{"operation":"document","citation":"18-0156","title":"Mr. Joseph Tsiyoni — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-04-10","effective_on":null,"summary":"18-0156 concerning 173.1, 173.185, 175.10.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0156.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0156.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0156","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/71096/180156.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nApril 10, 2019\nMr. Joseph Tsiyoni\n1415 North Rose Street\nTempe, AZ 85281\nReference No. 18-0156\nDear Mr. Tsiyoni:\nThis letter is in response to your December 6, 2018, phone conversations and emails requesting\nclarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable\nto United Nations (UN) testing oflithium ion batteries.\nWe have paraphrased and answered your questions as follows:\nQI. You seek confirmation of your understanding that the criteria in Part III, Sub-section 38.3\nof the UN Manual of Tests and Criteria, along with the provisions in§§ 173.185 and\n17 5 .10 of the HMR, are applicable to the transport of any lithium battery by any mode of\ntransport.\nAl. Your understanding is correct. Shippers of lithium ion batteries or lithium metal batteries\nmust comply with the packaging instructions in§ 173.185 of the HMR, which states in\nparagraph (a) that each lithium cell or battery must be of the type proven to meet the\ncriteria in Part III, Sub-section 38.3 of the UN Manual of Tests and Criteria. Section\n173.185(a) further states that lithium cells and batteries are subject to these tests\nregardless of whether the cells used to construct the battery are of a tested type. Section\n173. l(a)(2) states that Part 173 of the HMR includes the requirements to be observed in\npreparing hazardous materials for shipment by air, highway, rail, or water, or any\n· combination thereof. Therefore, the requirements of§ 173.185-more specifically the\nrequirement that all batteries be tested to meet the criteria in Part III, Sub-section 38.3 of\nthe UN Manual of Tests and Criteria-are applicable to all lithium batteries shipped by\nany mode of transportation.\nSection 17 5 .10 provides exceptions for passengers, crewmembers, and air operators\ntransporting lithium batteries aboard aircraft as part of a wheelchair or mobility aid.\nThese lithium batteries are excepted from the requirements of the HMR provided they\nmeet the criteria in Part III, Sub-section 38.3 of the UN Manual of Tests and Criteria,\nunless approved by the Associate Administrator of Hazardous Materials Safety (See\n§ 175.10(a)(l 7)(i)). The exceptions in§ 175.10 apply to shipments of hazardous\nmaterials by aircraft only.\n\n<<>>\n\nQ2. A2. You ask whether lithium batteries may be used on the ground if they have not been tested\naccording to Part III, Sub-section 38.3 of the UN Manual of Tests and Criteria.\nThe HMR do not govern the use of lithium batteries. However, batteries that have not\nbeen tested according to the UN Manual of Tests and Criteria are generally not\nacceptable for transport in the United States according to the HMR.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<>>\n\nDodd, Alice (PHMSA)\n1 ~-0l5(o\nFrom:\nSent:\nTo:\nSubject:\nAttachments:\nAlston, Barbara CTR (PHMSA)\nMonday, December 10, 2018 9:55 AM\nDodd, Alice (PHMSA)\nFW: UN38.3 and APPLICATION FOR EXEMPT JJJ\nRE: UN38.3 and APPLICATION FOR EXEMPT JJJ\nGood Morning Alice,\nCan you forward this message from Dr. Hwang to your \"lntcrp\" person? Many thanks and have a great\nwork week.\nBarbara\nFrom: Hwang, Steve (PHMSA)\nSent: Monday, December 10, 2018 9:42 AM\nTo: Alston, Barbara CTR (PHMSA) \nSubject: FW: UN38.3 and APPLICATION FOR EXEMPT JJJ\nBarbara,\nMr. Tsiyoni withdrew his application fo r an approva l (attached) . He seems to have several more questions about his\nneeds. I be lieve this needs an interpretation which can be answered by the Standards Office . Could you please forward\nthis to Standards? Thanks.\nSteve Hwang\nFrom: tsiyoni \nSent: Thursday, December 06, 2018 10:26 PM\nTo: Hwang, Steve (PHMSA) \nSubject: RE: UN38.3 and APPLICATION FOR EXEMPT JJJ\n===========================JOSEPHTSIYONI======= ====================\n1415 N. Rose Street Phone: (480) 949-0894\nTempe, Arizona 85281 Tsiyoni@Cox.Net\nDecember 7, 2018\nDr. Steve Hwang steve.hwang@dot.gov\nPHMSA\nDOT\nPhone: 202-366-4476\nRe: EXEMPT - LITHIUM BATTERY\nDear Dr. Hwang:\nFirst, it is me who needs to thank you for the time you spent and for the educational conversations. I\nappreciate everything. You have been extremely patient and I thank you for that.\nMy response to your letter is a follows:\n1\n\n<<>>\n\n1. We agree that the \"Associate Director\" is authorized to grant an exempt for the use of\nlithium battery without any UN 38.3 testing or with cells testing only. }\n(If incorrect, please kindly correct me).