75208 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION

Research and Special Programs 

Administration 

49 CFR Parts 171, 172, 173 and 175 

[Docket No. RSPA–04–19886 (HM–224E] 

RIN 2137–AE05 

Hazardous Materials; Prohibition on 

the Transportation of Primary Lithium 

Batteries and Cells Aboard Passenger 

Aircraft

AGENCY: Research and Special Programs 

Administration (RSPA), DOT.

ACTION: Interim final rule.

SUMMARY: To protect life and property, 

RSPA (we), working closely with the 

Federal Aviation Administration (FAA), 

is issuing an interim final rule imposing 

a limited prohibition on offering for 

transportation and transportation of 

primary (non-rechargeable) lithium 

batteries and cells as cargo aboard 

passenger-carrying aircraft and 

equipment containing or packed with 

large primary lithium batteries. This 

rule applies to both foreign and 

domestic passenger-carrying aircraft 

entering, leaving, or operating in the 

United States and to persons offering 

primary lithium batteries and cells for 

transportation as cargo on any 

passenger-carrying aircraft. This 

prohibition does not affect the carriage 

of lithium batteries or devices 

containing lithium batteries that are 

transported in a passenger’s luggage for 

personal use. In addition, this rule does 

not apply to the shipment of equipment 

that contains or is packed with small 

primary lithium batteries or to the 

shipment of secondary (rechargeable) 

lithium batteries (e.g., lithium ion 

batteries). RSPA is also amending the 

Hazardous Materials Regulations to 

require that, when offered for transport 

as cargo, shipments of primary lithium 

batteries and cells that are excepted 

from classification as a Class 9 

(miscellaneous) hazardous material 

must be marked to indicate that they are 

forbidden for transport aboard 

passenger-carrying aircraft. Because this 

interim final rule addresses an 

immediate public safety risk, it is 

impracticable and contrary to the public 

interest to precede it with a notice of 

proposed rulemaking and an 

opportunity for public comment. RSPA 

and FAA also plan on holding a public 

meeting on this rulemaking before the 

end of the comment period. The details 

of the public meeting, including time 

and location, will be set forth in a future 

Federal Register notice.

DATES: Effective Date: The effective date 

of these amendments is December 29, 

2004. 

Comments: Comments must be 

received by February 14, 2005.

ADDRESSES: You may submit comments 

[identified by DOT DMS Docket Number 

RSPA–04–19886 (HM–224E)] by any of 

the following methods: 

• Web Site: http://dms.dot.gov.

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

PL–401, Washington, DC 20590–0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: You must include the 

agency name (Research and Special 

Programs Administration and Docket 

number (RSPA–04–19886 (HM–224E) or 

the Regulatory Identification Number 

(RIN) for this rulemaking at the 

beginning of your comments. You 

should submit two copies of your 

comments if you submit them by mail. 

If you wish to receive confirmation that 

RSPA received your comments, you 

must include a self-addressed stamped 

postcard. Note that all comments 

received will be posted, without change, 

to http://dms.dot.gov including any 

personal information provided and will 

be available to internet users. Please see 

the Privacy Act section of this 

document. 

Docket: For access to the docket to 

read background documents and 

comments received, go to http://

dms.dot.gov at any time or to Room PL–

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays.

FOR FURTHER INFORMATION CONTACT: John 

A. Gale, Office of Hazardous Materials 

Standards, RSPA, Department of 

Transportation, 400 Seventh Street, 

SW., Washington, DC 20590–0001, 

Telephone (202) 366–8553.

SUPPLEMENTARY INFORMATION: This 

interim final rule prohibits primary 

lithium battery cargo shipments on 

passenger carrying aircraft because they 

are an immediate threat to the flying 

public. FAA and RSPA identified this 

category of cargo shipments by assessing 

recent lithium battery fires in air 

transportation and considering a 

recently released FAA technical report 

evaluating the flammability of primary 

lithium batteries and the effect of air 

carrier fire suppression systems on 

primary lithium battery fires. At this 

time we are not prohibiting the 

shipment of secondary (rechargeable) 

lithium batteries or those electronic 

devices (e.g., laptop computer, cells) 

that contain or are packed with small 

lithium batteries, and passengers may 

continue to bring personal electronic 

devices on-board either in carry-on or 

checked baggage. RSPA is continuing to 

evaluate the risks posed by rechargeable 

lithium batteries, as well as all lithium 

batteries on-board aircraft, either 

separately or as part of equipment, and 

we seek comment on ways to mitigate 

these risks and the costs of doing so. 

I. Background 

Federal hazardous materials 

transportation law (49 U.S.C. 5101 et 

seq.) directs the Secretary of 

Transportation to establish regulations 

for the safe and secure transportation of 

hazardous materials in commerce. 

Regulations prescribed in accordance 

with Federal hazardous materials 

transportation law govern safety aspects, 

including security, of the transportation 

of hazardous materials that the 

Secretary considers appropriate. In 49 

CFR 1.53, the Secretary delegated 

authority to issue regulations for the 

safe and secure transportation of 

hazardous materials in commerce to the 

Research and Special Programs 

Administrator. The Administrator issues 

the Hazardous Materials Regulations 

(HMR; 49 CFR Parts 171 through 180) 

under that delegated authority. The 

authority for enforcement of the HMR is 

shared by RSPA, FAA, the United States 

Coast Guard, Federal Motor Carrier 

Safety Administration, and Federal 

Railroad Administration. FAA has 

primary enforcement authority 

concerning transportation and 

shipments of hazardous materials by air. 

49 CFR 1.47(k).

II. Regulation of Lithium Batteries and 

Cells Under the HMR 

Battery manufacturers use lithium in 

batteries due to its favorable chemical 

properties. Lithium batteries are used to 

power both portable and non-portable 

products. The market for portable, 

battery-powered products is diverse and 

growing, encompassing a variety of 

electronic computer, communications, 

and entertainment products; a variety of 

cordless tools; and whole new classes of 

military and medical products. This 

diversity has resulted from a unique

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 75209

1 ‘‘Smaller’’ primary lithium battery is a battery 

that effectively has an aggregate lithium content of 

less 25 grans when fully charged.

synergy between the products 

themselves, the batteries they use, and 

the battery charger and power 

management systems that charge the 

batteries. Primary (non-rechargeable) 

lithium batteries are used in a variety of 

products, such as cameras, memory 

backup circuits, security devices, 

calculators, and watches. Secondary 

(rechargeable) lithium batteries are used 

in camcorders, cell phones, and other 

portable electronics. 

Under the HMR, lithium batteries and 

cells and equipment containing or 

packed with lithium batteries are 

regulated as Class 9, Miscellaneous 

Hazardous Materials. In accordance 

with § 173.185(e) of the HMR, lithium 

batteries and cells must be tested in 

accordance with the UN Manual of 

Tests and Criteria; equipped with an 

effective means of preventing short 

circuits; packaged in Packing Group II 

performance level packagings; and 

identified on shipping papers and with 

package markings and labels. However, 

materials in Class 9 are not subject to 

the aircraft cargo compartment limits in 

§ 175.75; therefore, there is no limit on 

the number of lithium batteries and 

cells that may be loaded in an aircraft 

cargo compartment. Prior to 1995, 

lithium batteries and cells that were not 

otherwise excepted from the HMR were 

forbidden for transportation aboard 

passenger carrying aircraft unless such 

transportation was approved by the 

Associate Administrator for Hazardous 

Materials Safety. See 49 CFR 173.185(a) 

(Oct. 1, 1994 ed.) and RSPA’s Dec. 29, 

1994 final rule in Docket No. HM–215A 

(59 FR 67390, 67509). 

