Hazardous Materials: Transportation of Lithium Batteries, 1302-1324 [2010-281]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 6 (Monday, January 11, 2010)]
[Proposed Rules]
[Pages 1302-1324]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-281]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 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: Notice of proposed rulemaking.

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SUMMARY: PHMSA, in consultation with the Federal Aviation 
Administration (FAA), is proposing to amend requirements in the 
Hazardous Materials Regulations (HMR) on the transportation of lithium 
cells and batteries, including lithium cells and batteries packed with 
or contained in equipment. The proposed changes are intended to enhance 
safety by ensuring that all lithium batteries are designed to withstand 
normal transportation conditions. This would include provisions to 
ensure all lithium batteries are packaged to reduce the possibility of 
damage that could lead to a catastrophic incident, and minimize the 
consequences of an incident. In addition, lithium batteries would be 
accompanied by hazard communication that ensures appropriate and 
careful handling by air carrier personnel, including the flight crew, 
and informs both transport workers and emergency response personnel of 
actions to be taken in an emergency. These proposals are largely 
consistent with changes made to the United Nations Recommendations on 
the Transport of Dangerous Goods (UN Recommendations) and the 
International Civil Aviation Organization Technical Instructions on the 
Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) 
and respond to recommendations issued by the National Transportation 
Safety Board (NTSB).

DATES: Comments must be received by March 12, 2010.
    We are proposing a mandatory compliance date of 75 days after the 
date of publication of a final rule in the Federal Register. In this 
NPRM, we solicit comments from interested persons regarding the 
feasibility of the proposed compliance date.

ADDRESSES: You may submit comments by any of the following methods:

[[Page 1303]]

     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand Delivery: To U.S. Department of Transportation, 
Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday 
through Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2009-
0095 (HM-224F) or RIN 2137-AE44 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to https://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477), or you 
may visit https://www.regulations.gov.
    Docket: You may view the public docket through the Internet at 
https://www.regulations.gov or in person at the Docket Operations office 
at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Charles E. Betts or Kevin A. Leary, 
Office of Hazardous Materials Standards, Pipeline and Hazardous 
Materials Safety Administration, telephone (202) 366-8553, or Janet 
McLaughlin, International & Outreach Division, Federal Aviation 
Administration, telephone 202-385-4897.

SUPPLEMENTARY INFORMATION:

Contents

I. Background
    A. The Safety Problem
    B. Overview of Current Regulations
    C. Ongoing Efforts To Evaluate Lithium Battery Risk
II. Discussion of Proposed Regulatory Changes
    A. Summary of Proposals in This NPRM
    B. Evidence Preservation
    C. New Shipping Names
    D. Watt Hours Versus Equivalent Lithium Content
    E. Design Type Testing
    F. Elimination of Exceptions for Small Lithium Batteries
    G. Packaging and Stowage
    H. Consolidation of Lithium Battery Regulations
    I. Ongoing Safety Initiatives
    J. Compliance Date
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 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. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
    K. International Trade Analysis

I. Background

A. The Safety Problem

    Lithium batteries are hazardous in transportation because they 
present both chemical (e.g., flammable electrolytes) and electrical 
hazards. If not safely packaged and handled, lithium batteries can 
present a significant risk in transportation. Batteries which are 
misused, mishandled, improperly packaged, improperly stored, 
overcharged, or defective can overheat and ignite and, once ignited, 
fires can be especially difficult to extinguish. Overheating has the 
potential to create a thermal runaway, a chain reaction leading to 
self-heating and release of the battery's stored energy. In general, 
the risks posed by all batteries are a function of battery size and 
chemistry. The high energy density (i.e., high energy to weight ratio) 
of lithium batteries increases the consequences of a short circuit or 
fire posing a greater risk in transportation.
    Lithium batteries fall into one of two basic categories, lithium 
metal, including lithium alloy (also known as primary lithium 
batteries), and lithium ion, including lithium ion polymer (also known 
as secondary lithium batteries). As the name indicates, lithium metal 
batteries contain a small amount of metallic lithium or a lithium 
alloy. Batteries of this type are mostly non-rechargeable and these 
cells and batteries are often used in medical devices, computer memory 
and as replaceable batteries (AA and AAA size) suitable for electronic 
devices. The lithium content in these cells and batteries ranges from a 
fraction of a gram to a few grams and typical geometries include coin 
cells, cylindrical, and rectangular. Conversely, lithium ion cells and 
batteries contain a lithium compound (e.g., lithium cobalt dioxide, 
lithium iron phosphate) and they are generally rechargeable. Lithium 
ion batteries are mostly found in portable computers, mobile phones and 
power tools. Common configurations are cylindrical and rectangular. The 
size of a lithium ion battery is currently measured by equivalent 
lithium content. Equivalent lithium content is described in greater 
detail in Part II, Section C ``Watt Hours versus Equivalent Lithium 
Content.''
    Once used primarily in industrial and military applications, 
lithium batteries have become commonplace in consumer electronic 
devices because they have a much higher energy density compared to 
their predecessors (e.g., alkaline, nickel cadmium, and nickel metal 
hydride batteries). They are now found in a variety of popular consumer 
items, including cameras, notebook 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 a corresponding 
proliferation of battery designs, manufacturers, and applications. An 
estimated 3.3 billion lithium cells and batteries were transported 
worldwide in 2008 by all modes of transportation. On aircraft, lithium 
batteries are transported in shipments of batteries by themselves and 
they are also packed with or contained in battery powered equipment. 
Lithium batteries are also carried on board aircraft by passengers in 
portable electronic equipment and as spares; however these are not 
addressed in this rulemaking.
    As the demand for lithium batteries increases, so do the risks 
associated with their transportation, especially on board aircraft. The 
risk of transporting lithium batteries on-board aircraft increases with 
the increase in the number of batteries transported by air, given the 
assumption that the proportion of the number of correctly packaged 
shipments to the total number of shipments remains constant. In other 
words, an increase in the number of shipments will result in an 
increase in the number of incidents even if the incident rate remains 
the same since the number of incidents is a product of the incident 
rate and the total number of batteries transported. Moreover, 
increasing the proportion of flights that transport only one lithium 
battery shipment introduces a risk where previously there was none. The 
risk of

