Council on Safe Transportation of Hazardous Articles — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 October 1, 2024 Frank Lopez Regulatory Compliance Specialist Council on Safe Transportation of Hazardous Articles 10 Hunter Brook Lane Queensbury, NY 12804 Reference No. 24-0041 Dear Mr. Lopez: This letter is in response to your May 28, 2024, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to determining responsibility for compliance with lithium ion cell and battery state of charge (SOC) requirements—see § 172.102 Special Provision A100. You ask for confirmation that subsequent offerors of lithium ion cells and batteries may generally rely on information from the initial offeror that the SOC does not exceed 30 percent of the cell or battery’s rated capacity. The answer is yes. Section 171.2(b) states that “…each offeror may rely on information provided by another offeror, unless that offeror knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the other offeror is incorrect.” Additionally, § 171.2(f) would apply to the scenario you provided, because it states that “carriers that transport hazardous materials may rely on information provided by the offeror of the hazardous material or a prior carriers, unless the carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror or prior carrier is incorrect.” Therefore, subsequent offerors of lithium ion cells and batteries may rely on information provided by another offeror—or a previous carrier—unless it is known to the offeror or a reasonable person acting in the circumstances and exercising reasonable care that the other offeror’s or carrier’s information is incorrect.#

Page 2Finally, please note that whenever a hazardous material has not been shipped in compliance with the HMR, the Department of Transportation will attempt to bring an enforcement proceeding against the person who first caused the transportation of the noncomplying shipment. See the formal interpretation[1] of carrier responsibility when accepting hazardous material for transportation in commerce (June 4, 1998; 63 FR 30411). I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, Alexander Wolcott Acting Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division#

Page 3Vore 24-0041 From: INFOCNTR (PHMSA) To: Hazmat Interps Subject: FW: COSTHA Letter of Interpretation Request regarding §171.2(b) and the requirement for lithium ion batteries to be at a state of charge of 30% or less Date: Tuesday, June 4, 2024 10:12:51 AM Attachments: image001.png COSTHA LOI 171.2 and SOC.pdf Please see attached request for letter of interpretation. Thanks, Jonathon, HMIC From: Frank Lopez <frank@costha.com> Sent: Tuesday, May 28, 2024 4:09 PM To: Kelley, Shane (PHMSA) <shane.kelley@dot.gov> Cc: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>; L'Gena Shaffer <Lgena@costha.com>; Chris Yakush <Chris@costha.com>; Tom Ferguson <Tom@costha.com>; Julie Prescott <Julie@costha.com>; Anne Barry <anne@costha.com> Subject: COSTHA Letter of Interpretation Request regarding §171.2(b) and the requirement for lithium ion batteries to be at a state of charge of 30% or less CAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or open attachments unless you recognize the sender and know the content is safe. Dear Mr. Shane Kelley, Attached please find COSTHA’s request for a letter of interpretation on §171.2(b) regarding the air transportation requirement for lithium ion batteries to be at a State of Charge (SOC) of 30% or less as it relates to subsequent offerors ability to rely on information from the manufacturer or previous offeror on the SOC. Please contact me if you should have any questions or need any additional information. We appreciate your consideration. Best regards, Frank __ __ Frank Lopez Regulatory Compliance Specialist COSTHA Office: 518.761.0668 xt 222 http://www.costha.com frank@costha.com Follow us on LinkedIn#

Page 4Follow us on Instagram (@costha1972) ENGAGE IN YOUR COSTHA MEMBERSHIP: Upcoming Events, Meetings, & Webinars -- -- -- -- -- CONFIDENTIAL: UNAUTHORIZED USE OR DISCLOSURE IS STRICTLY PROHIBITED. This information is intended to provide interpretative and authoritative information in regard to the subject matter covered as a service to our clients and has been answered to the best of our ability based on the information provided to us. We do not guarantee the accuracy or completeness of any such interpretation or information, however, nor do we warrant that compliance with any advice we provide will guarantee compliance with any legal or regulatory requirements. Our statements or opinions do not convey legal interpretation and government authorities or legal counsel should be contacted for such a response.#

