Safety Recommendation A-07-109

We note that, on August 6, 2014, PHMSA published final rule Hazardous Materials-224F, revising the Hazardous Materials Regulations requirements for the transportation of lithium cells and batteries by air to make the requirements consistent with those of the 2013-2014 International Civil Aviation Organization Technical Instructions. Your actions constitute an acceptable alternate solution to the safety concern we identified; accordingly, Safety Recommendations A-07-108 and -109 are classified CLOSED—ACCEPTABLE ALTERNATE ACTION.

-From Timothy Butters, Deputy Administrator: In its December 26, 2012 letter to PHMSA, the NTSB indicated that the 2013-2014 International Civil Aviation Organization Technical Instructions (ICAO TI) on the Transport of Dangerous by Air provisions for lithium battery transport by air are responsive to recommendations A-07-108 and A-07-109 and PHMSA would satisfy the recommendations if it were to incorporate the ICAO TI provisions for lithium battery transport into the HMR.

This was reiterated in its September 6, 2013 letter to PHMSA, in which the NTSB specifically states that it believes that a mandate for compliance with the 2013-2014 ICAO TI provisions for lithium battery transport is needed for PHMSA’s actions to constitute an acceptable alternate solution to the problem.

Accordingly, on August 6, 2014, PHMSA published a final rule (HM-224F; 79 FR 46011) revising the HMR requirements applicable to the transportation of lithium cells and batteries by air to make them consistent with the ICAO TI. The rulemaking is available at our website at www.phmsa.dot.gov/hazmat or at www.federalregister.gov. PHMSA will continue to monitor incidents and analyze the causes of thermal failures and fires involving lithium metal and lithium ion batteries for possible future safety improvements, bearing in mind the statutory limitation to not be more stringent than the ICAO TI, except under certain conditions.

PHMSA appreciates the NTSB’s continued efforts to improve safety in transporting lithium batteries by air.

We are encouraged to learn that, effective January 1, 2013, the HMR reference the 2013 2014 ICAO technical instructions (TI), which allow shippers and carriers to use the 2013 2014 ICAO TI; however, the regulations do not mandate compliance. Although the revised regulations constitute a noteworthy improvement, we believe that a mandate for compliance with the 2013 2014 ICAO TI provisions for lithium battery transport is needed for PHMSA’s actions to constitute an acceptable alternate solution to the problem.

Accordingly, pending our receipt and review of the revised HMR, including plans to mandate compliance as described above, Safety Recommendations A 07-108 and -109 remain classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

-From Cynthia Quarterman, Administrator: In the December 26, 2012 letter, the NTSB indicated awareness that the 2013-2014 International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (“ICAO TI”) includes provisions for lithium battery transport that are responsive to these recommendations, and that incorporation into the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) would satisfy the recommendations. Relative to this position, PHMSA recently published two rulemakings in the Federal Register on January 7, 2013. PHMSA published a final rule (78 FR 988) incorporating by reference the 2013–2014 ICAO TI into the HMR.

Effective January 1, 2013, transport of lithium batteries in accordance with the 2013–2014 ICAO TI is authorized subject to limitations outlined in Part 171, Subpart C of the HMR (see 49 CFR 171.24(d)(1)(ii) and 171.24(d)(1)(iii)). Incorporation by reference of the 2013–2014 Edition of the ICAO TI provides shippers and carriers with the ability to use the 2013-2014 ICAO TI for transportation within the United States by aircraft and by motor vehicle or rail either before or after being transported by aircraft.

PHMSA also published a notice of proposed rulemaking (78 FR 1119) seeking public comment on the impact of the changes made to provisions for lithium battery transport in the 2013–2014 ICAO TI. PHMSA issued this notice in consideration of the long-term impacts on domestic transportation of authorizing shippers and carriers to choose between compliance with the existing language for lithium battery transport in the HMR and compliance with the ICAO TI under the aforementioned final rule. Specifically, PHMSA sought comment on whether to make mandatory compliance with the 2013–2014 ICAO TI provisions for lithium battery transport for both domestic and international transport.