[[Page 1304]]

multiple shipments on one aircraft increases the probability of an 
event within individual shipments, and also introduces the possibility 
of one defective shipment influencing other, properly packaged 
shipments on the same aircraft.
    The increasing manifestation of these risks, inside and outside of 
transportation, drives the need for stricter safety standards. Since 
1991, PHMSA and the FAA have identified over 40 air transport-related 
incidents and numerous additional non-transport incidents involving 
lithium batteries and devices powered by lithium batteries. These 
incidents occurred, variously, aboard passenger aircraft and cargo 
aircraft, prior to loading batteries aboard an aircraft, and after 
batteries were transported by air. Twenty-one of these 44 incidents 
involved a passenger aircraft. These incidents occurred in the cabin of 
the airplane, in a passenger's checked baggage, in the cargo area of 
the airplane or in the airport prior to boarding an aircraft. The 
incident data suggest overheating or damage to the device occurred 
immediately prior to the first indications of an incident. The 
remaining incidents involved lithium batteries transported aboard cargo 
aircraft. Many of these incidents were attributed to external short 
circuiting and several packages involved in the incidents were not 
subject to regulatory requirements for display of hazard communication 
markings or labels. It is important to note that while each single 
incident may appear relatively benign and while the overall incident 
numbers may appear small when compared to the total number of lithium 
batteries transported by aircraft each year, the incidents illustrate 
the short circuit and fire risks posed by lithium batteries and the 
potential for a serious incident that could result if the risks as not 
addressed through transportation safety controls. The following table 
shows a breakdown of these incidents:

----------------------------------------------------------------------------------------------------------------
                                                    Passenger aircraft
                                                --------------------------   Cargo on      Cargo
                                                                Checked     passenger     aircraft   Grand total
                                                   Carry-on     baggage      aircraft
----------------------------------------------------------------------------------------------------------------
Lithium Batteries..............................           16            1            4           23           44
----------------------------------------------------------------------------------------------------------------

    A list of aviation incidents involving batteries reported to the 
FAA since 1991 is available through the following URL: https://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/hazmat/aircarrier_info/.
    Besides these incidents involving air transportation of lithium 
batteries, there have been several recalls of lithium batteries used in 
notebook computers and other consumer commodities. The Consumer Product 
Safety Commission (CPSC) found that these batteries could spontaneously 
overheat and cause a fire, because of a manufacturing defect or when 
the battery is struck forcefully on the corner (e.g., a direct fall to 
the ground).
    In addition to incidents definitely attributed to lithium 
batteries, the NTSB investigated a February 7, 2006 incident at the 
Philadelphia International Airport in which a fire--suspected to have 
been caused by lithium batteries--destroyed a United Parcel Service 
cargo aircraft and most of its cargo. While the captain, first officer, 
and a flight engineer evacuated the airplane after landing, sustaining 
only minor injuries, the NTSB concluded that flight crews on cargo-only 
aircraft remain at risk from in-flight fires involving both primary 
(non-rechargeable) and secondary (rechargeable) lithium batteries. 
Following the incident investigation, NTSB issued the following 
recommendations to PHMSA:

    Safety Recommendation A-07-104: Require aircraft operators to 
implement measures to reduce the risk of primary lithium batteries 
becoming involved in fires on cargo-only aircraft, such as 
transporting such batteries in fire resistant containers and/or in 
restricted quantities at any single location on the aircraft.
    Safety Recommendation A-07-105: Until fire suppression systems 
are required on cargo-only aircraft, as asked for in Safety 
Recommendation A-07-99, require that cargo shipments of secondary 
lithium batteries, including those contained in or packed with 
equipment, be transported in crew-accessible locations where 
portable fire suppression systems can be used.
    Safety Recommendation A-07-106: Require aircraft operators that 
transport hazardous materials to immediately provide consolidated 
and specific information about hazardous materials on board an 
aircraft, including proper shipping name, hazard class, quantity, 
number of packages, and location, to on-scene emergency responders 
upon notification of an accident or incident.
    Safety Recommendation A-07-107: Require commercial cargo and 
passenger operators to report to the Pipeline and Hazardous 
Materials Safety Administration all incidents involving primary and 
secondary lithium batteries, including those contained in or packed 
with equipment, that occur either on board or during loading or 
unloading operations and retain the failed items for evaluation 
purposes.
    Safety Recommendation A-07-108: Analyze the causes of all 
thermal failures and fires involving secondary and primary lithium 
batteries and, based on this analysis, take appropriate action to 
mitigate any risks determined to be posed by transporting secondary 
and primary lithium batteries, including those contained in or 
packed with equipment, on board cargo and passenger aircraft as 
cargo; checked baggage; or carry-on items.
    Safety Recommendation A-07-109: Eliminate regulatory exemptions 
for the packaging, marking, and labeling of cargo shipments of small 
secondary lithium batteries (no more than 8 grams equivalent lithium 
content) until the analysis of the failures and the implementation 
of risk-based requirements asked for in Safety Recommendation A-07-
108 are completed.
    Safety Recommendation A-08-01: In collaboration with air 
carriers, manufacturers of lithium batteries and electronic devices, 
air travel associations, and other appropriate government and 
private organizations, establish a process to ensure wider, highly 
visible, and continuous dissemination of guidance and information to 
the air-traveling public, including flight crews, about the safe 
carriage of secondary (rechargeable) lithium batteries or electronic 
devices containing these batteries on board passenger aircraft.
    Safety Recommendation A-08-02: In collaboration with air 
carriers, manufacturers of lithium batteries and electronic devices, 
air travel associations, and other appropriate government and 
private organizations, establish a process to periodically measure 
the effectiveness of your efforts to educate the air-traveling 
public, including flight crews, about the safe carriage of secondary 
(rechargeable) lithium batteries or electronic devices containing 
these batteries on board passenger aircraft.

