{"operation":"document","citation":"17-0010","title":"Baker & McKenzie LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2017-06-29","effective_on":null,"summary":"17-0010 response to Baker & McKenzie LLP concerning 173.159, 175.10.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0010.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0010.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0010","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2017/170010.pdf","body":"<<<PAGE 1>>>\n\nJenner rock\nBaker & McKenzie LLP\n815 Connecticut Avenue NW\nWashington, DC 20006\nReference No. 17-0010\nDear Ms. Trock:\nThis letter is in response to your February 3, 2017, letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to exceptions for\nnon-spillable batteries. You indicate the following information:\n• You are shipping by cargo aircraft a Cargo Filter System secured in a cargo container.\n• The Cargo Filter System is comprised of an air circulation device and a transportation\ndata logger intended to ensure a clean environment for a piece of equipment also\ncontained in a cargo container.\nThe air circulation device includes a small electric air pump, powered by a non-spillable\nbattery.\n• The data logger is powered by two 9V dry cell batteries that are excepted from the\nregulations.\n• The Cargo Filter System is intended to be activated during transportation.\n• The Cargo Filter System contains no hazardous gas.\nSpecifically, you ask if the Cargo Filter System as described would be excepted from the HMR.\nThe answer is yes. Non-spillable batteries are excepted from the HMR in accordance with\n§ 173.159a(d). To meet this exception, the non-spillable batteries must conform to the\nfollowing:\n1) Comply with § 173.159a(c);\n2) At a temperature of 55 °C (131 °F), the battery must not contain any unabsorbed free-\nflowing liquid, and must be designed so that electrolyte will not flow from a ruptured or\ncracked case;\n3) For transport by aircraft, when contained in a battery-powered device, equipment or\nvehicle must be prepared and packaged for transport in a manner to prevent unintentional\nactivation in conformance with § 173.159(b)(2) of the HMR; and\n\n<<<PAGE 2>>>\n\nbattery necessary for operation of equipment. Additionally, as a piece of equipment intended to\nbe operated during a flight, the Cargo Filter System must comply with Federal Aviation\nAdministration requirements.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nChief, Standards Development Branch\nStandards and Rulemaking Divisio\n\n<<<PAGE 3>>>\n\nU.S. DOT\nPHMSA Office of Hazardous Materials Standards\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe:\nRequest for Interpretation under 49 C.F.R. § 173.159a\nWe are writing to request PHMSA clarification regarding the requirements for\nshipment of certain cargo containers containing equipment and an independent and\nautomatic air circulation and filtration device powered by non-spillable batteries\nexcepted from the Hazardous Material Regulations (\"HMR\") under 49 C.F.R. §\n173.159a(d) (\"Cargo Filter Systems\"). It is our understanding that the Cargo Filter\nSystems would be excepted from the HMR pursuant to 173.159a and that no UN\nclassification would apply for shipment aboard cargo aircraft. As such, we also\nunderstand that they would not be subject to FAA certification requirements for\nshipment by air.\nThese Cargo Filter Systems include simply-designed devices used to circulate and\nclean air within a barrier bag in a shipping crate also containing equipment sensitive\nto ambient contaminants (e.g. humidity and particles), and a transportation data\nlogger. The circulation devices include a small electric air pump (e.g., 12 VDC, 4\nwatts, 2 liters per minute), passive filters/purifiers, humidity sensors, and battery\nvoltage sensors. Some models may have a low power status and interface panel\ninstalled in the container wall. The devices also include a battery charger, which is not\nconnected or active during transport, for use in operating the device on the ground\n(e.g. long term storage.). The systems are not pressurized, and the bag contains a\nflappy valve that allows air to flow freely from the inside to outside of the bag. The\ncirculation device is secured in the cargo container with the equipment being shipped,\nut does not power that equipment. The circulation device is enclosed in a thic\nnetal box inside, or as a fixed add-on to, the equipment, all of which is contained i\nseveral layers of protective plastic and placed within the crate for shipping.