{"operation":"document","citation":"14-0163","title":"Dentons US LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2015-01-14","effective_on":null,"summary":"14-0163 response to Dentons US LLP concerning 171.1, 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0163.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0163.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0163","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2015/140163.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nPipeline and Hazardous\nof Transportation\nWashington, DC 20590\n1200 New Jersey Ave., S.E.\nAdministration\nMaterials Safety\nJAN 1 4 2015\nMr. James W. Rubin\nCounsel\nDentons US LLP\n1301 K Street, NW\nSuite 600, East Tower\nWashington, DC 20005\nReference No. 14-0163\nDear Mr. Rubin:\nThis is in response to your August 19, 2014 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the shipment of used\nlithium batteries. Your questions are paraphrased as follows:\nQ1) Can used lithium batteries be shipped subject to the same regulatory requirements as\nnew lithium batteries absent clear and manifest evidence of defect or damage?\nAl) Yes. The shipping and packaging requirements of § 173.185 do not differentiate\nbetween new or used lithium cells or batteries.\nQ2) Can shippers of used lithium batteries reasonably rely on the testing and certification of\nthe manufacturer of the batteries and have no independent testing responsibility?\nA2) In accordance with § 171.1(b)(11), each person who offers a hazardous material for\ntransportation is responsible for certifying that the hazardous material is in proper condition\nfor transportation and in conformance with the requirements of the HMR. The shipper may\nelect to rely on the testing and certification of the manufacturer.\nQ3) At what point does the condition of the used battery require further action by the\nshipper to determine whether the battery is defective or damaged and how would a shipper\nreasonably recognize such a condition exists?\n\n<<<PAGE 2>>>\n\nA3) As provided by § 173.185(f), a lithium cell or battery is considered to be damaged or\ndefective if it is in such a condition that it has the potential of producing a dangerous\nevolution of heat, fire or short circuit while in transport.\nI trust this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nSincerely,\nsheet they\nShane C. Kelley\nActing International Standards Coordinator\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nIsabich\n§ 173,185\nBafferres\nDodd, Alice (PHMSA)\n4 - 0163\nFrom:\nCiccarone, Michael CTR (PHMSA)\nSent:\nThursday, August 21, 20142:09 PM\nTo:\nHazmat Interps\nSubject:\nFW: Letter of interpretation request [SNRD-US_Active.FID6139214]\nAttachments:\nCBettsLtr.pdf\nShante and Alice,\nPlease submit this for a formal letter of interpretation. Mr. Rubin spoke to Adam Lucas in the HMIC.\nThanks,\nMike\nFrom: Rubin, James W. [mailto:james.rubin@dentons.com]\nTo: INFOCNTR (PHMSA)\nSent: Tuesday, August 19, 2014 2:32 PM\nSubject: Letter of interpretation request [SNRD-US_Active. FID6139214]\nAttached please find a copy of a request for a letter of interpretation. I have sent a hard copy as well. Please let me\nknow if you have any questions.\nJames W. Rubin\njames.rubin@dentons.com\nD + 1 202 408 9146 | US Internal 29146\nBio. I Website\nDentons US LLP\nSNR Denton is proud to join Salans and FMC as a founding member of Dentons.\nThis email mav be confidential and protected by legal privilege. If you are not the intended recipient, disclosure,\nDentons is an international legal practice providing client services worldwide through its member firms and affiliates.\ncopying, distribution and use are prohibited; please notify us immediately and delete this copy from your system.\nPlease see dentons.com for Legal Notices.\n\n<<<PAGE 4>>>\n\nDENTONS\nCounsel\nJames W. Rubin\nD +1 202 408 9146\njames.rubin@dentons.com\ndentons com\nSalans FMC SNR Denton\nDentons US LLP\n1301 K Street, NW\nWashington, DC 20005-3364 USA\nSuite 600, East Tower\nF ÷1 202 408 6399\nT\n+1 202 408 6400\nAugust 19, 2014\nCharles E. Betts\nDirector of Standards of Rulemaking\nOffice of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety\nAdministration\nU.S. Department of Transportation\nEast Building\nWashington, DC 29590-0001\n1200 New Jersey Ave., SE\nRe: Letter of Interpretation Request -- 49 C.F.R. § 173.185 and Used Lithium Batteries\nDear Mr. Betts:\nI represent clients who are considering undertaking shipments of used lithium metal (primary,\nnon-rechargeable) and lithium ion batteries (secondary, rechargeable) (collectively \"lithium\nbatteries\") in commerce, including by air carrier. I am generally familiar with the Pipeline and\nHazardous Materials Safety Administration's (\"PHMSA\") regulations regarding shipments of\nlithium batteries as well as applicable international standards, including those of the International\nAir Transport Association (\"IATA\").