Safety Recommendation A-07-104

Notation 8477 (Dated 3/8/2013): The National Transportation Safety Board (NTSB) has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) notice of proposed rulemaking (NPRM), “Hazardous Materials: Transportation of Lithium Batteries.” The notice requested additional comments about the impact of changes to the requirements for the air transport of lithium batteries that have been adopted into the 2013–2014 International Civil Aviation Organization Technical Instructions on the Transport of Dangerous Goods by Air (ICAO Technical Instructions) and subsequently incorporated by reference in the Hazardous Materials Regulations (HMR).

The NTSB notes that PHMSA is considering the long-term impacts of permitting shippers and carriers to choose between compliance with the existing HMR or compliance with the ICAO Technical Instructions, when transporting lithium batteries domestically by air. The NTSB further notes that PHMSA is seeking comment on whether to require mandatory compliance with the ICAO Technical Instructions for all shipments of lithium batteries by air, both foreign and domestic.

The NTSB believes that allowing domestic cargo shippers and carriers to choose between alternative standards for transporting lithium batteries would place carriers at greater risk when transporting such cargo in accordance with US regulations that currently provide less protection than the ICAO Technical Instructions. On April 14, 2010, the NTSB provided comments on the January 11, 2010, NPRM.

The 2010 NPRM proposed new requirements to address NTSB Safety Recommendations A-07-104, A-07-105, and A-07-107 through -109 that were issued as a result of the NTSB investigation of the February 7, 2006, in-flight cargo fire on a United Parcel Service Company (UPS) cargo airplane at Philadelphia International Airport in Philadelphia, Pennsylvania. The 2010 NPRM acknowledged that under the HMR, materials that pose a specific and serious air transportation risk are regulated more stringently than materials that pose less of a risk when transported by air, with lithium batteries being the current exception to this standard.

Included in the proposals at that time was the elimination of regulatory exemptions for packages of small lithium batteries. The NTSB stated that cargo shipments of small lithium batteries should be subject to the same packaging and identification requirements that apply to medium and large lithium batteries to increase the awareness of the risks associated with these batteries and to alert package handlers to exercise greater care when loading and unloading packages containing them.

In its 2010 comments, the NTSB fully supported the proposal to eliminate exceptions for small lithium batteries, believing that implementation would have satisfied the intent of the following safety recommendation to PHMSA: 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. (A-07-109)

The NTSB recognizes that PHMSA was barred from implementing its original proposal to eliminate small lithium battery air cargo transport exceptions because of provisions in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 that prohibit PHMSA from imposing requirements that are more stringent than the ICAO Technical Instructions. Since commenting on the 2010 NPRM, the NTSB has been involved in the investigation of two additional catastrophic in-flight cargo fires on aircraft that were transporting large quantities of lithium batteries.

On September 3, 2010, a Boeing 747-400F, operated by UPS, crash landed at a military base in Dubai, United Arab Emirates, while the crew was trying to return to the airport for an emergency landing due to a fire in the main deck cargo compartment. Both crewmembers died as a result of injuries sustained during the crash, and the aircraft was a total loss. On July 28, 2011, a Boeing 747-400F, operated by Asiana Cargo, crashed about 70 miles west of Jeju Island, Republic of Korea, after the flight crew declared an emergency due to a cargo fire and attempted to divert to Jeju International Airport.

Again, both crewmembers died as result of injuries sustained during the crash, and the aircraft was a total loss. Based on these ongoing accident investigations, the NTSB remains concerned about the risks to aircraft flight crews from in-flight fires involving lithium batteries. These investigations also prompted the NTSB to issue Safety Recommendations A-12-68 through -70 on November 28, 2012, to the FAA.

These recommendations were issued to improve the early detection of fires originating in cargo containers and pallets, to develop materials standards for cargo containers that provide better fire resistance, and to require active fire-suppression systems in all cargo compartments or containers. Meanwhile, the current HMR for domestic air cargo transport continue to allow many small lithium batteries to be transported as general cargo without the safety precautions that are provided for other common hazardous materials. Under current regulations, certain shipments of small batteries are exempt from hazardous materials packaging and identification requirements.

These exemptions potentially permit large quantities of unidentified small lithium battery shipments on board both cargo and passenger aircraft, while the revised ICAO Technical Instructions substantially reduce the sizes of small lithium batteries that are subject to regulation. Lithium battery shipments in aircraft are increasing in number, and batteries are increasing in energy density. Recent incidents and research continue to show that lithium battery failures (regardless of the source or cause) can release flammable electrolyte or result in violent, high temperature reactions that can ignite combustible or flammable material nearby or further fuel an existing fire.

