Hazardous Materials: Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft (FAA Reauthorization Act of 2018)

 
CONTENT
Federal Register, Volume 84 Issue 44 (Wednesday, March 6, 2019)
[Federal Register Volume 84, Number 44 (Wednesday, March 6, 2019)]
[Rules and Regulations]
[Pages 8006-8028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03812]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 172 and 173
[Docket No. PHMSA-2016-0014 (HM-224I)]
RIN 2137-AF20
Hazardous Materials: Enhanced Safety Provisions for Lithium
Batteries Transported by Aircraft (FAA Reauthorization Act of 2018)
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Interim final rule (IFR).
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SUMMARY: PHMSA issues this interim final rule (IFR) to revise the
Hazardous Materials Regulations for lithium cells and batteries
transported by aircraft. This IFR prohibits the transport of lithium
ion cells and batteries as cargo on passenger aircraft; requires
lithium ion cells and batteries to be shipped at not more than a 30
percent state of charge aboard cargo-only aircraft when not packed with
or contained in equipment; and limits the use of alternative provisions
for small lithium cell or battery shipments to one package per
consignment. This IFR does not restrict passengers or crew members from
bringing personal items or electronic devices containing lithium cells
or batteries aboard aircraft, or restrict cargo-only aircraft from
transporting lithium ion cells or batteries at a state of charge
exceeding 30 percent when packed with or contained in equipment or
devices.
DATES:
    Effective date: This interim final rule is effective on March 6,
2019.
    Comment date: Comments must be received by May 6, 2019.
ADDRESSES: You may submit comments identified by Docket Number [PHMSA-
2016-0014 (HM-224I)] by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Instructions: All submissions must include the agency name and
docket number for this rulemaking at the beginning of the comment. Note
that all comments received will be posted without change to the docket
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Shelby Geller, (202) 366-8553,
Standards and Rulemaking Division, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Current Lithium Battery Transportation Requirements
III. Need for the Rule
    A. FAA Technical Center Testing
    B. ICAO Activities
    C. Risk Potential
    D. Alternative Transport Conditions
IV. Good Cause for Immediate Adoption
V. Summary of Changes
    A. Passenger Aircraft Prohibition
    B. State of Charge Requirement
    C. Consignment and Overpack Restriction
    D. Limited Exceptions to Restrictions on Air Transportation of
Medical Device Cells or Batteries
VI. Regulatory Analysis and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13771
    D. Executive Order 13132
    E. Executive Order 13175
    F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Regulatory Policies and Procedures
    G. Paperwork Reduction Act
    H. Regulation Identifier Number (RIN)
    I. Unfunded Mandates Reform Act
    J. Environmental Assessment
    K. Privacy Act
    L. Executive Order 13609 and International Trade Analysis
    List of Subjects
I. Executive Summary
    The safe transport of lithium batteries by air has been an ongoing
concern due to the unique challenges they pose to safety in the air
transportation environment. Unlike other hazardous materials, lithium
batteries contain both a chemical and an electrical hazard. This
combination of hazards, when involved in a fire encompassing
significant quantities of lithium batteries, may exceed the fire
suppression capability of the aircraft and lead to a catastrophic loss
of the aircraft.
    The Pipeline and Hazardous Materials Safety Administration (PHMSA)
issues this interim final rule (IFR) to amend the Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) to (1) prohibit the transport
of lithium ion cells and batteries as cargo on passenger aircraft; (2)
require all lithium ion cells and batteries to be shipped at not more
than a 30 percent state of charge on cargo-only aircraft; and (3) limit
the use of alternative provisions for small lithium cell or battery to
one package per consignment. These amendments will predominately affect
air carriers (both passenger and cargo-only) and shippers offering
lithium ion cells and batteries for transport as cargo by aircraft. The
amendments will not restrict passengers or crew members from bringing
personal items or electronic devices containing lithium cells or
batteries aboard aircraft, or restrict the air transport of lithium ion
cells or batteries when packed with or
[[Page 8007]]
contained in equipment. To accommodate persons in areas potentially not
serviced daily by cargo aircraft, PHMSA, through the requirement in the
FAA Reauthorization Act of 2018, is providing a limited exception, with
the approval of the Associate Administrator, for not more than two
replacement lithium cells or batteries specifically used for medical
devices to be transported by passenger aircraft. Furthermore, these
batteries may be excepted from the state of charge requirements, when
meeting certain provisions. See ``Section V.D. Limited Exceptions to
Restrictions on Air Transportation of Medical Device Cells or
Batteries'' for further discussion.
    This IFR is necessary to address an immediate safety hazard, meet a
statutory deadline, and harmonize the HMR with emergency amendments to
the 2015-2016 edition of the International Civil Aviation
Organization's Technical Instructions for the Safe Transport of
Dangerous Goods by Air (ICAO Technical Instructions). The serious
public safety hazards associated with lithium battery transportation
and the statutory deadline in the FAA Reauthorization Act of 2018
necessitate the immediate adoption of these standards in accordance
with sections 553(b)(3)(B) and 553(d)(3) of the Administrative
Procedure Act (APA). While PHMSA values public participation in the
rulemaking process, the current risk of a lithium battery incident and
statutory deadline imposed by Congress makes it impractical and
contrary to public interest to delay the effect of this rulemaking
until after a notice and comment period. However, with the publication
of this IFR, PHMSA encourages persons to participate in this rulemaking
by submitting comments containing relevant information, data, or views.
PHMSA will consider all comments received on or before the IFR closing
comment date, consider late-filed comments to the extent practicable,
and make any necessary amendments as appropriate.
    In developing this IFR, PHMSA considered the findings of lithium
battery research conducted by the Federal Aviation Administration's
William J. Hughes Technical Center (FAA Technical Center), the National
Transportation Safety Board (NTSB), and several other well-respected
academic sources on lithium batteries and their hazards. The FAA
Technical Center's research found that lithium batteries subject to
certain conditions could result in adverse events, such as smoke and
fire, that could impair the safe operation of the aircraft.
