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Interpretation Response #19-0057


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

Interpretation Response Details

Response Publish Date: 11-12-2019
Company Name: Dangerous Goods Transport Consulting, Inc.    Individual Name: Frits Wybenga
Location state: MD    Country: US

View the Interpretation Document


Response text:

November 12, 2019

Frits Wybenga
Dangerous Goods Transport Consulting, Inc.
15108 Red Clover Drive
Rockville, MD  20853

Reference No. 19-0057

Dear Mr. Wybenga:

This letter is in response to your April 20, 2019, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to approvals for the transportation of lithium batteries with a mass exceeding 35 kg on cargo aircraft. Specifically, you ask about requirements for obtaining approval of the Associate Administrator in accordance with both the HMR and International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI).

We have paraphrased and answered your questions as follows:

Q1. You ask whether an approval, as defined in § 105.5, is required for Associate Administrator authorization to transport a lithium battery with a mass exceeding 35 kg on a cargo aircraft.
 
A1. The answer is yes. As mentioned in your request, special provision A54 (see § 172.102) specifies that "irrespective of the quantity limits in Column 9B of the § 172.101 table, a lithium battery, including a lithium battery packed with, or contained in, equipment that otherwise meets the applicable requirements of § 173.185, may have a mass exceeding 35 kg if approved by the Associate Administrator prior to shipment." As defined in §§ 105.5 or 107.1, an approval includes a competent authority approval, which is issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, to perform a function for which prior authorization by the Associate Administrator is required. Therefore, in order to transport a lithium battery with a mass exceeding 35 kg, an approval by the Associate Administrator is required. 

 Furthermore, as per the definition of a competent authority approval in §§ 105.5 or 107.1, the approval may be issued as either a special permit or approval. PHMSA has begun issuing these approvals as special permits as they provide additional flexibility and allow for party status of special permit holders and potential applicants. If you have further questions regarding issuance of approvals or special permits, please contact the Office of Approvals and Permits at (202) 366-4511.
 
Q2. You ask whether an approval issued by PHMSA is required when transporting a lithium battery with a mass exceeding 35 kg on a cargo aircraft to the United States from outside the United States and authorized for transport in accordance with the ICAO TI, including an approval issued by the State of Origin.
 
A2. The answer is yes. United States variation US 3 from the ICAO TI states that "lithium cells or batteries including when packed with equipment or contained in equipment transported in accordance with Special Provision A99...may not be transported to, from, or within the United Stated aboard a passenger or cargo aircraft without the prior approval of the appropriate authority of the U.S." Therefore, when transporting a lithium battery with a mass exceeding 35 kg on a cargo aircraft to the United States from outside the United States and authorized for transport in accordance with the ICAO TI, including an approval issued by the State of Origin and special provision A99, a U.S. competent authority approval is required.
 
Q3. You ask whether an approval issued by PHMSA is required when transporting a lithium battery with a mass exceeding 35 kg on a cargo aircraft in accordance with ICAO TI Special Provision A99.
 
A3. The answer is yes. See A2.

I hope this information is helpful. Please contact us if we can be of further assistance.

Sincerely,

Dirk Der Kinderen
Chief, Standards Development
Standards and Rulemaking Division

172.102, 173.185, 105.5, 107.1


Regulation Sections

Section Subject
§ 173.185 Lithium cells and batteries