Hazardous Materials; Transportation of Lithium Batteries, 44930-44950 [E7-15213]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44930-44950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15213]



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Part III





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Parts 171, 172, 173, and 175



Hazardous Materials; Transportation of Lithium Batteries; Final Rule

Federal Register / Vol. 72 , No. 153 / Thursday, August 9, 2007 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173 and 175

[Docket Nos. PHMSA-02-11989 (HM-224C) and PHMSA-04-19886 (HM-224E)]
RIN 2137-AD48 and RIN 2137-AE05


Hazardous Materials; Transportation of Lithium Batteries

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
amending the Hazardous Materials Regulations (HMR) to tighten the 
safety standards for transportation of lithium batteries, including 
both primary (non-rechargeable) and secondary (rechargeable) lithium 
batteries. Specifically, we are adopting with minor changes the 
amendments to the HMR published in an interim final rule on December 
15, 2004, imposing a limited prohibition on the transportation of 
primary lithium batteries and cells as cargo aboard passenger-carrying 
aircraft. In addition, we are adopting many of the proposed changes to 
the HMR published under the April 2, 2002 NPRM; (1) Eliminating a 
hazard communication and packaging exception for medium-size lithium 
cells and batteries of all types transported by aircraft or vessel; (2) 
revising an exception for small lithium batteries and cells of all 
types to require testing in accordance with the United Nations Manual 
of Tests and Criteria; and (3) revising an exception for consumer 
electronic devices and spare lithium batteries of all types carried by 
airline passengers and crew. These amendments will enhance 
transportation safety by reducing fire hazards associated with lithium 
batteries and harmonizing U.S. and international standards.

DATES: Effective Date: The effective date of these amendments is 
January 1, 2008.
    Voluntary Compliance: Voluntary compliance with all of these 
amendments, including those with a delayed mandatory compliance date, 
is authorized as of October 1, 2007.

FOR FURTHER INFORMATION CONTACT: John Gale or Arthur Pollack, Office of 
Hazardous Materials Standards, PHMSA, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001, Telephone (202) 366-
8553.

SUPPLEMENTARY INFORMATION: 

List of Topics

I. Background

    A. Overview of Lithium Battery Risks
    B. LAX Incident and NTSB Recommendations
    C. Additional Incidents
    D. Recalls
    E. Regulatory Action To Address Transportation Risks Posed by 
Lithium Batteries of all Types
II. Provision of This Final Rule
    A. Docket HM-224C
    B. Docket HM-224E
III. Rulemaking Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132 (Federalism)
    D. Executive Order 13175
    E. Regulatory Flexibility Act
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. Environmental Assessment
    I. Regulation Identifier Number
    J. Privacy Act

    This final rule is the culmination of two rulemaking proceedings 
initiated by the Research and Special Programs Administration (RSPA), 
the predecessor agency to the Pipeline and Hazardous Materials Safety 
Administration (PHMSA), in order to reduce the risks of battery-related 
fires in transportation and in response to incident reports and 
recommendations of the Federal Aviation Administration (FAA) and 
National Transportation Safety Board (NTSB). The final rule continues 
in force a limited ban on the transportation of certain lithium 
batteries as cargo aboard passenger aircraft. It tightens other 
standards for the testing, handling, and packaging of lithium 
batteries, in each case to reduce the likelihood or consequence of a 
lithium battery-related fire in transportation. Although we developed 
these standards in separate rulemaking proceedings, we have combined 
them for publication in this single final rule in the interests of 
clarity and consistency and to minimize regulatory burdens.

I. Background

    The final rule adopted today is one of several actions PHMSA is 
taking, in consultation with the FAA, to improve the safety of lithium 
batteries in transportation. Beyond rulemaking and enforcement, PHMSA 
and FAA are promoting and advancing non-regulatory solutions through a 
broad group of public and private sector stakeholders that share our 
interest in battery and transportation safety. We are working with 
representatives of the NTSB, the Consumer Product Safety Commission, 
manufacturers of lithium batteries and battery-powered products, 
airlines, airline employee organizations, testing laboratories, and the 
emergency response and law enforcement communities to share and 
disseminate information about battery-related risks and developments 
and to promote improvements in industry standards and best practices. 
We report on these non-regulatory activities through our public Web 
site at https://safetravel.dot.gov.

A. Overview of Lithium Battery Risks

    Lithium batteries are considered a hazardous material for purposes 
of transportation regulation because they can overheat and ignite in 
certain conditions and, once ignited, can be especially difficult to 
extinguish. In general, the risks posed by lithium batteries are a 
function of battery size (the amount of lithium content and 
corresponding energy density) and the likelihood of short-circuiting or 
rupture. By comparison to standard alkaline batteries, most lithium-ion 
batteries manufactured today contain a flammable electrolyte and have a 
very high energy density. A lithium battery is susceptible to thermal 
runaway, a chain reaction leading to self-heating and release of its 
stored energy.
    The increasing manifestation of these risks, inside and outside of 
transportation, drives the need for stricter safety standards. Once 
used primarily in industrial and military applications, lithium 
batteries are now found in a variety of popular consumer items, 
including cameras, laptop computers, and mobile telephones. The 
numbers, types, and sizes of lithium batteries moving in transportation 
have grown steadily in recent years with the increasing popularity of 
these and other portable devices and the corresponding proliferation of 
battery designs, manufacturers, and applications.
    Like other products that contain hazardous materials, lithium 
batteries can be transported safely, provided appropriate precautions 
are taken in design, packaging, handling, and emergency response. The 
rule adopted in this proceeding strengthens the current regulatory 
framework by imposing stricter and more effective safeguards, including 
design testing, packaging, and hazard communication measures, for 
certain types and sizes of lithium batteries in certain transportation 
contexts.
    These adjustments are risk-based and data-driven, reflecting 
incident reports, laboratory testing, and other information that 
together promote better understanding of risks and

