{"operation":"document","citation":"21-0037","title":"Law Offices of Steven W. Hansen — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-09-14","effective_on":null,"summary":"21-0037 response to Law Offices of Steven W. Hansen concerning 171.8, 172.102, 172.202, 172.402, 172.447, 172.448, 172.704, 173.185, 173.220.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0037.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0037.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0037","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/75886/210037.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nSeptember 14, 2021\nMr. Steven W. Hansen\nLaw Offices of Steven W. Hansen\nLong Beach, CA 90808\nReference No. 21-0037\nDear Mr. Hansen:\nThis letter is in response to your April 7, 2021, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to lithium batteries. In your\nletter, you state that you represent a company that ships traditional “e-bikes,” meaning those that\nare in compliance with Consumer Product Safety Commission (CPSC) regulations under 16 CFR\npart 1512.2(a)(2). You state that the e-bikes have lithium batteries installed in them and that the\nbatteries are in “sleep mode,” charged to 60% of full charge, and have a minimum 300 watt-hour\n(WH) rating. In addition, you state that the e-bikes are shipped only within the United States to\nretail stores via ground or rail transportation with a charger and a battery. You ask several\nquestions pertaining to training, packaging, and hazard communication. We have paraphrased\nand addressed your questions as follows:\nQuestions Concerning Training\nQ1. You ask when a shipper is considered to be “certified” to ship hazmat under the HMR\nand whether this term refers to a company or an individual.\nA1. The term “certified” is often used to indicate that a hazmat employee has fulfilled its\nhazardous materials training requirements. As defined in § 171.8, the term “hazmat\nemployee” includes all persons who—in the course of their employment—perform\nfunctions that directly affect hazardous materials transportation safety. The training\nrequirements specified in Subpart H of Part 172 apply to an employee if that employee\nperforms a function subject to the HMR. A hazmat employer must ensure that each of its\nhazmat employees are trained in the HMR. This training must include general\nawareness, function-specific, safety, security awareness training and (when applicable)\nin-depth security training as specified in § 172.704(a).\n\n<<<PAGE 2>>>\n\nQ2. You ask whether hazmat employees must indicate on a shipping paper that their\nhazardous materials training is completed and current.\nA2. The answer is no. While the HMR require recordkeeping for hazmat employee training\nunder § 172.704(d), there are no training certification requirements for shipping papers.\nQ3. You ask whether the training requirements in Subpart H of Part 172 apply to a shipper\nwho offers “UN3171, Battery-powered vehicle or Battery-powered equipment, 9” for\ntransportation.\nA3. The answer is no. A properly classed product listed under “UN3171, Battery-powered\nvehicle or Battery-powered equipment, 9” prepared in accordance with § 173.220 and\ntransported by motor vehicle or rail is not subject to any other requirements of the\nHMR—including the training requirements in Subpart H of Part 172. However, please\nnote that the training requirements will apply when the lithium battery is shipped\nseparately from the battery-powered e-bike.\nQuestions Concerning Packaging\nQ4. You ask which specifications apply to the fiberboard box that you use to package the\nlithium batteries and e-bikes.\nA4. Under § 173.220(h), batteries installed in battery-powered vehicles or equipment, which\nmeet the applicable requirements in § 173.220 are excepted from specification packaging\nrequirements. Therefore, for lithium batteries that are installed in a battery-powered\nvehicle—such as an e-bike—the HMR do not specify the standards for an outer box or\noverpack. Where a vehicle could possibly be handled in other than an upright position,\nthe vehicle must be secured in a strong, rigid outer packaging. The vehicle must be\nsecured by means capable of restraining the vehicle in the outer packaging to prevent any\nmovement during transport which would change the orientation or cause the vehicle to be\ndamaged (see § 173.220(d)). Please also note that lithium batteries not installed in the e-\nbike may not be shipped under the provision in § 173.220 and do require specification\npackaging (see § 173.185(b), Subpart B of Part 172, and Subparts L and M of Part 178).\nQ5. You ask what instructions apply to how e-bikes—with their lithium batteries installed—\nmust be packed inside the fiberboard box.\nA5. When shipped under the provisions in § 173.220, the HMR do not specify standards for\nthe outer package or specific instructions for the vehicle’s configuration in a package.\nHowever, § 173.220(d) describes packaging requirements that apply to e-bikes and\nsimilar lithium battery-powered vehicles (see A4). Lithium batteries must be securely\ninstalled in the vehicle (i.e., an e-bike in your example) and protected from short circuits.\n\n<<<PAGE 3>>>\n\nQ6. You ask how many “UN3480, Lithium ion batteries, 9” may be shipped in one package.