The PHMSA final rule incorporated the ICAO Technical Instructions by reference, thus permitting, but not mandating, domestic lithium battery shipments to be transported by air in accordance with the international standards (except where the HMR prohibit primary lithium batteries and unapproved prototype lithium batteries and cells aboard passenger carrying aircraft). The ICAO Technical Instructions increased restrictions for shipment of lithium batteries by significantly decreasing the excepted quantity permitted in international cargo shipments.

If the HMR are harmonized with the ICAO Technical Instructions, a significantly larger number of fully regulated domestic air cargo shipments of lithium batteries would be subject to the greater level of safety provided by specification packaging requirements and United Nations safety testing, labeling, and hazard communication standards. Complying with such increased safety requirements and standards would reduce the risks associated with transporting these materials.

The NPRM Question 1 asks if any unintended consequences are anticipated if PHMSA authorizes the use of the ICAO Technical Instructions as an optional method of compliance with the HMR and does not issue a final rule revising the HMR to require domestic shipments of lithium batteries to comply with the provisions specified in the ICAO Technical Instructions. The NTSB strongly believes that unintended negative consequences would result if shippers and carriers were permitted to choose compliance with alternative standards for domestic cargo shipments as suggested in the NPRM. Such action would undermine the safety benefit offered by the improved ICAO Technical Instructions.

Domestic carriers who choose not to apply the ICAO Technical Instructions would be placed at higher risk of cargo fires than their foreign

The NTSB is aware that, on February 14, 2012, Congress enacted the FAA Act, which restricts PHMSA’s authority to issue any regulations more stringent than the requirements of the International Civil Aviation Organization (ICAO) technical instructions regarding the “Safe Transport of Dangerous Goods by Air.” PHMSA indicated that, beyond bringing the Hazardous Materials Regulations (HMR) into line with the ICAO technical instructions, it cannot take any additional action in response to these recommendations. We remain concerned that the risk of primary lithium batteries becoming involved in fires on board cargo-only aircraft has not been mitigated.

However, we recognize that PHMSA is unable at this time to implement the recommended actions. Accordingly, Safety Recommendations A-07-104 and -105 are classified CLOSED—RECONSIDERED.

-From Cynthia L. Quarterman, Administrator: This is in response to your June 15, 2011 letter regarding NTSB Safety Recommendations A-07-104 through -108. This letter provides an update on Pipeline and Hazardous Materials Safety Administration (PHMSA) actions relative to those recommendations (excluding A-07-106, that has been closed) as well as Safety Recommendation A-07-109.

The National Transportation Safety Board (NTSB) issued the recommendations based on an investigation of a fire on a United Parcel Service cargo aircraft at Philadelphia International Airport, Philadelphia, Pennsylvania, and on concerns about the increasing number of incidents documented by the Federal Aviation Administration (FAA) involving overheating and fires initiated by rechargeable lithium ion batteries.

As you may know, recent Congressional action limits PHMSA’s ability to address several of the referenced recommendations. On February 14, 2012, Congress enacted the FAA Modernization and Reform Act of 2012 (the FAA Act). The FAA Act specifically restricts PHMSA’s authority to issue any regulations that are more stringent than the requirements of the International Civil Aviation Organization’s Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions). The FAA Act, in part, says:

The Secretary of Transportation, including a designee of the Secretary, may not issue or enforce any regulation or other requirement regarding the transportation by aircraft of lithium metal cells or batteries or lithium ion cells or batteries, whether transported separately or packed with or contained in equipment, if the requirement is more stringent than the requirements of the ICAO Technical Instructions. Pub. L. 112-95 section 828.

The FAA Act does, under certain conditions, allow for more stringent PHMSA action only when PHMSA obtains a credible report that demonstrates that the presence of lithium cells or batteries, transported in accordance with the ICAO Technical Instructions, substantially contributed to the initiation or propagation of an onboard fire.

Because of the limitations of the FAA Act, PHMSA plans no further action beyond harmonizing the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) with the ICAO Technical Instructions. Specifically, PHMSA does not intend to require the use of specialized containers or further restrict their stowage locations unless: 1) the ICAO adopts such measures; or 2) PHMSA obtains a credible report that demonstrates a deficiency in the ICAO Technical Instructions that has substantially contributed to an onboard fire, and also suggests specialized packaging, additional stowage restrictions, or other measures would address the deficiency.

