[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Rules and Regulations]
[Pages 46012-46040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18146]
[[Page 46011]]
Vol. 79
Wednesday,
No. 151
August 6, 2014
Part IV
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171, 172, 173, et al.
Hazardous Materials: Transportation of Lithium Batteries; Final Rule
Federal Register / Vol. 79 , No. 151 / Wednesday, August 6, 2014 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173, 175
[Docket No. PHMSA-2009-0095 (HM-224F)]
RIN 2137-AE44
Hazardous Materials: Transportation of Lithium Batteries
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: PHMSA, in consultation with the Federal Aviation
Administration (FAA), is modifying the requirements governing the
transportation of lithium cells and batteries. This final rule revises
hazard communication and packaging provisions for lithium batteries and
harmonizes the Hazardous Materials Regulations (HMR) with applicable
provisions of the United Nations (UN) Model Regulations, the
International Civil Aviation Organization's Technical Instructions for
the Safe Transport of Dangerous Goods by Air (ICAO Technical
Instructions) and the International Maritime Dangerous Goods (IMDG)
Code.
DATES: Effective Date: August 6, 2014.
Voluntary Compliance Date: Voluntary compliance with all amendments
is authorized August 6, 2014.
Delayed Compliance Date: Unless otherwise specified, compliance
with the amendments adopted in this final rule is February 6, 2015.
The incorporation by reference of certain publications listed in
the rule is approved by the Director of the Federal Register as of
August 6, 2014.
FOR FURTHER INFORMATION CONTACT: Charles E. Betts or Kevin A. Leary
Standards and Rulemaking Division, Pipeline and Hazardous Materials
Safety Administration, telephone (202) 366-8553, or Janet McLaughlin,
Office of Hazardous Materials Safety, Federal Aviation Administration,
telephone 202-385-4897.
SUPPLEMENTARY INFORMATION:
Contents
I. Executive Summary
II. Background
III. Section-by-Section Review
A. Part 171
B. Part 172
C. Part 173
D. Part 175
E. Compliance Date
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for this Rulemaking
B. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
K. Executive Order 13609 and International Trade Analysis
I. Executive Summary
In this final rule, PHMSA is revising requirements in the HMR
applicable to the transport of lithium cells and batteries consistent
with the UN Model Regulations, the ICAO Technical Instructions and the
IMDG Code. The final rule:
(1) Replaces equivalent lithium content with Watt-hours for lithium
ion cells and batteries;
(2) adopts separate shipping descriptions for lithium metal
batteries and lithium ion batteries;
(3) revises provisions for the transport of small and medium
lithium cells and batteries including cells and batteries packed with,
or contained in, equipment;
(4) revises the requirements for the transport of lithium batteries
for disposal or recycling;
(5) harmonizes the provisions for the transport of low production
and prototype lithium cells and batteries with the ICAO Technical
Instructions and the IMDG Code; and
(6) adopts new provisions for the transport of damaged, defective,
and recalled lithium batteries.
PHMSA is not adopting proposals to: (1) Modify provisions for what
constitutes a change to a battery design in the UN Manual of Tests and
Criteria; (2) require lithium cells and batteries to be marked with an
indication that the cell or battery design passed each of the
appropriate tests outlined in the UN Manual of Tests and Criteria; or
(3) limit the locations on board aircraft where shipments of lithium
cells and batteries could be stowed.
The provisions of this final rule are consistent with Section 828
of the ``FAA Modernization and Reform Act of 2012'' (Pub. L 112-98, 126
Stat.133 (Feb. 14, 2012)), which prohibits DOT from issuing or
enforcing any regulation or other requirement regarding the air
transportation of lithium cells or batteries if the requirement is more
stringent than the requirements of the ICAO Technical Instructions.
PHMSA estimates that the costs of this rule would total $12.1
million over the next 10 years when applying a 3 percent discount rate,
and $10.8 million when applying a 7 percent rate. PHMSA also developed
high and low cost estimates to incorporate uncertainty in quantifying
costs--at a 7 percent discount rate the low estimate of costs is $7.4
million and the high estimate is $15.0 million. These figures
acknowledge that the HMR already authorize the use of the ICAO
Technical Instructions and the IMDG Code for most lithium battery
shipments. Further, shipments of lithium batteries transported to or
from the U.S. must conform to either the ICAO Technical Instructions by
air or the IMDG code by vessel. Domestic air and vessel transport of
lithium batteries is the final remaining segment likely to be impacted
by the amendments in this final rule. Commenters representing air
carriers indicated that international operators and most U.S. operators
conform to the provisions of the ICAO Technical Instructions because of
the desire to have a single set of operational practices and training
standards. PHMSA anticipates cost savings resulting from harmonization
of certain requirements, including those related to proper shipping
names and Watt-hour ratings. Separate entries for lithium metal and
lithium ion batteries have appeared in the ICAO Technical Instructions
and the IMDG code since 2009. PHMSA did not adopt those entries at that
time but noted that the then new entries could be used both
domestically and internationally, and for transportation by motor
vehicle and rail immediately before or after being transported by
aircraft. [74 FR 2207]. While the HMR permit the use of these shipping
descriptions because these entries do not appear in the Hazardous
Materials Table (HMT; Sec. 172.101) use of these descriptions
continues to frustrate shipments. Similarly, the ICAO Technical
Instructions and the IMDG code use the term ``Watt-hours'' to measure
the size of lithium ion batteries, while the HMR use the term
``equivalent lithium content.'' While both of these provide an
indication of the size of a lithium ion battery, they are not
interchangeable units and this difference frustrates shippers
attempting to determine the appropriate shipping requirements. PHMSA
anticipates some safety benefits resulting from risk reduction through
a combination of: Reliable packaging; hazard communication; inspection
and
[[Page 46013]]
acceptance checks prior to loading cargo aboard aircraft; pilot
notification; and employee training, many of which have already been
adopted into current practice.
II. Background
PHMSA published a notice of proposed rulemaking (NPRM) in this
docket (75 FR 1302, Jan. 11, 2010) to enhance the transport of lithium
cells and batteries through elimination of regulatory exceptions,
increased battery design testing requirements, air cargo stowage
requirements, and clarification of certain other provisions. In that
NPRM, PHMSA discussed: (1) National Transportation Safety Board (NTSB)
Recommendations resulting from the February 7, 2006, cargo aircraft
accident at Philadelphia International Airport suspected to have been
caused by lithium batteries; (2) numerous minor incidents of smoke or
fire involving lithium cells and batteries in air transportation, which
may be ``precursors'' to a catastrophic accident; and (3) research
conducted by FAA William J. Hughes Technical Center (Technical Center),
which examined the characteristics of fires involving packages of
lithium batteries, the effectiveness of conventional fire suppression
systems at mitigating the impacts of these fires, and the ability of
packages to contain a fire involving lithium batteries. 75 FR at 1303-
07. Specifically, in the NPRM, PHMSA proposed to:
Adopt or revise various definitions of: ``Lithium cell or
battery''; ``lithium content''; ``lithium ion cell or battery'';
``lithium metal cell or battery''; ``short circuit''; and ``Watt-
hour.''
Adopt Watt-hour, in place of ``equivalent lithium
content'', as the measure of power (or size) of a lithium ion cell or
battery.
Require a shipper, carrier, package owner, or person
reporting an incident provide reasonable assistance in an investigation
including access to the damaged package or article.
Replace the single proper shipping name and UN
identification number for ``lithium batteries'' with separate proper
shipping names and UN identification numbers for lithium metal
batteries and lithium ion batteries and also adopt separate proper
shipping names and UN identification numbers for lithium metal and
lithium ion batteries packed with, or contained in, equipment.
Consolidate requirements for shipping lithium cells and
batteries, and exceptions into Sec. 173.185, by:
[cir] Requiring cells and batteries to be tested in accordance with
the latest revisions to the UN Manual of Tests and Criteria, and
require manufacturers to retain evidence of successful completion of UN
testing. PHMSA also indicated it was considering requiring the presence
of a ``quality mark'' to indicate successful testing.
[cir] Eliminating the exceptions for small cells and batteries in
air transportation, except with respect to extremely small cells packed
with or contained in equipment.
[cir] Providing certain relaxed requirements for (1) the shipment
of low production runs and prototype batteries, and (2) batteries being
shipped for recycling or disposal.
Require lithium cells and batteries, when transported by
aircraft, to be stowed in a location accessible by a crew member or a
location equipped with an FAA-approved detection and fire suppression
system.
PHMSA proposed an effective date for a final rule 75 days after
publication in the Federal Register and invited comments concerning the
additional costs that would result from such a compliance schedule,
practical difficulties associated with quickly coming into compliance
with the provisions of the January 11, 2010, NPRM, and any other issues
that PHMSA should consider in making a decision on the compliance
schedule. PHMSA also invited commenters to address the feasibility and
practicability of a phased compliance schedule, under which certain
provisions of the final rule would become effective on a faster
schedule than other provisions, for which immediate compliance would be
more difficult.
A total of 125 persons submitted comments on the proposals in the
January 11, 2010, NPRM. Commenters included battery and electrical
device manufacturers, airlines, airline pilots, retailers, battery
recyclers, members of the U.S. House of Representatives, the U.S. Small
Business Administration (SBA), the U.S. Chamber of Commerce, and
foreign governments. PHMSA also received comments from industry trade
associations and other advocates representing the above named groups.
Commenters expressed support for the overall goal of improving the
safe transport of lithium batteries by all modes, especially air. The
commenters also stressed the need for consistency between the HMR and
the ICAO Technical Instructions. Several commenters suggested that even
small deviations from the ICAO Technical Instructions in the transport
of lithium batteries would cause significant disruptions. These
commenters stated that differences between U.S. and international
requirements for lithium batteries detract from safety by creating
confusion and excessively complicating the detailed set of regulations
that already apply to lithium battery shipments. SBA recommended that
PHMSA consider the public comments to the proposed rule, assess the
impact of the proposed rule on small businesses, and consider feasible
alternatives that would meet the agency's safety objectives while
minimizing the economic impact on small business.
The majority of commenters focused on the proposals for: (1)
Eliminating provisions for small lithium batteries currently found in
Sec. 172.102, special provision 188; (2) modifying the criteria under
which a lithium battery would be considered to be a new type; and (3)
prescribing aircraft stowage requirements. To review the NPRM, draft
regulatory evaluation, environmental assessment, comments, letters, and
other materials considered in this regulatory action go to http://www.regulations.gov, docket number PHMSA-2009-0095. To locate a
specific commenter by name simply use the search function provided by
regulations.gov.
Since publication of the January 11, 2010 NPRM:
PHMSA hosted a public meeting attended by 100 individuals
(outside of PHMSA and FAA) representing a total of 73 companies,
organizations and other entities, 16 of whom made presentations. A
transcript of this meeting is in the docket (at PHMSA-2009-0095-
0189).\1\
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\1\ In addition, representatives of the Cargo Airline
Association met with officials of the FAA on September 8, 2010, to
present additional concerns with proposals in the NPRM, and a member
of the Airline Pilots Association provided information to PHMSA on
aircraft fire suppression systems, the notice to the pilot in
command, and current training of airline personnel in a telephone
conference on April 20, 2011. Memoranda of these contacts are in the
docket (at PHMSA-2009-0095-0220 and -0234, respectively).
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The FAA Technical Center continued to study the risks
presented by lithium batteries in air transportation and ways to
address those risks and published reports on ``Fire Protection for the
Shipment of Lithium Batteries in Aircraft Cargo Compartments''
(November 2010) and, in conjunction with Transport Canada, on a
``Freighter Airplane Cargo Fire Risk Model'' (September 2011). Copies
of these reports are in the docket (at PHMSA-2009-0095-0235 and -0240,
respectively).
PHMSA evaluated transportation incidents involving lithium
batteries and one cargo aircraft accident in which an aircraft
transporting lithium batteries
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was destroyed and both pilots were killed.\2\
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\2\ On September 3, 2010, in Dubai, United Arab Emirates, a 747-
400 cargo aircraft crashed while attempting to land at the Dubai
airport after a fire was discovered. Both pilots were killed, and
the aircraft and its cargo, which included lithium batteries, were
destroyed. The UAE preliminary report of the accident is in the
docket (at PHMSA-2009-0095-0238).
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The ICAO Dangerous Goods Panel adopted revisions into the
2013-2014 ICAO Technical Instructions that narrow exceptions for
lithium metal and lithium ion cells and batteries not packed with, or
contained in, equipment when transported by aircraft. PHMSA
incorporated the 2013-2014 ICAO Technical Instructions by reference
into the HMR in docket number PHMSA2012-0027 (HM-215L), 78 FR 988
(January 7, 2013).\3\
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\3\ This means that, for purposes of the HMR, a shipment of
lithium batteries to, from, or within the United States could be
offered and transported in accordance with the current edition of
the ICAO Technical Instructions even before PHMSA issued a final
rule in this proceeding.
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In February 2012, Congress passed and the president signed
the ``FAA Modernization and Reform Act of 2012'' that specifically
prohibits DOT agencies from issuing or enforcing regulations regarding
the air transport of lithium cells or batteries, whether transported
separately or packed with, or contained in, equipment, if the
requirement is more stringent than the requirements of the ICAO
Technical Instructions.\4\
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\4\ The legislation allows the continued prohibition on the
transport of lithium metal cells and batteries aboard passenger
aircraft. It also authorizes the issuance of more stringent
regulation based on credible reports that lithium batteries
substantially contributed to the initiation or propagation of a fire
aboard an aircraft, as long as the regulations address solely the
deficiencies referenced in the report(s) and are the least
disruptive and least expensive variation from existing requirements
while adequately addressing identified deficiencies.
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In April 2012 and January 2013, PHMSA stated that it was
considering harmonizing requirements in the HMR on the transportation
of lithium batteries with changes adopted in the 2013-2014 ICAO
Technical Instructions and requested additional comments on (1) the
effect of those changes, (2) whether to require compliance with the
ICAO Technical Instructions for all shipments by air, both domestic and
international, and (3) the impacts if PHMSA failed to adopt specific
provisions in the ICAO Technical Instructions into the HMR. 77 FR 21714
(Apr. 11, 2012), 78 FR 1119 (Jan. 7, 2013).
The changes adopted in the ICAO Technical Instructions require
additional shipper training, markings, labels, and pilot notification
for packages containing more than 8 lithium cells or 2 lithium
batteries, which were previously not subject these requirements.
Commenters to the April 11, 2012 and the January 7, 2013 notices
unanimously supported harmonization of the HMR with the 2013-2014 ICAO
Technical Instructions while acknowledging that the changes adopted by
the ICAO would result in increased costs in training, package markings
and revised procedures. Commenters also noted that, if PHMSA failed to
harmonize the HMR with the current ICAO Technical Instructions,
shippers and carriers would continue to struggle with the differences
between the two sets of regulations. Commenters further stated that
PHMSA should not adopt proposals in the NPRM that would be more
restrictive than the ICAO Technical Instructions because this would
place U.S. shippers and carriers at a disadvantage relative to their
international counterparts and be in violation of the FAA Modernization
and Reform Act of 2012. Commenters also opposed specifically
maintaining an option to use the current HMR, instead of the ICAO
Technical Instructions, and noted that permitting shippers and carriers
to choose compliance with alternative standards in domestic and
international commerce would undermine safety because the ICAO
provisions are more stringent than the current HMR.
Several air carriers indicated that because the 2013-2014 ICAO
Technical Instructions would become effective January 1, 2013 they
would be in compliance with those standards by that date regardless of
whether (or when) PHMSA issued a final rule. Other commenters requested
a transition period between 6 and 18 months to permit companies to
conduct training and adjust their operations to adapt to these changes.
Outside of a delayed compliance date, commenters did not suggest any
other ways to reduce the compliance burden. The National Association of
Manufacturers (NAM) indicated that supply chains will have to adapt to
a final rule that adopts the provisions of the 2013-2014 ICAO Technical
Instructions, but the costs of implementing these provisions would vary
from one manufacturer to another. The Cargo Airline Association (CAA)
suggested that the revisions in the 2013-2014 ICAO Technical
Instructions might result in a shift in transport from the air mode to
other modes (such as ground) but did not attempt to quantify this as
shipping decisions would vary from company to company.
Air carriers and international shippers stressed the desire for a
single system to eliminate errors and streamline training. Further, the
commenters asserted that any benefits associated with maintaining an
option would be minor, accrued by a small number of entities and that
these benefits would be more than offset by increased confusion
experienced by shippers and air carriers. Additionally, commenters
suggested that a failure by PHMSA to mandate the use of the ICAO
Technical Instructions would create an environment where the U.S.
permits a lesser standard than the rest of the world, placing air
carriers and pilots at increased risk and hampering enforcement of the
ICAO Technical Instructions.
Based on all the comments received, and our analysis of the recent
changes to the ICAO Technical Instructions, we are adopting into the
HMR requirements consistent with 2013-2014 ICAO Technical Instructions,
the 17th revised edition of the UN Model Regulations, the 5th Revised
Edition of the UN Manual of Tests and Criteria Amendment 1, and
Amendment 36-12 of the IMDG Code. In the section-by-section review,
each of the proposals, with corresponding comments, and subsequent
revisions is discussed in more detail. For convenience, a list of
commenters is provided below:
3M Company
Airlines for America (A4A), formerly Air Transport Association (ATA)
ACCO Brands (ACCO)
Advanced Medical Technology Association (AdvaMed)
Airforwarders Association (Afa)
The Airline Pilots Association, International (ALPA)
Airtec GmbH & Co. KG (Airtec)
Alaska Airlines
The American Trucking Associations (Trucking)
Association of Hazmat Shippers, Inc. (AHS)
Association of International Automobile Manufacturers, Inc. (AIAM)
Asurion Corporation
AT&T Services Inc.
Batteries Plus LLC
Battery Association of Japan (BAJ)
Bayer HealthCare Diabetes Care
Berlin Heart Inc.
Best Buy Corporation
Biomet Incorporated
Black & Decker
Boat U.S. Foundation
Boston Power
Boston Scientific Corporation
Camera and Imaging Products Association (CIPA)
Cargo Airline Association (CAA)
Casio America (Casio)
Clean Harbors Environmental Services
Coalition of Airline Pilots Associations (CAPA)
Communications and Information Network Association of Japan (CIAJ)
CompuCom Systems, Inc.
Consumer Electronics Association (CEA)
[[Page 46015]]
Consumer Electronics Retail Coalition (CERC)
Control Technology Inc.
Corporate Radiation Safety and Dangerous Goods Transport (Siemens)
Council on Safe Transport of Hazardous Articles (COSTHA)
Covidien
CTIA--The Wireless Association
Dangerous Goods Advisory Council (DGAC)
Dangerous Goods Trainers Association (DGTA)
Delphi Automotive (Delphi)
Delta Airlines (Delta)
Deutsche Post DHL (DHL)
DGM USA
Digital Europe
Embassy of Israel
Embassy of the Republic of Korea
Energizer Battery Manufacturing, Inc. (Energizer)
EnteroMedics, Inc.
Environmental Technology Council
European Portable Battery Association (EPBA)
European Union
Express Association of America (EAA)
Fedco Electronics, Inc. (FedCo)
FedEX Express (FedEx)
Garmin International, Inc. (Garmin)
GE Corporation (GE)
GRC Wireless Recycling (GRC)
Greatbatch, Inc.
Hephner TV & Electronics
Hitachi Maxell, Ltd.
