Hazardous Materials: Emergency Restriction/Prohibition Order, 66713-66716 [2016-23332]
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Federal Register / Vol. 81, No. 188 / Wednesday, September 28, 2016 / Notices
Notice of Emergency
Restriction/Prohibition Order.
ACTION:
DEPARTMENT OF STATE
[Public Notice: 9739]
This notice provides
Emergency Restriction/Prohibition
Order No. FAA–2016–9156, issued
September 16, 2016 to Braille Battery,
Inc. The Emergency Order prohibits
Braille Battery from offering for
transportation and transporting, any
lithium ion battery that is not in
compliance with the HMR or the
International Civil Aviation
Organization (ICAO) Technical
Instructions as permitted in the HMR;
requires Braille Battery to maintain and
make publicly available the complete
test record issued by the testing facility
for each lithium ion battery
manufactured by Braille Battery proven
to meet the criteria in part III, subsection 38.3 of the UN Manual of Tests
and Criteria; requires Braille Battery to
notify third party vendors that may offer
for transportation, or transport, via air
any lithium ion battery manufactured by
Braille Battery that the third party
vendor should not offer for
transportation, nor transport, via air a
Braille Battery lithium ion battery until
Braille Battery confirms that the lithium
ion battery is of a design type proven to
meet the criteria in part III, sub-section
38.3 of the UN Manual of Tests and
Criteria; prohibits Braille from using any
‘‘hazmat employee’’ that has not
received training in accordance with the
HMR; and prohibits Braille Battery from
offering for transportation, or
transporting, by air any hazardous
materials requiring a DOT specification
or UN standard packaging unless Braille
Battery follows the applicable packing
and closure instructions.
DATES: Effective Date: The Emergency
Restriction/Prohibition Order provided
in this notice was effective September
16, 2016.
FOR FURTHER INFORMATION CONTACT:
Ryan Landers, Office of the Chief
Counsel, Federal Aviation
Administration, 1701 Columbia Ave.,
College Park, GA 30337; telephone:
(404) 305–5200; email: ryan.landers@
faa.gov.
SUPPLEMENTARY INFORMATION: As
required by 49 CFR 109.19(f)(2), the full
text of Emergency Restriction/
Prohibition Order No. FAA–2016–9156
issued September 16, 2016 is as follows:
This notice constitutes an Emergency
Restriction/Prohibition Order (Order) by
the United States Department of
Transportation (DOT) pursuant to 49
U.S.C. 5121(d) and 49 CFR 109.17(a);
and pursuant to delegation of authority
to the Administrator, Federal Aviation
Administration (Administrator), United
SUMMARY:
Culturally Significant Object Imported
for Exhibition Determinations: ‘‘Nuit
´ ´
d’ete (Summer Night)’’ Exhibition
Notice is hereby given of the
following determinations: Pursuant to
the authority vested in me by the Act of
October 19, 1965 (79 Stat. 985; 22 U.S.C.
2459), E.O. 12047 of March 27, 1978, the
Foreign Affairs Reform and
Restructuring Act of 1998 (112 Stat.
2681, et seq.; 22 U.S.C. 6501 note, et
seq.), Delegation of Authority No. 234 of
October 1, 1999, Delegation of Authority
No. 236–3 of August 28, 2000 (and, as
appropriate, Delegation of Authority No.
257 of April 15, 2003), I hereby
determine that the object to be included
´ ´
in the exhibition ‘‘Nuit d’ete (Summer
Night),’’ imported from abroad for
temporary exhibition within the United
States, is of cultural significance. The
object is imported pursuant to a loan
agreement with the foreign owner or
custodian. I also determine that the
exhibition or display of the exhibit
object at the Harvard Art Museums,
Cambridge, Massachusetts, from on or
about October 12, 2016, until on or
about July 18, 2017, and at possible
additional exhibitions or venues yet to
be determined, is in the national
interest. I have ordered that Public
Notice of these Determinations be
published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: For
further information, including an object
list, contact the Office of Public
Diplomacy and Public Affairs in the
Office of the Legal Adviser, U.S.
Department of State (telephone: 202–
632–6471; email: section2459@
state.gov). The mailing address is U.S.
Department of State, L/PD, SA–5, Suite
5H03, Washington, DC 20522–0505.
SUMMARY:
Dated: September 21, 2016.
Mark Taplin,
Principal Deputy Assistant Secretary, Bureau
of Educational and Cultural Affairs,
Department of State.
[FR Doc. 2016–23464 Filed 9–27–16; 8:45 am]
BILLING CODE 4710–05–P
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA–2016–9156]
Hazardous Materials: Emergency
Restriction/Prohibition Order
Federal Aviation
Administration (FAA), DOT.
AGENCY:
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66713
States Department of Transportation.
This Order is issued to Braille Battery,
Inc., (Braille Battery) 6935 15th St. E
Bldg 115, Sarasota, FL 34243. Upon
information derived from recent Braille
Battery lithium ion battery shipments
and subsequent FAA investigations, the
Administrator has found violations of
the Federal Hazmat law (49 U.S.C. 5101,
et seq.) or the Hazardous Materials
Regulations (HMR) (49 CFR parts 171 to
180); an unsafe condition, and that an
unsafe practice is causing or otherwise
constitutes an imminent hazard to the
safe transportation of hazardous
materials. Specifically, Braille Battery’s
continued offering of lithium ion
batteries for transport via air that are
neither proven to meet the criteria in
part III, sub-section 38.3 of the UN
Manual of Tests and Criteria, nor
properly classified and packaged,
constitutes an imminent hazard under
49 U.S.C. 5121(d) and 5102(5). For more
detailed information see ‘‘Background/
Basis for Order’’ below.
Effective Immediately Braille Battery
(1) Shall not offer for transportation,
nor transport, via air any lithium ion
battery that is not in compliance with
the HMR or the International Civil
Aviation Organization (ICAO) Technical
Instructions as permitted in the HMR.