\nPursuant to 49 C.F.R. section 105.20, I request a letter of interpretation of PHMSA regulations\nregarding their applicability to shipments of used lithium batteries and the responsibilities of\nshippers of those used batteries. The term \"used lithium batteries\" is intended to include\nbatteries that are not new from the manufacturer but rather have undergone some level of use and\nare no longer in their original packaging, and that are shipped on their own, with consumer goods\n(e.g. laptops) or inside such consumer goods. Their charges may range from nearly full to near\nthe end of life, but the batteries being shipped are intended for further use. They do not include\noatteries shipped for waste disposal, recycling or recall.\nAs explained further below, neither PHMSA regulations, specifically 49 C.F.R. section 173.185,\nnor international standards provide clarity on what actions a shipper of used lithium batteries\n\n<<<PAGE 5>>>\n\nDENTONS\ndentons.com\nSalans FMC SNR Denton\nAugust 19, 2014\nPage 2\nmust take, if any, to determine if a given shipment of used lithium batteries still meets United\nNations (\"U.N.\") testing criteria, conforms to 49 C.F.R. section 173.185, or is otherwise not\ndefective and not damaged such that PHMSA authorization is not needed. I understand from\ndiscussions with consultants in the industry that it is not generally possible or practicable for a\nshipper to accurately or effectively test used lithium batteries that may be in a shipment to make\nsure it conforms with its original certification, especially if it is inside a consumer good.\nAs to damaged and defective batteries, it may be obvious in a given situation that a battery is\ndamaged, e.g. where there are external indications of damage such as high temperature, signs of\nrupture, venting, disassembly or leakage from the battery or consumer good. But absent these\nexternal indications, a shipment of used batteries may bear no other indications of damage or\ndefect and otherwise look very much like a shipment of new batteries.\nDespite this lack of clarity, 1 understand that shipments of such batteries are currently being\nungertaken by various shippers who rely on the original certification of manufacturers and hold\nup shipments of used batteries only where a damage or defect is clear and manifest, such as the\ncircumstances described above. My hope is to secure guidance that such practices are acceptable\nunder PHMSA regulations.\nTo this end, and as explained below, I request that PHMSA provide a regulatory interpretation\nand clarification to 49 C.F.R. section 173.185 and related provisions in order to answer and\nprovide guidance on the following questions:\n1.\nCan used lithium batteries be shipped subject to the same regulatory requirements as new\nlithium batteries absent clear and manifest evidence of defect or damage, or are there any\ndifferent or additional requirements applied to used lithium batteries?\nCan shippers of used lithium batteries reasonably rely on the testing and certification of\nthe manufacturer of those batteries and thus have no independent testing responsibility?\n3.\nAt what point does the condition of the used battery require further action by the shipper\nto determine whether the battery is defective or damaged such that it does not meet the original\ntesting conditions or otherwise conform to 49 C.F.R. § 173.185; and how would a shipper\nreasonably recognize such a condition exists?\nFederal and international standards appear to focus on lithium batteries in general, without\ndistinguishing between new and used batteries. My understanding is that lithium batteries are\ngenerally considered Class 9 miscellaneous hazardous materials and therefore subject to PHMSA\nregulations, including 49 C.F.R. section 173.185 as well as sections 171.24 and 172.102 special\n\n<<<PAGE 6>>>\n\nDENTONS\nattens done\nSalans FMC SNR Denton\nAugust 19, 2014\nPage 3\nprovisions 188-190 and A100-104, and applicable international standards, including DIR 3.9.2.6.\nIn addition, lithium metal batteries can only be shipped on cargo aircraft and require specific\nlabeling and packaging. 49 C.F.R. §$171.24, 172.102 , special provision A 100.