Horizon Air
International Air Transport Association (IATA)
Infinite Power Solutions, Inc.
Information Technology Industry Council (ITI)
Infotrac
International Federation of Airline Pilots Associations (IFALPA)
The Japan Electrical Manufacturer's Association (JEMA)
Japan Electronics & Information Technology Industries Association
(JEITA)
Japan Machinery Center for Trade and Investment (JMC)
Johnson Controls
Korea International Trade Association (KITA), the Korea Electronics
Association (KEA), and the Battery R&D Association of Korea (KORBA)
Learjet Inc.
Leroy Bennet
Lifescan, Inc. and Animas Corporation
Lithium Battery Industry Coalition
Medical Device Manufacturers Association (MDMA)
Medtronic, Inc.
Mercedes-Benz USA, LLC
MicroSun Technologies LLC
Motorola, Inc.
National Association of Manufacturers (NAM)
National Fire Protection Association (NFPA)
National Funeral Directors Association (NFDA)
The National Industrial Transportation League (NITL)
National Retail Federation (NRF)
National Transportation Safety Board (NTSB)
National Electrical Manufacturers Association (NEMA)
NetApp, Inc.
Nexergy
National Institute of Standards and Technology/US Department of
Commerce (on behalf of Japan and on behalf of Korea)
Nokia Inc.
The North American Automotive Hazmat Action Committee (NAAHAC)
Northern Air Cargo (NAC)
Olympus Corporation of the Americas (Olympus)
Organ Recovery Systems, Inc.
Palladium Energy
Panasonic Corporation of America (Panasonic)
Photo Marketing Association
Quallion LLC (Quallion)
RadioShack Corporation
Recharge
The Rechargeable Battery Association (PRBA)
Rechargeable Battery Recycling Corporation (RBRC)
Rep. Don Young
Rep. John Mica
Rep. Robert E. Latta
Retail Industry Leaders Association (RILA)
Rockwell Automation
Rose Electronics Distributing Company
Saft
Small Business Administration Office of Advocacy (SBA)
Security Industry Association
Southwest Airlines, Co. (Southwest)
Sprint Nextel Corporation (Sprint)
SRICI Testing Center
St. Jude Medical, Inc.
SureFire LLC
Techtronic Industries (TTi)
The International Air Cargo Association (TIACA)
TNR Technical, Inc.
Transportation Intermediaries Association (TIA)
Transportation Trades Department AFL-CIO (TDD)
Troy Rank
Tyco Electronics
Tyco International
United Parcel Service (UPS)
United Technologies Corporation (UTC)
URS Corporation (URS)
US Chamber of Commerce
III. Section-by-Section Review
A. Part 171
Section 171.8 Definitions
In the NPRM, PHMSA proposed to remove, add and amend a number of
definitions applicable to lithium batteries, as follows:
1. Remove the definition for ``equivalent lithium content'' and
replace that term with ``Watt-hour'' consistent with the UN Manual of
Tests and Criteria. Commenters supported the proposed addition of the
term ``Watt-hour'' in place of ``equivalent lithium content'' as a
method to measure the size of lithium ion cells and batteries.
3. Provide separate definitions for ``lithium metal cell or
battery'' and ``lithium ion cell or battery'' in order to differentiate
between the different lithium battery chemistries, and a definition of
``Short circuit'' consistent with the 5th revised edition of the UN
Manual of Tests and Criteria, Amendment 1 and revise the definitions of
``Aggregate lithium content'' and ``Lithium content'' also consistent
with the 5th revised edition of the UN Manual of Tests and Criteria,
Amendment 1. PHMSA did not receive any negative comments regarding
these proposed changes.
In this final rule, we are adding definitions for ``Lithium ion
cell or battery,'' ``Lithium metal cell or battery,'' ``Short circuit''
and ``Watt-hour'' as proposed. We are removing the present definitions
of ``aggregate lithium content,'' ``equivalent lithium content,'' and
``lithium content.'' The explanation of the size or energy of a cell or
battery is being incorporated into the definition of lithium metal cell
or battery and lithium ion cell or battery. The term ``Aggregate
lithium content'' is not used in the HMR.
Section 171.21 Assistance in Investigations
In Sec. 171.21, PHMSA requires a shipper, carrier, package owner,
package manufacturer or certifier, repair facility, or person reporting
a hazardous materials transportation incident to provide assistance to
authorized representatives of the Department of Transportation
investigating the incident. In the NPRM, PHMSA proposed to specifically
require such persons to provide reasonable access to a damaged package
or article involved in a transportation incident. PHMSA proposed these
revisions in response to NTSB Recommendation A-07-107 that recommends
retaining failed lithium batteries or devices for further analysis.
After an incident, often the only evidence provided to PHMSA and the
FAA is a written incident report, and in some instances, pictures of
the involved package or article. In some cases, analysis of the damaged
article may reveal the cause of the incident.
NEMA supported this proposal and suggested that, if this
requirement had been in place earlier, PHMSA and the FAA would possess
more information regarding the causes of many of the lithium battery
incidents cited in the NPRM. UPS and URS request clarification on the
phrases ``reasonable access'' and ``if available,'' noting that the
term ``reasonable'' is not defined. NAC raised environmental and safety
concerns associated with the storage of hazardous materials in the
workplace. NTSB stated that PHMSA could significantly improve the NPRM
if
[[Page 46016]]
retention and analysis of failed batteries and equipment were required.
After reading the comments and reexamining the proposal, we
concluded that the regulations as currently written already meet the
intent of recommendation A-07-107. Specifically Sec. Sec. 109.3 and
109.9 permit a designated agent of the U.S. DOT to gather information
in support of an investigation and direct a package to be transported
to a facility for examination to evaluate whether the package conforms
to the appropriate requirements. Based on the particular circumstances
involved in an incident investigation PHMSA may decide to examine
failed batteries or devices. In the case of lithium batteries, the
decision about whether PHMSA will retain and examine the remains of a
lithium battery incident depend on the condition of the package or
article involved in the incident (e.g., where did the incident occur,
did the incident involve other packages, are there sufficient remains
to examine, can the cause be determined based on other evidence?) PHMSA
uses this information to conduct follow-up investigations as necessary.
Sections 171.12, 171.22, 171.23, 171.24, 171.25 Use of International
Standards and Regulations
The HMR, ICAO Technical Instructions, IMDG Code, and the Transport
Canada TDG Regulations are based on the UN Recommendations, which are
model regulations issued by the UN Committee of Experts on the
Transport of Dangerous Goods. The HMR, with certain conditions and
limitations, permit both domestic and international shipments of
hazardous materials to be offered for transportation and transported
under provisions of, the ICAO Technical Instructions, the IMDG Code and
the TDG Regulations as appropriate. In most cases where we allow
compliance with an alternative standard such as the ICAO Technical
Instructions or the IMDG Code, the level of safety is at least equal to
the HMR. However, in a limited number of situations additional
conditions or limitations are necessary consistent with the public
interest or are required to comply with other federal law. Examples of
these condition or limitations include but are not limited to: Approval
of Class 1 (explosive) materials; identification of hazardous
substances and hazardous wastes; and the prohibition on the transport
of lithium metal batteries by passenger aircraft.
In the NPRM, PHMSA proposed more stringent requirements than the
ICAO Technical Instructions and the IMDG Code that were effective at
the time the NPRM was published. Most commenters strongly recommended
that we adopt the standards set forth in the ICAO Technical
Instructions and the IMDG code, rather than the more stringent
requirements proposed in the NPRM. These commenters contended that the
proposed amendments would create confusion, decrease compliance, and
negatively impact safety throughout the supply chain. Since the NPRM
was published, the ICAO Technical Instructions have been revised
several times and provide additional protections not found in the
current HMR including a reduction in the number of batteries permitted
in a package, employee training and explicit hazard communication.
Accordingly, we would be continuing to allow a lower level of safety
for the domestic transportation of lithium cells and batteries if we do
not harmonize the HMR with the 2013-2014 ICAO Technical Instructions.
DGAC noted the provisions in the proposed Sec. 171.12(a)(6)(i)
would effectively impose less stringent requirements for shipments
originating in Canada than PHMSA proposed for domestic shipments by
rail or highway. PHMSA intends all lithium batteries offered for
transport to, from, or through the United States in accordance with the
Canadian TDG regulations to also comply with the appropriate
requirements of the HMR.
Based on those comments received, and our analysis of the
requirements of the 2013-2014 ICAO Technical Instructions, we are
adopting into the HMR requirements consistent with 2013-2014 ICAO
Technical Instructions, the 17th revised edition of the UN Model
Regulations, the 5th Revised Edition of the UN Manual of Tests and
Criteria Amendment 1, and Amendment 36-12 of the IMDG Code. In this
final rule, we are amending Sec. Sec. 171.12, 171.24 and 171.25 to
reflect the revised proper shipping names for lithium metal batteries,
already found in the ICAO Technical Instructions and the IMDG Code and
we will maintain the current prohibition on the transport of lithium
metal batteries aboard passenger aircraft.
B. Part 172
Section 172.101 Hazardous Materials Table
At present, the Hazardous Materials Table (HMT) in Sec. 172.101
contains three entries for lithium batteries. (1) Lithium battery
(UN3090), (2) Lithium batteries, contained in equipment (UN3091), and
(3) Lithium batteries packed with equipment (UN3091). In the NPRM we
proposed to adopt separate entries for lithium metal and lithium ion
batteries (including lithium metal and lithium ion batteries packed
with, or contained in, equipment) to be consistent with the UN Model
Regulations, the ICAO Technical Instructions and the IMDG Code.
Commenters to the NPRM supported the clarification brought by the
separate shipping descriptions. In this final rule, PHMSA is adopting
the new HMT entries shown in the chart below:
Lithium ion batteries including lithium ion polymer UN3480, 9, II
batteries.
Lithium ion batteries contained in equipment UN3481, 9, II
including lithium ion polymer batteries.
Lithium ion batteries packed with equipment UN3481, 9, II
including lithium ion polymer batteries.
Lithium metal batteries including lithium alloy UN3090, 9, II
batteries.
Lithium metal batteries contained in equipment UN3091, 9, II
including lithium alloy batteries.
Lithium metal batteries packed with equipment UN3091, 9, II
including lithium alloy batteries.
DGAC and IATA asked PHMSA to clarify the quantity limits for
lithium batteries packed with, or contained in, equipment. DGAC
recommended that PHMSA clarify that the mass limit applies to the mass
of batteries in or with equipment, excluding the weight of the
accompanying equipment and packaging. IATA requested that PHMSA align
the quantity limits shown in column 9 of the hazardous materials table
with respect to batteries contained in equipment with the ICAO
Technical Instructions. The aircraft quantity limits for lithium
batteries including lithium batteries packed with, or contained in,
equipment in this final rule are aligned with package limits described
in the 2013-2014 ICAO Technical Instructions.
Section 172.102 Special Provisions
Section 172.102 contains special provisions applicable to the
transportation of specific hazardous materials. In this final rule,
PHMSA is
[[Page 46017]]
removing and revising several special provisions as follows:
Special Provision 29
Special provision 29 outlines provisions for the transport of low
production runs of lithium batteries. As proposed in the NPRM, PHMSA is
deleting special provision 29 and combining the transport provisions
for low production runs with the transport provisions for prototype
lithium batteries into Sec. 173.185(e). See the detailed discussion of
the revisions to Sec. 173.185 below.
Special Provision 134
Special provision 134 applies to vehicles powered by wet batteries,
sodium batteries, or lithium batteries and equipment powered by wet
batteries or sodium batteries that are transported with these batteries
installed. In this final rule, PHMSA is revising special provision 134
to reflect the adoption of separate shipping descriptions for lithium
ion batteries and lithium metal batteries.
Special Provisions 188, 189
Special provisions 188 and 189 contain transport provisions for
``small'' and ``medium'' lithium cells and batteries. These provisions
are being revised and moved to Sec. 173.185(c). Consequently, in this
final rule, PHMSA is deleting special provisions 188 and 189. See the
detailed discussion of the revisions to Sec. 173.185 below.
Special Provision 190
Special provision 190 contains transitional provisions enacted in a
previous rulemaking pertaining to lithium batteries published August 9,
2007 (72 FR 44930). The transition period shown in special provision
190 has expired and is it no longer effective. In this final rule,
PHMSA is deleting special provision 190.
Special Provision 328
Special provision 328 applies to fuel cell systems that also
contain lithium batteries. In this final rule, PHMSA is revising this
special provision to reflect the adoption of separate shipping
descriptions for lithium ion batteries and lithium metal batteries.
Special Provision A51
Special provision A51 applies to the air transport of aircraft
batteries, including lithium ion batteries. In this final rule, PHMSA
is revising this special provision to reflect the adoption of separate
shipping descriptions for lithium ion batteries and lithium metal
batteries.
Special Provision A54
Special provision A54 requires a competent authority approval if
the mass of a lithium battery exceeds the quantity limit specified in
Column 9B for the HMT. In this final rule, PHMSA is revising this
provision slightly to maintain consistency with the ICAO Technical
Instructions.
Special Provision A55
Special provision A55 outlines conditions for the air transport of
prototype lithium batteries. PHMSA is deleting special provision A55
and combining the transport provisions for low production runs with the
transport provisions for prototype lithium batteries into Sec.
173.185(e). See the detailed discussion of the revisions to Sec.
173.185, below.
Special Provision A100
Special provision A100 prohibits the transport of lithium metal
batteries aboard passenger carrying aircraft and permits the transport
of up to 5kg of lithium ion batteries aboard passenger aircraft. In
this final rule, PHMSA is adopting separate HMT entries for lithium
metal batteries and lithium ion batteries. With the adoption of
separate HMT entries for lithium metal and lithium ion batteries, this
special provision is no longer necessary and is deleted.
Special Provision A101
Special provision A101 outlines the conditions and limitations on
the air transport of lithium metal and lithium ion batteries packed
with or contained in equipment. In this final rule, PHMSA is revising
this special provision consistent with comparable provisions in the
ICAO Technical Instructions applicable to lithium metal batteries
packed with or contained in equipment.
Special Provision A103 And A104
Special provisions A103 and A104 prescribe quantity limits for
lithium ion batteries packed with or contained in equipment. In this
final rule, PHMSA is adopting separate HMT entries for lithium metal
batteries and lithium ion batteries. With the adoption of separate HMT
entries for lithium metal and lithium ion batteries, these special
provisions are no longer necessary and are deleted.
C. Part 173
Section 173.185 Lithium Cells and Batteries
In Sec. 173.185, PHMSA sets forth packaging requirements and
certain conditional exceptions for the transport of lithium batteries.
As discussed above, other conditions and exceptions are located in
special provisions in Sec. 172.102. In the NPRM, PHMSA proposed to
consolidate into a single section provisions for the packaging of
lithium batteries primarily by relocating relevant requirements
currently located in special provisions to Sec. 173.185. Unless
otherwise specified in this section, the hazard communication and
training requirements located in part 172 of this subchapter will
continue to apply to the transport of lithium cells and batteries.
Most commenters, including AHS, BAJ, COSTHA, UPS, and NAC supported
the consolidation of lithium battery requirements into one section.
Other commenters, including Delphi and NEMA supported the efforts to
consolidate the lithium battery provisions into a single, easily
referenced section, but suggested that this can only work if PHMSA
harmonizes the HMR with international regulatory approaches.
In this final rule, PHMSA is consolidating into Sec. 173.185 the
general requirements for lithium batteries including UN design testing
requirements, packaging requirements, and other transport conditions.
Based on the provisions outlined in the ICAO Technical Instructions,
the UN Model Regulation, and the IMDG Code, we are reorganizing this
section by:
Keeping the design testing and general safety requirements
in paragraph (a) and adding a requirement to create and retain records
of successful testing.
Consolidating in paragraph (b) the packaging requirements
for lithium cells and batteries, including cells or batteries packaged
with, or contained in, equipment, when these items are shipped as Class
9 materials, including the provision in current paragraph (h) for
shipping larger batteries (exceeding 12 kg (26.5 lbs in weight)).
Placing exceptions for smaller lithium cells and batteries
in paragraph (c).
Revising paragraph (d), covering cells and batteries
shipped for disposal or recycling, and consolidating in paragraph (e)
provisions covering shipments of both low production runs and prototype
cells or batteries.
Adding provisions for shipping damaged, defective, or
recalled batteries in paragraph (f).
Moving to paragraph (g) the provision in current paragraph
(f) for approval of transportation of a lithium cell or battery that
does not comply with requirements in the HMR.
[[Page 46018]]
(a) Classification
In Sec. 173.185(a), the HMR describe the requirements for
transporting cells and batteries as a Class 9 material. These
requirements include UN battery design testing, general battery design
safety requirements, and packaging requirements. In the NPRM, we
proposed to incorporate by reference the 5th revised edition of the UN
Manual of Tests and Criteria and add (1) specific criteria for when
testing of a ``different design'' would be required, and (2) a
requirement for a manufacturer to maintain evidence of successful
completion of required tests. We also sought comments on the benefits
of requiring a quality mark, which would signify compliance with the UN
battery design tests, to appear on the outside of the battery case.
Test requirements and exemption for existing designs.
PHMSA adopted the fifth revised edition of the UN Manual of Tests
and Criteria in the January 19, 2011 final rule (HM-215K) and Amendment
1 thereto in the January 7, 2013 final rule (HM-215L). Commenters
including Saft and UPS supported adopting the updated testing standards
in the 5th revised edition, but expressed concern that absent any
exemption provision addressing cells and batteries qualified under
prior versions of the UN tests, it would appear that all cell and
battery designs would need to be retested.
PHMSA agrees with Saft's recommendation to allow the continued
transport of lithium cells and batteries tested under the prior
versions of the UN tests. In this final rule, we are adding a reference
to the 5th revised edition Amendment 1 of the UN Manual of Tests and
Criteria and permit the continued transportation, without retesting, of
lithium cell and battery designs that were tested in accordance with
the version of the UN Manual of Tests and Criteria effective when the
cell/battery was first transported.
In the 5th revised edition of the UN Manual of Tests and Criteria,
Amendment 1, the criteria for batteries different from a tested type
were revised to provide a non-exhaustive list of changes to a lithium
battery or cell design that could be expected to ``materially affect
the test results'' and require further testing. In the NPRM, PHMSA had
proposed a separate list of changes that might lead to a failure of any
of the tests would have constituted a design change requiring a
manufacturer to subject a lithium battery design to the appropriate
tests. The proposed changes would have been more conservative than
those provisions adopted in the 5th Revised edition of the UN Manual of
Tests and Criteria and would have included: any change to (1) the
anode, cathode, or electrolyte material; (2) protective devices
including hardware or software; (3) the safety design of the cells,
such as the safety vent; (4) the number of component cells; or (5) the
connecting mode of the component cells.
PHMSA received mixed responses from commenters on this proposal.
Some commenters supported the proposed changes, suggesting the examples
provide useful clarification. Several comments from lithium battery and
equipment manufacturers and other groups representing the battery
industry and small business interests questioned the basis for proposed
modifications to the design change criteria and the benefit of the
specific criteria. They stated that changes that could influence safety
vary and are not limited to the provided examples; conversely, certain
changes on the proposed list may not always materially affect the test
results. These commenters asked PHMSA to retain the design change
requirements outlined in the UN Manual of Tests and Criteria.