Section 173.185 provides exceptions 

from the packaging and hazard 

communication requirements in the 

HMR for smaller primary lithium 

batteries 1 and cells. When the lithium 

content of the battery or cell does not 

exceed certain limits, the batteries and 

cells must be packaged in strong outer 

packagings and in a manner to protect 

against short circuit; however, such 

shipments are excepted from all other 

HMR requirements.

III. Safety Concerns Associated with the 

Transport of Lithium Batteries and 

Cells by Aircraft 

A. Incident at Los Angeles International 

Airport and NTSB Recommendations 

On April 28, 1999, at Los Angeles 

International Airport (LAX) a shipment 

of two pallets of primary lithium 

batteries that were excepted from the 

HMR caught fire and burned after being 

off-loaded from a passenger-carrying 

Northwest Airlines flight from Osaka, 

Japan. The packages and batteries were 

damaged while the pallets were being 

handled by cargo handling personnel. 

The damage resulting from the cargo 

transfer is believed to have initiated a 

fire. The fire was initially fought by 

Northwest employees with portable fire 

extinguishers and a fire hose. Each time 

the fire appeared to be extinguished, it 

flared up again. The two pallets 

involved in the fire contained 120,000 

primary lithium batteries. Under the 

exceptions in § 173.185(b), these 

batteries were not required to be tested 

in accordance with UN Manual of Tests 

and Criteria; the shipment was excepted 

from hazard communication 

requirements (i.e., marking, labeling and 

shipping papers); and the packages were 

not required to meet the packaging 

design and performance testing 

requirements. 

As a result of this incident, the 

National Transportation Safety Board 

(NTSB) issued five safety 

recommendations (a copy of the NTSB 

letter is in the public docket) to RSPA 

concerning the transportation of lithium 

batteries, as follows:

Recommendation A–99–80. With the 

Federal Aviation Administration, evaluate 

the fire hazards posed by lithium batteries in 

an air transportation environment and 

require that appropriate safety measures be 

taken to protect airplane and occupants. The 

evaluation should consider the testing 

requirements for lithium batteries in the 

United Nations’ Transport of Dangerous 

Goods Manual of Tests and Criteria, the 

involvement of packages containing large 

quantities of tightly packed batteries in a 

cargo compartment fire, and the possible 

exposure of batteries to rough handling in an 

air transportation environment, including 

being crushed or abraded open. 

Recommendation A–99–81. Pending 

completion of an evaluation of the fire 

hazards posed by lithium batteries in an air 

transportation environment, prohibit the 

transportation of lithium batteries on 

passenger-carrying aircraft. 

Recommendation A–99–82. Require that 

packages containing lithium batteries be 

identified as hazardous materials, including 

appropriate marking and labeling of the 

packages and proper identification in 

shipping documents, when transported on 

aircraft. 

Recommendation A–99–83. Pending 

completion of an evaluation of the fire 

hazards posed by lithium batteries in an air 

transportation environment, notify the 

International Civil Aviation Organization’s 

Dangerous Goods Panel about the 

circumstances of the fire in the Northwest 

Airlines cargo facility at Los Angeles 

International Airport on April 28, 1999. Also 

pending completion of an evaluation of the 

fire hazards posed by lithium batteries in an 

air transportation environment, initiate 

action through the Dangerous Goods Panel to 

revise the Technical Instructions for the Safe 

Transportation of Dangerous Goods by Air to 

prohibit the transportation of lithium 

batteries on passenger-carrying aircraft. 

Recommendation A–99–84. Initiate action 

through the Dangerous Goods Panel to revise 

the Technical Instructions for the Safe 

Transportation of Dangerous Goods by Air to 

require that packages containing lithium 

batteries be identified as hazardous materials 

when transported on aircraft.

In a letter dated March 29, 2000, 

responding to the NTSB 

recommendations, we informed NTSB 

that, in coordination with FAA, we 

would initiate a study to assess the 

hazards associated with the 

transportation of lithium batteries and 

cells on board aircraft and to 

recommend enhanced safety measures if 

found to be necessary. We also sought 

additional information from lithium 

battery manufacturers and Federal 

agencies with extensive experience with 

testing and the use of lithium batteries 

and cells. Finally, as we informed 

NTSB, we planned to conduct 

experimental evaluations necessary to 

obtain information not available from 

other sources for both primary and 

rechargeable lithium batteries and cells. 

In our response to NTSB, we also 

stated we could not at that time justify 

an immediate prohibition on the 

transportation of lithium batteries on 

passenger-carrying aircraft, but that we 

would initiate alternative interim 

actions to address the risk lithium 

batteries present in transportation. 

These alternative actions included 

developing and distributing information 

aimed at shippers and airline personnel 

on the potential hazards of lithium 

batteries and amendments to both the 

international and domestic regulations. 

In addition, we committed to initiate 

additional rulemaking actions as 

necessary, based on the findings of our 

evaluation, to address the hazards of 

lithium batteries in transportation. 

On July 7, 1999, RSPA published a 

public advisory to remind persons that 

batteries and electrical devices that 

contain batteries are forbidden for 

transport unless properly packaged to 

prevent the likelihood of creating sparks 

or generating dangerous heat (64 FR 

36743). The FAA also published 

advisories to the airline industry on July 

2, 1999, and again on May 23, 2002. 

On April 2, 2002, RSPA published a 

notice of proposed rulemaking (NPRM; 

67 FR 15510) to amend the HMR to: (1) 

Change the test methods for lithium 

batteries and cells; (2) revise the 

exceptions for small batteries and cells 

(e.g., those of 1 gram or less of lithium 

content) including adding a requirement 

that all such batteries and cells be 

subject to new marking and paper work

75210 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 

requirements and to the test methods for 

lithium batteries and cells; (3) eliminate 

the exception for larger batteries and 

cells (e.g., cells up to 5 grams of lithium 

content and batteries up to 25 grams of 

lithium content); and (4) provide an 

exception for aircraft passengers and 

crew. The proposals in the NPRM are 

consistent with amendments that have 

already been adopted into the UN 

Recommendations on the Transport of 

Dangerous Goods and the International 

Civil Aviation Organization’s Technical 

Instructions for the Safe Transport of 

Dangerous Goods by Air. 

B. FAA Technical Report on Primary 

Lithium Batteries 

As part of DOT’s re-evaluation of the 

hazards posed by lithium batteries in air 

transportation, FAA initiated a series of 

tests to assess the flammability 

characteristics of primary lithium 

batteries and published a technical 

report in June 2004 (DOT/FAA/AR/–04/

26). This report, which can be found in 

the docket for this rulemaking, 

concluded that the presence of a 

shipment of primary lithium batteries 

can significantly increase the severity of 

an in-flight cargo compartment fire. 

More importantly, the report concluded 

that primary lithium batteries pose a 

unique threat in the cargo compartment 

of an aircraft because primary lithium 

fires cannot be suppressed by means of 

Halon 1301, the only FAA certified fire 

suppressant system permitted for use in 

cargo compartments of a passengercarrying aircraft operating in the United 

States.