The NTSB previously noted that PHMSA’s notice of proposed rulemaking (NPRM), titled “Hazardous Materials: Transportation of Lithium Batteries,” which was published at 75 Federal Register 1302 on January 11, 2010, would require primary lithium batteries located in inaccessible cargo compartments or freight containers to be transported in compartments or containers that are equipped with either an FAA-approved fire suppression system or an FAA-approved fire-resistant container. However, current FAA-approved suppression systems are ineffective in preventing fires involving primary lithium batteries.

Therefore, we urged PHMSA to explicitly require that all shipments of these batteries be transported in FAA-approved fire-resistant containers until a fire suppression system that is proven to be effective becomes available.

The NTSB notes PHMSA and the FAA’s ongoing research to better understand the fire behavior of primary lithium batteries; however, we remain concerned that the risk of these batteries’ becoming involved in fires on board cargo-only aircraft has not been mitigated. We emphasize that the intent of this recommendation is to prevent primary lithium batteries from becoming involved in hazardous conditions that may develop outside of freight containers used to transport these batteries on cargo-only aircraft.

PHMSA indicated that metal packaging and depressurization were ineffective in containing fires involving primary lithium batteries; however, the NTSB asks whether metal containers or FAA-approved fire-resistant containers would protect primary lithium batteries from becoming involved in a runaway fire that occurred outside of the container.

The NTSB notes that PHMSA has also solicited comments on whether a limit on the number of primary lithium battery packages transported in a single airplane or single container would further enhance safety, yet PHMSA still has not proposed any requirements to mitigate the risks of transporting these packages.

Accordingly, because PHMSA has indicated no plans to revise its NPRM to include a requirement for operators of cargo-only aircraft to (1) stop the practice of clustering shipments of primary lithium batteries and/or (2) use FAA approved fire-resistant, or similar, containers for transporting all shipments of primary lithium batteries, Safety Recommendation A-07-104 remains classified OPEN—UNACCEPTABLE RESPONSE.

CC# 201000381: - From Cynthia Douglass, Administrator: In the Notice of Proposed Rulemaking (NPRM), titled "Hazardous Materials: Transportation of Lithium Batteries," published on January 11, 2010, PHMSA proposed several actions to implement these recommendations. Specifically, PHMSA proposed to prohibit stowage of lithium metal batteries, transported in an inaccessible manner unless the inaccessible cargo compartment or freight container is equipped with a Federal Aviation Administration (FAA) approved fire suppression system or the lithium batteries are packaged in an FAA-approved fire resistant container.

The PHMSA also sought comments on how limiting the number of lithium batteries in a single aircraft, single compartment, unit load device, pallet or similar overpack would further enhance safety. Since publication of the NPRM, FAA has continued to study the fire behavior of both lithium metal and lithium ion batteries, including the effectiveness of metal packaging and depressurization in controlling a fire involving lithium metal batteries. (Depressurization is a common suppression method used to help respond to fires on the main deck of a cargo-only aircraft.)

These investigations found that (I) metal containers were ineffective in containing a lithium metal cell in thermal runaway, and (2) reduced air pressure had no effect on lithium metal cells once they were in thermal runaway. This additional testing reaffirms the conclusion that the ban on transporting lithium metal cells and batteries as cargo aboard passenger aircraft should remain in effect. In addition, further regulatory action extending the ban to cargo aircraft will be reevaluated. Further research for processes, procedures, or materials to mitigate the risk of onboard fires involving lithium metal batteries will continue.

As we gather more data and refine our understanding of different containers and engineering processes, additional regulatory action may be necessary. The FAA also examined the fire behavior of lithium ion batteries, including the effectiveness of cargo compartment fire suppression systems, fire resistant containers, and hand-held fire extinguishers and found that several promising approaches exist to mitigate fires involving lithium ion batteries during air transport. Fire suppression systems in Class C cargo compartments proved effective in extinguishing open flames but will not stop the propagation of thermal runaway between cells, resulting in reignition.

A fire resistant container or overpack also appears to mitigate the hazard present in shipping lithium ion batteries in non-Class C cargo compartments, such as those found on cargo-only aircraft (Class E). Additional work is needed in this area to develop a performance standard for this container. Testing revealed a limited advantage in placing a shipment of lithium ion cells in an accessible location. The FAA and PHMSA are continuing to assess the value of packaging and cargo-stowage limits for lithium ion batteries not transported in a Class C cargo compartment.

No response necessary.

CC# 201000303 - From Ola Parsons, Pipeline Hazardous Materials Safety Administration, Executive Secretariat: Thank you for your letter of July 21 to the U.S. Department of Transportation (DOT) regarding Safety Recommendations A-07-104 through A-07-108 and A-08-1 and A-08-2 issued by the National Transportation Safety Board to the DOT, In light of the scope of your request and the need for DOT to coordinate its response, completion of our final response will take some time, We will provide a response as soon as possible, and we appreciate your patience. For your reference, we have assigned control number PHMSA-l 00803-002 to your letter.