\n2. You have cited 49 CFR 173.185, which I read carefully after our conversation. Would you confirm\nDr. Hwong that this citation was to point that any transport of lithium batteries via ocean, ground or\nair is subject to UN 38.3 and the provisions of this rule 173.185 and the respective rules in 49 CFR\n175.10??\nIf this is the case, does it mean that also no lithium battery shall be used on the ground\nwithout UN 38.3 testing of both cells and batteries??\nI am not sure if this is correct. Please kindly confirm and may you can cite the provision\nin 49 CFR.\n3. Regardless of the issues stated above, I understood that the process of exempt is\ncomplicated and involved numerous approvals by higher authorities and maybe also\nFAA personnel. You have made this clear.\nIn such case, you have convinced me that it is better to withdraw form the application,\nand proceed with getting a battery with UN 38.3 testing for cells and battery.\n4. I therefore accept you suggestion and withdraw my application.\nAgain, thank you Dr. Hwong for your professional educational conversation, and please allow me to\ncontact you in the future should I have any question on the lithium issue.\nRespectfully,\nJoseph Tsiyoni\nFrom: Hwang, Steve (PHMSA) [mailto :steve.hwang@dot.gov]\nSent: Thursday, December 06, 2018 2:44 PM\nTo: tsiyoni (tsiyoni@cox. net) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nMr. Tsiyoni,\nREF: TN 2018010844\nThis is to confirm our telephone conversation today. First off, thank you for sending the battery information to\nBarbara Alston who forwarded it to me.\nIt is my understanding that you purchased a 36-volt lithium ion battery from a company in China to install on\nyour old 3-wheel scooter and that you want an approval from the PHMSA of DOT which will allow you to take\nthe scooter on the plane when you travel. It is also my understanding that you want this approval because the\ncells are tested according to the UN procedures but you are not sure that the battery you purchased was\nsubjected to the UN-approved testing.\nWe indicated that the battery manufacturer should have tested according to the UN-test procedures before the\nbattery was marketed for sale. You indicated that since you were not sure that the battery manufacturer\n2\n\n<<>>\n\nperformed such tests, you want to get an approval instead as a replacement of such tests. At the end of our\ndiscussion we came up with the following recommendations as an option for you to pursue:\n1. You will contact the battery manufacturer for a certificate for the battery test, or to request them to form\nthe necessary tests to meet regulatory requirements, or\n2. You will pursue whether other types of battery could be used for your purpose such as non-spillable wet\nbatteries which use Gel or Absorbent Glass Matt (AGM) technology which needs not be tested according\nto the UN-test procedures.\nYou stated that your request for an approval is based on 49 CFR 175.1 0(a) (17) (i) which has a provision which\nallows the Associate Administrator to grant an approval for not testing the battery. We indicated that, however,\nthe International Civil Aviation Organization (ICAO), Technical Instructions (Tl), Part 8, Chapter 1, Item 7 in\nTable 8-1 does not allow approval by the Associate Administrator. Mobility aids powered by lithium ion\nbatteries must have the batteries of a type that meets the requirements of each test in the UN Manual of Tests\nand Criteria, Part Ill, subsection 38.3. Hence your scooter powered by lithium ion batteries must have cells\nand a battery that have passed the UN testing criteria mentioned above. It is battery manufacturer's\nresponsibility to have the batteries tested before they are marketed.\nWe will let you know if we could think of any other options as you suggested. In the meantime, please withdraw\nyour request as soon as possible. If not, we will deny your request.\nThank you for your cooperation.\nSteve Hwang, Ph.D.\nPHMSA\nDOT\n202-366-4476\nFrom: Alston, Barbara CTR (PHMSA)\nSent: Thursday, December 06, 2018 8:59 AM\nTo: Hwang, Steve (PHMSA) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nFrom: tsiyoni [mailto:tsiyoni@cox.net]\nSent: Tuesday, December 04, 2018 7:09 PM\nTo: Alston, Barbara CTR (PHMSA) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nDear Barbara: Sorry for a second email, but this is a BINGO!\nI found what Dr. Wong wanted.\nPlease kindly send to him before we have a telephone conference.\nThank you very much again. You have been a big help!!! ©\nJoseph\n3\n\n<<>>\n\n\n\n<<>>\n\nDodd, Alice (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\ntsiyoni \nFriday, December 07, 2018 1:26 AM\nHwang, Steve (PHMSA)\nRE: UN38.3 and APPLICATION FOR EXEMPT JJJ\n===========================JOSEPHTSIYONI============================\n1415 N. Rose Street Phone: (480) 949-0894\nTempe, Arizona 85281 Tsiyoni@Cox.Net\nDecember 7, 2018\nDr. Steve Hwong steve.hwang@dot.gov\nPHMSA\nDOT\nPhone: 202-366-4476\nRe: EXEMPT - LITHIUM BATTERY\nDear Dr. Hwong:\nFirst, it is me who needs to thank you for the time you spent and for the educational conversations. I\nappreciate everything. You have been extremely patient and I thank you for that.