{"operation":"document","citation":"11-0150","title":"Holland & Knight LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-08-12","effective_on":null,"summary":"11-0150 response to Holland & Knight LLP concerning 171.25, 173.185, 173.22, 173.220.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0150.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0150.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0150","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110150.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department 1200 New Jersey Avenue SE\nof Transportation Washington. DC 20590\nPipeline and Hazardous\nMaterials Safety\nAdministration AtJG 1 22Un\nMr. Jonathan Epstein\nHolland & Knight LLP\n2099 Pennsylvania Ave, N.W.\nSuite 100\nWashington, DC 20006\nRef. No.: 11-0150\nDear Mr. Epstein:\nThis responds to your June 20, 2011 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to battery-powered\nequipment and lithium batteries.\nIn your letter, you state that your client, Toro Company (Toro), has designed a new\nproduct that is a commercial grade self-propelled walk behind mower designed to be used\non golf courses. You state that the mower (a.k.a., eFlex) is powered by a 58 volt lithiumion\nbattery pack that is semi-permanently affixed to the eFlex chassis and would not\nnormally be removed except for maintenance. You also state that the battery pack is\naffixed securely in a battery holder and protected in a manner to prevent short circuit or\ndamage and housed within a glass filled nylon protective enclosure that is vented to allow\ndissipation of heat. You further state that the lithium batteries have been tested to meet\nUN test criteria as prescribed in the HMR under § 173.185. Finally, you provide an\nattachment of the specifications of the eFlex mower with your letter. Your questions are\nparaphrased and answered below. .\n01: You ask whether the eFlex mower is properly classified as \"UN3171, Batterypowered\nequipment\" instead of\"UN3091, Lithium batteries, contained in\nequipment?\"\nAI: In accordance with § 173.22, it is the shipper's responsibility to properly classify and\ndescribe a hazardous material. This Office does not perform that function. However,\nwhen reviewing the specifications of the eFlex mower you provided, the answer is\nyes. In addition, for \"UN3171, Battery-powered equipment,\" Special Provision 134\nin § 172.202 states that \"this entry only applies to vehicles, machinery and equipment\npowered by wet batteries, sodium batteries, or lithium batteries that are transported\nwith these batteries installed. Examples of such items are electrically-powered cars,\nlawn mowers, wheelchairs, and other mobility aids.\" UN3171 is a proper\n\n<<<PAGE 2>>>\n\nclassification for the eFlex mower as it is a battery-powered piece of mechanized\nequipment that would normally be powered by an internal combustion engine.\nQ2: You ask whether the eFlex mower containing an installed lithium ion battery pack\ncan be shipped by ground in the U.S. in accordance with the exceptions provided in\n§ 173.220?\n. A2: The answer is yes. Provided a shipment of eFlex mowers comply with the\nrequirements in § 173.220, a shipper would be able to utilize the appropriate\nexceptions (such as § 173.220(h)(1)).\nQ3: You ask whether the eFlex mower can be shipped by vessel as \"UN3171, Batterypo~ered\nequipment\" under the International Maritime Dangerous Goods (lMDG)\nCode?\nA3: The answer is yes. As specified in § 171.2S(b)(4), any person who offers for\ntransportation or tram;ports a hazardous material consigned under \"UN3166\" and\n\"UN3171\" may be prepared in accordance with the IMDG Code or this subchapter.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\n~~~~-'-....\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nHolland & Knight s\\13·220\n2099 Pennsylvania Avenue, N.W., Suite 100 I Washington, DC 20006 I T 202.955.3000 I F 202.955.5564\nHolland & Knight LLP I www.hklaw.com\nN, ekeLs\n~ 173. 1 $36'\n-ex:; He ,,-ies\n1(- 0 150\nJonathan M, Epstein\n(202) 828-1870\njonathan.epstein@hklaw.com\nJune 20, 2011\nVIA: UPS\nU.S. Department of Transportation\nAttn: PHH-I0\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe: Request for Interpretation - eFLEX Self-Propelled Commercial Mower Powered by a\nLithium Ion Battery under HMR and IMDG Code\nDear SirlMadam:\nOn behalf of the Toro Company (\"Toro\"), we hereby submit this request for clarification\nofthe classification and shipping requirements for the Toro eFLEX Lithium Ion battery-powered\nmower, pursuant to 49 C.F.R. § 105.20 of the Hazardous Materials Regulations (nHMR\").\nBased on our review ofthe applicable regulations and discussion with a Pipeline and\nHazardous Materials Agency (\"PHMSA\") official, 1\nwe believe that the eFLEX is classifiable as\n\"Battery-Powered Equipment (UN 3171)\" and not as \"Lithium Batteries, contained in equipment\n(UN 3091).\" However, in order to avoid future confusion by logistics providers, we request this\nclarification.