This includes, but is not limited to, all
(1) lithium ion batteries of a design type
that has not been proven to meet the
criteria in part III, sub-section 38.3 of
the UN Manual of Tests and Criteria, (2)
lithium ion batteries of a type proven to
meet the criteria in part III, sub-section
38.3 of the UN Manual of Tests and
Criteria, but exceed the watt-hour (Wh)
rating limitations for the lithium ion
battery type that meets the criteria, and
(3) lithium ion batteries not properly
packaged and prepared in compliance
with 49 CFR 173.185(b) and (c) or the
ICAO Technical Instructions.
(2) Shall, for each lithium ion battery
manufactured by Braille Battery proven
to meet the criteria in part III, subsection 38.3 of the UN Manual of Tests
and Criteria, maintain and make
publicly available the complete test
record issued by the testing facility. If
Braille Battery does not possess the
complete test record issued by the
testing facility for any lithium ion
battery it manufactures, Braille Battery
must immediately contact the testing
facility(s) and obtain the complete test
record. To assist third-party vendors
and carriers in confirming that Braille
Battery lithium ion batteries are in
compliance with part III, sub-section
38.3 of the UN Manual of Tests and
Criteria, Braille Battery must make the
complete test record by the testing
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Federal Register / Vol. 81, No. 188 / Wednesday, September 28, 2016 / Notices
facility available via an internet Web
site. While this Order is in effect and
prior to offering or transporting via air,
Braille Battery must add to the internet
Web site any and all new test records
obtained to show that its lithium ion
battery(s) are of a type proven to meet
the criteria in part III, sub-section 38.3
of the UN Manual of Tests and Criteria.
Additionally, Braille Battery must
provide to the FAA any and all new test
records showing that its lithium ion
battery(s) are of a type proven to meet
the criteria in part III, sub-section 38.3
of the UN Manual of Tests and Criteria
prior to offering them for transportation,
or transporting, via air.
(3) Shall notify any and all third party
vendors that may offer for
transportation, or transport, via air any
lithium ion battery manufactured by
Braille Battery that the third party
vendor should not offer for
transportation, nor transport, via air a
Braille Battery lithium ion battery until
Braille Battery confirms that the lithium
ion battery is of a design type proven to
meet the criteria in part III, sub-section
38.3 of the UN Manual of Tests and
Criteria.
(4) Shall not utilize any ‘‘hazmat
employee’’ (49 CFR 171.8) not properly
trained in accordance with the HMR (49
CFR 172.700–704 and/or
173.185(c)(4)(v)) to perform a specific
hazmat function covered by the HMR.
This includes, but is not limited to,
function-specific training concerning
the requirements specifically applicable
to the functions the employee performs
(49 CFR 172.704(a)(2)). Braille Battery
shall not utilize any hazmat employee
trained per the HMR to perform the
classification and packing function for
air transportation if the hazmat
employee does not demonstrate the
ability to properly classify and package
a lithium ion battery in compliance with
49 CFR 173.185(b) and (c) or the ICAO
Technical Instructions.
(5) Shall not offer for transportation,
nor transport, by air any hazardous
materials requiring a DOT specification
or UN standard packaging unless Braille
Battery follows the applicable packing
and closure instructions.
This Order applies to Braille Battery,
its officers, directors, employees,
subcontractors, and agents. This Order
is effective immediately and remains in
effect unless rescinded in writing by the
Administrator or his designee, or until
it otherwise expires by operation of law.
Jurisdiction
The Secretary has the authority to
regulate the transportation of lithium
ion batteries in commerce. 49 U.S.C.
5103(b). The Secretary has designated
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lithium ion batteries, UN 3480, as a
hazardous material subject to the
requirements of the HMR. 49 U.S.C.
5103(a); 49 CFR 172.101. The
Administrator has the authority to carry
out the functions vested in the Secretary
by 49 U.S.C. 5121 relating to the
transportation or shipment of hazardous
materials by air. 49 CFR 1.83(d)(1).
Braille Battery offers for transportation
or transports hazardous materials in
commerce within the United States and
therefore is a ‘‘person’’, as defined by 49
U.S.C. 5102(9), in addition to being a
‘‘person’’ under 1 U.S.C. 1 and a
‘‘person who offers’’ as defined by 49
CFR 171.8. Commerce is as defined by
49 U.S.C. 5102(1) and 49 CFR 171.8, and
‘‘transportation’’ or ‘‘transport’’ are as
defined by 49 U.S.C. 5102(13) and 49
CFR 171.8. Accordingly, Braille Battery
is subject to the authority and
jurisdiction of the Administrator
including the authority to impose
emergency restrictions, prohibitions,
recalls, or out-of-service orders, without
notice or an opportunity for hearing, to
the extent necessary to abate the
imminent hazard. 49 U.S.C. 5121(d).
Background/Basis for Order
A. Lithium Ion Battery HMR
Requirements
Shipping hazardous materials is
inherently dangerous. The HMR and the
ICAO Technical Instructions
requirements for shipping lithium ion
batteries via air, including the
requirements that lithium ion batteries
be properly classified, packaged, and of
a type proven to meet the criteria in part
III, sub-section 38.3 of the UN Manual
of Tests and Criteria, are meant to
protect people and property. Lithium
ion batteries not in compliance with
these requirements may not be offered
or transported via air. Braille Battery, as
a lithium ion battery manufacturer, is
responsible for ensuring that each
lithium ion battery it manufactures is of
a type proven to meet the criteria in part
III, sub-section 38.3 of the UN Manual
of Tests and Criteria before it is offered
for transportation or transported.
Furthermore, Braille Battery is
responsible for ensuring that any
lithium ion battery it offers for
transportation, or transports, via air is
properly classified and packaged. This
Order ensures that Braille Battery
lithium ion battery shipments will be
transported in compliance with the
HMR or the ICAO Technical
Instructions.