The FAA report describes tests 

conducted by the FAA Fire Safety 

Branch to assess the potential danger 

posed to passenger and cargo aircraft by 

fires involving shipments of bulkpacked primary lithium batteries. The 

report notes that primary lithium 

batteries shipped as cargo are packed in 

bulk-corrugated cardboard containers, 

stacked on pallets, and shipped in the 

cargo holds of passenger and cargo 

aircraft. More than 30,000 batteries may 

be shipped on a single pallet. The 

packaging permits close contact 

between individual batteries in each 

row with only thin cardboard separating 

the rows. 

The report concludes that once a 

primary lithium battery begins to burn, 

the outer plastic coating of the battery 

easily melts and ignites, contributing to 

the fire intensity. This increased 

intensity helps raise the temperature of 

the surrounding batteries to the selfignition temperature of lithium, 352 °F. 

Once the lithium in a single battery 

begins to burn, it releases enough energy 

to ignite adjacent batteries. This 

propagation continues until all batteries 

have been consumed. 

Once ignited, primary lithium battery 

fires are difficult to combat. This is 

because lithium is highly reactive and 

has a relatively low self-ignition 

temperature. Thus, while Halon 1301 is 

effective in suppressing a fire associated 

with the surrounding packing material, 

it is not effective against the burning 

lithium batteries. Likewise, Halon 1301 

may successfully suppress a fire that 

starts in the cargo compartment that is 

unrelated to lithium batteries. However, 

the air temperature in a cargo 

compartment may still be above the selfignition temperature of lithium 

batteries. Because of this, lithium 

batteries that are not involved in the 

initial fire may still ignite and 

propagate. 

The report concludes that the ignition 

of a primary lithium battery releases 

burning electrolytes and a molten 

lithium spray. The cargo liner material 

used to insulate cargo may be 

vulnerable to perforation by molten 

lithium depending on its thickness. If 

perforated, the cargo liner cannot 

prevent the Halon 1301 fire suppressant 

agent from leaking out of the 

compartment, reducing the agent 

concentration within the cargo 

compartment and, thus, the 

effectiveness of the agent. Additionally, 

holes in the cargo liner may allow 

flames to spread outside of the cargo 

compartment, spreading the fire to other 

portions of the aircraft. 

Similarly, the report concludes that 

the ignition of primary lithium batteries 

create a pressure pulse that can raise the 

air pressure within the cargo 

compartment. Cargo compartments are 

only designed to withstand 

approximately a 1-psi pressure 

differential. Greater pressure 

differentials may compromise the 

integrity of the compartment by 

activating pressure relief panels. The 

study found that ignition of only a few 

batteries was sufficient to increase the 

air pressure by more than 1-psi in an 

airtight 10 meter cubed pressure vessel. 

This increase in pressure has the same 

effect as perforations in the cargo liner, 

allowing the Halon 1301 fire 

suppressant to leak out, reducing its 

effectiveness, and allowing the fire to 

spread beyond the cargo compartment. 

C. Additional Incidents Continue to 

Occur 

Since 1999, there have been several 

incidents involving lithium batteries in 

air transportation. At least four of those 

incidents involved primary lithium 

battery fires; one incident required 

medical treatment for two workers. All 

of these fires were discovered either just 

before or just after lithium batteries 

were transported on an aircraft in a 

cargo compartment. One of the more 

significant incidents is described below. 

In April of 2002, airport personnel at 

the Indianapolis International Airport 

discovered a fire involving lithium 

batteries that had just arrived on a flight 

from Morgan Hill, California. The 

batteries had short-circuited inside their 

packaging. Airport personnel noticed 

the smoke coming from the container 

and isolated and extinguished the fire 

before it spread. Had the fire ignited 

sooner or had the flight been delayed by 

a short time, the fire could have spread 

in the cargo area of the aircraft while in 

the air. Although this incident occurred 

aboard a cargo-only aircraft, it just as 

easily could have occurred on a 

passenger-carrying flight. 

The number of lithium batteries and 

cells being transported via aircraft 

appears to be steadily increasing, as is 

the lithium content of individual 

batteries and cells. Import statistics also 

show an increased demand for lithium 

batteries. Since 2001, primary lithium 

battery imports have increased more 

than 20%, from approximately 151 

million units in 2001 to approximately 

182 million units in 2003. See U.S. 

International Trade Commission 

DataWeb Import Statistics for Primary 

Cells and Primary Batteries, Lithium, 

Category 850650. With the growing 

consumer demand for portable powered 

devices that have increasing capacity to 

operate for long periods, more and more 

batteries that have very large reserves of 

electrical energy are being shipped. If 

not properly protected from short 

circuiting or prevented from accidental 

activation, these batteries can generate a 

large quantity of sparks and/or heat for 

an extended period. 

D. Petition from the Air Line Pilots 

Association 

On September 29, 2004 the Air Line 

Pilots Association, International (ALPA) 

petitioned RSPA to develop packaging 

standards for lithium primary batteries 

similar to those in place for other 

commodities that, in the event of a fire, 

including a suppressed cargo fire, 

would result in the loss of an aircraft. 

ALPA suggests that the packaging 

should not only be sufficient to protect 

the batteries from damage and shortcircuiting, but also should be adequate 

to protect the batteries from self-ignition 

if exposed to the heat from a suppressed 

or unsuppressed cargo fire. ALPA 

further suggests that the severity of the 

safety problem requires immediate 

attention and that, if the packaging 

criteria cannot be met, bulk shipments

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 75211

of lithium batteries should be prohibited 

on both passenger-carrying and cargoonly aircraft. ALPA also requested that 

DOT perform additional testing of 

lithium ion batteries and lithium 

batteries contained in equipment. 

In its petition, ALPA references the 

recent RSPA rulemaking published 

under Docket HM–224B on May 6, 2004 

(69 FR 25469), which proposed a 

requirement for oxygen cylinders to be 

overpacked in a packaging that would 

allow the cylinder to withstand a 

temperature of 400 °F for 3 hours. ALPA 

states that current packaging standards 

for lithium batteries provide no such 

protection against a suppressed cargo 

fire. 

IV. Interim Final Rule 

The incident reports and test data 

discussed above indicate that primary 

lithium batteries and cells shipped as 

cargo on passenger-carrying aircraft 

pose an immediate risk to the traveling 

public. This information shows that a 

primary lithium battery that is involved 

in a fire in a passenger aircraft cargo 

compartment could overcome the safety 

features of the cargo compartment; that 

if primary lithium batteries are not 

properly packaged or handled, they are 

capable of initiating a fire that could 

have catastrophic consequences. 

Therefore, in this interim final rule, 

RSPA is prohibiting the transportation 

as cargo of primary (non-rechargeable) 

lithium batteries and cells on passengercarrying flights. We are implementing 

this restriction by reference to new 

Special Provisions A100, A101, and 

A102 in the hazmat table for the lithium 

battery entries. The current package 

quantity limitations for secondary 

lithium batteries have been moved 

unchanged to new Special Provisions 

A103 and A104. The action is this 

interim final rule are consistent with the 

policies of several airlines (e.g., 

Northwest Airlines and KLM) who have 

already prohibited the transport of 

lithium batteries aboard their aircraft 

We are also prohibiting the 

transportation of equipment containing 

or packed with large primary lithium 

batteries as cargo (i.e. batteries greater 

than 25 grams) on passenger-carrying 

aircraft. These prohibitions apply to 

both domestic flights and international 

flights. 

