{"operation":"document","citation":"09-0188","title":"Wiley Rein LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-11-06","effective_on":null,"summary":"09-0188 response to Wiley Rein LLP concerning 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0188.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0188.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0188","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090188.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Ave., SE\nU.S. Department Washington, DC 20590\nof Transportation NOV 5 2009\nPipeline and Hazardous Materials\nSafety Administration\nMr. George Kerchner\nWiley Rein LLP\n1776 K Street NW\nWashington, DC 20006\nRef. No.: 09-0188\nDear Mr. Kerchner:\nThis responds to your August 18, 2009 email requesting clarification of our\nAugust 7, 2009 letter (Ref. No. 09-0143) in which we discussed the applicability ofthe\nHazardous Materials Regulations (HMR; 49 CFR parts 171-180) to lithium batteries.\nSpecifically, you ask for a clarification ofour response concerning the applicability ofthe\nUnited Nations design type testing requirements to lithium batteries transported under the\nmaterials oftrade exception.\nYou reference a letter written to Ms. Erica Jenkins, Aero Vironment, Inc. (Reference No.\n02-0314; June 20,2003) that stated lithium batteries qualify for the materials oftrade\nexception. That is correct. However, as we stated in our August 18, 2009 letter, in order\nto meet the provisions ofthe materials oftrade exception, lithium batteries must be of a\ntype proven to meet the criteria ofClass 9 by testing in accordance with the UN Manual\nofTests and Criteria. The June 2003 letter does not mention the size ofthe batteries\ntransported, nor does it mention UN design type testing. The letter merely confirms the\napplicability ofthe materials oftrade exception to the transport of lithium batteries. At\nthat time, depending on the size ofthe cell or battery the HMR waived many\nrequirements including UN design type testing. Effective October 1,2009, all lithium\nbatteries must be of a type proven to meet the criteria ofClass 9 by testing in accordance\nwith the UN Manual ofTests and Criteria.\nI trust this satisfies your inquiry. If we can be offurther assistance, please contact us.\nharles E. Betts\n. ef, Standards Development\nOffice ofHazardous Materials Standards\n\n<<<PAGE 2>>>\n\nFrom: Betts, Charles (PHMSA)\nSent: Tuesday, August 18, 2009 8:19 AM\nTo: Drakeford, Carolyn (PHMSA)\nCc: Gorsky, Susan (PHMSA); Leary, Kevin (PHMSA)\nSubject: FW: One Problem with Interp Letter\nImportance: High\nFrom: Kerchner, George [mailto:GKerchner@wileyrein.com]\nSent: Tuesday, August 181 2009 8:04 AM\nTo: Betts, Charles (PHMSA)\nCc: Gorsky, Susan (PHMSA); Leary, Kevin (PHMSA)\nSubject: RE: One Problem with Interp Letter\nCharles Thanks\nfor the response.\nI'm really missing the logic here. Lithium batteries are listed in the hazardous materials table as Class\n9. Therefore, when shipping prototype or low production batteries they are of Iered as Class 9 hazardous\nmaterials. No UN testing is conducted on these batteries.\nAttached is a 2002 interpretation letter (Ref. No. 02-0314) from your office that continns lithium\nbatteries do qualify for the MOT exception. The batteries referred to in this letter are being transported\nfor testing and evaluation so it is assumed they are prototype batteries. J can assure you there are many\ncompanies that have interpreted this letter to mean untested prototype and low production batteries\nqualify for the MOT exception.\nI would like to request that your office take a second look at the question in my letter and reconsider\nyour answer.\nThank you.\nGeorge\nFrom: charles.betts@dot.gov [mailto:charles.betts@dot.gov]\nSent: Tuesday, August 18,20097:14 AM\nTo: Kerchner, George\nCc: susan.gorsky@dot.gov; Kevin.Leary@dot.gov\nSubject: RE: One Problem with Interp Letter\nImportance: High\nGood morning George,\nSorry for the delay in getting back to you. Section 173.6(a) states, in part, that \"A material trade is limited to the\nfollowing: A Class 3. 8, 9. Division 4.1. 