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11 August 2007
[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Rules and Regulations]
[Page 44929-44950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au07-29]
[[Page 44929]]
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Part III
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171, 172, 173, and 175
Hazardous Materials; Transportation of Lithium Batteries; Final Rule
[[Page 44930]]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173 and 175
[Docket Nos. PHMSA-02-11989 (HM-224C) and PHMSA-04-19886 (HM-224E)]
RIN 2137-AD48 and RIN 2137-AE05
Hazardous Materials; Transportation of Lithium Batteries
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is
amending the Hazardous Materials Regulations (HMR) to tighten the
safety standards for transportation of lithium batteries, including
both primary (non-rechargeable) and secondary (rechargeable) lithium
batteries. Specifically, we are adopting with minor changes the
amendments to the HMR published in an interim final rule on December
15, 2004, imposing a limited prohibition on the transportation of
primary lithium batteries and cells as cargo aboard passenger-carrying
aircraft. In addition, we are adopting many of the proposed changes to
the HMR published under the April 2, 2002 NPRM; (1) Eliminating a
hazard communication and packaging exception for medium-size lithium
cells and batteries of all types transported by aircraft or vessel; (2)
revising an exception for small lithium batteries and cells of all
types to require testing in accordance with the United Nations Manual
of Tests and Criteria; and (3) revising an exception for consumer
electronic devices and spare lithium batteries of all types carried by
airline passengers and crew. These amendments will enhance
transportation safety by reducing fire hazards associated with lithium
batteries and harmonizing U.S. and international standards.
DATES: Effective Date: The effective date of these amendments is
January 1, 2008.
Voluntary Compliance: Voluntary compliance with all of these
amendments, including those with a delayed mandatory compliance date,
is authorized as of October 1, 2007.
FOR FURTHER INFORMATION CONTACT: John Gale or Arthur Pollack, Office of
Hazardous Materials Standards, PHMSA, Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590-0001, Telephone (202) 366-
8553.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
A. Overview of Lithium Battery Risks
B. LAX Incident and NTSB Recommendations
C. Additional Incidents
D. Recalls
E. Regulatory Action To Address Transportation Risks Posed by
Lithium Batteries of all Types
II. Provision of This Final Rule
A. Docket HM-224C
B. Docket HM-224E
III. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
C. Executive Order 13132 (Federalism)
D. Executive Order 13175
E. Regulatory Flexibility Act
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Environmental Assessment
I. Regulation Identifier Number
J. Privacy Act
This final rule is the culmination of two rulemaking proceedings
initiated by the Research and Special Programs Administration (RSPA),
the predecessor agency to the Pipeline and Hazardous Materials Safety
Administration (PHMSA), in order to reduce the risks of battery-related
fires in transportation and in response to incident reports and
recommendations of the Federal Aviation Administration (FAA) and
National Transportation Safety Board (NTSB). The final rule continues
in force a limited ban on the transportation of certain lithium
batteries as cargo aboard passenger aircraft. It tightens other
standards for the testing, handling, and packaging of lithium
batteries, in each case to reduce the likelihood or consequence of a
lithium battery-related fire in transportation. Although we developed
these standards in separate rulemaking proceedings, we have combined
them for publication in this single final rule in the interests of
clarity and consistency and to minimize regulatory burdens.
I. Background
The final rule adopted today is one of several actions PHMSA is
taking, in consultation with the FAA, to improve the safety of lithium
batteries in transportation. Beyond rulemaking and enforcement, PHMSA
and FAA are promoting and advancing non-regulatory solutions through a
broad group of public and private sector stakeholders that share our
interest in battery and transportation safety. We are working with
representatives of the NTSB, the Consumer Product Safety Commission,
manufacturers of lithium batteries and battery-powered products,
airlines, airline employee organizations, testing laboratories, and the
emergency response and law enforcement communities to share and
disseminate information about battery-related risks and developments
and to promote improvements in industry standards and best practices.
We report on these non-regulatory activities through our public Web
site at http://safetravel.dot.gov.
A. Overview of Lithium Battery Risks
Lithium batteries are considered a hazardous material for purposes
of transportation regulation because they can overheat and ignite in
certain conditions and, once ignited, can be especially difficult to
extinguish. In general, the risks posed by lithium batteries are a
function of battery size (the amount of lithium content and
corresponding energy density) and the likelihood of short-circuiting or
rupture. By comparison to standard alkaline batteries, most lithium-ion
batteries manufactured today contain a flammable electrolyte and have a
very high energy density. A lithium battery is susceptible to thermal
runaway, a chain reaction leading to self-heating and release of its
stored energy.
The increasing manifestation of these risks, inside and outside of
transportation, drives the need for stricter safety standards. Once
used primarily in industrial and military applications, lithium
batteries are now found in a variety of popular consumer items,
including cameras, laptop 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 the corresponding proliferation of
battery designs, manufacturers, and applications.
Like other products that contain hazardous materials, lithium
batteries can be transported safely, provided appropriate precautions
are taken in design, packaging, handling, and emergency response. The
rule adopted in this proceeding strengthens the current regulatory
framework by imposing stricter and more effective safeguards, including
design testing, packaging, and hazard communication measures, for
certain types and sizes of lithium batteries in certain transportation
contexts.
These adjustments are risk-based and data-driven, reflecting
incident reports, laboratory testing, and other information that
together promote better understanding of risks and
[[Page 44931]]
consequences in relationship to specific risk variables:
Battery technology. In the rulemaking proposals that gave rise to
the final rule, we differentiated between ``primary'' (or non-
rechargeable) and ``secondary'' (or rechargeable) lithium batteries.
This distinction, which is well established in international standards,
is related to the battery composition. ``Primary'' (non-rechargeable)
lithium batteries generally contain lithium metal, while most
``secondary'' (rechargeable) lithium batteries contain an ionic form of
lithium (lithium-ion). The technology used in lithium batteries has a
significant impact on the battery application and, all other factors
being equal, on corresponding transportation risks.
For purposes of this rulemaking, we use the term ``primary lithium
battery'' to refer to a non-rechargeable battery and the term
``secondary lithium battery'' to refer to a rechargeable battery. In
most cases, this distinction will differentiate between different
battery technologies. Although we understand that the distinction is
being called into question by technological and market developments, we
believe the regulatory definitions continue to have merit at this time,
recognizing that further regulatory refinement will be necessary to
respond to further technological developments and our growing
understanding of transportation risks.
Transportation mode. The consequence of a lithium battery-related
fire depends largely on the transportation context. In weighing the
costs and benefits of regulation, we consider the mode of
transportation and impose the strictest standards in air
transportation, particularly passenger service. Although most battery-
related fires have caused only property damage or delays in ground
transportation, even a small fire aboard an in-flight aircraft
threatens catastrophic consequences.
Battery size. The degree of risk posed by lithium batteries is
largely a function of the amount of stored energy, which is in turn a
function of the number and relative lithium content of battery cells.
These size standards are the accepted categorization of lithium
batteries under the United Nations Recommendations and international
regulatory bodies such as the International Civil Aviation Organization
(ICAO). A cell is a single electro-chemical unit; a battery consists of
one or more connected cells. The size of a cell or battery is
determined by its lithium content, as summarized in the following
chart:
Table 1.--Battery and Cell Category Definitions
----------------------------------------------------------------------------------------------------------------
Small (no more than) Medium (between) Large (more than)
----------------------------------------------------------------------------------------------------------------
Cells:
Primary...................... 1 g Li. 1 g and 5 g Li. 5 g Li.
Secondary.................... 1.5 g ELC.* 1.5 g and 5 g ELC. 5 g ELC.
Batteries:
Primary...................... 2 g Li. 2 g and 25 g Li. 25 g Li.
Secondary.................... 8 g ELC. 8 g and 25 g ELC. 25 g ELC.
----------------------------------------------------------------------------------------------------------------
* ELC (Equivalent Lithium Content).
Quantity. The number of lithium batteries in a shipment can also
affect the severity of an incident. For example, several thousand small
lithium batteries consolidated together present a higher potential risk
than a shipment of a single lithium battery, because one burning
primary lithium or secondary lithium battery can produce enough heat
and energy to propagate to other lithium batteries in the same
overpack, freight container, or cargo hold.
Product Design, Package Integrity, and Transportation Handling. The
risks that a lithium battery will short-circuit or rupture are a
function of design, packaging, and handling. As with many hazardous
materials, the risk of a transportation incident involving lithium
batteries can be reduced by strengthening packaging and reducing the
likelihood and impact of rough handling. The amendments adopted here
include tightened testing standards to ensure that batteries that pose
the greatest risk in transportation are designed to withstand normal
conditions of transportation and packaged to minimize risks of
mishandling or damage in transit.
Emergency Response. In developing the final rule, we paid special
attention to the potential consequences of lithium battery-related
fires. Although we take fire hazards seriously in all modes, we must be
particularly concerned about the possibility of an uncontrolled fire
aboard an aircraft.
To evaluate the hazards posed by primary lithium batteries in air
transportation, FAA's Technical Center initiated a series of tests to
assess their flammability characteristics. FAA published a technical
report detailing the results of the tests in June 2004 (DOT/FAAIARI-04/
26). The battery tests were designed to test the batteries in an
environment that is similar to actual conditions possible in a
suppressed cargo fire. The FAA tests showed that the packaging
materials delayed the ignition of the batteries, but eventually added
to the fire loading and contributed to the 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, which can be
found in the docket for this rulemaking, concluded that the presence of
a shipment of primary lithium batteries can significantly increase the
severity of an in-flight cargo compartment fire.
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.
FAA also conducted a series of test to determine the flammability
of secondary lithium batteries and cells and issued a final report
detailing the results in September 2006 (DOT/FAA/AR-06/38). This report
can be found in the docket for this rulemaking. Flames produced by the
batteries are hot enough to cause adjacent cells to vent and ignite.
The report also concluded 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.
[[Page 44932]]
B. LAX Incident and NTSB Recommendations
The notices of proposed rulemaking (NPRMs) in these proceedings
both tied the need for tighter safety standards to an April 28, 1999
fire at Los Angeles International Airport (LAX). The LAX incident
involved a shipment of two pallets of primary lithium batteries that
caught fire and burned after being off-loaded from a Northwest Airlines
flight originating in Osaka, Japan. The two pallets involved in the
fire contained 120,000 small primary lithium batteries that were
excepted from domestic and international regulatory requirements
applicable to hazard communication (i.e., marking, labeling, and
shipping papers) and packaging. The packages on the pallets were
damaged during handling at LAX, and this damage is believed to have
initiated the subsequent fire. Northwest ground employees initially
fought the fire with portable fire extinguishers and a fire hose. Each
time the fire appeared to be extinguished, it flared up again.
The LAX incident illustrated the unique transportation safety
problems posed by lithium batteries, including the risk of rough
handling in transit, resulting short-circuiting, thermal runaway,
ignition of adjacent batteries, and the ineffectiveness of halon as an
extinguishing agent.
The NTSB conducted a full investigation of the LAX incident. The
NTSB's final report, issued November 16, 1999, included five safety
recommendations addressed to RSPA:
A-99-80: Together with the Federal Aviation Administration,
evaluate the fire hazards posed by lithium batteries in an air
transportation environment and require that appropriate safety
measures be taken to protect aircraft and occupants. The evaluation
should consider the testing requirements for lithium batteries in
the United Nation's Transport of Dangerous Goods Manual of Tests and
Criteria, the involvement of packages containing large quantities of
tightly packed batteries in a cargo compartment fire, and the
possible exposure of batteries to rough handling in an air
transportation environment, including being or abraded open.
A-99-81: Pending completion of your evaluation of the fire
hazards posed by lithium batteries in an air transportation
environment, prohibit the transportation of lithium batteries on
passenger-carrying aircraft.
A-99-82: Require that packages containing lithium batteries be
identified as hazardous materials, including appropriate marking and
labeling of the packages and proper identification in shipping
documents, when transported on aircraft.
A-99-83: Pending completion of your evaluation of the fire
hazards posed by lithium batteries in an air transportation
environment, notify the International Civil Aviation Organization's
Dangerous Goods Panel (ICAO DGP) about the circumstances of the fire
in the Northwest Airlines cargo facility at Los Angeles
International Airport on April 28, 1999. Also pending completion of
your evaluation of the fire hazards posed by lithium batteries in an
air transportation environment, initiate action through the
Dangerous Goods Panel to revise the Technical Instructions for the
Safe Transportation of Dangerous Goods by Air to prohibit the
transportation of lithium batteries on passenger-carrying aircraft.
A-99-84: Initiate action through the Dangerous Goods Panel to
revise the Technical Instructions for the Safe Transportation of
Dangerous Goods by Air to require that packages containing lithium
batteries be identified as hazardous materials when transported on
aircraft.
C. Additional Incidents
The April 1999 LAX incident was not an isolated event; numerous
incidents involving lithium batteries have been reported in the
intervening years, most in the period since we initiated these
rulemaking proceedings. Fortunately, none of the aviation-related
incidents has resulted in death or serious injury; most of the
incidents occurred either before or after flight. Some of these
additional incidents are described below:
On November 3, 2000, in Portland, Oregon, a small primary
lithium battery short-circuited, causing a small fire and rupture of
the battery. The primary lithium battery burned through its inner
packaging and charred an adjacent package. The short-circuited battery
had long flexible protruding positive and negative terminals.
On April 12, 2002, small primary lithium batteries
packaged in a fiberboard box ignited during handling in Indianapolis,
Indiana.
On August 9, 2002, a small secondary lithium battery in an
electronic handheld device short-circuited, causing surrounding packing
materials (bubble wrap) to catch fire.
On August 7, 2004, large prototype secondary lithium
batteries shipped under a competent authority approval from California
to Europe apparently started a fire in a unit load device (ULD) during
loading for a transatlantic flight (Memphis-Paris). The ULD and many
other packages in it were damaged or destroyed by fire.
On February 11, 2005, an undeclared package containing 18
small primary lithium batteries caught fire during unloading in White
Bear Lake, Minnesota. Cargo handlers reported hearing a ``pop'' sound
and then seeing the box ``lifted'' off the conveyor belt by the force.