The NTSB has reviewed PHMSA’s notice of proposed rulemaking (NPRM), titled "Hazardous Materials: Transportation of Lithium Batteries," published at 75 Federal Register 1302 on January 11, 2010. The proposed rule would require inaccessible cargo compartments and freight containers in which shipments of primary or secondary lithium batteries are being transported to be equipped with an FAA-approved fire suppression system; the batteries may alternatively be transported in an FAA-approved fire-resistant container. However, current FAA-approved suppression systems are ineffective in preventing fires involving primary lithium batteries.

Until a fire suppression system proven to be effective against fires involving primary lithium batteries becomes available, the NTSB urges PHMSA to explicitly require that all shipments of primary lithium batteries be transported in FAA-approved fire-resistant containers.

The NPRM also indicates that PHMSA is considering whether a limit on the number of primary lithium battery packages transported in a single airplane or single container would further enhance safety. Although it acknowledges the cumulative effect and potential risks of packaging thousands of small primary batteries in close proximity, PHMSA does not propose any requirements to mitigate those risks.

The NPRM is not responsive to Safety Recommendation A-07-104 because it does not completely address the unique hazards of shipping primary lithium batteries. Accordingly, pending issuance of a revised NPRM requiring operators of cargo-only aircraft to (1) stop the practice of clustering shipments of primary lithium batteries and (2) use FAA-approved fire-resistant containers for transporting all shipments of primary lithium batteries, Safety Recommendation A-07-104 is classified OPEN -- UNACCEPTABLE RESPONSE.

Notation 7772F: The National Transportation Safety Board (NTSB) has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) notice of proposed rulemaking (NPRM), “Hazardous Materials: Transportation of Lithium Batteries,” that was published at 75 Federal Register 1302 on January 11, 2010. The NPRM requests comments on revisions to the requirements for the transportation of lithium batteries in the Hazardous Materials Regulations (HMRs). The primary purpose of the NPRM is to enhance the safe transportation of primary (non-rechargeable) and secondary (rechargeable) lithium batteries when transported as cargo in all modes, with an emphasis on aviation.

The NTSB believes that PHMSA has proposed requirements that should improve the level of safety for transporting lithium battery cargoes, particularly on aircraft. However, the NTSB offers the following comments to strengthen and clarify the proposed rule. Overview The NPRM proposes new requirements that address Safety Recommendations A-07-104, A-07-105, and A-07-107 through -109 that were issued as a result of the NTSB’s 2006 investigation of an in-flight cargo fire on a cargo airplane at Philadelphia International Airport in Philadelphia, Pennsylvania.

The NPRM specifically addresses these safety recommendations through proposed requirements concerning the stowage of lithium batteries, the reporting and analysis of lithium battery failures, and the elimination of regulatory exceptions for small lithium batteries. The NTSB has included detailed comments about each of these areas in subsequent sections of this letter. The NTSB notes that PHMSA also proposes other requirements, and those are addressed as well. The NPRM does not address Safety Recommendations A-08-1 and -2, which were issued separately from the Philadelphia accident report but also pertain to the transportation of lithium batteries.

Safety Recommendations A-08-1 and -2 concern the implementation and evaluation of public awareness programs for air passengers and crews who carry portable electronic devices containing lithium batteries or pack spare lithium batteries in their baggage or carry-on items. The NTSB notes that PHMSA plans to address these two recommendations under a separate rulemaking. However, because of the proliferation of personal electronic devices carried by the traveling public, the NTSB urges PHMSA to expedite its rulemaking regarding these recommendations. Stowage of Lithium Batteries

Cargo shipments of primary lithium batteries have been prohibited on passenger aircraft for more than 10 years, but they are still permitted on cargo-only aircraft. Cargo shipments of secondary lithium batteries are permitted on both passenger and cargo-only aircraft. The transportation of primary lithium batteries is potentially dangerous, particularly on board aircraft, because there is currently no known fire suppression system capable of extinguishing fires involving these types of batteries. Fires involving secondary lithium batteries are extinguishable by fire suppression systems approved by the Federal Aviation Administration (FAA).

Letter Mail Controlled 10/22/2009 3:09:01 PM MC# 2090655: - From John D. Porcari, Deputy Secretary of Transportation: We agree with NTSB that air carriers should be required to report all incidents involving lithium batteries, consistent with Safety Recommendation A-07-107. To this end, on January 14, PHMSA published a final rule under Docket No. HM-215JlHM-224D entitled "Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions" (74 2200; copy enclosed).

