{"operation":"document","citation":"04-0141","title":"Alston & Bird LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-06-04","effective_on":null,"summary":"04-0141 response to Alston & Bird LLP concerning 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0141.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0141.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0141","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040141.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSpecial Programs\nResearch and\nAdministration\nJUN\n42004\nMs. Laura Lewis Owens\nRef. No. 04-0141\nAlston & Bird LLP\nOne Atlantic Center\n1201 West Peachtree Street\nAtlanta, Georgia 30309-3424\nDear Ms. Owens:\nThis is in response to your letter of May 25, 2004 requesting confirmation that discharged\nlithium ion batteries as described in your letter are not subject to the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180) when transported by highway in the United\nStates. In your letter you state that the subject batteries contain one cell and that the\nequivalent lithium content of the cell is calculated to be 0.26 grams.\nYou indicate that these lithium ion batteries are part of a voluntary recall that Verizon\nWireless is in the process of implementing in cooperation with the Consumer Product\nSafety Commission. The batteries, which are counterfeit, are susceptible to overcharging\nand may overheat during or soon after charging. Under the proposed recall program,\nVerizon Wireless would request that a customer cease charging the battery and leave the\nphone on to allow the phone to discharge for three days prior to return shipment. A\ncustomer would place the discharged battery in a strong fiberboard box, provided by\nVerizon Wireless. You state that the packaging material and configuration complies with\nthe requirements in 49 CFR 173.185(b)(4) which requires that lithium batteries be\npackaged in manner to prevent short circuits. The customer would return the battery to\nVerizon Wireless via ground shipment by U.S. mail. You further state that you are\nworking with the U.S. Postal Service (USPS) to ensure that transportation is limited to\nground shipments and that such shipments will comply with any additional requirements\nof the USPS.\nUnder 49 CFR 173.185(b), a lithium ion cell that contains 1.5 grams or less equivalent\nlithium content and a lithium ion battery that contains 8 grams or less equivalent lithium\ncontent are not subject to the requirements of HMR if they comply with the provisions in\n49 CFR 173.185(b)(3), (4) and (5). In addition, 49 CFR 173.21(c) states that electrical\ndevices which are likely to create sparks or generate a dangerous quantity of heat are\norbidden for transportation unless packaged in a manner which precludes such a\nccurrence. As the entity causing these batteries to be transported. it is the responsibilit\nThe procedures which you have described, if effectively communicated to the person:\nof Verizon Wireless to ensure compliance with the applicable provisions of the HMF\nreturning these batteries, appear adequate to ensure that these batteries are eligible for the\n173185\n040141\n\n<<<PAGE 2>>>\n\nexceptions provided in 49 CFR 173.185(b) and are not forbidden for transportation under\nthe provisions of 49 CFR 173.21(c).\nI trust this satisfies your inquiry. If we can be of any further assistance, please contact us.\nSincerely,\nle lead : Magulle\nEdward T. Mazzullo\nDirector, Office of Hazardous\nMaterials Standards\n\n<<<PAGE 3>>>\n\nGal\n04-0141\nALSTON&BIRD LIP\n113,155\nwww.siston.com\nLumro Lewis Owens\nDirect Dinl: 404-H81-7363\n-mull: lowcny@alviun.com\nMay 25, 2004\nVIA: FACSIMILE & UNITED PARCEL SERVICE\nRescarch and Special Programs Administratior\nDeputy Associate Administrator for Hazardous Materials Safety\nDepartment of Transportation\nDHM-1\n400 7th St., S.W.\n!\nWashington, DC 20590-0001\nRe:\nRequest for Confirmation of Non-Applicability of the Hazardous\nMaterials Regulation: (40 C.F.R. Parts 171-185)\nDear Mr. Wybenga:\nI write on behalf of Verizon Wireless to request the Deparyment of\nTransporlation's confirmation that discharged lithium ion batteries, as described bolow,\nare not subject to the federal Hazardous Materials Regulations, 40 C.F.R. Part 171-185\n(the \"HMR\") when transported by ground in strong packagings. In voluntary coperation\nwith the U.S. Consumer Product Safety Commission (\"CPS\"), Verizon Wircless is in\nthe process of implementing a program for the voluntary exchange of certain lilhium ion\nbatteries that may be counterfeit. The CPSC has requested that Verizon Wireless notify\nle Department of Transportation (DOT) of Verizon Wireless' proposed ballery exchang\nrogram. That program and Verizon Wireless' conclusions as to the regulatory status o\nthe transportation of such discharged batteries are described below.\nBackground\nThe subject batteries bear the external outward appearance of LG Electronics\n(\"LG\") TM-510 batteries used in LG's TM-510 model cellular telephone. Baph battery\ncontains one lithium ion cell. Because the counterfeit batteries may be susceptible to\novercharging, they may overbeat during or soon after charging.\nVerizon Wireless\nproposes to aler a custome to these pansit i, had ded popsed to lie ra\nreplacement battery.