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Pipeline & Hazardous Materials Safety Administration Modifies Lithium Batteries Transportation Requirements(Targeted News Service Via Acquire Media NewsEdge) Targeted News Service WASHINGTON, Aug. 7 -- The U.S. Pipeline & Hazardous Materials Safety Administration published the following rule in the Federal Register: Hazardous Materials: Transportation of Lithium Batteries A Rule by the Pipeline and Hazardous Materials Safety Administration on 08/06/2014 Publication Date: Wednesday, August 06, 2014 Agencies: Department of Transportation Pipeline and Hazardous Materials Safety Administration Entry Type: Rule Action: Final rule. Document Citation: 79 FR 46011 Page: 46011 -46040 (30 pages) CFR: 49 CFR 171 49 CFR 172 49 CFR 173 49 CFR 175 Agency/Docket Number: Docket No. PHMSA-2009-0095 (HM-224F) RIN: 2137-AE44 Document Number: 2014-18146 Shorter URL: https://federalregister.gov/a/2014-18146 Action Final Rule. Summary PHMSA, in consultation with the Federal Aviation Administration (FAA), is modifying the requirements governing the transportation of lithium cells and batteries. This final rule revises hazard communication and packaging provisions for lithium batteries and harmonizes the Hazardous Materials Regulations (HMR) with applicable provisions of the United Nations (UN) Model Regulations, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the International Maritime Dangerous Goods (IMDG) Code. DATES: Effective Date: August 6, 2014. Voluntary Compliance Date: Voluntary compliance with all amendments is authorized August 6, 2014. Delayed Compliance Date: Unless otherwise specified, compliance with the amendments adopted in this final rule is February 6, 2015. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 6, 2014. FOR FURTHER INFORMATION CONTACT: Charles E. Betts or Kevin A. Leary Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366-8553, or Janet McLaughlin, Office of Hazardous Materials Safety, Federal Aviation Administration, telephone 202-385-4897. SUPPLEMENTARY INFORMATION: I. Executive Summary In this final rule, PHMSA is revising requirements in the HMR applicable to the transport of lithium cells and batteries consistent with the UN Model Regulations, the ICAO Technical Instructions and the IMDG Code. The final rule: (1) Replaces equivalent lithium content with Watt-hours for lithium ion cells and batteries; (2) adopts separate shipping descriptions for lithium metal batteries and lithium ion batteries; (3) revises provisions for the transport of small and medium lithium cells and batteries including cells and batteries packed with, or contained in, equipment; (4) revises the requirements for the transport of lithium batteries for disposal or recycling; (5) harmonizes the provisions for the transport of low production and prototype lithium cells and batteries with the ICAO Technical Instructions and the IMDG Code; and (6) adopts new provisions for the transport of damaged, defective, and recalled lithium batteries. PHMSA is not adopting proposals to: (1) Modify provisions for what constitutes a change to a battery design in the UN Manual of Tests and Criteria; (2) require lithium cells and batteries to be marked with an indication that the cell or battery design passed each of the appropriate tests outlined in the UN Manual of Tests and Criteria; or (3) limit the locations on board aircraft where shipments of lithium cells and batteries could be stowed. The provisions of this final rule are consistent with Section 828 of the "FAA Modernization and Reform Act of 2012" (Pub. L 112-98, 126 Stat.133 (Feb. 14, 2012)), which prohibits DOT from issuing or enforcing any regulation or other requirement regarding the air transportation of lithium cells or batteries if the requirement is more stringent than the requirements of the ICAO Technical Instructions. PHMSA estimates that the costs of this rule would total $12.1 million over the next 10 years when applying a 3 percent discount rate, and $10.8 million when applying a 7 percent rate. PHMSA also developed high and low cost estimates to incorporate uncertainty in quantifying costs--at a 7 percent discount rate the low estimate of costs is $7.4 million and the high estimate is $15.0 million. These figures acknowledge that the HMR already authorize the use of the ICAO Technical Instructions and the IMDG Code for most lithium battery shipments. Further, shipments of lithium batteries transported to or from the U.S. must conform to either the ICAO Technical Instructions by air or the IMDG code by vessel. Domestic