{"operation":"document","citation":"21-0050","title":"Arcimoto, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-06-10","effective_on":null,"summary":"21-0050 response to Arcimoto, Inc. concerning 173.185, 173.220.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0050.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0050.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-21-0050","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/75371/210050.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nJune 10, 2021\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMr. Pete Z\nDirector of Global Regulatory Compliance\nArcimoto, Inc.\n2034 W 2nd Ave\nEugene, OR 97402-7105\nReference No. 21-0050\nDear Mr. Z:\nThis is in response to your May 6, 2021, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to lithium batteries in electric\nvehicles. Your questions are paraphrased and answered as follows:\nQ1: You ask whether a lithium ion battery contained in an electric vehicle and securely\nfastened to the battery holder must comply with all of the requirements in § 173.185.\nA1: An electric vehicle powered by a lithium-ion battery that is transported with the battery\ninstalled should be classed as “UN3171, Battery-powered vehicle, 9” and offered for\ntransportation and transported in accordance with § 173.220 of the HMR. A battery in an\nelectric vehicle shipped in accordance with § 173.220 must be: (1) securely fastened in its\nholder/compartment; (2) protected in such a manner as to prevent damage and short\ncircuits; and (3) of a type that successfully passed tests in the United Nations (UN)\nManual of Tests and Criteria as specified in § 173.185.\nQ2: You ask whether a lithium ion battery—one that is removed from an electric vehicle and\npacked separately from the vehicle—must comply with the requirements in § 173.185.\nA2: When a lithium-ion battery is removed from an electric vehicle and packed separately,\nthe battery must be shipped as “UN3480, Lithium ion batteries, 9” and prepared in\naccordance with the applicable requirements specified in § 173.185.\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\nAndrews\n21-0050\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Hazmat Interps\nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nDate: Monday, May 10, 2021 11:03:55 AM\nAttachments: image004.png\nInterp request forwarded from counsel.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460\nFrom: Horsley, Adam (PHMSA)\nSent: Monday, May 10, 2021 11:00 AM\nTo: DerKinderen, Dirk (PHMSA) \nCc: Tsaganos, Vasiliki (PHMSA) ; Tackett, Christina (PHMSA)\n; Ross, Robert (PHMSA) \nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nHi Dirk,\nThanks,\n- Adam\nCan you please treat the questions below as a request for an interpretation?\nAdam Horsley\nDeputy Assistant Chief Counsel, Office of Chief Counsel\nUS Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.8000 ◊ Facsimile: 202.366.7041\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended\nonly for the named recipient(s) above and may contain information that is privileged, confidential,\nattorney work product or otherwise legally protected. If you have received this message in error, or are\nnot the named recipient(s), please immediately notify me and permanently delete this e-mail message and\nany attachments from your workstation and/or network mail system.\nFrom: Pete Z [mailto:petez@arcimoto.com]\nSent: Thursday, May 6, 2021 7:35 PM\nTo: Chief Counsel, PHMSA (PHMSA) \nCc: Regulatory Affairs ; Gerrit Hurenkamp \nSubject: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\n\n<<>>\n\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.\nHello PHMA Chief Counsel,\nThanks for speaking with me earlier today!\nI'm doing some research to confirm or reject that fully battery-electric motor vehicles (EV)\nwill need to comply with 49 CFR § 173.185.\nHere's my research so far:\nPHMSA's Interim Final Rule (IFR) became effective on March 6, 2019, see attached\nPDF \"FedReg PHMSA 49 CFR 172-173 HazMat Enhanced Safety Li-ion 2019_03_06\"\nTest summaries of demonstrated compliance are required starting Jan 1, 2022, see\nattached PDF \"FedReg PHMSA 49 CFR 171-180 HazMat Harmonization With Intl Stds\n2020_05_11\"\nEV batteries are typically shipped contained within new vehicles, but also shipped\nseparately to repair partners for service, warranty, and part sales. UNECE Transport of\nDangerous Goods regulations for ground, air, & marine transport, such as UN\n38.3 is relevant, and was \"harmonized\" by above PHMSA regulations.\nTypical EV battery-packs are 20,000+ Watt-hours and weigh hundreds of pounds.