In this final rule, we amended the Ilazardous Materials Regulations (HMR) to include a comprehensive incident reporting requirement for batteries and battery-powered devices. As specified in the final rule, incidents involving batteries and battery powered devices that result in a fire, violent rupture, explosion, or dangerous evolution of heat must be reported. In addition to the written incident report, the final rule requires immediate telephonic reporting of incidents involving batteries and battery-powered devices in air transportation.

We agree that an examination of failed batteries and associated electronic devices and equipment will provide valuable data and information as we continue to assess the transportation risks associated with these items. To that end, we are working with FAA and airlines to establish a cooperative program for effectively securing and preserving evidence and passenger information when incidents occur. We developed a standard protocol to be used by aircraft operators in the event of an incident.

This protocol includes procedures for: (1) immediate reporting of the incident to DOT; (2) preservation of the batteries and/or electronic equipment that failed and transfer to appropriate authorities for analysis and evaluation; and (3) obtaining relevant information from passengers and crewmembers, including contact information for follow-up interviews as necessary. In addition, we are proposing a regulatory change to require a shipper, carrier, package owner or person reporting an incident to provide upon request by an authorized government representative reasonable assistance in investigating the damaged package or article.

Consistent with Safety Recommendation A-07-108, PHMSA has completed an analysis of the causes of lithium battery incidents (copy enclosed). The data suggest that the most likely causes of lithium batte~yin cidents 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 andlor the surrounding combustible materials. 2.

In its letter, PHMSA stated that it is considering rulemaking to require packages of primary and secondary lithium batteries to be loaded aboard a cargo aircraft in such a manner that a crewmember or other authorized person can access, handle, or, when size and weight permit, separate such packages from other cargo during flight. In addition, PHMSA is also considering a limitation on the total number of lithium batteries that may be stowed in an inaccessible cargo location.

PHMSA also stated that the International Civil Aviation Organization (ICAO) Dangerous Goods Panel is considering reducing the limits on the quantity of primary and secondary lithium batteries and cells that may be contained in each package transported on an aircraft and that PHMSA will include these new limits as part of a planned rulemaking project to align the Hazardous Materials Regulations (HMR) with the newest version of the ICAO technical instructions. Finally, PHMSA reported that it is beginning a study to investigate the feasibility of using fire-resistant containers for the transport of lithium batteries.

Although the activities described are responsive to these recommendations, the Safety Board would like to know what specific actions are under consideration to address the unique hazards of each type of lithium battery (primary and secondary). Pending completion of the recommended actions, Safety Recommendations A-07-104 and -105 are classified OPEN -- ACCEPTABLE RESPONSE.

MC# 2080191: - From Stacey L. Gerard, Assistant Administrator/ Chief Safety Officer: In response to Safety Recommendations A-07-104 and A-07-105 we are considering rulemaking to require packages of primary and secondary lithium batteries to be loaded aboard a cargo aircraft in such a manner that a crew member or other authorized person can access, handle, or, when size and weight permit, separate such packages from other cargo during flight.

This is one of our top safety priorities and we are applying significant resources to minimizing the risk associated with the transportation of lithium batteries as cargo and by passengers aboard aircraft. As we complete our analyses and propose additional requirements, we will keep you informed of our progress. If you have any questions, please contact me at (202) 366- 4433. We request that you classify recommendations A-07-104, 105, 106, 107 and 109 as Open - Acceptable Action and A-07-108 as Closed Acceptable Action. We thank you for consideration of our request.

We are also considering a limitation on the total amount of lithium batteries that may be stowed in an inaccessible cargo location. During a recent International Civil Aviation Organization (ICAO) Dangerous Goods Panel Meeting, PHMSA and FAA supported reducing the limits on the quantity of primary and secondary lithium batteries and cells that may be contained in each package offered for transport aboard an aircraft. These new package quantity limits will come into force from January 1, 2009 in the international aviation transport regulations which the vast majority of carriers follow.

The new package limits will result in limiting the quantity of batteries or cells that are transported aboard cargo aircraft. We will address these new limits in a rulemaking project that we are currently initiating to align the Hazardous Materials Regulations with the 2009-2010 edition of the ICAO TI. We also plan to conduct a risk assessment, identify additional alternative safety strategies, and assess the costs and benefits of these alternatives in conjunction with our rulemaking initiative to develop and implement the most appropriate solutions to address these recommendations.

We are only just beginning to investigate and study the feasibility of using fire resistant containers for the transport of lithium batteries.