air and vessel transport of lithium batteries is the final remaining segment likely to be impacted by the amendments in this final rule. Commenters representing air carriers indicated that international operators and most U.S. operators conform to the provisions of the ICAO Technical Instructions because of the desire to have a single set of operational practices and training standards. PHMSA anticipates cost savings resulting from harmonization of certain requirements, including those related to proper shipping names and Watt-hour ratings. Separate entries for lithium metal and lithium ion batteries have appeared in the ICAO Technical Instructions and the IMDG code since 2009. PHMSA did not adopt those entries at that time but noted that the then new entries could be used both domestically and internationally, and for transportation by motor vehicle and rail immediately before or after being transported by aircraft. [74 FR 2207]. While the HMR permit the use of these shipping descriptions because these entries do not appear in the Hazardous Materials Table (HMT; section 172.101) use of these descriptions continues to frustrate shipments. Similarly, the ICAO Technical Instructions and the IMDG code use the term "Watt-hours" to measure the size of lithium ion batteries, while the HMR use the term "equivalent lithium content." While both of these provide an indication of the size of a lithium ion battery, they are not interchangeable units and this difference frustrates shippers attempting to determine the appropriate shipping requirements. PHMSA anticipates some safety benefits resulting from risk reduction through a combination of: Reliable packaging; hazard communication; inspection and acceptance checks prior to loading cargo aboard aircraft; pilot notification; and employee training, many of which have already been adopted into current practice. II. Background PHMSA published a notice of proposed rulemaking (NPRM) in this docket (75 FR 1302, Jan. 11, 2010) to enhance the transport of lithium cells and batteries through elimination of regulatory exceptions, increased battery design testing requirements, air cargo stowage requirements, and clarification of certain other provisions. In that NPRM, PHMSA discussed: (1) National Transportation Safety Board (NTSB) Recommendations resulting from the February 7, 2006, cargo aircraft accident at Philadelphia International Airport suspected to have been caused by lithium batteries; (2) numerous minor incidents of smoke or fire involving lithium cells and batteries in air transportation, which may be "precursors" to a catastrophic accident; and (3) research conducted by FAA William J. Hughes Technical Center (Technical Center), which examined the characteristics of fires involving packages of lithium batteries, the effectiveness of conventional fire suppression systems at mitigating the impacts of these fires, and the ability of packages to contain a fire involving lithium batteries. 75 FR at 1303-07. Specifically, in the NPRM, PHMSA proposed to: Adopt or revise various definitions of: "Lithium cell or battery"; "lithium content"; "lithium ion cell or battery"; "lithium metal cell or battery"; "short circuit"; and "Watt-hour." Adopt Watt-hour, in place of "equivalent lithium content", as the measure of power (or size) of a lithium ion cell or battery. Require a shipper, carrier, package owner, or person reporting an incident provide reasonable assistance in an investigation including access to the damaged package or article. Replace the single proper shipping name and UN identification number for "lithium batteries" with separate proper shipping names and UN identification numbers for lithium metal batteries and lithium ion batteries and also adopt separate proper shipping names and UN identification numbers for lithium metal and lithium ion batteries packed with, or contained in, equipment. Consolidate requirements for shipping lithium cells and batteries, and exceptions into section 173.185, by: a-- Requiring cells and batteries to be tested in accordance with the latest revisions to the UN Manual of Tests and Criteria, and require manufacturers to retain evidence of successful completion of UN testing. PHMSA also indicated it was considering requiring the presence of a "quality mark" to indicate successful testing. a-- Eliminating the exceptions for small cells and batteries in air transportation, except with respect to extremely small cells packed with or contained in equipment. a-- Providing certain relaxed requirements for (1) the shipment of low production runs and