Wiley Rein and Feuding LLP — Hazardous Materials Safety Interpretation

Page 1J.S. Depanment of Transportation Washington, D.C. 20590 400 Seventh Street, S.W. ipeline and Hazardou laterials Safety Administratio OCT 2 2006 Mr. George A. Kerchner Ref. No.: 06-0216 Wiley Rein and Feilding LLP 1776 K Street, NW Washington, DC 20006 Dear Mr. Kerchner: lithium batteries and cells under the International Maritime Dangerous Goods Code (IMDG This is in response to your September 25, 2006 letter regarding clarification of exceptions for Special Provision 188 of the IMDG Code is subject to marking, labeling, placarding, and Code). Specifically you ask if a shipment of lithium-ion batteries meeting all the requirements of shipping papers of the IMDG Code as a Class 9. The answer is no. In accordance with Special Provision 188 of the IMDG Code lithium-ion cells and batteries are not subject to other provision of the IMDG Code if they meet all of the following requirements: (1) Each lithium-ion cell may contain not more than 1.5 g of equivalent lithium content; (2) Each lithium-ion battery may contain an aggregate quantity of not more than 8.0 grams of equivalent lithium content; (3) Each cell or battery is of the type proved to meet the requirements of each test in the UN Manual of Tests and Criteria, Part III, sub-section 38.3; (4) Cells and batteries must be packed in such a way so as to prevent short circuits and must be packed in strong packagings, except when installed in equipment; and (5) Except when installed in equipment, each package containing more than 24 lithium cells or 12 lithium batteries must meet the following additional requirements: (a) Each package must be marked indicating that it contains lithium batteries and that special procedures must be followed in the event that the package is damaged; (b) Each shipment must be accompanied with a document indicating that packages contain lithium batteries and that special procedures must be followed in the event a package is damaged; 17/.2 060216 173.185#

Page 2(c) Each package is capable of withstanding a 1.2 m drop test in any orientation without damage to cells or batteries contained therein, without shifting of the contents so as to allow battery to (or cell to cell) contact and without release (d) Except for lithium batteries packed with equipment, packages may not exceed 30 kg gross mass. As provided by § 171.12, a hazardous material that is packaged, marked, classed, labeled, placarded, described, stowed and segregated, and certified in accordance with the IMDG Code may be offered and accepted for transportation and transported within the United States subject to certain conditions and limitations. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, ( Chief, Standards Development Office of Hazardous Materials Standards#

Page 3Pollack W Wiley Rein & Fielding LLP 8173:185 Lithium Batteries 06-0216 1776 K STREET NW PHONE WASHINGTON, DC 20006 September 25, 2006 202.719.4109 George Kerchner FAX 202.719.7000 gkerchner@wrf.com 202.719.7049 7925 JONES BRANCH DRIVE Virginia Office Mr. John Gale MCLEAN, VA 22102 SUITE 6200 Office of Hazardous Materials Pipeline and Hazardous Materials Safety Administration FAX PHONE 703.905.2800 U.S. Department of Transportation 703.905.2820 400 7 Street, SW Washington, DC www.wrf.com Re: Special Provision 188 of the IMDG Code Dear Mr. Gale: I am writing to request an interpretation on the applicability of Special Provision 188 of the International Maritime Dangerous Goods (IMDG) Code as it pertains to shipments of lithium ion batteries. I am requesting this interpretation because of a disagreement between our client and a vessel operator over how Special Provision 188 applies to such shipments. requirements of Special Provision 188 of the IMDG Code do not have to be offered It is our understanding that shipments of lithium ion batteries that meet all of the insists that regardless of whether a shipment of lithium ion batteries meets the to a vessel operator as Class 9 dangerous goods. However, the vessel operator requirements of Special Provision 188 that shipment must still be offered as Class 9 dangerous goods. Therefore, my question is as follows: If a shipment of lithium ion batteries meets all of the requirements of Special Provision 188 in the IMDG Code, must that shipment be marked, labeled, dangerous goods shipper's declaration? placarded, and offered as Class 9 dangerous goods and accompanied by a Thank you for your assistance. Sincerely, George A Korchnar George A. Kerchner cc: Greg Schulz#