Safety Recommendation A-07-107

We have reviewed two PHMSA documents, “Failed Lithium Battery Item Retention Process” and “Lithium Battery Incident Decision Tree Guide,” which describe the process and criteria used to determine whether a failed lithium battery item should be retained for further analysis to (1) help determine a failure cause or mode and (2) further inform decisions on risk mitigation of lithium battery transportation. PHMSA has implemented no requirement for the shipper, carrier, or any other person in possession of a failed lithium battery at the time of an incident to retain that battery for evaluation.

However, we believe that the Hazardous Materials Regulations (HMR) requirement for operators to report to PHMSA all transportation incidents involving lithium batteries, in addition to the guidance provided in PHMSA’s two documents, enables PHMSA to focus its investigative efforts on those items that are most likely to provide new information and avoids duplicate or unnecessary retention of failed battery items. Because these provisions constitute an acceptable alternate solution to the problem, Safety Recommendation A 07-107 is classified CLOSED—ACCEPTABLE ALTERNATE ACTION.

-From Cynthia Quarterman, Administrator: In the December 26, 2012 letter, the NTSB stated that the PHMSA regulation for the reporting of transportation incidents involving lithium batteries partially satisfied Safety Recommendation A-07-107. In addition, the NTSB communicated its continuing concern that PHMSA has not implemented a requirement for aircraft operators to retain a failed lithium battery item (at the time of an incident) for evaluation.

The NTSB did note, however, ongoing operator and shipper efforts to retain and evaluate failed items to assist PHMSA and other government agencies as well as PHMSA’s special investigation process to obtain specific information about the failed item and its packaging. The NTSB indicated these actions were responsive to the second part of this recommendation but requested an explanation of the criteria that PHMSA uses to determine whether a failed battery item should be retained for evaluation.

PHMSA has investigated numerous lithium battery incidents since beginning to require reporting of all lithium battery incidents. Based on the circumstances of these incidents, PHMSA field operations personal have utilized a variety of strategies during their investigations including releasing the incident battery or device for further analysis; conducting follow-up investigations with shippers to identify deficiencies; and conducting compliance inspections on companies shipping similar products. In two separate incidents involving different companies shipping single cell lithium ion batteries, it was determined that damage from an external force caused the incident.

While no violations of the HMR were found, in both of these instances, the shipper elected to change their package to prevent similar occurrences. In another case, PHMSA issued a competent authority approval to authorize the transport of potentially defective lithium batteries. We took this action to support the Canadian government in an ongoing investigation into a company suspected of shipping undeclared lithium batteries. In response to a number of incidents involving e-bikes (powered by lithium ion batteries), PHMSA conducted additional compliance inspections targeted at shippers of batteries that power these e-bikes.

As a supplement to our information gathering process, PHMSA field investigators use the enclosed decision tree and instructional guide as an aid in deciding whether a failed lithium battery item should be retained for further analysis to help determine a failure cause or mode and further inform decisions on risk mitigation of lithium battery transportation, especially by aircraft. This decision tree and instructional guide are used by our field investigators at the outset of an incident investigation.

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.

As we stated previously, we believe that the HMR requirement for the reporting, to PHMSA, of transportation incidents involving lithium batteries partially satisfies Safety Recommendation A-07-107. However, we remain concerned that PHMSA has implemented no requirement for the shipper, carrier, or any other person in possession of a failed lithium battery at the time of an incident to retain that battery for evaluation. We note, however, that most operators retain failed batteries to assist government agencies and that shippers are now conducting their own analyses of these items and are sharing their findings with PHMSA.

We also note that, through its special investigation process, PHMSA obtains specific information regarding the material being shipped and the condition of the package or article involved in an incident. These actions are responsive to the second part of this recommendation and may prove to be an acceptable alternate solution to the problem. However, we request additional information regarding the criteria used by PHMSA for determining whether a failed battery should be retained. Pending our receipt and review of this information, Safety Recommendation A 07 107 is classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

-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.

PHMSA plans no further action to require cargo and passenger operators to retain failed items for evaluation purposes. Our standard investigative process has been successful in providing us with the required information about lithium battery incidents and specific information regarding the material being shipped (e.g., test reports for the batteries) and the condition of the package or article involved in the incident. Carriers have been notifying PHMSA about incidents involving batteries, which has allowed for the inspection of failed items, and offering to release these items to us for evaluation. Also, shippers have been doing their own analysis and sharing the results with us.

