Wiley Rein & Fielding LLP — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh Street, S.W. Washington, D.C. 20590 Hazardous Materials Safely Pipeline and Administration AUG 1 6 2005 Mr. George A. Kerchner Ref. No. 05-0076 1776 K Street NW Wiley Rein & Fielding LLP Washington, DC 20006 Dear Mr. Kerchner: This is in response to your letter requesting clarification of shipping requirements under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) and the Internatioral Maritime Dangerous Goods Code (IMDG) for the SEGWAY mobility device when it contains two 36 g lithium ion batteries. Your questions are paraphrased and answered as follows: Q1: May the SEGWAY mobility device and related chassis and power base that contain two 36 g lithium ion batteries be shipped by ground in the United States under an exception in 49 CFR 173.220? Al: Yes. Section 173.220(g)(1) as amended by HM-224E interim final rule provides that a battery-powered vehicle or equipment that meets the other provisions of § 173.220 and contains no other hazardous materials is "not subject to any other requirements of [the HMR] for transportation by motor vehicle or rail car." The batteries must be securely fastened in the battery holder of the vehicle or engine, and be protected in such a manner as to prevent damage and short circuits. Lithium batteries must be of a type that have successfully passed each test in the UN Manual of Tests and Criteria as specified in § 173.185, unless approved by the Associate Administrator. A more limited exception for battery-powered vehicles and equipment applies to transportation by aircraft or vessel, and vehicles and machinery containing primary lithium batteries are forbidden aboard passenger-carrying aircraft except as provided in 49 CFR 172.101 (Special Provision A102). Q2: Is the SEGWAY mobility device and related chassis and power base that contain two 36 g lithium ion batteries and classified as Battery-powered vehicle, or Battery-powered equipment UN 3171 excepted from the requirements of the IMDG Code, when transported by vessel? 173.220610 173.185 050076#

Page 2A2: Yes. The option to use Battery-powered vehicle or Battery-powered equipment UN 3171 as a hazardous materials shipping description for your SEGWAY mobility device dose not exist under the IMDG Code. Therefore, Battery-powered vehicle or Battery-powered equipment United Nations Recommendations on the Transport of Dangerous Goods, states that UN 3171 is UN 3171 is not regulated under the IMDG Code. In addition, Special provision 105 of the subject to the regulations only when transported by air. However, in accordance with 49 CFR 171.12(b)(3), a material that is designated as a hazardous material under the HMR, but is not subject to the requirements of the IMDG Code may not be transported in accordance with the IMDG Code and is subject to the requirements of the HMR. I hope this information is helpful. Please contact us if you require additional assistance Sincerely, Fire Dr Susan Gorsky Acting Director Office of Hazardous Materials Standards#

Page 303/29/2005 16:03 WILEY, REIN, &FIELDING, LLP NO. 933 002 Relerford Wiley Rein & Fielding LLP $173.220 €) (1) $173.185 Lithium Battery Exceptin 1726K STREET NW PHONE WASHINGTON, DC 20006 March 18, 2005 George Kerchner 05-0046 202.719.4109 FAX 202.719.7000 gkerchner@wrf.com 202.719.2049 7925 JONES BRANCH DRIVE Virginia office Mr. Edward Mazzullo Director of Hazardous Materials Standards SUITE 6200 PHONE MCLEAN, VA 22102 Research and Special Programs Administration FAX 703.905.2800 U.S. Department of Transportation 203.905.2820 400 7" Street, SW Washington, DC 20590 www.wif.com Re: Request for Interpretation - Lithium ion Batteries and Battery-Powered. Equipment in the HMR and IMDG Code Dear Mr. Mazzullo: I am writing for a clarification on the classification of lithium ion batteries contained in mobility devices under the U.S. hazardous materials regulations (HMR) and International Maritime Dangerous Goods (IMDG) Code. My client, SEGWAY LLC, recently introduced a new line of mobility devices (SEGWAY HT, XT and GT models) powered by two lithium ion batteries that each contain approximately 36 grams of equivalent lithium content (ELC). The battery meets all of the testing requirements in the UN Manual of Tests and Criteria, Fourth Revised Edition. When shipped by ground, air, or sea the batteries are offered as Class 9 lithium batteries (UN3090) pursuant to the applicable U.S. or interational dangerous goods regulations. device or a portion of the product (a chassis or power base) it is SEGWAY's When these lithium ion batteries are incorporated into SEGWAY's mobility intention to classify these as Battery Powered Equipment (UN3171) under the U.S. hat contain the lithium ion battery appear to be excepted from regulation under th IMR. As Battery Powered Equipment, the mobility device, chassis, or power bas‹ HMR when shipped by ground in the U.S. pursuant to 49 CFR 173.220(f)(1) Therefore, my frst question is as follows: 1. Can SEGWAY's mobility device and related chassis and shipped by ground in the U.S. pursuaut to the exception at 49 power base that contain two 36 g lithium ion batteries be CFR 173.220(1)(1)? SEGWAY also intends to ships its product by sea pursuant to the IMDG Code. After realizing the IMDG Code does not contain an entry for Battery#

Page 403/29/2005 16:03 WILEY, KEIN, &HIELDING, LLN 14TS0 Wiley Rein & Fielding uP March 18, 2005 Page 2 Powered Equipment (UN3171), I spoke to Mr. Manny Pfersich and Mr. Duane would like to receive written confinnation from your office with regard to this matter. My second question is as follows: 2. Is SEGWAY's mobility device and related chassis and power base that contain tavo 36 g lithium ion batteries and classified as Battery Powered Equipment (UN 3171) excepted from the requirements of the IMDG Code? * Thank you for your assistance with regard to these matters. I look forward to your reply. "George A. Kerchner#