\nMy response to your letter is a follows:\n1. We agree that the \"Associate Director\" is authorized to grant an exempt for the use of\nlithium battery without any UN 38.3 testing or with cells testing only.\n(If incorrect, please kindly correct me).\n2. You have cited 49 CFR 173.185, which I read carefully after our conversation. Would you confirm\nDr. Hwong that this citation was to point that any transport of lithium batteries via ocean, ground or\nair is subject to UN 38.3 and the provisions of this rule 173.185 and the respective rules in 49 CFR\n175.10 ??\nIf this is the case, does it mean that also no lithium battery shall be used on the ground\nwithout UN 38.3 testing of both cells and batteries??\nI am not sure if this is correct. Please kindly confirm and may you can cite the provision\nin 49 CFR.\n3. Regardless of the issues stated above, I understood that the process of exempt is\ncomplicated and involved numerous approvals by higher authorities and maybe also\nFAA personnel. You have made this clear.\nIn such case, you have convinced me that it is better to withdraw form the application,\nand proceed with getting a battery with UN 38.3 testing for cells and battery.\n4. I therefore accept you suggestion and withdraw my application.\n1\n\n<<>>\n\nAgain , thank you Dr. Hwang for your professional educational conversation, and please allow me to\ncontact you in the future should I have any question on the lithium issue.\nRespectfully,\n;-- ·· :.>~.\nJoseph Tsiyoni\nFrom: Hwang, Steve (PHMSA) [mailto:steve.hwang@dot.gov]\nSent: Thursday, December 06, 2018 2:44 PM\nTo: tsiyoni (tsiyoni@cox.net) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nMr. Tsiyoni ,\nREF: TN 2018010844\nThis is to confirm our telephone conversation today. First off, thank you for sending the battery information to\nBarbara Alston who forwarded it to me.\nIt is my understanding that you purchased a 36-volt lithium ion battery from a company in China to install on\nyour old 3-wheel scooter and that you want an approval from the PHMSA of DOT which will allow you to take\nthe scooter on the plane when you travel. It is also my understanding that you want this approval because the\ncells are tested according to the UN procedures but you are not sure that the battery you purchased was\nsubjected to the UN-approved testing .\nWe indicated that the battery manufacturer should have tested according to the UN-test procedures before the\nbattery was marketed for sale. You indicated that since you were not sure that the battery manufacturer\nperformed such tests, you want to get an approval instead as a replacement of such tests. At the end of our\ndiscussion we came up with the following recommendations as an option for you to pursue:\n1. You will contact the battery manufacturer for a certificate for the battery test, or to request them to form\nthe necessary tests to meet regulatory requirements, or\n2. You will pursue whether other types of battery could be used for your purpose such as non-spillable wet\nbatteries which use Gel or Absorbent Glass Matt (AGM) technology which needs not be tested according\nto the UN-test procedures.\nYou stated that your request for an approval is based on 49 CFR 175.1 0(a) (17) (i) which has a provision which\nallows the Associate Administrator to grant an approval for not testing the battery. We indicated that, however,\nthe International Civil Aviation Organization (ICAO), Technical Instructions (Tl), Part 8, Chapter 1, Item 7 in\nTable 8-1 does not allow approval by the Associate Administrator. Mobility aids powered by lithium ion\nbatteries must have the batteries of a type that meets the requirements of each test in the UN Manual of Tests\nand Criteria, Part Ill, subsection 38.3. Hence your scooter powered by lithium ion batteries must have cells\nand a battery that have passed the UN testing criteria mentioned above. It is battery manufacturer's\nresponsibility to have the batteries tested before they are marketed.\nWe will let you know if we could think of any other options as you suggested . In the meantime, please withdraw\nyour request as soon as possible. If not, we will deny your request.\nThank you for your cooperation.\nSteve Hwang, Ph.D.\nPHMSA\n2\n\n<<>>\n\nDOT\n202-366-44 76\nFrom: Alston, Barbara CTR (PHMSA)\nSent: Thursday, December 06, 2018 8:59 AM\nTo: Hwang, Steve (PHMSA) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nFrom: tsiyoni [mailto:tsiyoni@cox.net)\nSent: Tuesday, December 04, 2018 7:09 PM\nTo: Alston, Barbara CTR (PHMSA) \nSubject: FW: UN38.3 and specification for 36V 7.8Ah battery\nDear Barbara: Sorry for a second email, but this is a BINGO!\nI found what Dr. Wong wanted . .\nPlease kindly send to him before we have a telephone conference.\nThank you very much again. You have been a big help!!! ©\nJoseph\nShenzhen Kamada Electronic Co. , Ltd.\n3","truncated":false,"body_characters":14895}