The NTSB notes PHMSA’s proposal that would require persons reporting a transportation incident to provide, upon request by an authorized representative of the Federal, state, or local government agency, reasonable assistance, which would include providing reasonable access to the damaged items, if available. PHMSA indicated that the proposed requirement would allow the person reporting an incident to have discretion in the disposition of the damaged package or article consistent with protecting human health and the environment.

The NTSB remains concerned that this proposal would not require operators to retain failed lithium batteries or the devices containing them so that their failure modes might be accurately evaluated. Although a majority of operators already retain these items to assist government agencies, we believe that some operators might not retain these items unless they are required to do so for a prescribed period of time. However, if PHMSA can provide data to indicate that a system is in place to ensure that all failed items from reported incidents are being retained, the NTSB would consider this to be an acceptable alternative to a requirement.

Accordingly, pending action by PHMSA to ensure that operators retain failed batteries and equipment for a prescribed period of time, Safety Recommendation A-07-107 remains classified OPEN – UNACCEPTABLE RESPONSE.

CC# 20110149: - From Cynthia L. Quarterman, Administrator: I appreciate the effort you have made in the area of hazardous material and pipeline safety transportation. We share an interest in taking strong actions to continually improve the safe transportation of these materials throughout our country. In that regard, I have been meeting with the Pipeline and Hazardous Materials Safety Administration (PHMSA)'s hazardous materials and pipeline safety programs to assess our actions on the NTSB recommendations in the last six months.

My goal is to continually address your safety recommendations by taking actions to assure that the "unacceptable actions" are moved into the "open-acceptable" category and to achieve a "closed-acceptable" in a timely manner on as many recommendations as possible. I recognize that a number of "open-acceptable" recommendations are works in progress and may take a year or more to complete. In the last six months you have issued four "Closed-Acceptable Action" classifications for the following recommendations: P-04-02, P-07-07, P-07-08 and P-10-01.

In an effort to continue this progress, I have asked our hazardous material and pipeline staff to compile outstanding letters to the NTSB that request a change in the classification of a recommendation. I have enclosed a copy of the PHMSA letters requesting that the following five recommendations be classified as "Closed-Acceptable Action": A-07-107, A-07-108, R-07-05, A-08-01, and A-08-02. I am hopeful that you will review these letters and close the recommendations if you believe we have been responsive.

In addition, I ask that you review NTSB Recommendation H-04-23 requiring that periodic nondestructive testing be conducted on nurse tanks to identify material flaws that could result in a failure. PHMSA published a final rule on February 1, 2011, requiring inspection and nondestructive testing to allow continued use of nurse tanks with missing or illegible ASME plates. I have enclosed a copy of the Final Rule as published in the Federal Register. In addition, our sister agency, the Federal Motor Carrier Safety Administration contracted with Virginia Polytechnic Institute to research nurse tank safety.

If you have questions regarding any of these recommendations, please do not hesitate to call. Together, we are making a positive difference in the safe transportation of hazardous materials, including those transported by pipelines.

CC# 201000381: - From Cynthia Douglass, Administrator: In its comments to the January 11 NPRM, NTSB stated that PHMSA did not propose a retention requirement for lithium batteries and equipment, but only requested comments about how retention of failed batteries and equipment might be achieved and a analyzed properly. The PHMSA has proposed to modify 49 C.F.R. § 171.21 to require a shipper, carrier, package owner, or person reporting an incident under the provisions of §§ 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 a transportation incident.

Such assistance would include providing reasonable access to the damaged package or article, if available. The PHMSA believes this requirement would meet the intent of Safety Recommendation A-07-107 and facilitate the accomplishment of Safety Recommendation A-07-018, while still permitting a reporting person or other responsible person discretion in the disposition of the damaged package or article consistent with protecting human health and the environment. The NTSB has also expressed concern that PHMSA did not discuss the reliability of the data used to determine the causes of the observed incidents.

The risk assessment for transportation of lithium batteries discussed in the NPRM is based on an analysis of historical incident data on lithium batteries compiled by FAA. This incident data was the primary source of data used in the analysis. The data includes a narrative report completed by field inspectors that describes the nature of the incidents to the extent that information is available. Other information in the incident reports include the type of battery, the devices in which batteries were contained, if applicable, and the aircraft type (e.g., passenger or cargo aircraft).