\nFor some EV, each battery contains cells or a series of cells that are connected in\nparallel, all battery control mechanisms like BMS, contactors, major fuses, etc are\nexternal to the batteries, and there are no means inside the battery of preventing reverse\ncurrent flow.\nPer 173.185(a)(3), “Beginning January 1, 2022 each manufacturer and subsequent\ndistributor of lithium cells or batteries manufactured on or after January 1, 2008, must\nmake available a test summary.” The test summary requirements are listed 173.185(a)\n(3)(i) to (x).\nPer 173.185(a)(4), there is no stated phase-in date, so it appears that for subject cells and\nbatteries, “each lithium cell or battery must: (i) Incorporate a safety venting device or be\ndesigned to preclude a violent rupture, (ii) Be equipped with means of preventing\nexternal short circuits; and (iii) Be equipped with a means of preventing dangerous\nreverse current flow (e.g., diodes or fuses) if a battery contains cells, or a series of cells\nthat are connected in parallel.”\nPer 173.185(c) and (c)(1), “smaller cells or batteries” may be exempt if the “Size limits”\nis met where “The Watt-hour (Wh) rating may not exceed 20 Wh for a lithium ion cell\nor 100 Wh for a lithium ion battery.”\nPer 173.185(c)(1), “After December 31, 2015, each lithium ion battery subject to this\nprovision must be marked with the Watt-hour rating on the outside case.”\nPer 173.220(d), \"Where the lithium battery is removed from the vehicle and is packed\nseparate from the vehicle in the same outer packaging, the package must be consigned\nas “UN 3481, Lithium ion batteries packed with equipment” or “UN 3091, Lithium\nmetal batteries packed with equipment” and prepared in accordance with the\nrequirements specified in §173.185.\"\nI've completed an iSearch.NHTSA.gov review, found three letters from NHTSA Chief\nCounsel that are relevant to PHMSA 173.185, please see attached PDF.\nQuestions for PHMSA:\n\n<<>>\n\nIf a Li-ion battery is intended for a motor vehicle and is not \"smaller,\" then is\ncompliance to 49 CFR 173.185 required for either or both of the following conditions?\n1. Where the Li-ion battery is contained in the vehicle and securely fastened in the\nbattery holder of the vehicle;\n2. Where the Li-ion battery is removed from the vehicle and is packed separate\nfrom the vehicle.\nIf PHMSA has already provided guidance to other EV motor vehicle OEM (such as\nFord, GM, Toyota, etc) in response to same/ similar questions, then can you share this\nguidance with me so we don't unnecessarily cover the same ground?\nI look forward to speaking with you at your very earliest convenience. Please feel free to call\nme anytime.\nThank you,\nPete Z\nDirector of Global Regulatory Compliance\nArcimoto, Inc.\nmobile 541-846-8198\n\n<<>>\n\nAndrews\n21-0050\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Hazmat Interps\nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nDate: Monday, May 10, 2021 11:03:55 AM\nAttachments: image004.png\nInterp request forwarded from counsel.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460\nFrom: Horsley, Adam (PHMSA)\nSent: Monday, May 10, 2021 11:00 AM\nTo: DerKinderen, Dirk (PHMSA) \nCc: Tsaganos, Vasiliki (PHMSA) ; Tackett, Christina (PHMSA)\n; Ross, Robert (PHMSA) \nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nHi Dirk,\nThanks,\n- Adam\nCan you please treat the questions below as a request for an interpretation?\nAdam Horsley\nDeputy Assistant Chief Counsel, Office of Chief Counsel\nUS Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.8000 ◊ Facsimile: 202.366.7041\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended\nonly for the named recipient(s) above and may contain information that is privileged, confidential,\nattorney work product or otherwise legally protected. If you have received this message in error, or are\nnot the named recipient(s), please immediately notify me and permanently delete this e-mail message and\nany attachments from your workstation and/or network mail system.\nFrom: Pete Z [mailto:petez@arcimoto.com]\nSent: Thursday, May 6, 2021 7:35 PM\nTo: Chief Counsel, PHMSA (PHMSA) \nCc: Regulatory Affairs ; Gerrit Hurenkamp \nSubject: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\n\n<<>>\n\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.\nHello PHMA Chief Counsel,\nThanks for speaking with me earlier today!\nI'm doing some research to confirm or reject that fully battery-electric motor vehicles (EV)\nwill need to comply with 49 CFR § 173.185.