{"operation":"document","citation":"19-0057","title":"Dangerous Goods Transport Consulting, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-11-12","effective_on":null,"summary":"19-0057 response to Dangerous Goods Transport Consulting, Inc. concerning 172.102, 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0057.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0057.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0057","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/72886/190057.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nNOV J 2 2019\nFrits Wybenga\nDangerous Goods Transport Consulting, Inc.\n15108 Red Clover Drive\nRockville, MD 20853\nReference No. 19-0057\nDear Mr. Wybenga:\nThis letter is in response to your April 20, 2019, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to approvals for the\ntransportation of lithium batteries with a mass exceeding 35 kg on cargo aircraft. Specifically,\nyou ask about requirements for obtaining approval of the Associate Administrator in accordance\nwith both the HMR and International Civil Aviation Organization Technical Instructions for the\nSafe Transport of Dangerous Goods by Air (ICAO TI).\nWe have paraphrased and answered your questions as follows:\nQI. You ask whether an approval, as defined in§ 105.5, is required for Associate\nAdministrator authorization to transport a lithium battery with a mass exceeding 35 kg on\na cargo aircraft.\nA 1. The answer is yes. As mentioned in your request, special provision A54 ( see § 172.102)\nspecifies that \"irrespective of the quantity limits in Column 9B of the § 172.101 table, a\nlithium battery, including a lithium battery packed with, or contained in, equipment that\notherwise meets the applicable requirements of§ 173.185, may have a mass exceeding\n35 kg if approved by the Associate Administrator prior to shipment.\" As defined in\n§§ 105.5 or 107.1, an approval includes a competent authority approval, which is issued\nby the Associate Administrator, the Associate Administrator's designee, or as otherwise\nprescribed in the HMR, to perform a function for which prior authorization by the\nAssociate Administrator is required. Therefore, in order to transport a lithium battery\nwith a mass exceeding 3 5 kg, an approval by the Associate Administrator is required.\nFurthermore, as per the definition of a competent authority approval in§§ 105.5 or 107.1,\nthe approval may be issued as either a special permit or approval. PHMSA has begun\nissuing these approvals as special permits as they provide additional flexibility and allow\nfor party status of special permit holders and potential applicants. If you have further\n\n<<<PAGE 2>>>\n\nQ2. A2. Q3. questions regarding issuance of approvals or special permits, please contact the Office of\nApprovals and Permits at (202) 366-4511.\nYou ask whether an approval issued by PHMSA is required when transporting a lithium\nbattery with a mass exceeding 35 kg on a cargo aircraft to the United States from outside\nthe United States and authorized for transport in accordance with the ICAO TI, including\nan approval issued by the State of Origin.\nThe answer is yes. United States variation US 3 from the ICAO TI states that \"lithium\ncells or batteries including when packed with equipment or contained in equipment\ntransported in accordance with Special Provision A99 ... may not be transported to, from,\nor within the United Stated aboard a passenger or cargo aircraft without the prior\napproval of the appropriate authority of the U.S.\" Therefore, when transporting a lithium\nbattery with a mass exceeding 35 kg on a cargo aircraft to the United States from outside\nthe United States and authorized for transport in accordance with the ICAO TI, including\nan approval issued by the State of Origin and special provision A99, a U.S. competent\nauthority approval is required.\nYou ask whether an approval issued by PHMSA is required when transporting a lit!vum\nbattery with a mass exceeding 35 kg on a cargo aircraft in accordance with ICAO TI\nSpecial Provision A99.\nA3. The answer is yes. See A2.\nI hope this information is helpful. Please contact us if we can be of further assistance.\ns~;J/i7L /41;/Ifn;Jf\nChief, Standards Development\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nDodd, Alice (PHMSA)\nFrom:\nSent:\nTo:\nCc:\nSubject:\nAttachments:\nKelley, Shane (PHMSA)\nTuesday, April 23, 2019 4:49 PM\nHazmat Interps\nPfund, Duane (PHMSA); Leary, Kevin (PHMSA); Geller, Shelby (PHMSA)\nFwd: Request for interpretation - UN3840 batteries exceeding 35kg on cargo\ninterp request 35kg batts.pdf\nPlease process as a request for interpretation.