\nA6. “UN3480, Lithium ion batteries, 9” are forbidden aboard passenger aircraft and are\nlimited to 35 kilograms per package when shipped by cargo aircraft. In addition, as\nspecified in special provision A100, when offered for transportation by air, lithium ion\ncells and batteries must be offered for transport at a state of charge not exceeding 30\npercent of their rated capacity. However, when shipped by any mode of transportation\nother than air, there is no limit per package provided the package is authorized (see\nanswer A4).\nQ7. You ask how the packaging requirements differ when shipping lithium batteries not\ninstalled in the e-bikes.\nA7. Lithium batteries not installed in the e-bike must be packaged in accordance with the\nrequirements specified in § 173.185(b).\nQuestions Concerning Hazard Communication\nQ8. You ask which specific labels must be placed on the outside of a fiberboard box for\nshipments of e-bikes.\nA8. When shipped in accordance with § 173.220 and transported by motor vehicle or rail car,\ne-bikes are not subject to the HMR, which includes marking and labeling requirements.\nHowever, when shipped uninstalled, lithium batteries must be labeled and marked in\naccordance with Parts 172, Subparts D and E of the HMR.\nQ9. You ask whether the label and marking for lithium batteries as depicted in your letter are\nin compliance with the HMR for lithium batteries.\nA9. The answer appears to be yes. As you have illustrated in your letter, the label must\nappear as depicted in § 172.447, and the markings required under Part 172 Subpart D\nmay be attached to the side of the label.\nQ10. You ask whether a package containing lithium batteries must be marked with “49 CFR\n172.102 Special Provision 134 and 173.220(d).”\nA10. The answer is no. There is no requirement for this marking on a package containing\nlithium batteries.\nQ11. You ask whether the lithium battery watt-hour rating must be marked on the inner\npackaging within an outer package (i.e., the fiberboard box).\nA11. The answer is no. There is no requirement in the HMR to mark the inner packaging of a\ncombination packaging with the watt-hour rating.\n\n<<<PAGE 4>>>\n\nQ12. You provide examples of two different adhesive “stickers” that may be used to label or\nmark a package containing lithium batteries forbidden by passenger aircraft. One is the\n“CARGO AIRCRAFT ONLY” label as specified in § 172.448; the other is the marking\nspecified in § 173.185(c) “Exceptions for smaller cells or batteries.” You ask which of\nthe two examples is appropriate for 300 WH batteries when either shipped separately\nfrom your e-bikes, or when shipped installed in the e-bikes.\nA12. When the batteries described in your scenario are installed in the e-bikes, these labels are\nnot required. When they are shipped separately from the e-bikes, the “CARGO\nAIRCRAFT ONLY” label specified in § 172.448 is required. In accordance with\n§ 172.402(c), each person who offers for transportation or transports by aircraft a\npackage containing a hazardous material which is authorized on cargo aircraft only shall\nlabel the package with a CARGO AIRCRAFT ONLY label specified in § 172.448. The\nwhite sticker with red lettering in your example is designed to comply with the marking\nrequirement specified in § 173.185(c) “Exceptions for smaller cells or batteries,” which\ndoes not apply to batteries with a minimum rating of 300 WH.\nQ13. You ask whether there is a required marking for lithium batteries that have passed the\ntesting in Section 38.3 of the UN Manual of Tests and Criteria.\nA13. The answer is no. The HMR do not specify a marking requirement for lithium batteries\nthat have successfully passed the testing in Section 38.3 of the UN Manual of Tests and\nCriteria.\nQ14. You ask what information needs to be stated on the shipping paper when offering\n“UN3171, Battery-powered vehicle or Battery-powered equipment, 9” for transportation.\nA14.\n“UN3171, Battery-powered vehicle or Battery-powered equipment, 9” properly prepared\nin accordance with § 173.220 and transported by motor vehicle or rail car are not subject\nto shipping paper requirements under the HMR.\nQ15. You ask whether the image you provide in your letter is the correct label and marking for\na package containing “UN3480, Lithium ion batteries, 9.”\nA15. The answer appears to be yes, provided the label and marking meet the size and\nplacement requirements specified in Subparts D and E of Part 172.\nQ16. You ask which labels and markings are required on a package containing more than one\nlithium battery.\nA16. See answer A15.\n\n<<<PAGE 5>>>\n\nQ17. You ask what the shipping paper requirements are when offering for transportation\n“UN3480, Lithium ion batteries, 9” not installed in e-bikes.\nA17. Shipping papers for hazardous materials must contain all required information specified\nin Subparts C and G of Part 172. Under § 172.202, the shipping description of a\nhazardous material on a shipping paper must include: the identification number (i.e.,\nUN3480), the proper shipping name, hazard class, the packing group (if applicable), and\nthe total quantity including number and type of packages (e.g., 40 kg or 3 batteries). In\nthe example you provide in your letter, the description would read: “UN3480, Lithium\nion batteries, 9, [total quantity].”\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<<<PAGE 6>>>\n\nPollack\nFrom: INFOCNTR (PHMSA)\nTo: Hazmat Interps\nSubject: FW: questions for PHMSA Hazardous Materials Information Center\nDate: Friday, April 9, 2021 2:38:23 PM\nAttachments: letter to DOT 4-7-21.pdf\n21-0037\nHello Alice,\nAttached is a request for letter of interpretation.