In this final rule, we are not adopting the text proposed in the
NPRM. The provisions outlined in the 5th Revised Amendment 1 of UN
Manual of Tests and Criteria provide sufficient guidance to make
testing determinations; PHMSA will continue to study this matter and
stresses the importance of testing after any material modifications in
the design or manufacturing.
Test record requirements.
The UN Model Regulations and the ICAO Technical Instructions
require lithium cells and batteries (including lithium cells and
batteries packed with, or contained in, equipment) offered for
transport to be manufactured under a quality management program (QMP)
that includes: (1) A description of the organizational structure and
responsibilities of personnel with regard to design and product
quality; (2) the relevant inspection and test, quality control, quality
assurance, and process operation instructions that will be used; (3)
process controls that should include relevant activities to prevent and
detect internal short circuit failure during manufacture of cells; (4)
quality records, such as inspection reports, test data, calibration
data, and certificates. Test data must be kept and made available to
the appropriate national authority upon request; (5) management reviews
to ensure the effective operation of the quality management program;
(6) a process for control of documents and their revision; (7) a means
for control of cells or batteries that are not conforming to the type
tested; (8) training programs and qualification procedures for relevant
personnel; and (9) procedures to ensure there is no damage to the final
product.
We are not adopting the requirement for lithium batteries to be
manufactured in accordance with a quality management program in this
final rule. We have not fully assessed the impact of requiring each
cell and battery manufacturer to create and maintain such a program.
However, since quality control in manufacturing is an important
prerequisite to ensuring the safe transport of lithium batteries, we
intend to initiate a separate rulemaking project to consider adopting
additional portions of the QMP. Meanwhile, we encourage manufacturers
to use good practices for ensuring consistency in manufacturing such as
those found in the UN Model Regulations and the ICAO Technical
Instructions.
At this time, we are adopting, as proposed and consistent with good
quality management practices, a requirement for manufacturers to retain
evidence of a successful completion of the UN design tests, for as long
as they offer that battery design for transportation, and for one year
thereafter. Manufacturers would be required to maintain this evidence
in a readily accessible location at the principal place of business,
for as long as the lithium batteries are offered for transportation in
commerce, and for one year thereafter. Each person required to maintain
this evidence must make it available at reasonable times and locations.
This requirement would apply to all new cells and batteries
manufactured after the effective date of this final rule. Commenters
were generally supportive of this change.
UPS stated that a person could construe the proposed record-
retention requirement as conditioning the length of the record-
retention period upon the manufacturer's offering of the lithium cell
or battery for transportation, or such a transportation offering by any
other person. Accordingly, we are adopting the suggestion of UPS to
provide in Sec. 173.185(a)(2) that ``Each person who manufactures
lithium cells or batteries must create a record of satisfactory
completion of the testing prior to offering the lithium cell or battery
for transport and must: (1) maintain this record for as long as that
design is offered for transportation and for one year thereafter, and
(2) make this record available to an authorized representative of the
Federal, state or local government upon request.
[[Page 46019]]
NEMA and PRBA questioned PHMSA's assumptions and analysis on
information collection costs for the creation of battery design testing
records. NEMA stated that a design drawing for a simple battery pack
adequate for use in any reasonable quality system takes 8-16 hours of a
skilled draftsman, along with a few hours of engineering support, and
both types of employees earn more than $25 per hour. The commenter
further stated that even the smallest assembler has more than 10
designs and major companies have hundreds of designs. However, this
final rule does not require a lithium battery manufacturer to generate
engineering drawings or extensive documentation. While the commenter
notes that a battery assembler may have various designs, the commenter
did not elaborate on whether each of these designs would require
separate testing and documentation in accordance with the requirements
for the UN Manual of Tests and Criteria.
This final rule requires manufacturers to retain evidence of
successful completion of the required tests, for as long as they
manufacture that battery design and for one year thereafter. This
evidence must also be made available to an authorized representative of
the federal, State or local government, upon request. PHMSA is
adjusting its information collection burdens for the creation and
retention of records of completion of design testing requirements.
PHMSA estimates the burden of generating and retaining documentation
that certifies compliance with the UN Manual of Tests and Criteria
based upon an assumption that there are 110 active lithium battery
manufacturers, which produce an average of 10 designs each, and that
each design requires approximately 30 minutes of design records to be
generated and documented. This produces an industry total of 550 hours.
General safety requirements.
The HMR require lithium batteries to be equipped with certain
safety features such as safety venting devices and diodes or fuses if a
battery contains cells or series of cells that are connected in
parallel. These provisions (currently in Sec. 173.185(a)(2) and
(a)(3)) are being combined into a single sub-paragraph (a)(3).
Marking of Watt-hour rating on lithium ion batteries.
We are adding a requirement in paragraph (c)(1)(i) that each small
lithium ion battery manufactured after December 31, 2015, to be marked
with the Watt-hour rating on the outside case. This action is
consistent with requirements found in the UN Model Regulations, the
ICAO Technical Instructions and the IMDG Code since 2009. Incorporating
this provision into the HMR ensures greater consistency between the HMR
and the international regulatory standards. As previously mentioned,
this requirement has been in effect in the UN Model Regulations, the
ICAO Technical Instructions and the IMDG code for several years, we do
not anticipate substantial impact in complying with this requirement.
Marking cells and batteries to indicate successful
testing.
In the NPRM, PHMSA stated that it was considering requiring the
presence of a visible quality mark on the outside case of each cell or
battery to signify successful completion of the required lithium
battery design tests in a readily recognizable manner. The proposal was
intended to promote knowledge of the UN tests throughout the world and
provide downstream shippers with a straightforward means of identifying
lithium batteries that meet applicable UN testing standards.
PHMSA received supportive comments from ALPA, TDD, and air carriers
stating this would provide useful information for shippers to determine
if cells and batteries were properly tested prior to offering them into
transport. Most commenters questioned the benefit of an additional mark
on batteries already marked in compliance with other bodies such as
Underwriters Laboratory. Several other commenters stated that the
presence of an additional symbol in no way affects the likelihood that
a particular battery complies with the UN testing provisions, and posed
problems since the mark could be counterfeited. Several air carriers
commented that carriers should not be expected to look inside packages
or devices to see if a mark is present. Until a universally recognized
quality mark is established, and the obstacles to implementing such a
system are overcome, PHMSA will not propose to require such a mark.
Liquid cathode cells.
PHMSA also proposed to retain the longstanding prohibition in
current Sec. 173.185(a)(6) forbidding the transport of certain liquid
cathode cells when discharged to less than 2 volts or 2/3 the voltage
of the fully charged cell, except when transported for disposal or
recycling. Saft states that this prohibition does not exist in the UN
Model Regulations or the IMDG Code. It states the ICAO Dangerous Goods
Panel (DGP) removed this provision from the ICAO Technical Instructions
effective January 1, 2011 based on improvements to lithium battery
manufacturing and the addition of a forced discharge test to the UN
design testing requirements that eliminate the need for this now
outdated provision. We agree that there is no longer any need for this
provision, and it is being removed.
(b) Packaging of Class 9 Materials
The HMR currently require lithium cells and batteries to be packed
in inner packagings in such a manner as to prevent short circuits,
including movement which could lead to short circuits. These inner
packaging must be placed in an outer package conforming to the
requirements of part 178, subparts L and M, at the Packing Group II
performance level. The HMR also require that lithium cells or batteries
packed with equipment and lithium cells or batteries contained in
equipment must be: (1) Of a design that meets the UN tests; (2) packed
to prevent short circuits; and (3) packed in UN-performance packagings
and the equipment and the packaged cells or batteries contained in a
strong outer package.
In the NPRM, PHMSA proposed to continue these requirements but
consolidate in paragraph (b) all the packaging requirements for lithium
cells and batteries shipped as a Class 9 material, including cells and
batteries packed with, or contained in, equipment. Three commenters,
DGAC, IATA, and COSTHA, appear to have interpreted the proposals in the
NPRM to except lithium batteries packed with equipment from the
specification packaging requirements not covered by an exception. This
was not our intent. Lithium batteries packed with equipment that
otherwise do not meet the criteria for an exception must be placed into
a suitable UN standard packaging that meets the Packing Group II
performance level consistent with the UN Model Regulations, the IMDG
Code, and ICAO Technical Instructions.
The HMR also currently require lithium battery powered equipment to
be placed into a strong outer packaging that is waterproof or is made
waterproof by nature of its construction. NAM and Delphi suggested
removing this requirement. They state that waterproof packaging
requirements for equipment containing lithium ion or lithium metal
batteries regardless of mode of transportation (air, rail, highway, and
water) are onerous and inconsistent with the UN Model Regulations, the
ICAO Technical Instructions, and the IMDG Code. Covidien requests
clarification of the word ``waterproof'' and requests that PHMSA
acknowledge in its review that the concept of ``waterproof'' should be
a risk-based
[[Page 46020]]
determination tied to international approaches, rather than an absolute
concept. Since this requirement does not appear in the UN Model
Regulations, the ICAO Technical Instructions or the IMDG Code, and
there is no clear basis for this requirement in the HMR, PHMSA is
removing this requirement.
Saft states the requirement that lithium batteries be packed in
combination packages that meet the packing group II performance
standards appears inconsistent with the provision in current Sec.
173.185(g) allowing batteries that exceed 12 kg gross weight and are
equipped with a strong, impact-resistant, outer casing currently to be
packaged in a strong outer packaging in a protective enclosure. For
clarity, PHMSA is moving this separate packaging provision to paragraph
(b)(5) under the Class 9 packaging requirements.
In this final rule, PHMSA is harmonizing the packaging requirements
applicable to lithium batteries packed with equipment and lithium
batteries contained in equipment with the UN Model Regulations, the
ICAO Technical Instructions and the IMDG Code. When packed with
equipment, the lithium battery must be placed into an authorized
package that meets the Packing Group II performance level, or the
battery must be placed into a suitable inner packaging then placed with
the equipment into a suitable outer package that meets the Packing
Group II performance level. The packaging requirements for lithium
cells and batteries, including lithium cells and batteries packed with,
or contained in, equipment, are contained in a single paragraph (b).
Paragraph (b)(1) includes a reference to the general packaging
requirements in Sec. Sec. 173.24 and 173.24a applicable to all
hazardous materials, and a definition of the term ``equipment,'' as it
is used in this section. Paragraph (b)(2) includes provisions specific
to lithium batteries such as packaging to prevent short circuits,
sparks, or the generation of a dangerous amount of heat movement within
the package. Paragraph (b)(3) sets forth packaging requirements for
lithium cells and batteries not contained in equipment (i.e., packages
of batteries, and batteries packed with equipment). These are specific
requirements applicable to only these configurations including a
requirement that inner packaging completely enclose the cell or battery
and the authorized UN outer packagings. Paragraph (b)(4) includes the
unique additional requirements applicable to lithium batteries
contained in equipment, including a requirement that equipment be
protected from accidental activation and providing an exception from UN
packaging. Paragraph (b)(5) includes a provision for packaging lithium
batteries and assemblies of batteries with a gross weight greater than
12 kg (26.5 lbs) that employ a strong impact resistant outer casing
which was formerly located in Sec. 173.185(g).
(c) Exceptions
As discussed above, special provisions 188 and 189 currently
provide provisions for ``small'' and (for rail or highway only)
``medium'' lithium metal and lithium ion cells and batteries,
respectively, provided they meet the design tests outlined in the UN
Manual of Tests and Criteria, and are packed in a strong outer package
in a manner that prevents short circuits and damage.\5\ Each package
containing more than 24 lithium cells or 12 lithium batteries must: (1)
Be marked to indicate that it contains lithium batteries and that
special procedures are to be followed if the package is known to be
damaged; (2) be accompanied by a document indicating that the package
contains lithium batteries and that special procedures are to be
followed if the package is known to be damaged; (3) weigh no more than
30 kilograms; and (4) be capable of withstanding a 1.2 meter drop test,
in any orientation, without shifting of the contents that would allow
short-circuiting or release of package contents.
---------------------------------------------------------------------------
\5\ A ``small'' lithium cell or battery may not contain more
than 1 gram per lithium metal per cell, 2 grams lithium metal
battery or 1.5 grams ELC per lithium ion cell, 8 grams ELC per
lithium ion battery. A ``medium'' lithium cell or battery may only
metal lithium 1 gram and 5 grams per cell and between 5 grams and 25
grams per battery or, for a lithium ion cell or battery, ELC between
1.5 grams and 5 grams per lithium ion cell and ELC between 8 grams
and 25 grams.
---------------------------------------------------------------------------
In the NPRM, PHMSA proposed to:
Create a new exception for extremely small batteries with
very low energy (i.e. 0.3 grams lithium content for lithium metal or
3.7 Wh for lithium ion) when packed with or contained in equipment. We
additionally requested comment on an exception for lithium batteries
shipped at a reduced state of charge. PHMSA based the 0.3 gram or 3.7
Wh thresholds on the energy levels found in common coin or button
cells.
Eliminate the current exceptions for the air transport of
small lithium cells and batteries, including small cells and batteries
packed with or contained in equipment. Thus when transported by air,
all lithium cells and batteries would be regulated in the same manner
regardless of their size;
Restrict exceptions for surface transport consistent with
the UN Model Regulations and the IMDG Code.
[cir] Highway, rail and vessel shipments of ``small'' cells/
batteries would be excepted from shipping paper, marking and labeling
requirements;
[cir] Shipments of ``medium'' cells/batteries would be restricted
to highway and rail only;
[cir] Packages containing more than 8 lithium cells or 2 lithium
batteries would be subject to package marks indicating presence of
lithium batteries and special procedures to follow if package damaged,
an accompanying shipping document, a 1.2 meter drop test and 30 kg per
package weight limit;
Recent revisions to the ICAO Technical Instructions include
provisions for extremely small lithium metal cells and batteries
containing less than 0.3 grams of lithium metal, lithium ion cells and
batteries less than 2.7 Wh, and an exception from button cells
installed in equipment, such as circuit boards. We also expect that
implantable medical devices would be covered under this exception.
PHMSA is revising the HMR consistent with these exceptions.
Other changes that became effective in the 2013-2014 ICAO Technical
Instructions concerned small lithium cells and batteries that by virtue
of their size, were previously afforded exceptions from most
requirements. The revisions now effective in the ICAO Technical
Instructions require: (1) Each package that contains more than 8 small
lithium cells or two small lithium batteries display a Class 9 hazard
warning label in addition to the lithium battery handling label; (2)
shipping papers accompany the shipment, unless the shipper provides
alternative written documentation describing the shipment; (3)
formalized employee training and testing; (4) carrier acceptance
checks; and (5) pilot notification.
ACCO, PRBA, and BAJ stated that the very low threshold for
excepting batteries (0.3 g or 3.7 Wh) would provide little to no
assistance to shippers utilizing single cell batteries such as cellular
phones and other consumer electronic devices that generally fall in the
range of 4-6 Wh. Alaska Airlines, A4A, NAC and NEMA questioned the
basis for the proposed battery size limits and raised concern regarding
the effects of proposing additional requirements not contained in the
ICAO Technical Instructions. Other commenters stated that the exception
is unnecessarily restrictive. Garmin considers devices containing
lithium batteries such as cellular phones and MP3 players as posing no
danger of
[[Page 46021]]
accidental external short circuiting. The commenter stated that the
physical structure of these devices, the custom packaging for spare
batteries, and the recessed nature of battery terminals all effectively
mitigate short circuit hazards in transport. Digital Europe requests
PHMSA align with the ICAO Technical Instructions that except lithium
button cells installed in equipment from certain marking requirements.
IFALPA, ALPA, NFPA, and NTSB supported PHMSA's original proposal to
otherwise eliminate regulatory exceptions for lithium batteries in air
transportation, including the introduction of requirements for hazard
labeling, packaging, training, and the inclusion of lithium battery
shipments on the notice to the pilot in command. These commenters
support subjecting all lithium batteries to the same requirements,
regardless of size. They stated that this will improve hazard
communication, reduce battery incidents through enhanced training, and
provide pilots with knowledge of the size, location, and the quantity
of lithium battery shipments that will assist flight crew decision
making during an in-flight emergency. NFPA stated that the proposed
measures included in the NPRM provide more complete information, in a
more consistent manner, for access by the transporter as well as the
emergency responders, when necessary. In their comments to the NPRM,
the NTSB stated that cargo shipments of small lithium batteries should
be subject to the same packaging and identification requirements that
apply to medium and large lithium batteries to alert package handlers
to exercise greater care when loading and unloading packages containing
them. ALPA stated that hazardous materials have been safely transported
for decades under the HMR, and bringing lithium batteries fully into
this regulatory scheme would provide significant safety benefits. ALPA
goes on to say that by eliminating the regulatory exception for lithium
battery shipments, handlers will separate packages containing lithium
batteries from general freight, reducing the possibility of inadvertent
damage. These shipments would also be subject to an acceptance check by
airline personnel prior to placement in air transportation, including
inspection of the package to detect damaged or improperly prepared
packages.
Most other commenters opposed PHMSA's proposal to eliminate the
regulatory exceptions for the air transport of lithium batteries. AIAM,
COSTHA, DGM, EPBA, and IATA cited confusion and increased complexity
that would result from different requirements. ATA, Alaska Airlines,
CEA, Horizon Air, Korea, Panasonic, PRBA, and Saft did not accept
PHMSA's incident analysis as support for eliminating the regulatory
exceptions for lithium batteries. These commenters stated they are not
aware of any safety incidents involving the air transport of properly
packaged batteries, or batteries in compliance with existing
regulations. CIPA and Fedco added that new regulations will not enhance
compliance if shippers ignore them. TIACA stated that the incidents
cited for reasons of non-compliance raises calls for better
enforcement, rather than sweeping new regulations. The SBA recommended
that PHMSA conduct further outreach to the regulated community to
enhance dialogue, promote safety, and ensure harmonization.
Saft, Southwest, and others stated that PHMSA's decision to propose
different requirements for lithium batteries and lithium batteries
packed with, or contained in, equipment than those applied
internationally would actually detract from safety, because these
differences would create confusion and excessively complicate an
already complex set of regulations that apply to lithium battery
shipments. SBA and PRBA stated that the proposed rules would create
conflicting standards and require significant supply chain redesigns.
Lifescan, NAM, UPS, and others cite multimodal difficulties when the
U.S. HMR conflict with the other published regulations. They stated
that the provisions in the NPRM will cause such packages and devices to
be non-compliant upon entering the United States.
Other commenters stated that the imposition of more restrictive
U.S. requirements compared to the ICAO Technical Instructions would
have far-reaching adverse economic consequences. These commenters
stated that the elimination of the current exceptions would result in
burdensome administrative procedures, higher transportation costs, and
longer transportation time due to import and export barriers,
disruptions to air freight, and increased costs of packaging,
transport, and storage.
Some commenters cited the impacts of this proposal on their
industry sectors medical equipment and information technology. At the
March 5, 2010, public meeting, as well as in written comments, they
suggested that various aspects of the NPRM would inappropriately
subject medical devices to the HMR and requested that PHMSA except
finished medical devices from the HMR. The commenters stated that the
NPRM requirements would create severe disruptions to current shipping
practices and could threaten patient access to life-saving and life-
enhancing medical devices. These commenters further stressed the
difference between implantable medical devices regulated by the U.S.
Food and Drug Administration (FDA) and typical consumer products. They
stated that medical devices are already subject to additional controls
including registration of the manufacturing facilities, quality system
requirements, and post market surveillance and reporting. Devices that
pose a higher risk to a patient such as implantable medical devices
undergo an extensive FDA pre-market approval process to establish
reasonable assurance of safety and effectiveness of the device.