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consequences in relationship to specific risk variables:
    Battery technology. In the rulemaking proposals that gave rise to 
the final rule, we differentiated between ``primary'' (or non-
rechargeable) and ``secondary'' (or rechargeable) lithium batteries. 
This distinction, which is well established in international standards, 
is related to the battery composition. ``Primary'' (non-rechargeable) 
lithium batteries generally contain lithium metal, while most 
``secondary'' (rechargeable) lithium batteries contain an ionic form of 
lithium (lithium-ion). The technology used in lithium batteries has a 
significant impact on the battery application and, all other factors 
being equal, on corresponding transportation risks.
    For purposes of this rulemaking, we use the term ``primary lithium 
battery'' to refer to a non-rechargeable battery and the term 
``secondary lithium battery'' to refer to a rechargeable battery. In 
most cases, this distinction will differentiate between different 
battery technologies. Although we understand that the distinction is 
being called into question by technological and market developments, we 
believe the regulatory definitions continue to have merit at this time, 
recognizing that further regulatory refinement will be necessary to 
respond to further technological developments and our growing 
understanding of transportation risks.
    Transportation mode. The consequence of a lithium battery-related 
fire depends largely on the transportation context. In weighing the 
costs and benefits of regulation, we consider the mode of 
transportation and impose the strictest standards in air 
transportation, particularly passenger service. Although most battery-
related fires have caused only property damage or delays in ground 
transportation, even a small fire aboard an in-flight aircraft 
threatens catastrophic consequences.
    Battery size. The degree of risk posed by lithium batteries is 
largely a function of the amount of stored energy, which is in turn a 
function of the number and relative lithium content of battery cells. 
These size standards are the accepted categorization of lithium 
batteries under the United Nations Recommendations and international 
regulatory bodies such as the International Civil Aviation Organization 
(ICAO). A cell is a single electro-chemical unit; a battery consists of 
one or more connected cells. The size of a cell or battery is 
determined by its lithium content, as summarized in the following 
chart:

                                 Table 1.--Battery and Cell Category Definitions
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                                      Small (no more than)        Medium (between)          Large (more than)
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Cells:
    Primary......................  1 g Li.                    1 g and 5 g Li.           5 g Li.
    Secondary....................   1.5 g ELC.*               1.5 g and 5 g ELC.        5 g ELC.
Batteries:
    Primary......................  2 g Li.                    2 g and 25 g Li.          25 g Li.
    Secondary....................  8 g ELC.                   8 g and 25 g ELC.         25 g ELC.
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* ELC (Equivalent Lithium Content).

    Quantity. The number of lithium batteries in a shipment can also 
affect the severity of an incident. For example, several thousand small 
lithium batteries consolidated together present a higher potential risk 
than a shipment of a single lithium battery, because one burning 
primary lithium or secondary lithium battery can produce enough heat 
and energy to propagate to other lithium batteries in the same 
overpack, freight container, or cargo hold.
    Product Design, Package Integrity, and Transportation Handling. The 
risks that a lithium battery will short-circuit or rupture are a 
function of design, packaging, and handling. As with many hazardous 
materials, the risk of a transportation incident involving lithium 
batteries can be reduced by strengthening packaging and reducing the 
likelihood and impact of rough handling. The amendments adopted here 
include tightened testing standards to ensure that batteries that pose 
the greatest risk in transportation are designed to withstand normal 
conditions of transportation and packaged to minimize risks of 
mishandling or damage in transit.
    Emergency Response. In developing the final rule, we paid special 
attention to the potential consequences of lithium battery-related 
fires. Although we take fire hazards seriously in all modes, we must be 
particularly concerned about the possibility of an uncontrolled fire 
aboard an aircraft.
    To evaluate the hazards posed by primary lithium batteries in air 
transportation, FAA's Technical Center initiated a series of tests to 
assess their flammability characteristics. FAA published a technical 
report detailing the results of the tests in June 2004 (DOT/FAAIARI-04/
26). The battery tests were designed to test the batteries in an 
environment that is similar to actual conditions possible in a 
suppressed cargo fire. The FAA tests showed that the packaging 
materials delayed the ignition of the batteries, but eventually added 
to the fire loading and contributed to the battery ignition, even after 
the original (alcohol) fire had been exhausted. In addition, the 
packaging material held the batteries together, allowing the plastic 
outer coating to fuse the batteries together. This enhanced the 
probability of a burning battery igniting adjacent batteries, 
increasing the propagation rate. The technical report, which can be 
found in the docket for this rulemaking, concluded that the presence of 
a shipment of primary lithium batteries can significantly increase the 
severity of an in-flight cargo compartment fire.
    In addition, the report concluded that primary lithium batteries 
pose a unique threat in the cargo compartment of an aircraft because 
primary lithium battery fires cannot be suppressed by means of Halon, 
the only FAA-certified fire suppression system permitted for use in 
cargo compartments of a passenger-carrying aircraft operating in the 
United States.
    FAA also conducted a series of test to determine the flammability 
of secondary lithium batteries and cells and issued a final report 
detailing the results in September 2006 (DOT/FAA/AR-06/38). This report 
can be found in the docket for this rulemaking. Flames produced by the 
batteries are hot enough to cause adjacent cells to vent and ignite. 
The report also concluded that Halon is effective in suppressing the 
electrolyte fire and preventing any additional fire from subsequent 
cell venting. The lithium-ion cells will continue to vent due to high 
temperatures but will not ignite in the presence of Halon.

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B. LAX Incident and NTSB Recommendations

    The notices of proposed rulemaking (NPRMs) in these proceedings 
both tied the need for tighter safety standards to an April 28, 1999 
fire at Los Angeles International Airport (LAX). The LAX incident 
involved a shipment of two pallets of primary lithium batteries that 
caught fire and burned after being off-loaded from a Northwest Airlines 
flight originating in Osaka, Japan. The two pallets involved in the 
fire contained 120,000 small primary lithium batteries that were 
excepted from domestic and international regulatory requirements 
applicable to hazard communication (i.e., marking, labeling, and 
shipping papers) and packaging. The packages on the pallets were 
damaged during handling at LAX, and this damage is believed to have 
initiated the subsequent fire. Northwest ground employees initially 
fought the fire with portable fire extinguishers and a fire hose. Each 
time the fire appeared to be extinguished, it flared up again.
    The LAX incident illustrated the unique transportation safety 
problems posed by lithium batteries, including the risk of rough 
handling in transit, resulting short-circuiting, thermal runaway, 
ignition of adjacent batteries, and the ineffectiveness of halon as an 
extinguishing agent.
    The NTSB conducted a full investigation of the LAX incident. The 
NTSB's final report, issued November 16, 1999, included five safety 
recommendations addressed to RSPA:

    A-99-80: Together with the Federal Aviation Administration, 
evaluate the fire hazards posed by lithium batteries in an air 
transportation environment and require that appropriate safety 
measures be taken to protect aircraft and occupants. The evaluation 
should consider the testing requirements for lithium batteries in 
the United Nation's Transport of Dangerous Goods Manual of Tests and 
Criteria, the involvement of packages containing large quantities of 
tightly packed batteries in a cargo compartment fire, and the 
possible exposure of batteries to rough handling in an air 
transportation environment, including being or abraded open.
    A-99-81: Pending completion of your evaluation of the fire 
hazards posed by lithium batteries in an air transportation 
environment, prohibit the transportation of lithium batteries on 
passenger-carrying aircraft.
    A-99-82: Require that packages containing lithium batteries be 
identified as hazardous materials, including appropriate marking and 
labeling of the packages and proper identification in shipping 
documents, when transported on aircraft.
    A-99-83: Pending completion of your evaluation of the fire 
hazards posed by lithium batteries in an air transportation 
environment, notify the International Civil Aviation Organization's 
Dangerous Goods Panel (ICAO DGP) about the circumstances of the fire 
in the Northwest Airlines cargo facility at Los Angeles 
International Airport on April 28, 1999. Also pending completion of 
your evaluation of the fire hazards posed by lithium batteries in an 
air transportation environment, initiate action through the 
Dangerous Goods Panel to revise the Technical Instructions for the 
Safe Transportation of Dangerous Goods by Air to prohibit the 
transportation of lithium batteries on passenger-carrying aircraft.
    A-99-84: Initiate action through the Dangerous Goods Panel to 
revise the Technical Instructions for the Safe Transportation of 
Dangerous Goods by Air to require that packages containing lithium 
batteries be identified as hazardous materials when transported on 
aircraft.