Despite its limitations, FAA data is the most comprehensive publicly available source to perform a data-driven risk assessment for lithium batteries flown on passenger and cargo aircraft. In support of its ongoing efforts to understand the causes of lithium battery incidents, PHMSA recently finalized an interagency agreement with the U.S. Department of Defense Naval Surface Warfare Center, Carderock Division, to perform compliance and risk assessment testing of lithium batteries in an effort to ensure manufacturer compliance and to further enhance risk reduction for the transportation of such batteries.

A major component of this agreement includes the testing and examination on lithium battery remnants and packaging that were involved in an incident and an analysis of the probable cause of the incident. This program will greatly enhance PHMSA's knowledge of the causes of transportation incidents and assist in investigations and appropriate enforcement. Based on the actions outlined above and pending the issuance of the final rule, we request that Safety Recommendations A-07-107 and A-07-108 be classified as

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.

Although this final rule included a requirement to report incidents involving failed lithium batteries and devices containing them, it did not include a requirement to retain the failed batteries and equipment. The January 11, 2010, NPRM requested comments about how retention of failed batteries and equipment might be achieved and a proper analysis conducted. This document also indicated that available incident data suggest the most likely causes of lithium battery incidents comprise the following:

- External short circuiting (an exposed battery terminal contacts a metal object)

- In-use situation (improper charging or discharging conditions associated with the use of equipment, including inadvertent activation and overheating)

- Noncompliance (faulty battery design, false certification, or improper packaging)

- Internal short circuit (foreign matter within the cell or battery, or physical damage)

Because PHMSA does not discuss the reliability of the data used to determine these causes, the NTSB is concerned that such determinations are being made without retaining and analyzing failed batteries. In the absence of sound failure analyses, the establishment of appropriate and effective transportation requirements is questionable, and, without the implementation of a regulatory requirement to retain failed batteries and a program to analyze the retained batteries and equipment, the NPRM fails to fully address Safety Recommendations A-07-107 and -108.

Accordingly, pending action by PHMSA to require operators to retain and analyze failed batteries and equipment, Safety Recommendations A-07-107 and -108 are 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).

The NTSB is currently reviewing the action taken by PHMSA on the above recommendations, identified in your letter, and expects to have a more substantive response back to you shortly. We apologize for the delay in responding regarding some of the recommendations; however, additional documentation was needed for these before their evaluation for closure could be completed. Action on Safety Recommendation R-89-53 (see enclosure) was completed on March 19, 2010.

Letter Mail Controlled 3/16/2010 1:16:29 PM MC# 2100096: - From Cynthia L. Quarterman, Administrator: I greatly appreciated meeting with you last month concerning the National Transportation Safety Board's (NTSB) recommendations to the Pipeline and Hazardous Materials Safety Administration (PHMSA). I look forward to meeting with you again, along with staff, on Tuesday, March 16th. Your recommendations, based on lessons learned from accident investigations, provide valuable safety information to our programs. We are committed toconsidering each of the recommendations and implementing those that are positive improvements in safety.

I have been meeting with PHMSA's hazmat and pipeline safety programs to assess our actions on the NTSB recommendations. We are addressing these safety issues by taking actions to assure that the "unacceptable actions" are moved into the "open-acceptable" category and to achieve a "closed-acceptable" in a timely manner on as many recommendations as possible. I recognize that a number of "open-acceptable" recommendations are works in progress and maytake a year or more to complete. You indicated your interest in getting these issues resolved as well.

As you requested, I asked our pipeline and hazmat staff to compile a copy of outstanding letters to the NTSB that request a change in the classification of a recommendation. I have attached a copy of those letters and am hopeful you and I can successfully resolve a number of these issues. In addition, I have askedour Chief Safety Officer, Cindy Douglass, and our Associate Administrators, Jeff Wiese for Pipeline Safety and Magdy El-Sibaie for Hazardous Materials Safety, to meet with your staff to help us better understand each recommendation and to clarify the actions the NTSB considers necessary for closure.

Again, I look forward to meeting with you on these safety concerns and believe that, together, we will make a positive difference in the safe transportation of hazardous materials, including those transported by pipelines.

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.

PHMSA stated that it plans to propose in an upcoming rulemaking a requirement that cargo and passenger operators report all incidents involving primary and secondary lithium batteries, including those contained in or packed with equipment. PHMSA also indicated that it is working with the Federal Aviation Administration (FAA) and the airlines to establish a cooperative program for effectively securing and preserving evidence and passenger information when incidents involving lithium batteries occur. PHMSA will develop a standard protocol to be used by aircraft operators in the event of such an incident.

