[Federal Register Volume 75, Number 6 (Monday, January 11, 2010)]
[Proposed Rules]
[Pages 1302-1324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-281]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172, 173, 175

[Docket No. PHMSA-2009-0095 (HM-224F)]
RIN 2137-AE44


Hazardous Materials: Transportation of Lithium Batteries

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: PHMSA, in consultation with the Federal Aviation 
Administration (FAA), is proposing to amend requirements in the 
Hazardous Materials Regulations (HMR) on the transportation of lithium 
cells and batteries, including lithium cells and batteries packed with 
or contained in equipment. The proposed changes are intended to enhance 
safety by ensuring that all lithium batteries are designed to withstand 
normal transportation conditions. This would include provisions to 
ensure all lithium batteries are packaged to reduce the possibility of 
damage that could lead to a catastrophic incident, and minimize the 
consequences of an incident. In addition, lithium batteries would be 
accompanied by hazard communication that ensures appropriate and 
careful handling by air carrier personnel, including the flight crew, 
and informs both transport workers and emergency response personnel of 
actions to be taken in an emergency. These proposals are largely 
consistent with changes made to the United Nations Recommendations on 
the Transport of Dangerous Goods (UN Recommendations) and the 
International Civil Aviation Organization Technical Instructions on the 
Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) 
and respond to recommendations issued by the National Transportation 
Safety Board (NTSB).

DATES: Comments must be received by March 12, 2010.
    We are proposing a mandatory compliance date of 75 days after the 
date of publication of a final rule in the Federal Register. In this 
NPRM, we solicit comments from interested persons regarding the 
feasibility of the proposed compliance date.

ADDRESSES: You may submit comments by any of the following methods:

[[Page 1303]]

    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Management System; U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
    <bullet> Hand Delivery: To U.S. Department of Transportation, 
Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday 
through Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2009-
0095 (HM-224F) or RIN 2137-AE44 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, 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 (65 FR 19477), or you 
may visit http://www.regulations.gov.
    Docket: You may view the public docket through the Internet at 
http://www.regulations.gov or in person at the Docket Operations office 
at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Charles E. Betts or Kevin A. Leary, 
Office of Hazardous Materials Standards, Pipeline and Hazardous 
Materials Safety Administration, telephone (202) 366-8553, or Janet 
McLaughlin, International & Outreach Division, Federal Aviation 
Administration, telephone 202-385-4897.

SUPPLEMENTARY INFORMATION:

Contents

I. Background
    A. The Safety Problem
    B. Overview of Current Regulations
    C. Ongoing Efforts To Evaluate Lithium Battery Risk
II. Discussion of Proposed Regulatory Changes
    A. Summary of Proposals in This NPRM
    B. Evidence Preservation
    C. New Shipping Names
    D. Watt Hours Versus Equivalent Lithium Content
    E. Design Type Testing
    F. Elimination of Exceptions for Small Lithium Batteries
    G. Packaging and Stowage
    H. Consolidation of Lithium Battery Regulations
    I. Ongoing Safety Initiatives
    J. Compliance Date
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
    K. International Trade Analysis

I. Background

A. The Safety Problem

    Lithium batteries are hazardous in transportation because they 
present both chemical (e.g., flammable electrolytes) and electrical 
hazards. If not safely packaged and handled, lithium batteries can 
present a significant risk in transportation. Batteries which are 
misused, mishandled, improperly packaged, improperly stored, 
overcharged, or defective can overheat and ignite and, once ignited, 
fires can be especially difficult to extinguish. Overheating has the 
potential to create a thermal runaway, a chain reaction leading to 
self-heating and release of the battery's stored energy. In general, 
the risks posed by all batteries are a function of battery size and 
chemistry. The high energy density (i.e., high energy to weight ratio) 
of lithium batteries increases the consequences of a short circuit or 
fire posing a greater risk in transportation.
    Lithium batteries fall into one of two basic categories, lithium 
metal, including lithium alloy (also known as primary lithium 
batteries), and lithium ion, including lithium ion polymer (also known 
as secondary lithium batteries). As the name indicates, lithium metal 
batteries contain a small amount of metallic lithium or a lithium 
alloy. Batteries of this type are mostly non-rechargeable and these 
cells and batteries are often used in medical devices, computer memory 
and as replaceable batteries (AA and AAA size) suitable for electronic 
devices. The lithium content in these cells and batteries ranges from a 
fraction of a gram to a few grams and typical geometries include coin 
cells, cylindrical, and rectangular. Conversely, lithium ion cells and 
batteries contain a lithium compound (e.g., lithium cobalt dioxide, 
lithium iron phosphate) and they are generally rechargeable. Lithium 
ion batteries are mostly found in portable computers, mobile phones and 
power tools. Common configurations are cylindrical and rectangular. The 
size of a lithium ion battery is currently measured by equivalent 
lithium content. Equivalent lithium content is described in greater 
detail in Part II, Section C ``Watt Hours versus Equivalent Lithium 
Content.''
    Once used primarily in industrial and military applications, 
lithium batteries have become commonplace in consumer electronic 
devices because they have a much higher energy density compared to 
their predecessors (e.g., alkaline, nickel cadmium, and nickel metal 
hydride batteries). They are now found in a variety of popular consumer 
items, including cameras, notebook computers, and mobile telephones. 
The numbers, types, and sizes of lithium batteries moving in 
transportation have grown steadily in recent years with the increasing 
popularity of these and other portable devices and a corresponding 
proliferation of battery designs, manufacturers, and applications. An 
estimated 3.3 billion lithium cells and batteries were transported 
worldwide in 2008 by all modes of transportation. On aircraft, lithium 
batteries are transported in shipments of batteries by themselves and 
they are also packed with or contained in battery powered equipment. 
Lithium batteries are also carried on board aircraft by passengers in 
portable electronic equipment and as spares; however these are not 
addressed in this rulemaking.
    As the demand for lithium batteries increases, so do the risks 
associated with their transportation, especially on board aircraft. The 
risk of transporting lithium batteries on-board aircraft increases with 
the increase in the number of batteries transported by air, given the 
assumption that the proportion of the number of correctly packaged 
shipments to the total number of shipments remains constant. In other 
words, an increase in the number of shipments will result in an 
increase in the number of incidents even if the incident rate remains 
the same since the number of incidents is a product of the incident 
rate and the total number of batteries transported. Moreover, 
increasing the proportion of flights that transport only one lithium 
battery shipment introduces a risk where previously there was none. The 
risk of

[[Page 1304]]

multiple shipments on one aircraft increases the probability of an 
event within individual shipments, and also introduces the possibility 
of one defective shipment influencing other, properly packaged 
shipments on the same aircraft.
    The increasing manifestation of these risks, inside and outside of 
transportation, drives the need for stricter safety standards. Since 
1991, PHMSA and the FAA have identified over 40 air transport-related 
incidents and numerous additional non-transport incidents involving 
lithium batteries and devices powered by lithium batteries. These 
incidents occurred, variously, aboard passenger aircraft and cargo 
aircraft, prior to loading batteries aboard an aircraft, and after 
batteries were transported by air. Twenty-one of these 44 incidents 
involved a passenger aircraft. These incidents occurred in the cabin of 
the airplane, in a passenger's checked baggage, in the cargo area of 
the airplane or in the airport prior to boarding an aircraft. The 
incident data suggest overheating or damage to the device occurred 
immediately prior to the first indications of an incident. The 
remaining incidents involved lithium batteries transported aboard cargo 
aircraft. Many of these incidents were attributed to external short 
circuiting and several packages involved in the incidents were not 
subject to regulatory requirements for display of hazard communication 
markings or labels. It is important to note that while each single 
incident may appear relatively benign and while the overall incident 
numbers may appear small when compared to the total number of lithium 
batteries transported by aircraft each year, the incidents illustrate 
the short circuit and fire risks posed by lithium batteries and the 
potential for a serious incident that could result if the risks as not 
addressed through transportation safety controls. The following table 
shows a breakdown of these incidents:

----------------------------------------------------------------------------------------------------------------
                                                    Passenger aircraft
                                                --------------------------   Cargo on      Cargo
                                                                Checked     passenger     aircraft   Grand total
                                                   Carry-on     baggage      aircraft
----------------------------------------------------------------------------------------------------------------
Lithium Batteries..............................           16            1            4           23           44
----------------------------------------------------------------------------------------------------------------

    A list of aviation incidents involving batteries reported to the 
FAA since 1991 is available through the following URL: http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/hazmat/aircarrier_info/.
    Besides these incidents involving air transportation of lithium 
batteries, there have been several recalls of lithium batteries used in 
notebook computers and other consumer commodities. The Consumer Product 
Safety Commission (CPSC) found that these batteries could spontaneously 
overheat and cause a fire, because of a manufacturing defect or when 
the battery is struck forcefully on the corner (e.g., a direct fall to 
the ground).
    In addition to incidents definitely attributed to lithium 
batteries, the NTSB investigated a February 7, 2006 incident at the 
Philadelphia International Airport in which a fire--suspected to have 
been caused by lithium batteries--destroyed a United Parcel Service 
cargo aircraft and most of its cargo. While the captain, first officer, 
and a flight engineer evacuated the airplane after landing, sustaining 
only minor injuries, the NTSB concluded that flight crews on cargo-only 
aircraft remain at risk from in-flight fires involving both primary 
(non-rechargeable) and secondary (rechargeable) lithium batteries. 
Following the incident investigation, NTSB issued the following 
recommendations to PHMSA:

    Safety Recommendation A-07-104: Require aircraft operators to 
implement measures to reduce the risk of primary lithium batteries 
becoming involved in fires on cargo-only aircraft, such as 
transporting such batteries in fire resistant containers and/or in 
restricted quantities at any single location on the aircraft.
    Safety Recommendation A-07-105: Until fire suppression systems 
are required on cargo-only aircraft, as asked for in Safety 
Recommendation A-07-99, require that cargo shipments of secondary 
lithium batteries, including those contained in or packed with 
equipment, be transported in crew-accessible locations where 
portable fire suppression systems can be used.
    Safety Recommendation A-07-106: Require aircraft operators that 
transport hazardous materials to immediately provide consolidated 
and specific information about hazardous materials on board an 
aircraft, including proper shipping name, hazard class, quantity, 
number of packages, and location, to on-scene emergency responders 
upon notification of an accident or incident.
    Safety Recommendation A-07-107: Require commercial cargo and 
passenger operators to report to the Pipeline and Hazardous 
Materials Safety Administration all incidents involving primary and 
secondary lithium batteries, including those contained in or packed 
with equipment, that occur either on board or during loading or 
unloading operations and retain the failed items for evaluation 
purposes.
    Safety Recommendation A-07-108: Analyze the causes of all 
thermal failures and fires involving secondary and primary lithium 
batteries and, based on this analysis, take appropriate action to 
mitigate any risks determined to be posed by transporting secondary 
and primary lithium batteries, including those contained in or 
packed with equipment, on board cargo and passenger aircraft as 
cargo; checked baggage; or carry-on items.
    Safety Recommendation A-07-109: Eliminate regulatory exemptions 
for the packaging, marking, and labeling of cargo shipments of small 
secondary lithium batteries (no more than 8 grams equivalent lithium 
content) until the analysis of the failures and the implementation 
of risk-based requirements asked for in Safety Recommendation A-07-
108 are completed.
    Safety Recommendation A-08-01: In collaboration with air 
carriers, manufacturers of lithium batteries and electronic devices, 
air travel associations, and other appropriate government and 
private organizations, establish a process to ensure wider, highly 
visible, and continuous dissemination of guidance and information to 
the air-traveling public, including flight crews, about the safe 
carriage of secondary (rechargeable) lithium batteries or electronic 
devices containing these batteries on board passenger aircraft.
    Safety Recommendation A-08-02: In collaboration with air 
carriers, manufacturers of lithium batteries and electronic devices, 
air travel associations, and other appropriate government and 
private organizations, establish a process to periodically measure 
the effectiveness of your efforts to educate the air-traveling 
public, including flight crews, about the safe carriage of secondary 
(rechargeable) lithium batteries or electronic devices containing 
these batteries on board passenger aircraft.

    Most of the recent lithium battery incidents have been determined 
to originate from packages in non-compliant shipments of lithium 
batteries. As a result, many feel that additional regulations will not 
help lower the number of incidents. PHMSA and FAA believe non-
compliance most often arises from confusion concerning the regulatory 
requirements. This confusion typically results from a lack of proper 
training. Currently, shippers of small-size lithium batteries are 
excepted from the training requirements in Subpart H of Part 172 of the 
HMR. The proposals in this NPRM would require these shippers to train 
employees who prepare lithium battery shipments for transportation to 
ensure

[[Page 1305]]

the employees are knowledgeable about all the applicable regulatory 
requirements and that shipments conform to those requirements. The 
training requirements would also apply to air carrier employees; thus, 
training in the requirements applicable to the transportation of small 
lithium batteries would be included in the currently required air 
carrier training for acceptance, handling, and loading and unloading 
lithium battery packages.
    The proposals in this NPRM would also subject packages of small-
size lithium batteries to well-recognized hazardous materials marking 
and labeling requirements. These hazard communication provisions will 
ensure that packages of lithium batteries are placed into a well-
established and high-functioning cargo transportation system that 
provides for more careful handling, more precise record keeping, and 
more detailed tracking and reporting than is typically provided for 
non-hazardous cargo.
    In addition to markings and labels, the proposals in this NPRM 
would also require transport documentation to accompany a shipment of 
small-size lithium batteries. This includes notation of the presence 
and location of lithium batteries aboard the aircraft on the notice to 
the pilot in command (NOPIC). This will allow pilots and crew to make 
appropriate decisions in the event of an emergency. For example, if the 
flight crew identifies fire or smoke in a location where a lithium 
battery shipment is stowed, the crew can make an informed decision 
about the possible severity of the fire, whether the presence of 
lithium batteries could worsen the fire, and the time available to land 
the aircraft or take other emergency actions. The NOPIC also allows 
ground crew, firefighters and first responders to know how they should 
respond in case of an emergency because they will know not only that 
there are packages of lithium batteries aboard the aircraft, but also 
where on the aircraft these packages are located.
    The hazardous materials regulatory system has for decades proven 
its effectiveness in mitigating hazardous materials transportation 
risk. Shippers and operators understand this system and have included 
steps in their processes to ensure compliance. However, lithium 
batteries have largely operated outside of this structure through the 
use of exceptions. This current exception-based system has created a 
set of regulations that is not easily understood or enforced. This, 
coupled with the lack of required training, adds to the difficulty of 
ensuring compliance. PHMSA and FAA believe the system created 
specifically for the transportation of hazardous materials is sound and 
can be used to effectively mitigate the risk posed by lithium batteries 
in air transportation.