The package had been flown from Los Angeles to Minneapolis and was to
be trucked to Clear Lake, Wisconsin.
On or about June 29, 2005, the contents of a ULD caught
fire onboard a flight from Shanghai, China to the United States.
Airline ground personnel discovered evidence of the fire after the
plane landed safely in Ontario, California. A package containing a
secondary lithium battery pack was identified as the source of the
fire.
On March 3, 2006, a U.S.-bound package containing
secondary lithium batteries ignited in an outbound air transport
station in Shenzhen, China.
On July 17, 2006, a package with no marking or labeling
containing 122 secondary lithium batteries of various sizes caught fire
while being held in bond for customs clearance in Korea, after
transportation by air from Vienna, Austria.
On February 10, 2007, shortly after takeoff of a
commercial flight, a fire ignited in a passenger bag stowed in an
overhead bin. Although the fire is still under investigation,
preliminary reports indicate both small lithium ion and small primary
batteries were involved in the incident.
On March 1, 2007, a package sent by an eBay vendor via the
United States Postal Service, containing 24 primary lithium batteries,
caught fire at the Sydney Australia Mail Gateway Facility. The package
had been transported to Sydney from Los Angeles on a passenger
aircraft.
D. Recalls
In August and October of 2006 and March of 2007, several leading
computer manufacturers recalled nearly 10 million notebook computer
secondary lithium batteries based on manufacturing defects. The
batteries in the 2006 recalls, manufactured by Sony Energy Devices
Corporation, were voluntarily recalled in coordination with the U.S.
Consumer Product Safety Commission (CPSC). According to CPSC reports,
these defective secondary lithium batteries can spontaneously overheat
and cause fires. The batteries in the March 2007 voluntary recall were
manufactured by Sanyo Electric Company, Ltd. and designed to be
extended-life batteries for Lenovo ThinkPad notebook computers.
According to CPSC, the Sanyo lithium-ion batteries pose a fire hazard
if the battery is struck forcefully on the corner (e.g., a direct fall
to the ground).
E. Regulatory Actions To Address Transportation Risks Posed by Lithium
Batteries of All Types
As we explained above, the regulatory actions we are taking today
are part of
[[Page 44933]]
a broader and ongoing effort to address the transportation risks posed
by lithium batteries. Even as the measures adopted in this final rule
progressed through the rulemaking process, more data surfaced
concerning lithium battery risks. These developments have lent further
support to the proposed approaches and spurred additional proposals for
regulatory and non-regulatory change.
Inevitably, further technological advances, new product
development, and market shifts will drive continued change in risks and
benefits. We are committed to addressing those changes in a manner that
safeguards our transportation systems and the traveling public, while
promoting positive technological advances and minimizing regulatory
costs and burdens for consumers and industry, including small
businesses. To that end, we will continue to collect and analyze data
concerning the risks posed by batteries and battery-powered devices of
all types. We are committed to working with all affected stakeholders
to identify risks and develop solutions, especially including non-
regulatory solutions. In keeping with DOT regulatory policies and
procedures, we will analyze the effectiveness of our rules over time,
with a commitment to updating or eliminating any regulations that
become unnecessary or unduly costly with changes in technology or
transportation operations.
Recognizing that the risk and benefit profile is and has been
dynamic, the final rule adopted today is best understood against the
backdrop of existing and ongoing regulatory actions, including the
separate rulemaking proposals that gave rise to this consolidated
proceeding. By way of background, we begin with a discussion of
regulatory requirements in place at the time of the LAX incident and
NTSB recommendations.
1. Regulatory Requirements Prior to Adoption of this Final Rule.
Under the Hazardous Materials Regulations (HMR, 49 CFR Parts 171-180),
most lithium batteries and cells of all types and equipment containing
or packed with lithium batteries or cells of all types are regulated as
a Class 9 (Miscellaneous) hazardous material. A Class 9 material is one
that presents a hazard during transportation, but that does not meet
the definition of any other hazard class. The HMR require lithium
batteries to be tested in accordance with a series of tests in Section
38.3 of the UN Test Manual. The tests are designed to ensure that a
battery design type is capable of withstanding conditions encountered
in transportation. The tests include: (1) Test T.1 Altitude simulation,
(2) Test T.2 Thermal test, (3) Test T.3 Vibration, (4) Test T.4 Shock,
(5) Test T.5 External short circuit, (6) Test T.6 Impact, (7) Test T.7
Overcharge, and (8) Test T.8 Forced discharge. In addition, lithium
batteries and cells must be: (1) Equipped with an effective means of
preventing short circuits; (2) packaged in UN standard packagings
meeting the Packing Group II performance level; and (3) identified on
shipping papers and by package markings and hazard warning labels. See
Sec. 173.185(e).
Section 173.185 of the HMR contains exceptions from the packaging
and hazard communication requirements of the HMR for small and medium-
size lithium batteries and cells. Small and medium-size lithium
batteries and cells must be packaged in strong outer packagings, and in
a manner to protect against short circuits, but UN standard packagings
are not required, and the requirements in Part 172 of the HMR
applicable to shipping papers, marking, labeling, and emergency
response information do not apply. Small lithium batteries and cells
are also excepted from testing in accordance with the UN Test Manual.
2. Changes to International Regulations. Acting on a proposal by
the United States, in December 2000, the United Nations Sub-Committee
of Experts on the Transport of Dangerous Goods revised the UN
Recommendations to: (1) Revise the lithium battery testing requirements
in the UN Test Manual to provide more precise descriptions of the
testing procedures and criteria and require more extensive testing to
measure temperature, altitude, vibration, shock, impact, overcharge,
forced discharge and intentional short; (2) eliminate an exception that
permitted medium-size lithium batteries to be transported as
unregulated material; (3) require testing of small lithium batteries to
ensure they can withstand conditions encountered during transportation;
(4) impose hazard communication and packaging requirements for small
lithium batteries; and (5) provide exceptions for passengers and crew
to carry lithium battery-powered equipment aboard an aircraft. These
revisions were subsequently included in the 2003-2004 ICAO Technical
Instructions. As a result of these revisions to the international
regulations, NTSB classified recommendations A-99-83 and -84 as
``Closed-Acceptable Alternate Action.''
3. HM-224C Rulemaking. On April 2, 2002, we issued an NPRM (HM-
224C; 67 FR 15510) proposing changes to current HMR requirements for
the transport of lithium batteries consistent with the changes adopted
in the UN Recommendations and ICAO Technical Instructions. These
amendments were intended to improve the safety of lithium batteries in
transportation and harmonize U.S. and international standards.
Specifically, we proposed to: (1) Adopt the revised lithium battery
test scheme in the UN Test Manual; (2) eliminate the exception for
medium-size lithium batteries; (3) require testing of small lithium
batteries; (4) impose hazard communication and packaging requirements
for small lithium batteries; and (5) provide exceptions for passengers
and crew to carry lithium battery-powered equipment aboard an aircraft.
4. HM-224E Rulemaking. Based in part on the June 2004 FAA technical
report concerning the flammability characteristics of primary lithium
batteries, discussed earlier in this preamble, on December 15, 2004,
PHMSA published an interim final rule (IFR; Docket HM-224E; 69 FR
75208) prohibiting the shipment of primary lithium batteries as cargo
on passenger-carrying aircraft. The IFR prohibits the offering for
transportation and transportation in commerce of primary lithium
batteries and cells, and equipment containing or packed with large
primary lithium batteries (i.e., batteries containing greater than 25
grams of lithium) as cargo aboard passenger-carrying aircraft. In
addition, equipment packed with or containing small or medium-size
primary lithium batteries (i.e., batteries containing 25 grams or less
of lithium) must be transported in accordance with Special Provisions
A101 or A102. Under these Special Provisions, a primary lithium battery
or cell packed with or contained in equipment may not exceed a net
weight of 5 kg (11 pounds). Finally, the outside of each 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.''
5. Additional Recent Amendments to International Regulations. At
the international level, interest in the safe transportation of lithium
batteries continues to grow as the number of lithium battery incidents
(including non-transportation-related fires and product recalls)
increases. The following activities and discussions of the ICAO
Dangerous Goods Panel and the UN Sub-Committee of Experts on the
Transport of Dangerous Goods signal further safety enhancements to the
[[Page 44934]]
ICAO Technical Instructions and UN Recommendations:
At its 2006 meeting (October 25--November 3, 2006), the ICAO
Dangerous Goods Panel further considered amendments to the ICAO
Technical Instructions concerning lithium battery safety. Based on a
recommendation by the Panel, the ICAO Air Navigation Commission agreed
to issue an addendum to the ICAO 2007-2008 Technical Instructions to
prohibit the transport of lithium batteries that have the potential of
producing a dangerous evolution of heat, fire, or short circuit as a
result of being damaged or defective (e.g., those being returned to the
manufacturer for safety reasons).
In December 2006, the United Nations Committee of Experts on the
Transport of Dangerous Goods, based in part on U.S. proposals, revised
Special Provision 188 (SP 188) of the UN Recommendations to address the
risk that lithium cells and batteries currently excepted from
regulation may short circuit in transportation. These revisions (1)
require individual packaging of lithium cells or batteries, (2) require
protection against short circuits, accidental activation, and outer
packaging of lithium battery-powered equipment; (3) eliminate the
current exception from marking, documentation, drop testing, and gross
weight limit for packages containing less than 24 lithium cells or 12
lithium batteries, and (4) standardize marking requirements for lithium
batteries. Additionally, the UN Recommendations were amended to include
separate dangerous goods list entries for metallic lithium and lithium
ion batteries to assist shippers, transport personnel, and carriers in
complying with the applicable regulations.
PHMSA will carefully review any amendments to the international
regulation and will consider further rulemaking action based on a
robust notice and comment process. As previously stated, we are
committed to working with all affected stakeholders to evaluate risks
and develop potential solutions, especially non-regulatory solutions.
II. Provisions of this Final Rule
The continuing incidents and recalls and the results of the FAA
testing discussed above reinforce the actions we are taking in this
final rule and the need for ongoing analysis of the transportation
risks presented by lithium batteries. As we explain in the following
sections, the provisions of this final rule will provide additional
protection against all lithium battery-related fires, regardless of
their source, by enhancing hazard communication and emergency response
and limiting transportation options based on the availability of
effective fire suppression technology. This final rule addresses the
proposals advanced in 2002 under Docket HM-224C and the provisions of
the 2004 IFR published under Docket HM-224E. The following tables are
provided for your convenience:
------------------------------------------------------------------------
-------------------------------------------------------------------------
As a result of HM-224E IFR the following requirements are already in
effect:
Primary lithium batteries are forbidden for transport
aboard passenger aircraft.
Primary lithium batteries transported by any means other
than passenger aircraft must be marked ``PRIMARY LITHIUM BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT''.
------------------------------------------------------------------------
------------------------------------------------------------------------
-------------------------------------------------------------------------
The following provision pertaining to lithium batteries is unchanged by
this combined final rule:
Requirements for large lithium batteries (> 25 grams).
------------------------------------------------------------------------
------------------------------------------------------------------------
-------------------------------------------------------------------------
The following provisions have been modified as a result of this combined
final rule:
Section 175.10(a)(17) in that the equipment containing
batteries and spares must be in carry-on luggage.
------------------------------------------------------------------------
------------------------------------------------------------------------
-------------------------------------------------------------------------
The following new requirements will take effect as a result of this
combined final rule:
The exception for medium batteries is eliminated by
aircraft and vessel.
Small battery exception from UN testing is eliminated.
A new marking paperwork requirement is added for medium
batteries shipped as excepted via highway and rail transportation.
A new marking paperwork requirement is added for small
batteries that are shipped excepted.
------------------------------------------------------------------------
A. Docket HM-224C
1. Background: Proposed Requirements
As mentioned above, our April 2, 2002, NPRM (67 FR 15510) proposed
to: (1) Adopt the revised lithium battery test scheme in the UN Test
Manual; (2) eliminate the current exceptions for medium-size lithium
batteries of all types; (3) require testing of small lithium batteries
of all types; (4) impose hazard communication and packaging
requirements for small lithium batteries of all types; and (5) provide
exceptions for passengers and crew to carry lithium battery-powered
equipment aboard an aircraft.
On June 15, 2005, we published an Initial Regulatory Flexibility
Analysis (IRFA) (70 FR 34729) and requested comments on the potential
small business impacts of the proposals in our April 2, 2002 NPRM. The
issues raised by commenters to the IRFA are addressed in this document
and the final regulatory flexibility analysis (FRFA), which can be
found in the public docket for this rulemaking.
2. Discussion of Comments to HM-224C
PHMSA received 22 written comments on the NPRM and the IRFA in this
proceeding. The following companies, organizations, and individuals
submitted comments, which are discussed in detail in this section:
Electronic Industries Alliance (EIA; RSPA-2002-11989-3 and 16)
[[Page 44935]]
David Linden (Linden; RSPA-2002-11989-4)
Intel Corporation (Intel; RSPA-2002-11989-5)
National Electrical Manufacturers Association (NEMA; RSPA-2002-11989-6)
FEDCO Electronics, Inc. (FEDCO; RSPA-2002-11989-7, 12, 18, 24)
Argonne National Laboratory (ANL; RSPA-2002-11989-8)
National Transportation Safety Board (NTSB; RSPA-2002-11989-9)
Portable Rechargeable Battery Association (PRBA; RSPA-2002-11989-10,
19, 25)
Air Line Pilots Association International, Inc. (ALPA; RSPA-2002-11989-
11)
Air Transport Association of America (ATA; RSPA-2002-11989-13)
Air Line Pilots Association, International (ALPA; RSPA-2002-11989-14)
Mark S. Ditmore (Ditmore; RSPA-2002-11989-15)
Valance Technology, Inc. (Valance; RSPA-2002-11989-20)
SION Power (SION; RSPA-2002-11989-22)
Cramer Law Group on behalf of SkyBitz Inc., (SkyBitz; RSPA-2002-11989-
23)
ACR Electronic Inc (ACR; RSPA-2002-11989-26)
David Hadfield (RSPA-2002-11989-27)
a. Elimination of the Exception for Medium-size Lithium Cells and
Batteries. In the NPRM, we proposed to eliminate the exception from
most HMR requirements for medium-size lithium cells (including when
packed or contained in equipment) containing 5 grams or less of lithium
or lithium alloy and batteries (including when packed or contained in
equipment) containing not more than 25 grams of lithium or lithium
alloy per battery if they pass tests specified in Section 38.3 of the
UN Test Manual. With the elimination of this exception, medium-size
lithium batteries and cells of all types would have to be transported
as Class 9 hazardous materials and conform to all associated hazard
communication and packaging requirements. This exception has already
been removed from the IMDG Code and the ICAO Technical Instructions,
effectively requiring these lithium batteries to be transported as
Class 9 materials when transported internationally by aircraft or
vessel and in regulations applicable in other countries and regions
throughout the world (e.g. European Road and Rail Agreements (ADR/RID).