NAM stated that the NPRM is inconsistent with other national policy
goals because the rule would make the transport of large, advanced
batteries used for electric and hybrid vehicles and domestic energy
exploration more difficult and expensive. AT&T suggested that, if PHMSA
adopts the proposed rules, the wireless business would have to make a
dramatic shift to surface transport, which would not only delay the
delivery of products and services to enterprise business customers,
government agencies, and consumers, but also, more fundamentally, slow
the velocity of competition and innovation. Moreover, customer demands
would be met not only more slowly, but also unevenly. NetApp asserted
that PHMSA did not adequately assess the effects of the NPRM on U.S.
companies that manufacture and ship large equipment containing lithium
ion batteries. NetApp stated that the proposed regulation would
significantly impede their ability to meet customers' expedited
delivery requirements and place them at a disadvantage relative to
foreign manufacturers.
NEMA strongly recommended that PHMSA and its regulatory partners
take sufficient time to recognize the additional protection from short
circuit or other malfunction that equipment and additional packaging
provide to lithium batteries. NEMA suggested that PHMSA should except
equipment and devices containing or packed with lithium batteries from
full regulation under Class 9. RBRC stated that the limit on the number
of batteries that can be shipped in a single package with a piece of
equipment powered by lithium ion batteries (proposed subsections
173.185 (b) and (c))--would preclude the collection of used cellular
phones in
[[Page 46022]]
the same boxes with used lithium ion batteries.
In the NPRM, PHMSA proposed specific requirements for extremely
small batteries with very low energy (i.e. 0.3 grams lithium content
for lithium metal or 3.7 Wh for lithium ion) when packed with or
contained in equipment.
Trucking, Saft, Energizer, and the RBRC strongly opposed the
proposed elimination of the exception from the requirements of subpart
H (``Training'') of part 172 of the HMR for both ``small'' and
``medium'' batteries, regardless of the mode of transport. The
commenters state that removal of these exceptions will result in a very
significant increase in the costs associated with the supply of lithium
cells and batteries for many important applications--including medical,
military, security equipment, personal phones, computers, and other
electronic devices. GE Corporation (GE) requested that, if PHMSA does
impose training requirements on hazmat employees transporting small
lithium cells and batteries by ground, they be similar to those
outlined in the ICAO Technical Instructions for batteries since, in
most instances, lithium batteries will be the only type of hazardous
material shipped by the employees subject to these requirements. In
this final rule, PHMSA is not imposing specific training requirements
on shippers offering lithium batteries and battery powered devices for
surface transport that meet all of the applicable conditions of Sec.
173.185(c).
In this final rule, PHMSA will not eliminate provisions for the air
transport of small cells and batteries as originally proposed. Instead,
we will adopt the provisions outlined in the UN Model Regulations, the
ICAO Technical Instructions and the IMDG Code that permit the transport
of a up to 8 lithium cells or 2 small lithium batteries (less than 1
gram per lithium metal cell or 2 grams per lithium metal battery and 20
Wh per lithium ion cell or 100 Wh per lithium ion battery) including
small lithium batteries packed with, or contained in, equipment. We are
maintaining the current prohibition from transporting lithium metal
cells or batteries aboard passenger carrying aircraft (regardless of
size) when the cells and batteries are not packed with or contained in
equipment.
We will also continue to provide exceptions from the shipping
paper, marking, labeling, emergency response information, and training
requirements for the transport of small and medium sized batteries by
highway and rail only. Packages containing lithium cells and batteries
that meet the conditions of this exception must be marked ``LITHIUM
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT AND VESSEL.'' UPS
suggests text markings on packages are variable and provide limited
effectiveness. The commenter suggests a clear graphic marking will
assist in overcoming any English-language barriers that may be faced by
personnel loading aircraft or aircraft containers, especially when the
shipments involved are known to move very commonly in international
commerce. KITA, KEA, KORBA suggested that the proposed mark would
create confusion and further suggested that PHMSA permit the air
transport of lithium batteries consistent with the ICAO Technical
Instructions. NEMA stated that the existing international labeling
requirements, combined with those being proposed, would cause confusion
in multi-modal transport as well as cross-border ground transport. The
commenter further states that since these products are transported
several times, by several different modes, and cross international
borders during their journey, consistent international regulatory
approaches ensure compatibility and that transportation risks are
properly managed.
PHMSA does not expect the text mark required on packages as a
condition of this exception will cause confusion in multimodal or
international transport because this marking would apply only in
limited circumstances. The HMR would only require the additional text
marking for medium-sized lithium cells and batteries transported under
the exceptions permitted for highway and rail transport.
In the preamble to the NPRM, PHMSA noted that the ICAO Technical
Instructions require certain packages to display a lithium battery
handling label.\6\ This label conveys certain information including:
The presence of lithium batteries; the fact that a flammability hazard
exists if damaged; instructions to package handlers in case a package
is damaged; and a telephone number for additional information. In the
NPRM, PHMSA noted that the ICAO lithium battery handling label conveys
this information, and, while the HMR currently do not require the use
of the lithium battery handling label we permit its display because it
conveys the information required to appear on packages containing
lithium batteries. PRBA states that PHMSA's permission for shippers to
utilize the lithium battery handling label is misguided and would cause
greater confusion. PRBA states the lithium battery handling label was
adopted by ICAO to distinguish between shipments of fully-regulated
lithium batteries and shipments of lithium batteries offered under the
exceptions found in Packing Instructions 965-970 of the ICAO Technical
Instructions. PRBA contends that if PHMSA includes a provision in the
HMR that ``authorizes'' the use of the lithium battery handling label,
it would only further confuse shippers of these products and result in
greater non-compliance.
---------------------------------------------------------------------------
\6\ The 2013-2014 ICAO Technical Instructions refer to a
``lithium battery handling label.'' In this final rule, we use the
phrase ``lithium battery handling marking'' to distinguish it from
hazard warning labels described in Part 172, Subpart E.
---------------------------------------------------------------------------
The HMR require certain information to appear on packages
containing lithium batteries offered for transportation under the
various exceptions. This required information includes an indication of
the presence of lithium batteries and the special procedures that
should be followed if the package is damaged. PHMSA requires the
display of the lithium battery handling label for shipments transported
by aircraft, but still permits voluntary use of this label by all modes
on the basis that this label conveys the information required by the
HMR.
We note that the ICAO Technical Instructions and the IMDG code
differ in the quantity limits for small lithium batteries.
Specifically, the ICAO Technical Instructions limits a package to 8
small lithium cells or 2 small lithium batteries, but does not impose a
package mass limit. Conversely, the UN Model Regulations and the IMDG
code do not limit the number of cells or batteries that can be
contained in the package, but limits each package to 30 kg gross
weight. We do not expect this difference between in quantity limits
will pose significant difficulties because the cell and battery size
and quantity limit in the ICAO Technical Instructions effectively limit
the package weight in line with the surface modes (i.e. a package of
lithium cells or batteries properly packaged in accordance with the
packing instruction 965 or 968 of the ICAO Technical Instructions will
also meet the provisions of the IMDG Code special provision 188
including the 30 kg gross weight limit).
In the NPRM, PHMSA requested comment on whether it should adopt an
exception for batteries shipped at a reduced state of charge. ALPA
recognizes that the energy in a lithium ion battery and the intensity
of a fire involving that battery directly relates to its state of
charge and a lower state of charge reduces the risk posed by a battery
in transportation. However, ALPA expressed concern that incorporating
state of charge
[[Page 46023]]
requirements in the HMR will be nearly impossible to verify or enforce.
CERC stated that an exception for a reduced state of charge could not
feasibly work for retailers and the millions of annual shipments of
products to and from service centers. Additional commenters stated that
it would be impossible for used battery collection programs to know the
state of charge of each battery placed in collection boxes used at
schools, libraries, and federal and state buildings throughout the U.S.
Conversely, Quallion supported a limitation on state of charge for some
lithium ion cells and batteries shipped by air stating that shipping at
a lower state of charge further reduces the already-low risk of a fire
in the event of significant damage to properly packaged products. PRBA
states that such a limitation should not apply to batteries and
batteries packed with, or contained in, equipment shipped for military
or medical applications or batteries collected and shipped for
recycling. When batteries are packed with, or contained in equipment,
the limited additional benefit of mandatory reduced charge is overcome
by the need for these products to work immediately when they reach
their final destination. Due to its limited applicability and
difficulty to verify, PHMSA will not adopt an exception based on a
limited state of charge. However, when practical, PHMSA encourages
shippers and manufacturers to utilize all appropriate methods,
including shipping batteries at a reduced state of charge to help
mitigate the hazards associated with transporting lithium batteries.
PHMSA received several comments requesting exceptions from the HMR
based on battery chemistry or end use. For example, SureFire
recommended that PHMSA include exceptions for purposes of military,
first responder, medical, and other critical applications. Control
Technology Inc. stated that certain chemistries such as lithium iron
phosphate (LiFePO4) are much safer than competing technologies, which
pose far greater fire risks. Energizer requested that PHMSA except
lithium iron disulfide (LiFeS2) batteries from the HMR when
the batteries meet the existing requirements. This commenter cites a
lack of incidents and recognition of overall safety and quality.
Panasonic suggested that PHMSA except lithium manganese dioxide CR
cells and lithium carbon monofluoride BR cells from the Class 9
shipping requirements when the cells contain less than 1 gram lithium
metal and are proven to have satisfactorily completed the UN tests and
are properly packaged. The commenter added that these batteries are
produced on automated lines in the U.S., Japan, and Indonesia and
incorporate numerous safety features to ensure they are safe under
abuse conditions. The same commenter further stated that these
batteries are used in hundreds of applications ranging from acting as
the primary power source to providing power for memory back-up. While
PHMSA appreciates the extensive work already completed to create safer
batteries, the fact remains that lithium batteries still pose chemical
and electrical hazards. While certain chemistries may possess a greater
resistance to abuse, we do not agree that it is appropriate to create
exceptions based on specific chemistries or applications.
(d) Lithium Cells and Batteries Shipped for Disposal or Recycling
In the NPRM PHMSA proposed to continue the exception currently in
Sec. 173.185(d) from the UN design testing requirements and the UN
specification packaging requirements when lithium cells or batteries
are transported by motor vehicle for disposal or recycling. Shipments
of lithium batteries would continue to be subject to all other
applicable provisions of the HMR.
GRC expressed concern that the proposed revisions do not exclude
the responsibility for hazardous materials training for their
suppliers. GRC stated that training in accordance with part 172,
subpart H would be virtually impossible, given the nature of their
participating organizations and the number of collection sites that
include non-profits, schools, retailers, community groups, and
businesses. CEA contended that the proposals in the NPRM will
ultimately act as a disincentive for consumers to recycle responsibly.
RBRC stated that, for this rule to be successful there must be a
specific provision dealing with collection for recycling programs that
recognizes the simple fact that most used batteries collected are, by
their very nature, in a low state of charge.
PHMSA agrees with the commenters that the nature of the battery
recycling and disposal process very often make compliance with all HMR
requirements, including hazmat employee training, difficult and, in
many cases, unnecessary. However, PHMSA remains concerned that uneven
compliance with basic safety requirements, such as short circuit and
damage protection of lithium batteries, can lead to transportation
incidents as an increasing number of lithium and other high energy
batteries enter the waste and recycling stream. At the same time, PHMSA
recognizes the role that battery recycling and disposal industries play
in environmental stewardship.
In this final rule, PHMSA continues to provide exceptions from the
UN design testing requirements and the UN packaging requirements when
lithium cells and batteries (including lithium cells or batteries
contained in equipment) are transported by motor vehicle for disposal
or recycling. Further, we are excepting offerors and carriers from the
requirements for part 172, subparts C through H (shipping papers,
marking, labeling, placarding, emergency response information and
training) for appropriately packaged small and medium-sized lithium
batteries when such batteries are offered for transport by motor
vehicle to a permitted storage facility or for the purposes of
recycling.
(e) Low Production Runs and Prototypes
The HMR have separate but similar provisions for low production
runs and prototype lithium batteries in Sec. 172.102(c), special
provision 29, and Sec. 173.185(e), respectively. Both of these
provisions except lithium batteries from the UN battery design testing
requirements under certain conditions. As proposed in the NPRM, PHMSA
is combining in Sec. 173.185(e) the conditions for the transport of
low production runs and prototype lithium batteries that have not been
subjected to the appropriate UN design tests, consistent with the UN
Model Regulations.
Johnson Controls and Saft supported the exceptions for transporting
``prototype'' or ``low production runs'' of lithium cells or batteries.
In particular, Saft welcomed the proposed expansion of the current
text--which covers only prototypes--to also address the transport of
cells and batteries produced in low production runs as such action is
consistent with UN special provision 310. However, Saft asked PHMSA to
authorize transport by vessel consistent with the provisions of IMDG
Code special provision 310. PHMSA agrees with the commenter. Special
provision 310 of the IMDG code authorizes the vessel transport of low
production runs consisting of not more than 100 cells or batteries, or
to prototypes.
Saft also proposed adding a new paragraph to authorize non-
specification packaging for batteries employing a strong, impact-
resistant outer casing and exceeding a gross weight of 12 kg (26.5
pounds), and assemblies of such batteries when transported by highway
and rail. It stated that many of the newer prototype or low production
lithium
[[Page 46024]]
batteries are of such a size that use of UN standard packagings as
would otherwise be required would be impractical for the same reasons
that use of such packaging is impracticable for UN-tested batteries of
similar size.
PHMSA agrees such a provision would facilitate the transport of
large, robust lithium batteries without sacrificing safety. In this
final rule, we are adding a provision to authorize non-specification
packaging for low production and prototype lithium metal and lithium
ion batteries employing a strong, impact-resistant outer casing and
exceeding a gross weight of 12 kg (26.5 pounds), and assemblies of such
batteries. In this final rule PHMSA authorizes such packaging for
transport by highway, rail and vessel consistent with special provision
310 of the IMDG Code. PHMSA continues to forbid transport of lithium
batteries in these non-specification packages by passenger-carrying
aircraft and only permits transport by cargo air when approved by the
Associate Administrator prior to transport.
(f) Damaged Defective or Recalled Batteries
Lithium batteries and devices are returned to manufacturers and
retail outlets for a variety of reasons including product returns,
warranty fulfillment, repair, failure during field testing, or a
manufacturer recall. The HMR do not currently contain provisions for
transporting batteries subject to a manufacturer's recall or that are
damaged and potentially dangerous. Based on previously developed
guidance material and competent authority approvals, PHMSA will require
lithium batteries that have been damaged, identified as being
defective, or are otherwise being returned to the manufacturer for
safety reasons, to be packaged in combination packages, surrounded by
non-conductive cushioning material, and transported by highway or rail
only. PHMSA and the FAA would address situations requiring air
transport on a case-by-case basis by Approval.
Most commenters generally supported these proposals. However, they
expressed concern that the words ``damaged'' or ``defective'' may be
subject to misinterpretation. For example, scratches or other cosmetic
damage to a battery casing, or, for large batteries, damage to external
structural features such as bolt-down lugs, would not constitute damage
that affects the safety of the battery in transport. PRBA suggested
clarifying language stating that damaged, defective, or recalled
batteries which do not have the potential of producing a dangerous
evolution of heat, fire or short circuit are not subject to the
paragraph. PRBA stated that this would allow companies to ship
batteries by air that simply are not working to specification, but
which pose no additional safety risk in transport. PRBA states this
option is necessary for many reasons, but is most important for
batteries designed for use in medical and military applications. For
example, if a battery is not working to specifications in such
lifesaving applications as defibrillators, it is critically important
for the battery to be quickly returned to the manufacturer for
analysis. Special provision A154 in the ICAO Technical Instructions
states that batteries are prohibited from transport by aircraft only to
the extent that any damage or defect causes the battery to ``have the
potential of producing a dangerous evolution of heat, fire or short
circuit.''
UPS also supported PHMSA's proposal, but noted that the provision
does not appear to provide a viable means of transport for residents of
Alaska, Hawaii, Puerto Rico and others not accessible by the highway
and rail system. Horizon Air and Rep. Don Young request exceptions for
communities such as those in Alaska not accessible by surface
transportation. These commenters suggested that PHMSA add a provision
stating that damaged defective or recalled batteries are not permitted
for transportation by passenger-carrying aircraft and may be
transported by cargo aircraft only if approved by the Associate
Administrator prior to transportation. NITL, NEMA and others stated
that an option to transport these batteries by cargo vessel is
necessary to enable returns from overseas if the air mode is not
available. Several other commenters stated that failure to allow a mode
that will enable returns from overseas will be counterproductive, since
it will prevent battery companies from fully investigating and
analyzing product defects or failures.
In response to these comments, PHMSA is authorizing the transport
of damaged, defective or recalled cells or batteries by highway, rail,
or vessel when the batteries are packaged in specification packagings
and each battery is individually placed into inner packagings
surrounded by cushioning material that is non-combustible, and non-
conductive. PHMSA is adopting language consistent with the ICAO
Technical Instructions that prohibit the air transport of lithium cells
or batteries that are subject to a safety recall or batteries that have
been damaged and have the potential of producing a dangerous amount of
heat or fire. PHMSA will evaluate the need to transport such cells or
batteries by aircraft on a case-by-case basis by Approval.
Section 173.219 Life-Saving Appliances
Section 173.219 requires life-saving appliances containing lithium
batteries to be transported in accordance with Sec. 173.185 of the HMR
and special provisions 188, 189, A101, A103 and A104 as applicable.
PHMSA did not receive comments specific to the transport of life-saving
appliances. In this final rule, PHMSA is revising this section
consistent with other changes in this final rule. Lithium batteries
packed with, or contained in, life-saving appliances must meet the
applicable requirements of Sec. 173.185 and special provisions A54 and
A101.
Section 173.220 Vehicles
Section 173.220 contains conditions and exceptions applicable to
the transport of vehicles and machinery, including those powered by
lithium batteries. In the NPRM, PHMSA proposed to except prototype
lithium batteries from the UN design testing requirements when these
vehicles are transported by highway for product testing. The batteries
would be required to be securely installed in the vehicle. Commenters
supported this proposal and no objections were raised. PHMSA is
adopting this exception as proposed.
D. Part 175
Section 175.8 Exceptions for Operator Equipment and Items of
Replacement
In Sec. 175.8, PHMSA provides exceptions for operator equipment
and items of replacement. In the NPRM, PHMSA proposed to modify Sec.
175.8 to permit airlines to carry additional items approved by the FAA
Administrator for use aboard the aircraft. This proposal was in
response to the December 15, 2008, petition for rulemaking (P-1533)
from A4A and the RAA. The petition requested that PHMSA amend the HMR
to permit airlines to carry a limited number of small lithium batteries
in the aircraft cabin in a constant state of readiness with adequate
backup power for the duration of the flight. PHMSA agreed with
airlines' need to maintain and use various types of equipment in the
cabin, which are increasingly powered by lithium batteries.
Commenters generally supported the proposals to permit airlines to
carry lithium batteries in the cabin to power devices such as
electronic flight bags, onboard medical monitoring devices,
[[Page 46025]]
and credit card readers. Southwest supported the proposed revision of
Sec. 175.8 for operator equipment and items of replacement, but
suggested that the regulation should clearly identify which branch of
the FAA will act on a request for an approval (Certificate Management
Office, Flight Standards, Hazmat Branch Managers, etc.), and that the
approval process should provide for review and feedback in a timely and
consistent manner. Three commenters requested that PHMSA clarify the
wording ``Items containing hazardous material'' and suggested that this
wording would preclude spare lithium batteries for required devices. On
September 23, 2009, the FAA published a document Information for
Operators (InFO) that discusses the appropriate regulations applicable
to the operation of portable electronic devices aboard aircraft. This
InFo is available through the FAA at the following URL: http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety.