prototype batteries, and (2) batteries being shipped for recycling or disposal. Require lithium cells and batteries, when transported by aircraft, to be stowed in a location accessible by a crew member or a location equipped with an FAA-approved detection and fire suppression system. PHMSA proposed an effective date for a final rule 75 days after publication in the Federal Register and invited comments concerning the additional costs that would result from such a compliance schedule, practical difficulties associated with quickly coming into compliance with the provisions of the January 11, 2010, NPRM, and any other issues that PHMSA should consider in making a decision on the compliance schedule. PHMSA also invited commenters to address the feasibility and practicability of a phased compliance schedule, under which certain provisions of the final rule would become effective on a faster schedule than other provisions, for which immediate compliance would be more difficult. A total of 125 persons submitted comments on the proposals in the January 11, 2010, NPRM. Commenters included battery and electrical device manufacturers, airlines, airline pilots, retailers, battery recyclers, members of the U.S. House of Representatives, the U.S. Small Business Administration (SBA), the U.S. Chamber of Commerce, and foreign governments. PHMSA also received comments from industry trade associations and other advocates representing the above named groups. Commenters expressed support for the overall goal of improving the safe transport of lithium batteries by all modes, especially air. The commenters also stressed the need for consistency between the HMR and the ICAO Technical Instructions. Several commenters suggested that even small deviations from the ICAO Technical Instructions in the transport of lithium batteries would cause significant disruptions. These commenters stated that differences between U.S. and international requirements for lithium batteries detract from safety by creating confusion and excessively complicating the detailed set of regulations that already apply to lithium battery shipments. SBA recommended that PHMSA consider the public comments to the proposed rule, assess the impact of the proposed rule on small businesses, and consider feasible alternatives that would meet the agency's safety objectives while minimizing the economic impact on small business. The majority of commenters focused on the proposals for: (1) Eliminating provisions for small lithium batteries currently found in section 172.102, special provision 188; (2) modifying the criteria under which a lithium battery would be considered to be a new type; and (3) prescribing aircraft stowage requirements. To review the NPRM, draft regulatory evaluation, environmental assessment, comments, letters, and other materials considered in this regulatory action go to http://www.regulations.gov, docket number PHMSA-2009-0095. To locate a specific commenter by name simply use the search function provided by regulations.gov. Since publication of the January 11, 2010 NPRM: PHMSA hosted a public meeting attended by 100 individuals (outside of PHMSA and FAA) representing a total of 73 companies, organizations and other entities, 16 of whom made presentations. A transcript of this meeting is in the docket (at PHMSA-2009-0095-0189). [1] The FAA Technical Center continued to study the risks presented by lithium batteries in air transportation and ways to address those risks and published reports on "Fire Protection for the Shipment of Lithium Batteries in Aircraft Cargo Compartments" (November 2010) and, in conjunction with Transport Canada, on a "Freighter Airplane Cargo Fire Risk Model" (September 2011). Copies of these reports are in the docket (at PHMSA-2009-0095-0235 and -0240, respectively). PHMSA evaluated transportation incidents involving lithium batteries and one cargo aircraft accident in which an aircraft transporting lithium batteries was destroyed and both pilots were killed. [2] The ICAO Dangerous Goods Panel adopted revisions into the 2013-2014 ICAO Technical Instructions that narrow exceptions for lithium metal and lithium ion cells and batteries not packed with, or contained in, equipment when transported by aircraft. PHMSA incorporated the 2013-2014 ICAO Technical Instructions by reference into the HMR in docket number PHMSA2012-0027 (HM-215L), 78 FR 988 (January 7, 2013). [3] In February 2012, Congress passed and the president signed the "FAA Modernization and Reform Act of 2012" that specifically prohibits DOT agencies from issuing or enforcing