Specifically, they found that in a lithium battery fire, flammable
gases could collect, ignite, and ultimately exceed the capabilities of
an aircraft's fire suppression system. The ICAO also recognized these
dangers and enacted international regulations, which went into effect
on April 1, 2016. The potential for a catastrophic loss of an aircraft,
the need for harmonization of the HMR with emergency amendments to the
ICAO Technical Instructions, and the statutory deadline in the FAA
Reauthorization Act of 2018 provide compelling justification to
immediately adopt these changes into the HMR without prior notice and
comment.
    A Regulatory Impact Analysis (RIA) is included in the docket for
this rulemaking and supports the amendments made in this IFR. PHMSA
examined the benefits and costs of these rulemaking provisions using
the post-ICAO baseline \1\ as shown in the analysis below. Table 1
shows the costs by affected section and rulemaking provision over a 10-
year period, discounted at a 7 percent rate:
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    \1\ The post-ICAO baseline is the international operating
environment present after April 1, 2016; this would (1) restrict
lithium ion batteries to a 30 percent state of charge for
international air shipments, (2) restrict the number of Section II
packages to one per consignment on international air shipments, and
(3) prohibit the shipping of lithium ion batteries as cargo on
international passenger flights. This environment also includes a
level of voluntary domestic compliance with the above provisions in
the United States.
                Table 1--Summary of Benefits and Costs for Lithium Battery Provisions--Post ICAO
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                                                                                             10-Year quantified
             Provision                       Benefits               Unquantified costs            cost (7%)
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State of Charge...................   Limits the volume   Potential changes  $2,304,551
                                     of flammable gases          in manufacturing           These estimates
                                     emitted by lithium ion      procedures to ensure        include only the
                                     cells propagated in a       compliance with state of    cost for entities
                                     thermal runaway.            charge provision.           to apply for
                                     Results in a less   Reevaluation of     permission to ship
                                     energetic thermal runaway   management practices and    batteries at higher
                                     event if one should occur.  potentially instituting     charge levels.
                                     Reduces the         changes to avoid or
                                     likelihood of thermal       lessen supply chain
                                     propagation from cell to    impacts such as reduced
                                     cell.                       shelf life of batteries
                                     Harmonization       and battery quality
                                     facilitates international   issues.
                                     trade by minimizing the     Additional time
                                     burden of complying with    for end users needed to
                                     multiple or inconsistent    charge the batteries from
                                     safety requirements         30 percent state of
                                     (although currently         charge or less instead of
                                     domestic shippers and       the typical levels of 40
                                     carriers have the option    percent or 50 percent at
                                     to voluntarily comply       which manufacturers
                                     with ICAO requirements).    currently set the state
                                     Consistency between         of charge.
                                     regulations reduces
                                     compliance costs and
                                     helps to avoid costly
                                     frustrations of
                                     international shipments.
[[Page 8008]]

Consignment Limit.................   Reduces the risk    Costs due to       $44,328,936
                                     of fire from shipping       modal shift that might     Costs include
                                     large quantities of         occur from air transport    additional hazard
                                     excepted batteries that     to ground or marine         communication and
                                     were previously being       transport due to higher     employee training.
                                     consolidated in             shipping costs by air.
                                     overpacks, pallets, in      The end receivers may be
                                     single-unit load devices    inconvenienced by longer
                                     and single aircraft cargo   shipping times that imply
                                     compartments..              less prompt access to
                                     Reduces the         goods purchased..
                                     propensity for large
                                     numbers of batteries or
                                     packages shipped in
                                     accordance with
                                     regulatory exceptions..
                                     Harmonization
                                     facilitates international
                                     trade by minimizing the
                                     burden of complying with
                                     multiple or inconsistent
                                     safety requirements
                                     (although currently
                                     domestic shippers and
                                     carriers have the option
                                     to voluntarily comply
                                     with ICAO requirements).
                                     Consistency between
                                     regulations reduces
                                     compliance costs and
                                     helps to avoid costly
                                     frustrations of
                                     international shipments..
Lithium Battery Prohibition as       Safety benefits     Potential          Impact expected low
 Cargo on Passenger Aircraft.        expected to be low or       additional costs to air     given evidence of
                                     none given evidence of      carriers transporting       pre-IFR compliance.
                                     pre-IFR compliance..        cargo shipments of
                                     Eliminates the      lithium ion batteries on
                                     risk of an incident         cargo planes instead of
                                     induced by lithium ion      passenger aircraft. They
                                     batteries shipped as        vary for each air carrier
                                     cargo in a passenger        based on the size of the
                                     aircraft..                  airline and the areas
                                     Eliminates the      they service, the
                                     risk of a fire              availability of cargo-
                                     exacerbated by the          only aircraft fleet, the
                                     presence of lithium ion     capacity usage and cargo
                                     batteries involving the     volume availability of
                                     cargo hold of a passenger   cargo aircraft fleet, and
                                     aircraft..                  the volume of lithium ion
                                     Harmonization       batteries they were
                                     facilitates international   transporting by passenger
                                     trade by minimizing the     airplanes..
                                     burden of complying with    Cost due to modal
                                     multiple or inconsistent    shift that might occur as
                                     safety requirements         higher costs to ship by
                                     (although currently         air may induce shippers
                                     domestic shippers and       to send by ground and
                                     carriers have the option    marine transportation.
                                     to voluntarily comply       The end receivers may be
                                     with ICAO requirements).    inconvenienced by longer
                                     Consistency between         shipping times that imply
                                     regulations reduces         less prompt access to
                                     compliance costs and        goods purchased. This can
                                     helps to avoid costly       have potential impacts on
                                     frustrations of             rural and remote
                                     international shipments.    communities not serviced
                                                                 daily by cargo aircraft
                                                                 or only serviced by
                                                                 passenger aircraft. For
                                                                 customers needing lithium
                                                                 batteries used in
                                                                 devices, other than
                                                                 medical devices, the
                                                                 delays in the delivery of
                                                                 the required batteries
                                                                 could result in a range
                                                                 of consequences depending
                                                                 on their intended need..