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B. Braille Battery Lithium Ion Battery
Shipments
Upon reliable and credible
information received in the course of
investigations, the Administrator has
learned Braille Battery is offering for air
transport lithium ion batteries that do
not meet the HMR or ICAO Technical
Instructions requirements. On June 6,
2016, the FAA received notice from
Federal Express regarding a Federal
Express delivery truck that caught fire
on June 3, 2016. In its notification,
Federal Express indicated that four
separate lithium ion battery packages
offered by Braille Battery were onboard
the delivery truck that caught fire. All
four packages were offered for air
transport and were transported via air
prior to being loaded on the delivery
truck that caught fire. Federal Express
believes that one of the packages caused
the fire.1
The FAA began an investigation into
Braille Battery’s shipment of lithium ion
batteries. The investigation revealed that
Braille Battery manufactured and
offered for air transport the lithium ion
batteries onboard the Federal Express
delivery truck that caught fire on June
3, 2016. The investigation also revealed
that Braille Battery does not have proof
that the four Braille Battery lithium ion
batteries meet the criteria in part III,
sub-section 38.3 of the UN Manual of
Tests and Criteria. Further investigation
found that Braille Battery possessed a
three-page report allegedly issued by
Intertek showing that the Braille
Intensity and Braille Intensity 24v
lithium ion batteries meet the criteria in
part III, sub-section 38.3 of the UN
Manual of Tests and Criteria. However,
Braille Battery could not produce the
complete test report, and Intertek denies
ever testing the Braille Intensity or
Braille Intensity 24v lithium ion
batteries or creating the summary report.
On June 15, 2016, FAA
representatives notified Braille Battery
that it could not transport lithium ion
batteries lacking proof that they meet
the criteria in part III, sub-section 38.3
of the UN Manual of Tests and Criteria.
Between July 14, 2016 and August 19,
2016, Braille Battery offered 20 lithium
ion battery shipments for air transport to
DHL Express. The 20 lithium ion battery
shipments offered to DHL Express
included approximately 103 lithium ion
batteries. At least 3 of the lithium ion
batteries were not of a type proven to
meet the criteria in part III, sub-section
38.3 of the UN Manual of Tests and
Criteria. An additional 61 of the 103
lithium ion batteries offered to DHL
1 The National Transportation Safety Board is
investigating the cause of the fire.
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Express are currently being investigated
to determine if they meet the criteria in
part III, sub-section 38.3 of the UN
Manual of Tests and Criteria.
C. Braille Battery Classification and
Packaging
The FAA’s investigation also revealed
that none of the above-referenced 103
lithium ion batteries offered to DHL
Express were likely in compliance with
49 CFR 173.185(b) and (c) or the ICAO
Technical Instructions. Braille Battery
employees who classify, prepare, and
package lithium ion batteries for
shipment fail to understand their
function-specific requirements of how
to properly classify or package a lithium
ion battery under 49 CFR 173.185(b) and
(c) or the ICAO Technical Instructions.
During a follow-up inspection at Braille
Battery on September 7–8, 2016, the
hazmat employees responsible for
classification and packaging did not
follow the UN specification box
instructions.
Braille utilizes three Labelmaster UN
specification boxes for lithium ion
battery air transport shipments: (1)
UA121212BSR; (2) UA151010BS; and
(3) UA151414BS. The hazmat
employees performing packaging did
not follow the instructions for the three
UN specification boxes. All three UN
specification boxes provided the
following warning as to proper
packaging: ‘‘This closure instruction
includes the assembly procedures for
this packaging design. Substitution of
materials or a change to these closure
instructions may cause non-compliance
with regulations and void the test
certification for the packaging.’’
The packaging instructions for UN
specification boxes UA121212BSR,
UA151414BS, and UA151010BS all
require the use of a liner bag and nylon
ties around the article. Braille Battery
hazmat employees were not utilizing the
liner bags or nylon ties when packaging
lithium ion batteries in the UN
specification boxes UA121212BSR,
UA151414BS, and UA151010BS. The
packaging instructions for UN
specification boxes UA121212BSR and
UA151010BS also require that an
absorbent pad be placed in the liner bag.
Braille Battery hazmat employees did
not understand that the absorbent pad
was required, and Braille Battery did
not possess the required absorbent pads
when UN specification boxes
UA121212BSR and UA151010BS were
used. Additionally, UN specification
boxes UA121212BSR and UA151414BS
require the use of ‘‘3M 372 tape’’ and
UN specification box UA151010BS
requires the use of ‘‘3 mil, 3’’ wide hot
melt tape’’ when closing the
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specification box. Braille Battery did not
possess the required closure tape for any
of the three UN specification boxes at
any time when Braille Battery used the
three UN specification boxes in the
above-referenced shipments.
The Braille Battery hazmat
employees’ failure to properly prepare
the UN specification boxes for lithium
ion battery air shipments resulted in the
lithium ion battery packages that
appeared to carriers to be in compliance
with the applicable HMR or ICAO
Technical Instructions, Packing
Instruction 965, but were actually not
safe for air transportation.
D. Finding of Imminent Hazard
An imminent hazard, as defined by 49
U.S.C. 5102(5) and 49 CFR 109.1,
constitutes the existence of a condition
relating to hazardous material that
presents a substantial likelihood that
death, serious illness, severe personal
injury, or substantial endangerment to
health, property, or the environment
may occur before the reasonably
foreseeable completion date of a formal
proceeding begun to lessen the risk of
death, illness, injury or endangerment.
Shipments of lithium ion batteries that
do not meet all the HMR or ICAO
Technical Instructions requirements,
including not meeting the criteria in
part III, sub-section 38.3 of the UN
Manual of Tests and Criteria and proper
classification and packaging, may be of
a design or condition that cannot be
safely transported via air. They may
cause an ignition or a dangerous
evolution of heat or become a fuel
source for fire. Just one fire incident
poses a high risk of death, serious
illness, severe personal injury, and
danger to property and the environment.
