Interpretation Response #22-0044
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
October 13, 2022
Mr. Jim Powell
Transportation Development Group, LLC
190 W. Continental Rd. Ste 216-401
Green Valley, AZ 85614
Reference No. 22-0044
Dear Mr. Powell:
This letter is in response to your April 6, 2022, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to offering lithium batteries for transportation. Specifically, you ask about the required lithium battery test summaries and if your client would be considered an offeror.
In your letter, you state that your client offers audiology equipment including a headset and tablets that contain either a small cell (20 watthours (Wh) or less) or a battery (100 Wh or less). You further state what while some manufacturers have made the lithium battery test summaries available, others have provided only a statement certifying the cells and batteries have been successfully tested and meet the requirements of the United Nations (UN) Manual of Test and Criterial Part III, subsection 38.3. Your questions have been paraphrased and addressed below.
Q1. You ask whether your client needs a lithium battery test summary to ship a commercially available tablet computer that has been purchased from a retail store and is incorporated into the "kit" that your client sells to its customers.
A1. The answer is yes. While the lithium battery test summary is not required to be physically present with the shipment, your client must make available a lithium battery test summary that contains all the required information specified in § 173.185(a)(3) of the HMR.
Q2. You ask whether a product summary/confirmation—provided to your client from the manufacturer that attests compliance with the UN 38.3 requirements for their tablets but does not contain all the required information specified in § 173.185(a)(3)—is sufficient for your client to demonstrate compliance with the requirement to "make available a test summary" when your client acts as a subsequent distributor.
A2. The answer is no. Although a shipper could rely on information provided by the battery or product manufacturer as evidence that the cell or battery meets the required tests, this would not meet the requirement for a manufacturer or distributor to make available a lithium battery test summary as required by § 173.185(a) of the HMR.
Q3. You ask whether retailers of lithium battery-powered tablets are obligated to provide retail customers, such as your client, with a complete lithium battery test summary.
A3. The answer is yes. As required in § 173.185(a), "each manufacturer and subsequent distributor of lithium cells or batteries manufactured on or after January 1, 2008, must make available a test summary." For additional clarification, the lithium battery test summary is considered "complete" if it contains all of the required information specified in § 173.185(a)(3) of the HMR.
Q4. You ask what the penalties are if retailers fail to provide a lithium battery test summary as required under § 173.185(a)(3) to your client.
A4. The enforcement process and possible penalties are detailed in 49 CFR Part 107 subpart D (Enforcement).
In your letter, you also state that your client has a reverse logistics aspect to its business. The "kits" are shipped back to your client after use, utilizing guidance that your client has prepared.
Q5. You ask whether your client is performing the role of an "offeror" if it provides general instructions to its customer as outlined in your letter.
A5. Without reviewing the actual guidance, this Office cannot determine whether your client is performing the role of an offeror. However, if the guidance provided performs any pre-transportation function—such as selecting the packaging—your client would be considered an "offeror." See the definition of "pre-transportation function" in § 171.8 of the HMR.
Q6. You ask whether providing a return shipping label as outlined in your letter places your client in the role of an "offeror."
A6. The answer is no. Solely providing a return shipping label is not considered a pre-transportation function and therefore does not make your client an "offeror."
Q7. You ask whether providing both guidance and a shipping label to the customer places your client in the role of an "offeror."
A7. See answer A5.
I hope this information is helpful. Please contact us if we can be of further assistance.
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
171.8, 173.185(a), 173.185(a)(3)
|Lithium cells and batteries