    Most of the recent lithium battery incidents have been determined 
to originate from packages in non-compliant shipments of lithium 
batteries. As a result, many feel that additional regulations will not 
help lower the number of incidents. PHMSA and FAA believe non-
compliance most often arises from confusion concerning the regulatory 
requirements. This confusion typically results from a lack of proper 
training. Currently, shippers of small-size lithium batteries are 
excepted from the training requirements in Subpart H of Part 172 of the 
HMR. The proposals in this NPRM would require these shippers to train 
employees who prepare lithium battery shipments for transportation to 
ensure

[[Page 1305]]

the employees are knowledgeable about all the applicable regulatory 
requirements and that shipments conform to those requirements. The 
training requirements would also apply to air carrier employees; thus, 
training in the requirements applicable to the transportation of small 
lithium batteries would be included in the currently required air 
carrier training for acceptance, handling, and loading and unloading 
lithium battery packages.
    The proposals in this NPRM would also subject packages of small-
size lithium batteries to well-recognized hazardous materials marking 
and labeling requirements. These hazard communication provisions will 
ensure that packages of lithium batteries are placed into a well-
established and high-functioning cargo transportation system that 
provides for more careful handling, more precise record keeping, and 
more detailed tracking and reporting than is typically provided for 
non-hazardous cargo.
    In addition to markings and labels, the proposals in this NPRM 
would also require transport documentation to accompany a shipment of 
small-size lithium batteries. This includes notation of the presence 
and location of lithium batteries aboard the aircraft on the notice to 
the pilot in command (NOPIC). This will allow pilots and crew to make 
appropriate decisions in the event of an emergency. For example, if the 
flight crew identifies fire or smoke in a location where a lithium 
battery shipment is stowed, the crew can make an informed decision 
about the possible severity of the fire, whether the presence of 
lithium batteries could worsen the fire, and the time available to land 
the aircraft or take other emergency actions. The NOPIC also allows 
ground crew, firefighters and first responders to know how they should 
respond in case of an emergency because they will know not only that 
there are packages of lithium batteries aboard the aircraft, but also 
where on the aircraft these packages are located.
    The hazardous materials regulatory system has for decades proven 
its effectiveness in mitigating hazardous materials transportation 
risk. Shippers and operators understand this system and have included 
steps in their processes to ensure compliance. However, lithium 
batteries have largely operated outside of this structure through the 
use of exceptions. This current exception-based system has created a 
set of regulations that is not easily understood or enforced. This, 
coupled with the lack of required training, adds to the difficulty of 
ensuring compliance. PHMSA and FAA believe the system created 
specifically for the transportation of hazardous materials is sound and 
can be used to effectively mitigate the risk posed by lithium batteries 
in air transportation.

 B. Overview of Current Regulations

    Currently, the HMR address lithium battery transportation safety 
through design type testing, short circuit protection, limits on 
battery size, and limits on net and gross weight. The HMR provide 
exceptions for small cells and batteries often found in consumer 
electronic devices.
    Lithium batteries are regulated as a Class 9 material. Class 9 
materials present a hazard during transportation but do not meet the 
definition of any other hazard class. The HMR prohibit the transport of 
primary lithium batteries as cargo on passenger aircraft unless packed 
with or contained in equipment. Packaging and design type testing 
requirements and exceptions for lithium batteries are found in Sec.  
173.185. For transportation by all modes, lithium batteries of all 
types and sizes must pass applicable tests in the UN Manual of Tests 
and Criteria. These tests are designed to ensure that the battery can 
withstand conditions normally encountered in transportation. In 
addition, the battery must be designed in a manner that precludes a 
violent rupture and must be equipped with an effective means of 
preventing external short circuits and a means to prevent reverse 
current flow if it contains cells that are connected in parallel.
    Batteries transported as a Class 9 material must be packaged in 
combination packagings that conform to the performance standards 
specified in Part 178 of the HMR at the Packing Group II performance 
level. In addition, the batteries must be packaged so as to prevent 
short circuits, including movement that could lead to short circuits. A 
package containing lithium batteries must be labeled with a Class 9 
label and must be accompanied by a shipping paper that describes the 
lithium batteries being transported and emergency response information. 
The location and quantity of shipments must also be provided to the 
pilot in command.
    The HMR provide exceptions for lithium batteries based on the 
battery size and packing method. Generally, shipments of small lithium 
batteries are excepted from the specification packaging and hazard 
communication requirements outlined above provided each package 
containing more than 24 lithium cells or 12 lithium batteries is: (1) 
Marked to indicate that it contains lithium batteries and that special 
procedures must be followed if the package is known to be damaged; (2) 
accompanied by a document indicating that the package contains lithium 
batteries and that special procedures must be followed if the package 
is known to be 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. Further, each such 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'' or 
``LITHIUM METAL BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER 
AIRCRAFT.'' The marking, documentation and 1.2 meter drop test 
requirements described above do not apply when these small cells or 
batteries are contained in a piece of equipment.
    For medium-size lithium batteries and cells transported by motor 
carrier or rail, the HMR provide exceptions similar to those for small 
lithium batteries. Under these exceptions, 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 if the package is known to be damaged; (2) be accompanied by a 
document indicating the package contains lithium batteries and special 
procedures must 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. For those packages that are not prepared for air 
shipment, (i.e., not offered and transported as a Class 9 material) the 
HMR require the package to be marked to indicate that they may not be 
transported by aircraft or vessel. The marking, documentation and 1.2 
meter drop test requirements described above do not apply when these 
medium cells or batteries are contained in a piece of equipment.
    The exceptions for small and medium size lithium batteries 
described above are found in Sec.  172.102 Special Provisions 188 and 
189 respectively. Additional exceptions for special cases such as small 
production runs of batteries and specific aircraft quantity limitations 
are found in Sec.  172.102, Special Provisions 29, A54, A55, A100, 
A101, A103, and A104.
    The current requirements in the HMR pertaining to the transport of 
lithium batteries reflect a number of actions taken by PHMSA and FAA in 
response