C. Additional Incidents

    The April 1999 LAX incident was not an isolated event; numerous 
incidents involving lithium batteries have been reported in the 
intervening years, most in the period since we initiated these 
rulemaking proceedings. Fortunately, none of the aviation-related 
incidents has resulted in death or serious injury; most of the 
incidents occurred either before or after flight. Some of these 
additional incidents are described below:
     On November 3, 2000, in Portland, Oregon, a small primary 
lithium battery short-circuited, causing a small fire and rupture of 
the battery. The primary lithium battery burned through its inner 
packaging and charred an adjacent package. The short-circuited battery 
had long flexible protruding positive and negative terminals.
     On April 12, 2002, small primary lithium batteries 
packaged in a fiberboard box ignited during handling in Indianapolis, 
Indiana.
     On August 9, 2002, a small secondary lithium battery in an 
electronic handheld device short-circuited, causing surrounding packing 
materials (bubble wrap) to catch fire.
     On August 7, 2004, large prototype secondary lithium 
batteries shipped under a competent authority approval from California 
to Europe apparently started a fire in a unit load device (ULD) during 
loading for a transatlantic flight (Memphis-Paris). The ULD and many 
other packages in it were damaged or destroyed by fire.
     On February 11, 2005, an undeclared package containing 18 
small primary lithium batteries caught fire during unloading in White 
Bear Lake, Minnesota. Cargo handlers reported hearing a ``pop'' sound 
and then seeing the box ``lifted'' off the conveyor belt by the force. 
The package had been flown from Los Angeles to Minneapolis and was to 
be trucked to Clear Lake, Wisconsin.
     On or about June 29, 2005, the contents of a ULD caught 
fire onboard a flight from Shanghai, China to the United States. 
Airline ground personnel discovered evidence of the fire after the 
plane landed safely in Ontario, California. A package containing a 
secondary lithium battery pack was identified as the source of the 
fire.
     On March 3, 2006, a U.S.-bound package containing 
secondary lithium batteries ignited in an outbound air transport 
station in Shenzhen, China.
     On July 17, 2006, a package with no marking or labeling 
containing 122 secondary lithium batteries of various sizes caught fire 
while being held in bond for customs clearance in Korea, after 
transportation by air from Vienna, Austria.
     On February 10, 2007, shortly after takeoff of a 
commercial flight, a fire ignited in a passenger bag stowed in an 
overhead bin. Although the fire is still under investigation, 
preliminary reports indicate both small lithium ion and small primary 
batteries were involved in the incident.
     On March 1, 2007, a package sent by an eBay vendor via the 
United States Postal Service, containing 24 primary lithium batteries, 
caught fire at the Sydney Australia Mail Gateway Facility. The package 
had been transported to Sydney from Los Angeles on a passenger 
aircraft.

D. Recalls

    In August and October of 2006 and March of 2007, several leading 
computer manufacturers recalled nearly 10 million notebook computer 
secondary lithium batteries based on manufacturing defects. The 
batteries in the 2006 recalls, manufactured by Sony Energy Devices 
Corporation, were voluntarily recalled in coordination with the U.S. 
Consumer Product Safety Commission (CPSC). According to CPSC reports, 
these defective secondary lithium batteries can spontaneously overheat 
and cause fires. The batteries in the March 2007 voluntary recall were 
manufactured by Sanyo Electric Company, Ltd. and designed to be 
extended-life batteries for Lenovo ThinkPad notebook computers. 
According to CPSC, the Sanyo lithium-ion batteries pose a fire hazard 
if the battery is struck forcefully on the corner (e.g., a direct fall 
to the ground).