A. Cargo Aircraft 

These prohibitions do not apply to 

shipments of primary lithium batteries 

and cells on a cargo-only aircraft. After 

careful consideration of past 

experiences with hazardous materials, 

recent incidents with lithium batteries, 

and NTSB safety recommendations, 

RSPA and FAA agree that the greatest 

risk to public safety is on passengercarrying operations. While it is certainly 

possible that an incident involving a 

primary lithium battery may occur on a 

cargo-only aircraft, the risk to public 

safety is much lower.

Generally speaking, the characteristics 

of all-cargo aircraft provide options to 

pilots that would allow them to stop 

airflow to cargo compartments while the 

aircraft remains at a high altitude. Such 

action, especially at high altitude, 

would reduce the amount of oxygen 

available to a fire. Stopping or reducing 

the amount of oxygen to a compartment 

would help mitigate a fire. On a 

passenger aircraft, it would be more 

difficult to isolate airflow to a cargo 

compartment without also isolating air 

flow to the passenger compartment. The 

FAA confirmed that at least two major 

all-cargo air carriers already advise 

pilots to use these types of procedures 

to help respond to a fire. 

B. Passengers Carrying Batteries in 

Carry-on or Checked Baggage 

This interim final rule does not 

prohibit a passenger from transporting 

devices containing lithium batteries for 

personal use (such as laptop computers, 

cell phones, cameras, etc.) in carry-on or 

checked baggage nor does it restrict a 

passenger from transporting spare 

lithium batteries for personal use in 

carry-on or checked baggage. 

Under this interim final rule, 

consumer electronics or medical devices 

containing a lithium battery, together 

with spare batteries for the device, are 

also permitted in checked baggage 

because it is not clear at this time to 

what extent the surrounding piece of 

equipment provides protection for the 

battery and prevents propagation. For 

each installed or spare cell or battery, 

the lithium content of the anode of each 

cell, when fully charged, may not 

exceed five grams, and the lithium 

content of the anodes of each battery, 

when fully charged, may not exceed 25 

grams. 

It is RSPA’s belief that this interim 

final rule will have little or no effect on 

those personal electronic devices that 

passengers currently carry aboard 

passenger-carrying aircraft. RSPA and 

the FAA may consider this issue and 

others for future rulemaking action. 

C. Batteries Shipped in or with 

Equipment 

The prohibition in this interim final 

rule does not apply to the transportation 

as cargo on passenger aircraft of small 

primary lithium batteries that are 

shipped with or installed in equipment 

for which they are intended to provide 

power. The risk associated with 

shipment of primary lithium batteries in 

or with equipment is currently unclear. 

Studies conducted by the FAA and 

other government agencies focused only 

on shipments of primary lithium 

batteries, not on batteries contained in 

equipment. RSPA and the FAA will 

continue to study small lithium 

batteries shipped with equipment and 

will initiate additional actions as 

necessary. 

Those primary lithium batteries or 

cells we are continuing to allow to be 

transported as cargo aboard passengercarrying aircraft when packed with or in 

equipment must: (1) comply with the 

requirements and limitations of 

§ 173.185(b)(1), (b)(2), (b)(3), (b)(4) and 

(b)(6) or § 173.185(c)(1), (c)(2), (c)(3) and 

(c)(5); (2) the battery or cell or 

equipment containing the battery or 

cell, as appropriate, must be packed in 

strong packagings; (3) the package 

contains no more than the number of 

primary lithium batteries or cells 

necessary to power the intended piece 

of equipment; and (4) the total net 

weight of the primary lithium batteries 

in the package does not exceed 5 kg. 

Further, these types of lithium batteries 

are only allowed to be transported 

aboard passenger-carrying aircraft when 

packed with the piece of equipment for 

which they are intended to provide 

power. 

The provisions in § 173.185(b) and 

§ 173.185(c) deal, in part, with the size 

of the lithium battery or cell and require 

that the cell or battery be hermetically 

sealed and that the batteries and cells be 

packed to prevent short circuiting. 

Concerning size limitations, 

§ 173.185(c)(1) restricts the lithium 

content of the anode of each cell, when 

fully charged, to not more than five 

grams and the aggregate lithium content 

of the anodes of each battery, when fully 

charged, to not more than 25 grams. 

D. Secondary Lithium (Rechargeable/

Lithium Ion) Batteries and Cells 

FAA and RSPA have similar concerns 

with lithium (rechargeable/lithium ion) 

batteries in that they appear to have 

similar self-ignition characteristics as 

primary lithium cells and batteries 

when subjected to thermal and physical 

abuse conditions. However, the risks 

associated with the shipment of 

secondary (rechargeable/lithium ion) 

lithium batteries, particularly with 

respect to their ability to burn in an 

atmosphere containing Halon, are 

currently unclear. Studies conducted by 

the FAA focused only on shipments of 

primary lithium batteries, not secondary 

(rechargeable) lithium batteries. RSPA 

and the FAA will continue to study the

75212 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 

hazards associated with the 

transportation of secondary lithium 

batteries and we will initiate additional 

actions as necessary. 

E. Marking of Packages 

As noted previously, § 173.185 

provides exceptions from the packaging 

and hazard communication 

requirements in the HMR for smaller 

lithium batteries and cells. When the 

lithium content of the battery or cell 

does not exceed certain limits, the 

batteries and cells must be packaged in 

strong outer packagings and in a manner 

to protect against short circuit; however, 

such shipments are excepted from all 

other HMR requirements. Without an 

appropriate marking, carriers will be 

unaware of the presence of primary 

lithium batteries and cells in these types 

of packagings and may inadvertently 

transport primary lithium batteries and 

cells aboard passenger-carrying aircraft. 

Therefore, in this interim final rule, we 

are revising these exceptions to require 

that excepted packages of primary 

lithium batteries and cells, when 

transported by highway, rail, vessel and 

cargo aircraft, be marked ‘‘Primary 

Lithium batteries-Forbidden for 

transport aboard passenger aircraft’’. 

F. Exemptions and Approvals 

RSPA has issued a number of 

Competent Authority Approvals and 

exemptions that authorize the 

transportation of certain lithium 

batteries on passenger-carrying aircraft. 

Consistent with the prohibitions 

imposed by this interim final rule, any 

existing approval or exemption that 

authorizes the shipment of primary 

lithium batteries on passenger-carrying 

aircraft, may no longer make use of that 

provision. An approval or exemption 

authorizing the shipment of lithium 

batteries on cargo-only aircraft, motor 

vehicles, rail cars or vessels may 

continue to be used. 

G. Prohibitions Apply to International 

Flights 

Annex 18 to the Convention on 

International Civil Aviation (Annex 18) 

addresses the safe transport of 

dangerous goods by air. The 

International Civil Aviation 

Organization (ICAO) publishes 

Technical Instructions for the Safe 

Transport of Dangerous Goods by Air. 

