{"operation":"document","citation":"15-0207","title":"Department of Army — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2016-06-02","effective_on":null,"summary":"15-0207 response to Department of Army concerning 171.1, 171.7, 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0207.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0207.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0207","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/150207.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\nWashington, D.C. 20590\n1200 New Jersey Avenue, SE\nPipeline and Hazardous\nAdministration\nMaterials Safety\nJUN 0 2 2016\nMarco Boasso\nSafety & Occupational Health Specialist\nDepartment of the Army\nMilitary Surface Deployment and Distribution Command\n1 Soldier Way\nScott AFB, IL: 62225-5006\nReference No. 15-0207\nDear Mr. Boasso:\nThis letter is in response to your October 16, 2015, letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR parts 171-180) applicable to the\ntransportation of lithium batteries. Specifically, you state the following: 1) the Department of\nDefense (DOD) possesses lithium batteries that have been purchased over the years for\nsystems that are critical and irreplaceable; 2) in most instances, the manufacturers of the\nlithium batteries used in these systems are not direct vendors to the DOD and the lithium\nbatteries are simply subcomponents of a higher assembly that the DOD has previously\nprocured; 3) some of the companies from which the DOD has procured items have gone out\nof business, making it impossible for the DOD to obtain pertinent information on systems that\nare critical to mission readiness; and 4) the DOD presumes that the lithium battery\nmanufacturers complied with the requirements as stated in § 173.185 of the HMR at the time\nof manufacture and that the final lithium battery devices were legally shipped to the DOD\nwhen originally purchased. We have paraphrased and answered your questions as follows:\nQ1.\nTo what versions of the United Nations (UN) Manual of Tests and Criteria must\nlithium cells or batteries be tested prior to being approved for transportation?\nA1.\nAs provided in § 173.185(a)(1), each lithium cell or battery must be of the type proven\nto meet the criteria in part III, subsection 38.3 of the UN Manual of Tests and Criteria\n(incorporated by reference (IBR); see § 171.7 of the HMR). The following are the UN\nManual of Tests and Criteria currently IBR: (i) Fifth revised edition (2009); (ii) Fifth\nrevised edition, amendment 1 (2011); and (iii) Fifth revised edition, amendment 2\n(2013). Lithium cells and batteries are subject to these tests regardless of whether the\ncells used to construct the battery are of a tested type.\n1\n\n<<<PAGE 2>>>\n\nFurthermore, as provided in § 173.185(a)(1)(i), cells and batteries manufactured\naccording to a type meeting the requirements of subsection 38.3 of the UN Manual of\nTests and Criteria, Revision 3, Amendment 1, or any subsequent revision and\namendment applicable at the date of the type testing, may continue to be transported,\nunless otherwise provided in the HMR.\nQ2.\nIf the exact date of manufacture of the lithium batteries can be determined and that\ndate was prior to July 2003, can those lithium batteries be shipped?\nA2. The answer is yes. As provided in § 173.185(a)(1)(ii), cell and battery types\nmanufactured after July 2003 only meeting the requirements of the UN Manual of\nTests and Criteria, Revision 3, are not authorized for transportation. However, cells\nand batteries manufactured in conformity with such types before July 2003 may\ncontinue to be transported if all other applicable requirements are fulfilled.\nQ3. If the exact date of manufacture cannot be determined and the lithium batteries only\nmeet the UN Manual of Tests and Criteria, Revision 3, are the lithium batteries now\nunacceptable for shipment?\nA3.\nThe answer is yes (see A2). Lithium batteries only meeting the UN Manual of Tests\nand Criteria, Revision 3, are only acceptable for shipment if they were manufactured\nin conformity with such types prior to July 2003.\nQ4. What are the requirements for the end user to verify that the lithium batteries they are\nre-shipping have been classified correctly and comply with the test requirements as\noutlined in § 173.185?\nA4.\nIn accordance with § 171.1(b), requirements of the HMR apply to each person who\noffers a hazardous material for transportation in commerce, causes a hazardous\nmaterial to be transported in commerce, or transports a hazardous material in\ncommerce and who performs or is responsible for performing a pre-transportation\nfunction. Pre-transportation functions include, but are not limited to, determining the\nhazard class of a hazardous material. If unable to confirm that the lithium cells and\nbattery types are in compliance with the HMR, the shipper may need to apply for a\nDepartment of Transportation (DOT) special permit to offer those lithium cells and\nbattery types described in your letter.\nTo apply, you must submit an application to the Associate Administrator for\nHazardous Materials Safety in conformance with the requirements prescribed in 49\nCFR part 107, subpart B. You may obtain information on the special permit\napplication process from our website at http://www.phmsa.dot.gov/hazmat/regs/sp-a\nor by contacting PHMSA's Approvals and Permits Division at (202) 366-4511.