This risk is magnified when the fire or
evolution of heat occurs aboard an
aircraft during flight.
Further, Braille Battery’s overall
conditions and practices, including
Braille Battery’s (a) failure to adequately
train its employees to ship the lithium
ion batteries in accordance with the
HMR and ICAO Technical Instructions,
and (b) continued offering for air
transport lithium ion batteries that were
not tested in accordance with the UN
Manual of Tests and Criteria despite
FAA warnings, when taken together,
constitute an imminent hazard.
Therefore, each continued offering
and transportation of these untested,
improperly classified and packaged
lithium ion batteries constitutes an
imminent hazard.
Remedial Action
To eliminate or abate the imminent
hazard, Braille Battery must, prior to
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66715
offering for transport or transporting via
air, ensure that each lithium ion battery
fully complies with all HMR or ICAO
Technical Instructions requirements for
lithium ion battery air transport. This
includes maintaining a record of proof
that the lithium ion battery type meets
the criteria in part III, sub-section 38.3
of the UN Manual of Tests and Criteria
and notifying third-party vendors that
they should not ship via air a Braille
Battery lithium ion battery of a type
lacking proof that it meets the criteria in
part III, sub-section 38.3 of the UN
Manual of Tests and Criteria. This also
includes ensuring that Braille Battery air
transport shipments containing lithium
ion batteries are classified and packaged
in accordance with the HMR or ICAO
Technical Instructions. Additionally,
while this Order is in effect and prior to
offering for transport or transporting via
air, Braille Battery must, adequately
demonstrate to the FAA that its
employees can properly classify and
package a lithium ion battery. For each
DOT or UN specification box Braille
Battery intends to use for lithium ion
battery shipments, Braille Battery
employees must demonstrate to the
FAA that they understand the DOT or
UN specification box instructions and
can successfully package a lithium ion
battery following those instructions.
Rescission of This Order
This Order remains in effect until the
Administrator determines that an
imminent hazard no longer exists or a
change in applicable statute or Federal
regulation occurs that supersedes the
requirements of this Order. Before
Braille Battery may offer for
transportation and/or transport any
package subject to this Order, Braille
Battery must be able to adequately
demonstrate to the Administrator that
its lithium ion battery shipments
comply with all HMR requirements,
including (1) having proof that the
battery type meets the criteria in part III,
sub-section 38.3 of the UN Manual of
Tests and Criteria, and (2) that Braille
Battery has trained all employees in
accordance with how to classify and
package a lithium ion battery in
accordance with 49 CFR 173.185(b) and
(c) or the ICAO Technical Instructions,
and (3) Braille Battery follows all
relevant closure instructions for UN or
DOT specification packagings. After
Braille Battery makes such
demonstration for all lithium ion battery
models it manufactures and offers for
transportation via air, the Administrator
will issue a Rescission Order. Until the
Administrator has issued the Rescission
Order, Braille Battery must not offer or
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transport via air any package covered by
this Order.
Failure To Comply
Braille Battery or any person failing to
comply with this Order is subject to
civil penalties up to $179,933 for each
violation for each day they are found to
be in violation (49 U.S.C. 5123). A
person violating this Order may also be
subject to criminal prosecution, which
may result in fines under title 18,
imprisonment of up to ten years, or both
(49 U.S.C. 5124).
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Right To Review
Any person to whom the
Administrator has issued an Emergency
Order is entitled to review of the order
pursuant to 49 U.S.C. 5121(d)(3) and in
accordance with section 554 of the
Administrative Procedure Act (APA), 5
U.S.C. 500, et seq. Any petition seeking
relief must be filed within 20 calendar
days of the date of this Order (49 U.S.C.
5121(d)(3)), and include one copy
addressed to the Chief Safety Officer
(CSO) for the Pipeline and Hazardous
Materials Safety Administration, United
States Department of Transportation,
1200 New Jersey Avenue SE.,
Washington DC 20590–0001
(ATTENTION: Office of Chief Counsel)
(electronically to
PHMSACHIEFCOUNSEL@DOT.GOV)
and one copy addressed to U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590 (https://Regulations.gov under
Docket #FAA–2016–9156) (49 CFR
109.19). Furthermore, one copy must be
addressed to Federal Aviation
Administration, United States
Department of Transportation, 800
Independence Avenue SW., Washington
DC 20591 (ATTENTION: Office of Chief
Counsel, AGC–1) (49 CFR 109.19).
A petition for review must state the
material facts at issue which the
petitioner believes dispute the existence
of an imminent hazard and must
include all evidence and exhibits to be
considered. The petition must also state
the relief sought. Within 30 days from
the date the petition for review is filed,
the CSO must approve or deny the relief
in writing; or find that the imminent
hazard continues to exist, and extend
the original Emergency Order. In
response to a petition for review, the
CSO may grant the requested relief in
whole or in part; or may order other
relief as justice may require (including
the immediate assignment of the case to
the Office of Hearings for a formal
hearing on the record).
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In order to request a formal hearing in
accordance with 5 U.S.C. 554, the
petition must state that a formal hearing
is requested and must identify the
material facts in dispute giving rise to
the request for a hearing (49 CFR
109.19). A petition which requests a
formal hearing must include an
additional copy addressed to the Chief
Administrative Law Judge, U.S.
Department of Transportation, Office of
Hearings, M–20, Room E12–320, 1200
New Jersey Avenue SE., Room W12–
140, Washington, DC 20590 (FAX: (202)
366–7536).
Emergency Contact Official
If you have any questions concerning
this Emergency Restriction/Prohibition
Order, you should call Office of Hazmat
Safety, at 202–437–7651.
Issued in Washington, DC, on September
22, 2016.
Reginald C. Govan,
Chief Counsel, Federal Aviation
Administration.