These Technical Instructions are 

recognized by contracting states as a set 

of international shipping standards. In 

the United States, 49 CFR 171.11 

establishes limits on the use of the 

Technical Instructions by shippers and 

air operators. Section 2.5.1 of Annex 18 

addresses state variations and indicates, 

‘‘Where a Contracting State adopts 

different provisions from those specified 

in the Technical Instructions, it shall 

notify ICAO promptly of each State 

variation for publication in the 

Technical Instructions.’’ United States 

Variation number 1 is published in the 

Technical Instructions and indicates, in 

part, ‘‘Transport of Dangerous Goods by 

air must be in accordance with United 

States’’ Regulations (49 CFR 171–180) or 

the Technical Instructions as limited by 

49 CFR 171.11.’’ The new limits 

described, in part, by § 171.11 (d) (18) 

in this Interim Final Rule establish that 

the authority outlined in the Technical 

Instructions may not be used to 

transport the affected lithium batteries 

and cells by passenger aircraft into, out 

of, or within the United States. 

V. Justification for Interim Final Rule 

We are issuing this interim final rule 

without providing an opportunity for 

prior public notice and comment as is 

normally required by the Administrative 

Procedure Act (APA). See 5 U.S.C. 553. 

The APA authorizes agencies to 

dispense with certain notice and 

comment procedures if the agency finds 

good cause that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest. See 5 U.S.C. 553(b)(3)(B). 

‘‘Good cause’’ exists in situations when 

notice unavoidably prevents the due 

and required execution of agency 

functions or when an agency finds that 

due and timely execution of its 

functions are impeded by the notice 

otherwise required by the APA. See 

Administrative Procedure Act: 

Legislative History, S. Doc. No. 248 79–

200 (1946); United States Department of 

Justice, Attorney General’s Manual on 

the Administrative Procedure Act at 30–

31 (1947). The Attorney General’s 

Manual on the Administrative 

Procedure Act gives an example of an 

‘‘impracticable’’ good cause situation 

where air safety rules should be 

amended without delay if the FAA 

determines that the safety of the 

traveling public is at stake. See United 

States Department of Justice, Attorney 

General’s Manual on the Administrative 

Procedure Act at 30–31 (1947).

This action meets the good cause 

exception because of recent evidence 

that primary lithium batteries and cells 

shipped as cargo on passenger-carrying 

aircraft pose an immediate risk to the 

traveling public. This action is further 

supported by the fact that there has been 

several incidents involving lithium 

batteries in air transportation since 

1999, and there have been several 

serious fires in the past five years, 

where if circumstances had been 

slightly different, it is very likely that 

there would be a significant risk to the 

safety of the flying public with 

potentially disastrous consequences. In 

these situations, if the primary lithium 

battery cargo had been on a passenger 

carrying aircraft and the fire occurred a 

short time later or had not been noticed, 

there could have been significant loss of 

life. 

The Regulatory Policies and 

Procedures of DOT (44 FR 110034; 

February 26, 1979) provide that, to the 

maximum extent possible, DOT 

operating administrations should 

provide an opportunity for public 

comment on regulations issued without 

prior notice. Accordingly, we encourage 

persons to participate in this rulemaking 

by submitting comments containing 

relevant information, data, or views. We 

also invite comments by February 14, 

2005 concerning the costs and benefits 

that may result from the provisions of 

this interim final rule and particularly 

the costs that may be incurred by small 

businesses. We also plan to hold a 

public meeting before the end of the 

comment period to hear comments and 

concerns related to the provisions of 

this IFR. We expect that the information 

provided at a public meeting will better 

enable us to address those concerns and, 

if necessary, respond rapidly to the need 

for any modifications to this IFR. We 

will consider all comments received on 

or before the closing date for comments. 

We will consider late-filed comments to 

the extent practicable. This interim final 

rule may be amended based on 

comments received. 

VI. Justification for Effective Date Less 

than 30 Days 

This interim final rule is effective 

fourteen days after publication in the 

Federal Register. The APA requires 

agencies to delay the effective date of 

regulations for 30 days after publication, 

unless the agency finds good cause to 

make the regulations effective sooner. 

See 5 U.S.C. 553(d). This interim final 

rule meets the good cause exception in 

this instance because of the potential 

catastrophic consequences should a fire 

occur in the cargo area of a passengercarrying aircraft that involves primary 

lithium batteries. As discussed above, 

warning signs are clearly evident with 

several recent close calls, that primary 

lithium batteries and cells are capable of 

causing a catastrophic incident. It is 

imperative that the Department act now 

to prohibit the shipment of primary 

lithium batteries and cells on passengercarrying aircraft. Because some 

shipments of batteries and cells are 

already en-route and it may be 

impossible to immediately identify,

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 75213

remove, re-mark and re-route cargo 

currently aboard passenger-carrying 

aircraft, we are delaying the effective 

date of this interim final rule for 

fourteen days, so that primary lithium 

battery cargo shipments can be 

identified, properly marked and rerouted. This rule does not apply to those 

shipments that originated prior to the 

effective date. Shipments that originated 

prior to the effective date of the rule, but 

which will not reach their destination 

until after the effective date of this rule 

are not required to be re-routed to avoid 

passenger-carrying aircraft. 

VII. Rulemaking Analysis and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

This interim final rule is published 

under authority of Federal hazardous 

materials transportation law (Federal 

hazmat law; 49 U.S.C. 5101 et seq.) and 

49 U.S.C. 44701. Section 5103(b) of 

Federal hamat law authorizes the 

Secretary of Transportation to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

material in intrastate, interstate, and 

foreign commerce. Title 49 United 

States Code § 44701 authorizes the 

Administrator of the Federal Aviation 

Administration to promote safe flight of 

civil aircraft in air commerce by 

prescribing regulations and minimum 

standards for practices, methods, and 

procedure the Administrator finds 

necessary for safety in air commerce and 

national security. Under 49 U.S.C. 

40113, the Secretary of Transportation 

has the same authority to regulate the 

transportation of hazardous material by 

air, in carrying out § 44701, that he has 

under 49 U.S.C. 5103. 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

The Department has determined that 

the transportation of primary lithium 

batteries and cells on-board passengercarrying aircraft presents an immediate 

safety threat. Therefore, this rule is 

issued to address an emergency 

situation within the meaning of Section 

6(a)(3)(D) of Executive Order 12866. 

Under Section 6(a)(3)(D), in emergency 

situations, an agency must notify OMB 

as soon as possible and, to the extent 

practicable, comply with subsections 

(a)(3)(B) and (C) of Section 6 of E.O. 

12866. The Department has notified and 

consulted with OIRA/OMB on this 

interim final rule. We are preparing an 

assessment of potential costs and 

benefits resulting from this regulatory 

action. RSPA welcomes public 

comments on potential costs and 

benefits of this regulatory action. 

Under the Department of 

Transportation’s Regulatory Policies and 

Procedures (44 FR 11034), this rule is 

considered to be an emergency 

regulation. The Department has 

determined that an immediate safety 

threat exists in the transportation of 

primary lithium batteries and cells on 

board passenger aircraft and, therefore, 

this rule is considered to be an 

emergency regulation. Because of the 

need to move quickly to remove primary 

lithium batteries and cells from 

transportation on passenger aircraft, it 

would be impractical, unnecessary and 

contrary to the public interest to follow 

the usual procedures under the DOT 

order. 