Several commenters urge PHMSA to retain this exception for domestic
surface transportation. The Portable Rechargeable Battery Association
(PRBA) states that retention of the exception for medium-size lithium
batteries of all types will have the largest positive effect on
reducing the cost impacts on small businesses and recommends PHMSA
retain the exception for lithium-ion batteries containing no more than
16 grams of equivalent lithium content shipped at a state of charge of
no more than 50%. PRBA states testing data clearly show that the degree
to which a lithium-ion cell reacts to abuse is significantly affected
by state of charge. PRBA also suggests we should consider retaining the
exception for medium-size lithium batteries when the batteries are
contained in or packed with equipment and shipped by ground only. PRBA
states this exception would substantially reduce costs associated with
shipping products as Class 9 materials and cover a significant number
of products shipped by small businesses.
In response to the proposal to eliminate the exception of medium
sized batteries, Valence Technology, Inc. states PHMSA did not provide
sufficient justification for eliminating the exception. SION Power
asserts eliminating the exception for medium-size lithium batteries
will adversely affect its commercial development and suggests that, in
the case of primary lithium batteries, eliminating the exception will
limit the size of batteries using smaller cells. SkyBitz favors scaling
back the exception for medium-size lithium batteries by limiting the
number of cells or batteries per package, rather than eliminating the
exception. ACR Electronics, Inc. states PHMSA should retain the
exception for medium-size lithium batteries provided they are contained
in strong, waterproof safety equipment.
We continue to believe that significant safety benefits can be
achieved by requiring medium-size lithium batteries and cells of all
types to be shipped with appropriate hazard communication information.
As recent incidents demonstrate, the hazards associated with these
shipments should be communicated to transport workers and emergency
response personnel to ensure safe handling in transportation and
appropriate incident response actions. We are not convinced that
requiring medium-size batteries to be transported with appropriate
hazard communication information will impede the development or
marketing of these batteries.
However, the comments raise legitimate concerns about the costs
that may be incurred by companies, particularly small businesses, if we
were to remove the exception in its entirety. Therefore, in this final
rule we are eliminating the exception for medium-size lithium batteries
and cells of all types transported by aircraft or vessel, but retaining
a limited exception for ground transportation (i.e., motor vehicle and
rail car). This action improves overall safety by reducing the risk of
lithium battery-related incidents in the transport modes that are
inherently most vulnerable to high consequence accidents, while
minimizing the costs for businesses that ship lithium batteries by
motor carrier or rail.
For medium-size lithium batteries and cells transported by motor
carrier or rail, we are imposing more limited, less costly hazard
communication requirements. Rather than requiring compliance with the
hazard communication and packaging requirements applicable to Class 9
materials, in this final rule, we are adopting, with some revisions, a
hazard communication and packaging program developed by industry. Under
this program, 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 in the event that the
package is damaged; (2) be accompanied by a document indicating the
package contains lithium batteries and special procedures must be
followed in the event that the package is 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) we are requiring
that the package be marked to indicate that they may not be transported
by aircraft or vessel. In this final rule, the provisions applicable to
the transportation of medium-size lithium batteries of all types are
relocated from Sec. 173.185 to Special Provision 189.
b. Revisions to the Exceptions for Small Batteries. Section
173.185(b) of the HMR provides significant exceptions from packaging
and hazard communication requirements for small lithium cells and
batteries. In addition, small lithium cells and batteries are not
subject to the UN testing requirements. In the 2002 NPRM, we proposed
to require testing of small lithium batteries and cells of all types in
accordance with the UN Test Manual. We also proposed to require each
package containing more than 24 lithium cells or 12 lithium batteries
to be: (1) Marked to indicate that it contains lithium batteries and
[[Page 44936]]
that special procedures must be followed in the event that the package
is damaged; (2) accompanied by a document indicating that the package
contains lithium batteries and that special procedures must be followed
in the event that the package is 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.
The NTSB supports the proposal to require all lithium batteries,
including small lithium batteries and cells currently excepted from the
HMR, to be tested in accordance with the revised UN Test Manual, and to
require packages containing more than 12 small lithium batteries or 24
cells to be capable of passing a drop test. The NTSB suggests the
proposed rule could be improved by requiring a package containing 12
small lithium batteries or 24 lithium cells to be classed as a Class 9
material, and subject to the labeling and shipping paper requirements
of the HMR. The Airline Pilots Association International (ALPA) states
it agrees new testing requirements are needed.
The Air Transport Association of America (ATA) supports the
proposals in the April 2002 NPRM, but notes a number of its members are
particularly concerned about the retention of the exception for small
lithium batteries as proposed in the NPRM. ATA states such provisions
will be confusing to transport workers involved in accepting, sorting
and loading packages in air transportation. According to ATA, air
carriers are concerned that an indication on a package that it contains
``lithium batteries'' may cause packages to be removed from the system
for clarification or possible rejection. The removal of a package from
the system could occur more than once during the transportation cycle.
ATA recommends PHMSA either regulate or deregulate such materials
(with no exceptions) and not ``band-aid'' a situation that will present
problems in transportation. ATA also states the safety risks associated
with the transportation of small lithium batteries and cells are
addressed if packages are ``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.''
FEDCO states that, including new batteries in active design, it has
about twenty 1- and 2-cell primary lithium batteries and 13 new
lithium-ion packs containing from 2 to 12 cylindrical cells. FEDCO
estimates the cost of having an independent testing facility, such as
Underwriters Laboratories, perform the proposed tests would be about
$20,000 per battery design. In addition, FEDCO states the testing of
its existing 450 primary lithium and secondary lithium battery designs
will cost an additional $9 million. FEDCO proposes an exception from
the proposed tests for batteries and battery packs consisting of cells
that have passed the UN tests; the exception would permit the batteries
and battery packs to be transported without further testing.
FEDCO also makes the following recommendations to ease the
financial impact on small business:
(1) Except single-cell and two-cell primary lithium batteries from
the UN Test Manual provided that the cells in the batteries have
already passed those UN tests;
(2) Provide manufacturers with a four-year ``grandfather'' period
in which to comply with the new testing requirements for existing
battery designs; and
(3) Extend the exception in the UN Recommendations for small
production runs of cells or batteries from 100 to 1,000 batteries.
SION Power recommends the following exceptions for small lithium
batteries and cells: (1) Except single cell batteries from testing if
the cells have already passed the UN tests; and (2) except prototype or
small production runs of cells or batteries, defined as no more than
200 cells or 50 batteries, from the UN tests. As a precondition to
these exceptions, SION Power suggests requiring that the base cell and
battery pack pass a 55 [deg]C short circuit test. SION Power further
recommends shipment of prototype or small production runs as Class 9
materials.
PRBA requests the following changes to the NPRM:
(1) Provide a four-year grandfather clause for testing small cells
and batteries;
(2) Adopt a 1,000-unit small production run exception from UN
testing for certain small primary lithium and lithium-ion cells and
batteries; and
(3) Clarify that single-cell batteries do not require UN testing.
PRBA, FEDCO, SION, Valence Technology, ACR, SkyBitz Inc, EIA, and
Intel Corporation all suggest an exception, consistent with the
international regulations, from marking, packaging, and shipping paper
requirements for equipment containing small lithium batteries and
cells.
The UN Test Manual's lithium battery test methods are designed to
measure the capability of the cells or batteries to maintain their
construction integrity against shorts in normal transport environments.
Parameters considered include: Temperature, altitude, vibration, shock,
impact, overcharge, forced discharge, and intentional short. The test
criteria were developed to minimize the risk of lithium cells or
batteries becoming an ignition (fire) source during transport. Once
ignited, a fire may spread to other lithium batteries in the package.
To ensure that small lithium batteries and cells will be transported in
commerce only if they are able to withstand normal transport
conditions, in this final rule, we are revising the HMR to subject
small lithium batteries and cells to the test methods in the UN Test
Manual.
Information from an independent testing laboratory, which is
currently performing these tests, suggests the cost for performing the
tests is $6,000 per lithium battery design, and not $20,000 or more as
stated by some commenters. (Subsequent to the completion of our
analysis, some testing laboratories have indicated to us that costs of
performing the UN Tests have decreased to about $4,000 to $3,000).
Further, not all lithium batteries and cells must be tested. In
accordance with the UN Test Manual, section 38.3.2.1, only lithium
batteries and cells that differ from a tested type by a change of more
than 0.1 gram or more than 20% by mass, whichever is greater, to the
cathode, to the anode, or to the electrolyte, must be tested.
The UN Test Manual states that a single cell lithium battery should
be considered a cell and not a battery, regardless of whether the unit
is termed a ``battery'' or a ``single cell battery.'' Thus, a single
cell lithium battery consisting of a cell that has passed the
appropriate UN tests is a cell and need not be re-tested even if the
components of the battery, other than the cell contained therein, are a
new design type. Lithium batteries consisting of more than one cell are
subject to the tests in the UN Test Manual.
We agree with those commenters who ask us to adopt a small-
production-run exception for motor vehicle, rail and vessel
transportation similar to the one in Special Provision 310 of the UN
Recommendations for small lithium batteries and cells. Thus, we are
adopting the following small-production-run exception for small lithium
batteries and cells transported by motor vehicle, rail and vessel:
(1) The cells and batteries must be transported in an outer
packaging that is a metal, plastic, or plywood drum; or metal, plastic,
or wooden box meeting
[[Page 44937]]
the criteria for Packing Group I packagings; and
(2) Each cell and battery must be individually packed in an inner
packaging inside the outer packaging and surrounded by non-combustible,
non-conductive cushioning material.
Consistent with the international standards, the exception will
apply to production runs of up to 100 lithium batteries or cells of all
types. This exception addresses the need to increase safety standards
for these lithium batteries, while not imposing undue costs on the
regulated community.
We agree with commenters who request an appropriate transition
period for lithium battery manufacturers to test lithium battery
designs that are currently on the market. Therefore, in this final
rule, we are adopting a two-year compliance date for the testing of
small lithium batteries and cells.
PHMSA agrees with the commenters who requested an exception from
the marking, packaging and shipping paper requirements for equipment
containing small lithium batteries and cells. We are adopting the
exception in this final rule.
We continue to believe that the hazards associated with small
lithium batteries should be communicated to transport workers so that
they can handle packages appropriately. Therefore, in this final rule
we are adopting the communication and packaging program developed by
the industry, and described above, for small lithium batteries.
In summary, in this final rule, PHMSA is amending the HMR to
require that small lithium batteries be tested in accordance with the
UN Test Manual. In addition, we have adopted the proposed size
standards for small lithium batteries thus eliminating the distinction
between liquid and solid cathode lithium batteries. Unless contained in
equipment, each package containing more than 24 lithium cells or 12
lithium batteries must also be:
(1) Marked to indicate it contains lithium batteries and special
procedures must be followed in the event that the package is damaged;
(2) Accompanied by a document indicating the package contains
lithium batteries and special procedures must be followed in the event
that the package is 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.
In accordance with Sec. 173.21(c), electrical devices likely to
create sparks or generate a dangerous quantity of heat are forbidden
for transportation unless packaged in a manner to preclude such an
occurrence. In this final rule, we are adding language to clarify that
the restrictions in Sec. 173.21 of the HMR apply to lithium batteries
of all types.
We note that adoption of hazard communication requirements for
shipments of lithium batteries does not ``classify'' or ``declassify''
these materials as hazardous materials. Lithium batteries, regardless
of their size (i.e., small, medium and large), are hazardous materials
and are subject to applicable requirements in the HMR.
c. Exceptions for Aircraft Passengers and Crew. Consistent with
amendments to the ICAO Technical Instructions, in the April 2002 NPRM
we proposed to allow airline passengers and crew to carry consumer
electronic devices containing lithium batteries. In addition, we
proposed to allow passengers and crew to carry spare lithium batteries
for such devices subject to limits as to lithium content, the number of
batteries, and the type of lithium batteries. In the IFR adopted
December 15, 2004 (Docket HM-224E), had we not amended Sec. 175.10,
airline passengers and crew would have been forbidden to carry consumer
electronic devices powered by primary lithium batteries. As amended in
the IFR, lithium batteries contained in equipment and spares of all
types (primary and secondary) are authorized in carry-on or checked
baggage. In this final rule, we are adopting the amendments proposed in
the April 2002 NPRM to permit carriage by passengers and crew of
lithium battery-powered consumer electronic devices and associated
spare lithium batteries. We are also clarifying in this final rule that
the proposed battery size limitation for spare batteries also applies
to the batteries installed in the device. These amendments also state
that spare lithium batteries may only be carried in carry-on luggage
and that they must be individually protected against short circuits.
Unprotected batteries are susceptible to short circuits when exposed to
items typically carried by passengers and crew members, such as car
keys and coins. We recommend that passengers protect spare batteries by
placing them in protective cases or individual zip-top bags or placing
non-conductive tape across exposed terminals. We note that ICAO is
considering eliminating the passenger aircraft exception for medium-
size (8-25 grams aggregate equivalent lithium content) batteries. If
adopted by ICAO, we will consider adopting this in a future rule.
d. Editorial Changes. In the 2002 NPRM, we proposed to make several
editorial changes to Sec. 173.185 to help users better understand
their obligations. First, we proposed to move the definition of
``equivalent lithium content'' and ``lithium content'' from former
Sec. 173.185(a) to Sec. 171.8 and eliminate as unnecessary the first
sentence of former Sec. 173.185(a). Also, as proposed, we have removed
the grandfather provision that was previously provided under Sec.