E. Regulatory Actions To Address Transportation Risks Posed by Lithium 
Batteries of All Types

    As we explained above, the regulatory actions we are taking today 
are part of

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a broader and ongoing effort to address the transportation risks posed 
by lithium batteries. Even as the measures adopted in this final rule 
progressed through the rulemaking process, more data surfaced 
concerning lithium battery risks. These developments have lent further 
support to the proposed approaches and spurred additional proposals for 
regulatory and non-regulatory change.
    Inevitably, further technological advances, new product 
development, and market shifts will drive continued change in risks and 
benefits. We are committed to addressing those changes in a manner that 
safeguards our transportation systems and the traveling public, while 
promoting positive technological advances and minimizing regulatory 
costs and burdens for consumers and industry, including small 
businesses. To that end, we will continue to collect and analyze data 
concerning the risks posed by batteries and battery-powered devices of 
all types. We are committed to working with all affected stakeholders 
to identify risks and develop solutions, especially including non-
regulatory solutions. In keeping with DOT regulatory policies and 
procedures, we will analyze the effectiveness of our rules over time, 
with a commitment to updating or eliminating any regulations that 
become unnecessary or unduly costly with changes in technology or 
transportation operations.
    Recognizing that the risk and benefit profile is and has been 
dynamic, the final rule adopted today is best understood against the 
backdrop of existing and ongoing regulatory actions, including the 
separate rulemaking proposals that gave rise to this consolidated 
proceeding. By way of background, we begin with a discussion of 
regulatory requirements in place at the time of the LAX incident and 
NTSB recommendations.
    1. Regulatory Requirements Prior to Adoption of this Final Rule. 
Under the Hazardous Materials Regulations (HMR, 49 CFR Parts 171-180), 
most lithium batteries and cells of all types and equipment containing 
or packed with lithium batteries or cells of all types are regulated as 
a Class 9 (Miscellaneous) hazardous material. A Class 9 material is one 
that presents a hazard during transportation, but that does not meet 
the definition of any other hazard class. The HMR require lithium 
batteries to be tested in accordance with a series of tests in Section 
38.3 of the UN Test Manual. The tests are designed to ensure that a 
battery design type is capable of withstanding conditions encountered 
in transportation. The tests include: (1) Test T.1 Altitude simulation, 
(2) Test T.2 Thermal test, (3) Test T.3 Vibration, (4) Test T.4 Shock, 
(5) Test T.5 External short circuit, (6) Test T.6 Impact, (7) Test T.7 
Overcharge, and (8) Test T.8 Forced discharge. In addition, lithium 
batteries and cells must be: (1) Equipped with an effective means of 
preventing short circuits; (2) packaged in UN standard packagings 
meeting the Packing Group II performance level; and (3) identified on 
shipping papers and by package markings and hazard warning labels. See 
Sec.  173.185(e).
    Section 173.185 of the HMR contains exceptions from the packaging 
and hazard communication requirements of the HMR for small and medium-
size lithium batteries and cells. Small and medium-size lithium 
batteries and cells must be packaged in strong outer packagings, and in 
a manner to protect against short circuits, but UN standard packagings 
are not required, and the requirements in Part 172 of the HMR 
applicable to shipping papers, marking, labeling, and emergency 
response information do not apply. Small lithium batteries and cells 
are also excepted from testing in accordance with the UN Test Manual.
    2. Changes to International Regulations. Acting on a proposal by 
the United States, in December 2000, the United Nations Sub-Committee 
of Experts on the Transport of Dangerous Goods revised the UN 
Recommendations to: (1) Revise the lithium battery testing requirements 
in the UN Test Manual to provide more precise descriptions of the 
testing procedures and criteria and require more extensive testing to 
measure temperature, altitude, vibration, shock, impact, overcharge, 
forced discharge and intentional short; (2) eliminate an exception that 
permitted medium-size lithium batteries to be transported as 
unregulated material; (3) require testing of small lithium batteries to 
ensure they can withstand conditions encountered during transportation; 
(4) impose hazard communication and packaging requirements for small 
lithium batteries; and (5) provide exceptions for passengers and crew 
to carry lithium battery-powered equipment aboard an aircraft. These 
revisions were subsequently included in the 2003-2004 ICAO Technical 
Instructions. As a result of these revisions to the international 
regulations, NTSB classified recommendations A-99-83 and -84 as 
``Closed-Acceptable Alternate Action.''
    3. HM-224C Rulemaking. On April 2, 2002, we issued an NPRM (HM-
224C; 67 FR 15510) proposing changes to current HMR requirements for 
the transport of lithium batteries consistent with the changes adopted 
in the UN Recommendations and ICAO Technical Instructions. These 
amendments were intended to improve the safety of lithium batteries in 
transportation and harmonize U.S. and international standards. 
Specifically, we proposed to: (1) Adopt the revised lithium battery 
test scheme in the UN Test Manual; (2) eliminate the exception for 
medium-size lithium batteries; (3) require testing of small lithium 
batteries; (4) impose hazard communication and packaging requirements 
for small lithium batteries; and (5) provide exceptions for passengers 
and crew to carry lithium battery-powered equipment aboard an aircraft.
    4. HM-224E Rulemaking. Based in part on the June 2004 FAA technical 
report concerning the flammability characteristics of primary lithium 
batteries, discussed earlier in this preamble, on December 15, 2004, 
PHMSA published an interim final rule (IFR; Docket HM-224E; 69 FR 
75208) prohibiting the shipment of primary lithium batteries as cargo 
on passenger-carrying aircraft. The IFR prohibits the offering for 
transportation and transportation in commerce of primary lithium 
batteries and cells, and equipment containing or packed with large 
primary lithium batteries (i.e., batteries containing greater than 25 
grams of lithium) as cargo aboard passenger-carrying aircraft. In 
addition, equipment packed with or containing small or medium-size 
primary lithium batteries (i.e., batteries containing 25 grams or less 
of lithium) must be transported in accordance with Special Provisions 
A101 or A102. Under these Special Provisions, a primary lithium battery 
or cell packed with or contained in equipment may not exceed a net 
weight of 5 kg (11 pounds). Finally, the outside of each package that 
contains a primary lithium battery or cell forbidden for transport 
aboard passenger carrying aircraft must be marked ``PRIMARY LITHIUM 
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.''
    5. Additional Recent Amendments to International Regulations. At 
the international level, interest in the safe transportation of lithium 
batteries continues to grow as the number of lithium battery incidents 
(including non-transportation-related fires and product recalls) 
increases. The following activities and discussions of the ICAO 
Dangerous Goods Panel and the UN Sub-Committee of Experts on the 
Transport of Dangerous Goods signal further safety enhancements to the

[[Page 44934]]

ICAO Technical Instructions and UN Recommendations:
    At its 2006 meeting (October 25--November 3, 2006), the ICAO 
Dangerous Goods Panel further considered amendments to the ICAO 
Technical Instructions concerning lithium battery safety. Based on a 
recommendation by the Panel, the ICAO Air Navigation Commission agreed 
to issue an addendum to the ICAO 2007-2008 Technical Instructions to 
prohibit the transport of lithium batteries that have the potential of 
producing a dangerous evolution of heat, fire, or short circuit as a 
result of being damaged or defective (e.g., those being returned to the 
manufacturer for safety reasons).
    In December 2006, the United Nations Committee of Experts on the 
Transport of Dangerous Goods, based in part on U.S. proposals, revised 
Special Provision 188 (SP 188) of the UN Recommendations to address the 
risk that lithium cells and batteries currently excepted from 
regulation may short circuit in transportation. These revisions (1) 
require individual packaging of lithium cells or batteries, (2) require 
protection against short circuits, accidental activation, and outer 
packaging of lithium battery-powered equipment; (3) eliminate the 
current exception from marking, documentation, drop testing, and gross 
weight limit for packages containing less than 24 lithium cells or 12 
lithium batteries, and (4) standardize marking requirements for lithium 
batteries. Additionally, the UN Recommendations were amended to include 
separate dangerous goods list entries for metallic lithium and lithium 
ion batteries to assist shippers, transport personnel, and carriers in 
complying with the applicable regulations.
    PHMSA will carefully review any amendments to the international 
regulation and will consider further rulemaking action based on a 
robust notice and comment process. As previously stated, we are 
committed to working with all affected stakeholders to evaluate risks 
and develop potential solutions, especially non-regulatory solutions.