In response to the commenters' PHMSA is revising the proposed Sec.
175.8(a)(4) to read ``hazardous materials used by the operator aboard
the aircraft when approved by the Administrator of the Federal Aviation
Administration.'' This will permit operators to carry hazardous
material used by the flight crew as appropriate, subject to approval by
the Administrator of the FAA.
Section 175.10 Exceptions for Passengers
In Sec. 175.10, the HMR provide conditions and exceptions for the
transport of certain hazardous materials when carried by aircraft
passengers or crewmembers in checked and carry-on baggage. In the NPRM,
PHMSA proposed to require lithium batteries carried by a passenger or a
crewmember in checked or carry-on baggage to be of a type proven to
meet each of the appropriate tests outlined in the UN Manual of Tests
and Criteria.
PRBA supported PHMSA's proposal. DGAC stated that, while it would
expect cells and batteries would meet the UN testing requirements, it
wonders how passengers would actually know whether their batteries were
tested. In addition, it questions how such a requirement would apply to
passengers arriving from outside the United States. The 2013-2014 ICAO
Technical Instructions already include the requirement for the
manufacturer to test lithium cells and batteries, and all lithium
batteries must already be of a design that meets each test in the UN
Manual of Tests and Criteria prior to being offered for transportation.
Accordingly, we do not anticipate any adverse impact to harmonizing the
provisions of the HMR with the provisions of the ICAO Technical
Instructions at this point.
NFDA asked PHMSA to insert the words ``living or deceased'' before
the word ``humans'' in Sec. 175.10(a)(3), in order to clarify that
implanted medical devices in a deceased human body being transported by
an air carrier falls under the exception currently available for living
humans. The provisions in Sec. 175.10(a)(3) applicable to implanted
medical devices in humans or animals does not specify the condition of
the human or animal. Thus this provision already permits implanted
medical devices regardless of whether the human or animal is alive or
deceased.
PRBA and others note the HMR currently authorize a passenger to
carry lithium ion batteries up to 300 Watt-hours, but the ICAO
Technical Instructions limit a passenger to carry lithium ion batteries
up to 160 Watt-hours and requires authorization of the airline if the
battery is over 100 Watt-hours. The commenters state this should be
changed to harmonize with the ICAO Technical Instructions. We agree and
in this final rule we are revising Sec. 175.10 to state, when approved
by the air operator, up to two individually protected spare lithium ion
batteries per person having a Watt-hour rating greater than 100 Wh, but
not greater than 160 Wh, may be carried in (a) carry-on baggage, or (b)
equipment in either checked or carry-on baggage.
PRBA and NEMA also noted that PHMSA also has included a provision
that appears to prohibit spare ``dry cells and batteries'' (e.g.,
alkaline, nickel cadmium, nickel metal hydride) from placement in
checked baggage. NEMA opposed any such prohibition and states that non-
lithium dry cell batteries, even when new and deliberately shorted in
large quantities cannot produce dangerous levels of heat. PRBA asked
PHMSA to clarify whether we intended to prohibit dry cell batteries
from checked baggage. They state this would be an impossible provision
to enforce considering the millions of alkaline batteries purchased by
consumers every year in the U.S. and is unnecessary in light of the
battery's low voltage. PHMSA did not intend to limit the ability of
passengers to carry spare non-lithium dry cell batteries to carry-on
baggage. In this final rule, PHMSA is revising Sec. 175.10(a)(18) to
specify each spare lithium battery must be carried in carry-on baggage
only.
Section 175.30 Inspecting Shipments
Section 175.30 establishes requirements for acceptance and carriage
of hazardous materials by aircraft. We are adding a new paragraph
(a)(5) to this section to specify that the air carrier must not accept
a lithium battery shipment described on alternative written
documentation unless it is in compliance with Sec.
173.185(c)(4)(v)(B).
Section 175.33 Shipping Paper and Notification of the Pilot-in-Command
Section 175.33 establishes requirements for a shipping paper to
accompany an air shipment of hazardous materials and for the aircraft
operator to notify the pilot-in-command of the specific information
about the hazardous materials to be transported on the aircraft. We are
adding a new paragraph (a)(12) to this section to specify that the air
carrier must notify the pilot-in-command of the UN number, the hazard
class, the number of packages, and the gross mass of every package for
each shipment of lithium batteries containing more than 2 small lithium
batteries or 8 small lithium cells in any package that otherwise meet
the requirements of Sec. 173.185(c). We are also adding a new
paragraph (c)(5) to this section to specify that when alternative
written documentation is supplied by the shipper in accordance with
Sec. 173.185(c)(4)(v)(B), the operator must retain this documentation
for 90 days.
Section 175.75 Quantity Limitations and Cargo Location
In Sec. 175.75, the HMR prescribe quantity limits and stowage
locations for various hazardous materials aboard an aircraft. In the
NPRM, PHMSA proposed to modify Sec. 175.75 to prohibit the stowage of
lithium batteries in an inaccessible manner, unless the inaccessible
cargo compartment or freight container was equipped with an FAA-
approved fire suppression system or the lithium batteries were packaged
in an FAA-approved fire resistant container. We also invited comments
on whether limiting the number of lithium batteries in a single
aircraft, compartment, or unit load device would further enhance
safety.
Stowage Location.
Our proposal to restrict locations for stowage of lithium batteries
onboard an aircraft was based on NTSB recommendations A-07-104 and A-
07-105 and FAA testing that demonstrated that lithium batteries are a
potential fire source and can also enhance the severity of a fire from
an outside source.
[[Page 46026]]
While the cargo compartments of passenger aircraft are required to be
equipped with fire suppression systems, and some cargo-only aircraft
are equipped with FAA-approved fire suppression systems, the specific
number of such cargo-only aircraft remains unknown. The NTSB stated
that it believes this leaves flight crews on cargo-only aircraft at
risk from in-flight fires involving both primary and secondary lithium
batteries.
PHMSA received many comments on these proposals from a variety of
sources including passenger airlines, express air carriers, medical
device manufacturers, retailers, airline pilot organizations, the NTSB,
members of the U.S. House of Representatives, battery and electronic
equipment manufacturers, and others who ship lithium batteries and
lithium battery powered equipment. While some welcomed the proposed
requirements, most commenters opposed additional loading and
segregation requirements. These commenters stated that the proposed
additional requirements are unnecessary, and would impose significant
cost and logistical hurdles on air carriers resulting in delays,
frustrated shipments, and other adverse distributional effects.
The NTSB, ALPA, TDD and IFALPA support additional controls on the
stowage of lithium batteries aboard aircraft. These commenters stated
that the quantity of lithium batteries in any single location, or in a
single cargo compartment, must be restricted to mitigate the
consequences of an incident by controlling the number of batteries in
close proximity to each other. ALPA stated that it is vitally important
to limit the quantity of lithium ion batteries stored in a single
location as well as in a single cargo compartment. ALPA supported this
statement by saying that, since a fire may be the result of an internal
short circuit, defective design, or counterfeit battery, no amount of
packaging or training will prevent every incident; however, the
severity of an incident may be effectively managed by controlling the
number of batteries in close proximity to each other.
ALPA and TDD do not support any proposal that permits the placement
of lithium ion batteries in an accessible cargo position as an
alternative to stowing the batteries in a Class C cargo compartment.
ALPA stated that, if a Class C compartment does not exist on an
aircraft, PHMSA should not permit shipments of these batteries on board
the aircraft unless additional testing determines that they can be
safely transported in a Class E cargo compartment. ALPA and TDD stated
that, if a fire were to occur in an accessible location, it is unlikely
that a crewmember would attempt to extinguish the fire using a hand-
held halon fire extinguisher.
NTSB noted in its comments that halon fire suppression is
ineffective on fires involving lithium metal batteries and suggested
that PHMSA could improve the NPRM by explicitly requiring shipments of
lithium metal batteries to be loaded in FAA-approved fire resistant
containers. Several commenters, including AfA, TIA, AHS, A4A, NAC, and
TIACA, questioned the proposal to permit an FAA-approved container for
the purposes of transporting lithium batteries. These commenters
suggest that unless PHMSA identifies a suitable container or criteria
for such a container, this option does not offer any relief.
More commenters opposed additional loading and segregation
requirements. These commenters stated that the proposed additional
requirements are unnecessary, and would impose significant cost and
logistical hurdles on air carriers resulting in delays, frustrated
shipments, and other adverse distributional effects. A number of them,
including airlines, express air carriers, retailers, medical and other
equipment manufacturers, expressed concerns about the impact of stowage
restrictions on aircraft cargo capacity. Saft and IATA stated that,
unlike passenger-carrying aircraft, many existing cargo aircraft do not
have, and are not required to be fitted with, Class C cargo
compartments. Therefore, if the stowage requirements outlined in the
NPRM were finalized, such cargo-only aircraft could only carry lithium
batteries in an accessible location. FedEx and others stated that a
requirement for lithium ion batteries to be accessible would place them
together with other highly regulated and flammable substances,
increasing the potential for igniting or increasing the severity of an
onboard fire. Similarly, UPS stated that the proposed stowage
requirements would have the practical effect of making crew accessible
positions the most common method of handling lithium batteries and
devices shipped with them. Currently, very few positions on UPS
aircraft are accessible, and typically UPS reserves such positions for
high-hazard materials currently subject to accessibility requirements.
UPS further stated that such consolidation may present commercial
issues to air carriers whose customers may, for sanitation and other
reasons, seek to forbid locating their lithium battery-powered products
near traditional cargo aircraft-only shipments. These commenters stated
that such restrictions will likely result in aircraft operators
electing to simply ban the transport of such materials or load these
products on passenger-carrying aircraft rather than run the risk of
non-compliance with the HMR.
Digital Europe asked PHMSA to consider that only bulk shipments of
lithium batteries should potentially require additional stowage and
segregation. It asserts that, by volume, lithium batteries contained in
equipment will put the most demand on crew accessible stowage. Casio
stated that lithium ion batteries packed with, or contained in,
products constitute a small volume of the overall package and a
restriction that includes batteries packed with or contained within
products may have a significant impact on the availability of cargo
space. NetApp illustrated this fact with their experience shipping
large equipment that also contains several small lithium batteries.
CIPA and Olympus stated that if one cell or battery causes a fire
within a package complying with the ICAO Technical Instructions, the
fire will self-terminate without spreading to other batteries or the
contents of the same package. Accordingly, there is no need for
additional restrictions. Air carriers, including UPS, FedEx, Delta and
Southwest, stated that the proposed restrictions would further
complicate the loading process and require an overhaul of training and
operational procedures. Delta and others commented that the HMR
currently impose compartment limits at the hazard class or division
level, but not to specific UN numbers. They stated that, since the HMR
do not impose loading restrictions on Class 9 material, PHMSA must
establish loading limits for lithium batteries specific to those UN
numbers. Subsequently, each carrier would then be required to develop a
process to ensure compliance with this regulation. These commenters
stated that managing such accessibility limitations at the UN number
level would impose great difficulties on air carriers.
UPS stated that its loaders would be required to scrutinize the UN
number and proper shipping names marked on all Class 9 shipments in
order to identify those packages subject to new accessibility
requirements. In addition, UPS stated that it will need to reprogram
electronic systems developed to support the loading of aircraft unit
load devices (ULDs) and aircraft, as well as generate a notice to the
pilot, specifically to address the lithium battery specific
requirements. Alaska Airlines, Horizon Air, and NAC
[[Page 46027]]
proposed creating an additional hazard class for lithium batteries if
loading limits are needed, thereby reducing the complications
associated with segregating packages based on the UN number. While a
separate hazard class for lithium batteries would assist in
identification, and subsequent segregation, of such packages for
transport, PHMSA does not believe creating a new hazard class for a
single commodity is appropriate.
VFS stated that it is developing a ULD that has a means to alert a
pilot or flight crewmember of the presence of smoke and control or
extinguish a fire inside of a ULD without requiring a crewmember to
enter the compartment. PHMSA and FAA applaud these efforts and welcome
such innovations.
Quantity Limits.
In response to PHMSA's invitation for comments on limiting the
number of lithium batteries in a single aircraft, compartment, ULD,
pallet, or similar overpack, IATA and TTi stated that the guiding
principle established in the ICAO Technical Instructions is that
packaging requirements and the package limits for hazardous materials
reduce the hazard in air transport to an acceptable level. On that
basis, there is no limit on the number of individual packages of
hazardous materials that may be transported in a single aircraft,
single cargo compartment, or ULD unless there is a need to separate or
segregate packages containing incompatible hazardous materials.
PRBA stated that there is no reasonable basis to limit the number
of lithium ion or metal battery packages in a single aircraft cargo
compartment, ULD, or overpack. PRBA expanded on this by stating that
the HMR already contain: (1) Strict weight restrictions on these
packages; (2) quantity limits for batteries packed with, or contained
in, equipment; and (3) a prohibition against shipping lithium metal
batteries on passenger-carrying aircraft. These restrictions adequately
address what PRBA understands to be PHMSA's justification for this
proposal, i.e., to mitigate the consequences of a fire involving
lithium ion and lithium metal batteries. NEMA echoed these statements
by commenting that, if a package is properly packaged and labeled in
compliance with the current regulations, it should be allowed to ship
without any further restrictions. Delta questioned the basis upon which
PHMSA and FAA would formulate a compartment limit.
PHMSA and FAA continue to study these issues and will take into
consideration new suppression systems and agents as they become
available in the future. We are not adopting stowage restrictions or
limits on the number of for lithium batteries in a single aircraft,
aircraft compartment, ULD, pallet or overpack.
E. Compliance Date
PHMSA's January 11, 2010, NPRM proposed a 75-day period for
affected entities to come into compliance with the provisions of the
NPRM. ALPA favored expedited compliance with the safety regulations,
stating that the provisions, once enacted, would have a significant
positive impact on safety and may preclude the need to prohibit the
transport of lithium batteries aboard aircraft. However, nearly all
other commenters opposed the 75-day period for compliance with the
requirements outlined in the NPRM. These commenters stated that a 12-18
month compliance period would be required if PHMSA adopted the
provisions of the NPRM. The commenters noted various barriers to
immediate compliance including training hazmat employees, certifying
packaging, obtaining various approvals, and modifying their logistical
operations.
The provisions of this final rule harmonize the HMR with the UN
Model Regulations, the ICAO Technical Instructions, and the IMDG Code,
so we do not anticipate significant barriers to compliance. In the
April 2012 notice, we requested comments on ways to reduce the
compliance burden should PHMSA adopt in a final rule the ICAO
revisions. Outside of a delayed effective date, commenters did not
provide any comment on ways that PHMSA could reduce the burden or costs
of implementation of a final rule. Most commenters supported a January
1, 2013, effective date since the 2013-2014 ICAO Technical Instructions
also become effective on January 1, 2013. Commenters suggested that
PHMSA provide a suitable grace period to allow shipments that were
initiated prior to January 1st to reach their destination. Others
suggest longer grace periods between one month and 18 months. The
delayed effective date would permit the incorporation of new
requirements into standard operating procedures and for the training of
affected personnel.
In order to facilitate harmonization, and permit the acceptance of
lithium battery shipments made in accordance with the 2013-2014 ICAO
Technical Instructions, PHMSA permits immediate voluntary compliance
with all of the provisions in this final rule. PHMSA will not require
compliance with the requirements of this final rule until six months
after publication in the Federal Register.
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the following statutory
authorities:
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to
prescribe regulations for the safe transportation, including security,
of hazardous material in intrastate, interstate, and foreign commerce.
2. 49 U.S.C. 44701 authorizes the Administrator of the Federal
Aviation Administration to promote the safe flight of civil aircraft in
air commerce by prescribing regulations and minimum standards for
practices, methods, and procedures that the Administrator finds
necessary for safety in air commerce and national security. Under 49
U.S.C. 40113, the Secretary of Transportation has the same authority to
regulate the transportation of hazardous materials by air, in carrying
out Sec. 44701, that he has under 49 U.S.C. 5103.
3. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to
ensure that, to the extent practicable, regulations governing the
transportation of hazardous materials in commerce are consistent with
standards adopted by international authorities. This rule amends the
HMR to maintain alignment with international regulatory approaches by
incorporating various amendments to facilitate the transport of
hazardous material in international commerce. To this end, as discussed
in detail above, the rule incorporates changes into the HMR found in
the 5th revised edition of the UN Manual of Tests and Criteria, the
seventeenth revised edition of the UN Recommendations, Amendment 36-12
to the IMDG Code, and the 2013-2014 ICAO Technical Instructions, which
became effective January 1, 2013.
4. Section 828 ``FAA Modernization and Reform Act'' (Pub. L 112-95;
126 Stat. 133 (Feb 14, 2012)) prohibits DOT agencies from issuing or
enforcing regulations regarding the air transport of lithium cells or
batteries, whether transported separately or packed with, or contained
in, equipment, if the requirement is more stringent than the
requirements of the ICAO Technical Instructions. However, the
legislation authorizes the continued prohibition on the transport of
lithium metal cells and batteries aboard passenger aircraft and
authorizes the issuance of more stringent regulation based on credible
reports that lithium batteries substantially contributed to the
initiation or propagation of a fire aboard an aircraft. Such
regulations must address solely the deficiencies
[[Page 46028]]
referenced in the report and must be the least disruptive and least
expensive variation from existing requirements while adequately
addressing identified deficiencies.
B. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
This final rule is considered a significant regulatory action under
Executive Order 12866 and the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034) because of significant
public interest. A regulatory impact assessment is available for review
in the public docket for this rulemaking.
Executive Orders 12866 and 13563 require agencies to regulate in
the ``most cost-effective manner,'' to make a ``reasoned determination
that the benefits of the intended regulation justify its costs,'' and
to develop regulations that ``impose the least burden on society.'' In
this final rule, PHMSA is amending the HMR to harmonize requirements
for the transport of lithium batteries with requirements in the UN
Model Regulations, 2013-2014 ICAO Technical Instructions, and the IMDG
Code by: (1) Adopting separate shipping names for (i) lithium metal
batteries, lithium metal batteries contained in equipment, and lithium
metal batteries packed with equipment; and (ii) lithium ion batteries,
lithium ion batteries contained in equipment, and lithium ion batteries
packed with equipment; (2) adopting ``Watt-hours'' as the measure of
the size of a lithium ion battery to replace the current use of
``equivalent lithium content;'' (3) revising various definitions
consistent with the UN Model Regulations; (4) adopting into the HMR the
ICAO exception for packages containing up to 2 small lithium batteries
or 8 small lithium cells; (5) for lithium ion batteries that meet the
conditions in the exception, requiring each package to bear a lithium
battery handling label; and (6) revising package weight limits
applicable to different lithium battery types and configurations.\7\
PHMSA is retaining its prohibition on the transport of lithium metal
batteries aboard passenger aircraft. PHMSA considered three potential
regulatory options.
---------------------------------------------------------------------------
\7\ In this document, ``configurations'' refers to the relevance
of differences between batteries-only shipments, batteries packed
with equipment, and batteries contained in equipment.