\nI would like Shelby assigned as it will strengthen her purview of the lithium battery arena.\nShelby - Kevin can likely help you understand some of the background. Please also touch base with myself\nand Duane once you have had a chance to review as this one has some nuance to it. We should discuss the\noverall approach before you start any drafting.\nFrom: Frits Wybenga <fwybenga@dg-transportation.com>\nSent: Saturday, April 20, 2019 11:08 AM\nTo: Kelley, Shane (PHMSA)\nCc: Paquet, Ryan (PHMSA); Pfund, Duane (PHMSA)\nSubject: Request for interpretation - UN3840 batteries exceeding 35kg on cargo\nHi Shane - please accept the attached request for a letter of interpretation. I believe clarification is needed with respect\nto PHMSA authorization of batteries in excess of 35kg on cargo. In my opinion, the regulations do not support what is\nbeing required. If I am wrong please correct me.\nI am finding that based on what I believe to be incorrect application, the process continues to become more\ncomplex. People need to move these batteries efficiently. The increasing complexity serves to make US industry less\ncompetitive.\nI believe there is a need for a better understanding for all of us (PHMSA and people on the outside) of what is actually in\nthe regs.\nThere are limits on the extent to which PHMSA may regulate lithium batteries by air based on the FAA authorization bill\nwhich I understand to still be applicable. In addition, the WH just issued a memo concerning nonregulatory government\npolicy. It discourages agencies from acting on policies that are not based on regu lation.\n1\n\n<<<PAGE 4>>>\n\nThanks - Frits\nFrits Wybenga\nDangerous Goods Transport Consulting Inc.\n15108 Red Clover Drive\nRockville, MD 20853\n301-929-1668\nMobile 301-356-2096\nwww.dg-transportation.com\n2\n\n<<<PAGE 5>>>\n\nDangerous Goods Transport Consulting, Inc\n15108 Red Clover Drive\nRockville, Maryland 20853\n301-929-1668\nCell 301-356-2096\nf. wybenga@comcast.net\nApril 20, 2019\nAssociate Administrator for Hazardous Materials Safety\n(Attention: Standards, PHH-I 0)\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\nEast Building, 2nd Floor, E23-406 1200\nNew Jersey A venue, SE.\nWashington, DC 20590-0001\nDear Mr. Kelly:\nI am writing to confirm my understanding of requirements for cargo air transport of a\ntested lithium ion battery or battery assembly (hereafter referred to as battery) in full\ncompliance with the regulations except for a mass in excess of 35 kg.\nRegulatory Background\nLithium ion batteries are regulated by the HMR and the !CAO Tl under the shipping\nname and ID number, UN3480 Lithium Ion Batteries.\nTransport by Air under the HMR\nThe HMT lists UN3840 and limits the mass of lithium ion batteries on cargo aircraft to 35\nkg. It further assigns special provisions A54. Special provision A54 provides for transport\nof batteries in excess of 35 kg if approved by the Associate Administrator.\nUnder§ 105.5 the term \"approval\" is a \"written authorization, including a competent\nauthority approval, issued by the Associate Administrator, the Associate Administrator's\ndesignee, or as otherwise prescribed in the HMR, to perform a function for which prior\nauthorization by the Assodate Administrator is required under subchapter C of this\nchapter (49 CFR parts 171 through 180).\" Procedures for filing an application for\napproval are found in § 107.705.\n\n<<<PAGE 6>>>\n\nAn approval is different from a \"special permit\" which \"means a document issued by the\nAssociate Administrator, the Associate Administrator's designee, or as otherwise\nprescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to\nperform a function that is not otherwise permitted under subchapter A or C of this\nchapter, or other regulations issued under 49 U.S.C. 5101 et seq.\" Procedures for filing an\napplication for a special permit are in § 107.105.\nTransport under Part 171 Subchapter C\nUnder Part 171 , Subpart C, transport of lithium ion batteries in accordance the ICAO Tl\nis authorized as may be limited by § 171.23 and § 171.24 There are no added limitations\nin these paragraphs applicable to tested and approved lithium ion batteries, including\nones in excess of 35 kg. (Note: US variation 3 in the !CAO TI is only applicable to\nprototype batteries.)\nTransport under the !CAO TI\nThe !CAO Tl also provide for transport of lithium ion batteries on cargos aircraft under\nUN3840 and in packing instruction 965 limit the mass of such batteries to 35 kg. Like\nthe HMR, the !CAO TI also include a provision for batteries exceeding 35 kg, if\napproved by the appropriate authority of the State of Origin (see A99).\nThe required document for authorizing transport of a battery exceeding 35 kg\nunder the HMR.