II. Provisions of this Final Rule

    The continuing incidents and recalls and the results of the FAA 
testing discussed above reinforce the actions we are taking in this 
final rule and the need for ongoing analysis of the transportation 
risks presented by lithium batteries. As we explain in the following 
sections, the provisions of this final rule will provide additional 
protection against all lithium battery-related fires, regardless of 
their source, by enhancing hazard communication and emergency response 
and limiting transportation options based on the availability of 
effective fire suppression technology. This final rule addresses the 
proposals advanced in 2002 under Docket HM-224C and the provisions of 
the 2004 IFR published under Docket HM-224E. The following tables are 
provided for your convenience:

 
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
As a result of HM-224E IFR the following requirements are already in
 effect:
     Primary lithium batteries are forbidden for transport
     aboard passenger aircraft.
     Primary lithium batteries transported by any means other
     than passenger aircraft must be marked ``PRIMARY LITHIUM BATTERIES--
     FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT''.
------------------------------------------------------------------------


 
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
The following provision pertaining to lithium batteries is unchanged by
 this combined final rule:
     Requirements for large lithium batteries (> 25 grams).
------------------------------------------------------------------------


 
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
The following provisions have been modified as a result of this combined
 final rule:
     Section 175.10(a)(17) in that the equipment containing
     batteries and spares must be in carry-on luggage.
------------------------------------------------------------------------


 
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
The following new requirements will take effect as a result of this
 combined final rule:
     The exception for medium batteries is eliminated by
     aircraft and vessel.
     Small battery exception from UN testing is eliminated.
     A new marking paperwork requirement is added for medium
     batteries shipped as excepted via highway and rail transportation.
     A new marking paperwork requirement is added for small
     batteries that are shipped excepted.
------------------------------------------------------------------------

A. Docket HM-224C

1. Background: Proposed Requirements
    As mentioned above, our April 2, 2002, NPRM (67 FR 15510) proposed 
to: (1) Adopt the revised lithium battery test scheme in the UN Test 
Manual; (2) eliminate the current exceptions for medium-size lithium 
batteries of all types; (3) require testing of small lithium batteries 
of all types; (4) impose hazard communication and packaging 
requirements for small lithium batteries of all types; and (5) provide 
exceptions for passengers and crew to carry lithium battery-powered 
equipment aboard an aircraft.
    On June 15, 2005, we published an Initial Regulatory Flexibility 
Analysis (IRFA) (70 FR 34729) and requested comments on the potential 
small business impacts of the proposals in our April 2, 2002 NPRM. The 
issues raised by commenters to the IRFA are addressed in this document 
and the final regulatory flexibility analysis (FRFA), which can be 
found in the public docket for this rulemaking.
2. Discussion of Comments to HM-224C
    PHMSA received 22 written comments on the NPRM and the IRFA in this 
proceeding. The following companies, organizations, and individuals 
submitted comments, which are discussed in detail in this section:

Electronic Industries Alliance (EIA; RSPA-2002-11989-3 and 16)

[[Page 44935]]

David Linden (Linden; RSPA-2002-11989-4)
Intel Corporation (Intel; RSPA-2002-11989-5)
National Electrical Manufacturers Association (NEMA; RSPA-2002-11989-6)
FEDCO Electronics, Inc. (FEDCO; RSPA-2002-11989-7, 12, 18, 24)
Argonne National Laboratory (ANL; RSPA-2002-11989-8)
National Transportation Safety Board (NTSB; RSPA-2002-11989-9)
Portable Rechargeable Battery Association (PRBA; RSPA-2002-11989-10, 
19, 25)
Air Line Pilots Association International, Inc. (ALPA; RSPA-2002-11989-
11)
Air Transport Association of America (ATA; RSPA-2002-11989-13)
Air Line Pilots Association, International (ALPA; RSPA-2002-11989-14)
Mark S. Ditmore (Ditmore; RSPA-2002-11989-15)
Valance Technology, Inc. (Valance; RSPA-2002-11989-20)
SION Power (SION; RSPA-2002-11989-22)
Cramer Law Group on behalf of SkyBitz Inc., (SkyBitz; RSPA-2002-11989-
23)
ACR Electronic Inc (ACR; RSPA-2002-11989-26)
David Hadfield (RSPA-2002-11989-27)

    a. Elimination of the Exception for Medium-size Lithium Cells and 
Batteries. In the NPRM, we proposed to eliminate the exception from 
most HMR requirements for medium-size lithium cells (including when 
packed or contained in equipment) containing 5 grams or less of lithium 
or lithium alloy and batteries (including when packed or contained in 
equipment) containing not more than 25 grams of lithium or lithium 
alloy per battery if they pass tests specified in Section 38.3 of the 
UN Test Manual. With the elimination of this exception, medium-size 
lithium batteries and cells of all types would have to be transported 
as Class 9 hazardous materials and conform to all associated hazard 
communication and packaging requirements. This exception has already 
been removed from the IMDG Code and the ICAO Technical Instructions, 
effectively requiring these lithium batteries to be transported as 
Class 9 materials when transported internationally by aircraft or 
vessel and in regulations applicable in other countries and regions 
throughout the world (e.g. European Road and Rail Agreements (ADR/RID).
    Several commenters urge PHMSA to retain this exception for domestic 
surface transportation. The Portable Rechargeable Battery Association 
(PRBA) states that retention of the exception for medium-size lithium 
batteries of all types will have the largest positive effect on 
reducing the cost impacts on small businesses and recommends PHMSA 
retain the exception for lithium-ion batteries containing no more than 
16 grams of equivalent lithium content shipped at a state of charge of 
no more than 50%. PRBA states testing data clearly show that the degree 
to which a lithium-ion cell reacts to abuse is significantly affected 
by state of charge. PRBA also suggests we should consider retaining the 
exception for medium-size lithium batteries when the batteries are 
contained in or packed with equipment and shipped by ground only. PRBA 
states this exception would substantially reduce costs associated with 
shipping products as Class 9 materials and cover a significant number 
of products shipped by small businesses.
    In response to the proposal to eliminate the exception of medium 
sized batteries, Valence Technology, Inc. states PHMSA did not provide 
sufficient justification for eliminating the exception. SION Power 
asserts eliminating the exception for medium-size lithium batteries 
will adversely affect its commercial development and suggests that, in 
the case of primary lithium batteries, eliminating the exception will 
limit the size of batteries using smaller cells. SkyBitz favors scaling 
back the exception for medium-size lithium batteries by limiting the 
number of cells or batteries per package, rather than eliminating the 
exception. ACR Electronics, Inc. states PHMSA should retain the 
exception for medium-size lithium batteries provided they are contained 
in strong, waterproof safety equipment.
    We continue to believe that significant safety benefits can be 
achieved by requiring medium-size lithium batteries and cells of all 
types to be shipped with appropriate hazard communication information. 
As recent incidents demonstrate, the hazards associated with these 
shipments should be communicated to transport workers and emergency 
response personnel to ensure safe handling in transportation and 
appropriate incident response actions. We are not convinced that 
requiring medium-size batteries to be transported with appropriate 
hazard communication information will impede the development or 
marketing of these batteries.
    However, the comments raise legitimate concerns about the costs 
that may be incurred by companies, particularly small businesses, if we 
were to remove the exception in its entirety. Therefore, in this final 
rule we are eliminating the exception for medium-size lithium batteries 
and cells of all types transported by aircraft or vessel, but retaining 
a limited exception for ground transportation (i.e., motor vehicle and 
rail car). This action improves overall safety by reducing the risk of 
lithium battery-related incidents in the transport modes that are 
inherently most vulnerable to high consequence accidents, while 
minimizing the costs for businesses that ship lithium batteries by 
motor carrier or rail.
    For medium-size lithium batteries and cells transported by motor 
carrier or rail, we are imposing more limited, less costly hazard 
communication requirements. Rather than requiring compliance with the 
hazard communication and packaging requirements applicable to Class 9 
materials, in this final rule, we are adopting, with some revisions, a 
hazard communication and packaging program developed by industry. Under 
this program, a package containing medium-size lithium batteries and 
cells of all types must: (1) Be marked to indicate it contains lithium 
batteries and special procedures must be followed in the event that the 
package is damaged; (2) be accompanied by a document indicating the 
package contains lithium batteries and special procedures must be 
followed in the event that the package is damaged; (3) weigh no more 
than 30 kilograms; and (4) be capable of withstanding a 1.2 meter drop 
test. For those packages that are not prepared for air shipment, (i.e., 
not offered and transported as a Class 9 material) we are requiring 
that the package be marked to indicate that they may not be transported 
by aircraft or vessel. In this final rule, the provisions applicable to 
the transportation of medium-size lithium batteries of all types are 
relocated from Sec.  173.185 to Special Provision 189.
    b. Revisions to the Exceptions for Small Batteries. Section 
173.185(b) of the HMR provides significant exceptions from packaging 
and hazard communication requirements for small lithium cells and 
batteries. In addition, small lithium cells and batteries are not 
subject to the UN testing requirements. In the 2002 NPRM, we proposed 
to require testing of small lithium batteries and cells of all types in 
accordance with the UN Test Manual. We also proposed to require each 
package containing more than 24 lithium cells or 12 lithium batteries 
to be: (1) Marked to indicate that it contains lithium batteries and

