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Interpretation Response #09-0143 ([Wiley Rein LLP] [Mr. George Kerchner])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Wiley Rein LLP

Individual Name: Mr. George Kerchner

Location State: DC Country: US

View the Interpretation Document

Response text:

August 7, 2009




Mr. George Kerchner
Wiley Rein LLP
1776 K Street NW
Washington, DC 20006

Ref. No.: 09-0143

Dear Mr. Kerchner:

This is in response to your June 18, 2009 letter concerning the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to shipments of small lithium metal batteries (< 2.0 grams lithium content) and small lithium ion batteries (< 8 grams equivalent lithium content) sold over the counter at retail locations. Your questions are paraphrased and answered below:

Q1. Are small lithium batteries assembled at retail locations and sold over the counter to customers for personal use subject to the testing requirements outlined in Section 38.3 of the UN Manual of Tests and Criteria?

A1. As specified in § 171.1, the HMR govern the transportation of hazardous materials in intrastate, interstate and foreign commerce. The term "in commerce" means in furtherance of a commercial enterprise. Therefore, hazardous materials that are sold to customers for personal, non-commercial use and transported by such persons in their personal vehicles are not subject to the HMR. However, if the transportation is in commerce the lithium batteries are subject to the HMR. In that case, each battery must be of a type proven to meet each of the tests in 38.3 of the UN Manual of Tests and Criteria prior to transportation.

Q2. Can small lithium batteries transported to customers in personal or company vehicles qualify for the materials of trade exceptions?

A2. Yes. The materials of trade definition in § 171.8 includes a private motor carrier transporting hazardous materials in direct support of a principal business that is other than transportation by motor vehicle. The materials of trade exceptions in § 173.6 permit Class 9 materials including lithium batteries.

Q3. Do the testing requirements of the UN Manual of Tests and Criteria apply to lithium batteries transported as materials of trade?

A3. In order to meet the provisions of the materials of trade exception, lithium batteries must be of a type proven to meet the criteria of Class 9 by testing in accordance with the UN Manual of Tests and Criteria. Alternatively, production runs of less than 100 cells or batteries may be transported by motor vehicle without testing provided you meet all of the conditions outlined in § 172.102(c), special provision 29.

Q4. Can a passenger transport a lithium battery that has not been tested in accordance with the UN Manual of Tests and Criteria in accordance with the passenger and crewmember exceptions specified in § 175.10.

A4. The exceptions for passengers and crewmembers in § 175.10(a)(17) do not require lithium batteries to be tested in accordance with the UN Manual of Tests and Criteria. However, all batteries must be packaged in a manner that precludes the generation of sparks or a dangerous quantity of heat. Each spare battery must be individually protected so as to prevent short circuits and carried in carry-on baggage only.

I trust this satisfies your inquiry. If we can be of further assistance, please contact us.


Charles E. Betts
Chief, Standards Development
Office of Hazardous Materials Standards

171.1, 173.6, 172.102 SP 29

Regulation Sections

Section Subject
171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions
173.185 Lithium cells and batteries
173.6 Materials of trade exceptions