\nHere's my research so far:\nPHMSA's Interim Final Rule (IFR) became effective on March 6, 2019, see attached\nPDF \"FedReg PHMSA 49 CFR 172-173 HazMat Enhanced Safety Li-ion 2019_03_06\"\nTest summaries of demonstrated compliance are required starting Jan 1, 2022, see\nattached PDF \"FedReg PHMSA 49 CFR 171-180 HazMat Harmonization With Intl Stds\n2020_05_11\"\nEV batteries are typically shipped contained within new vehicles, but also shipped\nseparately to repair partners for service, warranty, and part sales. UNECE Transport of\nDangerous Goods regulations for ground, air, & marine transport, such as UN\n38.3 is relevant, and was \"harmonized\" by above PHMSA regulations.\nTypical EV battery-packs are 20,000+ Watt-hours and weigh hundreds of pounds.\nFor some EV, each battery contains cells or a series of cells that are connected in\nparallel, all battery control mechanisms like BMS, contactors, major fuses, etc are\nexternal to the batteries, and there are no means inside the battery of preventing reverse\ncurrent flow.\nPer 173.185(a)(3), “Beginning January 1, 2022 each manufacturer and subsequent\ndistributor of lithium cells or batteries manufactured on or after January 1, 2008, must\nmake available a test summary.” The test summary requirements are listed 173.185(a)\n(3)(i) to (x).\nPer 173.185(a)(4), there is no stated phase-in date, so it appears that for subject cells and\nbatteries, “each lithium cell or battery must: (i) Incorporate a safety venting device or be\ndesigned to preclude a violent rupture, (ii) Be equipped with means of preventing\nexternal short circuits; and (iii) Be equipped with a means of preventing dangerous\nreverse current flow (e.g., diodes or fuses) if a battery contains cells, or a series of cells\nthat are connected in parallel.”\nPer 173.185(c) and (c)(1), “smaller cells or batteries” may be exempt if the “Size limits”\nis met where “The Watt-hour (Wh) rating may not exceed 20 Wh for a lithium ion cell\nor 100 Wh for a lithium ion battery.”\nPer 173.185(c)(1), “After December 31, 2015, each lithium ion battery subject to this\nprovision must be marked with the Watt-hour rating on the outside case.”\nPer 173.220(d), \"Where the lithium battery is removed from the vehicle and is packed\nseparate from the vehicle in the same outer packaging, the package must be consigned\nas “UN 3481, Lithium ion batteries packed with equipment” or “UN 3091, Lithium\nmetal batteries packed with equipment” and prepared in accordance with the\nrequirements specified in §173.185.\"\nI've completed an iSearch.NHTSA.gov review, found three letters from NHTSA Chief\nCounsel that are relevant to PHMSA 173.185, please see attached PDF.\nQuestions for PHMSA:\n\n<<>>\n\nIf a Li-ion battery is intended for a motor vehicle and is not \"smaller,\" then is\ncompliance to 49 CFR 173.185 required for either or both of the following conditions?\n1. Where the Li-ion battery is contained in the vehicle and securely fastened in the\nbattery holder of the vehicle;\n2. Where the Li-ion battery is removed from the vehicle and is packed separate\nfrom the vehicle.\nIf PHMSA has already provided guidance to other EV motor vehicle OEM (such as\nFord, GM, Toyota, etc) in response to same/ similar questions, then can you share this\nguidance with me so we don't unnecessarily cover the same ground?\nI look forward to speaking with you at your very earliest convenience. Please feel free to call\nme anytime.\nThank you,\nPete Z\nDirector of Global Regulatory Compliance\nArcimoto, Inc.\nmobile 541-846-8198\n\n<<>>\n\nAndrews\n21-0050a\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Dodd, Alice (PHMSA)\nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nDate: Tuesday, May 11, 2021 11:12:52 AM\nAttachments: FedReg PHMSA 49 CFR 172-173 HazMat Enhanced Safety Li-ion 2019_03_06.pdf\nFedReg PHMSA 49 CFR 171-180 HazMat Harmonization With Intl Stds 2020_05_11.pdf\niSearch.NHTSA.gov - Letter from NHTSA DD.Kinderen to DHL DRV.Franco - 2020_09_15.pdf\niSearch.NHTSA.gov - Letter from NHTSA TG.Foster to TerraTrike L.Permesang - 2020_05_06.pdf\niSearch.NHTSA.gov - Letter from NHTSA DD.Kinderen to Honda PowerEquip S.Gregory - 2017_11_01.pdf\nFYI….for sharing with whomever this letter got assigned to.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460\nFrom: Tsaganos, Vasiliki (PHMSA) On Behalf Of Chief Counsel, PHMSA (PHMSA)\nSent: Tuesday, May 11, 2021 11:09 AM\nTo: DerKinderen, Dirk (PHMSA) \nCc: Horsley, Adam (PHMSA) \nSubject: FW: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nDirk: Adam confirmed you are logging this in. Just want to make sure you have all the\nattachments. Many thanks!