RSPA and FAA conducted a 

preliminary analysis of the impact of 

this interim final rule on current 

shipments of lithium batteries into and 

within the United States. Although this 

rule will clearly require some re-routing 

of lithium battery shipments, 

indications are that the overall impact 

will be limited due to the capacity of 

all-cargo flights into and within the 

United States. In addition, lithium 

batteries may also be shipped by other 

modes of transport. 

RSPA and the FAA estimate that the 

economic impact of this Interim Final 

Rule to be less than $2 million for the 

first year, and less than that amount 

thereafter. This estimate is based on 

FAA conversations with industry, 

available primary lithium battery 

industry data, and air cargo industry 

data. 

We were unable to identify a source 

that provides a definitive number of 

primary lithium batteries or the value of 

such batteries for the U.S. domestic 

market. Therefore, we estimated the 

domestic annual primary lithium 

battery market to be valued at $540 

million. This estimate is based on 

doubling Department of Commerce 

import and export statistics for primary 

lithium batteries. Commerce reported 

that 244 million batteries valued at 

approximately $270 million are either 

imported or exported annually. Given 

that Commerce reports many more 

primary lithium batteries are imported, 

rather than exported, it is likely the 

domestic market is smaller than the 

international market and therefore, the 

estimate of $540 million is probably 

high. 

Based on conversations with various 

lithium battery industry members, the 

FAA estimates that domestically, 

approximately 20% of lithium batteries 

are shipped via air and 80% are shipped 

via other modes of transportation. 

Assuming 20% of the primary lithium 

battery market (that is shipped by air) is 

affected by this rule, the annual dollar 

value of batteries potentially affected by 

this rule is approximately $108 million 

(20% of $540 million). 

According to data compiled by the 

FAA, 25% of all air cargo is shipped on 

passenger aircraft, with 75% sent on all 

cargo aircraft. Therefore, assuming 25% 

of the primary lithium batteries sent by 

air are affected by this rule (75% sent by 

other modes are not affected), the 

annual dollar value of primary lithium 

batteries affected by this rule is 

approximately $27 million (25% of $108 

million). 

The FAA also assumes that only the 

shipping costs of a battery is affected by 

this rule, not the total value of a battery. 

Based on conversations with industry, 

shipping costs for primary lithium 

batteries is approximately 3% of total 

cost. Assuming a 3% shipping cost 

affected by this rule, the annual dollar 

value is reduced to approximately 

$810,000 (3% of $27 million). 

The FAA estimates this cost to be 

high because preliminary discussions 

with industry indicate that some 

industry members send primary lithium 

batteries by cargo only aircraft. In 

addition, discussions with some airlines 

that have a separate cargo only fleet, 

indicate that shipping costs are the same 

for items shipped on a passenger 

carrying aircraft and a cargo only 

aircraft.

The FAA also assumes some cost for 

the marking requirement in this rule. 

While some cost is expected, this may 

be diminished because not every 

package of primary lithium batteries 

will require a marking, instead one label 

can be used for a package that contains 

a number of lithium batteries. In 

addition, this rule does not apply to 

primary lithium batteries that are 

already in the stream of commerce at the 

time of this rule, so shippers will not 

have to locate, label, and re-route 

shipments. 

For primary lithium batteries 

imported to the U.S., the Official Airline 

Guide reports over 3,000 all-cargo 

aircraft flights entering the United States 

each month. A comparison of U.S. 

primary lithium battery trading partners 

with the schedule of all-cargo aircraft 

flights indicates an abundance of allcargo capacity. For example, 

approximately 56 percent of all primary 

lithium battery imports are shipped 

from Japan, and there are over 300 

scheduled all-cargo flights from Japan to 

the United States each month. 

Approximately 12 percent of all primary 

lithium battery imports are shipped 

from China, and there are over 152 

scheduled all-cargo flights from China 

to the United States each month. In

75214 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 

addition, all-cargo flights from the 

United States serve major airport hubs 

world-wide from which cargo such as 

primary lithium batteries could be 

transshipped to their ultimate 

destination. Most importantly, 

discussions with industry indicate that 

the current air cargo infrastructure 

provides all cargo service to virtually 

every location in the world. Because 

certain items, including certain 

hazardous material, are prohibited from 

passenger aircraft, all cargo service 

already provides cargo only service to 

every location in the world. This is 

accomplished in part by ‘‘feeder’’

flights, contracted to local operators to 

reach remote locations. 

While various lithium batteries are 

not affected by this interim final rule, 

such as lithium ion batteries, lithium 

batteries shipped in or with electronic 

devices, or lithium batteries carried by 

passengers, interested persons should be 

aware that the Department may initiate 

additional regulatory actions in the 

future to address these topics and others 

in all modes of transport. 

C. Executive Order 13132

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This rule 

preempts State, local, and Indian tribe 

requirements but does not impose any 

regulation that has substantial direct 

effects on the States, the relationship 

between the national government and 

the States, or the distribution of power 

and responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

The Federal hazardous materials 

transportation law, 49 U.S.C. 5101–27, 

contains express preemption provisions 

(49 U.S.C. 5125) that preempt 

inconsistent State, local, and Indian 

tribe requirements, including 

requirements on the following subjects: 

(1) The designation, description, and 

classification of hazardous materials; 

(2) The packing, repacking, handling, 

labeling, marking, and placarding of 

hazardous materials; 

(3) The preparation, execution, and 

use of shipping documents related to 

hazardous materials and requirements 

related to the number, contents, and 

placement of those documents; 

(4) The written notification, 

recording, and reporting of the 

unintentional release in transportation 

of hazardous material; or 

(5) The design, manufacture, 

fabrication, marking, maintenance, 

recondition, repair, or testing of a 

packaging or container represented, 

marked, certified, or sold as qualified 

for use in transporting hazardous 

material. 

This rule addresses subject items (1), 

and (2) described above and, 

accordingly, State, local, and Indian 

tribe requirements on these subjects that 

do not meet the ‘‘substantively the 

same’’ standard will be preempted. 

Federal hazardous materials 

transportation law provides at 

§ 5125(b)(2) that, if DOT issues a 

regulation concerning any of the 

covered subjects, DOT must determine 

and publish in the Federal Register the 

effective date of Federal preemption. 

The effective date may not be earlier 

than the 90th day following the date of 

issuance of a final rule and not later 

than two years after the date of issuance. 

The effective date of Federal preemption 

is 90 days from publication of this 

interim final rule in this matter in the 

Federal Register. 

D. Executive Order 13175

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not have 

tribal implications and does not impose 

direct compliance costs, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

E. Regulatory Flexibility Act and 

Executive Order 13272

Section 603 of the Regulatory 

Flexibility Act (RFA) requires an agency 

to prepare an initial regulatory 

flexibility analysis describing impacts 

on small entities whenever an agency is 

required by 5 U.S.C. § 553 to publish a 

general notice of proposed rulemaking 

for any proposed rule. Similarly, section 

604 of the RFA requires an agency to 

prepare a final regulatory flexibility 

analysis when an agency issues a final 

rule under 5 U.S.C. 553 after being 

required to publish a general notice of 

proposed rulemaking. Because we have 

determined that there is an immediate 

safety threat and that primary lithium 

batteries and cells must be quickly 

removed from transportation on 

passenger aircraft, prior notice and 

comment would be contrary to the 

public interest. As prior notice and 

comment under 5 U.S.C. 553 are not 

required to be provided in this situation, 

the analyses in 5 U.S.C. sections 603 

and 604 are not required. 