                                                                                           ---------------------
    Total.........................  ..........................  ..........................  10-Year: $46,633,487
                                                                                            Annualized:
                                                                                             $6,639,559
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    Based on the analysis described in the RIA, at the mean, PHMSA
estimates the present value costs about $46.6 million over 10 years and
about $6.6 million annualized (at a 7 percent discount rate).
    While PHMSA examined the benefits and the costs of the provisions
of this rulemaking using the post-ICAO baseline as the basis for the
analysis, we acknowledge that using the pre-ICAO baseline \2\ would
produce different cost and benefit figures. That said, given the
significant data uncertainties regarding pre-ICAO baseline and
operational practices, PHMSA was unable to completely quantify the pre-
ICAO baseline. PHMSA has provided a discussion of these qualitative
benefits and costs. For more detail on cost and benefits of the pre-
ICAO baseline, see ``Section 11 Alternative Baseline Analysis'' of the
RIA included in the docket for this rulemaking. PHMSA requests public
comment on the RIA as it applies to the benefits and costs under both
baselines.
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    \2\ The pre-ICAO baseline is the international operating
environment present before April 1, 2016 with: (1) No limitations of
state of charge, (2) No limitation on the number of Section II
packages offered in a single consignment, and (3) No prohibition of
shipping Lithium ion batteries as cargo on passenger carrying
aircraft.
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II. Current Lithium Battery Transportation Requirements
    Lithium cells and batteries fall into one of two basic categories:
lithium metal, including lithium alloy (also known as primary lithium
batteries), and lithium ion, including lithium ion polymer (also known
as secondary lithium batteries). As the name indicates, lithium metal
cells and batteries contain a small amount of metallic lithium or a
lithium alloy. Lithium metal batteries are mostly non-rechargeable and
are often used in medical devices, computer memory, and as replaceable
batteries (AA and AAA size) suitable for electronic devices. The
lithium content in these cells and
[[Page 8009]]
batteries ranges from a fraction of a gram to a few grams and typical
geometries include coin cells, cylindrical, and rectangular.
Conversely, lithium ion cells and batteries contain a lithium compound
(e.g., lithium cobalt dioxide, lithium iron phosphate). Lithium ion
batteries are generally rechargeable and are most often found in
portable computers, mobile phones, and power tools. Common
configurations are cylindrical and rectangular. For the purposes of the
HMR, the size of lithium ion cells and batteries is measured in Watt-
hours (Wh).
    Lithium cells and batteries are capable of efficiently storing
large amounts of energy and have a higher specific energy (capacity)
and energy density relative to other battery chemistries, such as
alkaline, nickel metal hydride (NiMH), and nickel cadmium (NiCd).
However, when subjected to mechanical abuse, internal or external short
circuit, overcharge, or excessive heat, a lithium cell or battery is
susceptible to thermal runaway, which is a chain reaction leading to
self-heating and release of stored energy.3 4 A lithium ion
cell sufficiently heated can induce a thermal runaway event. Cells in
thermal runaway can release excessive heat (up to 1400 [deg]F (760
[deg]C)), as well as flammable and toxic gases, and the heat from a
single cell in thermal runaway can spread to adjacent cells in a
battery or package.5 6 This cascading effect, or spreading,
(hereafter referred to as propagation) increases the potential ignition
of adjacent combustible materials. In addition, the pressure inside a
cell can increase, causing the cell to rupture and resulting in a
projectile hazard and the release of flammable gases. Vented gases from
only a small number of cells, if ignited, can result in a pressure
pulse that can compromise the fire suppression capability of an
aircraft cargo compartment.\7\ Based on FAA Technical Center data, the
volume of flammable cell gas ignited to produce a 1.2 psi pressure rise
corresponded to only 6.4 cells at 100 percent state of charge or 20
cells at 50 percent state of charge. Cargo compartments are only
designed to withstand an approximate 1-psi pressure differential.
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    \3\ Bandhauer, Todd M., Garimella, Srinivas, and Fuller, Thomas
F., A Critical Review of Thermal Issues in Lithium-ion Batteries,
The Journal of the Electrochemical Society, Vol. 158 R-21-R25,
January 2011.
    \4\ Mikolajczak, Celina, P.E., Kahn, Michael, Ph.D., White,
Kevin, Ph.D., and Long, Richard T., P.E., Fire Protection Research
Foundation Report: Lithium-Ion Batteries Hazard and Use Assessment,
Exponents Failure Analysis Associates, Inc., July 2011.
    \5\ Webster, H., Fire Protection for the Shipment of Lithium
Batteries in Aircraft Cargo Compartments, FAA Technical Center, DOT/
FAA/AR-10/31, November 2010. http://www.fire.tc.faa.gov/pdf/10-31.pdf
    \6\ Panagiotou, Joseph, Materials Laboratory Study Report,
National Transportation Safety Board, Office of Research and
Engineering, Materials Laboratory Division, Report No. 12-019, March
2012.
    \7\ Webster, Harry, Summer, Steven M., Maloney, Thomas, Dadia,
Dhaval, Rehn, Steven J., Karp, Matthew, ``Summary of FAA Studies
Related to the Hazards Produced by Lithium Cells in Thermal Runaway
in Aircraft Cargo Compartments, FAA Report DOT/FAA/TC-16/37, June
2016, available at https://www.fire.tc.faa.gov/pdf/TC-16-37.pdf.
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    Triggering events to a thermal event include external short
circuits, mechanical damage, exposure to heat, and manufacturing
defects that result in an internal short circuit. While the likelihood
of a thermal event occurring on an aircraft is low, the consequences of
an event are high. The inability of the aircraft fire suppression
systems to address lithium cell or battery fires poses an unacceptable
safety risk, even if the likelihood of an event is low.
    The HMR include separate entries for lithium metal batteries
(UN3090), lithium metal batteries packed with equipment (UN3091),
lithium metal batteries contained in equipment (UN3091), lithium ion
batteries (UN3480), lithium ion batteries packed with equipment
(UN3481), and lithium ion batteries contained in equipment (UN3481).