173.185(d).
PRBA requested revisions to the definition of ``equivalent lithium
content'' to provide that a lithium polymer battery based on lithium-
ion chemistry or technology is regulated as a lithium-ion battery for
purposes of determining equivalent lithium content. PRBA notes that the
UN Test Manual definition for a lithium-ion cell or battery states ``a
lithium polymer cell or battery that uses the lithium-ion chemistries,
as described herein, is regulated as a lithium-ion cell or battery.''
Based on the comment from PRBA on the definition of ``equivalent
lithium content,'' in this final rule, we are adding a definition for
``aggregate lithium content.'' Except for some minor differences, the
other editorial amendments are adopted as proposed. In addition, we
have made editorial amendments to Sec. Sec. 171.11, 171.12, and
171.12a to address changes in regulatory citations.
We have also moved the provisions applicable to small lithium
batteries from Sec. 173.185 to Special Provision 188 for consistency
with international regulations. We have also made some editorial
changes to the exception related to the prohibition of primary lithium
batteries aboard passenger aircraft in order to clarify the
requirements. We also clarified the packaging requirements for lithium
batteries packed with equipment. We inadvertently proposed to remove
the requirement that lithium batteries or cells that are packed with
the equipment are required to be packaged in specification packaging.
e. Shipping Lithium Batteries for Recycling. PRBA filed a petition
for rulemaking on February 8, 2002 (P-1423), asking for an amendment to
the HMR requirements for shipping spent lithium batteries for
recycling. Currently, under the exception in Sec. 173.185(h), lithium
cells and batteries ``for disposal'' may be offered for transportation
or transported to a permitted storage facility and disposal site by
motor vehicle when they are equipped with an effective means of
preventing external short circuits and
[[Page 44938]]
packed in a strong outer packaging conforming to the requirements of
Sec. Sec. 173.24 and 173.24a. Lithium batteries transported under this
provision are excepted from the performance packaging requirements of
Part 178 of the HMR.
Section 173.185(h) does not specifically address the transportation
of lithium cells and batteries for recycling. In its comments to the
NPRM, PRBA states that failure to include the change in the final rule
will have significant implications for the Rechargeable Battery
Recycling Corporation's used battery collection and recycling program.
We agree with the comments of PRBA and others on expanding the
exception for shipping lithium batteries for disposal to include
lithium batteries shipped for recycling, and in this final rule have
modified Sec. 173.185(d) accordingly.
B. Docket HM-224E
1. Background: IFR Requirements
As explained above, on December 15, 2004, PHMSA published an IFR
(Docket HM-224E; 69 FR 75208), prohibiting the shipment of primary
lithium batteries as cargo on passenger-carrying aircraft. The IFR
prohibits the offering for transportation and transportation in
commerce of primary lithium batteries and cells, and equipment
containing or packed with large primary lithium batteries (i.e.,
batteries containing greater than 25 grams of lithium) as cargo aboard
passenger-carrying aircraft. In addition, equipment packed with or
containing small or medium primary lithium batteries (i.e., batteries
containing 25 grams or less of lithium) must be transported in
accordance with Special Provisions A101 and A102. Under the IFR,
Special Provision A101 specified that a primary lithium battery or cell
packed with equipment may not exceed 5 kg (11 pounds) gross weight. On
September 28, 2006, we issued a correction to Docket HM-224E, 71 FR
56894, revising Special Provision A101. The correction clarified that
we intended the 5 kilogram limit to be net weight. In addition, in
accordance with Special Provision A102, primary batteries or cells
contained in equipment may not exceed 5 kg (11 pounds) net weight.
Further, the IFR requires the outside of each such package that
contains a primary lithium battery or cell forbidden for transport
aboard passenger carrying aircraft to be marked ``PRIMARY LITHIUM
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.''
Under the IFR, for air shipments of non-excepted Class 9 primary
lithium batteries and for shipments of equipment that contains or is
packed with Class 9 primary lithium batteries, the words ``Cargo
Aircraft Only'' must be entered after the basic description on shipping
papers. The package must bear a CLASS 9 and a CARGO AIRCRAFT ONLY
label, and the package must be otherwise marked as required by the HMR.
The IFR applies to both foreign and domestic passenger-carrying
aircraft entering, leaving, or operating in the United States and to
persons offering primary lithium batteries and cells for transportation
as cargo on any passenger-carrying aircraft.
The IFR resulted from an assessment by PHMSA and the FAA of recent
lithium battery fires in air transportation, and the FAA technical
report, discussed earlier in this preamble, evaluating the flammability
of primary lithium batteries and the effect of air carrier fire
suppression systems on primary lithium battery fires.
2. Discussion of Comments in HM-224E
On January 27, 2005, PHMSA conducted a public meeting to provide an
informal forum for interested persons to offer comments on the IFR. Six
persons made oral presentations at the public meeting. In addition, we
received 38 written comments from private citizens and the following
companies and organizations:
Karin Rindal (RSPA-2004-19886-4)
Delaine Arnold (RSPA-2004-19886-5)
McDowell Research, Ltd. (RSPA-2004-19886-6)
Rollie Herman (RSPA-2004-19886-7)
Homer C. Lambert (RSPA-2004-19886-10)
Portable Rechargeable Battery Association (PRBA; RSPA-2004-19886-39,
44)
Information Technology Industry Council (ITI; RSPA-2004-19886-41)
Solectron Corporation (RSPA-2004-19886-42)
CTIA--The Wireless Association (RSPA-2004-19886-40)
National Electrical Manufacturers Association (NEMA; RSPA-2004-19886-
23, 24, 38)
FEDCO Electronics, Inc. (RSPA-2004-19886-12, 13)
Dangerous Goods Advisory Council (RSPA-2004-19886-11)
Liferaft and Marine Safety (RSPA-2004-19886-14)
Anthony Affisio (RSPA-2004-19886-15)
DBC Marine Safety Systems Ltd (RSPA-2004-19886-16)
Lucent Technologies (RSPA-2004-19886-18)
Siemens AG (RSPA-2004-19886-9)
Rockwell Automation (RSPA-2004-19886-20)
Intel Corporation (RSPA-2004-19886-21)
Honeywell Corporate (RSPA-2004-19886-17, 22)
FedEx Express (RSPA-2004-19886-25)
URS Corporation (RSPA-2004-19886-26)
United States Marine Safety Association (RSPA-2004-19886-27)
Federation Industries Electriques (RSPA-2004-19886-28)
ZVEI (RSPA-2004-19886-29, 31)
SAFT America Inc. (RSPA-2004-19886-30, 32)
Air Transport Association of America, Inc. (RSPA-2004-19886-33)
Air Line Pilots Association, International (ALPA; RSPA-2004-19886-34)
Automated Media Systems (RSPA-2004-19886-35)
Switlik Parachute Co. Inc. (RSPA-2004-19886-36)
Fisher Scientific Company, L.L.C. (RSPA-2004-19886-37)
The International Brotherhood of Teamsters Airline Division (Teamsters;
RSPA-2004-19886-43)
All comments submitted to the Dockets Management System, under
Docket Number PHMSA-04-19886 (HM-224E) and comments received at the
public meeting have been considered in developing this final rule. The
comments are addressed in detail below. Several commenters submitted
comments that were outside the scope of this rulemaking. They are not
discussed in this preamble.
a. Prohibition of Primary Lithium Batteries and Cells Aboard
Passenger Aircraft. The IFR imposed a limited prohibition on offering
for transportation and transportation of primary lithium batteries and
cells as cargo aboard passenger-carrying aircraft and equipment
containing or packed with large primary lithium batteries. Under the
IFR, only small or medium-size primary lithium batteries packed with or
contained in the equipment for which they are intended to provide power
are permitted to be transported as cargo aboard passenger-carrying
aircraft.
Several commenters oppose the prohibition adopted in the IFR. For
example, NEMA suggests the record does not support the ban of cargo
shipments of primary lithium batteries and lithium batteries packed
with or contained in equipment aboard passenger aircraft. NEMA
requested that the exception for 5 kg (11 pounds) net weight of
batteries packed in equipment be extended to shipments of primary
[[Page 44939]]
lithium batteries shipped without equipment. NEMA also recommends PHMSA
allow, consistent with international requirements, shipments of up to
12 batteries and 24 cells of batteries to be transported in accordance
with the exception in Sec. 173.185(b) of the HMR. NEMA states it is
unclear how PHMSA could determine shipments of such products packed
with or contained in equipment could pose a serious risk in air
transportation when there has been no testing of primary lithium
batteries in equipment.
Several commenters recommend PHMSA retract the IFR and issue a
final rulemaking to harmonize the HMR with standards for transporting
lithium batteries in the UN Recommendations or ICAO Technical
Instructions. These commenters suggest harmonization would alleviate
the confusion caused by the different lithium battery weight limits,
exemptions, and testing requirements in the HMR and the international
transportation regulations.
Two commenters address the April 28, 1999 LAX incident mentioned in
the IFR. These commenters suggest the incident occurred under atypical
handling procedures and was the direct result of inadequate packaging.
SAFT America states improved packaging requirements, mandatory testing
of all primary lithium batteries and cells in accordance with the UN
Recommendations, and procedures to quarantine damaged shipments would
successfully address the root cause of the incident. This commenter
further states all other incidents involving primary lithium batteries
and cells involved improper packaging or batteries contained in checked
or carry-on baggage; the commenter notes that neither of these
situations is addressed in the IFR. FedEx suggests packaging for all
battery types must be reviewed and better packaging requirements must
be developed to prevent fires and recommends further studies to
identify an effective extinguishing agent for lithium batteries.
Several commenters express concern the IFR will result in
unacceptable economic burdens on the industry and will adversely affect
the efficiency with which primary lithium batteries and cells are
transported. FEDCO states the majority of its sales are to distributors
and dealers of computer products and to battery retail stores, with
major competition from foreign importers of primary lithium batteries.
FEDCO expresses concern that most foreign importers of primary lithium
batteries are ``under the radar'' in so far as PHMSA is concerned.
FEDCO asserts its personnel have seen numerous cases where foreign
importers have shipped regulated and hazardous primary lithium
batteries by air with inadequate packaging and virtually no insulation
that would prevent the batteries from short circuiting. FEDCO suggests
PHMSA needs to develop methods of policing the practices of foreign
importers of primary lithium batteries before a serious incident
occurs.
Fisher Scientific Company, L.L.C. states it has found individual
primary lithium batteries, whether shipped installed or with equipment,
do not represent a hazard during transportation. Fisher Scientific
states it has shipped well over 10,000 shipments of primary lithium
batteries over a period of 20 years, with no transportation incidents
attributable to the batteries, and it requests an exception from the
HMR for single batteries classified as dry (e.g. consumer alkaline), or
lithium or lithium ion batteries. Fisher Scientific suggests an
exception for small primary lithium batteries would provide an adequate
level of safety with a minimum of operational disruption and no
negative economic impacts.
We do not agree with those commenters who urge withdrawal of the
IFR. Although we are hopeful that intervening technological advances
will make lifting the prohibition feasible in the future, until we can
be satisfied that primary lithium batteries will not ignite in flight
and/or that any such fire could be suppressed by standard fire
suppression systems in passenger aircraft cargo compartments, we cannot
sanction the shipment of primary lithium batteries as cargo in
passenger aircraft. Incident reports and test data indicate primary
lithium batteries present unique and serious risks if transported as
cargo on passenger-carrying flights. The FAA report concludes that
primary lithium batteries self-propagate once the lithium in a single
battery begins to burn. Because of this, lithium batteries that are not
involved in the initial fire may still ignite and propagate. In
addition, the only FAA-certified fire suppression system authorized for
use in a passenger-carrying aircraft cannot extinguish or suppress a
primary lithium battery fire.
For those reasons, PHMSA and FAA continue to believe the
prohibition on the transportation of primary lithium batteries on
passenger aircraft is appropriate and well-founded. Although some
commenters questioned the original justification for the IFR,
intervening developments have buttressed the record, calling further
attention to primary lithium battery risks and strengthening the case
for final regulatory action. We take these risks seriously, recognizing
the potential for catastrophic harm in any passenger airline accident
and the relative availability of transportation alternatives. When it
comes to safeguarding airline travel, we intend to be proactive,
identifying and addressing the most serious safety risks before they
result in costly accidents. Although we insist that regulatory actions
be data-driven, we will not wait for accidents to address known risks.
In the case of primary lithium batteries, although the evidence of
transportation-related risks is mounting, no incident has resulted in
serious injury or loss of life. Far from demonstrating that the
prohibition is unnecessary, this safety record could well reflect the
fact that the IFR has been in place for over two years.
We disagree with those commenters who contend that imposing more
robust packaging requirements would address the safety risks posed by
shipment of primary lithium batteries as cargo aboard passenger planes.
These comments do not address the central fact that the fire
suppression system in an aircraft cargo compartment is ineffective in
suppressing a fire involving lithium batteries. The aircraft cargo
compartment fire scenario of concern to PHMSA and FAA is not limited to
a fire initiated by the primary lithium batteries, but includes a fire
started by an outside source. Increasing packaging integrity and
improved compliance do not address this significant concern. As we
indicated in the preamble to the IFR, a primary lithium battery
involved in a fire in a passenger aircraft cargo compartment could
overcome the safety features of the cargo compartment. Further, primary
lithium batteries are capable, on their own, of initiating a fire that
could have catastrophic consequences. The FAA report on the
flammability characteristics of primary lithium batteries raises
significant concerns justifying our conclusion that they should be
prohibited aboard passenger carrying aircraft.
