Wiley Rein LLP — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 1200 New Jersey Avenue, SE Washington, D.C. 20590 Materials Safety Pipeline and Hazardous Administration JAN 2 0 2015 Mr. George Kerchner Senior Regulatory Analyst Wiley Rein LLP 1776 K Street NW Washington, DC 20006 Reference No. 14-0207 Dear Mr. Kerchner: This is in response to your October 20, 2014 email requesting confirmation of the requirements for shipping lithium metal batteries contained in equipment under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), the International Maritime Dangerous Goods (IMDG) Code, and the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI). Your email states your product consists of a water flow meter containing two lithium metal C cells with an aggregate lithium metal content of approximately 4.5 grams. The cell and battery designs have been tested in accordance with the UN Manual of Tests and Criteria. In addition, the battery has three levels of protection in the meter; (1) the lithium metal battery is sealed; (2) the battery is placed inside the meter, and (3) the meter is packaged in a customized engineered box or crate. Finally, the meter will be placed in a strong outer packaging, packed to prevent movement within the outer packaging and accidental activation of the equipment during transport. Your questions are paraphrased and answered as follows: Q1. Provided the packaging, marking, labeling and documentation requirements in § 173.185(b) or § 173.185 (c) and all other applicable requirements of the HMR are met, may the flow meters described above be shipped by motor vehicle, aircraft and cargo vessel within the United States? Al. Section 173.185(c) prescribes exceptions for smaller lithium cells or batteries subject to certain conditions. Paragraph (c)(1)(ii) provides that the lithium content may not exceed 1 g for a lithium metal cell or 2 g for a lithium metal battery. Paragraph (c)(1)(iv) provides that for transportation by highway or rail only, the lithium metal content of the cell and battery may be increased to 5 g for a lithium metal cell and 25 g for a lithium metal battery. Therefore, as the water flow meter you describe contains 4.5 grams aggregate lithium content, it would be fully regulated under the HMR as a Class 9 hazardous material when transport is by aircraft or vessel, but not when transport is by motor vehicle or rail. For#

Page 2transport by motor vehicle or rail, a device containing 4.5 grams aggregate lithium content may be excepted from Class 9 requirements in accordance with the exceptions in § 173.185 (c). Q2. Provided the packaging requirements in Packing Instruction (PI) 970 of the ICAO TI and all other applicable marking, labeling and documentation requirements of the ICAO TI are met, may the flow meter described above be shipped internationally by air from the United States? A2. Yes, the flow meter containing lithium metal cells or batteries may be transported to, from or within the United States in accordance with Section I of Packing Instruction 970 as a fully regulated Class 9 hazardous material, if all or part of the transportation is by aircraft. The device would not be eligible for the exceptions provided in Section II of PI 970 as the aggregate lithium content of 4.5 grams in the flow meters exceeds 1 g for a lithium metal cell or 2 g for a lithium metal battery. Q3. Provided the packaging requirements in PI 903 of the IMDG Code and all other applicable marking, labeling and documentation requirements of the IMDG Code are met, may the flow meter as described above be shipped internationally by cargo vessel from the United States? A3. Yes, the flow meter containing lithium metal cells or batteries may be transported to, of the transportation is by vessel. from or within the United States in accordance with PI 903 of the IMDG Code, if all or part I trust this information is helpful. If you have further questions, please do not hesitate to contact this office. Sincerely, ShowC. lee Shane C. Kelley Acting International Standards Coordinator Standards and Rulemaking Division#

Page 3Wener $ 173.185 (6) cr (c) Dodd, Alice (PHMSA) Batteries 14-0207 From: Sent: Ciccarone, Michael CTR (PHMSA) To: Thursday, October 30, 20149:43 AM Subject: Hazmat Interps Attachments: FW: Request for Interpretation WRFMAIN-#13796541-V1-USDOT_Letter_10_20_14.pdf Shante/Alice, Please submit this for a formal letter of interpretation. Thanks, Mike From: Kerchner, George [mailto:GKerchner@wileyrein.com] To: PHMSA HM InfoCenter Sent: Wednesday, October 29, 2014 9:56 PM Subject: Request for Interpretation Please find attached a request for interpretation on shipping lithium metal batteries contained in equipment. Thank you. Wiley George A. Kerchner Rein Senior Regulatory Analyst Wiley Rein LLP 1776 K Street NW Tel: 202.719.4109 | Fax: 202.719.7049 Washington, DC 20006 www.wileyrein.com Email: GKerchner@wileyrein.com NOTICE: This message (including any attachments) from Wiley Rein LLP may constitute an attorney-client 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 GREEN(™). Please consider the environment before printing this email. sending an e-mail to Information@wileyrein.com. As part of our environmental efforts, the firm is WILEY#

Page 4Wiley Rein LLP 1776K STREET NW WASHINGTON, DC 20006 October 20, 2014 Senior Regulatory Analyst George A. Kerchner FAX PHONE 202.719.7049 202.719.7000 202,719.4109 gkerchner@wileyrein.com MCLEAN, VA 22102 7925 JONES BRANCH DRIVE FAX PHONE 703.905.2800 Delivered Via Email 703.905.2820 U.S. Department of Transportation www.wileyrein.com Pipeline and Hazardous Materials Safety Administration East Building Office of Hazardous Materials Standards/Attn: PHH-10 1200 New Jersey Avenue, SE. Washington, DC 20590-0001 Re: Request for Interpretation on Shipping Lithium Batteries Contained in Equipment I am writing to request confirmation that a water flow meter containing a lithium metal battery as more fully described below may be shipped in accordance with the regulations. U.S. hazardous materials regulations (HMR) and international dangerous goods The lithium metal battery in this particular flow meter contains two lithium metal C cells and has an aggregate lithium metal content of approximately 4.5 Mans. The el and batter designs have been tested in accordance with the Manual of Tests and Criteria. In addition. protection in the meter: i. the lithium metal battery is sealed; ii. the battery is placed inside the meter; and iii. the meter is packaged in a customized engineered box or crate. There is no form of communication (radio or cellular) built into the flow meter. It connect to for remote communication. does provide a LCD readout and interface for a separate radio or cellular device to The flow meter with the lithium metal battery installed will be shipped domestically and internationally by motor vehicle, aircraft and cargo vessel. The meter will be placed in a strong outer packaging constructed of suitable material of adequate strength and design to withstand conditions normally incident to transportation. In addition, the meter will be secured against movement within the outer packaging and be packed so as prevent accidental operation during transport.#

Page 5Wiley Rein LLP. October 20, 2014 Page 2 Based on the above-referenced information, please confirm the following shipping scenarios are authorized in accordance with the U.S. HMR, ICAO Technical Instructions and IMDG Code: 1. Provided the packaging, marking, labeling and documentation requirements in 49 CFR § 173.185(b) or § 173.185(c) and all other applicable requirements of the U.S. HMR are met, may the flow meter as described United States? above be shipped by motor vehicle, aircraft and cargo vessel within the 2. Provided the packaging requirements in Packing Instruction 970 of the ICAO Technical Instructions and all other applicable marking, labeling and documentation requirements of the ICAO Technical Instructions are met, from the United States? may the flow meter as described above be shipped internationally by air 3. Provided the packaging requirements in Packing Instruction P903 of the IMDG Code and all other applicable marking, labeling and documentation requirements of the IMDG Code are met, may the flow meter as described above be shipped internationally by cargo vessel from the United States? Thank you for your assistance. Sincerely. Door A-Kerchner George Kerchner Senior Regulatory Analyst 13796541.1#