[[Page 44936]]

that special procedures must be followed in the event that the package 
is damaged; (2) accompanied by a document indicating that the package 
contains lithium batteries and that special procedures must be followed 
in the event that the package is damaged; (3) no more than 30 kilograms 
gross weight; and (4) capable of withstanding a 1.2 meter drop test in 
any orientation without shifting of the contents that would allow 
short-circuiting and without release of package contents.
    The NTSB supports the proposal to require all lithium batteries, 
including small lithium batteries and cells currently excepted from the 
HMR, to be tested in accordance with the revised UN Test Manual, and to 
require packages containing more than 12 small lithium batteries or 24 
cells to be capable of passing a drop test. The NTSB suggests the 
proposed rule could be improved by requiring a package containing 12 
small lithium batteries or 24 lithium cells to be classed as a Class 9 
material, and subject to the labeling and shipping paper requirements 
of the HMR. The Airline Pilots Association International (ALPA) states 
it agrees new testing requirements are needed.
    The Air Transport Association of America (ATA) supports the 
proposals in the April 2002 NPRM, but notes a number of its members are 
particularly concerned about the retention of the exception for small 
lithium batteries as proposed in the NPRM. ATA states such provisions 
will be confusing to transport workers involved in accepting, sorting 
and loading packages in air transportation. According to ATA, air 
carriers are concerned that an indication on a package that it contains 
``lithium batteries'' may cause packages to be removed from the system 
for clarification or possible rejection. The removal of a package from 
the system could occur more than once during the transportation cycle.
    ATA recommends PHMSA either regulate or deregulate such materials 
(with no exceptions) and not ``band-aid'' a situation that will present 
problems in transportation. ATA also states the safety risks associated 
with the transportation of small lithium batteries and cells are 
addressed if packages are ``capable of withstanding a 1.2 meter drop 
test in any orientation without damage to cells or batteries contained 
in the package, without shifting of the contents that would allow short 
circuiting and without release of package contents.''
    FEDCO states that, including new batteries in active design, it has 
about twenty 1- and 2-cell primary lithium batteries and 13 new 
lithium-ion packs containing from 2 to 12 cylindrical cells. FEDCO 
estimates the cost of having an independent testing facility, such as 
Underwriters Laboratories, perform the proposed tests would be about 
$20,000 per battery design. In addition, FEDCO states the testing of 
its existing 450 primary lithium and secondary lithium battery designs 
will cost an additional $9 million. FEDCO proposes an exception from 
the proposed tests for batteries and battery packs consisting of cells 
that have passed the UN tests; the exception would permit the batteries 
and battery packs to be transported without further testing.
    FEDCO also makes the following recommendations to ease the 
financial impact on small business:
    (1) Except single-cell and two-cell primary lithium batteries from 
the UN Test Manual provided that the cells in the batteries have 
already passed those UN tests;
    (2) Provide manufacturers with a four-year ``grandfather'' period 
in which to comply with the new testing requirements for existing 
battery designs; and
    (3) Extend the exception in the UN Recommendations for small 
production runs of cells or batteries from 100 to 1,000 batteries.
    SION Power recommends the following exceptions for small lithium 
batteries and cells: (1) Except single cell batteries from testing if 
the cells have already passed the UN tests; and (2) except prototype or 
small production runs of cells or batteries, defined as no more than 
200 cells or 50 batteries, from the UN tests. As a precondition to 
these exceptions, SION Power suggests requiring that the base cell and 
battery pack pass a 55 [deg]C short circuit test. SION Power further 
recommends shipment of prototype or small production runs as Class 9 
materials.
    PRBA requests the following changes to the NPRM:
    (1) Provide a four-year grandfather clause for testing small cells 
and batteries;
    (2) Adopt a 1,000-unit small production run exception from UN 
testing for certain small primary lithium and lithium-ion cells and 
batteries; and
    (3) Clarify that single-cell batteries do not require UN testing.
    PRBA, FEDCO, SION, Valence Technology, ACR, SkyBitz Inc, EIA, and 
Intel Corporation all suggest an exception, consistent with the 
international regulations, from marking, packaging, and shipping paper 
requirements for equipment containing small lithium batteries and 
cells.
    The UN Test Manual's lithium battery test methods are designed to 
measure the capability of the cells or batteries to maintain their 
construction integrity against shorts in normal transport environments. 
Parameters considered include: Temperature, altitude, vibration, shock, 
impact, overcharge, forced discharge, and intentional short. The test 
criteria were developed to minimize the risk of lithium cells or 
batteries becoming an ignition (fire) source during transport. Once 
ignited, a fire may spread to other lithium batteries in the package. 
To ensure that small lithium batteries and cells will be transported in 
commerce only if they are able to withstand normal transport 
conditions, in this final rule, we are revising the HMR to subject 
small lithium batteries and cells to the test methods in the UN Test 
Manual.
    Information from an independent testing laboratory, which is 
currently performing these tests, suggests the cost for performing the 
tests is $6,000 per lithium battery design, and not $20,000 or more as 
stated by some commenters. (Subsequent to the completion of our 
analysis, some testing laboratories have indicated to us that costs of 
performing the UN Tests have decreased to about $4,000 to $3,000). 
Further, not all lithium batteries and cells must be tested. In 
accordance with the UN Test Manual, section 38.3.2.1, only lithium 
batteries and cells that differ from a tested type by a change of more 
than 0.1 gram or more than 20% by mass, whichever is greater, to the 
cathode, to the anode, or to the electrolyte, must be tested.
    The UN Test Manual states that a single cell lithium battery should 
be considered a cell and not a battery, regardless of whether the unit 
is termed a ``battery'' or a ``single cell battery.'' Thus, a single 
cell lithium battery consisting of a cell that has passed the 
appropriate UN tests is a cell and need not be re-tested even if the 
components of the battery, other than the cell contained therein, are a 
new design type. Lithium batteries consisting of more than one cell are 
subject to the tests in the UN Test Manual.
    We agree with those commenters who ask us to adopt a small-
production-run exception for motor vehicle, rail and vessel 
transportation similar to the one in Special Provision 310 of the UN 
Recommendations for small lithium batteries and cells. Thus, we are 
adopting the following small-production-run exception for small lithium 
batteries and cells transported by motor vehicle, rail and vessel:
    (1) The cells and batteries must be transported in an outer 
packaging that is a metal, plastic, or plywood drum; or metal, plastic, 
or wooden box meeting