---------------------------------------------------------------------------
Option 1 is a no-action option. This would retain the
current provisions applicable to lithium batteries. All costs and
benefits are relative to this option.
Option 2 would amend the HMR applicable to the transport
of lithium cells and batteries consistent with the UN Model
Regulations, the ICAO Technical Instructions and the IMDG Code. This
option would provide an exception for shipments of a limited number of
small lithium batteries and battery powered equipment, but retains the
current prohibition on the transport of lithium metal batteries aboard
passenger aircraft.
Option 3 would eliminate the regulatory exceptions for
small lithium batteries--including batteries packed with, or contained
in, equipment--and require their shipment as fully regulated Class 9
materials. This option would additionally (1) modify the design change
criteria in the UN Manual of Tests and Criteria; (2) require lithium
cells and batteries to be marked with an indication that the cell or
battery design that passed each of the appropriate tests outlined in
the UN Manual of Tests and Criteria and (3) limit the locations on
board aircraft where shipments of lithium cells and batteries could be
stowed.
PHMSA has chosen the Option 2--harmonization with UN Model
Regulations, the ICAO Technical Instructions and the IMDG Code. This
option was constructed with the input of stakeholders representing the
aviation, manufacturing, and shipping industries, as well as
international governments and safety agencies. It is the result of
compromise directed at producing a strong yet flexible regulation and
reflects Congressional intent and stakeholders' need for a global
standard.
To evaluate the impact of the rule, PHMSA used market research and
information provided by commenters to the April 11, 2012, notice to
project the total numbers of packages and shipments that the regulation
would affect. PHMSA first quantified the number of lithium batteries
transported to or from the U.S., and then estimated the number of
shipments potentially affected by this rule. Trade data from 2011 were
inflated assuming a constant 10% growth rate, with an expected 2.8
billion batteries, packed in nearly 1.1 million shipments, moving to or
through the U.S. for the decade spanning 2014 to 2023. The following
table shows the 10-year projected number of lithium battery shipments
potentially affected by this rule.
------------------------------------------------------------------------
Batteries
2014-2023 (millions) Shipments
------------------------------------------------------------------------
Imports................................. 2,836.1 710,626
Domestic origin......................... 2.6 436,814
-------------------------------
Total............................... 2,838.8 1,147,440
------------------------------------------------------------------------
Lithium batteries imported into the U.S. over the next 10 years are
considered to be consolidated into shipments holding an average of
4,000 batteries each (based on historical data), whereas anecdotal
evidence from commenters engaged in domestic custom battery production
indicated that their shipments were mostly small runs of specialized
batteries, with an average of a half dozen batteries per package.
Due to uncertainty inherent in much of the data collected for this
analysis, we have used a probabilistic method observing the overall
distribution of possible costs to observe the range of potential
outcomes resulting from adoption of the provisions in the final rule.
Figures listed here are mean (average) costs.
Costs resulting from the regulatory changes are the sum of: Hazard
communication costs, including labeling, documentation, and package
inspection; training and employment costs; and cost associated with the
generation and retention cell/battery design testing records
information. Hazard communication broadly refers to package markings,
labels, documentation, and acceptance checks. The hazard communication
cost increases, as a result of adopting the provisions of the new rule,
would be calculated by multiplying the number of shipments required to
comply with enhanced hazard communication
[[Page 46029]]
requirements by the increased cost per shipment. Training costs would
be limited to a one-time expenditure by shippers to familiarize staff
with the new regulations, while carriers would be presumed to undergo
supplemental training on the revised ICAO Technical Instructions,
regardless of U.S. action in a final rule. Cost associated with battery
design testing would be a nominal sum resulting from the generation of
battery design testing records. Using both 3% and 7% annual discounting
for future costs, the total present value mean cost of the regulation
from 2014 to 2023 is expected to be between $10.1 million (at 7%
discount) and $11.2 million (at 3% annual discount), with a possible
range of $6.9 million to $15.3 million in 2013 dollars.
Benefits for this rulemaking are based on the potential to avert
consequences from catastrophic incidents that would otherwise occur
without the provisions of the rule. However, due to the inherent
uncertainty of potential and averted consequences, quantification of
the benefits is so imprecise that PHMSA elected not to estimate them.
PHMSA has instead elected to engage in a break-even analysis to
determine the threshold safety benefit that would make this rule cost
beneficial. This estimation still requires PHMSA to estimate the
expected cost of aircraft incidents involving lithium batteries.
PHMSA weighs the relative probabilities of an incident occurring on
a cargo-only aircraft and a passenger aircraft by assuming on average
an 80% chance of an incident occurring onboard a cargo-only and 20%
chance on a passenger flight. This roughly matches the proportion of
total cargo that is carried on cargo-only aircraft and passenger
aircraft. The average expected incident has costs of $354 million,
which is $302 million when discounted at 3 percent, and $279 million
when discounted at 7 percent.
Table 3-2-3 presents the number of incidents that would need to be
prevented in order for this rule to be cost-beneficial. For instance,
using the base case for costs, this rule would need to prevent more
than 0.041 incidents over the next 10 years, discounted at 3 percent,
for the benefits to exceed the costs.
Table 3-2-3--Break-Even Points, Number of Incidents Prevented
------------------------------------------------------------------------
Discounted 3% Discounted 7%
------------------------------------------------------------------------
Low cost estimate....................... 0.029 0.03
Base case cost estimate................. 0.041 0.043
High case cost estimate................. 0.056 0.061
------------------------------------------------------------------------
C. Executive Order 13132
The requirements in this rule will preempt state, local, and Indian
tribe requirements but do not have substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101
et seq., contains an express preemption provision (49 U.S.C. 5125(b))
preempting State, local, and Indian tribe requirements on the following
subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
Federal hazardous materials transportation law provides at 49
U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of
these subjects, DOT must determine and publish in the Federal Register
the effective date of Federal preemption. The effective date may not be
earlier than the 90th day following the date of issuance of the final
rule and not later than two years after the date of issuance.
This final rule addresses subject items (1), (2), (3), and (4)
above and preempts State, local, and Indian tribe requirements not
meeting the ``substantively the same'' standard. The effective date of
Federal Preemption is November 4, 2014.
D. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments. Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
This final rule has been developed in accordance with Executive
Order 13272, Proper Consideration of Small Entities in Agency
Rulemaking, and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act (Pub. L. 96-354) and to ensure
potential impacts of rules on small entities are properly considered.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities,
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities.
1. Need for and Objectives of the Rule
The intent of this action is to align the HMR with international
transport standards and requirements to the extent practicable in
accordance with Federal Hazardous Materials transportation law (see 49
U.S.C. 5120). Our goal is to harmonize, without diminishing the level
of safety currently provided by the HMR, and not impose undue burdens
on the regulated public. This action is necessary to incorporate
changes adopted in the UN Recommendations on the Transport of Dangerous
Goods--Model Regulations, the ICAO's Technical Instructions for the
Safe Transport of Dangerous Goods by Air, and the IMDG Code, effective
January 1, 2013.
[[Page 46030]]
2. Comments to the Initial Regulatory Flexibility Analysis
PHMSA received comments on the initial regulatory flexibility
analysis from industry trade associations and SBA. Small businesses
including Fedco and ICCNexergy added figures detailing their expected
burden.
SBA and PRBA stated that the proposed rules would create
conflicting standards and require significant supply chain redesigns.
Further, SBA stated that the initial regulatory flexibility analysis
understated the number of, and impact on, small businesses that support
the retail sector, including internet shippers, manufacturers of
battery packs, shipping companies, and airlines that handle lithium
batteries or electronic devices containing lithium batteries. SBA
recommended that PHMSA conduct further outreach to the regulated
community to enhance dialogue, promote safety and ensure harmonization.
We have been attentive to the concerns of small businesses through
the preparation of the rule and its supporting analyses. Data provided
by several commenters suggested that a significant percentage of
lithium batteries transported in the U.S. affected by this rule are
packed with, or contained in, equipment and often those pieces of
equipment only contain one device per package. When developing the
rule, PHMSA examined alternatives for reducing the regulatory
compliance burden on small entities, including providing exceptions for
certain finished medical devices and extending the compliance date to
permit extra time for small entities to come into compliance. In this
final rule, we are maintaining existing exceptions:
For the transport of lithium batteries by modes other than
aircraft (i.e. highway, rail and vessel), including batteries packed
with, or contained in, equipment; and
for the air transport of packages containing up to 8 small
lithium cells or 2 small lithium batteries and lithium batteries packed
with, or contained in, equipment.
3. Description and Estimate of the Number of Small Entities to Which
the Final Rule Will Apply
Two types of small businesses are likely to incur costs associated
with compliance with the provisions of this rule--(1) manufacturers and
distributors of lithium batteries and (2) air carriers. We employ the
thresholds published by the Small Business Administration for
industries subject to the HMR--generally, this includes those that have
up to 500 employees. Our research has identified 130 possible entities:
60 manufacturers and sellers, and 70 air transporters.
PHMSA reviewed records of the potentially affected small
manufacturing and sales businesses by NAICS codes--discussed in greater
detail in the Regulatory Flexibility Analysis--and determined that of
the 60 identified:
29 are classified as manufacturers of primary or storage
batteries;
16 are classified as manufacturers of equipment, other
devices, or components of these articles;
13 are classified as wholesalers of equipment or parts;
and
2 are engaged in research and development.
Through the preparation of this analysis, there has been no
evidence of retailers other than the manufacturers and wholesalers
above that specialize in lithium battery sales.
PHMSA then identified air transportation businesses by NAICS code,
and found that there are 642 businesses with fewer than 1,000 employees
offering either scheduled air transportation (passenger or freight
only) or chartered freight transportation. Of these, 572 had 100 or
fewer employees and were judged to be unlikely to carry enough cargo
that the impact of the revised regulation would be considered
significant. Thus there are 70 air carriers potentially affected.
4. Description of the Projected Reporting, Record Keeping and Other
Compliance Requirements for Small Entities
The costs accruing to small businesses are not anticipated to be
significant.
Hazard communication: The adoption of the 2013-2014 ICAO
Technical Instructions for the majority of projected shipments is
unlikely to generate substantial new costs. The total estimated cost
for the entire industry over the next decade is between $1.5 and $2.1
million; the proportion applicable to small businesses is negligible.
Training: PHMSA estimates that a company will spend
between $300 and $400 to train an employee once, with subsequent
trainings being required independent of this regulation. While this
figure represents the largest individual cost under consideration in
this analysis, the small businesses that commented on the Initial
Regulatory Flexibility Analysis (IRFA) state that they do currently
package fully regulated Class 9 shipments, indicating that these costs
are at least already partly borne by such businesses.
Records of Design Testing: The final rule requires the
development and retention of battery-design testing results. The
projected cost of these activities is estimated at $110,000 over the
next 10 years; the proportion applicable to small businesses is
negligible.
5. Steps PHMSA Has Taken To Minimize the Significant Economic Impact on
Small Entities
There are no alternatives to the final rule that would accomplish
the stated objectives of the rule, which are to reduce the risk posed
by the transport of lithium batteries and to harmonize the domestic HMR
with international rules. As discussed in IV. B. of the preamble to
this final rule, PHMSA considered a number of regulatory options: (1) A
do nothing option, (2) an option that would harmonize the HMR with the
requirements of the UN Model Regulations, the ICAO Technical
Instructions and the IMDG Code, and (3) an option consistent with
eliminating regulatory exceptions for the transport of small lithium
cells and batteries. PHMSA chose the second option because it was
constructed with the input of stakeholders representing the aviation,
manufacturing, and shipping industries, international governments, and
safety agencies. It is the result of compromise directed at producing a
strong yet flexible regulation and reflects congressional intent and
stakeholders' need for a global standard. Harmonizing the domestic HMR
with the requirements of the UN Model Regulations, the ICAO Technical
Instructions and the IMDG Code provides the most flexibility while
increasing safety levels. Based on this analysis, we certify that this
final rule does not impose a significant economic impact on a
substantial number of small entities.
F. Paperwork Reduction Act
PHMSA currently has approved information collections under Office
of Management and Budget (OMB) Control Number 2137-0034, ``Hazardous
Materials Shipping Papers and Emergency Response Information'' which is
currently under OMB review and OMB Control Number 2137-0572, Testing
Requirements for Non-Bulk Packaging,'' with an expiration date of July
31, 2015. This final rule will result in an increase in the annual
burden of these information collections due to amendments being adopted
in this final rule. IATA states that, based on calculations for the
completion of a shipping paper for various types of shipments of
lithium batteries, it takes
[[Page 46031]]
between 3 minutes and 10 minutes to produce a shipping paper and
additional time associated with collection of data to complete the
information required on the written information to the pilot-in-command
(NOPIC) as required by Sec. 175.33 of the HMR. IATA also states that
PHMSA's estimate of consolidated shipments to be inaccurate. The
commenter states that while there is some level of package
consolidation for shipments of batteries and for equipment shipped with
batteries from the point of manufacture to a distribution center, the
same is not necessarily true for shipments from a distribution center.
PHMSA has re-evaluated the additional time for a transport worker
to review and complete an existing shipping document; PHMSA's revised
estimate accounts for the reduced regulatory burden of this final rule
relative to the NPRM and the revised estimate also accounts for the
additional time required by shippers of batteries and assumes lithium
battery shippers often repeatedly offer the same hazardous materials
and have developed the ability to automate many administrative
processes. PHMSA has adjusted the paperwork burden imposed by the
requirements of this final rule accordingly.
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it is approved by OMB and
displays a valid OMB control number. Section 1320.8(d), Title 5, Code
of Federal Regulations requires that PHMSA provide interested members
of the public and affected agencies an opportunity to comment on
information collection and recordkeeping requests.
OMB Control No. 2137-0034
Hazardous Materials Shipping Papers and Emergency Response Information
Additional Annual Number of Respondents: 670.
Additional Annual Number of Responses: 143,430.
Additional Annual Burden Hours: 2,390.
Additional Annual Burden Costs: $47,800.
OMB Control No. 2137-0572.
Testing Requirements for Non-Bulk Packaging
Additional Annual Number of Respondents: 110.
Additional Annual Number of Responses: 1,100.
Additional Annual Burden Hours: 550.
Additional Annual Burden Costs: $11,000.
Requests for a copy of this information collection should be
directed to: Steven Andrews or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-10), Pipeline and Hazardous Materials Safety
Administration, Room E24-426, 1200 New Jersey Ave. SE., Washington, DC
20590-0001, telephone (202) 366-8553.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center generally publishes the Unified
Agenda in April and October of each year. The RIN contained in the
heading of this document can be used to cross-reference this action
with the Unified Agenda.
H. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$140,800,000 or more, adjusted for inflation, to either State, local or
tribal governments, in the aggregate, or to the private sector in any
one year, and is the least burdensome alternative that achieves the
objective of the rule.
I. Environmental Assessment and Finding of No Significant Impact
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4347) requires Federal agencies to consider the environmental
impacts of major Federal actions and prepare a detailed statement for
actions significantly affecting the quality of the human environment.
For those actions that are unlikely to have significant environmental
impacts, the Council on Environmental Quality (CEQ) regulations (40 CFR
parts 1500-1508) require Federal agencies to conduct an environmental
assessment that includes (1) the need for the action, (2) alternatives
to the action, (3) probable environmental impacts of the action and
alternatives, and (4) the agencies and persons consulted during the
consideration process (40 CFR 1508.9).
1. Purpose and Need
This final rule amends the requirements for the transport of
lithium batteries. Most of these amendments harmonize the HMR with its
international equivalents and focus on packaging, hazard communication
and training. These measures serve to ensure that lithium batteries are
safe for transport and the hazards associated with lithium batteries
are properly communicated. Thus, most of the amendments of this final
rule have no environmental impact. However, we are amending the
requirements applicable to the transport of transport of lithium
batteries for disposal or recycling. This section focuses on the
environmental impacts of these activities under each of the
alternatives considered.
Once lithium batteries reach the end of their useful life they must
be recycled or properly disposed. The environmental benefits and policy
need for battery recycling have been demonstrated through the enactment
of battery recycling laws by more than half the states and Puerto Rico.
Several states have also enacted laws specifically mandating the
recycling of lithium ion batteries.\8\ Appropriate transport safety
regulations will ensure that lithium batteries can be safely and
efficiently transported for disposal or recycling. Any provisions for
the transport of lithium batteries must balance the need to facilitate
transport with the need to ensure that the hazards posed by lithium
batteries in transport are appropriately managed.
---------------------------------------------------------------------------
\8\ Source: Call2Recycle, Inc a battery product stewardship
program; http://www.call2recycle.org/recycling-law-map/.
---------------------------------------------------------------------------
2. Alternatives
In developing this rule, PHMSA considered three regulatory options:
(1) A do nothing option (no action alternative); (2) an option that
would expand the current recycling and disposal provisions thus
facilitating more movement; and (3) an option that eliminates
regulatory exceptions for the transport of small lithium cells and
batteries. This would require lithium batteries shipped for disposal or
recycling to meet all of the requirements applicable to new batteries.
The second option is the selected alternative. PHMSA has chosen
this alternative because it was constructed with the input of
stakeholders representing the, manufacturing, and shipping industries,
environmental concerns and battery recyclers. This option requires
lithium batteries to be packaged to reduce the possibility of damage
that could lead to an incident; and accompanied by hazard information
that ensures appropriate and careful handling and informs transport
workers and emergency response personnel of actions to be taken in an
emergency.
The do nothing option does not achieve the stated objective of
ensuring the safe transport of lithium batteries for disposal or
recycling.
The third option was judged too costly and onerous to industry
relative
[[Page 46032]]
to potential benefits, and was thus eliminated.
3. Analysis of Environmental Impacts
Hazardous materials are substances that may pose a threat to public
safety or the environment during transportation because of their
physical, chemical, or nuclear properties. The hazardous material
regulatory system is a risk management system that is prevention-
oriented and focused on identifying a safety hazard and reducing the
probability and quantity of a hazardous material release. The
regulations require each shipper to classify a material in accordance
with these hazard classes; the process of classifying a hazardous
material is itself a form of hazard analysis. Further, the regulations
require the shipper to communicate the material's hazards through use
of the hazard class, and proper shipping name on the shipping paper and
the use of labels on packages and placards on transport vehicles. Thus,
the shipping paper, labels, and placards communicate the most
significant findings of the shipper's hazard analysis. Hazardous
materials are often further sub-categorized to one of three packing
groups based upon its degree of hazard--from high-hazard Packing Group
I to a low-hazard Packing Group III material. The quality, damage
resistance, and performance standards of the packaging in each packing
group are appropriate for the hazards of the material transported.
Releases of hazardous materials, whether caused by accident or
deliberate sabotage, can result in explosions or fires. Radioactive,
toxic, infectious, or corrosive hazardous materials can have short-term
or long-term exposure effects on humans or the environment. Generally,
however, the hazard class definitions are focused on the potential
safety hazards associated with a given material, or type of material,
rather than the environmental hazards of such materials.
Lithium is the lightest solid metal. It can be absorbed into the
body by inhalation of its aerosol and by ingestion and is corrosive to
the eyes, the skin, and the respiratory tract. Lithium reacts violently
with strong oxidants, acids, and many compounds (hydrocarbons,
halogens, halons, concrete, sand and asbestos) causing a fire and
explosion hazard. In addition, lithium reacts with water, forming
highly flammable hydrogen gas and corrosive fumes of lithium hydroxide.
