Wiley Rein LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue SE Washington, DC 20590 DEC 142011 Mr. George Kerchner Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 Ref. No. 11-0268 Dear Mr. Kerchner: This responds to your October 26, 2011 letter regarding the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to design type testing oflithium batteries. The requirements you address are contained in Section 38.3 of the Slh Revised Edition ofthe United Nations (UN) Manual ofTest and Criteria and are implemented through the provisions of § 173.185 of the HMR. Specifically, you request confirmation that paragraph (f) in Section 38.3.3 applies only to the testing of a battery assembly consisting oflithium batteries that have met the applicable tests in the UN Manual ofTests and Criteria and not to batteries which must be tested in accordance with paragraphs (a), (b) and (d) of Section 38.3.3. Your understanding is correct. Paragraph (f) in 38.3.3 provides limited relief from the UN design type testing requirements for a battery assembly in which the lithium content of all anodes, when fully charged, is not more than 500 g, or in the case of a lithium ion battery assembly, a watthour rating of not more than 6200 Watt-hours, that is assembled from batteries that have passed all applicable design type tests. I hope this information is helpful. Ifyou have further questions, please contact this office.#

Page 21776 K STREET NW WASHINGTON, DC 20006 PHONE 202.719.7000 FAX 202.719.7049 7925 JONES BRANCH DRIVE McLEAN, VA 22102 PHONE 703.905.2800 FAX 703.905.2820 October 26, 20 II George A. Kerchner Senior Regulatory Consultant 202.719.4109 gkerchner@wileyrein.com www.wileyrein.com Delivered Via Email Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 Re: Request for Interpretation on Testing of Lithium Battery Assemblies I am writing for a clarification on paragraph (f) in Section 38.3.3 of the 5th Revised Edition of the UN Manual of Tests and Criteria as it applies to lithium batteries and lithium battery assemblies. As more fully-explained below, I would like written confirmation that paragraph (f) does not provide relief from the number oflithium batteries that require testing in accordance with 38.3.3(a), (b) and (d) ofthe UN Manual of Tests and Criteria. Lithium batteries, or battery packs, are generally comprised of two or more cells that are electrically connected by permanent means. The batteries are sU.bject to the testing requirements outlined in the UN Manual of Tests and Criteria. The number of batteries that must be tested are listed in 38.3.3(a), (b) and (d) of the UN Manual of Tests and Criteria. While there is no definition for "battery assembly" in the UN Manual of Tests and Criteria, it is generally understood that a battery assembly is a collection of electrically connected batteries that have been tested in accordance with the numbers listed in 38.3.3(a), (b) and (d) of the UN Manual of Tests and Criteria. Sometimes these batteries are referred to as "modules" in a battery assembly. Therefore, batteries and modules are generally smaller "units" of a battery assembly. Paragraph (f) in Section 38.3.3. of the UN Manual of Tests and Criteria states: When testing a battery assembly in which the aggregate lithium content of all anodes, whenfully charged, is not more than 500 g, or in the case ofa lithium ion battery, with a Watt-hour rating ofnot more than 6200 Watthours, that is assembled from cells or batteries that have passed all applicable tests, one battery assembly in a fully charged state shall be tested under tests 3, 4 and 5, and, in addition, test 7 in the case ofa#

Page 3October 26, 2011 Page 2 rechargeable battery assembly. For a rechargeable battery assembly, the assembly shall have been cycled at least 25 cycles. It is my understanding that paragraph (f) was added to the UN Manual of Tests and Criteria during the December 2008 meeting of the UN Subcommittee ofExperts on the Transport of Dangerous Goods. It appears the intent of this new provision is to provide some relief from the UN testing requirements for battery assemblies (consisting of batteries or modules) that do not exceed 6200 Wh or 500 grams of lithium metal. The paragraph that follows paragraph (1) in Section 38.3.3 ofthe UN Manual of Tests and Criteria provides relief from the UN lithium battery testing requirements for battery assemblies greater than 6200 Wh or 500 grams of lithium metal provided the batteries (or modules) ofwhich the battery assembly is comprised are fully UN-tested and the battery assembly meets certain design criteria as specified in that paragraph. Therefore, I would appreciate a letter of interpretation confirming that paragraph (f) in Section 38.3.3 ofthe UN Manual of Tests and Criteria applies only to the testing of lithium battery assemblies (consisting of batteries or modules) as described herein and not to the testing of batteries which must be tested in accordance with the numbers prescribed in 38.3.3(a), (b) and (d). Thank you for your assistance. Sincerely, George A. Kerchner#