\nMoreover, under PHMSA regulations, lithium batteries \"must be of a type proven to meet the\nrequirements of each test in the U.N. Manual of Tests and Criteria,\" which, for at least air travel,\nI understand to be Part II, Sub-Section 38.3 of the U.N. Manual of Tests and Criteria. It is my\nunderstanding that shippers of lithium batteries do not perform their own testing but reasonably\nrely upon the certifications of manufacturers that the batteries meet the required tests. Lithium\nbatteries which do not comply with 49 C.F.R. section 173.185 can only be transported under\nconditions approved by PHMSA. Defective and damaged batteries considered at risk for over-\nheating, short-circuiting or causing fire are prohibited from transport, except on conditions\napproved by PHMSA. I presume this is because, at least in part, they no longer meet the testing\ncriteria in 49 C.F.R. section 173.185(a) and present a hazard to safety.\nBeyond these provisions, however, it does not appear that PHMSA regulations nor international\nstandards elaborate upon what actions shippers of used lithium batteries must take, if any, to\ndetermine if such used batteries still meet the manufacture's testing certification or otherwise are\ndefective or damaged. This issue was the subject of discussions at U.N. Sub-Committee of\nExperts on the Transport of Dangerous Goods, with initial submissions reviewing how used and\ndamaged lithium batteries should be transported. However, the focus of those discussions soon\nshifted exclusively to damaged and waste batteries, with parties generally concluding that\ntransport of \"[u]sed lithium batteries at the end of their life time can be treated in the same way\nas new batteries if there are no indications that they are damaged,\" but that standards were\nneeded for shipments of new batteries subject to recall and damaged used batteries. The U.N.\nSubcommittee did not further elaborate on how a shipper might determine if a battery were\ndamaged, other than to suggest some examples of lithium batteries with indication of damage.\nI reiterate that this request does not pertain to waste batteries, batteries shipped for recycling or\nreclamation, recalled batteries or prototype batteries. Rather, as stated above, the questions\npertain instead to shipment of used batteries that have undergone some level of use and are no\nlonger in their original packaging; they may be shipped on their own, with or inside a product.\nI am aware of Special Permit DOT-SP 15827 (June 12, 2013) which states that \"spent, used\nlithium ion polymer batteries are not authorized\" under 49 C.F.R. section 173.185(a) except as\npermitted by special permit conditions. But this special permit does not explain the legal or\nregulatory basis for this conclusion, the condition of the batteries considered (i.e. must the\n\n<<<PAGE 7>>>\n\nDENTONS\ndentons.com\nSalans FMC SNR Denton\nPage 4\nAugust 19, 2014\nbattery be completely spent and not intended for continued use?), or whether it also applies to\nother types of used lithium batteries.\nI am also aware that PHIMSA replied in a recent letter of interpretation that:\nWe have observed various transportation and non-transportation incidents involving lithium\nbatteries not properly protected from short circuits. While these incidents likely resulted from a\nlack of compliance, they serve to illustrate the point that even while partially discharged, lithium\nbatteries pose a risk of evolving a dangerous quantity of heat while in transportation. Therefore,\nspent or used lithium batteries must be offered for transportation in a manner that protects\nagainst short circuits, damage and the evolution of a dangerous quantity of heat in accordance\nwith all applicable requirements of the HMR. (emphasis added)\nAgain, this statement does not specify precisely how such used batteries should be so protected,\nother than in conformance with 49 C.F.R. section 173.185 and other regulations and standards\napplicable to new lithium batteries.\nIt is my understanding that trade in used lithium batteries is growing, and that PHMSA as well\nas international bodies remain concerned that such shipments be made as safely as possible.\nHence, it is in the interests of all parties and the public to provide guidance clarifying the\nrequirements and obligations of shippers of used lithium batteries, as I have sought in the\nquestions listed above.\nThank you for your consideration of the above requests. I look forward to your reply. Please\ncontact me at 202-408-9146 or james.rubin@dentons.com with any questions, concerns or\ncomments.\nSincerely,\nJamscaRuks\nJames W. Rubin\nCounsel","truncated":false,"body_characters":13262}