[FR Doc. 2016–23332 Filed 9–27–16; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Agency Information Collection
Activities: Requests for Comments;
Clearance of Renewed Approval of
Information Collection: Flight
Operational Quality Assurance (FOQA)
Program
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice and request for
comments.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, FAA
invites public comments about our
intention to request the Office of
Management and Budget (OMB)
approval to renew an information
collection. Flight Operational Quality
Assurance (FOQA) is a program for the
routine collection and analysis of digital
flight data from airline operations,
including but not limited to digital
flight data currently collected pursuant
to existing regulatory provisions. The
FAA requires certificate holders who
voluntarily establish approved FOQA
programs to periodically provide
aggregate trend analysis information
from such programs to the FAA.
DATES: Written comments should be
submitted by October 28, 2016.
ADDRESSES: Interested persons are
invited to submit written comments on
the proposed information collection to
SUMMARY:
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the Office of Information and Regulatory
Affairs, Office of Management and
Budget. Comments should be addressed
to the attention of the Desk Officer,
Department of Transportation/FAA, and
sent via electronic mail to oira_
submission@omb.eop.gov, or faxed to
(202) 395–6974, or mailed to the Office
of Information and Regulatory Affairs,
Office of Management and Budget,
Docket Library, Room 10102, 725 17th
Street NW., Washington, DC 20503.
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including (a)
Whether the proposed collection of
information is necessary for FAA’s
performance; (b) the accuracy of the
estimated burden; (c) ways for FAA to
enhance the quality, utility and clarity
of the information collection; and (d)
ways that the burden could be
minimized without reducing the quality
of the collected information. The agency
will summarize and/or include your
comments in the request for OMB’s
clearance of this information collection.
FOR FURTHER INFORMATION CONTACT:
Ronda Thompson by email at:
Ronda.Thompson@faa.gov.
SUPPLEMENTARY INFORMATION:
OMB Control Number: 2120–0660.
Title: Flight Operational Quality
Assurance (FOQA) Program.
Form Numbers: There are no FAA
forms associated with this collection.
Type of Review: Renewal of an
information collection.
Background: The Federal Register
Notice with a 60-day comment period
soliciting comments on the following
collection of information was published
on July 6, 2016 (81 FR 44087). There
were no comments. The purpose of
collecting, analyzing, aggregating, and
reporting this information is to identify
potential threats to safety, and to enable
early corrective action before such
threats lead to accidents. FOQA can
provide an objective source of
information for FAA decision making,
including identification of the need for
new rulemaking based on observed
trends in FOQA data. Title 14, Code of
Federal Regulations (14 CFR), Subpart
13.401, stipulates that the FAA does not
use FOQA information in punitive
enforcement action against an air carrier
or its employees, when that air carrier
has an FAA approved FOQA program.
There are no legal or administrative
requirements that necessitate this rule.
The rule is intended to encourage the
voluntary implementation of FOQA
programs in the interest of safety
enhancement.
Respondents: 60 airline operators.
Frequency: Information is collected
monthly.
E:\FR\FM\28SEN1.SGM
28SEN1
]]>Agencies
[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)]
[Notices]
[Pages 66713-66716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23332]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2016-9156]
Hazardous Materials: Emergency Restriction/Prohibition Order
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of Emergency Restriction/Prohibition Order.
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SUMMARY: This notice provides Emergency Restriction/Prohibition Order
No. FAA-2016-9156, issued September 16, 2016 to Braille Battery, Inc.
The Emergency Order prohibits Braille Battery from offering for
transportation and transporting, any lithium ion battery that is not in
compliance with the HMR or the International Civil Aviation
Organization (ICAO) Technical Instructions as permitted in the HMR;
requires Braille Battery to maintain and make publicly available the
complete test record issued by the testing facility for each lithium
ion battery manufactured by Braille Battery proven to meet the criteria
in part III, sub-section 38.3 of the UN Manual of Tests and Criteria;
requires Braille Battery to notify third party vendors that may offer
for transportation, or transport, via air any lithium ion battery
manufactured by Braille Battery that the third party vendor should not
offer for transportation, nor transport, via air a Braille Battery
lithium ion battery until Braille Battery confirms that the lithium ion
battery is of a design type proven to meet the criteria in part III,
sub-section 38.3 of the UN Manual of Tests and Criteria; prohibits
Braille from using any ``hazmat employee'' that has not received
training in accordance with the HMR; and prohibits Braille Battery from
offering for transportation, or transporting, by air any hazardous
materials requiring a DOT specification or UN standard packaging unless
Braille Battery follows the applicable packing and closure
instructions.
DATES: Effective Date: The Emergency Restriction/Prohibition Order
provided in this notice was effective September 16, 2016.
FOR FURTHER INFORMATION CONTACT: Ryan Landers, Office of the Chief
Counsel, Federal Aviation Administration, 1701 Columbia Ave., College
Park, GA 30337; telephone: (404) 305-5200; email: ryan.landers@faa.gov.
SUPPLEMENTARY INFORMATION: As required by 49 CFR 109.19(f)(2), the full
text of Emergency Restriction/Prohibition Order No. FAA-2016-9156
issued September 16, 2016 is as follows:
This notice constitutes an Emergency Restriction/Prohibition Order
(Order) by the United States Department of Transportation (DOT)
pursuant to 49 U.S.C. 5121(d) and 49 CFR 109.17(a); and pursuant to
delegation of authority to the Administrator, Federal Aviation
Administration (Administrator), United States Department of
Transportation. This Order is issued to Braille Battery, Inc., (Braille
Battery) 6935 15th St. E Bldg 115, Sarasota, FL 34243. Upon information
derived from recent Braille Battery lithium ion battery shipments and
subsequent FAA investigations, the Administrator has found violations
of the Federal Hazmat law (49 U.S.C. 5101, et seq.) or the Hazardous
Materials Regulations (HMR) (49 CFR parts 171 to 180); an unsafe
condition, and that an unsafe practice is causing or otherwise
constitutes an imminent hazard to the safe transportation of hazardous
materials. Specifically, Braille Battery's continued offering of
lithium ion batteries for transport via air that are neither proven to
meet the criteria in part III, sub-section 38.3 of the UN Manual of
Tests and Criteria, nor properly classified and packaged, constitutes
an imminent hazard under 49 U.S.C. 5121(d) and 5102(5). For more
detailed information see ``Background/Basis for Order'' below.