[[Page 1306]]

to the past incidents and NTSB recommendations, aimed at reducing the 
risks posed by batteries and battery powered devices in transportation. 
These include--
     Safety advisories issued by PHMSA to the public (64 FR 
36743 [July 7, 1999]; 72 FR 14167 [Mar. 26, 2007]) and by the FAA to 
the airline industry on July 2, 1999, May 23, 2002 and August 3, 2007 
to remind persons that batteries and electrical devices that contain 
batteries are prohibited for transport unless properly packaged to 
prevent the likelihood of creating sparks or generating dangerous heat.
     Changes to UN Recommendations in 2000 and the 2003-04 ICAO 
Technical Instructions based on proposals by the United States which 
(1) revised battery testing requirements and required testing of small 
lithium batteries, (2) adopted hazard communication and packaging 
requirements for small batteries, (3) eliminated an exception for 
medium-sized batteries, and (4) adopted limited exceptions for 
passengers and crew to carry lithium batteries and battery-powered 
equipment aboard an aircraft.
     A series of tests performed by FAA in 2004 concluded that 
the presence of a shipment of primary lithium batteries can 
significantly increase the severity of an in-flight cargo compartment 
fire and the fire suppression systems currently in use aboard passenger 
aircraft are ineffective.
     PHMSA's December 15, 2004 interim final rule (69 FR 75208, 
correction, 71 FR 56894 [Sept. 28, 2006]), based on the results of the 
FAA tests, adopted a limited prohibition on the transportation on 
passenger-carrying aircraft of primary lithium batteries.
     Further testing by FAA in 2006 concluded that flames 
produced by secondary lithium batteries and cells are hot enough to 
cause adjacent cells to vent and ignite, but currently approved fire 
suppression systems are effective on the electrolyte fire and prevent 
any additional fire from subsequent cell venting.
     PHMSA's August 9, 2007 final rule (72 FR 44930) finalized 
the December 15, 2004 interim final rule and (1) adopted design type 
testing of all lithium batteries in accordance with international 
standards, and (2) revised the exception for consumer electronic 
devices and spare lithium batteries carried by passengers and crew. The 
preamble to this final rule also discussed in more detail some of the 
prior incidents during transportation of lithium batteries, the FAA 
testing programs, the recalls of notebook computer batteries, and the 
rulemaking changes up to that time.
     PHMSA's January 14, 2009 final rule (74 FR 2199) addressed 
NTSB safety recommendations A-07-106 and A-07-107 by requiring an air 
carrier, in the event of a serious incident, to make immediately 
available to an authorized official of a federal, state, or local 
government agency (including an emergency responder), the shipping 
papers and notice to pilot in command or the information contained in 
those documents. This requirement represents a proactive approach to 
information dissemination similar to that in the ICAO Technical 
Instructions. This final rule also added a requirement to report all 
incidents that result in a fire, violent rupture, explosion or 
dangerous evolution of heat (i.e., an amount of heat sufficient to be 
dangerous to packaging or personal safety to include charring of 
packaging, melting of packaging, scorching of packaging, or other 
evidence) that occurs as a direct result of a battery or battery-
powered device. Additionally, the final rule amended regulatory 
requirements to clarify acceptable methods for packaging batteries to 
protect against short circuits and overheating and required the 
reporting of certain incidents involving batteries or battery powered 
devices. PHMSA set forth examples of methods to prevent short circuit 
and damage (such as individually packaging each battery, securely 
covering terminals with non-conductive caps or tape, or designing 
batteries with terminals that are recessed or otherwise protected) 
appropriate for all batteries.
     PHMSA and FAA have also conducted a campaign to educate 
the public about ways to reduce lithium battery transportation risks. 
On February 22, 2007; April 26, 2007; May 24-25 2007; and April 11, 
2008, PHMSA hosted meetings with public and private sector stakeholders 
who share our concern for the safe transportation of batteries and 
battery powered devices. The meetings provided an opportunity for 
representatives of the NTSB, CPSC, manufacturers of batteries and 
battery powered devices, airlines, airline employee organizations 
(e.g., pilots and flight attendants), testing laboratories, and the 
emergency response and law enforcement communities to share and 
disseminate information concerning battery related risks and 
developments.
    The amendments to the HMR adopted since 2004 have produced positive 
results, but they addressed only very specific issues and specific 
transport contexts. The proposals outlined in this NPRM are intended to 
comprehensively address the hazards posed by lithium batteries in all 
modes of transportation and further reduce the likelihood and the 
consequences of a battery related fire in transportation. In this NPRM, 
PHMSA plans to address safety recommendations A-07-104, A-07-105, A-07-
108 and A-07-109.
    In addition to the safety measures identified in this NPRM, PHMSA 
and FAA are considering additional safety standards. Many of these 
additional measures affect multiple transport modes, including 
aviation. As we develop these concepts we will continue to work with 
the appropriate international transportation standards-setting bodies, 
such as the United Nations Subcommittee of Experts on the Transport of 
Dangerous Goods (UNSCOE TDG) and the International Civil Aviation 
Organization (ICAO) Dangerous Goods Panel, to encourage their world-
wide acceptance. These additional measures may include:
     Establishing a new system for the classification of 
articles, such as lithium batteries that have the potential to produce 
heat and fire.
     Determining the feasibility of developing performance 
standards for fire resistant containers that can be used for the 
transport of lithium cells and batteries of all types and all other 
flammable materials on board aircraft.
     Examining the role of packaging in preventing damage and 
short circuits to lithium cells and batteries.

 C. Ongoing Efforts To Evaluate Lithium Battery Risk

    As previously mentioned, PHMSA and FAA have identified 44 air 
transport related incidents and numerous additional non-transport 
incidents involving lithium batteries and lithium battery powered 
devices. The January 14, 2009 final rule required air carriers to 
report all incidents that result in a fire, violent rupture, explosion 
or dangerous evolution of heat that occur as a result of a battery or a 
battery powered device. In addition to requiring an incident report 
NTSB, A-07-107 recommends PHMSA require air carriers retain the failed 
items for evaluation purposes. We have concerns with requiring a person 
involved in an incident reported under Sec. Sec.  171.15 or 171.16 to 
maintain in a secure manner items or packages especially if the item is 
an airline passenger's property. Such a requirement would impose 
additional responsibility on the air carrier to maintain possession of 
the item or package in a secure manner. Currently, when an incident 
occurs, DOT works with the person in physical possession of the item 
such as a battery or device