The actions planned by PHMSA are responsive to this recommendation; accordingly, pending completion of those actions, Safety Recommendation A-07-107 is classified OPEN -- ACCEPTABLE RESPONSE.

Notation 7772E: The National Transportation Safety Board has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA’s) Notice of Proposed Rulemaking (NPRM), “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,” which was published at 73 Federal Register 44804 on July 31, 2008.

The notice requested comments on a revision to the requirements for the transportation of batteries and battery-powered devices and on revisions meant to harmonize the Hazardous Materials Regulations (HMRs) with the United Nations recommendations, the International Maritime Dangerous Goods Code, and the International Civil Aviation Organization’s (ICAO’s) “Technical Instructions for the Safe Transport of Dangerous Goods by Air” (Technical Instructions). The Safety Board notes that the primary purpose of the NPRM is to align the HMRs with international requirements and has no comments on that subject.

The Safety Board also notes that the NPRM includes proposals on two safety issues addressed in a previous Safety Board investigation: • A requirement that air carriers provide emergency responders with complete information about hazardous materials cargo on an aircraft that is involved in an accident or incident. • A requirement that air carriers submit telephonic and written incident reports about any incident involving lithium batteries that produces smoke, sparks, or a dangerous evolution of heat. Our comments on these issues follow. Hazardous Materials Information for Emergency Responders

The Safety Board most recently addressed the timeliness of an air carrier in providing this information to emergency responders in its investigation of an inflight cargo fire in Philadelphia, Pennsylvania, on February 7, 2006. In this accident, air carrier personnel failed to quickly access specific hazardous materials information and provide it to emergency responders, which could have potentially created a safety hazard.

For the protection of emergency responders and the public, the HMRs (40 Code of Federal Regulations 175.33(d)) require air carriers to make a copy of the shipping documentation for the hazardous materials cargoes on board an aircraft available to emergency responders “upon request.”

Notation 7772E: The National Transportation Safety Board has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA’s) Notice of Proposed Rulemaking (NPRM), “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,” which was published at 73 Federal Register 44804 on July 31, 2008.

The notice requested comments on a revision to the requirements for the transportation of batteries and battery-powered devices and on revisions meant to harmonize the Hazardous Materials Regulations (HMRs) with the United Nations recommendations, the International Maritime Dangerous Goods Code, and the International Civil Aviation Organization’s (ICAO’s) “Technical Instructions for the Safe Transport of Dangerous Goods by Air” (Technical Instructions). The Safety Board notes that the primary purpose of the NPRM is to align the HMRs with international requirements and has no comments on that subject.

The Safety Board also notes that the NPRM includes proposals on two safety issues addressed in a previous Safety Board investigation: • A requirement that air carriers provide emergency responders with complete information about hazardous materials cargo on an aircraft that is involved in an accident or incident. • A requirement that air carriers submit telephonic and written incident reports about any incident involving lithium batteries that produces smoke, sparks, or a dangerous evolution of heat. Our comments on these issues follow. Hazardous Materials Information for Emergency Responders

The Safety Board most recently addressed the timeliness of an air carrier in providing this information to emergency responders in its investigation of an inflight cargo fire in Philadelphia, Pennsylvania, on February 7, 2006. In this accident, air carrier personnel failed to quickly access specific hazardous materials information and provide it to emergency responders, which could have potentially created a safety hazard.

For the protection of emergency responders and the public, the HMRs (40 Code of Federal Regulations 175.33(d)) require air carriers to make a copy of the shipping documentation for the hazardous materials cargoes on board an aircraft available to emergency responders “upon request.”

MC# 2080191: - From Stacey L. Gerard, Assistant Administrator/ Chief Safety Officer: We agree that a requirement to report incidents involving lithium batteries transported by air, even those that are otherwise not subject to specific regulatory requirements, will provide useful information on the risks associated with such transportation and possible measures to reduce those risks. We plan to propose to require cargo and passenger operators to report all incidents involving primary and secondary lithium batteries, including those contained in or packed with equipment, in an upcoming rulemaking.

We also 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. We are working with the FAA and the airlines to establish a cooperative program for effectively securing and preserving evidence and passenger information when incidents occur. We plan to develop a standard protocol to be used by aircraft operators in the event of an incident.

This protocol will include 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 crew members, including contact information for follow-up interviews as necessary. The recent cooperation between Northwest Airlines, PHMSA, FAA and NTSB in response to the February 14, 2008 incident involving a battery powered flashlight fire in a passenger’s carry-on bag serves as a positive example of the progress we are making.

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.