Both the HMR and the 2015-2016 ICAO Technical Instructions already
prohibit the transport of lithium metal batteries (UN3090) as cargo on
passenger aircraft.8 9
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    \8\ Hazardous Materials: Prohibition on the Transportation of
Primary Lithium Batteries and Cells Aboard Passenger Aircraft;
Interim Final Rule; [69 FR 75208] December 15, 2004.
    \9\ Dangerous Goods Panel Working Group on Lithium Batteries;
April 7-11, 2014; DGP-WG/LB/2-WP/8.
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    The requirements for the transport of lithium batteries are based
on risk and are designed to work together to create layers of safety,
accounting for battery chemistry (lithium metal and lithium ion),
battery size, and package quantity. Lithium batteries are subject to
design type testing, various hazard communication, and packaging
requirements. Design testing serves to ensure that batteries are able
to withstand certain transport and abuse conditions without hazardous
consequences.\10\ However, the tests are not meant to ensure that
lithium batteries are safe in all conditions, such as extreme heat or
damage. Lithium cells and batteries may still be subject to mishandling
in transport that can result in severe mechanical damage or short
circuits.\11\ This hazard drives the need for protection against damage
and short circuits, as well as the use of strong outer packaging.
Hazard communication (i.e., package marks, labels, and shipping
documents) serves to alert transport workers throughout the supply
chain of the presence of lithium cells or batteries, the need to handle
them properly, and the measures to take in the event of an emergency.
Hazmat employees must be trained in accordance with the HMR, ensuring
that personnel responsible for preparing for transport and transporting
do so in compliance with the HMR and maintain safety throughout the
supply chain.
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    \10\ The tests and procedures are described in the United
Nations Manual of Tests and Criteria, Part III, Subsection 38.3.
    \11\ A lithium battery incident at LAX in 1999 was the result of
severe mishandling of lithium metal batteries. Hazardous Materials
Factual Report, DCA-99-MZ-005. Retrieved from http://dms.ntsb.gov/public/13000-13499/13470/559466.pdf.
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    In Sec.  173.185, PHMSA sets forth general requirements for lithium
cells and batteries, such as United Nations (UN) design testing
requirements, packaging requirements, and provisions for small cells
and batteries.\12\ Unless otherwise specified in Sec.  173.185, the
hazard communication and training requirements are located in part 172
of the HMR.
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    \12\ Small cells and batteries for the purposes of this
rulemaking are a lithium metal cell containing not more than 1 gram
of lithium metal, a lithium metal battery containing not more than 2
grams of lithium metal, a lithium ion cell not more than 20 Wh, and
a lithium ion battery not more than 100 Wh (See Sec.  173.185(c) and
Section II of Packing Instructions 965 and 968 in the ICAO Technical
Instructions).
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    Section 173.185(c) of the HMR describes provisions for the carriage
of up to 8 small lithium cells or 2 small lithium batteries per package
with alternative hazard communication that replaces the Class 9 label
with a lithium battery mark that communicates the presence of lithium
batteries and indicates (1) that the package is to be handled with
care, (2) that a flammable hazard exists if the package is damaged, and
(3) that special procedures must be followed in such event that the
package is damaged (i.e., inspection and repacking (if necessary), as
well as a telephone number for additional information). Further, when
used, an air waybill must indicate compliance with the provisions of
Sec.  173.185(c) or the applicable ICAO packing instruction.\13\
Consignments of lithium batteries that comply with these provisions are
provided alternatives from the standard hazard communication and relief
from the acceptance checks that air carriers use to recognize and
accept or reject hazardous materials as appropriate.
[[Page 8010]]
Currently, Sec.  173.185(c) does not place a limit on the number of
packages containing such lithium batteries permitted in overpacks,\14\
pallets, single unit load devices, or single aircraft cargo
compartments. This condition allows large numbers of packages of small
cells and batteries to be placed near each other without standard
declaration to the air carrier or pilot in command.
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    \13\ See 49 CFR 173.185(c)(4).
    \14\ See 49 CFR 171.8. An overpack means an enclosure that is
used by a single consignor to provide protection or convenience in
handling of a package or to consolidate two or more packages.
Overpack does not include a transport vehicle, freight container, or
aircraft unit load device. Examples of overpacks are one or more
packages:
    (1) Placed or stacked onto a load board such as a pallet and
secured by strapping, shrink wrapping, stretch wrapping, or other
suitable means; or
    (2) Placed in a protective outer packaging such as a box or
crate.
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III. Need for the Rule
    Lithium batteries are increasingly prevalent in today's consumer
market due to their ability to store substantially more energy than
other batteries of the same size and weight. This trend toward lithium
ion battery technology has continued over the last decade as
illustrated by an increase in lithium ion cell production from
approximately 3 billion cells in 2007 to over 7 billion lithium ion
cells produced in 2017. PHMSA identified a total of 39 incidents in air
cargo transportation between 2010 and 2016 with 13 of these incidents
involving lithium batteries and smoke, fire, extreme heat, or explosion
that would have been affected by this rulemaking. Many of these
incidents were identified at an air cargo sort facility either before
or after a flight. In at least one instance, packages of lithium ion
cells were found smoldering in an aircraft unit load device during
unloading. This indicates that the initial thermal runaway likely
occurred while the shipment was on the aircraft. PHMSA also notes three
aircraft accidents in 2007, 2010, and 2011 where lithium ion batteries
transported as cargo were suspected as either the cause or a factor
that increased the severity of the fire. Collectively these accidents
resulted in the complete loss of all three aircraft and four lives.
These accidents highlight the potential for lithium batteries to
contribute to an incident resulting in loss of life and/or loss of
aircraft.
