions?
A2. Yes. The materials of trade definition in 5 17 1.8 includes a private motor carrier
transporting hazardous materials in direct support of a principal business that is other than
transportation by motor vehicle. The materials of trade exceptions in 5 173.6 permit Class 9
materials including lithium batteries.
Q3. Do the testing requirements of the UN Manual of Tests and Criteria apply to lithium
batteries transported as materials of trade?

<<<PAGE 2>>>

A3. In order to meet the provisions of the materials of trade exception, lithium batteries must
be of a type proven to meet the criteria of Class 9 by testing in accordance with the UN
Manual of Tests and Criteria. Alternatively, production runs of less than 100 cells or
batteries may be transported by motor vehicle without testing provided you meet all of the
conditions outlined in 5 172.102(c), special provision 29.
Q4. Can a passenger transport a lithium battery that has not been tested in accordance with
the UN Manual of Tests and Criteria in accordance with the passenger and crewmember
exceptions specified in 175.10.
A4. The exceptions for passengers and crewmembers in § 175.1 O(a)(l7) do not require
lithium batteries to be tested in accordance with the UN Manual of Tests and Criteria.
However, all batteries must be packaged in a manner that precludes the generation of sparks
or a dangerous quantity of heat. Each spare battery must be individually protected so as to
prevent short circuits and carried in carry-on baggage only.
I trust this satisfies your inquiry. If we can be of hrther assistance, please contact us.
f Hazardous Materials Standards

<<<PAGE 3>>>

1776 K STREET NW
WASHINGTON, DC 20006
PHONE 202.719.7000
FAX 202.719.7049
7925 JONES BRANCH DRIVE
McLEAN, VA 22102
PHONE 703.905.2800
FAX 703.905.2820
June 18,2009
George Kerchner
202.719.4109
gkerchner@wiIeyrein.com
DELIVERED VIA EMAIL
Mr. Edward Mazzullo
Pipeline and Hazardous Materials Safety Administration
U.S. Department of Transportation
1200 New Jersey, Avenue, SE
Washington, D.C. 20590
Re: Request for Interpretation on Lithium Batteries
Dear Mr. Mazzullo:
October 1,2009 is specified as the effective date for mandatory testing of "small"
lithium ion and lithium metal cells and batteries pursuant to Special Provision 188
in the U.S. hazardous materials regulations. I have several questions regarding how
the UN lithium battery testing requirements apply to "small" batteries assembled
and sold at retail locations and carried onboard aircraft.
Some retailers may assemble a limited number of small lithium ion and lithium
metal batteries for their customers. The retailers never offer these small batteries
for transportation to carriers such as UPS or FedEx. Instead, they are sold over the
counter or delivered in company or personal vehicles to customers. It is our
understanding that these small batteries are not subject to the UN testing
requirements because they are never offered for transportation andlor qualify as
Materials of Trade pursuant to 49 C,F,R, 173.6. My questions related to these
issues are listed below.
(a) Are small lithium batteries assembled at retail locations and sold over the
counter subject to the UN testing requirements?
(b) Do small lithium batteries transported to customers in personal or company
vehicles qualify for the Materials of Trade exception in 49 CF,R, 173.6?
(c) If the answer to question (b) is yes, which if any of the UN testing
requirements are applicable to these batteries?
The exceptions for passengers in 49 C,F,R, fj 175.10(a) states "This subchapter does
not apply to the following hazardous materials when carried by aircraft passengers

<<<PAGE 4>>>

June 18,2009
Page 2
or crewmembers . . . .". For lithium batteries, tj 175.1 0(a)(17) places limits on the
size and number of batteries that can be carried onboard aircraft and requires that
batteries be protected so as to prevent short circuits and placed in carry-on baggage
only.
Section 175.10(a) states "This subchapter does not apply to the following hazardous
materials when carried by aircraft passengers. . . ." This would appear to except
lithium batteries from the UN testing requirements. My question related to this
issue is provided below.
(d) If all the requirements in 49 CFR § 175,10(a)(17) are met, can a passenger
carry a small lithium battery onboard an aircraft that has not been tested
pursuant to the UN Manual of Tests and Criteria?
Thank you for your assistance. I can be reached at 202.7 19.4109 or
gkerchner@wileyrein.com if you have any questions regarding this matter.
Sincerely,
qL?giw A &&I/,

## Provenance

- Official: Yes
- Source: <https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090143.pdf>
- Source ID: `phmsa`
- SHA-256: `4433cab9f07dc15b3a062398ab5f62050c886eb88755c869310f0001a2e37b0e`
- Retrieved: 2026-08-20T00:59:31.977Z
- Exported: 2026-08-23T03:26:22.259Z
- Document slug: `phmsa-interpretation-09-0143`

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