PHMSA generally agrees with the commenters that the continually
increasing amount of hazardous materials transported in international
commerce warrants the harmonization of domestic and international
requirements to the greatest extent possible. Harmonization facilitates
international transportation, while promoting the safety of people,
property and the environment. Our goal is to harmonize without
diminishing the level of safety currently provided by the HMR and
without imposing undue
[[Page 44940]]
burdens on the regulated public. However, we are obligated to impose
additional requirements when the international standards do not
adequately protect the American public. Over time, we expect increased
harmonization of domestic and international standards as both regimes
continue to address the transportation risks posed by the growing use
of lithium battery technology.
b. Battery Testing. The Portable Rechargeable Battery Association
(PRBA) expresses concern about the manner in which the FAA tests on
primary lithium batteries were conducted, the conclusions reached, and
the regulatory steps taken. Specifically, PRBA contends:
(1) PHMSA has not shown that the FAA fire testing of primary
lithium batteries and cells represents realistic conditions that could
be encountered in air transportation and pose an unreasonable risk to
the traveling public.
(2) The FAA test results do not provide a rational basis for the
IFR, particularly when compared with other FAA cargo compartment fire
tests.
(3) It is unlikely that the pressure rise caused by burning primary
lithium batteries would lead to an overpressure of an air craft cargo
compartment.
(4) The fire tests are arbitrary and more severe than the other
tests used to evaluate the hazards of other chemicals and articles.
(5) The effects of packaging material for shipments of primary
lithium batteries were largely ignored in the FAA tests.
(6) Primary lithium batteries were subjected to extreme temperature
testing when in a separate proposed rulemaking (Docket HM-224B) PHMSA
proposed to subject packaged oxygen cylinders carried in passenger
cargo compartments to a temperature of only 400[deg] F.
For the following reasons, we do not agree with the PRBA comments.
The FAA tests demonstrated that the lithium output from a single
burning primary lithium battery is sufficient to penetrate single-layer
cargo linings. Once penetration occurs, the ability of Halon to
suppress a fire is reduced, and the fire can spread throughout the
cargo compartment. Similarly, most cargo containers used in commercial
shipments (roughly 90%) have only a single lining. Small numbers of
burning primary lithium batteries can also raise the pressure pulse in
a cargo container to the level at which the walls of the containers
separate (1 psi). Separation of the cargo container raises the same
concerns as perforation of the containers. In the FAA tests, one brand
of primary lithium batteries required only three burning batteries to
raise the pressure pulse above 1 psi, while the two other brands
required only four primary lithium batteries to reach the same psi. The
pressure tests were added to the test protocol on the basis of initial
test results; the FAA was surprised to see pressure changes in the
tested compartment in the single-battery tests. Cargo containers are
designed to only support 1 psi because they need to be suitable for
depressurization. A more robust cargo compartment would be incompatible
with the need for a depressurized environment.
Temperatures in a suppressed cargo compartment fire can be above
the auto-ignition temperature for primary lithium batteries. Thus, the
lithium batteries do not have to be in close proximity to the fire
source in order to experience dangerous elevated temperatures during a
cargo compartment fire. The current fire suppression system installed
on board an aircraft needs a fire to be activated by a pilot. We note
that the Halon system suppresses, but does not extinguish, a fire, thus
allowing for the continuous generation of heat by a deep-seated fire.
In addition, the temperature and heat flux data collected in the 64
cubic foot test facility cannot be compared to those collected in a
full scale fire test like those described in the report ``Minimum
Performance Standards (MPS) for Aircraft Cargo Compartment Halon
Replacement Fire Suppression Systems'' (DOT/FAA/AR-TN03/6; a copy of
which is in the public docket). For example, the ratio of flammable
materials to compartment volume is much lower in the battery tests. To
get comparable measurements, the battery tests would require a much
larger quantity of primary lithium batteries, placed in a full scale
cargo compartment along with other combustibles. Peak ceiling
temperatures and temperature-time areas could then be compared
meaningfully. Aircraft cargo compartments are as air tight as possible,
which is necessary to contain the Halon fire suppression gas in the
event of a cargo fire and to pressurize the cabin with available engine
bleed air. In addition, cargo liners are designed to separate when
exposed to a pressure of only 1 psi, in order to rapidly relieve
pressure during a rapid cabin depressurization, and prevent the
collapse of the cabin floor and possible loss of the aircraft. The
pressure rise due to battery ignition is directly related to the size
of the compartment. However, the data obtained during the FAA tests
indicate that a significant pressure rise can result from ignition of a
small quantity of lithium batteries in the 10m\3\ facility and raises
legitimate concerns about the rise possible with a full shipment of
primary lithium batteries in a larger cargo compartment.
In its comments, PRBA refers to the NPRM published on May 6, 2004
by PHMSA under Docket HM-224B (69 FR 25469), which proposed a
requirement for oxygen cylinders to be overpacked in a packaging that
would allow the cylinder to withstand a temperature of 400[deg] F for 3
hours. (On January 31, 2007 PHMSA published the HM-224B Final Rule (72
FR 4442).) PRBA questioned why the lithium batteries were subjected to
higher temperature tests than the 400[deg] F proposed for oxygen
cylinders. Other commenters also question the validity of the tests
cited in the IFR and our use of the test results as a basis for
prohibiting the air transportation of primary lithium batteries and
cells. For example, NEMA questions whether PHMSA has improperly relied
on the FAA test report, which addresses a worst-case scenario for bulk
shipments of lithium batteries, in limiting the transportation of
single batteries or products packed with or contained in equipment.
NEMA states that unlike ``bulk shipments'' of primary lithium
batteries, batteries packed with or contained in equipment are not
close in proximity to each other during transportation.
FedEx states that there appears to have been more problems with
non-bulk shipments of primary lithium batteries as opposed to bulk
shipments and that the FAA flammability test was conducted only on bulk
shipments of primary lithium batteries. FedEx recommends that the FAA
examine non-bulk shipments of primary lithium batteries and conduct
appropriate tests on these types of primary lithium battery shipments.
Though the focus of the FAA Test Report was the shipment of primary
lithium batteries in bulk, the tests performed by the FAA Tech Center
provide more then sufficient justification to prohibit smaller
shipments of primary lithium batteries. Several of the tests performed
by the FAA Tech Center involved as few as four primary lithium
batteries. In terms of the effectiveness of the halon suppressions
system, the report states ``the halon immediately extinguished the 1-
propanol fire and reduced the overall temperature profile in the
chamber but did nothing to impede the progress of the primary lithium
battery fire once a single primary lithium battery had ignited.'' In
terms of the pressure pulse, the report states:
[[Page 44941]]
One test was conducted with three Panasonic PL 123A batteries.
The conditions were similar to the Sanyo CR2 and Duracell PL 123A
battery tests. The pressure rise in the vessel was 1.2 psi (see
Figure 17). These results are significant. The cargo compartment is
only constructed to withstand a 1-psi pressure differential in order
to rapidly equalize pressure in the event of a depressurization.
Anything over 1 psi would activate the blowout panels, compromising
the cargo compartment's integrity.
As these results indicate, the shipment of even a small number of
primary lithium batteries presents a significant risk to a passenger
aircraft. Therefore, it is appropriate to rely on the results from the
FAA report to prohibit small shipments of primary lithium batteries.
ALPA expresses concern that primary lithium batteries may still be
shipped by cargo only aircraft, including bulk primary lithium battery
shipments that would continue to be excepted from many of the
requirements of the HMR, including stringent packaging standards,
quantity limits, and pilot notification. ALPA contends that the current
HMR requirements for the shipment of primary lithium batteries by cargo
aircraft are inappropriate for a commodity posing a great enough risk
to warrant PHMSA's taking emergency action to prohibit the batteries
aboard passenger aircraft. ALPA recommends the bulk shipment of primary
lithium batteries should be governed by regulations consistent with
those in place for commodities that pose a similar risk.
ALPA also suggests the risk associated with primary lithium
batteries and cells is unique within the dangerous goods transportation
system because an improperly packaged or damaged shipment of batteries
can catch fire. ALPA states once a shipment of lithium batteries has
been damaged, there is a significant likelihood that the batteries will
self-initiate, ignite, and catch fire, overcoming the on-board fire
suppression capabilities and likely causing the loss of the aircraft
and all passengers and crew aboard. ALPA suggests bulk shipments of
primary lithium batteries and cells should only be transported aboard
cargo aircraft if they are subject to all of the applicable hazard
communication requirements of the HMR and packaged to prevent damage,
short circuiting, and in such a way that the batteries withstand the
heat from an unsuppressed cargo fire.
The Teamsters state PHMSA failed to address the safety concerns of
cargo-only aircraft transporting primary lithium batteries and cells.
They state the hazardous properties of primary lithium batteries do not
depend on the mode of transportation or (in transportation by air) on
the type of aircraft or transportation service. The Teamsters suggest
that, until these hazards and the risk they pose can be mitigated by
improved packaging standards, specific labeling/marking requirements,
strict quantity limitations, and appropriate hazard communications
standards (including pilot notification), primary lithium batteries
should not be transported aboard either passenger or cargo-only
aircraft.
As stated in the IFR, PHMSA and FAA agree the greatest risk to
public safety is in passenger carrying operations. For that reason, we
did not extend the prohibition in the IFR to cargo-only aircraft.
Therefore extending the prohibition to cargo operations is beyond the
scope of this rulemaking.
c. Marking and Labeling Requirements. The IFR amended Sec. 173.185
of the HMR to require cargo shipments of small and medium primary
lithium batteries and cells, which are excepted from classification as
Class 9 hazardous materials, to be marked ``PRIMARY LITHIUM BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.'' This requirement
applies to shipments of small and medium lithium batteries in all modes
of transport.
McDowell Research, Ltd (McDowell) asks whether the IFR (and the
proposed final rule) permit placement of the ``Cargo Aircraft Only''
label on packages of primary lithium batteries and cells that display
the ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT'' markings. McDowell states there should be a
similar, if not identical, statement on the shipping papers, or more
specifically, the air waybill, for all air shipments of primary lithium
batteries in this category to prevent such shipments from being
inadvertently loaded aboard a passenger aircraft.
FedEx states that if the requirements in the IFR are adopted, PHMSA
must require shippers to indicate whether the primary lithium battery
shipment is nonrechargeable or rechargeable. FedEx states the proper
shipping name for ``Lithium batteries UN 3090'' does not indicate
whether the lithium batteries shipments are rechargeable or non-
rechargeable. In addition, FedEx requests PHMSA require shippers to
indicate whether the primary lithium battery is large or small. FedEx
states that currently, the proper shipping names for ``Lithium
batteries contained in equipment, UN 3091'' or ``Lithium batteries
packed with equipment, UN 3091'' do not indicate whether the lithium
battery is large or small. FedEx expresses concern that a carrier has
no reasonable way of knowing if the lithium battery is large or small.
FedEx is also concerned with the proliferation of markings or other
minimal requirements when dangerous goods shipments are otherwise not
regulated and are excepted from the regulation. FedEx states marking a
package ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT'' will only cause confusion, delay shipments and
impede commerce. FedEx recommends the use of Cargo Aircraft Only labels
for the shipment of lithium batteries subject to the final rule.
URS Corporation suggests PHMSA remove the marking requirement
``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER
AIRCRAFT'' for packages transported by highway, rail, and vessel with
no air transportation involved. URS Corporation states the required
markings are not sufficiently visible for transporters to divert
packages of primary lithium batteries and cells to cargo aircraft only
and that certain transporters that do not accept hazardous materials
shipments may refuse to accept packages of equipment containing lithium
batteries that are marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT.'' Another commenter states that
without any identification requirements on the documents, it is quite
possible that cargo may be transferred from an intended cargo flight to
a passenger flight once the cargo is loaded into a unit load device
(ULD). The commenter states that, because much, if not all, cargo
within ULDs is no longer visible, the only means to identify prohibited
primary lithium batteries is not available.
Under the HMR, an offeror of a hazardous material must provide the
aircraft operator with a signed shipping paper containing the quantity
and a basic shipping description of the material being offered for
transportation (i.e., proper shipping name, hazard class, UN or NA
identification number, and packing group); and certain emergency
response information (See Part 172, Subparts C and G). Additional
information may be required depending on the specific hazardous
material being shipped (see Sec. 172.203). Further, when a package
containing a hazardous material is offered for transportation by air
and the HMR prohibit its
[[Page 44942]]
transportation aboard passenger-carrying aircraft, the words ``Cargo
aircraft only'' must be entered after the basic description (see Sec.
172.203(f)). A copy of this shipping paper must accompany the shipment
it covers during transportation aboard the aircraft (see Sec. 175.35).
In addition to the shipping paper accompanying each hazardous
materials shipment, an aircraft operator must provide the pilot-in-
command of the aircraft written information about hazardous materials
on board the plane (Sec. 175.33). For each hazardous materials
shipment, this information must include: (1) Proper shipping name,
hazard class, and identification number; (2) technical and chemical
group name, if applicable; (3) any additional shipping description
requirements applicable to specific types or shipments of hazardous
materials or to materials shipped under ICAO requirements; (4) total
number of packages; (5) net quantity or gross weight, as appropriate,
for each package; (6) the location of each package on the aircraft; (7)
for Class 7 (radioactive) materials, the number of packages, overpacks
or freight containers, their transport index, and their location on the
plane; and (8) an indication, if applicable, that a hazardous material
is being transported under terms of an exemption. This information must
be readily available to the pilot-in-command during flight. In essence,
the notification of pilot-in-command (NOPC) provides the same
information to emergency response personnel as a shipping paper for
transportation by rail or public highway.
The HMR provides exceptions from the packaging and hazard
communication requirements in the HMR for small and medium-size lithium
batteries and cells (when transported by highway or rail). When the
lithium content of the battery or cell does not exceed certain limits,
the batteries and cells must be packaged in strong outer packagings and
in a manner to protect against short circuit; however, such shipments
are excepted from all other requirements in the HMR, including hazard
communication requirements. Without hazardous communication markings on
excepted packages, carriers will be unaware of the presence of primary
lithium batteries and cells and may inadvertently transport primary
lithium batteries and cells aboard passenger-carrying aircraft.