\nwww.pillsburylaw.com\n4851-5744-5160.v5\n\n<<<PAGE 4>>>\n\nrequirements of 173.159a(d). The data logger is powered by two 9V consumer\nbatteries, which are also excepted from the HMR. No hazardous gas or other\nmaterials are part of the circulation device, which is independent and automatic, nor\nare any hazardous gas or materials part of the co-packaged equipment. This\ncirculation device is intended to remain active during transportation to ensure a clean\nair environment for the equipment within the cargo container.\nUnder 49 C.F.R. § 173.159a, non-spillable batteries that meet the requirements of\n173.159a(d)' must meet the incident reporting requirements of 173.159a(b), but are\notherwise excepted from the HMR.\nWe are aware of an interpretation involving\nsimilar systems but with temperature-controlled features not present in the Cargo\nFilter System, PHMSA determined that when such excepted batteries are used to\npower a device in a cargo container in an active state as would be the case here, the\nbatteries were excepted from the HMR, under the conditions specified in 173.159a(d),\ndescribed above.? Likewise, other PHMSA determinations have confirmed that non-\nspillable batteries when excepted from the HMR under 173.159a(d), are not \"batteries\nin equipment\" within the meaning of 173.220. As such, it is our understanding that\n' The 173.159a(d) requirements include requiring that the non-spillable battery is: (i) securely packed;\n(ii) prepared and packaged to prevent a dangerous evolution of heat, short circuits, damage to\nterminals, and to avoid unintentional activation; (iii) properly marked along with the outer packaging\n(e.g. NON-SPILLABLE); (iv) does not contain unabsorbed free flowing-liquid at a temperature of\n55° C; (v) designed so that electrolytes will not flow from a ruptured or cracked case; and (vi) carried\nonboard as cargo.\nSee Letter from H. Mitchell, Chief, Regulatory Review and Reinvention, Office of Hazardous\nMaterials, to K. Broussard (Dec. 12, 2008) (determining that a non-spillable battery used to power a\nHMR under the conditions specified in 173.159(d)). In 2009, 173.159(d) was recodified in\ntemperature control system inside of a cargo container are excepted from the requirements of the\n173.159a(d), maintaining the same category for exemptions. 74 Fed. Reg. 2258 (Jan. 24, 2009).\nThis particular container also included a refrigerant that was subject to the HMR. PHMSA\nsuggested that they contact the FAA for applicable certification requirements of the device. The\nPHMSA letter makes no mention of PHMSA ULD requirements or the regulation dealing with\nbattery-powered equipment (173.220).\n3 See Letter from D. Billings, Chief, Standards Development, Office of Hazardous Materials Standards,\nto S. Marasco (Nov. 30, 2001) (confirming that a non-spillable battery contained in a forklift was not\nsubject to 173.220); Letter from H. Mitchell, Chief, Regulatory Review and Reinvention, Office of\nHazardous Materials Standards, to A. Romach (Apr. 12, 2004) (confirming that fuel cell vehicles\ncontaining non-spillable batteries meeting the requirements of 173.159(d) were exempted from the\nHMR); Letter from E. Mazzullo, Director, Office of Hazardous Materials Standards, to F. Wybenga\n(Mar. 5, 2008) (confirming that the marking requirements of 173.159(d) apply to non-spillable\nbatteries contained in equipment placed in an outer packaging and a non-spillable battery packed\nwith equipment placed in outer packaging; confirming that an uninterrupted power supply (UPS)\nwww.pillsburylaw.com\n4851-5744-5160.v5\n\n<<<PAGE 5>>>\n\nshipment on aircraft for purposes of the HMR.