 B. Overview of Current Regulations

    Currently, the HMR address lithium battery transportation safety 
through design type testing, short circuit protection, limits on 
battery size, and limits on net and gross weight. The HMR provide 
exceptions for small cells and batteries often found in consumer 
electronic devices.
    Lithium batteries are regulated as a Class 9 material. Class 9 
materials present a hazard during transportation but do not meet the 
definition of any other hazard class. The HMR prohibit the transport of 
primary lithium batteries as cargo on passenger aircraft unless packed 
with or contained in equipment. Packaging and design type testing 
requirements and exceptions for lithium batteries are found in Sec.  
173.185. For transportation by all modes, lithium batteries of all 
types and sizes must pass applicable tests in the UN Manual of Tests 
and Criteria. These tests are designed to ensure that the battery can 
withstand conditions normally encountered in transportation. In 
addition, the battery must be designed in a manner that precludes a 
violent rupture and must be equipped with an effective means of 
preventing external short circuits and a means to prevent reverse 
current flow if it contains cells that are connected in parallel.
    Batteries transported as a Class 9 material must be packaged in 
combination packagings that conform to the performance standards 
specified in Part 178 of the HMR at the Packing Group II performance 
level. In addition, the batteries must be packaged so as to prevent 
short circuits, including movement that could lead to short circuits. A 
package containing lithium batteries must be labeled with a Class 9 
label and must be accompanied by a shipping paper that describes the 
lithium batteries being transported and emergency response information. 
The location and quantity of shipments must also be provided to the 
pilot in command.
    The HMR provide exceptions for lithium batteries based on the 
battery size and packing method. Generally, shipments of small lithium 
batteries are excepted from the specification packaging and hazard 
communication requirements outlined above provided each package 
containing more than 24 lithium cells or 12 lithium batteries is: (1) 
Marked to indicate that it contains lithium batteries and that special 
procedures must be followed if the package is known to be damaged; (2) 
accompanied by a document indicating that the package contains lithium 
batteries and that special procedures must be followed if the package 
is known to be damaged; (3) no more than 30 kilograms gross weight; and 
(4) capable of withstanding a 1.2 meter drop test in any orientation 
without shifting of the contents that would allow short-circuiting and 
without release of package contents. Further, each such package that 
contains a primary lithium battery or cell forbidden for transport 
aboard passenger carrying aircraft must be marked ``PRIMARY LITHIUM 
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' or 
``LITHIUM METAL BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER 
AIRCRAFT.'' The marking, documentation and 1.2 meter drop test 
requirements described above do not apply when these small cells or 
batteries are contained in a piece of equipment.
    For medium-size lithium batteries and cells transported by motor 
carrier or rail, the HMR provide exceptions similar to those for small 
lithium batteries. Under these exceptions, a package containing medium 
size lithium batteries and cells of all types must: (1) Be marked to 
indicate it contains lithium batteries and special procedures must be 
followed if the package is known to be damaged; (2) be accompanied by a 
document indicating the package contains lithium batteries and special 
procedures must be followed if the package is known to be damaged; (3) 
weigh no more than 30 kilograms; and (4) be capable of withstanding a 
1.2 meter drop test. For those packages that are not prepared for air 
shipment, (i.e., not offered and transported as a Class 9 material) the 
HMR require the package to be marked to indicate that they may not be 
transported by aircraft or vessel. The marking, documentation and 1.2 
meter drop test requirements described above do not apply when these 
medium cells or batteries are contained in a piece of equipment.
    The exceptions for small and medium size lithium batteries 
described above are found in Sec.  172.102 Special Provisions 188 and 
189 respectively. Additional exceptions for special cases such as small 
production runs of batteries and specific aircraft quantity limitations 
are found in Sec.  172.102, Special Provisions 29, A54, A55, A100, 
A101, A103, and A104.
    The current requirements in the HMR pertaining to the transport of 
lithium batteries reflect a number of actions taken by PHMSA and FAA in 
response

[[Page 1306]]

to the past incidents and NTSB recommendations, aimed at reducing the 
risks posed by batteries and battery powered devices in transportation. 
These include--
    <bullet> Safety advisories issued by PHMSA to the public (64 FR 
36743 [July 7, 1999]; 72 FR 14167 [Mar. 26, 2007]) and by the FAA to 
the airline industry on July 2, 1999, May 23, 2002 and August 3, 2007 
to remind persons that batteries and electrical devices that contain 
batteries are prohibited for transport unless properly packaged to 
prevent the likelihood of creating sparks or generating dangerous heat.
    <bullet> Changes to UN Recommendations in 2000 and the 2003-04 ICAO 
Technical Instructions based on proposals by the United States which 
(1) revised battery testing requirements and required testing of small 
lithium batteries, (2) adopted hazard communication and packaging 
requirements for small batteries, (3) eliminated an exception for 
medium-sized batteries, and (4) adopted limited exceptions for 
passengers and crew to carry lithium batteries and battery-powered 
equipment aboard an aircraft.
    <bullet> A series of tests performed by FAA in 2004 concluded that 
the presence of a shipment of primary lithium batteries can 
significantly increase the severity of an in-flight cargo compartment 
fire and the fire suppression systems currently in use aboard passenger 
aircraft are ineffective.
    <bullet> PHMSA's December 15, 2004 interim final rule (69 FR 75208, 
correction, 71 FR 56894 [Sept. 28, 2006]), based on the results of the 
FAA tests, adopted a limited prohibition on the transportation on 
passenger-carrying aircraft of primary lithium batteries.
    <bullet> Further testing by FAA in 2006 concluded that flames 
produced by secondary lithium batteries and cells are hot enough to 
cause adjacent cells to vent and ignite, but currently approved fire 
suppression systems are effective on the electrolyte fire and prevent 
any additional fire from subsequent cell venting.
    <bullet> PHMSA's August 9, 2007 final rule (72 FR 44930) finalized 
the December 15, 2004 interim final rule and (1) adopted design type 
testing of all lithium batteries in accordance with international 
standards, and (2) revised the exception for consumer electronic 
devices and spare lithium batteries carried by passengers and crew. The 
preamble to this final rule also discussed in more detail some of the 
prior incidents during transportation of lithium batteries, the FAA 
testing programs, the recalls of notebook computer batteries, and the 
rulemaking changes up to that time.
    <bullet> PHMSA's January 14, 2009 final rule (74 FR 2199) addressed 
NTSB safety recommendations A-07-106 and A-07-107 by requiring an air 
carrier, in the event of a serious incident, to make immediately 
available to an authorized official of a federal, state, or local 
government agency (including an emergency responder), the shipping 
papers and notice to pilot in command or the information contained in 
those documents. This requirement represents a proactive approach to 
information dissemination similar to that in the ICAO Technical 
Instructions. This final rule also added a requirement to report all 
incidents that result in a fire, violent rupture, explosion or 
dangerous evolution of heat (i.e., an amount of heat sufficient to be 
dangerous to packaging or personal safety to include charring of 
packaging, melting of packaging, scorching of packaging, or other 
evidence) that occurs as a direct result of a battery or battery-
powered device. Additionally, the final rule amended regulatory 
requirements to clarify acceptable methods for packaging batteries to 
protect against short circuits and overheating and required the 
reporting of certain incidents involving batteries or battery powered 
devices. PHMSA set forth examples of methods to prevent short circuit 
and damage (such as individually packaging each battery, securely 
covering terminals with non-conductive caps or tape, or designing 
batteries with terminals that are recessed or otherwise protected) 
appropriate for all batteries.
    <bullet> PHMSA and FAA have also conducted a campaign to educate 
the public about ways to reduce lithium battery transportation risks. 
On February 22, 2007; April 26, 2007; May 24-25 2007; and April 11, 
2008, PHMSA hosted meetings with public and private sector stakeholders 
who share our concern for the safe transportation of batteries and 
battery powered devices. The meetings provided an opportunity for 
representatives of the NTSB, CPSC, manufacturers of batteries and 
battery powered devices, airlines, airline employee organizations 
(e.g., pilots and flight attendants), testing laboratories, and the 
emergency response and law enforcement communities to share and 
disseminate information concerning battery related risks and 
developments.
    The amendments to the HMR adopted since 2004 have produced positive 
results, but they addressed only very specific issues and specific 
transport contexts. The proposals outlined in this NPRM are intended to 
comprehensively address the hazards posed by lithium batteries in all 
modes of transportation and further reduce the likelihood and the 
consequences of a battery related fire in transportation. In this NPRM, 
PHMSA plans to address safety recommendations A-07-104, A-07-105, A-07-
108 and A-07-109.
    In addition to the safety measures identified in this NPRM, PHMSA 
and FAA are considering additional safety standards. Many of these 
additional measures affect multiple transport modes, including 
aviation. As we develop these concepts we will continue to work with 
the appropriate international transportation standards-setting bodies, 
such as the United Nations Subcommittee of Experts on the Transport of 
Dangerous Goods (UNSCOE TDG) and the International Civil Aviation 
Organization (ICAO) Dangerous Goods Panel, to encourage their world-
wide acceptance. These additional measures may include:
    <bullet> Establishing a new system for the classification of 
articles, such as lithium batteries that have the potential to produce 
heat and fire.
    <bullet> Determining the feasibility of developing performance 
standards for fire resistant containers that can be used for the 
transport of lithium cells and batteries of all types and all other 
flammable materials on board aircraft.
    <bullet> Examining the role of packaging in preventing damage and 
short circuits to lithium cells and batteries.

 C. Ongoing Efforts To Evaluate Lithium Battery Risk

    As previously mentioned, PHMSA and FAA have identified 44 air 
transport related incidents and numerous additional non-transport 
incidents involving lithium batteries and lithium battery powered 
devices. The January 14, 2009 final rule required air carriers to 
report all incidents that result in a fire, violent rupture, explosion 
or dangerous evolution of heat that occur as a result of a battery or a 
battery powered device. In addition to requiring an incident report 
NTSB, A-07-107 recommends PHMSA require air carriers retain the failed 
items for evaluation purposes. We have concerns with requiring a person 
involved in an incident reported under Sec. Sec.  171.15 or 171.16 to 
maintain in a secure manner items or packages especially if the item is 
an airline passenger's property. Such a requirement would impose 
additional responsibility on the air carrier to maintain possession of 
the item or package in a secure manner. Currently, when an incident 
occurs, DOT works with the person in physical possession of the item 
such as a battery or device

[[Page 1307]]

to ensure the incident is thoroughly documented and when the air 
carrier has accepted the property (68 FR 9735) it is maintained and in 
some instances transported for evaluation. Depending on the nature and 
severity of the incident we work with carriers on a case-by-case basis 
to collect and analyze evidence as appropriate and we continue to seek 
ways to improve the quality and consistency of data we receive. As part 
of this NPRM, PHMSA seeks comments on how this data collection could be 
improved.
    The proposals in this NPRM are intended to address the root causes 
of lithium battery incidents. The available incident data suggest the 
most likely causes of lithium battery incidents are:

    1. External short circuiting--occurs when an exposed battery 
terminal contacts a metal object. When this happens, the battery can 
heat up and may cause ignition of the battery and/or the surrounding 
combustible materials.
    2. In-use situation--generally relating to improper ``charging'' 
and/or ``discharging'' conditions associated with the use of 
equipment (e.g., computer or cell phone). This also includes 
inadvertent activation and subsequent overheating (such was the case 
when a power drill activated and burned in a passenger's checked 
baggage).
    3. Non-compliance--includes faulty design of the battery (cells 
or battery packs), false certification of compliance with regulatory 
testing/classification requirements, and improper packing and 
handling including some counterfeit batteries.
    4. Internal short circuit--can be caused by foreign matter 
introduced into a cell or battery during the manufacturing process. 
An internal short circuit can also occur when a battery is 
physically damaged (e.g. dropped or punctured).