[[Page 1307]]

to ensure the incident is thoroughly documented and when the air 
carrier has accepted the property (68 FR 9735) it is maintained and in 
some instances transported for evaluation. Depending on the nature and 
severity of the incident we work with carriers on a case-by-case basis 
to collect and analyze evidence as appropriate and we continue to seek 
ways to improve the quality and consistency of data we receive. As part 
of this NPRM, PHMSA seeks comments on how this data collection could be 
improved.
    The proposals in this NPRM are intended to address the root causes 
of lithium battery incidents. The available incident data suggest the 
most likely causes of lithium battery incidents are:

    1. External short circuiting--occurs when an exposed battery 
terminal contacts a metal object. When this happens, the battery can 
heat up and may cause ignition of the battery and/or the surrounding 
combustible materials.
    2. In-use situation--generally relating to improper ``charging'' 
and/or ``discharging'' conditions associated with the use of 
equipment (e.g., computer or cell phone). This also includes 
inadvertent activation and subsequent overheating (such was the case 
when a power drill activated and burned in a passenger's checked 
baggage).
    3. Non-compliance--includes faulty design of the battery (cells 
or battery packs), false certification of compliance with regulatory 
testing/classification requirements, and improper packing and 
handling including some counterfeit batteries.
    4. Internal short circuit--can be caused by foreign matter 
introduced into a cell or battery during the manufacturing process. 
An internal short circuit can also occur when a battery is 
physically damaged (e.g. dropped or punctured).

    As noted in the previous section, FAA's Technical Center initiated 
a series of tests to evaluate the risk posed by lithium batteries 
involved in an unrelated fire. FAA completed a study in 2004 to assess 
the flammability characteristics of bulk packed primary lithium 
batteries and a second study in 2006 examining the flammability 
characteristics of bulk packed secondary lithium batteries. In both 
studies the tests were designed to simulate the behavior of the 
batteries in an environment that is similar to actual conditions 
possible in an aircraft cargo compartment fire. Both the 2004 and 2006 
test reports are available at the following url: https://www.fire.tc.faa.gov/reports/reports.asp.
    In the case of primary lithium batteries, the FAA tests showed that 
the packaging materials delayed the ignition of the batteries, but 
eventually added to the fire and contributed to 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 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.
    The second study completed in 2006 used a similar methodology to 
determine the flammability of secondary lithium batteries and cells. 
The testing demonstrated that flames produced by the batteries are hot 
enough to cause adjacent cells to vent and ignite. The testing also 
demonstrated 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.
    We are aware of additional testing conducted in 2004 and 2005 
independent of the FAA or PHMSA to assess the effect of a battery's 
state of charge on its overall risk. The 2004 preliminary report titled 
``Effect of Cell State of Charge on Outcome of Internal Cell Faults'' 
concluded the severity of the result of an internal short circuit is 
strongly affected by the state of charge. The Draft 2005 report titled 
``US FAA Style Flammability Assessment of Lithium Ion Cells and Battery 
Packs in Aircraft Cargo Holds'' concluded: (1) Direct flame impingement 
on small unpackaged quantities of lithium ion cells and battery packs 
can lead to thermal runaway; (2) Halon 1301 is effective at controlling 
burning lithium ion cells; (3) the fires had a minimal effect on bulk 
packaged lithium ion cells with less than 50% state of charge; and (4) 
the aircraft liner typically used on commercial aircraft is capable of 
withstanding burning gases discharged from venting lithium ion cells 
and batteries. A copy of this analysis is available for review in the 
docket of this rulemaking.
    The FAA results with lithium ion batteries at 100% state of charge 
exposed to a fire showed similar, but more forceful results (i.e. more 
sparks, and more forceful cell venting). FAA and other test data on 
lithium ion cells and batteries suggest that state of charge affects 
their behavior under abuse conditions. PHMSA recognizes this fact and 
commonly requires transport at a reduced state of charge as a condition 
of competent authority approvals issued for the transport of extremely 
large lithium ion batteries found in vehicles and military and 
aerospace equipment. To date, we are not aware of any data that can be 
used to suggest a reduced state of charge affects the behavior of 
primary lithium batteries under abuse conditions.
    The United Kingdom Civil Aviation Authority completed a report in 
2003 titled: ``Dealing with In-Flight Lithium Battery Fires in Portable 
Electronic Devices.'' The test results verified the effectiveness of 
existing fire extinguishing agents in responding to an in-flight fire 
involving a lithium battery powered portable electronic device. The 
report also concluded that the safety systems inherent to lithium 
batteries and battery powered devices decrease the likelihood of a 
fire, but since there is a potential for a fire, these devices must be 
considered a potential risk in flight and during ground based 
operations. If a fire does occur in the aircraft cabin, the force of 
the explosion is not sufficient to cause structural damage to the 
aircraft, but there is a risk the fire could spread to adjacent 
flammable material such as clothing and seats and flames and fumes from 
burning batteries pose a hazard to passengers in the immediate 
vicinity.
    The UK CAA testing, combined with additional research from the FAA 
has formed the basis for improved response procedures and cabin crew 
fire fighting training. Since 2007, the International Federation of 
Airline Pilots Associations has issued several safety bulletins with 
updated recommendations for flight crew actions. In March of 2009, the 
FAA released a training video recreating in-flight scenarios which 
includes actual lithium battery fires and appropriate response 
measures. All of these test reports are available for review in the 
public docket for this rulemaking.