Lithium hydroxide represents a potentially significant environmental
hazard, particularly to water organisms. Lithium metal batteries
contain no toxic metals.
Lithium ion batteries contain an ionic form of lithium but no
lithium metal. Lithium ion batteries do not pose an environmental
hazard and are safe for disposal in the normal municipal waste stream.
While other types of batteries include toxic metals such as cadmium,
the metals in lithium ion batteries--cobalt, copper, nickel and iron
are considered safe for landfills or incinerators. The primary hazard
posed by lithium batteries are their ability to overheat and ignite,
and once ignited, the resulting fires can be especially difficult to
extinguish. The likelihood to overheat or ignite is increased if the
batteries are poorly packaged, damaged or exposed to a fire or a heat
source. When packaged and handled properly, lithium batteries pose no
environmental hazard.
While the HMR contain provisions applicable to the transport of
lithium batteries for disposal or recycling several commenters
expressed concern about a do nothing option. GRC stated that the
current provisions do not exclude the responsibility for hazardous
materials training for their suppliers and that training in accordance
with part 172, subpart H would be virtually impossible, given the
nature of their participating organizations and the number of
collection sites that include non-profits, schools, retailers,
community groups, and businesses. CEA contended that a do nothing
option will ultimately act as a disincentive for consumers to recycle
responsibly. PHMSA agrees with CEA's comment that the do nothing
alternative would reduce battery recycling compared with the preferred
alternative.
We also considered an option that would impose additional safety
requirements on the transport of lithium batteries for disposal or
recycling, including a requirement that such batteries be placed in
specification packages. We considered this option because lithium
batteries of all sizes can be transported for disposal or recycling and
the batteries are often from an uncertain origin, may be damaged and
there is no guarantee that the batteries have a low energy level.
Enhanced safety requirements may be appropriate in some cases. This
option was ultimately rejected because this would not facilitate
battery recycling and would generate only marginal additional safety
benefits and potentially result in additional environmental impacts
from the use of additional packaging.
RBRC stated that, for this rule to be successful there must be a
specific provision dealing with collection for recycling programs that
recognizes the simple fact that most used batteries collected are, by
their very nature, in a low state of charge. With this in mind, we
developed measures to expand the current lithium battery recycling
provisions with the aim to facilitate the transport of most lithium
batteries i.e. those used in consumer electronic devices consistent
with current exceptions for the transport of small lithium cells and
batteries. PHMSA ultimately selected this option because it was
determined to pose little adverse impact to the environment, encourages
responsible end of life practices for lithium batteries and provides a
means to safely transport lithium batteries for their final
disposition. The measures in this option reduce the risks to people and
the environment posed during transportation of lithium metal and
lithium ion batteries by ensuring that the batteries: Withstand
conditions normally encountered in transportation, are packaged to
reduce the possibility of damage that could lead to an incident, and
minimize the consequences of an incident. Additionally, the provisions
of this option facilitate the collection and safe transport of used
lithium cells and batteries for recycling or disposal.
4. Consultation and Public Comment
PHSMA received numerous comments to the NPRM (75 FR 1302, Jan. 11,
2010) and the April 11, 2012 (77 FR 21714) Federal Register notice that
sought further comments on the impacts of revisions to the HMR
applicable to lithium batteries. The commenters who responded to the
draft environmental impact statement included Black and Decker, the
Environmental Technology Council, UTC, CERC, ITI, PRBA, the Lithium
Battery Industry Coalition, GRC, and CEA. These commenters supported
provisions for the transport of lithium batteries for recycling. They
stressed the need to maintain exceptions for the transport of small
(consumer type) lithium batteries. ITI stated that the initial
environmental impact statement published in the NPRM lacks an analysis
of the impact that classifying consumer electronic equipment as a Class
9 hazardous material would have on waste streams. The commenter stated
that such classification would result in significant escalation in the
cost of shipping devices containing lithium batteries for proper
disposal or recycling. The provisions of this final rule maintain the
current exceptions for the transport lithium batteries contained in
equipment; thus this final rule will not impact consumer electronic
equipment. The Environmental
[[Page 46033]]
Technology Council agreed that, while the performance standard may be
sufficient for lithium ion batteries, such as those found in cellular
phones and notebook computers, this standard may not be appropriate for
reactive batteries that pose the greatest risk. The commenter
recommended specific measures that should be taken to ensure the safe
transport of reactive batteries, including ensuring that batteries are
not connected in series, insulating all batteries from each other, and
limiting the types and sizes of packagings. The HMR require that
lithium batteries be protected from short circuits and damage, as well
as separated from each other and other conductive materials. We
encourage all shippers and carriers to implement appropriate risk
reduction measures commensurate with the hazard posed by an individual
shipment. These measures outlined in the HMR are intended to provide
flexible, performance-oriented provisions.
5. Finding of No Significant Impact
PHMSA finds that the selected alternative will not have a
significant impact on the human environment. Lithium batteries are a
key part of strategies to develop greener technologies to power many
different applications from automobiles to cellular phones to
computers. The measures outlined in this final rule facilitate the safe
and efficient transportation of lithium metal and lithium ion batteries
across national boundaries from initial manufacture until their
eventual disposal or recycling. This regulation is anticipated to
result in slight positive impacts on the environment because the
regulation provides clear and consistent regulations that reduce the
likelihood of a transportation incident involving lithium batteries
which would likely cause other secondary environmental impacts. The
provisions of this final rule also continue to permit the operation of
battery recycling programs throughout the United States.
J. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy. DOT will read and respond to all substantive
comments on a rulemaking. If you are filing comments on behalf of an
organization or group of individuals, we encourage you to include the
name of your group or organization. However, all comments, even
anonymous comments filed on behalf of a group, will be considered if
they are timely filed. Including your name/group along with your
comment is completely optional.
K. Executive Order 13609 and International Trade Analysis
Under E.O. 13609, agencies must consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are, or would be, adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
The Republic of Korea Ministry of Foreign Affairs and Trade, PRBA,
NEMA, NAM, Digital Europe, Japan, and the European Union stated that
the January 2010 NPRM is inconsistent with the ICAO Technical
Instructions. The commenters stated that the proposed elimination of
the exceptions for certain lithium batteries when transported by
aircraft, and the proposed revision of the design change criteria,
would result in an unnecessary increase in transportation, packing, and
testing costs for the manufacturers and traders of lithium batteries.
These commenters further stated that technical rules and regulations
should not be more trade-restrictive than necessary, as stipulated in
the relevant World Trade Organization Agreements addressing Technical
Barriers to Trade.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed the effects of this final rule to ensure that it does not
cause unnecessary obstacles to foreign trade. This final rule
harmonizes the domestic HMR with approaches outlined in the UN Model
Regulations, the ICAO Technical Instructions and the IMDG Code.
Commenters identified several benefits to adopting the international
transport standards for lithium batteries into the domestic
regulations, including streamlined shipping practices that reduce cost,
a reduction in the potential for confusion and improved shipment safety
through increased visibility of lithium battery shipments. Conversely,
commenters noted several disadvantages to not adopting the
international transport standards into the domestic regulations. The
current ICAO Technical Instructions are at least as safety as the
current HMR and many commenters stated that the current domestic
regulations do not provide the level of safety as the ICAO Technical
Instructions. Further, maintaining a dual system hinders consistent
enforcement of the requirements and increases the likelihood of
frustrated shipments.
The decision to adopt the requirements of the ICAO Technical
Instructions into the domestic HMR was guided by the input of
stakeholders representing the aviation, manufacturing, and shipping
industries, as well as international governments and safety agencies.
It is the result of considerations directed at producing a strong yet
flexible regulation and reflects Congressional intent and stakeholders'
need for a global standard. Accordingly, this rulemaking is consistent
with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act,
as amended.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Incorporation by reference, Labeling, Markings, Packaging and
containers, Reporting and recordkeeping requirements.
[[Page 46034]]
49 CFR Part 173
Hazardous materials transportation, Incorporation by reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements, Uranium.
49 CFR Part 175
Air carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, we amend 49 CFR Chapter I as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97; Pub.
L. 101-410 section 4 (28 U.S.C. 2641 note); Pub. L. 104-134, section
31001.
0
2. In Sec. 171.8:
0
a. The definitions for ``Aggregate lithium content'' and ``Equivalent
lithium content'' and ``Lithium content'' are removed.
0
b. The definitions for ``Lithium ion cell or battery'' ``Lithium metal
cell or battery'', ``Short circuit'' and ``Watt-hour'' are added in
alphabetical order.
The additions read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Lithium ion cell or battery means a rechargeable electrochemical
cell or battery in which the positive and negative electrodes are both
lithium compounds constructed with no metallic lithium in either
electrode. A lithium ion polymer cell or battery that uses lithium ion
chemistries, as described herein, is regulated as a lithium ion cell or
battery.
Lithium metal cell or battery means an electrochemical cell or
battery utilizing lithium metal or lithium alloys as the anode. The
lithium content of a lithium metal or lithium alloy cell or battery is
measured when the cell or battery is in an undischarged state. The
lithium content of a lithium metal or lithium alloy battery is the sum
of the grams of lithium content contained in the component cells of the
battery.
* * * * *
Short circuit means a direct connection between positive and
negative terminals of a cell or battery that provides an abnormally low
resistance path for current flow.
* * * * *
Watt-hour (Wh) means a unit of energy equivalent to one watt (1 W)
of work acting for one hour (1 h) of time. The Watt-hour rating of a
lithium ion cell or battery is determined by multiplying the rated
capacity of a cell or battery in ampere-hours, by its nominal voltage.
Therefore, Watt-hour (Wh) = ampere-hour (Ah) x volts (V).
* * * * *
0
3. In Sec. 171.12, paragraph (a)(6) is revised to read as follows:
Sec. 171.12 North American shipments.
(a) * * *
(6) Lithium metal cells and batteries. Lithium metal cells and
batteries (UN3090) are forbidden for transport aboard passenger-
carrying aircraft. The outside of each package that contains lithium
cells or batteries meeting the conditions for exception in Sec.
173.185(c) of this subchapter and transported in accordance with the
Transport Canada TDG Regulations must be marked in accordance with
Sec. 173.185(c)(1)(iii) or (c)(1)(iv) as appropriate.
* * * * *
0
4. In Sec. 171.24, paragraphs (d)(1)(ii) and (d)(1)(iii) are revised
to read as follows:
Sec. 171.24 Additional requirements for the use of the ICAO Technical
Instructions.
* * * * *
(d) * * *
(1) * * *
(ii) Lithium metal cells and batteries. Lithium metal cells and
batteries (UN3090) are forbidden for transport aboard passenger-
carrying aircraft. The outside of each package that contains lithium
metal cells or lithium metal batteries (UN3090) transported in
accordance with Packing Instruction 968, Section II of the ICAO
Technical Instructions must be marked ``PRIMARY LITHIUM BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' or ``LITHIUM METAL
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.''
(iii) Low production runs or prototypes lithium cells or batteries.
Production runs consisting of not more than 100 lithium cells or
batteries per year, or prototype lithium cells or batteries (including
cells or batteries packed with, or contained in, equipment or motor
vehicles) not of a type proven to meet the requirements of section 38.3
of the UN Manual of Tests and Criteria (IBR, see Sec. 171.7 of this
subchapter), must be approved by the Associate Administrator prior to
transportation aboard aircraft.
* * * * *
0
5. In Sec. 171.25, paragraph (b)(3) is revised to read as follows:
Sec. 171.25 Additional requirements for the use of the IMDG Code.
* * * * *
(b) * * *
(3) The outside of each package containing lithium metal cells or
batteries (UN3090) transported in accordance with special provision 188
of the IMDG Code must be marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN
FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' or ``LITHIUM METAL
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.'' This
marking is not required on packages that contain 5 kg (11 pounds) net
weight or less of lithium metal cells or batteries that are packed
with, or contained in, equipment.
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY PLANS
0
6. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.
0
7. In Sec. 172.101, the Hazardous Materials Table is amended by
removing and adding entries in alphabetical order, to read as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
[[Page 46035]]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(8) Paging (Sec. 173.***) (9) Quantity limitations (10) Vessel stowage
Hazardous --------------------------------------- (see Sec. Sec. 173.27 ---------------------------
materials Hazard and 175.75)
Symbols descriptions and class or Identification PG Label Special ----------------------------
proper shipping division Nos. codes provisions Exceptions Non-bulk Bulk Passenger Loca- tion Other
names aircraft/ Cargo air-
rail craft only
(1) (2)............. (3) (4)............ (5) (6) (7).......... (8A) (8B) (8C)......... (9A)........ (9B)........ (10A)....... (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[REMOVE]
* * * * * * *
Lithium 9 UN3091......... II 9 29, 188, 189, 185 185 None......... See A101,... 35 kg....... A
batteries, 190, A54, A104........
contained in A55, A101,
equipment. A104.
Lithium 9 UN3091......... II 9 29, 188, 189, 185 185 None......... See A101, 35 kg gross. A
batteries 190, A54, A103.
packed with A55, A101,
equipment. A103.
Lithium battery. 9 UN3090......... II 9 29, 188, 185 185 None......... See A100.... 35 kg gross. A
189,190,
A51, A54,
A55, A100.
* * * * * * *
[ADD]
* * * * * * *
Lithium ion 9 UN3480......... II 9 A51, A54..... 185 185 185.......... 5 kg........ 35 kg....... A
batteries
including
lithium ion
polymer
batteries.
Lithium ion 9 UN3481......... II 9 A54.......... 185 185 185.......... 5 kg........ 35 kg....... A
batteries
contained in
equipment
including
lithium ion
polymer
batteries.
Lithium ion 9 UN3481......... II 9 A54.......... 185 185 185.......... 5 kg........ 35 kg....... A
batteries
packed with
equipment
including
lithium ion
polymer
batteries.
Lithium metal 9 UN3090......... II 9 A54.......... 185 185 185.......... Forbidden... 35 kg....... A
batteries
including
lithium alloy
batteries.
Lithium metal 9 UN3091......... II 9 A54, A101.... 185 185 185.......... 5 kg........ 35 kg....... A
batteries
contained in
equipment
including
lithium alloy
batteries.
Lithium metal 9 UN3091......... II 9 A54.......... 185 185 185.......... 5 kg........ 35 kg....... A
batteries
packed with
equipment
including
lithium alloy
batteries.
* * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 46036]]
0
8. In Sec. 172.102 amend paragraphs (c)(1) and (c)(2) as follows:
0
a. In paragraph (c)(1), special provisions 134 and 328 are revised and
special provisions 29, 188, 189, and 190 are removed;
0
b. In paragraph (c)(2), special provisions A51, A54 and A101 are
revised; and special provisions A55, A100, A103, and A104 are removed.
The revisions read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
134 This entry only applies to vehicles powered by wet batteries,
sodium batteries, lithium metal batteries or lithium ion batteries and
equipment powered by wet batteries or sodium batteries that are
transported with these batteries installed. For the purpose of this
special provision, vehicles are self-propelled apparatus designed to
carry one or more persons or goods. Examples of such vehicles are
electrically-powered cars, motorcycles, scooters, three- and four-
wheeled vehicles or motorcycles, battery-assisted bicycles, lawn
tractors, boats, aircraft, wheelchairs and other mobility aids.
Examples of equipment are lawnmowers, cleaning machines or model boats
and model aircraft. Equipment powered by lithium metal batteries or
lithium ion batteries must be consigned under the entries ``Lithium
metal batteries contained in equipment'' or ``Lithium metal batteries
packed with equipment'' or ``Lithium ion batteries contained in
equipment'' or ``Lithium ion batteries packed with equipment'' as
appropriate. Self-propelled vehicles or equipment that also contain an
internal combustion engine must be consigned under the entries
``Engine, internal combustion, flammable gas powered'' or ``Engine,
internal combustion, flammable liquid powered'' or ``Vehicle, flammable
gas powered'' or ``Vehicle, flammable liquid powered,'' as appropriate.
These entries include hybrid electric vehicles powered by both an
internal combustion engine and batteries. Additionally, self-propelled
vehicles or equipment that contain a fuel cell engine must be consigned
under the entries ``Engine, fuel cell, flammable gas powered'' or
``Engine, fuel cell, flammable liquid powered'' or ``Vehicle, fuel
cell, flammable gas powered'' or ``Vehicle, fuel cell, flammable liquid
powered,'' as appropriate. These entries include hybrid electric
vehicles powered by a fuel cell engine, an internal combustion engine,
and batteries.
* * * * *
328 When lithium metal or lithium ion batteries are contained in
the fuel cell system, the item must be described under this entry and
the appropriate entries for ``Lithium metal batteries contained in
equipment'' or ``Lithium ion batteries contained in equipment''.
(c) * * *
(2) * * *
Code/Special Provisions
* * * * *
A51 Irrespective of the quantity limitations specified in Column
(9A) of the Sec. 172.101 Table or Sec. 175.75(c), the following
aircraft batteries may be transported on passenger aircraft as cargo:
a. Wet cell batteries, UN 2794 or UN 2795, up to a limit of 100kg
net mass per package;
b. Lithium ion batteries, UN 3480, packages containing a single
aircraft battery with a net mass not exceeding 35kg; and
c. Transport in accordance with this special provision must be
noted on the shipping paper.
* * * * *
A54 Irrespective of the quantity limits in Column 9B of the Sec.
172.101 table, a lithium battery, including a lithium battery packed
with, or contained in, equipment that otherwise meets the applicable
requirements of Sec. 173.185, may have a mass exceeding 35 kg if
approved by the Associate Administrator prior to shipment.
* * * * *
A101 In addition to the applicable requirements of Sec. 173.185,
the quantity of lithium metal in the batteries contained in any piece
of equipment must not exceed 12 g per cell and 500 g per battery.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
9. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.
0
10. Section 173.185 is revised to read as follows:
Sec. 173.185 Lithium cells and batteries.
As used in this section, lithium cell(s) or battery(ies) includes
both lithium metal and lithium ion chemistries. Equipment means the
device or apparatus for which the lithium cells or batteries will
provide electrical power for its operation.
(a) Classification. (1) Each lithium cell or battery must be of the
type proven to meet the criteria in Part III, sub-section 38.3 of the
UN Manual of Tests and Criteria (IBR; see Sec. 171.7 of this
subchapter). Lithium cells and batteries are subject to these tests
regardless of whether the cells used to construct the battery are of a
tested type.
(i) Cells and batteries manufactured according to a type meeting
the requirements of sub-section 38.3 of the UN Manual of Tests and
Criteria, Revision 3, Amendment 1 or any subsequent revision and
amendment applicable at the date of the type testing may continue to be
transported, unless otherwise provided in this subchapter.
(ii) Cell and battery types only meeting the requirements of the UN
Manual of Tests and Criteria, Revision 3, are no longer valid. However,
cells and batteries manufactured in conformity with such types before
July 2003 may continue to be transported if all other applicable
requirements are fulfilled.
(2) Each person who manufactures lithium cells or batteries must
create a record of satisfactory completion of the testing required by
this paragraph prior to offering the lithium cell or battery for
transport and must:
(i) Maintain this record for as long as that design is offered for
transportation and for one year thereafter; and
(ii) Make this record available to an authorized representative of
the Federal, state or local government upon request.
(3) Except for cells or batteries meeting the requirements of
paragraph (c) of this section, each lithium cell or battery must:
(i) Incorporate a safety venting device or be designed to preclude
a violent rupture under conditions normally incident to transport;
(ii) Be equipped with effective means of preventing external short
circuits; and
(iii) Be equipped with an effective means of preventing dangerous
reverse current flow (e.g., diodes or fuses) if a battery contains
cells, or a series of cells that are connected in parallel.
