-From Howard R. Elliott, Administrator: PHMSA concurs with the safety concern of transporting prototype or low-production run lithium batteries by air that the NTSB is intending to address with the SRs; however, we do not believe implementation of the SRs as written is the most appropriate action because the incident was an outcome of non-compliance with regulations. PHMSA's approval and special permit processes provide for an equivalent level of safety to the regulations.
Additionally, the removal of special provision A88 from the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Tl) and, subsequently, the removal of§ 173 .185( e )(7) from the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) will be ineffective. This is because offerors could still use the general program procedure for special permit applications that remains in 49 CFR Part 107, Subpart B to obtain permission to transport prototype or low-production run lithium batteries by air.
The packages involved in the incident were not compliant with the established regulations. Specifically, the packages involved in the incident were not prepared in accordance with the requirements applicable to prototype or low production run lithium batteries outlined in § 173.185(e) of the HMR or Packing Instruction 910 of the supplement to the ICAO TI.
Prototype and low production run lithium batteries must be packed using cushioning material that is non-combustible and electrically non-conductive and then placed inside performance oriented outer packaging rated to the most stringent performance level in the HMR. Additional measures must be taken to minimize the effects of vibration and shocks and to prevent damage and a dangerous condition during transport.
As NTSB notes in its accident report, 1 the interior packaging was composed of a combustible material. NTSB further notes that the combustible packaging facilitated the spread of the fire from the fiberboard box and involved other boxes in the shipment. PHMSA believes that had the batteries been packaged in accordance with the HMR and had the manufacturer applied for approval, as required by § 173 .185( e )(7) to transport by cargo aircraft, PHMSA and the Federal Aviation Administration (FAA) would have been engaged in the process to provide assurances for safe transport by air.
While NTSB correctly notes that DOT-SP 20323-a common special permit used by companies to ship prototype and low production run lithium batteries by cargo air-would have required only a short circuit test, PHMSA contends that the incident would likely have been prevented or mitigated had the offeror applied to be a party to this special permit or obtained a separate approval and followed the applicable requirements therein. Application for approval or special permit would have allowed PHMSA and FAA to review the battery specifications and safety and operational controls for shipment offered by the applicant.
DOT-SP 20323 safety controls, for instance, explicitly require non-combustible materials for packaging of lithium batteries consistent with the HMR. Ultimately, had the offeror complied with the HMR and obtained and complied with the conditions of the required approval, safety would have been maintained.
With respect to the detailed provisions of DOT-SP 20323, PHMSA maintains that it achieves a safety equivalency to the HMR by providing a safe and controlled method of cargo-only aircraft transportation for prototype and low production run lithium batteries. Certain innovative or specialized lithium batteries are not manufactured in sufficient quantities to provide enough samples for the entire testing scheme required by the United Nations (UN) Manual of Tests and Criteria, Part III, Sub-section 38.3.
These batteries need a safe alternative means of transportation that does not stifle their technological innovation by requiring the destruction of multiple prototypes during the early stages of the battery's product development process. PHMSA's special permit and approval process ensures safety while facilitating innovation. Compliance with DOT-SP 20323 provides enhanced safety by:
• Limiting the potential for thermal runaway events by offering the batteries for transportation at no more than 30 percent state of charge (SOC);
• Limiting the aggregate Watt-hour and lithium content of each package;
• Requiring the batteries to pass stringent short-circuit testing that would identify potential flaws, as such short circuit testing is performed at elevated temperature for batteries or cells that have not undergone the entire UN testing scheme;
• Requiring UN standard packaging PG I rated metal outer packaging for batteries less than 12 kg;
• Requiring non-combustible, non-conductive cushioning in the packages to mitigate shock and vibration; and
• Limiting the net weight of cells and batteries in a single package to 35 kg or less and, for batteries greater than 30 kg, allowing only one cell or battery per outer packaging.
DOT-SP 20323 was originally issued in January 2017; however, it was developed taking into account experience with numerous competent authority approvals issued by PHMSA over a seven-year period. PHMSA drew upon the safe history and experience with these approvals in developing and issuing this special permit. As of July 2020, there are 40 grantees of this special permit, and 136 shipments have been made under the terms of the permit without reported incident.
For companies to utilize DOT-SP 20323, they must submit to PHMSA an application to be a party to the permit in accordance with 49 CFR 107 .107. Applications undergo a fitness review that includes a review of any history of non-compliance issues. Any deficiencies noted will trigger a safety profile review by the PHMSA Field Operations Division, who may initiate an on-site investigation. Upon successful review by PHMSA, the application is forwarded to FAA for a safety profile review. The FAA conducts either an in-person inspection of the applicant's shipping location or a desk audit, including a review of employee training and incident history.
The initial special permit is valid for two years, and the company must apply for renewal in accordance with 49 CFR 107 .109 to continue use of the permit. A renewal application includes a disclosure of the number of times the permit was used and incident experience observed while acting under the terms of the special permit. Either the PHMSA Field Operations Division or the FAA can recommend denial of an application for party status or renewal upon a determination that the company is not fit to act under the terms of the special permit. The collaborative work of both PHMSA and FAA to ensure compliance complements· the robust inherent safety conditions of DOT-SP 20323.
PHMSA recognizes the significant potential consequences oflithium battery incidents, especially those associated with air transportation, and the importance of ensuring the safe transportation of prototype and low production run lithium batteries. Thus, we propose an alternative approach. PHMSA, with assistance from FAA, will perform a sufficiency evaluation of DOT-SP 20323 and other approvals/special permits granted for prototype and low production run lithium batteries.
This will include consideration of NTSB's concern that the batteries in question may have failed the vibration and shock tests contained in the UN Manual of Tests and Criteria, Part III, Sub-section 38.3 and whether to include these tests or other control measures. In addition, PHMSA and FAA plan to perform a review of current grantees of DOT-SP 20323 to assure that the grantees' processes for offering prototype and low production run lithium batteries achieve compliance and have proven safe and effective. PHMSA will update NTSB on the progress of this review and any next steps by the end of the curren