Wiley Rein LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation 1 200 New Jersey Ave. SE Washington. D.C. 20590 Pipeline and Hazardous Materials Safety Administration MAR 1 2010 Mr. George Kerchner Wiley Rein LLP 1776 K Street NW Washington, DC 20006 Ref. No.: 09-0255 Dear Mr. Kerchner: This is in response to your November 1, 2009 email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transport of small production runs of lithium batteries. The HMR except production runs of not more than 100 lithium cells or batteries from UN design type testing requirements under the conditions specified in § 172.1 02( c) Special provision 29. Your questions are paraphrased and answered below: Q1. When untested lithium batteries contained in equipment are intended for transport in accordance with the provisions of Special provision 29, must the equipment be packaged in accordance with Special provision 29? AI. Yes. Equipment containing lithium batteries offered for transportation in accordance with Special provision 29 must be placed in an outer packaging that is a metal, plastic or plywood drum or metal, plastic or wooden box that meets the criteria for Packing Group I packagings. Q2. May equipment containing low production cells and batteries be transported in accordance with Special provision 188? A2. Low production lithium cells and batteries, including cells and batteries packed with or contained in equipment, may be shipped in accordance with Special provision 188. However, the lithium cells and batteries must meet each ofthe requirements in Special provision 188, including the requirement for lithium cells and batteries to be of a type proven to meet each of the applicable tests outlined in the UN Manual of Tests and Criteria. Q3. May equipment containing untested lithium cells and batteries complying with Special provision 29 be transported on aircraft?#

Page 2A3. No. Special provision 29 permits transportation by motor vehicle, rail car and vessel only. I trust this satisfies your inquiry. If we can be offurther assistance, please contact us. Sincerely, ~~~~ dharles E. Betts C~ef, Standards Development O~azardous Materials Standards#

Page 3Drakeford, Carolyn (PHMSA) From: Leary, Kevin (PHMSA) Sent: Wednesday, November 04,20092:11 PM To: Drakeford, Carolyn (PHMSA) Cc: Betts, Charles (PHMSA) Subject: FW: Special Provision 29 - Request for Interpretation From: Kerchner, George [mailto:GKerchner@wileyrein.com] Sent: Sunday, November 01, 2009 6:34 AM To: Leary, Kevin (PHMSA) Subject: Special Provision 29 - Request for Interpretation Mr. Leary- I am writing to request an interpretation regarding Special Provision 29 in the U.S. hazardous materials regulations. It is a common practice for battery assemblers to ship "small," low production lithium batteries to their customers pursuant to Special Provision 29. These customers will then ship the low production batteries installed in equipment or packed with equipment. My questions pertain to the packaging requirements for these low production batteries when they are installed in or packed with equipment. Must the equipment be shipped as Class 9 hazardous materials pursuant to the packaging requirements in Special Provision 29 or can they be shipped under Special Provision 188? Can the equipment be shipped by air? Ifso, what are the packaging requirements for these air shipments? Thank you for you assistance. George A. Kerchner Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 9kerctme~@\J\Iiley[ejJLCQ-'n (Office) 202.719.4109 (Cell) 443.223.0604 NOTICE: This message (including any attachments) from Wiley Rein LLP may constitute an attorneyclient communication and may contain information that is PRIVILEGED and CONFIDENTIAL and/or ATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that any dissemination of this message is strictly prohibited. If you have received this message in error, please do not read, copy or forward this message. Please permanently delete all copies and any attachments and notifY the sender immediately by sending an e-mail tolnformation@wileyrein.com. 1114/2009#