\nA. Description of eFLEX\nThe eFlex is a new product designed by Toro which will soon be in production. It is a\ncommercial grade self-propelled walk behind mower designed to be used on golf courses. It is\npowered by a 58 Volt Lithium-Ion battery pack that is semi-permanently affixed to the eFLEX\nchassis and would not normally be removed except for maintenance. The battery pack is affixed\nI Conference of Feb. 7, 2011, between Jonathan M. Epstein, Holland & Knight, and Kevin Leary, PHMSA.\nAtlanta I Bethesda I Boston I Chicago I Fort Lauderdale IJacksonville I Lakeland I Los Angeles I Miami I New York\nNorthern Virginia IOrlando IPortland ISan Francisco ITallahassee ITampa IWashington, D,C, IWest Palm Beach\nAbu Dhabi IBeijing I Mexico City\n\n<<<PAGE 4>>>\n\nU.S. Department of Transportation\nJune 20, 2011\nPage 2\nsecurely in a battery holder and protected in a manner to prevent short circuit or damage and\nhoused within a glass filled nylon protective enclosure that is vented to allow dissipation ofheat.\nThe lithium batteries have been tested to and met UN test criteria as prescribed in HMR §\n173.185. See attached specifications at Enclosure A.\nB. Specific Questions\n1. Is the eFLEX properly classifiable as \"Battery-Powered Equipment (UN 3171)\"\nrather than as \"Lithium Batteries, contained in equipment (UN 3091)\"?\nThe HMR table entry for Battery-Powered Equipment (UN 3171) calls out for the use of\nspecial packing instructions HMR § 173.220 which applies to \"[a]n internal combustion engine,\nselfpropelled vehicle, mechanized equipment containing an internal combustion engine, a\nbattery powered vehicle or equipment . .. when transported as cargo . ... /I This table entry also\nreferences special provision 134 (HMR § 173.l02(c)), which states:\nThis entry only applies to vehicles, machinery and equipment powered by\nwet batteries, sodium batteries, or lithium batteries that are transported\nwith these batteries installed Examples ofsuch items are electricallypowered\ncars, lawn mowers. wheelchairs, and other mobility aids . ...\nHence, UN 3171 would appear to be the proper classification for the eFLEX, a batterypowered\npiece of mechanized equipment that would otherwise normally be powered by an\ninternal combustion engine. We understand that the classification Lithium Batteries contained in\nequipment is not intended to apply to lithium battery-powered machinery, but rather to lithium\nbattery-powered electronics such as laptop computers. There are several interpretations by\nPHMSA on point. In 2009, PHMSA found that the lithium battery-powered floor scrubber was\nclassified under lJN 3171, and that it should be packed under HMR § 173.220 rather than\nHMR § 173.185.2 There is a similar ruling with respect to the lithium-powered Segway.3\n2. May the eFLEX mower containing installed lithium ion battery pack be shipped\nby ground in the United States in accordance with HMR exception § 173.220?\nIf the eFLEX is classifiable under UN 3 171, we presume that, if it meets the technical\ncriteria for shipment under HMR §173.220, it may be shipped under that provision and exempt\nfrom other provisions ofthe HMR for shipment by ground in accordance with HMR\n§ 173.220(g)(1).\n2 PHMSA Interpretation No. 09-0197.\n3 PHMSA Interpretation No. 05-0076.\n\n<<<PAGE 5>>>\n\nU.S. Department ofTransportation\nJune 20, 2011\nPage 3\n3. If Shipped by Sea, the eFlex would be classified as \"Battery-Powered Eguipment\"\n(UN 3171) under the International Maritime Dangerous Goods ('IIMDG\") Code\nand shipped according to the reguirements set forth in the IMDG?\nWe understand that the IMDG can now be used for shipping items under UN 3171. On\nJanuary 19, 2011, PHMSA published a final rule harmonizing certain HMR provisions, inter\nalia, with the IMDG.4 This rule added to HMR § 171.25 (Additional Requirements for the use\nof the IMDG code) a new sub-section (b)( 4) that states: \"Materials consigned under UN 3166\nand UN 3171 (e.g., engines, internal combustion, etc., and Battery-powered equipment) may be\nprepared in accordance with the IMDG Code or this Subchapter. 1/ This Rule goes into effect\nJanuary 1,2012, but voluntary compliance is allowed beginning January 1,2011. We note that\nsimilar to the HMR, the IMDG Code's Special Provision 240 states that examples of batterypowered\nequipment include \"lawnmowers. n\nIfyou have any questions or require additional information, please do not hesitate to\ncontact me at (202) 828-1870, or bye-mail atjonathan.epstein@hkIaw.com.\nSincerely yours,\nHOLLAND & KNIGHT LLP\nD\nathan M. Epstein\nEnclosure:\nA. Specifications of eFlex\n4 PHMSA Final Rule, Hazardous Materials: Harmonization with the United Nations Recommendations,\nInternational Maritime Dangerous Goods Code, and International Civil Aviation Organization Technical\nInstructions/or the Safe Transportation o/Dangerous Goods by Air, 76 Fed. Reg. 3308 (Jan. 19,2011).","truncated":false,"body_characters":9561}