\n101 South Tryon Sirect, Suito 1000\nBank of America Plaza\n90 Park Avenic\nChurlogic, NC 28280-1000\nNew York, NY 10016\n3201 Beechleuf Court, Suite o0n\nlux: 704-144-1111\n704-411-1000\nlax: 312-210-9.144\n212-210-2400\nRoleigh, NO 27604-1062\n601 Pennsylvania Avenue, N.W\nPAx: 919-862-2260\n919-862-2200\nWashna, DE: 20 +-271\nFian: 202-7:00-3333\n202-7563300\n\n<<<PAGE 4>>>\n\nMr. Frits Wybenga\nMay 25, 2004\nPage 2\nimmediately cease charging the recalled battery and leave the phone on to illow the\nUnder that proposed program, Verizon Wireless would request that a customer\nphone to discharge for threa (3) days prior to return shipment. A customer would\nexchange a discharged battery for a replacement battery by placing the dischargud battery\nin a strong fiberboard box provided by Verizon Wireless and retuming the lattery to\nVerizon Wireless via ground shipment by U.S. mail. A specimen of this packaging is\nattached hereto as Exhibit \"A\". Verizon Wireless is working with the U.S. Postal Service\n\"USPS\") to ensure that transportation will be limited to the ground and that such\nshipments will satisfy any additional requirements under USPS regulations.\nRegulatory Status of the Batteries Under the HMR\nUnder the HMR, most lithium batteries are regulated as Class 9 materials.\nHowever, subject to the\nsatisfaction of certain conditions, 49 C.F.R. § 173.185(b)\nprovides an exception to the HMR's requirements for lithium ion cells and batteries.\nnot more than 1.5 grams of \"equivalent lithium content\" and a lithium-ion battery\nSpecifically, $ 173.185(b)(1) and (2) except from regulation a lithium ion cell containing\ncontaining an aggregate quantity of not more than 8.0 grams of equivaleml lithium\ncontent.\nEquivalent lithium content is calculated to be 0.3 times the rated cupacity in\nampere-hours of a lithium ion cell. See id. § 173.185(a). In turn, \"Ic]he lithium-\nequivalent content of a battory equals the sum of the grams of lithium-equivalent content\ncontained in the component cells of the battery.\" Id. If a lithium ion battery satisfies the\nequivalent lithium content limits of § 173.185(b)(I) and (2), then it is not subject to\nregulation under the HMR, provided that it is (i) packed in such a way so as jo prevent\nshort circuits, and (i) packed in a strong packaging. See id. § 173.185(b)(4)'\nRelying on information provided by LG and analysts with the engine ring firm\nExponent, and with the assistance of Andy Altemos with HMT Associates, Verizon\nWireless has investigated the application of 49 C.F.R. $8 173.185(b) and 173.2i1(c) 1o the\nWireless has been advised that the fier sement of he discared baleries l should\nnot be subject to the HMR, and (ii) should not run afoul of $ 173.21(c)'s proljibition on\noffering for transportation electrical devices that are likely to create sparks or generate a\ndangerous quantity of heat. While batteries qualifying for § 173.185's exception may\nbe transported by any mode, Verizon Wireless nevertheless intends to limit the retum\nshipment of baltories solely to ground transport.\nliquid or solid carhodes. Thus, the conditions set forth at § 173.185(b)(3) and (5) should not apply to their\n' The engineering firm Exponent has advised Verizon that the lithium ion batteriès at issuo do not contain\ntransportarion.\n\n<<<PAGE 5>>>\n\nMr. Frits Wybenga\nMay 25, 2004\nPage 3\nestablished in 49 C.F.R. § 173.185(b)(1) and (2). Verizon Wireless has obtained\nFirst, the subject batteries' equivalent lithium content should fall below he limits\nconfirmation fiom LG that a standard LG lithium ion coll has a rated capacity: of 0.875\nampere-hours,\nVerizon Wireless also has obtained independent confinnation from\nExponent that a rated capacity of 0.875 ampere-hours is a typical rating for a lifhium ion\ncell used in a cellular telephone, which based on the regulations is calculated io have a\nlihium-equivalent content of 0.20 grams. Under any scenano, theretore, we are advised\nthat the equivalent lithium content of the cells subject to the exchange program is\nexpected to fall below the 1.5 grams limit contained in the HMR.\none lithium ion cell, we are advised that the aggregate equivalent lithium ion content of\nSimilarly, because the lithium ion batteries subject to exchange each comtain only\nan exchanged battery also is expected to fall short of the DOT's 8.0 grams limit on\ntelephone battery currently in use is known to have a rated capacity that could cause\naggregate equivalent lithium ion content. Indeed, according to Exponent, no cellular\nthe equivalent lithium content limitations of § 173.185(b)(1) and (2) to be expeeded.\nSccond, Verizon Wireless intends to ship the batteries in accordance with the\nin such a way as to prevent short circuits. For the relur ground shipment of discharged\nconditions of § 173.185(b)(4), which requires batteries to be packed in strong packaging\nbatteries, Verizon Wireless intends to provide rigid, good quality packagings that are\nable to contain and protect the battery under conditions normally inpident to\ntransportation. Batteries will be packed one battery per packagc, and the packaging\nshould prevent significant movement of the battery during transportation. Further\nVerizon Wiroless docs not intend to include any electrically conductive materials in the\npackaging that would cause or contribute to a short circuit. Exponent has advised Verizon\nWireless thal, when so packaged and when the batteries are in a discharged state, they\nshould present little or no risk of short circuiting. In light of the forgoing, the lithium\nion batteries subject to exchange should not be subject to regulation under jhe HMR.\nFor similar reasons, the shipment of the batteries should not be forbidden by; operation\nof 49 C.F.R. § 173.21(c).\nhipments of discharged lithium ion batteries, as described above, should not be subjec\nConsequently, Verizon Wireless requests DOT's confirmation thal retun\n1o regulation under the HMR when transported by ground in strong packagings. We look\nforward to the DOT's response to this request. In the meantime, please do not hesitate to\ncontact me or Verizon Wircless should you require further information or have any\nquestions.\nVery truly yours,\nLaura\n2.Owere\nLaura Lewis Owens","truncated":false,"body_characters":11029}