Page 5Richard Schweitzer, PLLC May 28, 2024 President Dan Hankinson Program Manager Stellantis First Vice President Janet Kolodziey-Nykolyn Dir. Global Dangerous Goods Compliance Pfizer, Inc. Second Vice President Carolyn Weintraub Dir. Regulatory & Government Affairs US Reckitt Treasurer Veronica Wilson Director, HM Transportation Wal-Mart, Inc Secretary Dave Madsen Reg. Compliance Specialist - Americas Autoliv ASP, Inc. Executive Committee Samuel Moyers Director of Transportation Safety ARCADIS Board of Directors Carla Andrews DG Safety Manager FedEx Logistics Jon Pelis Sr. Manager, Dangerous Goods / Product Regulatory Compliance The Boeing Company John Redman Manager, TMNA Hazmat Compliance Toyota Motor North America, Inc. Lynn Reiman Global Regulated DG Director UPS Mr. Shane Kelley Director, Standards and Rulemaking Division Pipeline and Hazardous Materials Safety Administration Attn: PHH-10 U.S. Department of Transportation East Building, 1200 New Jersey Ave., SE Washington, D.C. 20590-0001 Submitted: Via Email cc: infocntr@dot.gov Dear Mr. Kelley, The Council on Safe Transportation of Hazardous Articles (COSTHA) requests a formal letter of interpretation on behalf of the air carrier roundtable regarding the requirements of §175.33(c)(1)(i). COSTHA member airlines have experienced differences in interpretation regarding the requirement to ensure a copy of a shipping paper accompanies a shipment it covers during transportation aboard an aircraft. COSTHA is a not-for-profit organization representing manufacturers, shippers, distributors, carriers, freight forwarders, trainers, packaging manufacturers and other associated with the hazardous materials transportation industry. In addition to promoting regulatory compliance and safety in hazardous materials transportation, COSTHA assists its members and the public in evaluating the practicality and efficacy of laws, rules and regulations for the safe transportation and distribution of hazardous materials. COSTHA is also pleased to have 17 air carriers included in our membership. The 49 CFR Subpart A, Part 175, §175.33(c)(1)(i) currently reads: Erik Steinbeck Global Logistics Manager Parker Hannifin - LORD Corporation Wim Verkuringen Director DG & Transportation Safety Johnson & Johnson Mike Wentz Sr. Specialist Hazmat/DG Compliance American Airlines Ensure a copy of the shipping paper required by §175.30(a)(2) accompanies the shipment it covers during transportation aboard the aircraft. General Counsel Richard Schweitzer, PLLC COSTHA requests this interpretation confirm our understanding that the requirement of §175.33(c)(1)(i) aligns with the requirements of the International Civil Aviation Organization (ICAO) Technical Instructions on the Safe Transport of Dangerous Goods by Air (TI) in that, one shipping paper will accompany the entire consignment versus a copy of the shipping paper be provided for each individual package within the shipment. The ICAO Technical Instructions reference a “consignment” vs. the HMR stating “shipment”. Council on Safe Transportation of Hazardous Articles 10 Hunter Brook Lane, Queensbury, NY 12804 • Phone: (518)761-0389 • Fax: (518)792-7781 • www.costha.com#

Page 6The ICAO Technical Instructions (Doc 9284) 2023-2024 Ed states: Part 7, Chapter 1, 1.2.2 - Where a dangerous goods transport document is provided in accordance with 1.2.1 a), one copy must accompany the consignment to final destination and one copy must be retained by the operator at a location on the ground where it will be possible to obtain access to it within a reasonable period; the document must be retained at this point until the goods have arrived at final destination, after which time it may be stored elsewhere. The ICAO Technical Instructions define: Consignment One or more packages of dangerous goods accepted by an operator from one shipper at one time and at one address, receipted for in one lot and moving to one consignee at one destination address. Shipment The specific movement of a consignment from origin to destination. Example A shipment containing 10 packages as a single consignment accepted by an operator from a single shipper at one time and at one address, receipted for as a single lot and moving to a single consignee at a single destination address, would require only one shipping paper on the “number one” piece. COSTHA members have experienced instances where Federal Aviation Administration (FAA) inspectors or Principal Hazmat Inspectors (PHIs) interpreted the requirement of §175.33(c)(1)(i) to require a copy of the shipping paper for each individual package within the consignment or shipment. COSTHA member airlines do not believe this to be the requirement or intent of §175.33(c)(1)(i). COSTHA member airlines believe the inclusion of a copy of the shipping papers for every piece of a multi-piece shipment would cause undue burden on the carrier through time and resources required, is contrary to standard procedures aligned with international regulations, and provides no added safety benefit. However, in the situation where a multi-piece shipment must be split for accommodation purposes during transportation, a second shipping paper, properly annotated, will accompany the spilt pieces. In closing, COSTHA asks PHMSA to confirm our understanding that the provisions in §175.33(c)(1)(i) require a single copy of the shipping paper to accompany a “consignment” or shipment of multiple pieces of hazardous materials. COSTHA appreciates your review of this interpretation request, and we look forward to hearing from you soon. Sincerely, Frank Lopez Regulatory Compliance Specialist#