Taking commenter feedback into consideration, PHMSA may issue a final rule to revise the HMR to incorporate the lithium battery provisions specified in the 2013–2014 ICAO TI into the HMR (i.e., incorporate regulatory text versus authorizing use of an international standard that contains that regulatory text). Although the 2013-2014 ICAO TI provisions for lithium battery transport are not incorporated verbatim into the HMR, the regulatory amendment to incorporate by reference will allow shippers and carriers to opt for the method of compliance appropriate to each specific shipment.

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.

PHMSA indicated that it is currently evaluating the 2013–2014 ICAO technical instructions to determine whether the instructions address either of these recommendations. The NTSB is aware that the 2013–2014 ICAO technical instructions would include (1) a restriction on exemptions from full regulation under Class 9 for small quantities and small packages, (2) new language in the packing instructions to bring some small shipments of Li metal and Li ion cells and batteries under Class 9, but also to provide some relief from full Class 9 requirements that apply to bulk shipments, and (3) a net-weight limit per package for batteries packed with, or contained in, equipment.

We believe that these revisions are responsive to these recommendations and, if included in the HMRs, would constitute an acceptable alternate solution to the problem. Accordingly, pending our receipt and review of the revised HMRs, Safety Recommendations A 07-108 and -109 are 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 is currently evaluating the safety impacts of changes made to the ICAO Technical Instructions relative to these recommendations and will provide NTSB with an update after a determination is made based on the evaluation. The January 2010 proposed rule effectively eliminated the regulatory exceptions for packages of small lithium batteries when transported aboard aircraft. PHMSA chose this regulatory approach because a multi-layered safety system encompassing packaging, hazard communication and employee training has proven to be effective for ensuring the safe transport of larger lithium batteries as well as other hazardous material.

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).

In its March 28, 2008, letter, PHMSA stated that it plans to complete a formal assessment of the costs and benefits associated with eliminating the regulatory exceptions for small lithium batteries and will identify regulatory and other approaches based on that assessment. The Safety Board recognizes that the cost/benefit study that PHMSA plans to complete is a necessary step in making the regulatory change recommended. Pending revision of the regulations to eliminate exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries, Safety Recommendation A-07-109 is classified OPEN -- ACCEPTABLE RESPONSE.

MC# 2080191: - From Stacey L. Gerard, Assistant Administrator/ Chief Safety Officer: Our August 9, 2007 final rule imposed new marking, documentation, and test requirements for small primary and secondary lithium batteries. Small lithium batteries must be tested in accordance with the United Nations Manual of Tests and Criteria to ensure they can withstand conditions encountered during transportation.

In addition, each package containing more than 24 lithium cells or 12 lithium batteries must: (1) be marked to indicate that it contains lithium batteries, and special procedures should be followed in the event that the package is damaged; (2) be accompanied by a document indicating that the package contains lithium batteries and special procedures should be followed in the event that the package is damaged; (3) be capable of withstanding a 1.2 meter drop test in any orientation without damage to cells or batteries contained in the package, without shifting of the contents that would allow short circuiting and without release of package contents; and (4) not exceed a gross package weight of 30 kg.

We plan to complete a formal assessment of the costs and benefits associated with eliminating the regulatory exceptions for small lithium batteries and will identify regulatory and other approaches based on that assessment. For example, we will consider whether requiring small lithium batteries to be regulated as Class 9 materials and subject to the full range of packaging and hazardous communication requirements applicable to Class 9 materials will be effective in reducing their risk in transportation, whether the measures taken to date are sufficient and whether other alternative solutions can be equally effective in reducing risk.

PHMSA, in close cooperation with the FAA, led efforts to enhance international regulatory requirements for the transport of lithium batteries, including enhancements to the ICAO TI and the United Nations Recommendations on the Transport of Dangerous Goods. These enhanced requirements will apply to both shippers and carriers and will come into effect on January 1, 2009 in the 2009-2010 edition of the ICAO TI. They will provide for more precise shipping descriptions for lithium metal and lithium-ion batteries, improved packaging standards, and enhanced hazard communication requirements.

For instance all packages containing small lithium batteries will be required to be marked with a 100mm x 100mm red hatched handling label (see attached example). The new marking also requires an indication of the type of battery, specific warning statements (pictograms for fragile and flammable potential if damaged), procedures to be followed in the event of an incident (a notification to not load or transport if the package is damaged), and an emergency response telephone number and to be accompanied by a shipping document with the same information.