5.1, 6.2, 6.1 or aRM-D... \" Therefore, as previously stated in the\ninterpretation letter [Ref. No. 09-0143] in order to meet the provisions of the materials of trade exceptions,\nlithium batteries must be of a type proven to meet the criteria of a Class 9 by testing in accordance with the UN\nManual of Tests and Criteria.\n8118/2009\n\n<<<PAGE 3>>>\n\nPage 2 of2\nRegards,\nCharles\nFrom: Kerchner, George [mailto:GKerchner@wileyrein.com]\nSent: Thursday, August 13, 2009 1:11 PM\nTo: Betts, Charles (PHMSA)\nCc: Leary, Kevin (PHMSA)\nSubject: One Problem with Interp Letter\nCharles Thank\nyou for providing the attached interp letter. All ofthe answers provided by PHMSA are\nconsistent with my understanding ofthe regs except A3.\nIt appears to be PHMSA's position that lithium batteries transported under the Materials of Trade\nprovision are subject to UN testing. That is inconsistent with the Materials of Trade provision in 173.6\nthat states that \"When transported by motor vehicle in conformance with this section, a material oftrade\n(see § 171.8 ofthis subchapter) is not subject to any other requirements ofthis subchapter besides those\nset forth or referenced in this section. It If these materials are \"not subject to any other requirements of\nthis subchapter\" why would UN testing be required?\nIn addition, if Materials of Trade are \"not subject to any other requirements ofthis subchapter\" why\nwould the requirements in Special Provision 29 apply?\nPlease call me at your earliest convenience (202.719.4109) to discuss this in more detail.\nThanks.\nGeorge\nGeorge A. Kerchner\nWiley Rein LLP\n1776 K Street, NW\nWashington, DC 20006\ngkefGhnef@!lli1e.YfeIfLC:;Q!I1\n(Office) 202.719.4109\n(Cell) 443.223.0604\nNOTICE: This message (including any attachments) from Wiley Rein LLP may constitute an attomeyclient\ncommunication and may contain information that is PRIVILEGED and CONFIDENTIAL and/or\nATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that any\ndissemination of this message is strictly prohibited. If you have received this message in error, please do\nnot read, copy or forward this message. Please permanently delete all copies and any attachments and\nnotifY the sender immediately by sending an e-mail toInformation@wileyrein.com.\n8118/2009\n\n<<<PAGE 4>>>\n\no\nU.S. Department\nof Transportation\nPipeline and Hazardous Materials\nSafety Administration\nAUG '7 2D09\n1200 New Jersey Ave.• SE\nWashington. OC 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 CFI,t Parts 171-180) to shipments ofsmall 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:\nQI. 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 ofTests and Criteria?\nA1. As specified in § 171.1, the HMR govern the transportation ofhazardous 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 defmition in § 171.8 includes a private motor carrier\ntransporting hazardous materials in direct support ofa principal business that is other than\ntransportation by motor vehicle. The materials oftrade exceptions in § 173.6 permit Class 9\nmaterials including lithium batteries.\nQ3. Do the testing requirements of the UN Manual ofTests and Criteria apply to lithium\nbatteries transported as materials of trade?\n\n<<<PAGE 5>>>\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\nGeorge Kerchner\nJune 18,2009 202.719.\"fiI5-70 iitj\ngkerchner@wileyreln.com\n,~'€i ,,.,\nwww.wlleyrein.com\nDELIVERED VIA EMAIL\nMr. Edward Mazzullo\nPipeline and Hazardous Materials Safety Administration\nU.S. Deparbnent 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 and/or 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 ofTrade exception in 49 C:.F:.R:. 173.6?\n(c) If the answer to question (b) is yes, which ifany of the UN testing\nrequirements are applicable to these batteries?\nThe exceptions for passengers in 49 C.:.F:.R:. § 175.10(a) states \"This subchapter does\nnot apply to the following hazardous materials when carried by aircraft passengers\n\n<<<PAGE 6>>>\n\n\" \nU.S. Department\nof Transportation\nResearch and\nspecicd programs\n400 Seventh St•• S.W.\nWashington. D.C. 20590\nAdmin1strati~11\nJUN 2 0''''L003\nMs. Erica Jenkins Ref. No.: 02-0314\nLogistics Coordinator\nAero Vironment Inc.