[[Page 44937]]

the criteria for Packing Group I packagings; and
    (2) Each cell and battery must be individually packed in an inner 
packaging inside the outer packaging and surrounded by non-combustible, 
non-conductive cushioning material.
    Consistent with the international standards, the exception will 
apply to production runs of up to 100 lithium batteries or cells of all 
types. This exception addresses the need to increase safety standards 
for these lithium batteries, while not imposing undue costs on the 
regulated community.
    We agree with commenters who request an appropriate transition 
period for lithium battery manufacturers to test lithium battery 
designs that are currently on the market. Therefore, in this final 
rule, we are adopting a two-year compliance date for the testing of 
small lithium batteries and cells.
    PHMSA agrees with the commenters who requested an exception from 
the marking, packaging and shipping paper requirements for equipment 
containing small lithium batteries and cells. We are adopting the 
exception in this final rule.
    We continue to believe that the hazards associated with small 
lithium batteries should be communicated to transport workers so that 
they can handle packages appropriately. Therefore, in this final rule 
we are adopting the communication and packaging program developed by 
the industry, and described above, for small lithium batteries.
    In summary, in this final rule, PHMSA is amending the HMR to 
require that small lithium batteries be tested in accordance with the 
UN Test Manual. In addition, we have adopted the proposed size 
standards for small lithium batteries thus eliminating the distinction 
between liquid and solid cathode lithium batteries. Unless contained in 
equipment, each package containing more than 24 lithium cells or 12 
lithium batteries must also be:
    (1) Marked to indicate it contains lithium batteries and special 
procedures must be followed in the event that the package is damaged;
    (2) Accompanied by a document indicating the package contains 
lithium batteries and special procedures must be followed in the event 
that the package is damaged;
    (3) No more than 30 kilograms gross weight; and
    (4) Capable of withstanding a 1.2 meter drop test in any 
orientation without shifting of the contents that would allow short 
circuiting, and without release of package contents.
    In accordance with Sec.  173.21(c), electrical devices likely to 
create sparks or generate a dangerous quantity of heat are forbidden 
for transportation unless packaged in a manner to preclude such an 
occurrence. In this final rule, we are adding language to clarify that 
the restrictions in Sec.  173.21 of the HMR apply to lithium batteries 
of all types.
    We note that adoption of hazard communication requirements for 
shipments of lithium batteries does not ``classify'' or ``declassify'' 
these materials as hazardous materials. Lithium batteries, regardless 
of their size (i.e., small, medium and large), are hazardous materials 
and are subject to applicable requirements in the HMR.
    c. Exceptions for Aircraft Passengers and Crew. Consistent with 
amendments to the ICAO Technical Instructions, in the April 2002 NPRM 
we proposed to allow airline passengers and crew to carry consumer 
electronic devices containing lithium batteries. In addition, we 
proposed to allow passengers and crew to carry spare lithium batteries 
for such devices subject to limits as to lithium content, the number of 
batteries, and the type of lithium batteries. In the IFR adopted 
December 15, 2004 (Docket HM-224E), had we not amended Sec.  175.10, 
airline passengers and crew would have been forbidden to carry consumer 
electronic devices powered by primary lithium batteries. As amended in 
the IFR, lithium batteries contained in equipment and spares of all 
types (primary and secondary) are authorized in carry-on or checked 
baggage. In this final rule, we are adopting the amendments proposed in 
the April 2002 NPRM to permit carriage by passengers and crew of 
lithium battery-powered consumer electronic devices and associated 
spare lithium batteries. We are also clarifying in this final rule that 
the proposed battery size limitation for spare batteries also applies 
to the batteries installed in the device. These amendments also state 
that spare lithium batteries may only be carried in carry-on luggage 
and that they must be individually protected against short circuits. 
Unprotected batteries are susceptible to short circuits when exposed to 
items typically carried by passengers and crew members, such as car 
keys and coins. We recommend that passengers protect spare batteries by 
placing them in protective cases or individual zip-top bags or placing 
non-conductive tape across exposed terminals. We note that ICAO is 
considering eliminating the passenger aircraft exception for medium-
size (8-25 grams aggregate equivalent lithium content) batteries. If 
adopted by ICAO, we will consider adopting this in a future rule.
    d. Editorial Changes. In the 2002 NPRM, we proposed to make several 
editorial changes to Sec.  173.185 to help users better understand 
their obligations. First, we proposed to move the definition of 
``equivalent lithium content'' and ``lithium content'' from former 
Sec.  173.185(a) to Sec.  171.8 and eliminate as unnecessary the first 
sentence of former Sec.  173.185(a). Also, as proposed, we have removed 
the grandfather provision that was previously provided under Sec.  
173.185(d).
    PRBA requested revisions to the definition of ``equivalent lithium 
content'' to provide that a lithium polymer battery based on lithium-
ion chemistry or technology is regulated as a lithium-ion battery for 
purposes of determining equivalent lithium content. PRBA notes that the 
UN Test Manual definition for a lithium-ion cell or battery states ``a 
lithium polymer cell or battery that uses the lithium-ion chemistries, 
as described herein, is regulated as a lithium-ion cell or battery.''
    Based on the comment from PRBA on the definition of ``equivalent 
lithium content,'' in this final rule, we are adding a definition for 
``aggregate lithium content.'' Except for some minor differences, the 
other editorial amendments are adopted as proposed. In addition, we 
have made editorial amendments to Sec. Sec.  171.11, 171.12, and 
171.12a to address changes in regulatory citations.
    We have also moved the provisions applicable to small lithium 
batteries from Sec.  173.185 to Special Provision 188 for consistency 
with international regulations. We have also made some editorial 
changes to the exception related to the prohibition of primary lithium 
batteries aboard passenger aircraft in order to clarify the 
requirements. We also clarified the packaging requirements for lithium 
batteries packed with equipment. We inadvertently proposed to remove 
the requirement that lithium batteries or cells that are packed with 
the equipment are required to be packaged in specification packaging.
    e. Shipping Lithium Batteries for Recycling. PRBA filed a petition 
for rulemaking on February 8, 2002 (P-1423), asking for an amendment to 
the HMR requirements for shipping spent lithium batteries for 
recycling. Currently, under the exception in Sec.  173.185(h), lithium 
cells and batteries ``for disposal'' may be offered for transportation 
or transported to a permitted storage facility and disposal site by 
motor vehicle when they are equipped with an effective means of 
preventing external short circuits and