    As noted in the previous section, FAA's Technical Center initiated 
a series of tests to evaluate the risk posed by lithium batteries 
involved in an unrelated fire. FAA completed a study in 2004 to assess 
the flammability characteristics of bulk packed primary lithium 
batteries and a second study in 2006 examining the flammability 
characteristics of bulk packed secondary lithium batteries. In both 
studies the tests were designed to simulate the behavior of the 
batteries in an environment that is similar to actual conditions 
possible in an aircraft cargo compartment fire. Both the 2004 and 2006 
test reports are available at the following url: http://www.fire.tc.faa.gov/reports/reports.asp.
    In the case of primary lithium batteries, the FAA tests showed that 
the packaging materials delayed the ignition of the batteries, but 
eventually added to the fire and contributed to battery ignition, even 
after the original (alcohol) fire had been exhausted. In addition, the 
packaging material held the batteries together, allowing the plastic 
outer coating to fuse the batteries together. This enhanced the 
probability of a burning battery igniting adjacent batteries, 
increasing the propagation rate. The technical report concluded that 
the presence of a shipment of primary lithium batteries can 
significantly increase the severity of an in-flight cargo compartment 
fire. In addition, the report concluded that primary lithium batteries 
pose a unique threat in the cargo compartment of an aircraft because 
primary lithium battery fires cannot be suppressed by means of Halon, 
the only FAA-certified fire suppression system permitted for use in 
cargo compartments of a passenger-carrying aircraft operating in the 
United States.
    The second study completed in 2006 used a similar methodology to 
determine the flammability of secondary lithium batteries and cells. 
The testing demonstrated that flames produced by the batteries are hot 
enough to cause adjacent cells to vent and ignite. The testing also 
demonstrated that Halon is effective in suppressing the electrolyte 
fire and preventing any additional fire from subsequent cell venting. 
The lithium ion cells will continue to vent due to high temperatures 
but will not ignite in the presence of Halon.
    We are aware of additional testing conducted in 2004 and 2005 
independent of the FAA or PHMSA to assess the effect of a battery's 
state of charge on its overall risk. The 2004 preliminary report titled 
``Effect of Cell State of Charge on Outcome of Internal Cell Faults'' 
concluded the severity of the result of an internal short circuit is 
strongly affected by the state of charge. The Draft 2005 report titled 
``US FAA Style Flammability Assessment of Lithium Ion Cells and Battery 
Packs in Aircraft Cargo Holds'' concluded: (1) Direct flame impingement 
on small unpackaged quantities of lithium ion cells and battery packs 
can lead to thermal runaway; (2) Halon 1301 is effective at controlling 
burning lithium ion cells; (3) the fires had a minimal effect on bulk 
packaged lithium ion cells with less than 50% state of charge; and (4) 
the aircraft liner typically used on commercial aircraft is capable of 
withstanding burning gases discharged from venting lithium ion cells 
and batteries. A copy of this analysis is available for review in the 
docket of this rulemaking.
    The FAA results with lithium ion batteries at 100% state of charge 
exposed to a fire showed similar, but more forceful results (i.e. more 
sparks, and more forceful cell venting). FAA and other test data on 
lithium ion cells and batteries suggest that state of charge affects 
their behavior under abuse conditions. PHMSA recognizes this fact and 
commonly requires transport at a reduced state of charge as a condition 
of competent authority approvals issued for the transport of extremely 
large lithium ion batteries found in vehicles and military and 
aerospace equipment. To date, we are not aware of any data that can be 
used to suggest a reduced state of charge affects the behavior of 
primary lithium batteries under abuse conditions.
    The United Kingdom Civil Aviation Authority completed a report in 
2003 titled: ``Dealing with In-Flight Lithium Battery Fires in Portable 
Electronic Devices.'' The test results verified the effectiveness of 
existing fire extinguishing agents in responding to an in-flight fire 
involving a lithium battery powered portable electronic device. The 
report also concluded that the safety systems inherent to lithium 
batteries and battery powered devices decrease the likelihood of a 
fire, but since there is a potential for a fire, these devices must be 
considered a potential risk in flight and during ground based 
operations. If a fire does occur in the aircraft cabin, the force of 
the explosion is not sufficient to cause structural damage to the 
aircraft, but there is a risk the fire could spread to adjacent 
flammable material such as clothing and seats and flames and fumes from 
burning batteries pose a hazard to passengers in the immediate 
vicinity.
    The UK CAA testing, combined with additional research from the FAA 
has formed the basis for improved response procedures and cabin crew 
fire fighting training. Since 2007, the International Federation of 
Airline Pilots Associations has issued several safety bulletins with 
updated recommendations for flight crew actions. In March of 2009, the 
FAA released a training video recreating in-flight scenarios which 
includes actual lithium battery fires and appropriate response 
measures. All of these test reports are available for review in the 
public docket for this rulemaking.

II. Discussion of Proposed Regulatory Changes

A. Summary of Proposals in This NPRM

    In this NPRM, we propose a number of provisions to enhance the safe 
transportation of lithium batteries. The proposals are intended to 
reform the current regulatory framework specific to lithium batteries 
and strengthen the regulations by eliminating certain exceptions. These 
revisions will

[[Page 1308]]

enhance safety by ensuring that all lithium batteries are designed to 
withstand normal transportation conditions, packaged to reduce the 
possibility of damage that could lead to an incident, and accompanied 
by hazard communication information that ensures appropriate and 
careful handling by air carrier personnel and informs transport workers 
and emergency response personnel of actions to be taken in an 
emergency. The additional hazard communication information will also 
provide the pilot in command with additional information about the 
location and quantity of lithium batteries should an unrelated fire 
require emergency measures. Several of the proposals are based on 
recommendations issued by the NTSB. Specifically, in this NPRM, we 
propose to:
    <bullet> Revise current shipping descriptions for lithium batteries 
(UN3090), lithium batteries packed with equipment (UN3091), and lithium 
batteries contained in equipment (UN3091) to specify lithium metal 
batteries including lithium alloy batteries as appropriate.\a\
---------------------------------------------------------------------------

    \a\ In 2006, separate shipping descriptions for lithium metal 
batteries and lithium ion batteries were adopted into the UN 
Recommendations. The International Civil Aviation Organization and 
the International Maritime Organization subsequently adopted these 
shipping descriptions. All references to primary or secondary 
lithium batteries in international regulations were revised to 
reflect this change.
---------------------------------------------------------------------------

    <bullet> Adopt shipping descriptions for lithium ion batteries 
including lithium ion polymer batteries (UN3480), lithium ion batteries 
packed with equipment including lithium ion polymer batteries (UN3481), 
lithium ion batteries contained in equipment including lithium ion 
polymer batteries (UN3481).\a\
    <bullet> Adopt watt-hours in place of equivalent lithium content to 
measure the relative hazard of lithium ion cells and batteries.
    <bullet> Incorporate by reference the latest revisions to the 
United Nations Manual of Tests and Criteria applicable to the design 
type testing of lithium cells and batteries.
    <bullet> Adopt and revise various definitions including ``Aggregate 
lithium content'' ``Lithium content'', ``Lithium ion cell or battery'', 
``Lithium metal cell or battery'', ``Short circuit'', and ``Watt-hour'' 
based on definitions found in the UN Manual of Tests and Criteria.
    <bullet> Require manufacturers to retain results of satisfactory 
completion of UN design type tests for each lithium cell and battery 
type and place a mark on the battery and/or cell to indicate testing 
has been completed successfully. PHMSA and the FAA will coordinate with 
the appropriate international organizations to ensure consistency.
    <bullet> For air transportation, eliminate regulatory exceptions 
for lithium cells and batteries, other than certain exceptions for 
extremely small lithium cells and batteries that are shipped in very 
limited quantities such as button cells and other small batteries that 
are packed with or contained in equipment and those required for 
operational use in accordance with applicable airworthiness 
requirements and operating regulations.
    <bullet> For all transport modes, require lithium cells and 
batteries to be packed to protect the cell or battery from short 
circuits.
    <bullet> Unless transported in a container approved by the FAA 
Administrator, when transported aboard aircraft, limit stowage of 
lithium cells and batteries to crew accessible cargo locations or 
locations equipped with an FAA approved fire suppression system.
    <bullet> Consolidate and simplify current and revised lithium 
battery requirements into one section of the HMR.
    <bullet> Apply appropriate safety measures for the transport of 
lithium cells or batteries identified as being defective for safety 
reasons, or those that have been damaged or are otherwise being 
returned to the manufacturer.

To expedite compliance with the amendments in this notice, we are 
proposing a mandatory compliance date of 75 days after the date of 
publication of the final. The following sections discuss these changes 
in detail:

B. Evidence Preservation

    In this NPRM, in Sec.  171.21, we propose to require a shipper, 
carrier, package owner or person reporting an incident under the 
provisions of Sec. Sec.  171.15 or 171.16 to provide upon request, by 
an authorized representative of the Federal, State or local government 
agency reasonable assistance in investigating the damaged package or 
article, if available.

C. New Shipping Names

    Currently, under the HMR, lithium metal batteries and lithium ion 
batteries share the same UN number. However, differences in chemistry, 
functionality, and behavior when exposed to a fire are well documented. 
Based in part on the previously mentioned FAA fire tests, PHMSA imposed 
additional requirements on lithium metal (primary) batteries including 
prohibiting them from transportation aboard passenger aircraft, unless 
packed with or contained in equipment. The fact that both lithium metal 
and lithium ion batteries share the same UN number yet are regulated 
differently has the potential to cause problems in acceptance 
procedures for carriers and may unnecessarily hinder or delay the 
transportation of these products.
    In 2006, the UN Recommendations adopted separate shipping names and 
ID numbers for lithium metal and lithium ion batteries. The ICAO and 
the International Maritime Organization subsequently adopted these 
entries into their respective dangerous goods lists effective January 
1, 2009. While the HMR permit the use of the ICAO Technical 
Instructions and the International Maritime Dangerous Goods (IMDG) Code 
for international and for domestic transportation when a portion of the 
transportation is by aircraft or vessel, subsequent domestic reshipping 
of packages containing lithium batteries remains difficult.
    In this NPRM, PHMSA proposes to provide two separate entries in the 
hazardous materials table for primary lithium batteries, now referred 
to as ``lithium metal batteries'' and secondary lithium batteries, now 
referred to as ``lithium ion batteries''. Separate entries for lithium 
metal and lithium ion batteries will facilitate the transportation of 
these materials through various modes, both domestically and 
internationally, and enable the application of different emergency 
response actions. We will replace all references to ``primary lithium 
batteries'' with ``lithium metal batteries'' and all references to 
``secondary lithium batteries'' with ``lithium ion batteries''.

D. Watt Hours Versus Equivalent Lithium Content

    When requirements for lithium ion batteries were first adopted into 
the HMR, it was necessary to provide an indication of the lithium 
content in each cell and battery. Since lithium ion batteries do not 
contain metallic lithium, an expression of lithium content analogous to 
lithium metal batteries was devised. This term became known as 
equivalent lithium content (ELC), also known as lithium equivalent 
content. The ELC of a lithium ion cell measured in grams is calculated 
to be 0.3 times the rated capacity in ampere hours. The ELC of a 
lithium ion battery equals the sum of the grams of ELC contained in the 
component cells of the battery. Although the term equivalent lithium 
content is used in the HMR, this term is not widely used or understood 
and can lead to confusion when calculating the ELC of a battery. For

[[Page 1309]]

example, the aggregate ELC for a lithium ion battery consisting of 
multiple cells within a battery can be difficult to calculate based 
solely on the ampere-hour capacity of the battery. Information on the 
ampere-hour capacity of the component cells within a battery is not 
normally provided and the ampere-hour capacity of a battery can change 
depending on the configuration of component cells within a battery.
    PHMSA proposes to adopt a methodology for determining the relative 
strengths of lithium ion batteries using measurements of watt-hours 
rather than ELC. The term watt-hour, expressed as (Wh) is commonly used 
in electrical applications. The watt-hour value of a lithium ion cell 
or battery is determined by multiplying a cell or battery's rated 
capacity in ampere-hours, by its nominal voltage. Therefore, watt-hour 
(Wh) = ampere-hour (Ah) x Volts (V). This product is easy to calculate 
for both cells and batteries and the watt-hour measurement is 
independent of how the component cells within a lithium ion battery are 
connected.
    PHMSA further proposes to replace the term equivalent lithium 
content, or lithium equivalent content and aggregate equivalent content 
each place it appears with watt-hour and replace the equivalent lithium 
content values with their equivalent watt-hour values. These proposals 
are consistent with proposals already adopted in the UN 
Recommendations, ICAO Technical Instructions, and IMDG Code.