\n4685-3H Industrial Street\nSimi Valley, California 93063\nDear Ms. Jenkins:\nThis is in response to your letter regarding the use of the material oftrade exception as it applies to\nhighway shipments oflithium cells and batteries under the Hazardous Materials Regulations (HMR; 49\nCFR parts 171-180). Your questions are paraphrased and answered as follows:\nQl: Would the lithium batteries qualify for the MOTs exception, while being transported to various\nlocations for testing in solar powered aircraft and small-unmanned air vehicles?\nAl: The answer is yes. The materials of trade definition in § 171.8 includes a private motor carrier\ntransporting hazardous materials in direct support ofa principal business that is other than\ntransportation by motor vehicle.\nQ2: Would the lithium batteries qualify for the MOTs exception, while they are transported between\nAero Vironment facilities for testing and modifications? .\nA2: The answer is yes. One criteria for a MOT is that a hazardous material is transported by a\nprivate carrier in direct support of its principal business which is not transportation by motor\nvehicle. There:fure, a hazardous material transported between a company's facilities for\npwposes ofquality control testing meets the definition of MOT. In addition, prototype lithium\ncells and batteries may be transported for performance testing (Le .• product evaluation) in\nconnection with development programs when transported in confonnance with § 173.1850).\nQ3: You asked at what point does your hazardous material compliance liability terminate. after your\ncustomers accept delivery oflithium batteries at one your facilities?\n1IIIImllllllllili\n\n<<<PAGE 7>>>\n\n~-e\\~({~ot\nAaroVironmenl Inc.\n4685·3H Industrial Sheel\nAeroVironment Inc. Simi Valley, CA 930BS t-4.0T\n~113·Co\nL.:, %1 LtWl.lktk.rt%\nDecember 6, 2002 Oz.-O.3/i\nMr. Edward Mazzullo\nDirector, Office of Hazardous Materials Safety\nU.S. DOTI RSPA (DHM-10)\n400 7th Street S.W.\nWashington, DC 2OS90~0001\nDear Mr. Mazzullo,\nSubject: Need confirmation on 49 CFR (173.6 and 173.7)\nThe purpose of this letter is to obtain clarification on a few i,ssues that we have\nsome immediate concerns about. The primary material in\"~question is UN3090\n(Lithium Batteries), class 9, PGII, P.1. 903. I have contacted the DOT Office of\nHazardous Materials Safety and was advised to direct this letter to your attention.\nIn an effort to eliminate confusion on the interpretation of the two regulations I am\nrequesting written confirmation on the three issues that are listed below.\nIssue One: Would the Lithium batteries UN3090 be considered \"Materials of\nTrade\" as stated in CFR49173.6 while we are transporting them to various\nsites for testing? We are a design and development company that specializes\nin solar powered aircraft and small-unmanned air vehicles. Our primary business\nrelies on government contracts with both NASA and the Department of Defense\n(DOD). Our clients require us to go to various sites to conduct flight testing\nwhich is essential to the continuing growth and success of our bUsiness.\nIssue Two: Would these lithium batteries be considered \"Materials of\nTrade\" as stated in CFR49-173.6. while we are transporting them between\nAeroVironment faCilities for testing and modifications? The logistical location\nof our facilities requires us to transport these batteries between facilities during\ndifferent phases of research, development, and production. There are three\nbuildings that are close in proximity to one another with an estimated 6 miles\nbetween them and two with approximately seventy miles separating them.\nAgain, this is another vital function of our business and is essential for the time\nrestraints that NASA. and the DOD place upon us .\n. :~l:, ',:.'~ .\n4685-3H Industrial Street • Simi Valley, California 93063\" U.S.A.\nTelephone 805/581-2187. FAX 805/581-4512\nCorporate Office:J~21$ S. Myrtle Ave. • Monrovia, Caifornia 91016 • U.S.A • • 626/357-9983\n\" .. )\"\\\n....;,~~·:;i;·;. ' •","truncated":false,"body_characters":14261}