Applying the current hazard communication standards for an excepted
shipment of lithium batteries would have the additional effect of
regulating these batteries as a Class 9 material. The marking
requirement adopted in the IFR informs properly trained carrier
personnel of package transport restrictions for passenger aircraft,
even if loaded in a ULD. We continue to believe it is necessary to
require the marking for all modes of transport, not just aviation,
because the required marking is likely to be the only visible
indication that the package is forbidden for transportation by
passenger aircraft. The multimodal requirement is necessary because
many goods travel in different modes, and package restrictions must be
identifiable in case a package is routed to aircraft transportation.
In its comments, FedEx suggests excepted packages of primary
lithium batteries should also bear the ``Cargo Aircraft Only'' label so
that these packages are more readily identifiable by air carrier
employees. Although the HMR provides relief from the labeling
requirements of Part 172, Subpart E, nothing precludes a shipper from
voluntarily applying the ``Cargo Aircraft Only'' label, because it is
not inconsistent with the nature of the shipment. However, the display
of the ``Cargo Aircraft Only'' label by itself (without accompanying
hazard class labels or a hazardous materials shipping paper) could
cause confusion to accepting carriers of all transportation modes.
Those who wish to voluntarily apply the ``Cargo Aircraft Only'' label
on excepted packages of primary lithium batteries are encouraged to
coordinate with all parties in their transportation chain.
NEMA states the labeling requirements for primary lithium batteries
and cells impose unreasonable requirements for certain types of lithium
battery shipments. For example, NEMA suggests marking of small packages
containing one or a few batteries would be impossible with the mandated
font size. In addition, marking of packages with multiple languages may
lead to difficulty in meeting the mandated font size.
The marking provisions adopted in the IFR and this final rule
require the outside of each package containing a primary lithium
battery or cell to be marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'' on a background of contrasting
color, in letters: (i) At least 12 mm (0.5 inch) in height on packages
having a gross weight of more than 30 kg (66 pounds); or (ii) At least
6 mm (0.25 inch) on packages having a gross weight of 30 kg (66 pounds)
or less. In addition, Sec. 172.304 requires markings to be durable;
printed only in English; printed on or affixed to the surface of the
package; displayed on contrasting background; unobscured by labels or
attachments; and located away from any other marking that could
substantially reduce their effectiveness. Consistent with other marking
requirements in the HMR, and in order to address the problems
associated with marking smaller packages, we have revised the HMR to
allow for a more appropriate font for smaller packages. In addition, to
provide an alternative mark that is consistent with the adoption of the
new shipping description in the international requirements, we are
allowing packages to be marked ``LITHIUM METAL BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT.''
d. Weight Restrictions for Primary Lithium Batteries. In accordance
with the IFR, primary lithium batteries or cells packed with or
contained in equipment may be transported aboard passenger carrying
aircraft under Special provisions A101 and A102. Special provision A101
and Special Provision A102 state the net weight of the package for a
primary (non-rechargeable) lithium battery or cell contained in
equipment may not exceed 5 kg (11 pounds).
NEMA recommends PHMSA either eliminate this restriction on products
shipped with or contained with primary lithium batteries and cells or
clarify the weight restrictions for primary lithium batteries and
cells. NEMA also states PHMSA should expand the provision relating to
products to cover lithium batteries shipped with accessories or other
non-hazardous materials.
Intel Corporation (Intel) recommends PHMSA either rescind or
significantly modify the IFR to make it inapplicable to shipments of
small primary lithium batteries and cells contained in equipment. Based
on its longstanding experience shipping products containing small
primary lithium batteries, Intel contends no further restrictions on
shipments of primary lithium batteries is warranted. In the
alternative, Intel states any further restrictions on shipments of
primary lithium batteries on passenger aircraft should include rational
thresholds based on the weight of the batteries, not the weight of
packages.
The IFR imposed a limited prohibition on offering for
transportation and transportation of primary lithium batteries and
cells as cargo aboard passenger-carrying aircraft and equipment
containing or packed with large primary lithium batteries. We do not
believe that any additional exceptions should be provided. We do
[[Page 44943]]
concur with those commenters who recommend the exception for primary
lithium batteries contained in equipment and batteries packed with
equipment should be the same. On September 28, 2006, we issued a
correction to Docket HM-224E, 71 FR 56894. In the correction, we
revised Special Provision A101 by changing the gross weight limitation
to a net weight limitation. Because the requirements in A101 and A102
are now essentially the same, we are removing A102 and replacing
references to A102 with A101. We are also clarifying that the net
weight limitations in 188, A101, and A104 apply to the total net weight
of the lithium batteries in the package.
e. Secondary Lithium Batteries. In the IFR, the existing package
quantity limitation in Sec. 173.185 of the HMR applicable to secondary
lithium batteries or cells packed with or contained in equipment was
relocated without change from column 9 of the Hazardous Materials Table
(HMT) to Special Provisions A103 and A104. In accordance with Special
Provision A103, an inner package of secondary lithium batteries or
cells, packed with equipment is authorized aboard passenger carrying
aircraft so long as the inner package does not exceed a gross weight of
5 kg (11 pounds). In addition, Special Provision A104 authorizes the
transportation of a secondary lithium battery or cell contained in
equipment aboard passenger carrying aircraft in packages not exceeding
a net weight of 5 kg (11 pounds) of primary lithium batteries.
PRBA and other commenters suggest PHMSA separate the provisions in
the HMR governing the transportation of primary lithium cells and
batteries from those governing secondary lithium cells and batteries.
To alleviate any confusion, PRBA suggests PHMSA incorporate into the
HMR a new section specific to secondary lithium cells and batteries.
As noted earlier, the UN Recommendations have been recently revised
by adding new shipping names for lithium metal and lithium-ion
batteries. PHMSA will take these commenters' suggestions under
consideration when it considers adding these new names into the HMR. We
believe that it would be premature to adopt new requirements at this
time.
f. Life-Saving Appliances. Section 173.219(a)(3), as amended by HM-
215G (69 FR 76044), requires life-saving appliances containing lithium
batteries to be transported in accordance with Sec. 173.185 of the
HMR. In accordance with Special Provision A101, a primary lithium
battery or cell packed with or contained in equipment is forbidden for
transport aboard a passenger carrying aircraft unless: (1) The battery
or cell conforms with the requirements and limitations of Sec.
173.185(b)(1), (b)(2), (b)(3), (b)(4) and (b)(6) or Sec.
173.185(c)(1), (c)(2), (c)(3) and (c)(5); (2) the package contains no
more than the number of lithium batteries or cells necessary to power
the intended piece of equipment; (3) the equipment and the battery or
cell are packed in a strong packaging; and (4) the net weight of the
batteries in the package does not exceed 5 kg (11 pounds). Packages
conforming to the requirements of this Special Provision are excepted
from all other requirements of the HMR.
DBC Marine Safety System Ltd. Requests clarification of the
exception as it applies to life-saving equipment. Several commenters
state the net effect of the IFR is to prohibit the carriage of life
saving appliances on passenger aircraft; these commenters recommend a
change to Sec. 173.185 to include an exception for this type of device
on passenger aircraft. Commenters state they know of no incidents or
safety issues involving primary lithium batteries in life-saving
appliances that warrant limitations on their transportation. Commenters
state that life-saving equipment is carefully stowed, that the
batteries are enclosed within the equipment, and, accordingly, that the
risk of a mishap is very low.
It was our intent to provide life saving appliances the same
exceptions that are provided in Special Provision A101 for equipment
packed with or containing lithium batteries. Therefore, in order to
clarify the applicability of the HMR for lifesaving appliances, in this
final rule we have revised Sec. 173.219 to allow life saving
appliances containing lithium batteries to be transported in accordance
with Sec. 173.185 of the HMR, and Special Provisions 188, 189, and
A101 as applicable.
III. Rulemaking Analysis and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under authority of Federal Hazardous
Materials Transportation Law (Federal Hazmat Law; 49 U.S.C. 5101 et
seq.) and 49 U.S.C. 44701. 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. Title Section 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 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 final 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 final 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 final
rule, but separately proposed in Dockets HM-224C and HM-224E.
Docket HM-224C
In conducting the regulatory analysis for Docket HM-224C, we
focused on the risks posed by the transport of lithium batteries by
aircraft. Because most shipments are transported by air, and many by
passenger aircraft, the consequences of a fire caused by, or involving,
a lithium batteries shipment could be severe. We determined a market
failure exists (that is, the safety risks will not be controlled
through economic decision-making) for two reasons: (1) Damages
resulting from accidents involving the transportation of lithium
batteries by air may be imposed on individuals, such as air crews and
passengers, who are not parties to the transactions (externality); and
(2) air carriers may have inadequate information to determine the risks
and costs associated with accidents involving lithium batteries
(inadequate or asymmetric information).
The costs associated with performing the required testing for small
lithium batteries and the costs of complying with hazard communication
and packaging rules for small and medium-size lithium batteries over
the five-year analysis period (in current dollars) for all businesses
impacted by the final rule is approximately $26,000,000, or just over
$5 million discounted annually.
The benefits of the final rule are less readily quantified. At a
minimum, the benefits include enhanced transportation safety,
consistency between U.S. and international regulations, increased
compliance, timely movement of goods, and consistent emergency response
to
[[Page 44944]]
hazardous materials incidents. As part of a comprehensive program for
promoting the safe movement of hazardous materials, we believe that
these benefits exceed the marginal costs of the final rule. Moreover,
when we consider the avoided cost of even a single lithium battery fire
aboard an in-flight aircraft, the benefits of the final rule vastly
exceed its costs. A copy of the complete regulatory evaluation is
available for review in the public docket.
Docket HM-224E
The regulatory evaluation for Docket HM-224E reflects the same
market failure analysis and considered costs and benefits over a ten-
year analysis period. The findings of the benefit-cost analysis are
shown in Table 5 of the regulatory evaluation. The cost elements
identified include all those related to labeling (materials and labor),
alternative transportation costs (delay costs and additional costs
associated with shipping batteries and equipment only on cargo
aircraft), training costs, and handling costs. These costs will be
incurred by both primary lithium battery and equipment manufacturers
and distributors. The final rule is expected to impose present-value
costs on lithium battery manufacturers and manufacturers of equipment
containing lithium batteries of $12.5 million over 10 years.
The principal anticipated benefits associated with the lithium
battery IFR are a reduction in incidents on passenger aircraft
resulting from lithium battery fires. PHMSA estimated the number of
potential passenger aircraft fires involving primary lithium batteries
based on an analysis of incident occurrence in the DOT's Hazardous
Materials Incident Reporting System. We anticipate present-value
benefits over 10 years to total $41 million, for a benefit-cost ratio
of 3.3:1.
C. Executive Order 13132
The final rules have been analyzed in accordance with the
principles and criteria prescribed in Executive Order 13132
(``Federalism''). This final rule preempts State, local and Indian
tribe requirements but does not propose 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.
Federal Hazardous Materials Transportation Law, 49 U.S.C. 5125
expressly preempts inconsistent State, local, and Indian tribe
requirements, including requirements on the following subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
(5) The design, manufacture, fabrication, marking maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses subject items (1), (2) and (3) described
above and, accordingly, State, local, and Indian tribe requirements on
these subjects that do not meet the ``substantively the same'' standard
will be preempted.
Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
This effective date of preemption is 90 days after the publication of
this final rule in the Federal Register.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this 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
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act (Pub. L. 96-354) and to ensure
potential impacts of draft rules on small entities are properly
considered. The following sections address the small business impacts
of the measures adopted in this final rule, but separately proposed in
Dockets HM-224C and HM-224E.
Docket HM-224C
The Regulatory Flexibility Act of 1980 requires agencies to
evaluate the potential effects of their proposed and final rules on
small businesses, small organizations and small governmental
jurisdictions. Section 603 of the Act requires agencies to prepare and
make available for public comment a final regulatory flexibility
analysis (FRFA) describing the impact of final rules on small entities.
Section 603 (b) of the Act specifies the content of a FRFA. Each FRFA
must contain:
1. A succinct statement of the need for, and objectives of, the
rule.
2. A summary of the significant issues raised by the public
comments in response to the IRFA, a summary of the assessment of the
agency issues, and a statement of any changes made in the proposed rule
as a result of such comments.
3. A description and an estimate of the number of small entities to
which the rule will apply or an explanation of why no such estimate is
available.
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities that will be subject to the requirement and
the types of professional skills necessary for preparation of the
report or record.
5. A description of the steps the agency has taken to minimize the
significant adverse economic impact on small entities consistent with
the stated objectives of applicable statutes, including a statement of
the factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each of the other significant
alternatives to the rule considered by the agency was rejected.
AN FRFA describing the impact of this final rule on small entities
is available for review in the public docket. The FRFA projects the
total cost over the five-year analysis period (in current dollars) for
all small businesses impacted by this rule is $26,463,004. On an annual
basis, this is $5,292,601, equating to an average annual cost per
lithium battery manufacturer or distributor of $71,285 and an average
annual cost to small electronics companies of $2,121. Costs are
associated with new testing requirements for certain currently excepted
batteries and new hazard communication and packaging
[[Page 44945]]
requirements. Considering the danger of a fire aboard an aircraft, the
benefits of this rule could likely be in the hundreds of millions of
dollars. At a minimum, the benefits of this rulemaking include enhanced
transportation safety, consistency between U.S. and international
regulations, increased compliance, timely movement of goods, and
consistent emergency response to hazardous materials incidents.
Summarized below is a brief discussion on each element of the FRFA
prepared for this final rule.
Need for the final rule. Since 1999, there have been several
incidents involving lithium batteries in air transportation. At least
four of those incidents involved lithium battery fires; one incident
required medical treatment for two workers. All of these incidents
resulted in fires that were discovered either just before or just after
transportation aboard aircraft. To address this problem, the United
Nations Committee of Experts revised the UN Recommendations on the
Transport of Dangerous Goods (UN Recommendations) to require new
packaging and hazard communication measures for shipments of lithium
batteries and cells. The International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by Air
(ICAO Technical Instructions) and International Maritime Dangerous
Goods Code (IMDG Code) were revised to reflect these changes.