\nIt is my understanding that an approval is needed from PHMSA to allow a battery\nexceeding 35 kg in that a prior authorization by the Associate Administrator is required\nunder subchapter C, where, in this case, A54 of subchapter C sets out the required prior\nauthorization. Since A54 makes provision for transport of batteries in excess of 35 kg, a\nspecial permit is not required in that transport of a battery in excess of 35kg is not a\nfunction that is not otherwise permitted under subchapter A or C.\nWhen transport by cargo aircraft is in accordance with the !CAO Tl for purposes of\ndomestic or international transport under Part 171 Subpart C, where the U.S. is the State\nof Origin, a competent authority approval (under the ]CAO TI termed as an approved by\nthe appropriate authority of the State of Origin) is required and an approval by PHMSA\nserves as that approval.\nWhether the document issued is an \"approval\" or a \"special permit\" is important in that\ndifferent provisions apply to approvals and special permits under Part I 07.\n2\n\n<<<PAGE 7>>>\n\nQuestion 1: Is it correct that an approval document as defined in §105.5 is the\nappropriate document in the case of an Associate Administrator authorization for\ntransport of a lithium ion battery in excess of 35 kg on a cargo aircraft?\nNote that while P HMSA has in the past issued approvals for batteries in excess of 35 kg,\nfor unexplained reasons and without notice, P HMSA now employs special permits for\nthis authorization. See for example, Special Permit number 20805 listed in P HMSA 's\nSpecial Permit Notice published in the Federal Register on April 15, 2019.\nThe need for a document from PHMSA for transport of a battery exceeding 35 kg\nwhen transport is from outside the US to the US?\nFor transport under the ICAO TI in accordance with Part 171 Subpart C, it is my\nunderstanding that no additional restrictions apply to the transport of lithium ion batteries\nexceeding 35 kg beyond compliance with the provisions of the ICAO TI. For a battery\nexceeding 35 kg shipped from outside the US to the US, its transport will have to have\nbeen approved by the appropriate authority of the State of Origin. Any requirement for\nan additional approval by the Associate Administrator in the case of foreign shipments to\nthe US would seem to exceed the requirements of the ICAO TI as they affect lithium ion\nbatteries and I am unaware of any provision in the HMR for such a separate approval.\nQuestion 2: Is it correct that, for a battery exceeding 35 kg transported by cargo aircraft\nfrom outside the US and authorized for transport in accordance with the ICAO Tl,\nincluding an approval issued by the State of Origin, that no further approval by PHMSA\nis required?\nThe need for relief from the HMT 35kg limitation when transport is in accordance\nwith the ICAO Tl.\nFor transport in accordance with the ICAO TI in accordance with Part 171 Subpart C,\nPHMSA staff has in the past advised that a special permit is needed in the case of cargo\naircraft transport of a lithium ion battery exceeding 35kg based on the HMT 35 kg\nrestriction. PHMSA special permits authorizing batteries in excess of 35kg cite the 35kg\nlimit in the HMT.\nFor a shipment of a lithium ion battery consigned in accordance with the ICAO TI as\nprovided by Part 171 Subpart C, I am unaware of a need to take the provisions of the\nHMT into account unless there is a relevant restriction in § 171.23 or § 171.24. Even\nthough both the HMR and the ICAO TI include a 35kg limit and provide for relief by\nway of an approval, it is only the ICAO TI limitation and not the HMT limitation that\nneeds to be addressed through an approval by the State of Origin in the case of ICAO TI\ntransport.\n3\n\n<<<PAGE 8>>>\n\nQuestion 3: Is it correct that for authorized transport in accordance with the ICAO TI\nonly an approval based on ICAO Special Provision A99 is needed?\nI appreciate your consideration of this request for interpretation. As our society\nincreasingly shifts to electric vehicles employing lithium ion battery assemblies in excess\nof 35 kg, I am sure that you can appreciate the need for a correct understanding of the\nquestions posed.\nAs PHMSA is repeatedly confronted with new requests for approvals for batteries\nexceeding 35kg, a timely clarification would be in the best interest of PHMSA and\nindustry which has a need to transport batteries in a rapidly developing and highly\ncompetitive and global field . Please contact me if there is any need for clarification on\nmy questions.\nSincerely,\nFrits Wybenga\nDangerous Goods Transport Consulting, Inc.\n4","truncated":false,"body_characters":13555}