\nFinally, please note that the Federal government (and therefore the DOD) is not subject to the\nHMR unless it offers for transportation or transports a hazardous material in commerce or in\nfurtherance of a commercial enterprise. Transportation is not in furtherance of a commercial\n2\n\n<<<PAGE 3>>>\n\nenterprise if it is carried out by governmental personnel (military or civilian) for a\ngovernmental purpose. However, if the DOD decides to use contractors, it is subject to the\nrequirements of the HMR when shipping hazardous materials on conveyances operated by\ncontractor personnel (see § 171.1(d)(5)).\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChiet, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n3\n\n<<<PAGE 4>>>\n\nNickels\n$173.185.\nDodd, Alice (PHMSA)\nBatteries\n15-0207\nFrom:\nRivera, Jordan CTR (PHMSA)\nSent:\nFriday, October 16, 2015 4:50 PM\nTo:\nHazmat Interps\nSubject:\nFW: Interpretation Request\nAttachments:\nInterpretation Request 173.185.pdf\nSigned By:\njordan.rivera.ctr@dot.gov\nHi Shante/Alice,\nPlease submit for a letter of interpretation.\nThanks,\nJordan\n----Original Message-----\nFrom: Boasso, Marco CIV USARMY SDDC (US) [mailto:marco.boasso.civ@mail.mill\nSent: Friday, October 16, 2015 3:30 PM\nTo: INFOCNTR (PHMSA)\nCc: Cantu, Elias V CIV USARMY SDDC (US)\nSubject: Interpretation Request\nTo whom it may concern,\nAttached is an interpretation request submitted by the Department of\nDefense.\nThank you for your assistance, please contact this office if you have any\nquestions.\nV/r\nMarco Boasso\nSafety & Occupational Health Specialist\nSurface Deployment and Distribution Command\nScott AFB IL\nPHONE: (618) 220-5040, DSN 770-5040\nmarco.boasso.civ@mail.mil\n\n<<<PAGE 5>>>\n\nMILITARY SURFACE DEPLOYMENT AND DISTRIBUTION COMMAND\nDEPARTMENT OF THE ARMY\nSCOTT AFB, IL 62225-500€\n1 SOLDIER WAY\nDirector, Commarid Safety Office\nOctober 16, 2015\nStandards and Rule Making Division\nPipeline Hazardous Materials Safety Administration\nAttn: PHH-10\nU.S. Department of Transportation\n1200 New Jersey Avenue, SE\nEast Building, 2nd Floor\nWashington, DC 20590-0001\nTo whom it may concern,\nDepartment of Defense (DOD) hereby requests an Interpretation of the Hazardous Materials\nIn accordance with the provisions of Title 49, CFR, Part 105, Section 105.20, the\nRegulations as outlined below. DOD petitions for a clarification of 49 CFR 173.185(a)(1),\n173.185(a)(1)(i) and 49 CFR 173.185(a)(1)(ii).\nFile Number: Interpretation 173.185(10-08)\nRe: Request Interpretation of 49 CFR 173.185(a)(1)(i) and 173.185(a) (1)(ii)\nProponent: Department of Defense (DOD)\n49 CFR 173.185(a)(1)(i) and (ii) states:\n\"(a) Classification. (1) Each lithium cell or battery must be of the type proven to meet the criteria\nin Part III, sub-section 38.3 of the UN Manual of Tests and Criteria (IBR; see §171.7 of this\nsubchapter). Lithium cells and batteries are subject to these tests regardless of whether the cells\nused to construct the battery are of a tested type.\n(i) Cells and batteries manufactured according to a type meeting the requirements of sub-section\n38.3 of the UN Manual of Tests and Criteria, Revision 3, Amendment 1 or any subsequent\nrevision and amendment applicable at the date of the type testing may continue to be transported,\nunless otherwise provided in this subchapter.\n(ii) Cell and battery types only meeting the requirements of the UN Manual of Tests and Criteria,\nRevision 3, are no longer valid. However, cells and batteries manufactured in conformity with\nsuch types before July 2003 may continue to be transported if all other applicable requirements\nare fulfilled.\"\nThe DOD is in the possession of batteries that were purchased in prior years for systems that are\ncritical and irreplaceable. In most instances, the manufacturer of the batteries used in these\nsystems are not direct vendors to the DOD as the batteries and spares are simply subcomponents\nof a higher assembly that the DOD is procuring. Many times companies that the DOD has\nprocured items from go out of business, making it impossible for the DOD to obtain pertinent\nPrinted on\nRecycled Paper\n\n<<<PAGE 6>>>\n\n-2-\ninformation on systems that are critical to mission readiness, and are irreplaceable. The DOD\npresumes that the battery manufacturer complied with the requirements as stated in the 49 CFR\n173.185 at the time of manufacturer and the end items were legally shipped to the DOD when\npurchased.\nThe DOD must ship these systems, including batteries and spares, to different locations as\nneeded. What is the requirement for the end user to verify that the batteries they are re-shipping\nare in compliance to the test requirements as outlined in the 49 CPR? If the exact date of\nmanufacture can be determined and was prior to 2003, do the same requirements apply? If the\nexact date of manufacturer cannot be determined, and the battery may only meet the UN Manual\nof Tests and Criteria, Revision 3 requirement, are the batteries now unacceptable for shipment?\nThe DOD respectfully asks for clarification in this matter.\nMy point of contacts for this matter are Mr. Marco Boasso, (618) 220-5040, e-mail\nmarco.boasso.civ@mail.mil and Mr. Elias Cantu, (618) 220-5041, e-mail\nelias.v.cantu.civ@mail.mil or usarmy.scott.sddc.mbx.omb-for-safety@mail.mil Safety Team,\nMilitary Surface Deployment and Distribution Command..\nSincerely,\nDaniel A. Maham\nDirector of Safety","truncated":false,"body_characters":10355}