    Testing conducted by the FAA Technical Center to assess the
flammability characteristics of lithium ion rechargeable cells and the
potential hazard associated with shipping them on transport aircraft
confirmed that fires involving lithium batteries sometimes include a
mechanical energy release that can create projectile hazards; thermal
runaway from a single cell that can spread to adjacent cells and
packages; and the venting of flammable gases that can occur even when
the fire is suppressed. Cell failure resulting in a mechanical energy
release was observed during testing and was more energetic at 100
percent state of charge relative to cells tested a lower state of
charge. However, a state of charge at less than 100 percent still has
the potential to result in a mechanical energy release. For example,
the FAA testing conducted in 2010 using lithium ion 18650 LiCoO2 cells
at a 50 percent state of charge resulted in all 100 cells experiencing
thermal runaway.\15\ Testing conducted by the NTSB confirmed the
potential for fire and projectile hazards and further concluded that
aircraft unit load device design can impact the time it takes to detect
a fire originating from inside a cargo container.\16\ Additionally, the
FAA testing determined that Halon 1301, the fire-suppressant agent used
in Class C cargo compartments, could suppress the electrolyte and
burning packaging fires, but it had no effect on stopping the
propagation of thermal runaway from cell to cell. See 14 CFR 25.857 for
aircraft cargo compartment classification, including Class C. Halon
1301 was also shown to be ineffective in suppressing an explosion of
the flammable gases vented from lithium ion cells during thermal
runaway.
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    \15\ Webster, H. See footnote 5.
    \16\ Panagiotou, Joseph. See footnote 6.
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A. FAA Technical Center Testing
    The FAA Technical Center issued a series of test reports in 2004,
2006, 2010, and 2014 that characterized the hazards posed by lithium
cells and batteries transported as cargo on aircraft and the
effectiveness of aircraft fire suppression agents, packagings, and
packaging configurations. Specifically, the FAA Technical Center tested
the ability of various fire extinguishing agents and fire resistant
packagings to control fires involving lithium batteries. This testing
revealed that: (1) The ignition of the unburned flammable gases
associated with a lithium cell or battery fire could lead to a
catastrophic loss of the aircraft; (2) the current design of the Halon
1301 fire suppression system \17\ in a Class C cargo compartment in
passenger aircraft is incapable of preventing such an explosion; and
(3) the ignition of a mixture of flammable gases could produce an over
pressure, which would dislodge pressure relief panels, allow leakage of
Halon from the associated cargo compartment, and compromise the ability
of fire suppression systems to function as intended. As a result, the
smoke and fire can spread to adjacent compartments and potentially
compromise the entire aircraft. Moreover, the FAA testing concluded
neither oxygen starvation through depressurization in the case of cargo
aircraft nor common shipping containers (e.g., unit load devices) is
effective in containing or suppressing a lithium cell or battery fire.
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    \17\ Halon systems work by flooding the cargo compartment with
Halon gas. The concentration of Halon in the local atmosphere
interferes with the burning reaction and suppresses the flame. Halon
is stored in pressurized containers and distributed via a series of
pipes and fire suppression nozzles.
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    When controlling lithium battery fires, aircraft fire extinguishing
agents must both extinguish the electrolyte fire and cool remaining
cells to stop the propagation of thermal runaway. Gaseous agents (such
as Halon) are somewhat effective against lithium ion battery fires;
however, while Halon is effective in extinguishing the electrolyte fire
and nearby combustible materials such as packaging, it has no effect in
stopping the propagation of thermal runaway from cell to cell.
Conventional fiberboard packagings initially protect cells and
batteries but eventually ignite and add to the fire load. Special
packagings originally designed for chemical oxygen generators are
effective in containing a fire from burning lithium ion cells but allow
smoke and fumes to escape the package. Currently available fire
containment covers (FCC) and fire resistant containers (FRC) that
suppress fires by means of oxygen starvation are not effective in
controlling lithium ion cell or battery fires. The fire load for each
test consisted of 5,000 lithium ion 18650 LiCoO2 cells, with the
balance of the interior volume containing the standard fire test load
of cardboard boxes filled with shredded paper. The state of charge was
measured to be around 40 percent. The FCCs tested were unable to
contain a fire involving lithium ion batteries and flames escaped from
under the cover, while tests on the FRCs resulted in explosions that
were caused by the ignition of accumulated flammable gases vented from
burning cells and/or batteries.\18\
---------------------------------------------------------------------------
    \18\ Webster et al. See footnote 7.
---------------------------------------------------------------------------
    The 2004 tests concluded that the presence of a consignment of
lithium metal batteries can significantly increase the severity of an
in-flight cargo compartment fire and that Halon 1301 is ineffective in
such occurrences.\19\
[[Page 8011]]
Furthermore, the report stated that the ignition of a lithium metal
battery releases burning electrolytes and a molten lithium spray
capable of perforating the aircraft cargo compartment liners, while
also generating a pressure pulse that can dislodge the cargo
compartment pressure relief panels. The dislodged pressure relief
panels allow the Halon 1301 fire suppressant to leak out, reducing its
effectiveness and permitting the fire to spread beyond the cargo
compartment. These test results identified that the Halon fire
suppression system required on passenger aircraft could not effectively
suppress a fire involving lithium metal batteries, but they were
inconclusive with respect to lithium ion batteries. Based on the 2004
FAA Technical Center test results, PHMSA published an IFR in December
2004 [69 FR 75208] prohibiting the transport of lithium metal batteries
as cargo on passenger aircraft and indicated plans for the continued
assessment of the hazards associated with lithium ion batteries in
transportation. ICAO later aligned with the HMR.
---------------------------------------------------------------------------
    \19\ Webster, Harry, Flammability Assessment of Bulk-Packed,
Nonrechargeable Lithium Batteries in Transport Category Aircraft,
DOT/FAA/AR-04/26, June 2004.
---------------------------------------------------------------------------
    The 2006 tests concluded that the Halon fire suppression system is
effective in suppressing a fire arising from lithium ion batteries.
Cells continued to vent due to the air temperature but did not ignite
in the presence of Halon.\20\
---------------------------------------------------------------------------
    \20\ Webster, H., Flammability Assessment of Bulk-Packed,
Rechargeable Lithium-Ion Cells in Transport Category Aircraft, FAA
Report DOT/FAA/AR-06/38, September 2006.