F. Unfunded Mandates Reform Act of 

1995

This rule does not impose unfunded 

mandates under the Unfunded 

Mandates Reform Act of 1995. It does 

not result in costs of $120.7 million or 

more, in the aggregate, to any of the 

following: State, local, or Native 

American tribal governments, or the 

private sector. 

G. Paperwork Reduction Act 

There are no new information 

collection requirements in this final 

rule. 

H. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document may be used 

to cross-reference this action with the 

Unified Agenda. 

I. Environmental Assessment

The National Environmental Policy 

Act of 1969 (NEPA), as amended (42 

U.S.C. 4321–4347), requires Federal 

agencies to consider the consequences 

of major federal actions and prepare a 

detailed statement on actions 

significantly affecting the quality of the 

human environment. This interim final 

rule prohibits primary lithium batteries 

and cells as cargo aboard passengercarrying aircraft, thereby reducing the 

risk of fire aboard passenger-carrying 

aircraft and any resulting environmental 

damage. We find that there are no 

significant environmental impacts 

associated with this interim final rule. 

J. Privacy Act 

Anyone is able to search the 

electronic form for all comments 

received into any of our dockets by the 

name of the individual submitting the 

comments (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit ‘‘http://dms.dot.gov’’.

List of Subjects 

49 CFR Part 171 

Exports, Hazardous materials 

transportation, Hazardous waste, 

Imports, Incorporation by reference, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 172 

Education, Hazardous materials 

transportation, Hazardous waste, 

Labeling, Markings, Packaging and

Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 75215

containers, Reporting and recordkeeping 

requirements. 

49 CFR Part 173 

Hazardous materials transportation, 

Packaging and containers, Radioactive 

materials, Reporting and recordkeeping 

requirements, Uranium. 

49 CFR Part 175 

Air carriers, Hazardous materials 

transportation, Radioactive materials, 

Reporting and recordkeeping 

requirements.

■ In consideration of the foregoing, 49 

CFR Chapter I is amended as follows:

PART 171—GENERAL INFORMATION, 

REGULATIONS, AND DEFINITIONS

■ 1. The authority citation for part 171 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49 

1.45 and CFR 1.53; Pub L. 101–410 section 

4 (28 U.S.C. 2461); Pub. L. 104–134, section 

31001.

■ 2. In § 171.11, paragraph (d)(18) is 

added to read as follows:

§ 171.11 Use of ICAO Technical 

Instructions.

* * * * *

(d) * * * 

(18) Primary lithium batteries and 

cells are forbidden for transportation 

aboard passenger-carrying aircraft. 

Equipment containing or packed with 

primary lithium batteries or cells are 

forbidden from transport aboard 

passenger-carrying aircraft except as 

provided in § 172.102, Special Provision 

A101 or A103, of this subchapter. 

Except for primary lithium batteries and 

cells that are contained in or packed 

with equipment, packagings containing 

primary lithium batteries and cells that 

meet the exceptions in § 173.185(b) and 

(c) of this subchapter must be marked 

‘‘PRIMARY LITHIUM BATTERIES—

FORBIDDEN FOR TRANSPORT 

ABOARD PASSENGER AIRCRAFT’’ and 

may be transported aboard cargo-only 

aircraft.

■ 3. In § 171.12, paragraph (b)(22) is 

added to read as follows:

§ 171.12 Import and export shipment.

* * * * *

(b) * * * 

(22) Except for primary lithium 

batteries and cells, packagings 

containing primary lithium batteries 

and cells that meet the exceptions in 

§ 173.185(b) and (c) of this subchapter 

must be marked ‘‘PRIMARY LITHIUM 

BATTERIES—FORBIDDEN FOR 

TRANSPORT ABOARD PASSENGER 

AIRCRAFT’’.

* * * * *

■ 4. In § 171.12a, paragraph (b)(12) is 

added to read as follows:

§ 171.12a Canadian shipments and 

packagings.

* * * * *

(b) * * * 

(12) Except for primary lithium 

batteries and cells, packagings 

containing primary lithium batteries 

and cells that meet the exceptions in 

§ 173.185(b) and (c) of this subchapter 

must be marked ‘‘PRIMARY LITHIUM 

BATTERIES—FORBIDDEN FOR 

TRANSPORT ABOARD PASSENGER 

AIRCRAFT’’.

* * * * *

PART 172—HAZARDOUS MATERIALS 

TABLE, SPECIAL PROVISIONS, 

HAZARDOUS MATERIALS 

COMMUNICATIONS, EMERGENCY 

RESPONSE INFORMATION, AND 

TRAINING REQUIREMENTS

■ 5. The authority citation for part 172 is 

revised to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49 

CFR 1.53.

§ 172.101 [Amended]

■ 6. In § 172.101, in the Hazardous 

Materials Table, the following changes 

are made: 

a. For the entry ‘‘Lithium batteries, 

contained in equipment’’, in Column 

(7), Special Provisions ‘‘A102, A104’’

are added and Column (9A) is revised 

to read ‘‘See A102, A104’’. 

b. For the entry ‘‘Lithium batteries 

packed with equipment’’, in Column (7), 

Special Provisions ‘‘A101, A103’’ are 

added and Column (9A) is revised to 

read ‘‘See A101, A103’’. 

c. For the entry ‘‘Lithium battery’’, in 

Column 7, Special Provision ‘‘A100’’ is 

added and Column (9A) is revised to 

read ‘‘See A100’’.

■ 7. In § 172.102, in paragraph (c)(1), 

Special Provision 134 and 157 are 

revised and in paragraph (c)(2) Special 

Provisions A100, A101, A102, A103, and 

A104 are added to read as follows:

§ 172.102 Special provisions.

* * * * *

(c) * * * 

(1) * * * 

Code/Special Provisions

* * * * *

134 This entry only applies to 

vehicles, machinery and equipment 

powered by wet batteries, sodium 

batteries, or lithium batteries that are 

transported with these batteries 

installed. Examples of such items are 

electrically-powered cars, lawn mowers, 

wheelchairs, and other mobility aids. 

Self-propelled vehicles that also contain 

an internal combustion engine must be 

consigned under the entry ‘‘Vehicle, 

flammable gas powered’’ or ‘‘Vehicle, 

flammable liquid powered’’, as 

appropriate. Except as provided in 

Special Provision A102, vehicles, 

machinery and equipment powered by 

primary lithium batteries that are 

transported with these batteries 

installed are forbidden aboard 

passenger-carrying aircraft.

* * * * *

157 This entry includes hybrid 

electric vehicles powered by both an 

internal combustion engine and wet, 

sodium or lithium batteries installed. 

Vehicles containing an internal 

combustion engine must be consigned 

under the entry ‘‘Vehicle, flammable gas 

powered’’ or ‘‘Vehicle, flammable liquid 

powered’’, as appropriate. Except as 

provided in Special Provision A102, 

vehicles powered by primary lithium 

batteries, that are transported with these 

batteries installed are forbidden aboard 

passenger-carrying aircraft.

* * * * *

(2) * * * 

A100 Primary (non-rechargeable) 

lithium batteries and cells are forbidden 

for transport aboard passenger carrying 

aircraft. Secondary (rechargeable) 

lithium batteries and cells are 

authorized aboard passenger carrying 

aircraft in packages that do not exceed 

a gross weight of 5 kg. 