regulations regarding the air transport of lithium cells or batteries, whether transported separately or packed with, or contained in, equipment, if the requirement is more stringent than the requirements of the ICAO Technical Instructions. [4] In April 2012 and January 2013, PHMSA stated that it was considering harmonizing requirements in the HMR on the transportation of lithium batteries with changes adopted in the 2013-2014 ICAO Technical Instructions and requested additional comments on (1) the effect of those changes, (2) whether to require compliance with the ICAO Technical Instructions for all shipments by air, both domestic and international, and (3) the impacts if PHMSA failed to adopt specific provisions in the ICAO Technical Instructions into the HMR. 77 FR 21714 (Apr. 11, 2012), 78 FR 1119 (Jan. 7, 2013). The changes adopted in the ICAO Technical Instructions require additional shipper training, markings, labels, and pilot notification for packages containing more than 8 lithium cells or 2 lithium batteries, which were previously not subject these requirements. Commenters to the April 11, 2012 and the January 7, 2013 notices unanimously supported harmonization of the HMR with the 2013-2014 ICAO Technical Instructions while acknowledging that the changes adopted by the ICAO would result in increased costs in training, package markings and revised procedures. Commenters also noted that, if PHMSA failed to harmonize the HMR with the current ICAO Technical Instructions, shippers and carriers would continue to struggle with the differences between the two sets of regulations. Commenters further stated that PHMSA should not adopt proposals in the NPRM that would be more restrictive than the ICAO Technical Instructions because this would place U.S. shippers and carriers at a disadvantage relative to their international counterparts and be in violation of the FAA Modernization and Reform Act of 2012. Commenters also opposed specifically maintaining an option to use the current HMR, instead of the ICAO Technical Instructions, and noted that permitting shippers and carriers to choose compliance with alternative standards in domestic and international commerce would undermine safety because the ICAO provisions are more stringent than the current HMR. Several air carriers indicated that because the 2013-2014 ICAO Technical Instructions would become effective January 1, 2013 they would be in compliance with those standards by that date regardless of whether (or when) PHMSA issued a final rule. Other commenters requested a transition period between 6 and 18 months to permit companies to conduct training and adjust their operations to adapt to these changes. Outside of a delayed compliance date, commenters did not suggest any other ways to reduce the compliance burden. The National Association of Manufacturers (NAM) indicated that supply chains will have to adapt to a final rule that adopts the provisions of the 2013-2014 ICAO Technical Instructions, but the costs of implementing these provisions would vary from one manufacturer to another. The Cargo Airline Association (CAA) suggested that the revisions in the 2013-2014 ICAO Technical Instructions might result in a shift in transport from the air mode to other modes (such as ground) but did not attempt to quantify this as shipping decisions would vary from company to company. Air carriers and international shippers stressed the desire for a single system to eliminate errors and streamline training. Further, the commenters asserted that any benefits associated with maintaining an option would be minor, accrued by a small number of entities and that these benefits would be more than offset by increased confusion experienced by shippers and air carriers. Additionally, commenters suggested that a failure by PHMSA to mandate the use of the ICAO Technical Instructions would create an environment where the U.S. permits a lesser standard than the rest of the world, placing air carriers and pilots at increased risk and hampering enforcement of the ICAO Technical Instructions. Based on all the comments received, and our analysis of the recent changes to the ICAO Technical Instructions, we are adopting into the HMR requirements consistent with 2013-2014 ICAO Technical Instructions, the 17th revised edition of the UN Model Regulations, the 5th Revised Edition of the UN Manual of Tests and Criteria Amendment 1, and Amendment 36-12 of the IMDG Code. In the section-by-section review, each of the proposals, with corresponding comments, and subsequent revisions is discussed in more