Effective Immediately Braille Battery
(1) Shall not offer for transportation, nor transport, via air any
lithium ion battery that is not in compliance with the HMR or the
International Civil Aviation Organization (ICAO) Technical Instructions
as permitted in the HMR. This includes, but is not limited to, all (1)
lithium ion batteries of a design type that has not been proven to meet
the criteria in part III, sub-section 38.3 of the UN Manual of Tests
and Criteria, (2) lithium ion batteries of a type proven to meet the
criteria in part III, sub-section 38.3 of the UN Manual of Tests and
Criteria, but exceed the watt-hour (Wh) rating limitations for the
lithium ion battery type that meets the criteria, and (3) lithium ion
batteries not properly packaged and prepared in compliance with 49 CFR
173.185(b) and (c) or the ICAO Technical Instructions.
(2) Shall, for each lithium ion battery manufactured by Braille
Battery proven to meet the criteria in part III, sub-section 38.3 of
the UN Manual of Tests and Criteria, maintain and make publicly
available the complete test record issued by the testing facility. If
Braille Battery does not possess the complete test record issued by the
testing facility for any lithium ion battery it manufactures, Braille
Battery must immediately contact the testing facility(s) and obtain the
complete test record. To assist third-party vendors and carriers in
confirming that Braille Battery lithium ion batteries are in compliance
with part III, sub-section 38.3 of the UN Manual of Tests and Criteria,
Braille Battery must make the complete test record by the testing
[[Page 66714]]
facility available via an internet Web site. While this Order is in
effect and prior to offering or transporting via air, Braille Battery
must add to the internet Web site any and all new test records obtained
to show that its lithium ion battery(s) are of a type proven to meet
the criteria in part III, sub-section 38.3 of the UN Manual of Tests
and Criteria. Additionally, Braille Battery must provide to the FAA any
and all new test records showing that its lithium ion battery(s) are of
a type proven to meet the criteria in part III, sub-section 38.3 of the
UN Manual of Tests and Criteria prior to offering them for
transportation, or transporting, via air.
(3) Shall notify any and all third party vendors that may offer for
transportation, or transport, via air any lithium ion battery
manufactured by Braille Battery that the third party vendor should not
offer for transportation, nor transport, via air a Braille Battery
lithium ion battery until Braille Battery confirms that the lithium ion
battery is of a design type proven to meet the criteria in part III,
sub-section 38.3 of the UN Manual of Tests and Criteria.
(4) Shall not utilize any ``hazmat employee'' (49 CFR 171.8) not
properly trained in accordance with the HMR (49 CFR 172.700-704 and/or
173.185(c)(4)(v)) to perform a specific hazmat function covered by the
HMR. This includes, but is not limited to, function-specific training
concerning the requirements specifically applicable to the functions
the employee performs (49 CFR 172.704(a)(2)). Braille Battery shall not
utilize any hazmat employee trained per the HMR to perform the
classification and packing function for air transportation if the
hazmat employee does not demonstrate the ability to properly classify
and package a lithium ion battery in compliance with 49 CFR 173.185(b)
and (c) or the ICAO Technical Instructions.
(5) Shall not offer for transportation, nor transport, by air any
hazardous materials requiring a DOT specification or UN standard
packaging unless Braille Battery follows the applicable packing and
closure instructions.
This Order applies to Braille Battery, its officers, directors,
employees, subcontractors, and agents. This Order is effective
immediately and remains in effect unless rescinded in writing by the
Administrator or his designee, or until it otherwise expires by
operation of law.
Jurisdiction
The Secretary has the authority to regulate the transportation of
lithium ion batteries in commerce. 49 U.S.C. 5103(b). The Secretary has
designated lithium ion batteries, UN 3480, as a hazardous material
subject to the requirements of the HMR. 49 U.S.C. 5103(a); 49 CFR
172.101. The Administrator has the authority to carry out the functions
vested in the Secretary by 49 U.S.C. 5121 relating to the
transportation or shipment of hazardous materials by air. 49 CFR
1.83(d)(1). Braille Battery offers for transportation or transports
hazardous materials in commerce within the United States and therefore
is a ``person'', as defined by 49 U.S.C. 5102(9), in addition to being
a ``person'' under 1 U.S.C. 1 and a ``person who offers'' as defined by
49 CFR 171.8. Commerce is as defined by 49 U.S.C. 5102(1) and 49 CFR
171.8, and ``transportation'' or ``transport'' are as defined by 49
U.S.C. 5102(13) and 49 CFR 171.8. Accordingly, Braille Battery is
subject to the authority and jurisdiction of the Administrator
including the authority to impose emergency restrictions, prohibitions,
recalls, or out-of-service orders, without notice or an opportunity for
hearing, to the extent necessary to abate the imminent hazard. 49
U.S.C. 5121(d).
Background/Basis for Order
A. Lithium Ion Battery HMR Requirements
Shipping hazardous materials is inherently dangerous. The HMR and
the ICAO Technical Instructions requirements for shipping lithium ion
batteries via air, including the requirements that lithium ion
batteries be properly classified, packaged, and of a type proven to
meet the criteria in part III, sub-section 38.3 of the UN Manual of
Tests and Criteria, are meant to protect people and property. Lithium
ion batteries not in compliance with these requirements may not be
offered or transported via air. Braille Battery, as a lithium ion
battery manufacturer, is responsible for ensuring that each lithium ion
battery it manufactures is of a type proven to meet the criteria in
part III, sub-section 38.3 of the UN Manual of Tests and Criteria
before it is offered for transportation or transported. Furthermore,
Braille Battery is responsible for ensuring that any lithium ion
battery it offers for transportation, or transports, via air is
properly classified and packaged. This Order ensures that Braille
Battery lithium ion battery shipments will be transported in compliance
with the HMR or the ICAO Technical Instructions.