E. Design Type Testing

    Each lithium cell or battery is required to be of a type proven to 
meet the requirements of each test in the UN Manual of Tests and 
Criteria.\b\ These tests are designed to ensure that the cells and 
batteries will withstand exposure to severe environmental conditions 
encountered during transport without resulting in a short circuit or a 
rupture. A comparison of the battery appearance before and after these 
tests is intended to detect battery damage such as leakage or abnormal 
venting, disintegration, cracking, swelling or distortion of the 
battery pack, or any other observation that could indicate the 
occurrence of an internal short circuit or constitute a transportation 
safety hazard. Certain tests, including altitude simulation, thermal, 
vibration and shock tests are designed to simulate extremes that may be 
encountered during transport. External short circuit, impact, 
overcharge and forced discharge tests are included, as these conditions 
contribute to short circuits and other potentially hazardous 
conditions.
---------------------------------------------------------------------------

    \b\ As previously discussed, shipments of small lithium cells 
and batteries have been prohibited on passenger-carrying aircraft 
since December 15, 2004, but, before October 1, 2009, small lithium 
cells and batteries that met certain limited packaging and hazard 
communication conditions could be shipped by surface transportation 
(and small secondary lithium cells and batteries could be shipped on 
cargo-only aircraft), without being subject to the testing 
requirements in the UN Manual of Tests and Criteria. Small lithium 
cells and batteries were defined as follows: Cells with up to 1 g 
lithium (primary) or 1.5 equivalent lithium content (ELC) 
(secondary); batteries with up to 2 g lithium (primary) or 8 g ELC.
---------------------------------------------------------------------------

    An informal lithium battery working group of the United Nations 
Subcommittee of Experts on the Transport of Dangerous Goods (UNSCOE 
TDG) met in November 2008 and again in April 2009 to discuss the test 
methods relevant to lithium cells and batteries as contained in the UN 
Manual of Tests and Criteria. The group concluded that while the design 
type tests outlined in the UN Manual of Tests and Criteria adequately 
address safety concerns involving lithium cells and batteries, they can 
be improved based on an evolving understanding and use of lithium 
battery technology.
    Recently, interest in adding an internal short circuit test into 
the UN Manual of Tests and Criteria has grown. Several different tests 
have been developed; however, each method has strengths and weaknesses 
including repeatability and the ability to control the mechanism of the 
internal short circuit. While no consensus has been reached on this 
subject, research and discussion continues. Once a reliable internal 
short circuit test method is developed and incorporated into the UN 
Manual of Tests and Criteria, we will consider adopting this additional 
test into the HMR. We invite commenters to address issues related to 
the development of an internal short circuit test, including 
recommendations on an appropriate and effective test methodology, real-
world experience in applying such a test, and the costs that would be 
associated with an additional test requirement.
    In December 2008, the UN Committee of Experts adopted several 
amendments to section 38.3 of the UN Manual of Tests and Criteria 
(fourth revised edition), which we propose to incorporate by reference 
in Sec.  171.7. These changes include:
    <bullet> Modifications to the terms ``module'' and ``battery 
assembly'', new definitions for the terms ``large battery'' and ``small 
battery'' and modifications to the testing protocol for large batteries 
and battery assemblies.
    <bullet> Revised criteria for a different design type by adding 
additional criteria for rechargeable lithium cells and batteries that 
would trigger a new round of design-type testing.
    Currently, the UN Manual of Tests and Criteria specifies that a 
change from a tested design type of 0.1 grams or 20% by mass to the 
anode, the cathode, or electrolyte material constitutes a change in the 
design of the battery requiring design-type testing. A change that 
would materially affect the test results is also considered a new 
design type requiring retesting. While we continue to believe in the 
importance of harmonization with international standards, we believe a 
change of 20% by mass to the anode, cathode, or electrolyte material by 
mass is too high. Additionally, the language referencing a ``change 
that would materially affect the test results'' remains too broad and 
leaves a great deal to interpretation from the individual cell or 
battery manufacturer or assembler. In this NPRM we propose to require a 
change of 0.1 grams or 5% by mass to the anode cathode or electrolyte 
material from a tested design type to constitute a new design and 
require retesting. Depending on the lithium content, such a change 
would affect the test results. In addition, we propose to include the 
examples of changes that could materially affect the test results 
developed by the informal UN working group. These examples include:
    <bullet> A change in the material of the anode, the cathode, the 
separator, or the electrolyte;
    <bullet> A change of protective devices, including hardware and 
software;
    <bullet> A change of safety design in cells or batteries, such as a 
venting valve;
    <bullet> A change in the number of component cells;
    <bullet> A change in connecting mode of component cells.
    In recent years, lithium battery technology has been developed for 
use in electric vehicles, hybrid electric vehicles and plug-in hybrid 
electric vehicles. The batteries now being utilized in hybrid electric 
vehicles are assemblies that include systems of electronic controllers, 
sensors, air flow ducts, cabling, cell mounting fixtures, cells, trays, 
covers, and attachment brackets and are much larger than lithium 
batteries found in consumer electronic devices (vehicle battery sizes 
generally have a gross mass between 14 kg and 80 kg). While the current 
UN Test standards and the HMR are broad enough in scope to accommodate 
extremely large batteries and assemblies, some believe the forces 
required by some of the UN tests are excessive and certain HMR 
requirements hamper the commercial development of this technology.

[[Page 1310]]

Because these new lithium battery applications may require 
modifications to the UN Manual of Tests and Criteria and revisions to 
the HMR, we issue competent authority approvals on a case-by-case basis 
and continue to actively participate in the advancement of modified 
testing schemes and practical methods that support the development of 
this technology without compromising safety. Based on transportation 
experience gained through competent authority approvals, we may 
consider revising the HMR to more adequately address these scenarios, 
provided we can do so without creating adverse safety consequences.
    The cell and battery design type tests outlined in the UN Manual of 
Tests and Criteria are generally completed prior to the initial 
shipment of a battery from the manufacturer. While we believe most cell 
and battery manufacturers ensure the appropriate tests are conducted 
and the batteries and devices are safe for use, we remain uncertain 
that all manufacturers or battery assemblers take such steps or are 
even aware of the need to test each battery design type. We also remind 
battery manufacturers and assemblers that each lithium battery design-
type is subject to the tests in the UN Manual of Tests and Criteria, 
even if the cells that make up the battery have been tested.
    In this NPRM, we propose to require cell and battery manufacturers 
to retain evidence of satisfactory completion of each of the lithium 
cell and battery design type tests outlined in the UN Manual of Tests 
and Criteria. This evidence must be maintained in a readily accessible 
location at the principal place of business for as long as the lithium 
batteries are offered for transportation in commerce and for one year 
thereafter. Each person required to maintain this evidence must make 
this information available for inspection by a representative of a 
federal, state or local government agency. Since cell and battery 
design type tests already must be completed prior to transport we do 
not believe this should be a particularly burdensome requirement.
    Additionally, we are considering a requirement for a visible 
quality mark to appear on the outside case of each cell or battery. 
This mark would signify successful completion of the required lithium 
battery design type tests in a readily recognizable manner. Visible 
quality marks on electronic devices are very common. Familiar examples 
include the UL symbol meaning a particular product has been evaluated 
and representative samples have been tested by Underwriters 
Laboratories and those products meet particular requirements for safety 
and quality. The CE marking certifies compliance with certain European 
Union Directives. For the purposes of lithium design type testing, we 
are considering requiring a UN symbol, identical to the symbol 
currently required on UN packagings and UN cylinders to appear on all 
cells and batteries that have met each of the design type tests 
prescribed in the UN Manual of Tests and Criteria. Below is an example 
of the mark we are considering:
[GRAPHIC] [TIFF OMITTED] TP11JA10.008

    This mark is readily recognized throughout the world and is 
generally associated with hazardous materials transportation. The 
intended effect of these new provisions is to promote knowledge of the 
UN Tests throughout the world and enhance compliance with these 
important safety standards. We intend to develop proposals for a 
quality mark and associated documentation for inclusion in the UN Model 
Regulations and the UN Manual of Tests and Criteria. We invite 
commenters to address these concepts. Based on comments from the public 
in response to this notice and discussion with the UN SCOE TDG, we may 
adopt the UN Marking or a similar mark in the final rule.

F. Elimination of Exceptions for Small Lithium Batteries

    As noted above, since October 1, 2009, the HMR except small lithium 
cells and batteries from most HMR requirements provided the cells or 
batteries meet the test requirements in the UN Manual of Tests and 
Criteria and the shipment conforms to minimal packaging and hazard 
communication requirements (see Special Provision 188 in Sec.  
172.102(c)). Consistent with NTSB Safety Recommendation A-07-109, in 
this NPRM we propose to eliminate the regulatory exceptions for lithium 
cells and batteries when transported aboard aircraft. Thus, small 
lithium batteries and cells would be required to be offered for 
transportation as Class 9 materials and would be subject to the 
requirements for lithium cells and batteries in Sec.  173.185, 
including the packaging requirements discussed in the next section and 
the hazard communication requirements (shipping papers, package marking 
and labeling) that apply to shipments of Class 9 materials.
    In cargo transportation, generally packages are treated as either 
regulated hazardous materials or non-regulated general cargo. Packages 
that display a hazardous materials label are typically handled in a 
separate cargo stream to ensure more direct oversight than non-
regulated cargo. Those materials that are regulated as hazardous 
materials are recognized by handlers, who ensure that proper 
precautions are taken and the package is handled in accordance with all 
applicable regulatory requirements.
    The proposals outlined in this NPRM have the net effect of moving a 
discrete number of shipments of lithium cells and batteries that are 
currently handled as general cargo into the hazardous material 
transport system. When lithium batteries are offered for transportation 
as a Class 9 material, the package itself provides a clear indication 
of the presence of hazardous material that is readily recognized by 
transport workers and ensures these packages are handled in a manner 
appropriate to their hazard. This also ensures that individuals 
responsible for ensuring the safety of these packages are appropriately 
trained in accordance with the HMR. We believe most air carriers who 
accept lithium batteries for transportation also accept other hazardous 
materials for transportation and already have the necessary personnel 
and procedures in place to handle these packages safely. Thus, the 
requirement to identify and package lithium batteries as Class 9 
materials provides significant safety benefits without imposing large 
additional costs on air carriers.
    Air carriers are required during the certification process to 
declare in their Operating Specifications if a business decision has 
been made to ``carry hazardous materials'' or a business decision has 
been made ``to prohibit the carriage of hazardous material''. Each air 
carrier who elects to carry hazardous material must include handling 
procedures, incident reporting procedures, and other information in its 
operations manual for the appropriate personnel to follow, as well as a 
hazardous material training program that is approved by FAA and 
provided every 24 months to all appropriate persons. This training 
would include recognition of all hazard communication information that 
would be associated with lithium battery shipments as they are trained 
to recognize all hazard class labels, marking and documentation.
    Under the HMR, materials that pose a specific and serious air 
transportation

[[Page 1311]]

risk are regulated more stringently than materials that pose less of a 
risk when transported by air. Lithium batteries are a current exception 
to this standard. The need to fully regulate these items and to 
aggressively enforce all applicable regulatory requirements is critical 
to air safety. Once lithium batteries are fully regulated, enforcement 
agencies will be able to take appropriate action against non-compliant 
shipments, reducing the number of non-compliant packages and therefore, 
reducing the number of lithium battery incidents.
    We note the ICAO Technical Instructions include provisions for 
certain lithium cells and batteries, provided outer packages are marked 
with a lithium battery handling label. This handling label shown below 
notes the presence of lithium batteries and communicates a fire hazard 
if damaged. While this handling label is not specifically authorized by 
the HMR, we believe that it complements the basic intent of identifying 
the materials adequately for emergency response and we would permit 
packages containing lithium batteries to display the lithium battery 
handling label in addition to the markings and labels required by the 
HMR. The ICAO lithium battery handling label is displayed below:
[GRAPHIC] [TIFF OMITTED] TP11JA10.009

    The Class 9 label would alert transport workers to the presence of 
a hazardous material and should result in more careful handling and 
stowage. Shipping papers would provide written notice to the pilot in 
command of the presence of lithium batteries and the type, location and 
number of packages of lithium batteries on board the aircraft. The 
NOPIC serves as a valuable tool to relay information about the 
hazardous materials on board an aircraft to first response personnel 
and provide critical safety information when making decisions in 
emergency situations. The additional information will also assist 
carriers in the acceptance and handling of shipments. The hazardous 
material regulatory system has been effective in mitigating risk for 
decades. Shippers and carriers understand this system and have included 
steps in their processes to ensure compliance and safety. Operating 
outside of the regulatory structure has created a safety environment 
that is haphazard, at best, and a set of requirements that is not 
easily understood. The lack of required training only adds to the 
difficulty. PHMSA and FAA believe the current system for the 
transportation of hazardous materials is sound and can be used to 
effectively mitigate the risk posed by the batteries in air 
transportation.
    A requirement for small lithium batteries and cells to be 
transported as Class 9 materials will have significant safety benefits 
that will more than offset any additional transportation costs that may 
result. PHMSA invites comments on the impacts associated with 
elimination of existing regulatory exceptions and the risk reduction 
benefits associated with eliminating the exceptions.
    To reduce compliance costs and facilitate multimodal transportation 
without sacrificing safety, in Sec.  173.185(d) we propose to specify 
provisions for the transportation of lithium cells and batteries by 
highway, rail and vessel consistent with the IMDG Code. In addition, we 
propose specific requirements for extremely small batteries with very 
low energy (e.g., less than 0.3 grams or 3.7 Wh) when packed with or 
contained in equipment. When contained in equipment, these types of 
batteries are often embedded into circuit boards and are well protected 
from damage and pose a negligible risk. We are seeking comments on 
whether certain exceptions are appropriate from a risk and cost 
perspective. Such exceptions would include lithium ion batteries 
shipped at a reduced state of charge (e.g. less than 50% state of 
charge) or ``very low energy'' batteries (3.7Wh) packed or contained in 
equipment.
    On December 15, 2008, we received a petition (P-1533) from the Air 
Transport Association of America and the Regional Airline Association 
requesting we amend the HMR to permit airlines to carry a limited 
number of small lithium batteries in the aircraft cabin in a constant 
state of readiness with adequate backup power for the duration of the 
flight. The petition states such necessary equipment includes 
electronic flight bags, onboard medical monitoring devices, portable 
oxygen concentrators, personal entertainment devices and credit card 
readers. We agree a need exists for airlines to use and maintain 
certain types of equipment that are increasingly powered by lithium 
batteries. Under Federal Aviation Regulations, these devices must be 
approved by the FAA to ensure they will not cause interference with the 
navigation or communication system of the aircraft on which it is to be 
used and crew members can safely handle these devices and batteries. In 
this NPRM we propose to modify Sec.  175.8 to allow other items 
approved by the FAA Administrator to be used on board an aircraft. FAA 
will provide additional information published in an upcoming INFO to 
supplement this requirement.