Requiring lithium battery designs to be tested in accordance with
the UN Test Manual is the internationally accepted method to ensure
that lithium cells and batteries are sufficiently robust to withstand
normal conditions of transport. However, the HMR currently provide an
exception for testing small lithium batteries. In addition, the HMR
provide significant exceptions from packaging and hazard communication
requirements for small- and medium-size batteries. (A battery's size is
determined by its lithium content.) The incidents referenced above
suggest the HMR exceptions for small- and medium-size lithium batteries
do not adequately protect against fire risks resulting from short
circuits or damage to the batteries. Due to these exceptions, the
current requirements do not provide for accurate communication of the
hazards associated with lithium batteries.
Summary of comments to the IRFA. FEDCO Electronics, Inc., and PRBA
express concern over the IRFA estimate of potential costs to test
currently excepted lithium batteries. SkyBitz, FEDCO, and SION Power
contend the testing cost per design ranges from $20,000 to $134,000 and
the testing for a complete line of batteries would cost between
$500,000 and $750,000 for primary lithium batteries and substantially
more for rechargeable batteries. Our analysis indicates the costs of
the new lithium battery tests are much lower. To obtain information on
testing costs, we contacted an independent laboratory currently
performing tests on lithium batteries in accordance with the revisions
to the UN Test Manual being adopted in this final rule. The laboratory
indicated, for a company with multiple battery designs to be tested,
the total testing cost per design would be $6,000. It is our
understanding the $6,000 cost per design covers all of the separate
test components in the revisions to the UN Test Manual, including
temperature, altitude, vibration, shock, impact, overcharge, forced
discharge, and intentional short.
PRBA, FEDCO, SION, Valence Technology, ACR, SkyBitz Inc., EIA, and
Intel Corporation request several exceptions to the testing
requirements for small lithium batteries. They ask us to include an
exception for single cell lithium batteries, an exception for small
production runs, and a delay in the effective date of the rule. Based
on these comments, we estimate an exception for single-cell lithium
batteries would reduce the testing costs imposed on small lithium
battery businesses under this rule by an average of $10,321.61 annually
over the 5-year analysis time horizon. An exception tied to small
production runs would reduce the estimated costs to small businesses by
an average of $17,029 annually over the 5-year analysis time horizon.
The IRFA envisioned a two-year implementation period. Allowing industry
an additional two years to implement the rule would not reduce the
nominal costs incurred by industry, but, due to the discounting of the
cost stream, would reduce the present value costs to the average small
business by an average of $1,576 annually. In response to the comments,
in this final rule, we are adopting exceptions for small lithium
batteries and for small production runs of lithium batteries. We are
also adopting a two-year implementation period.
PRBA, ACR, SkyBitz, and SION Power ask PHMSA to retain the current
HMR exception for medium-size batteries. We determined that retaining
the exception would result in the elimination of 80% of shipping costs
relating to the Class 9 hazardous material shipping requirements and
would reduce shipping costs to small businesses affected by the
proposed rule by roughly $1.3 million in real dollars annually during
the five-year analysis timeframe. We elected to retain the exception
for the transportation of medium-size lithium batteries transported by
ground. The retention of this exception for ground transport reduces
the cumulative cost of the final rule for small businesses by $68,882
per year.
FEDCO and ACR indicate the number of small businesses identified by
the IRFA (60 small businesses) should be much higher. In the FRFA we
identify 2,239 small businesses potentially affected by this rule. We
used a number of resources, including industry association rosters,
online databases, and targeted searches to identify these small
businesses. Further searches in Dun & Bradstreet data were used, where
appropriate, to confirm the categorization of each entity according to
Small Business Administration (SBA) size standards. The FRFA includes
the original 60 small businesses as lithium battery and cell
manufacturers and 2,179 businesses that either manufacture or
distribute electronic equipment requiring lithium batteries. Eighty
percent of small electronics businesses (1,743) are not subject to the
training costs because they already have employees with required HMR or
ICAO training or can ship their products by ground. The remaining 20%
of small electronics businesses (436) will be affected by the training
costs applicable to Class 9 shipping requirements for medium-size
batteries.
PRBA, ACR, SkyBitz, FEDCO, and SION Power indicate the incremental
costs associated with hazardous material shipping requirements would
average $0.05 per small cell or battery, while the incremental costs
tied to medium-size and large batteries and cells would equal $0.31 per
battery and $0.26 per cell. According to the commenters, these costs
include all packaging and shipping costs tied to the proposed rule,
with packaging costs, hazardous material surcharges, and other costs
spread over the number of units shipped. In addition, commenters
indicate the IRFA references a FedEx Express hazmat surcharge of $30 in
the testing costs, but it appears PHMSA did not factor that cost into
the routine shipping costs. In the FRFA shipping cost estimates are
determined on a per-cell or per-battery basis and include all
components, including hazmat surcharges. The FRFA includes all costs
listed above.
PRBA and FEDCO indicate the training costs used in the IRFA
underestimate the true cost of training. In addition, commenters assert
we failed
[[Page 44946]]
to include all companies subject to training, such as those companies
who incorporate lithium batteries into their products, and those who
distribute these products. The training cost analysis considers various
scenarios provided by small businesses, including secondary
manufacturers and distributors, impacted by the proposed rule. One
scenario considered the case when an external trainer was brought on-
site and delivered the training course for a fee to employees. Another
scenario considered the case where an employee traveled to take a
``train-the-trainer'' course, and returned to deliver the training to
on-site employees. A third scenario considered in this study is based
on training cost data provided by a single employer that did not share
the specifics of its training program. Each cost scenario was impacted
by the number of employees requiring training. Companies training a
large number of employees typically incurred smaller training costs per
employee due to their ability to spread the fixed costs of the ``train-
the-trainer'' course or the external trainer visit across a larger
number of employees. Based on input from small businesses impacted by
the proposed rule, these assumptions appear reasonable, generating a
training cost estimate of $828,138 over the 5-year time horizon.
Number of small entities to which the rule will apply. The FRFA
projects the changes being adopted by this final rule will affect 60
lithium battery and cell businesses (manufacturers and distributors)
and 2,179 small electronics businesses. The number of small businesses
affected was based on the size standards developed by the Small
Business Administration and codified in 13 CFR 121.201.
Reporting, recordkeeping, and other compliance requirements of the
rule. The compliance costs to small businesses subject to this final
rule are primarily related to testing battery and cell designs,
shipping of both prototypes and final products, and the training
required for employees newly classified as hazmat employees. Each of
these is discussed separately in the FRFA. Additionally, the FRFA
discusses costs for lithium battery and cell businesses and electronics
businesses separately. It also discusses the extent to which these
additional compliance costs can be passed through the small businesses
to their customers.
Steps to minimize the economic impact on small entities. The final
rule is designed to increase safety for transportation of lithium
batteries and cells. Any alternatives to the final rule should result
in similar safety benefits to warrant consideration. We considered the
following possible alternatives:
1. Except lithium batteries and cells transported by motor vehicle
for the purposes of recycling from Class 9 hazmat requirements.
2. Provide manufacturers with four years, rather than two, to
comply with the new testing requirements for existing small lithium
battery designs.
3. Adopt a small production run exception.
4. Retain the current exemption from the shipping requirements for
medium-size lithium-ion batteries.
5. Increase the lower threshold for medium-size lithium-ion
batteries and cells.
6. Except small, single-cell lithium batteries from testing
requirements if the cells have already passed the UN T1-T8 tests.
7. Require that small lithium batteries be shipped as Class 9
hazmat but not require testing unless they are being shipped
internationally by air.
8. Retain the current exception for medium-size lithium batteries
and cells shipped in or with equipment from the Class 9 shipping
requirements for all modes.
Out of the eight alternatives listed above, we rejected all but
numbers 1, 3, 4, and 6. Our reasons for rejecting four of the eight
alternatives hinge on safety concerns and the benefits of
harmonization. The adoption of alternatives 1, 3, 4, and 6 will have
little to no impact on safety and will provide a cumulative cost
savings to the affected small businesses of only $100,000 per year.
Docket HM-224E
The small business impact analysis conducted for Docket HM-224E was
included in the regulatory evaluation prepared for the Final Rule and
is summarized below. A complete copy of the report is in the public
docket for this rulemaking.
Businesses likely to be affected by the final rule in Docket HM-
224E are primary lithium battery manufacturers and distributors. For
purposes of the small business impact analysis, the definition of
``small business'' has the same meaning as under the Small Business
Act.
Based on the analysis in the regulatory evaluation, we estimate
that the 60 small businesses will incur the following per package costs
to comply with the this final rule: (1) $.20 for labels (including
label and associated labor costs); (2) $.80 for alternative
transportation costs ($.32/pound x .25 x 10 pounds); (3) $.60 for costs
associated with transportation delays; and (4) $.90 for handling and
customer service costs). Thus, the total per package cost to a small
business to comply with this final rule is estimated to be $2.50.
We believe that overall cost of the rule for small businesses is
substantially less than $2.50 per shipment. It is our understanding
many of the small businesses included in the study used cargo aircraft
operators, not passenger aircraft cargo service, prior to
implementation of the prohibition. To the extent that these small
businesses were not shipping via passenger cargo service, the estimated
$2.50 per package cost impact would only be imposed on a fraction of
shipments offered for transportation by the small businesses affected
by the final rule.
Based on the above analysis, the PHMSA Administrator certifies that
the amendments adopted under Docket HM-224E will not have a significant
economic impact on a substantial number of small entities.
F. Unfunded Mandates Reform Act of 1995
This final rule does not impose any mandate on a State, local, or
Native American tribal government and, accordingly, does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995. The
final rule does not result in costs of $120.7 million or more, in the
aggregate, to any of the following: State, local, or Native American
tribal governments, or the private sector.
G. Paperwork Reduction Act
PHMSA currently has an approved information collection under OMB
Control Number 2137-0034, (``Hazardous Materials Shipping Papers and
Emergency Response Information'' with an expiration date of May 31,
2008. This final rule resulted in a minimal increase in annual burden
and costs based on a new information collection requirement regarding
the shipment of lithium batteries.
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 new information
collection request that OMB approved based on the requirements in the
rule. PHMSA developed burden estimates to reflect changes in this rule.
PHMSA estimates the new total information collection and recordkeeping
burden resulting from the rule are as follows:
Hazardous Materials Shipping Papers & Emergency Response
Information:
OMB Control No. 2137-0034:
[[Page 44947]]
Total Annual Number of Respondents: 250,000.
Total Annual Responses: 260,000,000.
Total Annual Burden Hours: 6,500,834.
Total Annual Burden Cost: $6,510,000.
Requests for a copy of this information collection should be
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety
Administration, Room 8430, 400 Seventh Street, SW., Washington, DC
20590-0001, Telephone (202) 366-8553.
In addition, you may submit comments specifically related to the
information collection burden to the PHMSA Desk Officer, OMB, at fax
number 202-395-6974. Under the Paperwork Reduction Act of 1995, no
person is required to respond to an information collection unless it
displays a valid OMB control number.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347) requires Federal agencies to consider the
consequences of major federal actions and prepare a detailed statement
on any action significantly affecting the quality of the human
environment. There are no significant environmental impacts associated
with this final rule.
I. Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70, pages 19477-78), or at http://dms.dot.gov
.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and 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.
0
Accordingly, the interim final rule amending 49 CFR parts 171, 172,
173, and 175 that was published at 69 FR 75207 on December 15, 2004, is
adopted as a final rule with the following changes and in consideration
of the foregoing, 49 CFR Chapter I is amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 1.45 and CFR 1.53; Pub
L. 101-410 section 4 (28 U.S.C. 2461); Pub. L. 104-134, section
31001.
0
2. In Sec. 171.8, definitions for ``Aggregate lithium content'',
``Equivalent lithium content'', and ``Lithium content'' are added in
appropriate alphabetical order to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Aggregate lithium content means the sum of the grams of lithium
content or equivalent lithium content contained by the cells comprising
a battery.
* * * * *
Equivalent lithium content means, for a lithium-ion cell, the
product of the rated capacity, in ampere-hours, of a lithium-ion cell
times 0.3, with the result expressed in grams. The equivalent lithium
content of a battery equals the sum of the grams of equivalent lithium
content contained in the component cells of the battery.
* * * * *
Lithium content means the mass of lithium in the anode of a lithium
metal or lithium alloy cell. The lithium content of a battery equals
the sum of the grams of lithium content contained in the component
cells of the battery. For a lithium-ion cell see the definition for
``equivalent lithium content''.
* * * * *
0
3. In Sec. 171.12, paragraph (a)(6) is added to read as follows:
Sec. 171.12 North American Shipments.
(a) * * *
(6) Primary lithium batteries and cells. Packages containing
primary lithium batteries and cells that meet the exception in Sec.
172.102, Special Provision 188 or 189 of this subchapter must be marked
``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER
AIRCRAFT'' or ``LITHIUM METAL BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT.'' The provisions of this paragraph do not apply to
packages that contain 5 kg (11 pounds) net weight or less of primary
lithium batteries cells that are contained in or packed with equipment.
* * * * *
0
4. In Sec. 171.24, paragraph (d)(1)(ii) is revised to read as follows:
Sec. 171.24 Additional requirements for the use of the ICAO Technical
Instructions.
* * * * *
(d) * * *
(1) * * *
(ii) Primary lithium batteries and cells. Primary lithium batteries
and cells are forbidden for transportation aboard passenger-carrying
aircraft. Equipment containing or packed with primary lithium batteries
or cells are forbidden for transport aboard passenger-carrying aircraft
except as provided in Sec. 172.102, Special Provision A101 of this
subchapter. When transported aboard cargo-only aircraft, packages
containing primary lithium batteries and cells transported in
accordance with Special Provision A45 of the ICAO Technical
Instructions must be marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'' or ``LITHIUM METAL BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.'' This marking is
not required on packages that contain 5 kg (11 pounds) net weight or
less of primary lithium batteries or cells that are contained in or
packed with equipment.
* * * * *
0
5. In Sec. 171.25, paragraph (b)(3) is added to read as follows:
Sec. 171.25 Additional requirements for the use of the IMDG Code.