A101 A primary (non-rechargeable) 

lithium battery or cell packed with 

equipment is forbidden for transport 

aboard a passenger carrying aircraft 

unless: 

a. The battery or cell complies with 

the requirements and limitations of 

§ 173.185(b)(1), (b)(2), (b)(3), (b)(4) and 

(b)(6) or § 173.185(c)(1), (c)(2), (c)(3) and 

(c)(5) of this subchapter; 

b. The package contains no more than 

the number of lithium batteries or cells 

necessary to power the intended piece 

of equipment; 

c. The equipment and the battery or 

cell are packed in a strong packaging; 

d. The gross weight of the package 

does not exceed 5 kg. Packages 

complying with the requirements of this 

special provision are excepted from all 

other requirements of this subchapter. 

A102 A primary (non-rechargeable) 

lithium battery or cell contained in 

equipment is forbidden for transport 

aboard a passenger carrying aircraft 

unless: 

a. The battery or cell complies with 

the requirements and limitations of 

§ 173.185(b)(1), (b)(2), (b)(3), (b)(4) and 

(b)(6) or § 173.185(c)(1), (c)(2), (c)(3) and 

(c)(5) of this subchapter; 

b. The package contains no more than 

the number of lithium batteries or cells

75216 Federal Register / Vol. 69, No. 240 / Wednesday, December 15, 2004 / Rules and Regulations 

necessary to power the intended piece 

of equipment; 

c. The equipment containing the 

battery or cell is packed in strong 

packagings; and 

d. The net weight of the package does 

not exceed 5 kg. Packages complying 

with the requirements of this special 

provision are excepted from all other 

requirements of this subchapter. 

A103 A secondary (rechargeable) 

lithium battery or cell packed with 

equipment is authorized aboard 

passenger carrying aircraft in packages 

that do not exceed a gross weight of 5 

kg.

A104 A secondary (rechargeable) 

lithium battery or cell packed in 

equipment is authorized aboard 

passenger carrying aircraft in packages 

that do not exceed a net weight of 5 kg.

* * * * *

PART 173—SHIPPERS—GENERAL 

REQUIREMENTS FOR SHIPMENTS 

AND PACKAGINGS

■ 8. The authority citation for part 173 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49 

CFR 1.45, 1.53.

■ 9. In § 173.4, paragraph (d) is added to 

read as follows:

§ 173.4 Small quantity exceptions.

* * * * *

(d) Lithium batteries and cells are not 

eligible for the exceptions provided in 

this section.

■ 10. In § 173.185, the introductory text 

of paragraph (b) is revised, paragraph 

(b)(5) is redesignated as paragraph (b)(6), 

and new paragraph (b)(5) is added; then 

the introductory text of paragraph (c) is 

revised, paragraph (c)(4) is redesignated 

as paragraph (c)(5), and new paragraph 

(c)(4) is added; and paragraph (d) is 

revised to read as follows:

§ 173.185 Lithium batteries and cells.

* * * * *

(b) Exceptions. Except for primary 

(non-rechargeable) lithium batteries and 

cells transported aboard passengercarrying aircraft, cells and batteries are 

not subject to any other requirements of 

this subchapter if they meet the 

following:

* * * * *

(5) The outside of each package that 

contains a primary (non-rechargeable) 

lithium battery or cell must be marked 

‘‘PRIMARY LITHIUM BATTERIES—

FORBIDDEN FOR TRANSPORT 

ABOARD PASSENGER AIRCRAFT’’ on 

a background of contrasting color, in 

letters: 

(i) At least 12 mm (0.5 inch) in height 

on packages having a gross mass of more 

than 30 kg (66 pounds); or 

(ii) At least 6 mm (0.25 inch) on 

packages having a gross mass of 30 kg 

(66 pounds) or less; and

* * * * *

(c) Except for primary lithium (nonrechargeable) batteries and cells 

transported aboard passenger-carrying 

aircraft, cells and batteries are not 

subject to any other requirements of this 

subchapter if they meet the following:

* * * * *

(4) The outside of each package that 

contains a primary (non-rechargeable) 

lithium battery or cell must be marked 

‘‘PRIMARY LITHIUM BATTERIES—

FORBIDDEN FOR TRANSPORT 

ABOARD PASSENGER AIRCRAFT’’ on 

a background of contrasting color, in 

letters: 

(i) At least 12 mm (0.5 inch) in height 

on packages having a gross mass of more 

than 30 kg (66 pounds); or 

(ii) At least 6 mm (0.25 inch) on 

packages having a gross mass of 30 kg 

(66 pounds) or less; and

* * * * *

(d) Except for transportation aboard 

passenger-carrying aircraft, cells and 

batteries and equipment containing cells 

and batteries that were first transported 

prior to January 1, 1995, and were 

assigned to Class 9 on the basis of the 

requirements of this subchapter in effect 

on October 1, 1993, may continue to be 

transported in accordance with the 

applicable requirements in effect on 

October 1, 1993.

* * * * *

■ 11. In § 173.220, paragraphs (d), (e) and 

(f) are redesignated as paragraphs (e), (f) 

and (g) and new paragraph (d) is added 

to read as follows:

§ 173.220 Internal combustion engines, 

self-propelled vehicles, mechanical 

equipment containing internal combustion 

engines, and battery powered vehicles and 

equipment.

* * * * *

(d) Lithium batteries. Except as 

provided in § 172.102, Special Provision 

A102, of this subchapter, vehicles and 

machinery powered by primary lithium 

batteries that are transported with these 

batteries installed are forbidden aboard 

passenger-carrying aircraft. Lithium 

batteries contained in vehicles or 

engines must be securely fastened in the 

battery holder of the vehicle or engine, 

and be protected in such a manner as to 

prevent damage and short circuits. 

Lithium batteries must be of a type that 

have successfully passed each test in the 

UN Manual of Tests and Criteria as 

specified in § 173.185, unless approved 

by the Associate Administrator. 

Equipment, other than vehicles or 

engines, containing lithium batteries 

must be transported in accordance with 

§ 173.185.

* * * * *

PART 175—CARRIAGE BY AIRCRAFT

■ 12. The authority citation for part 175 

is revised to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49 

CFR 1.53.

■ 13. In § 175.10, paragraph (a)(27) is 

added to read as follows:

§ 175.10 Exceptions. 

(a) * * * 

(27) Except as provided in § 173.21 of 

this subchapter, consumer electronic 

and medical devices (watches, 

calculators, cameras, cellular phones, 

lap-top computers, camcorders, and 

hearing aids, etc.) containing lithium 

cells or batteries, and spare lithium 

batteries and cells for these devices, 

when carried by passengers or crew 

members in carry-on or checked baggage 

for personal use. In addition, each 

installed or spare battery must conform 

to the following: 

(i) The lithium content of the anode 

of each cell, when fully charged, is not 

more than 5 g; and 

(ii) The aggregate lithium content of 

the anodes of each battery, when fully 

charged, is not more than 25 g.

* * * * *

Issued in Washington, DC, on December 

10, 2004 under authority delegated in 49 CFR 

Part 1. 

Samuel G. Bonasso, 

Deputy Administrator.

[FR Doc. 04–27423 Filed 12–10–04; 1:59 pm] 

BILLING CODE 4910–60–P