[[Page 1312]]

G. Packaging and Stowage

    The risks associated with the transport of lithium cells and 
batteries are largely a function of the amount of stored energy in a 
single cell or battery and the number of batteries in a shipment or a 
package. In addition, factors such as battery chemistry, state of 
charge, transport mode, type and method of packaging, quality of 
manufacturing, age, and handling all contribute varying amounts to the 
overall risks in transportation. Understanding and addressing these 
risks pose unique challenges to U.S. and international regulatory 
bodies.
    The available incident data suggest external short circuiting is a 
leading cause of lithium battery incidents. Effective insulation of 
exposed terminals, designing batteries with recessed terminals and 
other such measures would help to prevent incidents resulting from 
external short circuits. To reduce the potential of short-circuiting, 
in this NPRM we are proposing to require lithium cells and batteries to 
be transported in inner packagings of combination packagings that 
completely enclose the cell or battery. The intent of the requirement 
for inner packaging is to ensure that the conductive terminals of 
batteries remain isolated from each other. This can be achieved in many 
ways including individually packing each cell or battery or packing 
batteries in blister packs commonly found in retail outlets where the 
batteries would be contained between paperboard card and transparent 
clear plastic. We continue to stress the intent of the packaging is to 
protect the batteries from short circuits and damage. The above 
examples are provided only to enhance understanding of the packaging 
requirement and not to limit the acceptable packaging methods used for 
compliance.
    For air transportation, the HMR impose per-package weight 
limitations for lithium cells and batteries. However, there are no 
limits on the number of packages that may be transported in an 
overpack, unit load device, or cargo compartment. PHMSA and FAA are 
concerned about the aggregate risks inherent in transportation 
situations in which a large number of packages each containing small-
sized batteries, are transported in close proximity to one another. 
Indeed, the risks inherent in the transportation of multiple packages 
of small-sized batteries may be more serious than the risks associated 
with a small number of packages containing large-sized batteries. 
Currently, packages containing up to 24 cells or 12 batteries may be 
transported without marks or labels indicating the presence of lithium 
batteries. Further, a single battery shipment may consist of many 
packages, each of which is excepted from the packaging and hazard 
communication requirements. An individual battery will pose a fire risk 
that can be exacerbated by poor packaging and careless handling and, 
the number of batteries in a shipment can substantially affect the 
severity of an incident. For example, several thousand small lithium 
batteries consolidated together may present more significant potential 
risks than a shipment of a single large lithium battery, because one 
burning lithium battery can produce enough heat and energy to propagate 
to other lithium batteries in the same overpack, freight container, or 
cargo hold.
    PHMSA and FAA are aware of one incident that involved a shipment of 
120,000 lithium metal batteries contained in small packages, each 
excepted from the HMR. The pallets containing the packages were 
mishandled by ground crew personnel, which led to their eventual 
ignition. Initial attempts to extinguish the fire with water and 
chemical fire extinguishers were ineffective. More recently, PHMSA and 
FAA observed an incident involving lithium metal batteries contained in 
personal disposable vaporizers. The shipment consisted of 40 cartons 
with each package containing 50 devices. Upon landing at their 
destination, the flight crew was alerted to a fire in the forward 
compartment. Fire department personnel successfully extinguished the 
fire with no injury or damage to the aircraft. These two examples 
illustrate the potential for a serious incident that could result if 
the risks are not addressed through transportation safety controls. 
Both the 2004 and 2006 FAA technical reports show that an increase in 
the number of batteries involved increases the duration of a fire. 
Currently, fire suppression systems are not required in all cargo 
compartments of cargo only aircraft. Therefore, even though Halon fire 
suppression systems are effective at suppressing a fire involving 
lithium ion batteries, flight crews on cargo only aircraft remain at 
risk. In this NPRM we are proposing several actions intended to 
mitigate this risk. Specifically we propose to prohibit the stowage of 
lithium batteries in an inaccessible manner unless the inaccessible 
cargo compartment or freight container is equipped with an FAA approved 
fire suppression system or the lithium batteries are packaged in an FAA 
approved fire resistant container. We believe the enhanced packaging 
and hazard communication combined with loading and stowage limitations 
will reduce the likelihood of a fire and will mitigate the consequences 
of such a fire should one occur. We are also considering whether 
imposing a limit on the number of lithium battery packages transported 
in a single aircraft, single compartment, unit load device, pallet, or 
similar overpack would further enhance safety. We invite commenters to 
address such a limitation, including potential safety benefits, 
possible cost impacts and operational implications or alternative 
suggestions for reducing risk. We invite commenters to address methods 
available to quantify lithium battery risks, and potential risk 
mitigation techniques and alternatives--either in lieu of, or in 
addition to, the provisions proposed in this NPRM. Based on the merits 
of these comments we may consider adoption of additional stowage 
requirements in the final rule.

H. Consolidation of Lithium Battery Regulations

    At present, requirements on transporting lithium cells and 
batteries are located in several different special provisions in Sec.  
172.102 and in Sec.  173.185. We believe that consolidating in a single 
section the requirements that apply to these articles, in a manner 
similar to most other hazardous materials, will promote greater 
understanding and compliance with the regulations and reduce the 
potential for undeclared or frustrated shipments.
    In this NPRM, PHMSA proposes to consolidate the regulations 
pertaining to the packaging of lithium batteries primarily by 
relocating relevant provisions currently contained in special 
provisions to Sec.  173.185. Additionally, aircraft quantity 
limitations currently located in Sec.  172.102, Special provisions 
A100, A101 and A103 will be incorporated into the Sec.  172.101 
hazardous materials table (HMT). Consequently, Column 9A of the HMT 
(passenger aircraft/passenger rail quantity limits) for the entry 
``Lithium metal batteries, UN3090'' will be revised to read 
``Forbidden'' and packages containing lithium metal batteries would be 
required to display the cargo aircraft only label. We would remove the 
current requirement found in Special provision 188 to mark packages as 
forbidden aboard passenger aircraft. However, general requirements 
applicable to all hazardous materials, such as hazard communication, 
training, and emergency response information would not be repeated in

[[Page 1313]]

Sec.  173.185 (except to the extent that any exceptions from these 
requirements apply).
    The United Parcel Service (UPS) filed a petition for rulemaking on 
May 11, 2009 (P-1541), requesting an amendment to the HMR specific to 
the marking of packages containing lithium batteries shipped under the 
exceptions found in Sec.  172.102(c) Special Provision 189. In its 
petition, UPS states the markings required by Special provisions 188 
and 189 are too similar and can be easily confused. The UPS petition 
asked PHMSA to develop a pictorial marking that would unambiguously 
communicate the prohibition of loading packages meeting the exceptions 
of Special provision 189 aboard aircraft and vessel.
    We agree the markings required by Special provisions 188 and 189 
are similar and can be confused. As previously described, all packages 
of small lithium metal batteries (UN3090) would be required to display 
a Class 9 label and the cargo aircraft only label. We believe the 
addition of the new proper shipping names specific to lithium ion cells 
and batteries and the elimination of the exception currently found in 
Sec.  172.102(c), Special provision 188 effectively eliminates the 
confusion expressed by the petitioner.
    We are aware of situations in which damaged or recalled batteries 
are required to be returned to the manufacturer. Product recalls or 
returns may occur for a variety of reasons including a consumer product 
recall in cooperation with the CPSC, a defective product that failed 
during field tests or a battery or device involved in an incident. In 
this NPRM we are proposing requirements for transporting such articles 
based on requirements developed for competent authority approvals and 
previously developed guidance. We propose to limit transport of damaged 
or defective batteries to highway and rail transport only. Where rail 
or highway transport is impracticable, we will work with FAA to develop 
air shipping protocols under Competent Authority Approvals on a case-
by-case basis.

I. Ongoing Safety Initiatives

    This NPRM represents another step in our continuing efforts to 
increase the safety controls applicable to the transportation of 
lithium batteries. This NPRM is part of a larger effort to 
comprehensively address the risks posed by the transportation of 
lithium batteries primarily those lithium batteries shipped as cargo. 
This NPRM does not impact lithium batteries carried by a passenger or 
crewmember in checked or carry-on baggage. PHMSA has taken steps to 
address this safety issue through several initiatives, including a 
battery safety public awareness campaign targeting airline passengers 
and infrequent battery shippers, focused enforcement with the goal of 
maximum compliance, and research into appropriate fire detection and 
suppression and containment methods.
    Since 2007, PHMSA has been working with air carriers, battery 
manufacturers, air travel associations, airline pilot and flight crew 
associations and other government agencies, including the 
Transportation Security Administration, to educate the public about 
potential safety problems and measures that will reduce or eliminate 
those problems. PHMSA agrees that these efforts must be highly visible 
and continuous to be effective. One of the most visible programs to 
promote battery safety is the SafeTravel Web site, which includes 
guidance and information on how to travel safely with batteries and 
battery-powered devices. We have also been working with the major 
airlines, travel and battery industries to provide SafeTravel 
information for ticketed passengers and frequent flyers, and place 
printed battery safety materials in seat pockets on passenger planes. 
We have recorded several million hits on our SafeTravel Web site. PHMSA 
continues to maintain and update the SafeTravel Web site as new 
information becomes available and is currently in the process of a 
major revision to the site. TSA includes SafeTravel information and 
links on its popular public Web site and FAA has issued Travel Tips and 
FAQs on Batteries Carried by Airline Passengers with a link to the 
SafeTravel Web site. This material illustrates appropriate means for 
airline passengers to safely handle and protect their portable 
electronic devices and spare batteries. The goal is to educate the 
flying public to play a part in ensuring air transportation safety. 
Application of the measures set forth in this guidance would likely 
have prevented at least some of the incidents involving lithium 
batteries in a passenger's checked or carry-on baggage.
    PHMSA continues to pursue other initiatives targeting infrequent 
shippers of lithium batteries. In March, 2009, PHMSA published a 
guidance booklet called ``Shipping Batteries by Air: What You Need to 
Know.'' This booklet describes the requirements applicable to the air 
shipment of all battery types including lithium batteries in easy to 
understand terms and is intended to assist infrequent shippers. PHMSA 
and FAA continue to collect battery incident data to enhance our 
understanding of the causes of lithium battery failures and have 
conducted several effective investigations of battery shippers. PHMSA 
seeks comments on the impact of the proposals in this NPRM on 
infrequent shippers, and seeks data on the number of shipments, types 
of shipments, costs incurred by these shippers. PHMSA also seeks 
comments on how communication of the requirements for travelers and 
infrequent shippers could be improved.

J. Compliance Date

    PHMSA and FAA believe that, if adopted, the provisions of this NPRM 
will significantly enhance the safe transportation of lithium batteries 
by aircraft. Therefore, we are considering requiring compliance with 
the provisions of the final rule no later than 75 days after its 
publication in the Federal Register. We are seeking comments as to the 
feasibility and practicability of such a compliance schedule. We invite 
commenters to provide data and information concerning the additional 
costs that would result from such a compliance schedule, practical 
difficulties associated with quickly coming into compliance with the 
provisions of a final rule, and any other issues that we should 
consider in making a decision on the compliance schedule. We also 
invite commenters to address the feasibility and practicability of a 
phased compliance schedule under which certain provisions of the final 
rule would become effective on a faster schedule than other provisions 
for which immediate compliance would be more difficult.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This proposed rule is published under the following statutory 
authorities:
    1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to 
prescribe regulations for the safe transportation, including security, 
of hazardous material in intrastate, interstate, and foreign commerce.
    2. 49 U.S.C. 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 procedures 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

