{"operation":"document","citation":"09-0143","title":"Wiley Rein LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-08-07","effective_on":null,"summary":"09-0143 response to Wiley Rein LLP concerning 171.1, 173.185, 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0143.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0143.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0143","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090143.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave., SE\nWashington, DC 20590\nMr. George Kerchner\nWiley Rein LLP\n1776 K Street NW\nWashington, DC 20006\nRef. No.: 09-0143\nDear Mr. Kerchner:\nThis is in response to your June 18,2009 letter concerning the applicability of the Hazardous\nMaterials Regulations (HMR; 49 CFP Parts 17 1-1 80) to shipments of small lithium metal\nbatteries (< 2.0 grams lithium content) and small lithium ion batteries (< 8 grams equivalent\nlithium content) sold over the counter at retail locations. Your questions are paraphrased and\nanswered below:\nQl . Are small lithium batteries assembled at retail locations and sold over the counter to\ncustomers for personal use subject to the testing requirements outlined in Section 38.3 of the\nUN Manual of Tests and Criteria?\nA I. As specified in 5 1 71.1, the HMR govern the transportation of hazardous materials in\nintrastate, interstate and foreign commerce. The term \"in commerce\" means in furtherance of\na commercial enterprise. Therefore, hazardous materials that are sold to customers for\npersonal, non-commercial use and transported by such persons in their personal vehicles are\nnot subject to the HMR. However, if the transportation is in commerce the lithium batteries\nare subject to the HMR. In that case, each battery must be of a type proven to meet each of\nthe tests in 38.3 of the UN Manual of Tests and Criteria prior to transportation.\nQ2. Can small lithium batteries transported to customers in personal or company vehicles\nqualify for the materials of trade exceptions?\nA2. Yes. The materials of trade definition in 5 17 1.8 includes a private motor carrier\ntransporting hazardous materials in direct support of a principal business that is other than\ntransportation by motor vehicle. The materials of trade exceptions in 5 173.6 permit Class 9\nmaterials including lithium batteries.\nQ3. Do the testing requirements of the UN Manual of Tests and Criteria apply to lithium\nbatteries transported as materials of trade?\n\n<<<PAGE 2>>>\n\nA3. In order to meet the provisions of the materials of trade exception, lithium batteries must\nbe of a type proven to meet the criteria of Class 9 by testing in accordance with the UN\nManual of Tests and Criteria. Alternatively, production runs of less than 100 cells or\nbatteries may be transported by motor vehicle without testing provided you meet all of the\nconditions outlined in 5 172.102(c), special provision 29.\nQ4. Can a passenger transport a lithium battery that has not been tested in accordance with\nthe UN Manual of Tests and Criteria in accordance with the passenger and crewmember\nexceptions specified in 175.10.\nA4. The exceptions for passengers and crewmembers in § 175.1 O(a)(l7) do not require\nlithium batteries to be tested in accordance with the UN Manual of Tests and Criteria.\nHowever, all batteries must be packaged in a manner that precludes the generation of sparks\nor a dangerous quantity of heat. Each spare battery must be individually protected so as to\nprevent short circuits and carried in carry-on baggage only.\nI trust this satisfies your inquiry. If we can be of hrther assistance, please contact us.\nf Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\n1776 K STREET NW\nWASHINGTON, DC 20006\nPHONE 202.719.7000\nFAX 202.719.7049\n7925 JONES BRANCH DRIVE\nMcLEAN, VA 22102\nPHONE 703.905.2800\nFAX 703.905.2820\nJune 18,2009\nGeorge Kerchner\n202.719.4109\ngkerchner@wiIeyrein.com\nDELIVERED VIA EMAIL\nMr. Edward Mazzullo\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n1200 New Jersey, Avenue, SE\nWashington, D.C. 20590\nRe: Request for Interpretation on Lithium Batteries\nDear Mr. Mazzullo:\nOctober 1,2009 is specified as the effective date for mandatory testing of \"small\"\nlithium ion and lithium metal cells and batteries pursuant to Special Provision 188\nin the U.S. hazardous materials regulations. I have several questions regarding how\nthe UN lithium battery testing requirements apply to \"small\" batteries assembled\nand sold at retail locations and carried onboard aircraft.\nSome retailers may assemble a limited number of small lithium ion and lithium\nmetal batteries for their customers. The retailers never offer these small batteries\nfor transportation to carriers such as UPS or FedEx. Instead, they are sold over the\ncounter or delivered in company or personal vehicles to customers. It is our\nunderstanding that these small batteries are not subject to the UN testing\nrequirements because they are never offered for transportation andlor qualify as\nMaterials of Trade pursuant to 49 C,F,R, 173.6. My questions related to these\nissues are listed below.\n(a) Are small lithium batteries assembled at retail locations and sold over the\ncounter subject to the UN testing requirements?\n(b) Do small lithium batteries transported to customers in personal or company\nvehicles qualify for the Materials of Trade exception in 49 CF,R, 173.6?\n(c) If the answer to question (b) is yes, which if any of the UN testing\nrequirements are applicable to these batteries?\nThe exceptions for passengers in 49 C,F,R, fj 175.10(a) states \"This subchapter does\nnot apply to the following hazardous materials when carried by aircraft passengers\n\n<<<PAGE 4>>>\n\nJune 18,2009\nPage 2\nor crewmembers . . . .\". For lithium batteries, tj 175.1 0(a)(17) places limits on the\nsize and number of batteries that can be carried onboard aircraft and requires that\nbatteries be protected so as to prevent short circuits and placed in carry-on baggage\nonly.\nSection 175.10(a) states \"This subchapter does not apply to the following hazardous\nmaterials when carried by aircraft passengers. . . .\" This would appear to except\nlithium batteries from the UN testing requirements. My question related to this\nissue is provided below.\n(d) If all the requirements in 49 CFR § 175,10(a)(17) are met, can a passenger\ncarry a small lithium battery onboard an aircraft that has not been tested\npursuant to the UN Manual of Tests and Criteria?\nThank you for your assistance. I can be reached at 202.7 19.4109 or\ngkerchner@wileyrein.com if you have any questions regarding this matter.\nSincerely,\nqL?giw A &&I/,","truncated":false,"body_characters":6227}