(b) Packaging. (1) Each package offered for transportation
containing lithium cells or batteries, including lithium cells or
batteries packed with, or contained in, equipment, must meet all
applicable requirements of subpart B of this part.
(2) Lithium cells or batteries, including lithium cells or
batteries packed with, or contained in, equipment, must be packaged in
a manner to prevent:
(i) Short circuits;
(ii) Movement within the outer package; and
[[Page 46037]]
(iii) Accidental activation of the equipment.
(3) For packages containing lithium cells or batteries offered for
transportation:
(i) The lithium cells or batteries must be placed in non-metallic
inner packagings that completely enclose the cells or batteries, and
separate the cells or batteries from contact with equipment, other
devices, or conductive materials (e.g., metal) in the packaging.
(ii) The inner packagings containing lithium cells or batteries
must be placed in one of the following packagings meeting the
requirements of part 178, subparts L and M, of this subchapter at the
Packing Group II level:
(A) Metal (4A, 4B, 4N), wooden (4C1, 4C2, 4D, 4F), fiberboard (4G),
or solid plastic (4H1, 4H2) box;
(B) Metal (1A2, 1B2, 1N2), plywood (1D), fiber (1G), or plastic
(1H2) drum;
(C) Metal (3A2, 3B2) or plastic (3H2) jerrican.
(iii) When packed with equipment lithium cells or batteries must:
(A) Be placed in inner packagings that completely enclose the cell
or battery, then placed in an outer packaging. The completed package
for the cells or batteries must meet the Packing Group II performance
requirements as specified in paragraph (b)(3)(ii) of this section; or
(B) Be placed in inner packagings that completely enclose the cell
or battery, then placed with equipment in a package that meets the
Packing Group II performance requirements as specified in paragraph
(b)(3)(ii) of this section.
(4) When lithium cells or batteries are contained in equipment:
(i) The outer packaging must be constructed of suitable material of
adequate strength and design in relation to the capacity and intended
use of the packaging, unless the lithium cells or batteries are
afforded equivalent protection by the equipment in which they are
contained;
(ii) Equipment must be secured against movement within the outer
packaging and be packed so as to prevent accidental operation during
transport; and
(iii) Any spare lithium ion cells or batteries packed with the
equipment must be packaged in accordance with paragraph (b)(3) of this
section.
(5) Lithium batteries that weigh 12 kg (26.5 pounds) or more and
have a strong, impact-resistant outer casing and assemblies of such
batteries, may be packed in strong outer packagings; in protective
enclosures (for example, in fully enclosed or wooden slatted crates);
or on pallets or other handling devices, instead of packages meeting
the UN performance packaging requirements in paragraphs (b)(3)(ii) and
(b)(4) of this section. Batteries or battery assemblies must be secured
to prevent inadvertent movement, and the terminals may not support the
weight of other superimposed elements. Batteries or battery assemblies
packaged in accordance with this paragraph are not permitted for
transportation by passenger-carrying aircraft, and may be transported
by cargo aircraft only if approved by the Associate Administrator.
(c) Exceptions for smaller cells or batteries. A package containing
lithium cells or batteries, or lithium cells or batteries packed with,
or contained in, equipment, that meets the conditions of this
paragraph, is excepted from the requirements in subparts C through H of
part 172 of this subchapter and the UN performance packaging
requirements in paragraphs (b)(3)(ii) and (b)(4) of this section under
the following conditions and limitations.
(1) Size limits:
(i) The Watt-hour rating may not exceed 20 Wh for a lithium ion
cell or 100 Wh for a lithium ion battery. After December 31, 2015, each
lithium ion battery subject to this provision must be marked with the
Watt-hour rating on the outside case.
(ii) The lithium content may not exceed 1 g for a lithium metal
cell or 2 g for a lithium metal battery.
(iii) Except when lithium metal cells or batteries are packed with
or contained in equipment in quantities less than 5 kg net weight, the
outer package that contains lithium metal cells or batteries must be
marked: ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT'' or ``LITHIUM METAL BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT.''
(iv) For transportation by highway or rail only, the lithium
content of the cell and battery may be increased to 5 g for a lithium
metal cell and 25 g for a lithium metal battery and 60 Wh for a lithium
ion cell or 300 Wh for a lithium ion battery provided the outer package
is marked: ``LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT
AND VESSEL.''
(v) The marking specified in paragraphs (c)(1)(ii) and (c)(1)(iii)
of this section must have a background of contrasting color, and the
letters in the marking must be:
(A) At least 6 mm (0.25 inch) on packages having a gross weight of
30 kg (66 pounds) or less, except that smaller font may be used as
necessary when package dimensions so require.
(B) At least 12 mm (0.5 inch) in height on packages having a gross
weight of more than 30 kg (66 pounds).
(vi) Except when lithium cells or batteries are packed with, or
contained in, equipment, each package must not exceed 30 kg (66 pounds)
gross weight.
(2) Packaging. Except when lithium cells or batteries are contained
in equipment, each package must be capable of withstanding a 1.2 meter
drop test, in any orientation, without damage to the cells or batteries
contained in the package, without shifting of the contents that would
allow battery-to-battery (or cell-to-cell) contact, and without release
of the contents of the package.
(3) Hazard communication. Except for a package containing button
cell batteries installed in equipment (including circuit boards), or no
more than four lithium cells or two lithium batteries installed in the
equipment:
(i) The outer package must be marked with:
(A) An indication that the package contains ``lithium metal'' or
``lithium ion'' cells or batteries, as appropriate;
(B) An indication that the package is to be handled with care and
that a flammable hazard exits if the package is damaged;
(C) An indication that special procedures must be followed in the
event the package is damaged, to include inspection and repacking if
necessary;
(D) A telephone number for additional information.
(ii) Each shipment of one or more packages marked in accordance
with this paragraph must be accompanied by a document that includes the
following:
(A) An indication that the package contains ``lithium metal'' or
``lithium ion'' cells or batteries, as appropriate;
(B) An indication that the package is to be handled with care and
that a flammable hazard exits if the package is damaged;
(C) An indication that special procedures must be followed in the
event the package is damaged, to include inspection and repacking if
necessary; and
(D) A telephone number for additional information.
(4) Air transportation. For transportation by aircraft, lithium
cells and batteries may not exceed the limits in the following table.
The limits on the maximum number of batteries and maximum net quantity
of batteries in the following table may not be combined in the same
package:
[[Page 46038]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lithium metal Lithium metal Lithium metal Lithium ion
cells and/or cells with a batteries with a Lithium ion cells Lithium ion cells batteries with a
batteries with a lithium content lithium content and/or batteries with a Watt-hour Watt-hour rating
Contents lithium content more than 0.3 g more than 0.3 g with a Watt-hour rating more than more than 2.7 Wh
not more than 0.3 but not more than but not more than rating not more 2.7 Wh but not but not more than
g 1 g 2 g than 2.7 Wh more than 20 Wh 100 Wh
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum number of cells/ No Limit.......... 8 cells........... 2 batteries....... No Limit.......... 8 cells........... 2 batteries.
batteries per package.
Maximum net quantity (mass) per 2.5 kg............ n/a............... n/a............... 2.5 kg............ n/a............... n/a.
package.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) The outer package must be durably and legibly marked with the
following handling marking, which is durable, legible and displayed on
a background of contrasting color:
[GRAPHIC] [TIFF OMITTED] TR06AU14.000
(A) The marking must be not less than 120 mm (4.7 inches) wide by
110 mm (4.3 inches) high except markings of 105 mm (4.1 inches) wide by
74 mm (2.9 inches) high may be used on a package containing lithium
batteries when the package is too small for the larger marking;
(B) The symbols and letters must be black and the border must be
red;
(C) The ``*'' must be replaced by ``lithium ion battery'' and/or
``Lithium metal battery'' as appropriate and the ``xxx-xxx-xxxx'' must
be replaced by a telephone number for additional information; and
(D) When packages required to bear the handling marking are placed
in an overpack, the handling marking must either be clearly visible
through the overpack, or the handling marking must also be affixed on
the outside of the overpack, and the overpack must be marked with the
word ``Overpack''.
(ii) Each shipment with packages required to bear the handling
marking must include an indication the shipment contains ``lithium ion
batteries'' or ``lithium metal batteries,'' as appropriate, and when an
air waybill is used, an indication on the air waybill of compliance
with this paragraph (c)(4) (or the applicable ICAO Packing
Instruction).
(iii) For lithium batteries packed with, or contained in,
equipment, the number of batteries in each package is limited to the
minimum number required to power the piece of equipment, plus two
spares, and the total net quantity (mass) of the lithium cells or
batteries in the completed package must not exceed 5 kg.
(iv) Each person who prepares a package for transport containing
lithium cells or batteries, including cells or batteries packed with,
or contained in, equipment in accordance with the conditions and
limitations in this paragraph, must receive adequate instruction on
these conditions and limitations, commensurate with their
responsibilities.
(v) A package that exceeds the number or quantity (mass) limits in
the table shown in this paragraph (c)(4) is subject to all applicable
requirements of this subchapter, except that a package containing no
more than 2.5 kg lithium metal cells or 10 kg lithium ion cells or
batteries is not subject to:
(A) The UN performance packaging requirements in paragraphs
(b)(3)(ii) of this section when the package displays both the lithium
battery handling marking and the Class 9 label; and
(B) The shipping paper requirements of subpart C of part 172 when
the offeror provides the air carrier alternative written documentation
containing the name and address of the offeror and consignee, the UN
number, an indication of compliance with this paragraph (c)(4) applies
(or the applicable ICAO Packing Instruction), and the number of
packages and the gross mass of each package and notification is given
to the pilot-in-command in accordance with Sec. 175.33 of this
subchapter.
(d) Lithium cells or batteries shipped for disposal or recycling. A
lithium cell or battery, including a lithium cell or battery contained
in equipment, that is transported by motor vehicle to a permitted
storage facility or disposal site, or for purposes of recycling, is
[[Page 46039]]
excepted from the testing and record keeping requirements of paragraph
(a) and the specification packaging requirements of paragraph (b)(3) of
this section, when packed in a strong outer packaging conforming to the
requirements of Sec. Sec. 173.24 and 173.24a. A lithium cell or
battery that meets the size, packaging, and hazard communication
conditions in paragraph (c)(1)-(3) of this section is excepted from
subparts C through H of part 172 of this subchapter.
(e) Low production runs and prototypes. Low production runs (i.e.,
annual production runs consisting of not more than 100 lithium cells or
batteries), or prototype lithium cells or batteries transported for
purposes of testing, are excepted from the testing and record keeping
requirements of paragraph (a) of this section provided:
(1) Except as provided in paragraph (e)(3) of this section, each
cell or battery is individually packed in a non-metallic inner
packaging, inside an outer packaging, and is surrounded by cushioning
material that is non-combustible and non-conductive;
(2) The inner packages containing lithium cells or batteries are
packed in one of the following packagings that meet the requirements of
part 178, Subparts L and M at Packing Group I level.
(i) Metal (4A, 4B, 4N), wooden (4C1, 4C2, 4D, 4F), or solid plastic
(4H2) box;
(ii) Metal (1A2, 1B2, 1N2), plywood (1D), or plastic (1H2) drum.
(3) Lithium batteries that weigh 12 kg (26.5 pounds) or more and
have a strong, impact-resistant outer casing or assemblies of such
batteries, may be packed in strong outer packagings, in protective
enclosures (for example, in fully enclosed or wooden slatted crates),
or on pallets or other handling devices, instead of packages meeting
the UN performance packaging requirements in paragraphs (b)(3)(ii) and
(b)(4) of this section. The battery or battery assembly must be secured
to prevent inadvertent movement, and the terminals may not support the
weight of other superimposed elements;
(4) Irrespective of the limit specified in column (9B) of the Sec.
172.101 Hazardous Materials Table, the battery or battery assembly
prepared for transport in accordance with this paragraph may have a
mass exceeding 35 kg gross weight when transported by cargo aircraft;
and
(5) Batteries or battery assemblies packaged in accordance with
this paragraph are not permitted for transportation by passenger-
carrying aircraft, and may be transported by cargo aircraft only if
approved by the Associate Administrator prior to transportation.
(f) Damaged, defective, or recalled cells or batteries. Lithium
cells or batteries, that have been damaged or identified by the
manufacturer as being defective for safety reasons, that have the
potential of producing a dangerous evolution of heat, fire, or short
circuit (e.g. those being returned to the manufacturer for safety
reasons) may be transported by highway, rail or vessel only, and must
be packaged as follows:
(1) Each cell or battery must be placed in individual, non-metallic
inner packaging that completely encloses the cell or battery;
(2) The inner packaging must be surrounded by cushioning material
that is non-combustible, non-conductive, and absorbent; and
(3) Each inner packaging must be individually placed in one of the
following packagings meeting the requirements of part 178, subparts L
and M, of this subchapter at the Packing Group I level:
(i) Metal (4A, 4B, 4N), wooden (4C1, 4C2, 4D, 4F), or solid plastic
(4H2) box;
(ii) Metal (1A2, 1B2, 1N2), plywood (1D), or plastic (1H2) drum;
and
(4) The outer package must be marked with an indication that the
package contains a ``Damaged/defective lithium ion battery'' and/or
``Damaged/defective lithium metal battery'' as appropriate.
(g) Approval. A lithium cell or battery that does not conform to
the provisions of this subchapter may be transported only under
conditions approved by the Associate Administrator.
0
11. In Sec. 173.219, paragraph (b)(3) is revised to read as follows:
Sec. 173.219 Life-saving appliances.
* * * * *
(b) * * *
(3) Electric storage batteries and lithium batteries (life-saving
appliances containing lithium batteries must be packed in accordance
with Sec. 173.185 and Special Provisions A54 and A101 as applicable.);
* * * * *
0
12. In Sec. 173.220, paragraphs (d) and (f)(1) are revised to read as
follows:
Sec. 173.220 Internal combustion engines, self-propelled vehicles,
mechanical equipment containing internal combustion engines, battery
powered equipment or machinery, fuel cell-powered equipment or
machinery.
* * * * *
(d) Lithium batteries. Except as provided in Sec. 172.102, special
provision A101, of this subchapter, vehicles, engines, and machinery
powered by lithium metal batteries, that are transported with these
batteries installed, are forbidden aboard passenger-carrying aircraft.
Lithium batteries contained in vehicles, engines, or mechanical
equipment must be securely fastened in the battery holder of the
vehicle, engine, or mechanical equipment, and be protected in such a
manner as to prevent damage and short circuits (e.g., by the use of
non-conductive caps that cover the terminals entirely). Except for
vehicles transported by highway, rail, or vessel with prototype or low
production lithium batteries securely installed, each lithium battery
must be of a type that has successfully passed each test in the UN
Manual of Tests and Criteria, as specified in Sec. 173.185, unless
approved by the Associate Administrator.
* * * * *
(f) Other hazardous materials. (1) Items containing hazardous
materials, such as fire extinguishers, compressed gas accumulators,
safety devices, and other hazardous materials that are integral
components of the motor vehicle, engine, or mechanical equipment, and
that are necessary for the operation of the vehicle, engine, or
mechanical equipment, or for the safety of its operator or passengers,
must be securely installed in the motor vehicle, engine, or mechanical
equipment. Such items are not otherwise subject to the requirements of
this subchapter. Equipment (other than vehicles, engines, or mechanical
equipment), such as consumer electronic devices containing lithium
batteries, must be described as ``Lithium metal batteries contained in
equipment'' or ``Lithium ion batteries contained in equipment,'' as
appropriate, and transported in accordance with Sec. 173.185 of this
subchapter, and applicable special provisions. Equipment (other than
vehicles, engines, or mechanical equipment), such as consumer
electronic devices containing fuel cells (fuel cell cartridges), must
be described as ``Fuel cell cartridges contained in equipment'' and
transported in accordance with Sec. 173.230 of this subchapter.
* * * * *
PART 175--CARRIAGE BY AIRCRAFT
0
13. The authority citation for part 175 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.
0
14. In Sec. 175.8, add a new paragraph (a)(4) to read as follows:
[[Page 46040]]
Sec. 175.8 Exceptions for operator equipment and items of
replacement.
(a) * * *
(4) Unless otherwise addressed by FAA regulation or policy (e.g.
Advisory Circular), hazardous materials used by the operator aboard the
aircraft, when approved by the Administrator of the Federal Aviation
Administration.
* * * * *
0
15. In Sec. 175.10, paragraph (a)(18) is revised to read as follows:
Sec. 175.10 Exceptions for passengers, crewmembers, and air
operators.
(a) * * *
(18) Except as provided in Sec. 173.21 of this subchapter,
portable electronic devices (e.g., watches, calculating machines,
cameras, cellular phones, laptop and notebook computers, camcorders,
medical devices etc.) containing dry cells or dry batteries (including
lithium cells or batteries) and spare dry cells or batteries for these
devices, when carried by passengers or crew members for personal use.
Portable electronic devices powered by lithium batteries may be carried
in either checked or carry-on baggage. Spare lithium batteries must be
carried in carry-on baggage only. Each installed or spare lithium
battery must be of a type proven to meet the requirements of each test
in the UN Manual of Tests and Criteria, Part III, Sub-section 38.3 and
each spare lithium battery must be individually protected so as to
prevent short circuits (e.g., by placement in original retail
packaging, by otherwise insulating terminals by taping over exposed
terminals, or placing each battery in a separate plastic bag or
protective pouch). In addition, each installed or spare lithium battery
must not exceed the following:
(i) For a lithium metal battery, a lithium content of not more than
2 grams per battery; or
(ii) For a lithium ion battery, the Watt-hour rating must not
exceed 100 Wh. With the approval of the operator, portable electronic
devices may contain lithium ion batteries exceeding 100 Wh, but not
exceeding 160 Wh and no more than two individually protected lithium
ion batteries each exceeding 100 Wh, but not exceeding 160 Wh, may be
carried per person as spare batteries in carry-on baggage.
* * * * *
0
16. In Sec. 175.30, add a new paragraph (a)(5) to read as follows:
Sec. 175.30 Inspecting shipments.
(a) * * *
(5) Described on alternative written documentation when authorized
in accordance with Sec. 173.185(c)(4)(v). See Sec. 175.33 for
alternative written documentation retention requirements.
* * * * *
0
17. In Sec. 175.33, add new paragraphs (a)(12) and (c)(5) to read as
follows:
Sec. 175.33 Shipping paper and notification of pilot-in-command.
(a) * * *
(12) For shipments of lithium cells or batteries (UN3090 or UN3480)
offered for transportation, or transported in accordance with Sec.
173.185(c)(4)(v) of this subchapter, only the UN Number, proper
shipping name, hazard class, and the total quantity at each specific
loading location and whether the package must be loaded on a cargo only
aircraft.
* * * * *
(c) * * *
(5) Retain a copy of the alternative written documentation when
provided in accordance with Sec. 173.185(c)(4)(v)(B) of this
subchapter or an electronic image thereof, or the information contained
therein for 90 days at the airport of departure or the operator's
principal place of business.
* * * * *
Issued in Washington, DC, on July 29, 2014 under authority
delegated in 49 CFR part 1.97.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2014-18146 Filed 8-5-14; 8:45 am]
BILLING CODE 4910-60-P