[[Page 1314]]

transportation of hazardous materials by air, in carrying out Sec.  
44701, that he has under 49 U.S.C. 5103.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is a significant regulatory action under section 
3(f) of Executive Order 12866 and, therefore, was formally reviewed by 
the Office of Management and Budget. This proposed rule also is a 
significant rule under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). The following sections 
address the costs and benefits of the measures adopted in this proposed 
rule.
    In developing this NPRM, PHMSA considered several regulatory 
alternatives including (1) a do nothing approach, (2) imposing Class 9 
requirements on all lithium battery shipments, (3) adopting the latest 
requirements of the ICAO Technical Instructions for all lithium battery 
shipments and (4) adopting certain provisions of options (2) and (3). 
In this NPRM we adopted alternative (4). This alternative combines many 
of the safety elements described in Alternative 2 while harmonizing 
with international regulatory standards to create a more complete 
regulatory solution. Under the proposed regulations, we will minimize 
the regulatory exceptions for lithium batteries transported by 
aircraft. Specifically, certain extremely small lithium batteries 
packed with or contained in equipment that do not pose an unreasonable 
risk in transport would not be subject to the HMR, and we would 
maintain an exception for specifically packaged lithium batteries 
transported by highway and rail only. All other lithium cells and 
batteries must be transported as fully regulated Class 9 material, and 
will be required to be packaged in combination packages. Each inner 
packaging must be packed into an outer package meeting the Packing 
Group II performance standard. This is expected to result in new costs 
associated with packaging, hazard communication, cargo stowage and 
training requirements. We expect two primary industry groups will be 
most directly affected by the proposals in this NPRM: (1) Manufacturers 
and distributors of all types of lithium batteries (including 
electronic device manufacturers); and (2) passenger and cargo air 
carriers. The costs of implementing the new rules come to approximately 
$9.3 million for the first year; using a constant 7% discount, the 10-
year projected costs for the proposed rule come to $70.2 million. PHMSA 
invites commenters to address the assumptions in the regulatory 
evaluation, and to provide supporting data related to battery shipments 
which would be covered by this proposal. Specifically, data on the size 
distribution, value distribution, end usage, and number of batteries by 
type of shipment and mode of transportation--as well as any other data 
that would assist in validating impact estimates for this proposal, 
including quantification of costs and how these costs would be 
distributed across the lithium battery supply chain. PHMSA also invites 
comments on the diversion of shipments from air to other modes of 
transportation (due to the proposed elimination of regulatory 
exceptions), including the impacts this diversion will have on cost and 
length of shipments, and the nature of these shipments that would be 
impacted. In addition to data related to quantification of costs, PHMSA 
invites comments and data related to the quantification of risk, and 
risk-reduction benefits.
    The regulatory evaluation does not include costs associated with 
handling charges that are sometimes imposed by air carriers on 
hazardous materials shipments. PHMSA believes the net cost of the 
handling fee is zero; cash is transferred from one affected industry 
group--shippers--to another industry group--carriers. The shipper 
incurs the surcharge to compensate the carrier for the enhanced service 
involved with transporting a hazardous materials package. Moreover, the 
dynamics of this market make it difficult to conclude that shipping 
costs will rise, fall, or remain relatively steady. Some high volume 
shippers may negotiate a reduced surcharge with air carriers. Some 
shippers may decide to switch to another mode. Rail and highway 
transport is less expensive than air transport, although both require 
more time in transit. If a shipper chose a different transport mode, 
the net effect would be that the shipper or consignee would be required 
to maintain an increase in inventory (and related costs) to replace the 
product in transit, offsetting to some extent the savings realized by 
using the less expensive mode. In this NPRM PHMSA specifically invites 
commenters to address the economic impact of surcharges and other fees 
associated with the handling of hazardous materials including how the 
fees are determined.
    The principal anticipated benefits associated with this proposed 
rule are a reduction in the risk of an aircraft cargo compartment fire 
that involves lithium batteries becoming a catastrophic fire that can 
threaten the entire aircraft. While the risk of this type of incident 
is small, PHMSA has determined that, if adopted, the proposals in this 
NRPM will generate benefits for system users by reducing that risk. Our 
data shows an average of about three lithium battery incidents aboard 
aircraft per year. The total costs of an incident can vary greatly, 
from under $500 for a minor incident to hundreds of millions of dollars 
should an incident result in the loss of an aircraft and cargo. To 
calculate benefits we assumed that under the current regulations and 
battery-market growth trends, we will observe approximately three 
incidents per year and assume the average loss of $4.4 million per 
incident. We anticipate benefits to be approximately $13.2 million per 
year. Starting with 2008, the annual cost of $9.3 million and benefit 
of $13.2 million have been discounted at a 7% annual rate to project a 
total cost of $70.2 million and total benefit of $99.2 million, for an 
overall benefit-cost ratio of 1.41, clearly demonstrating the utility 
of the proposed regulation. A regulatory evaluation is available for 
review in the public docket for this rulemaking.

 C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). This proposed 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 material transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that 
preempts State, local and Indian tribe requirements on the following 
subjects:
    (1) The designation, description, and classification of hazardous 
material;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous material 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; and
    (5) The design, manufacture, fabrication, inspection, marking, 
maintenance, recondition, repair, or

[[Page 1315]]

testing of a packaging or container represented, marked, certified, or 
sold as qualified for use in transporting hazardous material in 
commerce.
    This proposed rule addresses subject items (1), (2), (3), and (5) 
above and preempts State, local, and Indian tribe requirements not 
meeting the ``substantively the same'' standard.

 D. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not have tribal implications and does not impose substantial 
direct compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

 E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities, 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. This NPRM 
proposes measures to enhance the safety in transportation of lithium 
batteries by ensuring that all lithium batteries are designed to 
withstand normal transportation conditions, packaged to reduce the 
possibility of damage that could lead to an incident, minimize the 
consequences of an incident and ensure packages of lithium batteries 
are accompanied by hazard information that ensures appropriate and 
careful handling by air carrier personnel and informs transport workers 
and emergency response personnel of actions to be taken in the event of 
an emergency.
    Two types of businesses are likely to incur costs associated with 
compliance with the provisions of this NPRM--manufacturers and 
distributors of lithium batteries and manufacturers of equipment using 
lithium batteries. Unless alternative definitions have been established 
by the agency in consultation with the Small Business Administration 
(SBA), the definition of ``small business'' has the same meaning as 
under the Small Business Act. Since no such special definition has been 
established, we employ the thresholds published by SBA for industries 
subject to the HMR. For this analysis, we identified 60 small 
businesses that manufacture and/or distribute lithium metal or lithium-
ion batteries or cells and are potentially affected by the NPRM. 
Additionally, we identified 2,179 businesses that manufacture or 
distribute electronics shipped with lithium metal or lithium-ion 
batteries.
    The compliance costs to small businesses subject to the provisions 
in the NPRM are costs primarily related to packaging for lithium 
battery shipments. As detailed in the regulatory evaluation, 
incremental costs are expected to range from $0.02 to $0.09 per cell 
for those shipments that are currently excepted from specification 
packaging requirements. We estimate that small businesses will make 
69,876 shipments per year for which more robust packaging will be 
required; each shipment will average about 200 cells. Using the mid-
range incremental packaging cost estimate of $0.04 per cell, a small 
business will incur an incremental cost of about $8 per shipment. The 
total incremental packaging cost is $559,008 per year or about $250 per 
small entity per year.
    Small entities will also incur increased costs related to training. 
These costs are estimated to total $98 per small entity per year.
    We have prepared and placed in the docket a regulatory impact 
analysis (RIA) addressing the economic impact of this rule. The RIA 
includes qualitative discussions and quantitative measurements of costs 
related to implementation of this rule.
    Based on this analysis, I certify that the provisions of this NPRM, 
if adopted, would not have a significant impact on a substantial number 
of small entities.

 F. Paperwork Reduction Act

    PHMSA currently has an approved information collection under Office 
of Management and Budget (OMB) Control Number 2137-0034, ``Hazardous 
Materials Shipping Papers and Emergency Response Information'' with an 
expiration date of May 31, 2011. PHMSA believes this proposed rule will 
result in an increase in the annual burden of this information 
collection.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it is approved by OMB and 
displays a valid OMB control number. Section 1320.8(d), Title 5, Code 
of Federal Regulations requires that PHMSA provide interested members 
of the public and affected agencies an opportunity to comment on 
information collection and recordkeeping requests.
    This notice identifies a revised information collection request 
that PHMSA will submit to OMB for approval based on the requirements in 
this proposed rule. PHMSA has developed burden estimates to reflect 
changes in this proposed rule, and estimates the additional information 
collection and recordkeeping burden as proposed in this rule to be as 
follows:

OMB Control No. 2137-0034:
  Additional Annual Number of Respondents.....................     5,131
  Additional Annual Number of Responses.......................   167,800
  Additional Annual Burden Hours..............................     1,939
  Additional Annual Burden Costs..............................   $48,480
 

    PHMSA specifically requests comments on the information collection 
and recordkeeping burdens associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.
    Requests for a copy of this information collection should be 
directed to: Deborah Boothe or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-10), Pipeline and Hazardous Materials Safety 
Administration, Room E24-426, 1200 New Jersey Ave., SE., Washington, DC 
20590-0001, telephone (202) 366-8553.

 G. 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 contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

 H. Unfunded Mandates Reform Act

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141,300,000 or more, adjusted for inflation, to either State, local or 
tribal governments, in the aggregate, or to the private sector in any 
one year, and is the least burdensome alternative that achieves the 
objective of the rule.

 I. Environmental Assessment

    The National Environmental Policy Act (NEPA), Sec. Sec.  4321-4375, 
requires Federal agencies to analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order Federal agencies to conduct an environmental review considering 
(1) the need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
alternatives, and (4) the agencies and persons consulted during

[[Page 1316]]

the consideration process. 40 CFR Sec.  1508.9(b).

    Purpose and Need. As discussed elsewhere in this preamble, lithium 
batteries are potentially hazardous in transportation because they 
present both chemical (e.g., flammable electrolytes) and electrical 
hazards. If not safely packaged and handled when transported, lithium 
batteries can become dangerous. Defective batteries or batteries which 
are misused, mishandled, or improperly packaged, improperly stored, or 
overcharged can overheat and ignite and, once ignited, fires can be 
especially difficult to extinguish. This NPRM proposes measures to 
enhance the safety in transportation of lithium batteries by ensuring 
that all lithium batteries are designed to withstand normal 
transportation conditions, packaged to reduce the possibility of damage 
that could lead to an incident, minimize the consequences of an 
incident and ensure packages of lithium batteries are accompanied by 
hazard information that ensures appropriate and careful handling by air 
carrier personnel and informs transport workers and emergency response 
personnel of actions to be taken in an emergency.

    Alternatives. PHMSA considered the following alternatives:
Alternative 1: Do Nothing
    Under this alternative, the current regulatory scheme applicable to 
lithium batteries would continue in place. We rejected this alternative 
because newly identified safety risks would not be addressed.
Alternative 2: Impose Class 9 Requirements on All Lithium Battery 
Shipments
    Under this alternative, we would eliminate the current regulatory 
exceptions for small lithium batteries and require their shipment as 
fully regulated Class 9 materials. The current packaging requirement 
for these excepted batteries (a package meeting the general packaging 
requirements of Subpart B of Part 173 and capable of withstanding 1.2 
meter drop test in any orientation) would be replaced by a requirement 
to package the batteries in UN specification packaging conforming to 
the Packing Group II performance level. The current marking applicable 
to packages containing these excepted batteries would be replaced with 
a CLASS 9 label and proper shipping name, UN ID number mark, and the 
CARGO AIRCRAFT ONLY label, as appropriate.
    In addition, each shipment would be accompanied by shipping papers 
and emergency response information, documentation that is currently not 
required for excepted battery shipments. In addition, eliminating the 
regulatory exceptions would require notification to the pilot in 
command of the presence of lithium batteries, the number of packages, 
and their stowage location. Under this alternative, the ban on the 
transport of lithium metal batteries aboard passenger aircraft would 
continue. The maximum quantities that may be offered for transportation 
in one package aboard passenger and cargo only aircraft would remain 
unchanged at 5 kg and 35 kg respectively.
    We rejected Alternative 2. While it would address many of the 
safety issues associated with the transportation of lithium batteries, 
Alternative 2 does not represent a comprehensive regulatory solution. 
Moreover, Alternative 2 does not address critical international 
harmonization issues.
Alternative 3: Impose ICAO Requirements on All Lithium Battery 
Shipments
    Under this alternative, PHMSA would amend the HMR to harmonize 
transportation requirements for lithium batteries with requirements in 
the ICAO Technical Instructions, as follows: (1) The current exception 
for small lithium batteries would be retained; (2) for excepted 
shipments, the watt-hour rating for the batteries would be marked on 
the outside case and the package would be required to have a new 
lithium battery handling label in place of the current mark; (3) 
package weight limitations applicable to different lithium battery 
types would be revised; and (4) for lithium metal batteries, each 
package would be allowed to contain up to 2.5 kg of net lithium content 
per package when surrounded by cushioning material and packaged in 
rigid metal outer packaging.
    We rejected Alternative 3. Although it harmonizes the HMR with 
international requirements applicable to lithium batteries, it does not 
address safety issues associated with small batteries nor does it limit 
the weight of batteries that may be carried in inaccessible 
compartments on cargo aircraft. Our data and research suggest that the 
severity of a fire involving lithium batteries is proportional to the 
number of batteries involved in the fire.
Alternative 4: Adopt the Provisions in Both Alternatives 2 and 3
    Under this alternative, PHMSA would adopt the new and revised 
regulatory provisions summarized in the discussion of Alternatives 2 
and 3 above. In addition, we would adopt requirements for the transport 
of recalled or defective batteries.
    Alternative 4 is the selected alternative. This alternative 
combines many of the safety elements described in Alternative 2 while 
harmonizing with international regulatory standards to create a more 
complete regulatory solution. This alternative will minimize the 
regulatory exceptions for lithium batteries transported by aircraft. 
Specifically, with the exception of incident reporting requirements, 
certain extremely small lithium batteries packed with or contained in 
equipment that do not pose an unreasonable risk in transport would not 
be subject to the HMR, and we would maintain an exception for 
specifically packaged lithium batteries transported by highway and rail 
only. All other lithium batteries would be fully regulated Class 9 
materials. These lithium batteries would be packed in UN specification 
packaging conforming to the Packing Group II performance level and 
appropriately marked and labeled consistent with Part 172. Each 
shipment of lithium batteries would be accompanied by shipping papers, 
emergency response information, and a notice to the pilot in command. 
Further, we would limit the manner in which lithium batteries may be 
stowed on cargo aircraft. Finally, under this alternative, the 
requirements applicable to lithium batteries would be harmonized with 
international standards to the extent possible consistent with our 
overall safety goals, thereby enhancing safety and facilitating 
transportation of these critical energy devices.
    Analysis of Environmental Impacts. Hazardous materials are 
substances that may pose a threat to public safety or the environment 
during transportation because of their physical, chemical, or nuclear 
properties. The hazardous material regulatory system is a risk 
management system that is prevention-oriented and focused on 
identifying a safety hazard and reducing the probability and quantity 
of a hazardous material release. Hazardous materials are categorized by 
hazard analysis and experience into hazard classes and packing groups. 
The regulations require each shipper to classify a material in 
accordance with these hazard classes and packing groups; the process of 
classifying a hazardous material is itself a form of hazard analysis. 
Further, the regulations require the shipper to communicate the 
material's hazards through use of the hazard class, packing group, and 
proper shipping name on the shipping paper and the use of labels on 
packages and placards on transport