---------------------------------------------------------------------------
    The 2010 tests investigated the ability of various packages and
shipping configurations to contain the effects of lithium battery fires
and prevent the propagation of thermal runaway.\21\ The baseline for
these tests was a common shipping configuration for lithium ion cells
consisting of a fiberboard box containing 100 cells with fiberboard
separators. A single cell was removed from the package and replaced
with a cartridge heater to initiate thermal runaway. The cartridge
heater was activated at time zero, and its temperature reached 1000
[deg]F (538 [deg]C) at the 9-minute mark and peaked at 1250 [deg]F (677
[deg]C) at approximately 19 minutes, at which point the power to the
cartridge heater was shut off. The fiberboard box began to smoke 8
minutes into the test and then caught fire at the 11-minute mark. As
cells went into thermal runaway, strong torch flames erupted from the
box as electrolytes were vented and ignited by the burning fiberboard.
The fire continued to burn vigorously for 45 minutes until all of the
cells were consumed. Data was collected until all thermocouples
returned to near ambient temperature. In a subsequent test, the
fiberboard separators were replaced with a fiberglass material used as
a flame barrier in aircraft thermal acoustic insulation that was cut to
the same dimensions as the fiberboard separators. The fiberglass
separators were not successful in controlling the propagation of
thermal runaway. In additional tests, the fiberboard dividers were
replaced with those coated with intumescent paint or aluminum foil.
This modification only delayed adjacent batteries from being driven
into thermal runaway and did not prevent its propagation. Finally, the
FAA Technical Center evaluated the ability of an overpack originally
designed for the transport of chemical oxygen generators to protect
against a lithium ion battery fire initiated from a single cell. This
package consists of a fiberboard container with a foil and/or ceramic
insulator that meets the requirements of HMR provisions found in
appendix D to part 178--Thermal Resistance Test and appendix E to part
178--Flame Penetration Resistance Test. A fiberboard package with 100
cells and fiberboard separators was placed into the overpack. Thermal
runaway was initiated and allowed to propagate until all cells were
consumed. The overpack successfully contained the fire but allowed
smoke and fumes to escape due to increased pressure. The chemical
oxygen generator overpack standard did not account for the accumulation
of vented flammable gases and was therefore not effective in containing
lithium ion battery fires.
---------------------------------------------------------------------------
    \21\ Webster, H. See footnote 5.
---------------------------------------------------------------------------
    In 2013, the FAA Technical Center conducted a series of tests to
examine the effectiveness of fire extinguishing agents for suppressing
lithium metal and lithium ion battery fires and preventing thermal
runaway propagation (DOT/FAA/TC-13/53). These tests used five 2600mAh
lithium ion 18650 LiCoO2cells charged to 50 percent capacity. Aqueous
agents were the most effective at preventing thermal runaway
propagation.\22\ The FAA Technical Center further tested the
effectiveness of passive protection of lithium battery shipments and
published a report in February 2016. For these tests, a packet of water
placed above the cells in a package containing 16 lithium ion 18650
LiCoO2 cells (at 50 percent state of charge) was the most effective
method of stopping thermal runaway propagation, aside from a lowered
state of charge.\23\ Early tests with small numbers of cells predicted
that the Halon 1301 extinguishing agent would suppress the open flames
but not prevent the propagation of thermal runaway from cell to cell.
Further tests confirmed that, in some instances, the Halon fire
suppression system was unable to mitigate a fire involving lithium ion
batteries effectively. These tests were conducted with fiberboard boxes
containing 100 lithium ion 18650 LiCoO2 cells. A single cell was
removed and replaced with a cartridge heater to simulate a cell in
thermal runaway. The test chamber was flooded with a 6 percent Halon
1301 concentration at the first indication of open flames. The agent
extinguished the open flame and prevented open flames for the duration
of the test. Thermal runaway continued to propagate throughout the box
until all cells were consumed. Tests on FCCs and FRCs that suppress
fires by means of oxygen starvation showed that these fire suppression
methods are not effective in controlling lithium ion cell or battery
fires. The fire load for these tests consisted of 5,000 lithium ion
18650 LiCoO2 cells, with the balance of the interior volume containing
the standard fire test load of cardboard boxes filled with shredded
paper. The state of charge was measured to be around 40 percent. Since
Halon has no cooling effect, the temperatures found in a suppressed
cargo fire were high enough that cells continued to vent, creating an
ignition source for the accumulated gas. The buildup and subsequent
ignition of these gases ruptured the container. The container and its
contents were destroyed by the ensuing fire.\24\
---------------------------------------------------------------------------
    \22\ Maloney, T., Extinguishment of Lithium-Ion and Lithium-
Metal Battery Fires, DOT/FAA/TC-13/53, January 2014.
    \23\ Maloney, T., and Dadia, D., Passive Protection of Lithium
Battery Shipments, DOT/FAA/TC-15/38, February 2016.
    \24\ Webster et al. See footnote 7.
---------------------------------------------------------------------------
[[Page 8012]]
    In July 2015, in response to the FAA Technical Center testing, two
major aircraft manufacturers issued notices to aircraft operators
warning of these hazards and supporting a prohibition on the carriage
of high-density packages of lithium ion batteries on passenger aircraft
until safer methods of transport were implemented.25 26 27
Additionally, the aircraft manufacturers recommended that operators who
choose to carry lithium batteries as cargo on cargo aircraft conduct a
safety risk assessment that considers specific criteria listed in the
July 2015 notices. While the likelihood of a cargo fire involving
lithium batteries is low, the potential for catastrophic consequences
including loss of life and loss of aircraft results in an unacceptable
safety risk under the existing regulations.
---------------------------------------------------------------------------
    \25\ Boeing Multi Operator Message MOM-MOM-15-0469-01B,
Information--Transporting Lithium Batteries, July 17, 2015. See
http://www2.anac.gov.br/transparencia/audiencia/2015/aud19/anexoVI.pdf.
    \26\ Airbus In-Service Information Transport of Dangerous Goods,
Lithium Batteries, reference: 00.00.00182, July 24, 2015. See http://www2.anac.gov.br/transparencia/audiencia/2015/aud19/anexoV.pdf.
    \27\ A single quantifiable measurement for high density is not
possible because of the variable effects battery chemistry, cargo
compartment characteristics, and loading configurations. As such,
high-density quantities of lithium batteries could be any number of
batteries or cells having the potential to overwhelm cargo
compartment fire protection features.