II. Discussion of Proposed Regulatory Changes

A. Summary of Proposals in This NPRM

    In this NPRM, we propose a number of provisions to enhance the safe 
transportation of lithium batteries. The proposals are intended to 
reform the current regulatory framework specific to lithium batteries 
and strengthen the regulations by eliminating certain exceptions. These 
revisions will

[[Page 1308]]

enhance safety by ensuring that all lithium batteries are designed to 
withstand normal transportation conditions, packaged to reduce the 
possibility of damage that could lead to an incident, and accompanied 
by hazard communication information that ensures appropriate and 
careful handling by air carrier personnel and informs transport workers 
and emergency response personnel of actions to be taken in an 
emergency. The additional hazard communication information will also 
provide the pilot in command with additional information about the 
location and quantity of lithium batteries should an unrelated fire 
require emergency measures. Several of the proposals are based on 
recommendations issued by the NTSB. Specifically, in this NPRM, we 
propose to:
     Revise current shipping descriptions for lithium batteries 
(UN3090), lithium batteries packed with equipment (UN3091), and lithium 
batteries contained in equipment (UN3091) to specify lithium metal 
batteries including lithium alloy batteries as appropriate.\a\
---------------------------------------------------------------------------

    \a\ In 2006, separate shipping descriptions for lithium metal 
batteries and lithium ion batteries were adopted into the UN 
Recommendations. The International Civil Aviation Organization and 
the International Maritime Organization subsequently adopted these 
shipping descriptions. All references to primary or secondary 
lithium batteries in international regulations were revised to 
reflect this change.
---------------------------------------------------------------------------

     Adopt shipping descriptions for lithium ion batteries 
including lithium ion polymer batteries (UN3480), lithium ion batteries 
packed with equipment including lithium ion polymer batteries (UN3481), 
lithium ion batteries contained in equipment including lithium ion 
polymer batteries (UN3481).\a\
     Adopt watt-hours in place of equivalent lithium content to 
measure the relative hazard of lithium ion cells and batteries.
     Incorporate by reference the latest revisions to the 
United Nations Manual of Tests and Criteria applicable to the design 
type testing of lithium cells and batteries.
     Adopt and revise various definitions including ``Aggregate 
lithium content'' ``Lithium content'', ``Lithium ion cell or battery'', 
``Lithium metal cell or battery'', ``Short circuit'', and ``Watt-hour'' 
based on definitions found in the UN Manual of Tests and Criteria.
     Require manufacturers to retain results of satisfactory 
completion of UN design type tests for each lithium cell and battery 
type and place a mark on the battery and/or cell to indicate testing 
has been completed successfully. PHMSA and the FAA will coordinate with 
the appropriate international organizations to ensure consistency.
     For air transportation, eliminate regulatory exceptions 
for lithium cells and batteries, other than certain exceptions for 
extremely small lithium cells and batteries that are shipped in very 
limited quantities such as button cells and other small batteries that 
are packed with or contained in equipment and those required for 
operational use in accordance with applicable airworthiness 
requirements and operating regulations.
     For all transport modes, require lithium cells and 
batteries to be packed to protect the cell or battery from short 
circuits.
     Unless transported in a container approved by the FAA 
Administrator, when transported aboard aircraft, limit stowage of 
lithium cells and batteries to crew accessible cargo locations or 
locations equipped with an FAA approved fire suppression system.
     Consolidate and simplify current and revised lithium 
battery requirements into one section of the HMR.
     Apply appropriate safety measures for the transport of 
lithium cells or batteries identified as being defective for safety 
reasons, or those that have been damaged or are otherwise being 
returned to the manufacturer.

To expedite compliance with the amendments in this notice, we are 
proposing a mandatory compliance date of 75 days after the date of 
publication of the final. The following sections discuss these changes 
in detail:

B. Evidence Preservation

    In this NPRM, in Sec.  171.21, we propose to require a shipper, 
carrier, package owner or person reporting an incident under the 
provisions of Sec. Sec.  171.15 or 171.16 to provide upon request, by 
an authorized representative of the Federal, State or local government 
agency reasonable assistance in investigating the damaged package or 
article, if available.

C. New Shipping Names

    Currently, under the HMR, lithium metal batteries and lithium ion 
batteries share the same UN number. However, differences in chemistry, 
functionality, and behavior when exposed to a fire are well documented. 
Based in part on the previously mentioned FAA fire tests, PHMSA imposed 
additional requirements on lithium metal (primary) batteries including 
prohibiting them from transportation aboard passenger aircraft, unless 
packed with or contained in equipment. The fact that both lithium metal 
and lithium ion batteries share the same UN number yet are regulated 
differently has the potential to cause problems in acceptance 
procedures for carriers and may unnecessarily hinder or delay the 
transportation of these products.
    In 2006, the UN Recommendations adopted separate shipping names and 
ID numbers for lithium metal and lithium ion batteries. The ICAO and 
the International Maritime Organization subsequently adopted these 
entries into their respective dangerous goods lists effective January 
1, 2009. While the HMR permit the use of the ICAO Technical 
Instructions and the International Maritime Dangerous Goods (IMDG) Code 
for international and for domestic transportation when a portion of the 
transportation is by aircraft or vessel, subsequent domestic reshipping 
of packages containing lithium batteries remains difficult.
    In this NPRM, PHMSA proposes to provide two separate entries in the 
hazardous materials table for primary lithium batteries, now referred 
to as ``lithium metal batteries'' and secondary lithium batteries, now 
referred to as ``lithium ion batteries''. Separate entries for lithium 
metal and lithium ion batteries will facilitate the transportation of 
these materials through various modes, both domestically and 
internationally, and enable the application of different emergency 
response actions. We will replace all references to ``primary lithium 
batteries'' with ``lithium metal batteries'' and all references to 
``secondary lithium batteries'' with ``lithium ion batteries''.

D. Watt Hours Versus Equivalent Lithium Content

    When requirements for lithium ion batteries were first adopted into 
the HMR, it was necessary to provide an indication of the lithium 
content in each cell and battery. Since lithium ion batteries do not 
contain metallic lithium, an expression of lithium content analogous to 
lithium metal batteries was devised. This term became known as 
equivalent lithium content (ELC), also known as lithium equivalent 
content. The ELC of a lithium ion cell measured in grams is calculated 
to be 0.3 times the rated capacity in ampere hours. The ELC of a 
lithium ion battery equals the sum of the grams of ELC contained in the 
component cells of the battery. Although the term equivalent lithium 
content is used in the HMR, this term is not widely used or understood 
and can lead to confusion when calculating the ELC of a battery. For

[[Page 1309]]

example, the aggregate ELC for a lithium ion battery consisting of 
multiple cells within a battery can be difficult to calculate based 
solely on the ampere-hour capacity of the battery. Information on the 
ampere-hour capacity of the component cells within a battery is not 
normally provided and the ampere-hour capacity of a battery can change 
depending on the configuration of component cells within a battery.
    PHMSA proposes to adopt a methodology for determining the relative 
strengths of lithium ion batteries using measurements of watt-hours 
rather than ELC. The term watt-hour, expressed as (Wh) is commonly used 
in electrical applications. The watt-hour value of a lithium ion cell 
or battery is determined by multiplying a cell or battery's rated 
capacity in ampere-hours, by its nominal voltage. Therefore, watt-hour 
(Wh) = ampere-hour (Ah) x Volts (V). This product is easy to calculate 
for both cells and batteries and the watt-hour measurement is 
independent of how the component cells within a lithium ion battery are 
connected.
    PHMSA further proposes to replace the term equivalent lithium 
content, or lithium equivalent content and aggregate equivalent content 
each place it appears with watt-hour and replace the equivalent lithium 
content values with their equivalent watt-hour values. These proposals 
are consistent with proposals already adopted in the UN 
Recommendations, ICAO Technical Instructions, and IMDG Code.