\nPlease see the following pages of attachments to assist in your determination.\nWe seek your confirmation that the Cargo Filter System, as described above, would\nbe excepted from the HMR under the provisions of 173.159a(d). If not, we would\nappreciate additional guidance as to the applicable HM requirements.\nSincerely,\nJennifer Trock\nbattery was not equipment, but instead used to power equipment and properly labeled as an\nindividual battery.\nwww.pillsburylaw.com\n4851-5744-5160 v5\n\n<<<PAGE 6>>>\n\nCargo Filter System Overview\n• Consists of a large crate/box with equipment and circulation system\n• Inside the crate is a system of simply-designed devices to circulate air within a barrier bag\n• System is not pressurized, and the barrier bag contains a valve that allows air to flow freely\nfrom inside to outside of the bag\n• Contains no refrigerants or other hazardous gasses as part of the circulation device\n• Circulation system inside of the crate/box is primarily made up of a small electric pump, passive\nair filters, sensors, and a battery\n• Circulation device is independent and automatic; contains no hazardous gas or materials\n• Intended to remain active during transport\n• Also includes a battery charger (inactive during transport) for use on the ground\n• Purpose is to protect equipment that is sensitive to ambient contaminants (e.g. dust particles)\n\n<<<PAGE 7>>>\n\nBattery Overview\n• Data logger powered by 2 9V consumer batteries (excepted from the HMR)\n• Small electrical pump, which his housed in metal container independent of other equipment in the\nshipping crate, is powered by battery that has been independently certified to meet the requirements\nof 173.159a(d), including:\n• The battery is packed and braced to prevent damage/short circuits in transit, and other material is\nsecured to prevent contact with the battery, and as part of the equipment, it is securely fastened\nin the battery holder (e.g. the circulation device). [173.159a(c)]\n• See Attached Diagram The battery and outer package is marked as indicated in paragraph\n(C).\n• At a temperature of 55C, Contains no free-flowing liquid and designed electrolyte will not flow\nfrom a ruptured or cracked case; [179.159a(d)(1)]\n• For transport by aircraft, when contained in a battery-powered device, equipment or vehicle must\nbe prepared and packaged for transport in a manner to prevent unintentional activation in\nconformance with § 173.159(b)(2) of this Subpart. [179.159a(d)(2)]\n• See Attached Diagram - packaging prevents leakage and restricts access to battery; battery is\nactive during transportation\n• The container would be shipped as cargo only [179.159a(d)(3)]\n\n<<<PAGE 8>>>\n\nNon-pressurized\nAir Circulation Device\nTop cover\nCrate\nlabeled per 49CFR\nBattery and outer crate\nAir in shipping bag is\n179.159a(c)(2) - NON-\nSPILLABLE BATTERY.\nSPILLABLE or NON-\nEquipment\ndevice and pumped into\ncleaned by air circulation\nFilter/\nback to pump.\nequipment, then leaks\nPurifier\n173.159a(d)\nsecured in place\ncompliant battery\nData\nBarrier bag\nlogger\nStatus display has electrical\nStatus display\nconnections for use when\nand clean gas (air)\nMetal Outer\ncargo is not in transit and\nElectrical panel with circuit\nBox\nOne way, low\nvarious sensor readouts.\non ground only\nbreakers and AC inlet for use\nprevent pressure\npressure, valve to\nbuildup\nAir circulation device\nPump outlet to be connected\nto protected equipment\n\n<<<PAGE 9>>>\n\nSample Battery Used in Container\nCHAIRMAN\nCHAIRMAN\n2.2 Battery with Cut Away View\nSEALED, PRESSURE\nREUEL\nSAFETY\nLD TING HANDLES\nCONTAINER\nCOVER TO\nSEAL\nCOPPER ALLOY\nplainly and durably marked \"NONSPILLABLE' or \"NONSPILLABLE BATTERY\".\nmust be packaged to protect against short circuits and the battery and outer packaging must be\nCONNECTIONS\nCHAIRMAN\nAGM\nCASSO\nPOLYETHYLENE\nPOLYPROPYLENE CONTAINER\nREINFORCED COPOLYMER","truncated":false,"body_characters":11608}