B. Braille Battery Lithium Ion Battery Shipments
Upon reliable and credible information received in the course of
investigations, the Administrator has learned Braille Battery is
offering for air transport lithium ion batteries that do not meet the
HMR or ICAO Technical Instructions requirements. On June 6, 2016, the
FAA received notice from Federal Express regarding a Federal Express
delivery truck that caught fire on June 3, 2016. In its notification,
Federal Express indicated that four separate lithium ion battery
packages offered by Braille Battery were onboard the delivery truck
that caught fire. All four packages were offered for air transport and
were transported via air prior to being loaded on the delivery truck
that caught fire. Federal Express believes that one of the packages
caused the fire.\1\
---------------------------------------------------------------------------
\1\ The National Transportation Safety Board is investigating
the cause of the fire.
---------------------------------------------------------------------------
The FAA began an investigation into Braille Battery's shipment of
lithium ion batteries. The investigation revealed that Braille Battery
manufactured and offered for air transport the lithium ion batteries
onboard the Federal Express delivery truck that caught fire on June 3,
2016. The investigation also revealed that Braille Battery does not
have proof that the four Braille Battery lithium ion batteries meet the
criteria in part III, sub-section 38.3 of the UN Manual of Tests and
Criteria. Further investigation found that Braille Battery possessed a
three-page report allegedly issued by Intertek showing that the Braille
Intensity and Braille Intensity 24v lithium ion batteries meet the
criteria in part III, sub-section 38.3 of the UN Manual of Tests and
Criteria. However, Braille Battery could not produce the complete test
report, and Intertek denies ever testing the Braille Intensity or
Braille Intensity 24v lithium ion batteries or creating the summary
report.
On June 15, 2016, FAA representatives notified Braille Battery that
it could not transport lithium ion batteries lacking proof that they
meet the criteria in part III, sub-section 38.3 of the UN Manual of
Tests and Criteria. Between July 14, 2016 and August 19, 2016, Braille
Battery offered 20 lithium ion battery shipments for air transport to
DHL Express. The 20 lithium ion battery shipments offered to DHL
Express included approximately 103 lithium ion batteries. At least 3 of
the lithium ion batteries were not of a type proven to meet the
criteria in part III, sub-section 38.3 of the UN Manual of Tests and
Criteria. An additional 61 of the 103 lithium ion batteries offered to
DHL
[[Page 66715]]
Express are currently being investigated to determine if they meet the
criteria in part III, sub-section 38.3 of the UN Manual of Tests and
Criteria.
C. Braille Battery Classification and Packaging
The FAA's investigation also revealed that none of the above-
referenced 103 lithium ion batteries offered to DHL Express were likely
in compliance with 49 CFR 173.185(b) and (c) or the ICAO Technical
Instructions. Braille Battery employees who classify, prepare, and
package lithium ion batteries for shipment fail to understand their
function-specific requirements of how to properly classify or package a
lithium ion battery under 49 CFR 173.185(b) and (c) or the ICAO
Technical Instructions. During a follow-up inspection at Braille
Battery on September 7-8, 2016, the hazmat employees responsible for
classification and packaging did not follow the UN specification box
instructions.
Braille utilizes three Labelmaster UN specification boxes for
lithium ion battery air transport shipments: (1) UA121212BSR; (2)
UA151010BS; and (3) UA151414BS. The hazmat employees performing
packaging did not follow the instructions for the three UN
specification boxes. All three UN specification boxes provided the
following warning as to proper packaging: ``This closure instruction
includes the assembly procedures for this packaging design.
Substitution of materials or a change to these closure instructions may
cause non-compliance with regulations and void the test certification
for the packaging.''
The packaging instructions for UN specification boxes UA121212BSR,
UA151414BS, and UA151010BS all require the use of a liner bag and nylon
ties around the article. Braille Battery hazmat employees were not
utilizing the liner bags or nylon ties when packaging lithium ion
batteries in the UN specification boxes UA121212BSR, UA151414BS, and
UA151010BS. The packaging instructions for UN specification boxes
UA121212BSR and UA151010BS also require that an absorbent pad be placed
in the liner bag. Braille Battery hazmat employees did not understand
that the absorbent pad was required, and Braille Battery did not
possess the required absorbent pads when UN specification boxes
UA121212BSR and UA151010BS were used. Additionally, UN specification
boxes UA121212BSR and UA151414BS require the use of ``3M 372 tape'' and
UN specification box UA151010BS requires the use of ``3 mil, 3'' wide
hot melt tape'' when closing the specification box. Braille Battery did
not possess the required closure tape for any of the three UN
specification boxes at any time when Braille Battery used the three UN
specification boxes in the above-referenced shipments.
The Braille Battery hazmat employees' failure to properly prepare
the UN specification boxes for lithium ion battery air shipments
resulted in the lithium ion battery packages that appeared to carriers
to be in compliance with the applicable HMR or ICAO Technical
Instructions, Packing Instruction 965, but were actually not safe for
air transportation.
D. Finding of Imminent Hazard
An imminent hazard, as defined by 49 U.S.C. 5102(5) and 49 CFR
109.1, constitutes the existence of a condition relating to hazardous
material that presents a substantial likelihood that death, serious
illness, severe personal injury, or substantial endangerment to health,
property, or the environment may occur before the reasonably
foreseeable completion date of a formal proceeding begun to lessen the
risk of death, illness, injury or endangerment. Shipments of lithium
ion batteries that do not meet all the HMR or ICAO Technical
Instructions requirements, including not meeting the criteria in part
III, sub-section 38.3 of the UN Manual of Tests and Criteria and proper
classification and packaging, may be of a design or condition that
cannot be safely transported via air. They may cause an ignition or a
dangerous evolution of heat or become a fuel source for fire. Just one
fire incident poses a high risk of death, serious illness, severe
personal injury, and danger to property and the environment. This risk
is magnified when the fire or evolution of heat occurs aboard an
aircraft during flight.