[[Page 1317]]

vehicles. Thus the shipping paper, labels, and placards communicate the 
most significant findings of the shipper's hazard analysis. A hazardous 
material is assigned to one of three packing groups based upon its 
degree of hazard--from a high hazard Packing Group I to a low hazard 
Packing Group III material. The quality, damage resistance, and 
performance standards of the packaging in each packing group are 
appropriate for the hazards of the material transported.
    Releases of hazardous materials, whether caused by accident or 
deliberate sabotage, can result in explosions or fires. Radioactive, 
toxic, infectious, or corrosive hazardous materials can have short- or 
long-term exposure effects on humans or the environment. Generally, 
however, the hazard class definitions are focused on the potential 
safety hazards associated with a given material or type of material 
rather than the environmental hazards of such materials.
    Lithium is the lightest solid metal. It can be absorbed into the 
body by inhalation of its aerosol and by ingestion and is corrosive to 
the eyes, the skin and the respiratory tract. Lithium reacts violently 
with strong oxidants, acids and many compounds (hydrocarbons, halogens, 
halons, concrete, sand and asbestos) causing fire and explosion hazard. 
In addition, it reacts with water, forming highly flammable hydrogen 
gas and corrosive fumes of lithium hydroxide. Lithium hydroxide 
represents a potentially significant environmental hazard, particularly 
to water organisms. Lithium metal batteries contain no toxic metals.
    Lithium ion batteries contain an ionic form of lithium but no 
lithium metal. Lithium ion batteries do not pose an environmental 
hazard and are safe for disposal in the normal municipal waste stream. 
While other types of batteries include toxic metals such as cadmium, 
the metals in lithium ion batteries--cobalt, copper, nickel and iron--
are considered safe for landfills or incinerators.
    The measures proposed in this NPRM will reduce the risks to people 
and the environment posed during transportation of lithium metal and 
lithium ion batteries by ensuring that the batteries will withstand 
conditions normally encountered in transportation; packaged to reduce 
the possibility of damage that could lead to an incident and minimize 
the consequences of an incident; and ensure packages of lithium 
batteries are accompanied by hazard information that ensures 
appropriate and careful handling by air carrier personnel and informs 
transport workers and emergency response personnel of actions to be 
taken in an emergency.
    Lithium batteries are a key part of strategies to develop greener 
technologies to power many different applications from automobiles to 
cell phones and computers. The measures proposed in this NPRM will 
facilitate the safe transportation of lithium metal and lithium ion 
batteries across national boundaries, thereby supporting more 
widespread use of these batteries as alternatives to other types of 
energy sources that have adverse environmental impacts. We have 
preliminarily concluded that there are no significant environmental 
impacts associated with proposed amendments in this final rule.
    Consultation and Public Comment. We invite commenters to address 
the potential environmental impacts of the proposals in this NRPM.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, 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://www.regulations.gov/search/footer/privacyanduse.jsp.

K. International Trade Analysis

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. For purposes of these requirements, Federal agencies 
may participate in the establishment of international standards, so 
long as the standards have a legitimate domestic objective, such as 
providing for safety, and do not operate to exclude imports that meet 
this objective. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. PHMSA participates in the establishment of 
international standards to protect the safety of the American public, 
and we have assessed the effects of the proposed rule to ensure that it 
does not exclude imports that meet this objective. Accordingly, this 
rulemaking is consistent with PHMSA's obligations under the Trade 
Agreement Act, as amended.

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, 
Incorporation by reference, Labeling, Markings, Packaging and 
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, we propose to amend 49 CFR 
Chapter I 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. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2641 note); Pub. L. 104-134, 
section 31001.

    2. In Sec.  171.7, in the paragraph (a)(3) table, the entry ``UN 
Recommendations on the Transport of Dangerous Goods, Manual of Tests 
and Criteria, Fourth revised edition, (2003), and Addendum 2, (2004)'' 
is revised to read as follows:


Sec.  171.7  Reference material.

    (a) * * *
    (3) Table of material incorporated by reference. * * *

[[Page 1318]]



------------------------------------------------------------------------
      Source and name of material                49 CFR reference
------------------------------------------------------------------------
 
                              * * * * * * *
UN Recommendations on the Transport of   172.102; 173.21; 173.56;
 Dangerous Goods Manual of Tests and      173.57; 173.58; 173.115;
 Criteria, Fifth revised edition (2009).  173.124; 173.125; 173.127;
                                          173.128; 173.137; 173.185;
                                          Part 173, appendix H; 178.274.
 
                              * * * * * * *
------------------------------------------------------------------------

    3. In Sec.  171.8:
    1. The definition for ``Equivalent lithium content'' is removed.
    2. The definitions for ``Lithium cell or battery'', ``Lithium ion 
cell or battery'', ``Lithium metal cell or battery'', ``Short circuit'' 
and ``Watt-hour'' are added in appropriate alphabetical order.
    3. The definitions for ``Aggregate lithium content'' and ``Lithium 
content'' are revised.
    The additions and revisions, in appropriate alphabetic order, read 
as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Aggregate lithium content means the sum of the grams of lithium 
content contained by the cells comprising a battery.
* * * * *
    Lithium cell or battery refers to a family of cells and batteries 
with different chemistries comprising many types of cathodes and 
electrolytes. A lithium cell is a single encased exhibits a voltage 
differential across its two terminals. A lithium battery consists of 
multiple lithium cells electrically connected together fitted with 
devices necessary for use, for example, case, terminals, markings and 
protective devices. For the purposes of this subchapter, units that are 
commonly referred to as ``battery packs'' or ``battery modules'' or 
``battery assemblies'' having the primary function of providing a 
source of power to another piece of equipment are treated as batteries.
    Lithium content means
    (1) For a lithium metal or lithium alloy cell the mass in grams of 
lithium or lithium alloy in the anode, and
    (2) For a lithium metal or lithium alloy battery, the sum of the 
grams of lithium content contained in the component cells of the 
battery.
    (3) For a lithium ion cell or battery, see the definition for 
``Watt-hour''.
    Lithium-ion cell or battery means a rechargeable electrochemical 
cell or battery in which the positive and negative electrodes are both 
lithium compounds constructed with no metallic lithium in either 
electrode. A lithium ion polymer cell or battery that uses lithium-ion 
chemistries, as described herein, is regulated as a lithium-ion cell or 
battery.
    Lithium metal cell or battery means an electrochemical cell or 
battery utilizing lithium metal or lithium alloys as the anode.
* * * * *
    Short circuit means a direct connection between positive and 
negative terminals of a cell or battery that provides a virtual zero 
resistance path for current flow.
* * * * *
    Watt-hour means a unit of energy equivalent to one watt (1 W) of 
work acting for one hour (1 h) of time and is expressed as (Wh). The 
Watt-hour rating of a lithium ion cell or battery is determined by 
multiplying a cell or battery's rated capacity in ampere-hours, by its 
nominal voltage. Therefore, Watt-hour (Wh) = ampere-hour (Ah) x volts 
(V).
* * * * *
    4. In Sec.  171.12, paragraphs (a)(6) is revised to read as 
follows:


Sec.  171.12  North American shipments.

    (a) * * *
    (6) Lithium cells and batteries. Lithium cells and batteries must 
be offered for transport and transported in accordance with the 
provisions of this subchapter. Lithium metal cells and batteries 
(UN3090) are forbidden for transport aboard passenger-carrying 
aircraft.
    (i) The provisions of this paragraph (a)(6) do not apply to 
packages that contain 5 kg (11 pounds) net weight or less lithium metal 
cells or batteries that are contained in or packed with equipment 
(UN3091).
    (ii) Lithium cells and batteries with a lithium content of not more 
than 0.3 grams or a watt-hour rating of not more than 3.7 Wh packed 
with or contained in equipment are not subject to any other 
requirements of this subchapter except for the requirements in 
Sec. Sec.  171.15 and 171.16 applicable to the reporting of incidents.
* * * * *
    5. Section 171.21(a) is revised to read as follows:


Sec.  171.21  Assistance in investigations and special studies.

    (a) A person reporting an incident under the provisions of Sec.  
171.15 or Sec.  171.16 must:
    (1) Give an authorized representative of the Federal, State or 
local government agency reasonable assistance in the investigation of 
the incident; (i.e. making all records and information pertaining to 
the incident available or assisting in the transportation of the 
evidence upon request).
    (2) Give an authorized representative or special agent of the 
Department of Transportation reasonable assistance in the investigation 
of the incident; and
    (3) Upon request, provide an authorized representative or special 
agent of the Department of Transportation reasonable access to the 
damaged package or article, if available.
* * * * *
    6. In Sec.  171.24, paragraphs (d)(1)(ii) and (d)(1)(iii) are 
revised to read as follows:


Sec.  171.24  Additional requirements for the use of the ICAO Technical 
Instructions.

* * * * *
    (d) * * *
    (1) * * *
    (ii) Lithium cells and batteries. The following conditions and 
limitations apply to lithium batteries and cells:
    (A) Lithium cells and batteries meeting the provisions found in 
Section II of Packing Instructions 965 through 970 must be offered for 
transportation and transported in accordance with the provisions of 
this subchapter;
    (B) Lithium metal cells and batteries (UN3090) are forbidden for 
transport aboard passenger-carrying aircraft.
    (1) The provisions of this paragraph do not apply to packages that 
contain 5 kg (11 pounds) net weight or less lithium metal cells or 
batteries that are contained in or packed with equipment (UN3091); and
    (2) Lithium cells and batteries of a design type proven to meet the 
criteria of Class 9 in Subsection 38.3 of the UN Manual of Tests and 
Criteria with a lithium content of not more than 0.3 grams or a watt-
hour rating of not more than 3.7 Wh packed with or contained in 
equipment are not subject to any other requirements of this subchapter

[[Page 1319]]

except for the requirements in Sec. Sec.  171.15 and 171.16 applicable 
to the reporting of incidents.
    (iii) Pre-production prototype lithium cells and batteries. Pre-
production cells and batteries must be approved by the Associate 
Administrator prior to transportation aboard cargo aircraft.
* * * * *
    7. In Sec.  171.25, paragraph (b)(3) is revised to read as follows:


Sec.  171.25  Additional requirements for the use of the IMDG Code.

* * * * *
    (b) * * *
    (3) Lithium cells and batteries--
    (i) Transported in accordance with Special Provision 188 of the 
IMDG Code may be offered for transportation and transported by highway, 
rail or vessel only. Additionally, each package must be marked 
``LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT'' on a 
background of contrasting color. The marking must be durable, legible 
and of such a size relative to the package as to be readily visible.
    (ii) Lithium cells and batteries of a design type proven to meet 
the criteria of Class 9 in Subsection 38.3 of the UN Manual of Tests 
and Criteria with a lithium content of not more than 0.3 grams or a 
watt-hour rating of not more than 3.7 Wh packed with or contained in 
equipment are not subject to any other requirements of the subchapter 
except for the requirements in Sec. Sec.  171.15 and 171.16 applicable 
to the reporting of incidents.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    8. The authority citation for part 172 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

    9. In Sec.  172.101, the Hazardous Materials Table is amended by 
removing and adding entries in the appropriate alphabetical sequence, 
to read as follows:
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Sec.  172.102  Special Provisions

    10. In Sec.  172.102, in paragraph (c)(1), Special Provisions 134 
and 157 are revised; Special Provisions 29, 188, 189, and 190 are 
removed; and in paragraph (c)(2), Special Provisions A54, A55, A100, 
A101, A103, and A104 are removed.
    The revisions read as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *

Code/Special Provisions

* * * * *
    134 This entry only applies to vehicles, machinery and equipment

[[Page 1322]]

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.
* * * * *
    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.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    11. The authority citation for part 173 continues to read as 
follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

    12. Section 173.185 is revised to read as follows:


Sec.  173.185  Lithium cells and batteries.

    Lithium cell and battery. A lithium cell or battery must be 
transported only under the following conditions:
    (a) General Requirements. (1) Each lithium cell or battery must:
    (i) Be of a design type proven to meet the criteria of Class 9 in 
Sub-section 38.3 of the UN Manual of Tests and Criteria (IBR; see Sec.  
171.7 of this subchapter).
    (A) A lithium cell or battery that differs from a tested design 
type would be considered a new design type and would be required to be 
retested:
    (1) A change of 0.1 grams or 5% by mass to the cathode, to the 
anode, or to the electrolyte; or for rechargeable batteries a change in 
the nominal energy in watt-hours or an increase in the nominal voltage 
of more than 5%; or
    (2) A change that would materially affect the test results would be 
considered a new design type;
    Note to paragraph (a)(1)(i)(A): The type of change that might be 
considered to differ from a tested type, such that it might lead to 
failure of any of the tests, may include but is not limited to:

--A change in the material of the anode, the cathode, the separator, or 
the electrolyte;
--A change of protective devices, including hardware and software;
--A change of safety design in cells or batteries, such as a venting 
valve;
--A change in the number of component cells;
--A change in connecting mode of component cells.