* * * * *
(b) * * *
[[Page 44948]]
(3) Packages containing primary lithium batteries and cells that
are transported in accordance with Special Provision 188 of the IMDG
Code must be marked ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'' or ``LITHIUM METAL BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.'' This marking is
not required on packages that contain 5 kg (11 pounds) net weight or
less of primary lithium batteries and cells that are contained in or
packed with equipment.
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
0
6. The authority citation for part 172 is revised to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.
Sec. 172.101 [Amended]
0
7. In Sec. 172.101, in the Hazardous Materials Table, the following
changes are made:
0
a. For the entry ``Lithium batteries, contained in equipment'', Column
(7), Special Provisions, is revised to read ``29, 188, 189, 190, A54,
A55, A101, A104'' and Column (9A) is revised to read ``See A101,
A104.''
0
b. For the entry ``Lithium batteries packed with equipment'', Column
(7), Special Provisions, is revised to read ``29, 188, 189, 190, A54,
A55, A101, A103'' and Column (9A) is revised to read ``See A101,
A103.''
0
c. For the entry ``Lithium battery'', Column 7, Special Provisions, is
revised to read ``29, 188, 189, 190, A54, A55, A100.''
0
8. In Sec. 172.102, in paragraph (c)(1), in Special Provisions 134 and
157, the phrase ``A102'' is amended to read ``A101'', Special Provision
29 is revised, Special Provisions 188, 189, 190 are added, in paragraph
(c)(2) Special Provision A102 is removed and Special Provisions A101,
A103, and A104 are revised to read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
29 For transportation by motor vehicle, rail car or vessel,
production runs (exceptions for prototypes can be found in Sec.
173.185(e)) of not more than 100 lithium cells or batteries are
excepted from the testing requirements of Sec. 173.185(a)(1) if--
a. For a lithium metal cell or battery, the lithium content is
not more than 1.0 g per cell and the aggregate lithium content is
not more than 2.0 g per battery, and, for a lithium-ion cell or
battery, the equivalent lithium content is not more than 1.5 g per
cell and the aggregate equivalent lithium content is not more than 8
g per battery;
b. The cells and batteries are transported in an outer packaging
that is a metal, plastic or plywood drum or metal, plastic or wooden
box that meets the criteria for Packing Group I packagings; and
c. Each cell and battery is individually packed in an inner
packaging inside an outer packaging and is surrounded by cushioning
material that is non-combustible, and non-conductive.
* * * * *
188 Small lithium cells and batteries. Lithium cells or
batteries, including cells or batteries packed with or contained in
equipment, are not subject to any other requirements of this
subchapter if they meet all of the following:
a. Primary lithium batteries and cells. (1) Primary lithium
batteries and cells are forbidden for transport aboard passenger-
carrying aircraft. The outside of each package that contains primary
(nonrechargeable) lithium batteries or cells must be marked
``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT'' or ``LITHIUM METAL BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'' on a background of contrasting
color. The letters in the marking must be:
(i) At least 12 mm (0.5 inch) in height on packages having a
gross weight of more than 30 kg (66 pounds); or
(ii) At least 6 mm (0.25 inch) on packages having a gross weight
of 30 kg (66 pounds) or less, except that smaller font may be used
as necessary to fit package dimensions; and
(2) The provisions of paragraph (a)(1) do not apply to packages
that contain 5 kg (11 pounds) net weight or less of primary lithium
batteries or cells that are contained in or packed with equipment
and the package contains no more than the number of lithium
batteries or cells necessary to power the piece of equipment;
b. For a lithium metal or lithium alloy cell, the lithium
content is not more than 1.0 g. For a lithium-ion cell, the
equivalent lithium content is not more than 1.5 g;
c. For a lithium metal or lithium alloy battery, the aggregate
lithium content is not more than 2.0 g. For a lithium-ion battery,
the aggregate equivalent lithium content is not more than 8 g;
d. Effective October 1, 2009, the cell or battery must be of a
type proven to meet the requirements of each test in the UN Manual
of Tests and Criteria (IBR; see Sec. 171.7 of this subchapter);
e. Cells or batteries are separated so as to prevent short
circuits and are packed in a strong outer packaging or are contained
in equipment;
f. Effective October 1, 2008, except when contained in
equipment, each package containing more than 24 lithium cells or 12
lithium batteries must be:
(1) Marked to indicate that it contains lithium batteries, and
special procedures should be followed in the event that the package
is damaged;
(2) Accompanied by a document indicating that the package
contains lithium batteries and special procedures should be followed
in the event that the package is damaged;
(3) Capable of withstanding a 1.2 meter drop test in any
orientation without damage to cells or batteries contained in the
package, without shifting of the contents that would allow short
circuiting and without release of package contents; and
(4) Gross weight of the package may not exceed 30 kg (66
pounds). This requirement does not apply to lithium cells or
batteries packed with equipment;
g. Electrical devices must conform to Sec. 173.21 of this
subchapter; and
h. Lithium batteries or cells are not authorized aboard an
aircraft in checked or carry-on luggage except as provided in Sec.
175.10.
189 Medium lithium cells and batteries. Effective October 1,
2008, when transported by motor vehicle or rail car, lithium cells
or batteries, including cells or batteries packed with or contained
in equipment, are not subject to any other requirements of this
subchapter if they meet all of the following:
a. The lithium content anode of each cell, when fully charged,
is not more than 5 grams.
b. The aggregate lithium content of the anode of each battery,
when fully charged, is not more than 25 grams.
c. The cells or batteries are of a type proven to meet the
requirements of each test in the UN Manual of Tests and Criteria
(IBR; see Sec. 171.7 of this subchapter). A cell or battery and
equipment containing a cell or battery that was first transported
prior to January 1, 2006 and is of a type proven to meet the
criteria of Class 9 by testing in accordance with the tests in the
UN Manual of Tests and Criteria, Third Revised Edition, 1999, need
not be retested.
d. Cells or batteries are separated so as to prevent short
circuits and are packed in a strong outer packaging or are contained
in equipment.
e. The outside of each package must be marked ``LITHIUM
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT AND VESSEL'' on a
background of contrasting color, in letters:
(1) At least 12 mm (0.5 inch) in height on packages having a
gross weight of more than 30 kg (66 pounds); or
(2) At least 6 mm (0.25 inch) on packages having a gross weight
of 30 kg (66 pounds) or less, except that smaller font may be used
as necessary to fit package dimensions.
f. Except when contained in equipment, each package containing
more than 24 lithium cells or 12 lithium batteries must be:
(1) Marked to indicate that it contains lithium batteries, and
that special procedures should be followed in the event that the
package is damaged;
(2) Accompanied by a document indicating that the package
contains lithium batteries and that special procedures should be
followed in the event that the package is damaged;
(3) Capable of withstanding a 1.2 meter drop test in any
orientation without damage
[[Page 44949]]
to cells or batteries contained in the package, without shifting of
the contents that would allow short circuiting and without release
of package contents; and
(4) Gross weight of the package may not exceed 30 kg (66
pounds). This requirement does not apply to lithium cells or
batteries packed with equipment.
g. Electrical devices must conform to Sec. 173.21 of this
subchapter.
190 Until the effective date of the standards set forth in
Special Provision 189, medium lithium cells or batteries, including
cells or batteries packed with or contained in equipment, are not
subject to any other requirements of this subchapter if they meet
all of the following:
a. Primary lithium batteries and cells. (1) Primary lithium
batteries and cells are forbidden for transport aboard passenger-
carrying aircraft. The outside of each package that contains primary
(nonrechargeable) lithium batteries or cells must be marked
``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD
PASSENGER AIRCRAFT'' or ``LITHIUM METAL BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'' on a background of contrasting
color. The letters in the marking must be:
(i) At least 12 mm (0.5 inch) in height on packages having a
gross weight of more than 30 kg (66 pounds); or
(ii) At least 6 mm (0.25 inch) on packages having a gross weight
of 30 kg (66 pounds) or less, except that smaller font may be used
as necessary to fit package dimensions; and
(2) The provisions of paragraph (a)(1) do not apply to packages
that contain 5 kg (11 pounds) net weight or less of primary lithium
batteries or cells that are contained in or packed with equipment
and the package contains no more than the number of lithium
batteries or cells necessary to power the piece of equipment.
b. The lithium content of each cell, when fully charged, is not
more than 5 grams.
c. The aggregate lithium content of each battery, when fully
charged, is not more than 25 grams.
d. The cells or batteries are of a type proven to meet the
requirements of each test in the UN Manual of Tests and Criteria
(IBR; see Sec. 171.7 of this subchapter). A cell or battery and
equipment containing a cell or battery that was first transported
prior to January 1, 2006 and is of a type proven to meet the
criteria of Class 9 by testing in accordance with the tests in the
UN Manual of Tests and Criteria, Third Revised Edition, 1999, need
not be retested.
e. Cells or batteries are separated so as to prevent short
circuits and are packed in a strong outer packaging or are contained
in equipment.
f. Electrical devices must conform to Sec. 173.21 of this
subchapter.
* * * * *
Code/Special Provisions
* * * * *
(2) * * *
* * * * *
A101 A primary lithium battery or cell packed with or contained
in equipment is forbidden for transport aboard a passenger carrying
aircraft unless the equipment and the battery conform to the
following provisions and the package contains no more than the
number of lithium batteries or cells necessary to power the intended
piece of equipment:
(1) The lithium content of each cell, when fully charged, is not
more than 5 grams.
(2) The aggregate lithium content of the anode of each battery,
when fully charged, is not more than 25 grams.
(3) The net weight of lithium batteries does not exceed 5 kg (11
pounds).
A103 Equipment is authorized aboard passenger carrying aircraft
if the gross weight of the inner package of secondary lithium
batteries or cells packed with the equipment does not exceed 5 kg
(11 pounds).
A104 The net weight of secondary lithium batteries or cells
contained in equipment may not exceed 5 kg (11 pounds) in packages
that are authorized aboard passenger carrying aircraft.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
9. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
0
10. Section 173.185 is revised to read as follows:
Sec. 173.185 Lithium cells and batteries.
(a) Cells and batteries. A lithium cell or battery, including a
lithium polymer cell or battery and a lithium-ion cell or battery, must
conform to all of the following requirements:
(1) Be of a type proven to meet the requirements of each test in
the UN Manual of Tests and Criteria (IBR; see Sec. 171.7 of this
subchapter). A cell or battery and equipment containing a cell or
battery that was first transported prior to January 1, 2006 and is of a
type proven to meet the criteria of Class 9 by testing in accordance
with the tests in the UN Manual of Tests and Criteria, Third Revised
Edition, 1999, need not be retested.
(2) Incorporate a safety venting device or otherwise be designed in
a manner that will preclude a violent rupture under conditions normally
incident to transportation.
(3) Be equipped with an effective means to prevent dangerous
reverse current flow (e.g., diodes, fuses, etc.) if a battery contains
cells or series of cells that are connected in parallel.
(4) 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 battery or cell must be
packed in inner packagings in such a manner as to prevent short
circuits, including movement which could lead to short circuits. The
inner packaging 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).
(5) Be equipped with an effective means of preventing external
short circuits.
(6) Except as provided in paragraph (d) 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.
(b) Lithium cells or batteries packed with equipment. Lithium cells
or batteries packed with equipment may be transported as Class 9
materials if the batteries and cells meet all the requirements of
paragraph (a) of this section. The equipment and the packages of cells
or batteries must be further packed in a strong outer packaging. The
cells or batteries must be packed in such a manner as to prevent short
circuits, including movement that could lead to short circuits.
(c) Lithium cells or batteries contained in equipment. Lithium
cells or batteries contained in equipment may be transported as Class 9
materials if the cells and batteries meet all the requirements of
paragraph (a) of this section, except paragraph (a)(4) of this section,
and the equipment is packed in a strong outer packaging that is
waterproof or is made waterproof through the use of a liner unless the
equipment is made waterproof by nature of its construction. The
equipment and cells or batteries must be secured within the outer
packaging and be packed so as to prevent movement, short circuits, and
accidental operation during transport.
(d) 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, disposal site or for purposes of
recycling is excepted from the specification packaging requirements of
paragraph (a)(4) of this section and the requirements of paragraphs
(a)(1) and (a)(6) 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.
[[Page 44950]]
(e) Shipments for testing (prototypes). A lithium cell or battery
is excepted from the requirements of (a)(1) of this section when
transported by motor vehicle for purposes of testing. The cell or
battery must be individually packed in an inner packaging, surrounded
by cushioning material that is non-combustible and nonconductive. The
cell or battery must be transported as a Class 9 material.
(f) A lithium cell or battery that does not comply with the
provisions of this subchapter may be transported only under conditions
approved by the Associate Administrator.
(g) 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.
0
11. In Sec. 173.219, paragraph (b)(3) is revised to read as follows:
Sec. 173.219 Life-saving appliances.
* * * * *
(b) * * *
(3) Electric storage batteries and lithium batteries (Life saving
appliances containing lithium batteries must be transported in
accordance with Sec. 173.185, and Special Provisions 188, 189, A101,
A103 and A104 as applicable.);
* * * * *
Sec. 173.220 [Amended]
0
12. In Sec. 173.220, in paragraph (d), the phrase ``Special Provision
A102'' is amended to read ``Special Provision A101''.
PART 175--CARRIAGE BY AIRCRAFT
0
13. The authority citation for part 175 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.53.
0
14. In Sec. 175.10, paragraph (a)(17) is revised to read as follows:
Sec. 175.10 Exceptions.
(a) * * *
(17) Except as provided in Sec. 173.21 of this subchapter,
consumer electronic and medical devices (watches, calculating machines,
cameras, cellular phones, lap-top and notebook computers, camcorders,
etc.) containing lithium cells or batteries and spare lithium batteries
and cells for these devices, when carried by passengers or crew members
for personal use. 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, an aggregate equivalent lithium
content of not more than 8 grams per battery, except that up to two
batteries with an aggregate equivalent lithium content of more than 8
grams but not more than 25 grams may be carried.
* * * * *
Issued in Washington, DC, on July 31, 2007, under authority
delegated in 49 CFR Part 1.
Thomas J. Barrett,
Administrator.
[FR Doc. E7-15213 Filed 8-8-07; 8:45 am]
BILLING CODE 4910-60-P