---------------------------------------------------------------------------
B. ICAO Activities
    The ICAO Technical Instructions set minimum standards for the
international air transport of hazardous materials--including lithium
batteries. PHMSA periodically amends the HMR to adopt revisions to the
ICAO Technical Instructions. The harmonization between the HMR and the
ICAO Technical Instructions creates consistency in hazardous materials
transportation standards both internationally and domestically. The
amendments in this IFR will aid in maintaining this alignment by
adopting requirements consistent with the 2015-2016 ICAO Technical
Instructions.
    Based largely on the FAA Technical Center testing, which identified
hazard factors leading to the potential compromise of the cargo
compartment fire protection capabilities due to a loss of Halon
containment and significant damage to the aircraft, ICAO conducted
several Multidisciplinary Lithium Battery Transport Coordination
Meetings consisting of a group of experts from hazardous materials, air
operations, airworthiness, battery manufacturing, and package
manufacturing disciplines. This multidisciplinary group met three times
between 2014 and 2015 and developed a series of recommendations and
high-level performance standards intended to mitigate the hazard of
transporting lithium ion batteries by air to an acceptable level.\28\
Several of these recommendations were directed to the attention of the
ICAO Dangerous Goods Panel (DGP), including the development of
performance standards to be met at the cell, battery, or package level;
the implementation of interim measures, such as reducing the state of
charge for lithium ion batteries; and the recommendation to no longer
use the current provisions for small batteries for large consignments.
---------------------------------------------------------------------------
    \28\ A report of each ICAO Multidisciplinary Lithium Battery
Transport Coordination Meeting is available through the following
URL: http://www.icao.int/safety/DangerousGoods/Pages/Multidisciplinary.aspx.
---------------------------------------------------------------------------
    The FAA Technical Center's research was presented to the DGP over
the last five years and specifically at each of the previous three
meetings (ICAO DGP: Working Group 14, Working Group 2015, and DGP/25).
The research was subsequently given to the ICAO Flight Operations Panel
(FLTOPSP) and the ICAO Airworthiness Panel (AIRP), which are staffed
with global experts in each discipline as well as representatives from
appropriate Non-Government Organizations (NGO). The DGP determined that
the implementation of a 30 percent state of charge provision and the
reduction in the number of small cells and batteries permitted in a
consignment and overpack were required to reduce the risk being
introduced into the aviation system. In addition, the DGP determined
that offering small cell and battery consignments separately to the air
carrier will allow for better awareness of each shipment, enabling
operators to have a more informed approach to safety risk management
and ultimately a more robust safety management system. As a result,
operators can apply more targeted controls to mitigate risks introduced
into their system by shipments of lithium batteries. Mitigation
strategies will be based on the characteristics of the operator's
system and may include, but are not limited to, limiting quantities and
using certain protective equipment when transporting these
consignments. The major airframe manufacturers recommended that
operators perform a safety risk assessment to establish whether they
can manage the risks associated with the transport of lithium
batteries. We expect that operators would incorporate information on
lithium battery shipments to develop risk mitigation strategies as part
of their safety management activities. Mitigations will vary but could
include evaluating the specific fire protection features of the
aircraft; how and where shipments are loaded including proximity of
lithium batteries to each other and other hazardous materials, such as
flammable liquids; and additional acceptance and handling procedures.
This IFR will apply these important safety provisions to the small cell
and battery consignments consistent with international requirements.
    The FLTOPSP stressed the need for air carriers to conduct
appropriate safety risk management activities to ensure that lithium
cells and batteries can be carried safely.\29\ The AIRP determined that
the continued transportation of lithium ion batteries on passenger
aircraft presents ``an unacceptable risk to aircraft'' under current
conditions, and that ``lithium batteries and cells should not be
transported in aircraft engaged in commercial air transport operations
as cargo unless acceptable means to mitigate the risk can be
established.'' The panel further emphasized the following:
---------------------------------------------------------------------------
    \29\ Flight Operations Panel (FLTOPSP); Second Meeting; October
12-16, 2015; FLTOPSP/2-WP/31.
    A growing body of test data has identified that existing cargo
compartment fire protection systems certified to EASA CS 25.857 and
U.S. CFR part 25.857 (CS/CFR part 25) regulations are unable to
suppress or extinguish a fire involving significant quantities of
lithium batteries, resulting in reduced time available for safe
flight and landing of an aircraft to a diversion aerodrome.\30\
---------------------------------------------------------------------------
    \30\ Airworthiness Panel (AIRP); Third Meeting; December 7-11,
2015; AIRP/3-WP/21.
    ICAO recognized the safety hazard associated with the offering and
acceptance of lithium batteries as cargo and addressed it by taking
action to implement addenda to the current ICAO Technical Instructions
based on input and expertise from the AIRP, FLTOPSP, DGP, Air
Navigation Commission, and the FAA Technical Center research. Based on
this information, the ICAO Council authorized the issuance of an
addendum--an ICAO tool used for a high consequence event resulting in,
or creating a direct risk of, loss of life or serious injury to a
person or damage to the aircraft--to address the immediate safety risk.
The FAA subsequently issued Safety Alert for Operators (SAFO) 16001:
Risks of Fire or Explosion when Transporting Lithium Ion Batteries or
Lithium Metal Batteries as Cargo on Passenger and Cargo
[[Page 8013]]
Aircraft on January 19, 2016, advising operators of the safety hazard
associated with lithium batteries in cargo. SAFO 16001 specifically
recommends performing a safety risk assessment and implementing risk
mitigation strategies.\31\
---------------------------------------------------------------------------
    \31\ The FAA Safety Alert for Operators (SAFO) 16001 is
available through the following URL: http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2016/safo16001.pdf.
---------------------------------------------------------------------------
Public Meeting
    In consideration of the recommendations put forward by the
multidisciplinary group, and in preparation for the ICAO DGP/25
meeting, DOT (with representatives from PHMSA, FAA, and OST) hosted a
public meeting on September 18, 2015, to obtain feedback on how to
better enhance the safe transport of lithium batteries by air.\32\ DOT
specifically requested public input on mitigation strategies,
information, and data. The meeting included a discussion on pertinent
safety recommendations from the multidisciplinary group and possible
amendments to the ICAO Technical Instructions. DOT noted both in the
meeting notice and during the public meeting that we may consider
adopting new standards or revised ICAO Technical Instructions in a
future rulemaking action. Additionally, on October 8, 2015, FAA hosted
a public meeting to discuss the agenda for ICAO DGP/25, including those
proposals related to lithium batteries.