Further, Braille Battery's overall conditions and practices,
including Braille Battery's (a) failure to adequately train its
employees to ship the lithium ion batteries in accordance with the HMR
and ICAO Technical Instructions, and (b) continued offering for air
transport lithium ion batteries that were not tested in accordance with
the UN Manual of Tests and Criteria despite FAA warnings, when taken
together, constitute an imminent hazard.
Therefore, each continued offering and transportation of these
untested, improperly classified and packaged lithium ion batteries
constitutes an imminent hazard.
Remedial Action
To eliminate or abate the imminent hazard, Braille Battery must,
prior to offering for transport or transporting via air, ensure that
each lithium ion battery fully complies with all HMR or ICAO Technical
Instructions requirements for lithium ion battery air transport. This
includes maintaining a record of proof that the lithium ion battery
type meets the criteria in part III, sub-section 38.3 of the UN Manual
of Tests and Criteria and notifying third-party vendors that they
should not ship via air a Braille Battery lithium ion battery of a type
lacking proof that it meets the criteria in part III, sub-section 38.3
of the UN Manual of Tests and Criteria. This also includes ensuring
that Braille Battery air transport shipments containing lithium ion
batteries are classified and packaged in accordance with the HMR or
ICAO Technical Instructions. Additionally, while this Order is in
effect and prior to offering for transport or transporting via air,
Braille Battery must, adequately demonstrate to the FAA that its
employees can properly classify and package a lithium ion battery. For
each DOT or UN specification box Braille Battery intends to use for
lithium ion battery shipments, Braille Battery employees must
demonstrate to the FAA that they understand the DOT or UN specification
box instructions and can successfully package a lithium ion battery
following those instructions.
Rescission of This Order
This Order remains in effect until the Administrator determines
that an imminent hazard no longer exists or a change in applicable
statute or Federal regulation occurs that supersedes the requirements
of this Order. Before Braille Battery may offer for transportation and/
or transport any package subject to this Order, Braille Battery must be
able to adequately demonstrate to the Administrator that its lithium
ion battery shipments comply with all HMR requirements, including (1)
having proof that the battery type meets the criteria in part III, sub-
section 38.3 of the UN Manual of Tests and Criteria, and (2) that
Braille Battery has trained all employees in accordance with how to
classify and package a lithium ion battery in accordance with 49 CFR
173.185(b) and (c) or the ICAO Technical Instructions, and (3) Braille
Battery follows all relevant closure instructions for UN or DOT
specification packagings. After Braille Battery makes such
demonstration for all lithium ion battery models it manufactures and
offers for transportation via air, the Administrator will issue a
Rescission Order. Until the Administrator has issued the Rescission
Order, Braille Battery must not offer or
[[Page 66716]]
transport via air any package covered by this Order.
Failure To Comply
Braille Battery or any person failing to comply with this Order is
subject to civil penalties up to $179,933 for each violation for each
day they are found to be in violation (49 U.S.C. 5123). A person
violating this Order may also be subject to criminal prosecution, which
may result in fines under title 18, imprisonment of up to ten years, or
both (49 U.S.C. 5124).
Right To Review
Any person to whom the Administrator has issued an Emergency Order
is entitled to review of the order pursuant to 49 U.S.C. 5121(d)(3) and
in accordance with section 554 of the Administrative Procedure Act
(APA), 5 U.S.C. 500, et seq. Any petition seeking relief must be filed
within 20 calendar days of the date of this Order (49 U.S.C.
5121(d)(3)), and include one copy addressed to the Chief Safety Officer
(CSO) for the Pipeline and Hazardous Materials Safety Administration,
United States Department of Transportation, 1200 New Jersey Avenue SE.,
Washington DC 20590-0001 (ATTENTION: Office of Chief Counsel)
(electronically to PHMSACHIEFCOUNSEL@DOT.GOV) and one copy addressed to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (https://Regulations.gov under Docket #FAA-2016-
9156) (49 CFR 109.19). Furthermore, one copy must be addressed to
Federal Aviation Administration, United States Department of
Transportation, 800 Independence Avenue SW., Washington DC 20591
(ATTENTION: Office of Chief Counsel, AGC-1) (49 CFR 109.19).
A petition for review must state the material facts at issue which
the petitioner believes dispute the existence of an imminent hazard and
must include all evidence and exhibits to be considered. The petition
must also state the relief sought. Within 30 days from the date the
petition for review is filed, the CSO must approve or deny the relief
in writing; or find that the imminent hazard continues to exist, and
extend the original Emergency Order. In response to a petition for
review, the CSO may grant the requested relief in whole or in part; or
may order other relief as justice may require (including the immediate
assignment of the case to the Office of Hearings for a formal hearing
on the record).
In order to request a formal hearing in accordance with 5 U.S.C.
554, the petition must state that a formal hearing is requested and
must identify the material facts in dispute giving rise to the request
for a hearing (49 CFR 109.19). A petition which requests a formal
hearing must include an additional copy addressed to the Chief
Administrative Law Judge, U.S. Department of Transportation, Office of
Hearings, M-20, Room E12-320, 1200 New Jersey Avenue SE., Room W12-140,
Washington, DC 20590 (FAX: (202) 366-7536).
Emergency Contact Official
If you have any questions concerning this Emergency Restriction/
Prohibition Order, you should call Office of Hazmat Safety, at 202-437-
7651.
Issued in Washington, DC, on September 22, 2016.
Reginald C. Govan,
Chief Counsel, Federal Aviation Administration.
[FR Doc. 2016-23332 Filed 9-27-16; 8:45 am]
BILLING CODE 4910-13-P