[[Page 44938]]

packed in a strong outer packaging conforming to the requirements of 
Sec. Sec.  173.24 and 173.24a. Lithium batteries transported under this 
provision are excepted from the performance packaging requirements of 
Part 178 of the HMR.
    Section 173.185(h) does not specifically address the transportation 
of lithium cells and batteries for recycling. In its comments to the 
NPRM, PRBA states that failure to include the change in the final rule 
will have significant implications for the Rechargeable Battery 
Recycling Corporation's used battery collection and recycling program. 
We agree with the comments of PRBA and others on expanding the 
exception for shipping lithium batteries for disposal to include 
lithium batteries shipped for recycling, and in this final rule have 
modified Sec.  173.185(d) accordingly.

B. Docket HM-224E

1. Background: IFR Requirements
    As explained above, on December 15, 2004, PHMSA published an IFR 
(Docket HM-224E; 69 FR 75208), prohibiting the shipment of primary 
lithium batteries as cargo on passenger-carrying aircraft. The IFR 
prohibits the offering for transportation and transportation in 
commerce of primary lithium batteries and cells, and equipment 
containing or packed with large primary lithium batteries (i.e., 
batteries containing greater than 25 grams of lithium) as cargo aboard 
passenger-carrying aircraft. In addition, equipment packed with or 
containing small or medium primary lithium batteries (i.e., batteries 
containing 25 grams or less of lithium) must be transported in 
accordance with Special Provisions A101 and A102. Under the IFR, 
Special Provision A101 specified that a primary lithium battery or cell 
packed with equipment may not exceed 5 kg (11 pounds) gross weight. On 
September 28, 2006, we issued a correction to Docket HM-224E, 71 FR 
56894, revising Special Provision A101. The correction clarified that 
we intended the 5 kilogram limit to be net weight. In addition, in 
accordance with Special Provision A102, primary batteries or cells 
contained in equipment may not exceed 5 kg (11 pounds) net weight. 
Further, the IFR requires the outside of each such package that 
contains a primary lithium battery or cell forbidden for transport 
aboard passenger carrying aircraft to be marked ``PRIMARY LITHIUM 
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.''
    Under the IFR, for air shipments of non-excepted Class 9 primary 
lithium batteries and for shipments of equipment that contains or is 
packed with Class 9 primary lithium batteries, the words ``Cargo 
Aircraft Only'' must be entered after the basic description on shipping 
papers. The package must bear a CLASS 9 and a CARGO AIRCRAFT ONLY 
label, and the package must be otherwise marked as required by the HMR. 
The IFR applies to both foreign and domestic passenger-carrying 
aircraft entering, leaving, or operating in the United States and to 
persons offering primary lithium batteries and cells for transportation 
as cargo on any passenger-carrying aircraft.
    The IFR resulted from an assessment by PHMSA and the FAA of recent 
lithium battery fires in air transportation, and the FAA technical 
report, discussed earlier in this preamble, evaluating the flammability 
of primary lithium batteries and the effect of air carrier fire 
suppression systems on primary lithium battery fires.
2. Discussion of Comments in HM-224E
    On January 27, 2005, PHMSA conducted a public meeting to provide an 
informal forum for interested persons to offer comments on the IFR. Six 
persons made oral presentations at the public meeting. In addition, we 
received 38 written comments from private citizens and the following 
companies and organizations:

Karin Rindal (RSPA-2004-19886-4)
Delaine Arnold (RSPA-2004-19886-5)
McDowell Research, Ltd. (RSPA-2004-19886-6)
Rollie Herman (RSPA-2004-19886-7)
Homer C. Lambert (RSPA-2004-19886-10)
Portable Rechargeable Battery Association (PRBA; RSPA-2004-19886-39, 
44)
Information Technology Industry Council (ITI; RSPA-2004-19886-41)
Solectron Corporation (RSPA-2004-19886-42)
CTIA--The Wireless Association (RSPA-2004-19886-40)
National Electrical Manufacturers Association (NEMA; RSPA-2004-19886-
23, 24, 38)
FEDCO Electronics, Inc. (RSPA-2004-19886-12, 13)
Dangerous Goods Advisory Council (RSPA-2004-19886-11)
Liferaft and Marine Safety (RSPA-2004-19886-14)
Anthony Affisio (RSPA-2004-19886-15)
DBC Marine Safety Systems Ltd (RSPA-2004-19886-16)
Lucent Technologies (RSPA-2004-19886-18)
Siemens AG (RSPA-2004-19886-9)
Rockwell Automation (RSPA-2004-19886-20)
Intel Corporation (RSPA-2004-19886-21)
Honeywell Corporate (RSPA-2004-19886-17, 22)
FedEx Express (RSPA-2004-19886-25)
URS Corporation (RSPA-2004-19886-26)
United States Marine Safety Association (RSPA-2004-19886-27)
Federation Industries Electriques (RSPA-2004-19886-28)
ZVEI (RSPA-2004-19886-29, 31)
SAFT America Inc. (RSPA-2004-19886-30, 32)
Air Transport Association of America, Inc. (RSPA-2004-19886-33)
Air Line Pilots Association, International (ALPA; RSPA-2004-19886-34)
Automated Media Systems (RSPA-2004-19886-35)
Switlik Parachute Co. Inc. (RSPA-2004-19886-36)
Fisher Scientific Company, L.L.C. (RSPA-2004-19886-37)
The International Brotherhood of Teamsters Airline Division (Teamsters; 
RSPA-2004-19886-43)

    All comments submitted to the Dockets Management System, under 
Docket Number PHMSA-04-19886 (HM-224E) and comments received at the 
public meeting have been considered in developing this final rule. The 
comments are addressed in detail below. Several commenters submitted 
comments that were outside the scope of this rulemaking. They are not 
discussed in this preamble.
    a. Prohibition of Primary Lithium Batteries and Cells Aboard 
Passenger Aircraft. The IFR imposed a limited prohibition on offering 
for transportation and transportation of primary lithium batteries and 
cells as cargo aboard passenger-carrying aircraft and equipment 
containing or packed with large primary lithium batteries. Under the 
IFR, only small or medium-size primary