\nVasiliki Tsaganos\nDeputy Chief Counsel, Office of Chief Counsel\nUS Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.0639 ◊ Facsimile: 202.578.9223\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended\nonly for the named recipient(s) above and may contain information that is privileged, confidential,\nattorney work product or otherwise legally protected. If you have received this message in error, or are\nnot the named recipient(s), please immediately notify me and permanently delete this e-mail message and\nany attachments from your workstation and/or network mail system.\nFrom: Pete Z [mailto:petez@arcimoto.com]\nSent: Thursday, May 6, 2021 7:35 PM\nTo: Chief Counsel, PHMSA (PHMSA) \nCc: Regulatory Affairs ; Gerrit Hurenkamp \nSubject: Arcimoto -- 49 CFR § 173.185 -- Request PHMSA Office of Chief Counsel guidance\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\n\n<<>>\n\nopen attachments unless you recognize the sender and know the content is safe.\nHello PHMA Chief Counsel,\nThanks for speaking with me earlier today!\nI'm doing some research to confirm or reject that fully battery-electric motor vehicles (EV)\nwill need to comply with 49 CFR § 173.185.\nHere's my research so far:\nPHMSA's Interim Final Rule (IFR) became effective on March 6, 2019, see attached\nPDF \"FedReg PHMSA 49 CFR 172-173 HazMat Enhanced Safety Li-ion 2019_03_06\"\nTest summaries of demonstrated compliance are required starting Jan 1, 2022, see\nattached PDF \"FedReg PHMSA 49 CFR 171-180 HazMat Harmonization With Intl Stds\n2020_05_11\"\nEV batteries are typically shipped contained within new vehicles, but also shipped\nseparately to repair partners for service, warranty, and part sales. UNECE Transport of\nDangerous Goods regulations for ground, air, & marine transport, such as UN\n38.3 is relevant, and was \"harmonized\" by above PHMSA regulations.\nTypical EV battery-packs are 20,000+ Watt-hours and weigh hundreds of pounds.\nFor some EV, each battery contains cells or a series of cells that are connected in\nparallel, all battery control mechanisms like BMS, contactors, major fuses, etc are\nexternal to the batteries, and there are no means inside the battery of preventing reverse\ncurrent flow.\nPer 173.185(a)(3), “Beginning January 1, 2022 each manufacturer and subsequent\ndistributor of lithium cells or batteries manufactured on or after January 1, 2008, must\nmake available a test summary.” The test summary requirements are listed 173.185(a)\n(3)(i) to (x).\nPer 173.185(a)(4), there is no stated phase-in date, so it appears that for subject cells and\nbatteries, “each lithium cell or battery must: (i) Incorporate a safety venting device or be\ndesigned to preclude a violent rupture, (ii) Be equipped with means of preventing\nexternal short circuits; and (iii) Be equipped with a means of preventing dangerous\nreverse current flow (e.g., diodes or fuses) if a battery contains cells, or a series of cells\nthat are connected in parallel.”\nPer 173.185(c) and (c)(1), “smaller cells or batteries” may be exempt if the “Size limits”\nis met where “The Watt-hour (Wh) rating may not exceed 20 Wh for a lithium ion cell\nor 100 Wh for a lithium ion battery.”\nPer 173.185(c)(1), “After December 31, 2015, each lithium ion battery subject to this\nprovision must be marked with the Watt-hour rating on the outside case.”\nPer 173.220(d), \"Where the lithium battery is removed from the vehicle and is packed\nseparate from the vehicle in the same outer packaging, the package must be consigned\nas “UN 3481, Lithium ion batteries packed with equipment” or “UN 3091, Lithium\nmetal batteries packed with equipment” and prepared in accordance with the\nrequirements specified in §173.185.\"\nI've completed an iSearch.NHTSA.gov review, found three letters from NHTSA Chief\nCounsel that are relevant to PHMSA 173.185, please see attached PDF.\nQuestions for PHMSA:\nIf a Li-ion battery is intended for a motor vehicle and is not \"smaller,\" then is\ncompliance to 49 CFR 173.185 required for either or both of the following conditions?\n\n<<>>\n\n1. Where the Li-ion battery is contained in the vehicle and securely fastened in the\nbattery holder of the vehicle;\n2. Where the Li-ion battery is removed from the vehicle and is packed separate\nfrom the vehicle.\nIf PHMSA has already provided guidance to other EV motor vehicle OEM (such as\nFord, GM, Toyota, etc) in response to same/ similar questions, then can you share this\nguidance with me so we don't unnecessarily cover the same ground?\nI look forward to speaking with you at your very earliest convenience. Please feel free to call\nme anytime.\nThank you,\nPete Z\nDirector of Global Regulatory Compliance\nArcimoto, Inc.\nmobile 541-846-8198","truncated":false,"body_characters":19795}