    (B) Each person who manufactures lithium cells or batteries must 
maintain a record of satisfactory completion of these tests prior to 
offering the cell or battery for transport and must make this record 
available, upon request, to an authorized official of a Federal, State, 
or local government agency at reasonable times and locations. Each 
person who manufactures lithium cells or batteries must retain this 
record for as long as that lithium battery design type is offered for 
transportation and for one year thereafter.
    (ii) Incorporate a safety venting device or otherwise be designed 
in a manner that will preclude a violent rupture under conditions 
normally incident to transportation.
    (iii) Be equipped with an effective means to prevent dangerous 
reverse current flow (e.g., diodes, fuses, etc.) if a battery contains 
cells or a series of cells that are connected in parallel; and
    (iv) Be equipped with an effective means of preventing external 
short circuits and the evolution of a dangerous amount of heat (i.e. an 
amount of heat sufficient to be dangerous to packaging or personal 
safety to include charring, melting or scorching of packaging, or other 
evidence).
    (2) Packaging. Lithium cells and batteries must be packaged as 
follows:
    (i) Lithium cells or batteries, including lithium cells or 
batteries packed with or contained in equipment, must be packaged in a 
manner to prevent short-circuiting, generation of sparks, or a 
dangerous quantity of heat. Examples of acceptable packaging methods 
include but are not limited to the following: Packaging each battery or 
each battery powered device in fully enclosed inner packagings made of 
non-conductive material; separating batteries and battery powered 
devices in a manner to prevent contact with other batteries, devices, 
or conductive materials (e.g., metal) in the packagings; ensuring 
exposed terminals are protected with non-conductive caps, non-
conductive tape; or other appropriate means; and
    (ii) Lithium cells or batteries must be packaged in combination 
packagings conforming to the requirements of part 178, subparts L and 
M, of this subchapter at the Packing Group II performance level. The 
lithium cell or battery must be packed in inner packagings that 
completely enclose the cell or battery. The inner packagings must be 
packed within one of the following outer packagings: Metal boxes (4A or 
4B); wooden boxes (4C1, 4C2, 4D, or 4F); fiberboard boxes (4G); solid 
plastic boxes (4H2); fiber drums (1G); metal drums (1A2 or 1B2); 
plywood drums (1D); plastic jerricans (3H2); or metal jerricans (3A2 or 
3B2).
    (3) Except as provided in paragraph (e) of this section, cells and 
batteries with a liquid cathode containing sulfur dioxide, sulfuryl 
chloride or thionyl chloride may not be offered for transportation or 
transported if any cell has been discharged to the extent that the open 
circuit voltage is less than two volts or is less than \2/3\ of the 
voltage of the fully charged cell, whichever is less.
    (4) Cells and batteries with lithium content of not more than 0.3 
grams or a watt-hour rating of not more than 3.7 Wh that meet the 
requirements of paragraph (a) that are packed with or contained in 
equipment in accordance with paragraphs (b) or (c) of this section are 
not subject to any other requirements of the subchapter except for the 
incident reporting requirements in Sec. Sec.  171.15 and 171.16.
    (b) Lithium cells or batteries packed with equipment. Lithium cells 
or batteries packed with equipment must meet all the requirements of 
paragraph (a) of this section except the specification packaging 
requirements of paragraph (a)(2)(ii).
    (1) The cells or batteries must be packed to prevent short 
circuits, including shifting that could lead to short circuits. The 
equipment and the packages of cells or batteries must be further packed 
in a strong outer packaging.
    (2) The package may contain no more than the number of lithium 
cells or batteries necessary to power the piece of equipment plus two 
spare cells or batteries.
    (c) Lithium cells or batteries contained in equipment. Lithium 
cells or batteries contained in equipment must meet all the 
requirements of paragraph (a) of this section, except the specification 
packaging requirements of paragraph (a)(2)(ii).
    (1) The equipment must be packed in a strong outer packaging that 
is waterproof or is made waterproof through the use of an inner 
packaging or a liner unless the equipment is made waterproof by nature 
of its construction.
    (2) The package may contain no more than the number of lithium 
cells or batteries necessary to power the piece of equipment plus two 
spare cells or batteries. The additional cells or batteries must be 
packaged in

[[Page 1323]]

accordance with paragraph (b) of this section.
    (3) If package contains cells or batteries in equipment and other 
cells or batteries packed with equipment, the package must be marked 
with the proper shipping name ``Lithium metal batteries packed with 
equipment'' or ``Lithium ion batteries packed with equipment'' as 
appropriate.
    (d) Exceptions for surface transport. When transported by motor 
vehicle, rail car, or vessel, lithium cells or batteries, including 
lithium cells or batteries packed with or contained in equipment, are 
excepted from the subparts C, D and E of part 172 of this subchapter 
and the specification packaging requirements of paragraph (a)(2)(ii) of 
this section provided they conform to all of the following conditions:
    (1) For a lithium metal cell, the lithium content is not more than 
1 g per cell and the aggregate lithium content is not more than 2 g per 
battery and, for a lithium ion cell or battery, the watt-hour rating is 
not more than 20 Wh per cell and not more than 100 Wh per battery. 
These limits may be increased to 5 g per lithium metal cell or 25 grams 
per lithium metal battery and 60 Wh per lithium ion cell and 300 Wh per 
battery when transported by highway or rail only;
    (2) Cells or batteries are separated or packaged in a manner to 
prevent short circuits and are packed in a strong outer packaging or 
are contained in equipment;
    (3) Except when contained in equipment, each package containing 
more than 4 lithium cells or 2 lithium batteries must 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;
    (4) Each package must be marked ``LITHIUM BATTERIES--FORBIDDEN FOR 
TRANSPORT ABOARD AIRCRAFT'' on a background of contrasting color. The 
marking must be durable, legible and of such a size relative to the 
package as to be readily visible and include any special procedures 
that should be followed if the package is damaged;
    (5) Each shipment consisting of one or more packages must be 
accompanied by a document indicating that the package contains lithium 
batteries and any special procedures that should be followed if the 
package is damaged; and
    (6) The net weight of lithium batteries or cells in the package may 
not exceed 30 kg (66 pounds).
    (e) Lithium cells and batteries, for disposal or recycling. A 
lithium cell or battery offered for transportation or transported by 
motor vehicle to a permitted storage facility or disposal site or for 
purposes of recycling is excepted from the specification packaging 
requirements of paragraph (a)(2)(ii) of this section and the 
requirements of paragraphs (a)(1)(i) and (a)(3) of this section when 
protected against short circuits and packed in a strong outer packaging 
conforming to the requirements of Sec. Sec.  173.24 and 173.24a.
    (f) Small production runs and pre-production prototypes. When 
transported by motor vehicle or rail car, production runs of not more 
than 100 lithium cells or batteries per year or pre-production 
prototype lithium cells or batteries transported for purposes of 
testing are excepted from the testing requirements of paragraph 
(a)(1)(i) of this section provided:
    (1) The cells or batteries are individually packed in an inner 
packaging, surrounded by cushioning material that is non-combustible 
and non-conductive; and
    (2) The cells or batteries are packed in an outer packaging that is 
a metal, plastic or plywood drum (1A2, 1H2, 1D) or a metal, plastic or 
wooden box (4A, 4B, 4H1, 4H2, 4C1 or 4C2) that meets the criteria for 
Packing Group I packagings
    (g) Damaged, defective, or recalled batteries. Lithium cells or 
batteries that have been damaged, identified as defective, or are 
otherwise being returned to the manufacturer for safety reasons must be 
packaged in accordance with paragraph (a)(2) of this section. Inner 
packagings must be surrounded by cushioning material that is non-
combustible, and non-conductive. Damaged, defective, or recalled 
batteries packaged in this manner must be transported by highway or 
rail only.
    (h) Batteries exceeding 12 kg. Batteries employing a strong, 
impact-resistant outer casing and exceeding a gross weight of 12 kg 
(26.5 lbs.), and assemblies of such batteries, may be packed in strong 
outer packagings, in protective enclosures (for example, in fully 
enclosed wooden slatted crates) or on pallets. Batteries must be 
secured to prevent inadvertent movement, and the terminals may not 
support the weight of other superimposed elements. Batteries packaged 
in this manner are not permitted for transportation by passenger 
aircraft, and may be transported by cargo aircraft only if approved by 
the Associate Administrator prior to transportation.
    (i) Approval. A lithium cell or battery that does not conform to 
the provisions of this subchapter may be transported only under 
conditions approved by the Associate Administrator.
    13. In Sec.  173.219, paragraph (b)(3) is revised as follows:


Sec.  173.219  Life-saving appliances.

* * * * *
    (b) * * *
    (3) Electric storage batteries or lithium batteries. Life saving 
appliances containing lithium batteries must be transported in 
accordance with Sec.  173.185.
* * * * *
    14. In Sec.  173.220, paragraphs (d) and (e) are revised as 
follows:


Sec.  173.220  Internal combustion engines, self-propelled vehicles, 
mechanical equipment containing internal combustion engines, and 
battery powered vehicles or equipment.

* * * * *
    (d) Lithium batteries. (1) A vehicle, engine, or machinery powered 
by lithium metal batteries that is transported with these batteries 
installed may be transported on board passenger-carrying aircraft 
provided the lithium content of each cell, when fully charged, is not 
more than 5 grams, the aggregate lithium content of the anode of each 
battery, when fully charged, is not more than 25 grams and the net 
weight of lithium batteries does not exceed 5 kg (11 pounds). Lithium 
batteries contained in vehicles, engines, or mechanical equipment must 
be securely fastened in the battery holder of the vehicle, engine, or 
mechanical equipment and must be protected in such a manner as to 
prevent damage and short circuits (e.g., by the use of non-conductive 
caps that cover the terminals entirely). Except for vehicles 
transported by highway for product testing with prototype lithium 
batteries securely installed, each lithium battery must be of a type 
that has successfully passed each test in the UN Manual of Tests and 
Criteria as specified in Sec.  173.185, unless approved by the 
Associate Administrator.
    (2) Equipment (other than vehicles, engines or mechanical 
equipment) containing lithium batteries, must be described as ``Lithium 
metal batteries contained in equipment'' or ``Lithium ion batteries 
contained in equipment'', as appropriate, and transported in accordance 
with Sec.  173.185.
    (e) Other hazardous materials. (1) Items containing hazardous 
materials, such as fire extinguishers, compressed gas accumulators, 
safety devices, and other hazardous materials, that are

[[Page 1324]]

integral components of the motor vehicle, engine, or mechanical 
equipment and are necessary for the operation of the vehicle, engine, 
or mechanical equipment, or for the safety of its operator or 
passengers must be securely installed in the motor vehicle, engine, or 
mechanical equipment. Such items are not otherwise subject to the 
requirements of this subchapter.
    (2) Equipment (other than vehicles, engines or mechanical 
equipment) containing lithium batteries must be described as ``Lithium 
metal batteries contained in equipment'' or ``Lithium ion batteries 
contained in equipment'', as appropriate, and transported in accordance 
with Sec.  173.185.
* * * * *

PART 175--CARRIAGE BY AIRCRAFT

    15. The authority citation for part 175 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

    16. In Sec.  175.8, add a new paragraph (a)(4) to read as follows:


Sec.  175.8  Exceptions for operator equipment and items of 
replacement.

    (a) * * *
    (4) Items containing hazardous materials used by the operator 
aboard the aircraft when approved by the Administrator of the Federal 
Aviation Administration.
* * * * *
    17. In Sec.  175.10, paragraph (a)(17) is revised to read as 
follows:


Sec.  175.10  Exceptions for passengers, crewmembers, and air 
operators.

    (a) * * *
    (17) Except as provided in Sec.  173.21 of this subchapter, 
portable electronic devices (for example, watches, calculating 
machines, cameras, cellular phones, laptop and notebook computers, 
camcorders, etc.) containing dry cells or dry batteries (including 
lithium cells or batteries) and spare dry cells and batteries for these 
devices, when carried by passengers or crew members for personal use. 
Each installed or spare lithium battery must be of a type proven to 
meet the requirements of each test in the UN Manual of Tests and 
Criteria, and each spare battery must be individually protected so as 
to prevent short circuits (by placement in original retail packaging or 
by otherwise insulating terminals, e.g., by taping over exposed 
terminals or placing each battery in a separate plastic bag or 
protective pouch) and carried in carry-on baggage only. In addition, 
each installed or spare battery must not exceed the following:
    (i) For a lithium metal battery, a lithium content of not more than 
2 grams per battery; or
    (ii) For a lithium-ion battery, a rating of not more than 100 Wh, 
except that up to two batteries with a watt hour rating of more than 
100 Wh but not more than 300 Wh may be carried.
* * * * *
    18. In Sec.  175.75, the last sentence of paragraph (c) and 
paragraph (e)(1) are revised to read as follows:


Sec.  175.75  Quantity limitations and cargo location.

* * * * *
    (c) * * * The requirements of this paragraph do not apply to ORM-D 
materials or Class 9 materials, except that lithium batteries, 
including lithium batteries packed with or contained in equipment may 
be loaded in an inaccessible manner only if they are packaged in an 
container approved by the FAA Administrator for such use or carried in 
a Class C cargo compartment.
* * * * *
    (e) * * *
    (1) Class 3, Packing Group III, materials that do not meet the 
definition of another hazard class, Division 6.1 materials except those 
also labeled FLAMMABLE, Division 6.2, Class 7, or ORM-D materials; 
Class 9 materials, except that lithium batteries, including lithium 
batteries packed with or contained in equipment may be loaded in an 
inaccessible manner only if they are packaged in a container approved 
by the FAA Administrator for such use or carried in a Class C cargo 
compartment.
* * * * *

    Issued in Washington, DC, on January 6, 2010, under authority 
delegated in 49 CFR part 1.
Magdy El-Sibaie,
Acting Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2010-281 Filed 1-8-10; 8:45 am]
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