detail. For convenience, a list of commenters is provided below: 3M Company Airlines for America (A4A), formerly Air Transport Association (ATA) ACCO Brands (ACCO) Advanced Medical Technology Association (AdvaMed) Airforwarders Association (Afa) The Airline Pilots Association, International (ALPA) Airtec GmbH & Co. KG (Airtec) Alaska Airlines The American Trucking Associations (Trucking) Association of Hazmat Shippers, Inc. (AHS) Association of International Automobile Manufacturers, Inc. (AIAM) Asurion Corporation AT&T Services Inc. Batteries Plus LLC Battery Association of Japan (BAJ) Bayer HealthCare Diabetes Care Berlin Heart Inc. Best Buy Corporation Biomet Incorporated Black & Decker Boat U.S. Foundation Boston Power Boston Scientific Corporation Camera and Imaging Products Association (CIPA) Cargo Airline Association (CAA) Casio America (Casio) Clean Harbors Environmental Services Coalition of Airline Pilots Associations (CAPA) Communications and Information Network Association of Japan (CIAJ) CompuCom Systems, Inc. Consumer Electronics Association (CEA) Consumer Electronics Retail Coalition (CERC) Control Technology Inc. Corporate Radiation Safety and Dangerous Goods Transport (Siemens) Council on Safe Transport of Hazardous Articles (COSTHA) Covidien CTIA--The Wireless Association Dangerous Goods Advisory Council (DGAC) Dangerous Goods Trainers Association (DGTA) Delphi Automotive (Delphi) Delta Airlines (Delta) Deutsche Post DHL (DHL) DGM USA Digital Europe Embassy of Israel Embassy of the Republic of Korea Energizer Battery Manufacturing, Inc. (Energizer) EnteroMedics, Inc. Environmental Technology Council European Portable Battery Association (EPBA) European Union Express Association of America (EAA) Fedco Electronics, Inc. (FedCo) FedEX Express (FedEx) Garmin International, Inc. (Garmin) GE Corporation (GE) GRC Wireless Recycling (GRC) Greatbatch, Inc. Hephner TV & Electronics Hitachi Maxell, Ltd. Horizon Air International Air Transport Association (IATA) Infinite Power Solutions, Inc. Information Technology Industry Council (ITI) Infotrac International Federation of Airline Pilots Associations (IFALPA) The Japan Electrical Manufacturer's Association (JEMA) Japan Electronics & Information Technology Industries Association (JEITA) Japan Machinery Center for Trade and Investment (JMC) Johnson Controls Korea International Trade Association (KITA), the Korea Electronics Association (KEA), and the Battery R&D Association of Korea (KORBA) Learjet Inc. Leroy Bennet Lifescan, Inc. and Animas Corporation Lithium Battery Industry Coalition Medical Device Manufacturers Association (MDMA) Medtronic, Inc. Mercedes-Benz USA, LLC MicroSun Technologies LLC Motorola, Inc. National Association of Manufacturers (NAM) National Fire Protection Association (NFPA) National Funeral Directors Association (NFDA) The National Industrial Transportation League (NITL) National Retail Federation (NRF) National Transportation Safety Board (NTSB) National Electrical Manufacturers Association (NEMA) NetApp, Inc. Nexergy National Institute of Standards and Technology/US Department of Commerce (on behalf of Japan and on behalf of Korea) Nokia Inc. The North American Automotive Hazmat Action Committee (NAAHAC) Northern Air Cargo (NAC) Olympus Corporation of the Americas (Olympus) Organ Recovery Systems, Inc. Palladium Energy Panasonic Corporation of America (Panasonic) Photo Marketing Association Quallion LLC (Quallion) RadioShack Corporation Recharge The Rechargeable Battery Association (PRBA) Rechargeable Battery Recycling Corporation (RBRC) Rep. Don Young Rep. John Mica Rep. Robert E. Latta Retail Industry Leaders Association (RILA) Rockwell Automation Rose Electronics Distributing Company Saft Small Business Administration Office of Advocacy (SBA) Security Industry Association Southwest Airlines, Co. (Southwest) Sprint Nextel Corporation (Sprint) SRICI Testing Center St. Jude Medical, Inc. SureFire LLC Techtronic Industries (TTi) The International Air Cargo Association (TIACA) TNR Technical, Inc. Transportation Intermediaries Association (TIA) Transportation Trades Department AFL-CIO (TDD) Troy Rank Tyco Electronics Tyco International United Parcel Service (UPS) United Technologies Corporation (UTC) URS Corporation (URS) US Chamber of Commerce [*Federal RegisterVJ 2014-08-06] For more information about Targeted News Service products and services, please contact: Myron Struck, editor, Targeted News Service LLC, Springfield, Va., 703/304-1897; [email protected]; http://targetednews.com. TNS 22VistaJ-140806-1171590 (c) 2014 Targeted News Service |