E. Design Type Testing

    Each lithium cell or battery is required to be of a type proven to 
meet the requirements of each test in the UN Manual of Tests and 
Criteria.\b\ These tests are designed to ensure that the cells and 
batteries will withstand exposure to severe environmental conditions 
encountered during transport without resulting in a short circuit or a 
rupture. A comparison of the battery appearance before and after these 
tests is intended to detect battery damage such as leakage or abnormal 
venting, disintegration, cracking, swelling or distortion of the 
battery pack, or any other observation that could indicate the 
occurrence of an internal short circuit or constitute a transportation 
safety hazard. Certain tests, including altitude simulation, thermal, 
vibration and shock tests are designed to simulate extremes that may be 
encountered during transport. External short circuit, impact, 
overcharge and forced discharge tests are included, as these conditions 
contribute to short circuits and other potentially hazardous 
conditions.
---------------------------------------------------------------------------

    \b\ As previously discussed, shipments of small lithium cells 
and batteries have been prohibited on passenger-carrying aircraft 
since December 15, 2004, but, before October 1, 2009, small lithium 
cells and batteries that met certain limited packaging and hazard 
communication conditions could be shipped by surface transportation 
(and small secondary lithium cells and batteries could be shipped on 
cargo-only aircraft), without being subject to the testing 
requirements in the UN Manual of Tests and Criteria. Small lithium 
cells and batteries were defined as follows: Cells with up to 1 g 
lithium (primary) or 1.5 equivalent lithium content (ELC) 
(secondary); batteries with up to 2 g lithium (primary) or 8 g ELC.
---------------------------------------------------------------------------

    An informal lithium battery working group of the United Nations 
Subcommittee of Experts on the Transport of Dangerous Goods (UNSCOE 
TDG) met in November 2008 and again in April 2009 to discuss the test 
methods relevant to lithium cells and batteries as contained in the UN 
Manual of Tests and Criteria. The group concluded that while the design 
type tests outlined in the UN Manual of Tests and Criteria adequately 
address safety concerns involving lithium cells and batteries, they can 
be improved based on an evolving understanding and use of lithium 
battery technology.
    Recently, interest in adding an internal short circuit test into 
the UN Manual of Tests and Criteria has grown. Several different tests 
have been developed; however, each method has strengths and weaknesses 
including repeatability and the ability to control the mechanism of the 
internal short circuit. While no consensus has been reached on this 
subject, research and discussion continues. Once a reliable internal 
short circuit test method is developed and incorporated into the UN 
Manual of Tests and Criteria, we will consider adopting this additional 
test into the HMR. We invite commenters to address issues related to 
the development of an internal short circuit test, including 
recommendations on an appropriate and effective test methodology, real-
world experience in applying such a test, and the costs that would be 
associated with an additional test requirement.
    In December 2008, the UN Committee of Experts adopted several 
amendments to section 38.3 of the UN Manual of Tests and Criteria 
(fourth revised edition), which we propose to incorporate by reference 
in Sec.  171.7. These changes include:
     Modifications to the terms ``module'' and ``battery 
assembly'', new definitions for the terms ``large battery'' and ``small 
battery'' and modifications to the testing protocol for large batteries 
and battery assemblies.
     Revised criteria for a different design type by adding 
additional criteria for rechargeable lithium cells and batteries that 
would trigger a new round of design-type testing.
    Currently, the UN Manual of Tests and Criteria specifies that a 
change from a tested design type of 0.1 grams or 20% by mass to the 
anode, the cathode, or electrolyte material constitutes a change in the 
design of the battery requiring design-type testing. A change that 
would materially affect the test results is also considered a new 
design type requiring retesting. While we continue to believe in the 
importance of harmonization with international standards, we believe a 
change of 20% by mass to the anode, cathode, or electrolyte material by 
mass is too high. Additionally, the language referencing a ``change 
that would materially affect the test results'' remains too broad and 
leaves a great deal to interpretation from the individual cell or 
battery manufacturer or assembler. In this NPRM we propose to require a 
change of 0.1 grams or 5% by mass to the anode cathode or electrolyte 
material from a tested design type to constitute a new design and 
require retesting. Depending on the lithium content, such a change 
would affect the test results. In addition, we propose to include the 
examples of changes that could materially affect the test results 
developed by the informal UN working group. These examples include:
     A change in the material of the anode, the cathode, the 
separator, or the electrolyte;
     A change of protective devices, including hardware and 
software;
     A change of safety design in cells or batteries, such as a 
venting valve;
     A change in the number of component cells;
     A change in connecting mode of component cells.
    In recent years, lithium battery technology has been developed for 
use in electric vehicles, hybrid electric vehicles and plug-in hybrid 
electric vehicles. The batteries now being utilized in hybrid electric 
vehicles are assemblies that include systems of electronic controllers, 
sensors, air flow ducts, cabling, cell mounting fixtures, cells, trays, 
covers, and attachment brackets and are much larger than lithium 
batteries found in consumer electronic devices (vehicle battery sizes 
generally have a gross mass between 14 kg and 80 kg). While the current 
UN Test standards and the HMR are broad enough in scope to accommodate 
extremely large batteries and assemblies, some believe the forces 
required by some of the UN tests are excessive and certain HMR 
requirements hamper the commercial development of this technology.