\nThanks,\nJonathon, HMIC\nFrom: Law Offices of Steven W. Hansen [mailto:steven.w.hansen@swhlaw.com]\nSent: Wednesday, April 7, 2021 7:23 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: questions for PHMSA Hazardous Materials Information Center\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nPlease see attached letter.\nSincerely,\nSteve Hansen\nLaw Offices of Steven W. Hansen\nVoice/SMS/Text 562.912.1923\n(9a-5p PST) | Skype: swhlaw |\nsteven.w.hansen@swhlaw.com | www.swhlaw.com\nOur office is paperless after adopting the CA State Bar Eco Pledge\nThe information contained in this email and any attachments to it (hereinafter \"communication\") is confidential and may also contain\nprivileged attorney client information or work product. It is intended only for the use of the recipients(s) to whom it isoriginally addressed\nby www.swhlaw.com. This firm has no obligation to take any action on behalf of any person or entity until an attorney client fee\nagreement is signed. Any email or other communication in and of itself, does not create an attorney-client relationship between this firm\nand any person or entity. Please read our full email policy\n\n<<<PAGE 7>>>\n\nLAW OFFICES OF\nSTEVEN W. HANSEN\nLONG BEACH, CALIFORNIA 90808\nTELEPHONE (562) 866-6228\nLegal.inquiry@swhlaw.com\nwww.swhlaw.com\nPollack\n21-0037\nApril 7, 2021\nTotal of 3 page(s) via email only: infocntr@dot.gov\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nPHMSA Hazardous Materials Information Center\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nDear PHMSA:\nI represent a company that ships traditional “e bikes” meaning those that comply with 16 CFR\npart 1512.2 (a)(2) and related sections. The bikes have their lithium ion (LI) batteries installed\nand the batteries are in “sleep mode” and charged to approximately 60% of full charge and have\na minimum 300 watt hour (WH) rating.\nThe complete bikes are shipped (with charger and battery) within the USA to retail stores via\nground shipments (truck or rail) and are not shipped via water or air. We had the following\nquestions:\n1. What standard or rating or specification applies to the cardboard box that they are\n2. 3. 4. 5. shipped in?\nWhat instructions (specifically) apply to how the bikes (with their batteries installed)\nmust be packed inside the box (if any)?\nWhat specific labels must be on the outside of the box for shipment that pertain to the\nbattery specifically (when the battery is shipped installed on the bike)?\nWith respect to the UN3171 label is this the correct format below (of course with the\naddition of the phone no of the co. presenting the package for shipment) and must it\nmention “dangerous goods”?\nDoes the special provision 134 need to be called out like it is below on the label?\nPAGE 1 of 3\nATTORNEY WORK PRODUCT © LAW OFFICES OF STEVEN W. HANSEN\nLong Beach, CA 90808 | (562) 866-6228 | legal.inquiry@swhlaw.com | www.swhlaw.com\n\n<<<PAGE 8>>>\n\n6. 7. With respect to the WH rating we believe that must be denoted on the battery case itself;\nmust it also be on the inner packaging and outer cardboard shipping box?\nWe understand that the following label(s) must be applied to restrict the box from being\nair or vessel (water) shipped: but would like clarification on which label below we should\nuse a.) or b.)\nb.)\na.)\n8. We also understand that the battery must also be tested to comply with section 38.3 of the\nUN Manual of Tests and Criteria. This test result need only be “available” and not\nshipped with the bike and battery or solo battery shipment. Is there any specific label or\nrequirement for what information must be specifically (permanently) on the battery\nhousing itself for shipment?\n9. With respect to the “shipper” being “DOT” certified does that mean that the individual\nperson at the company that prepares the shipment needs to be certified?\n10. If so how is his or her name added to the shipment document to reflect such certification\nstatus (or is that not required)?\n11. Does a ‘shipper’ have to be DOT certified to ship a UN3171 shipment?\n12. What specifically needs to be stated on the bill of lading or the shipping documents for a\nUN3171 shipment?\n13. Next; the same set of questions from above as pertains to the same new battery\nshipped by itself in a separate box without a bike (i.e. not installed on a bike; i.e.\nUN3480 shipments)\n14. With respect to battery only shipments is this label below the correct label to use on the\nshipment box (of course with the addition of the phone no of the co. presenting the\npackage for shipment):\nPAGE 2 of 3\nATTORNEY WORK PRODUCT © LAW OFFICES OF STEVEN W. HANSEN\nLong Beach, CA 90808 | (562) 866-6228 | legal.inquiry@swhlaw.com | www.swhlaw.com\n\n<<<PAGE 9>>>\n\n15. An additional question would be what is the maximum number of batteries that could be\nshipped in one shipping box (without bicycles) disregarding shipper weight limits?\n16. What labels would need to be on this shipping box containing more than one battery?\n17. What special packaging would need to be used for a single or multiple battery only (not\ninstalled on bicycle) shipment box?\n18. What specifically needs to be stated on the bill of lading or the shipping documents for a\nUN3480 shipment with a battery exceeding 300 WH?\nVery Truly Yours,\nSteven W. Hansen\nsteven.w.hansen@swhlaw.com\nPAGE 3 of 3\nATTORNEY WORK PRODUCT © LAW OFFICES OF STEVEN W. HANSEN\nLong Beach, CA 90808 | (562) 866-6228 | legal.inquiry@swhlaw.com | www.swhlaw.com","truncated":false,"body_characters":16233}