[[Page 1310]]

Because these new lithium battery applications may require 
modifications to the UN Manual of Tests and Criteria and revisions to 
the HMR, we issue competent authority approvals on a case-by-case basis 
and continue to actively participate in the advancement of modified 
testing schemes and practical methods that support the development of 
this technology without compromising safety. Based on transportation 
experience gained through competent authority approvals, we may 
consider revising the HMR to more adequately address these scenarios, 
provided we can do so without creating adverse safety consequences.
    The cell and battery design type tests outlined in the UN Manual of 
Tests and Criteria are generally completed prior to the initial 
shipment of a battery from the manufacturer. While we believe most cell 
and battery manufacturers ensure the appropriate tests are conducted 
and the batteries and devices are safe for use, we remain uncertain 
that all manufacturers or battery assemblers take such steps or are 
even aware of the need to test each battery design type. We also remind 
battery manufacturers and assemblers that each lithium battery design-
type is subject to the tests in the UN Manual of Tests and Criteria, 
even if the cells that make up the battery have been tested.
    In this NPRM, we propose to require cell and battery manufacturers 
to retain evidence of satisfactory completion of each of the lithium 
cell and battery design type tests outlined in the UN Manual of Tests 
and Criteria. This evidence must be maintained 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 
this information available for inspection by a representative of a 
federal, state or local government agency. Since cell and battery 
design type tests already must be completed prior to transport we do 
not believe this should be a particularly burdensome requirement.
    Additionally, we are considering a requirement for a visible 
quality mark to appear on the outside case of each cell or battery. 
This mark would signify successful completion of the required lithium 
battery design type tests in a readily recognizable manner. Visible 
quality marks on electronic devices are very common. Familiar examples 
include the UL symbol meaning a particular product has been evaluated 
and representative samples have been tested by Underwriters 
Laboratories and those products meet particular requirements for safety 
and quality. The CE marking certifies compliance with certain European 
Union Directives. For the purposes of lithium design type testing, we 
are considering requiring a UN symbol, identical to the symbol 
currently required on UN packagings and UN cylinders to appear on all 
cells and batteries that have met each of the design type tests 
prescribed in the UN Manual of Tests and Criteria. Below is an example 
of the mark we are considering:
[GRAPHIC] [TIFF OMITTED] TP11JA10.008

    This mark is readily recognized throughout the world and is 
generally associated with hazardous materials transportation. The 
intended effect of these new provisions is to promote knowledge of the 
UN Tests throughout the world and enhance compliance with these 
important safety standards. We intend to develop proposals for a 
quality mark and associated documentation for inclusion in the UN Model 
Regulations and the UN Manual of Tests and Criteria. We invite 
commenters to address these concepts. Based on comments from the public 
in response to this notice and discussion with the UN SCOE TDG, we may 
adopt the UN Marking or a similar mark in the final rule.

F. Elimination of Exceptions for Small Lithium Batteries

    As noted above, since October 1, 2009, the HMR except small lithium 
cells and batteries from most HMR requirements provided the cells or 
batteries meet the test requirements in the UN Manual of Tests and 
Criteria and the shipment conforms to minimal packaging and hazard 
communication requirements (see Special Provision 188 in Sec.  
172.102(c)). Consistent with NTSB Safety Recommendation A-07-109, in 
this NPRM we propose to eliminate the regulatory exceptions for lithium 
cells and batteries when transported aboard aircraft. Thus, small 
lithium batteries and cells would be required to be offered for 
transportation as Class 9 materials and would be subject to the 
requirements for lithium cells and batteries in Sec.  173.185, 
including the packaging requirements discussed in the next section and 
the hazard communication requirements (shipping papers, package marking 
and labeling) that apply to shipments of Class 9 materials.
    In cargo transportation, generally packages are treated as either 
regulated hazardous materials or non-regulated general cargo. Packages 
that display a hazardous materials label are typically handled in a 
separate cargo stream to ensure more direct oversight than non-
regulated cargo. Those materials that are regulated as hazardous 
materials are recognized by handlers, who ensure that proper 
precautions are taken and the package is handled in accordance with all 
applicable regulatory requirements.
    The proposals outlined in this NPRM have the net effect of moving a 
discrete number of shipments of lithium cells and batteries that are 
currently handled as general cargo into the hazardous material 
transport system. When lithium batteries are offered for transportation 
as a Class 9 material, the package itself provides a clear indication 
of the presence of hazardous material that is readily recognized by 
transport workers and ensures these packages are handled in a manner 
appropriate to their hazard. This also ensures that individuals 
responsible for ensuring the safety of these packages are appropriately 
trained in accordance with the HMR. We believe most air carriers who 
accept lithium batteries for transportation also accept other hazardous 
materials for transportation and already have the necessary personnel 
and procedures in place to handle these packages safely. Thus, the 
requirement to identify and package lithium batteries as Class 9 
materials provides significant safety benefits without imposing large 
additional costs on air carriers.
    Air carriers are required during the certification process to 
declare in their Operating Specifications if a business decision has 
been made to ``carry hazardous materials'' or a business decision has 
been made ``to prohibit the carriage of hazardous material''. Each air 
carrier who elects to carry hazardous material must include handling 
procedures, incident reporting procedures, and other information in its 
operations manual for the appropriate personnel to follow, as well as a 
hazardous material training program that is approved by FAA and 
provided every 24 months to all appropriate persons. This training 
would include recognition of all hazard communication information that 
would be associated with lithium battery shipments as they are trained 
to recognize all hazard class labels, marking and documentation.
    Under the HMR, materials that pose a specific and serious air 
transportation

[[Page 1311]]

risk are regulated more stringently than materials that pose less of a 
risk when transported by air. Lithium batteries are a current exception 
to this standard. The need to fully regulate these items and to 
aggressively enforce all applicable regulatory requirements is critical 
to air safety. Once lithium batteries are fully regulated, enforcement 
agencies will be able to take appropriate action against non-compliant 
shipments, reducing the number of non-compliant packages and therefore, 
reducing the number of lithium battery incidents.
    We note the ICAO Technical Instructions include provisions for 
certain lithium cells and batteries, provided outer packages are marked 
with a lithium battery handling label. This handling label shown be