---------------------------------------------------------------------------
    \32\ The public meeting notice and the comments received are
available on the public docket DOT-OST-2015-0169 available through
www.regulations.gov.
---------------------------------------------------------------------------
    ICAO agreed to a series of measures to address the previously and
newly identified hazards, such as prohibiting the transport of lithium
ion batteries as cargo on passenger aircraft and requiring all lithium
ion cells and batteries transported on cargo-only aircraft to be
shipped at a reduced state of charge of not more than 30 percent until
such time that detailed performance standards could be developed and
implemented. An approval provision would allow competent authorities to
authorize transport of lithium ion batteries on cargo-only aircraft at
a higher state of charge provided an equivalent level of safety can be
established. ICAO also agreed to greatly reduce the application of
long-standing provisions for the transport of small batteries (commonly
referred to in the ICAO Technical Instructions as Section II
batteries). Per this amendment, the Section II provisions apply only to
a single small package offered and accepted for transport, thus
eliminating the ability to ship multiple packages in a single
consignment without standard hazard communication. ICAO agreed that
these provisions should be incorporated in the current 2015-2016
edition of the ICAO Technical Instructions by way of addenda as they
address immediate hazards to air transport safety.
---------------------------------------------------------------------------
    \33\ Addendum 3 to the 2015-2016 edition of the ICAO Technical
Instructions, issued January 15, 2016. http://www.icao.int/safety/DangerousGoods/AddendumCorrigendum%20to%20the%20Technical%20Instructions/Doc%209284-2015-2016.ADD-3.pdf.
    \34\ Addendum 4 to the 2015-2016 edition of the ICAO Technical
Instructions, issued February 23, 2016. http://www.icao.int/safety/DangerousGoods/AddendumCorrigendum%20to%20the%20Technical%20Instructions/Doc%209284-2015-2016.ADD-4.en.pdf.
---------------------------------------------------------------------------
    Specifically, ICAO agreed to the following measures effective April
1, 2016: 33 34
    1. Prohibit the transport of lithium ion batteries (not packed with
or contained in equipment) as cargo on passenger aircraft;
    2. Require all lithium ion batteries (not packed with or contained
in equipment) to be shipped at not more than a 30 percent state of
charge on cargo-only aircraft;
    3. Restrict the use of Section II \35\ (both lithium ion and
lithium metal) cell and battery shipments to one package per
consignment or overpack.
---------------------------------------------------------------------------
    \35\ The term ``Section II'' is not used in the HMR but
identical provisions for small cells and batteries are included.
(See 49 CFR 173.185(c)).
---------------------------------------------------------------------------
    ICAO agreed that prohibiting the transport of lithium ion batteries
as cargo on passenger aircraft addresses a pressing safety issue and
further determined that a reduced state of charge, combined with
restricting Section II batteries to one package per consignment or
overpack, is significantly safer than the current transport
requirements. ICAO also agreed to include in the 2017-2018 ICAO
Technical Instructions a provision highlighting the need for air
carriers who wish to transport hazardous materials to include a safety
risk assessment process for the transport of hazardous materials before
choosing to do so. The provision will further state that safety risk
assessments should include appropriate information to result in the
implementation of safety measures that ensure the safe transport of
hazardous materials, including lithium cells and batteries, as cargo.
C. Risk Potential
    The respective FAA Technical Center and NTSB testing demonstrate
that current packages, hazmat handling requirements, shipping
configurations, and cargo compartment fire protection systems do not
provide adequate protection and may be unable to effectively mitigate a
fire involving lithium ion batteries. The results further demonstrate
that a relatively small fire of only 450 [deg]F (232 [deg]C) is
sufficient to heat lithium ion cells to thermal runaway and that the
heat from a single cell in thermal runaway, which can reach 1100 [deg]F
(593 [deg]C), is capable of igniting adjacent packaging materials.
    Furthermore, while the Halon 1301 fire suppression system in Class
C cargo compartments has been shown to effectively suppress the open
fire associated with the burning electrolyte and greatly reduce the
potential ignition of adjacent flammable materials, it is not effective
in cooling any cells already engaged in thermal runaway. Thermal
runaway will continue to propagate until all the cells in the
consignment have been consumed. Aircraft cargo containers delay the
detection of smoke and fire originating from container contents,
thereby decreasing the time interval between when smoke and fire become
detectable and taking immediate action to suppress a fire and protect
the aircraft.\36\ Flammable gases produced during a thermal runaway
event may continue to develop and collect in a confined space, and the
ignition of these gases is sufficient to rupture packages and dislodge
pressure relief panels that could result in loss of Halon containment,
significant damage to the aircraft, and danger to both the traveling
public and flight crews.
---------------------------------------------------------------------------
    \36\ Panagiotou, J. See footnote 6.
---------------------------------------------------------------------------
    This information was presented to the Multidisciplinary Meeting on
Lithium Batteries that recommended mitigating measures be taken to
reduce the risk of a fire involving significant quantities of lithium
cells and batteries (UN3090 and UN3480) that may exceed the fire
suppression capability of the aircraft and could lead to a catastrophic
loss of the aircraft. Various other groups including the International
Coordination Council for Aerospace Industry Association (ICCAIA), major
airframe manufacturers, the International Federation of Airline Pilots
Association (IFALPA), AIRP, and FLTOPSP endorsed the recommendations
from the Multidisciplinary Meeting on Lithium Batteries and separately
provided additional recommendations. The ICAO Council approved the
adoption of additional requirements to mitigate risks posed by lithium
batteries as cargo on cargo-only aircraft. This decision was based upon
the input and expertise from
[[Page 8014]]
the AIRP, FLTOPSP, DGP, Air Navigation Commission, and the FAA
Technical Center research. The prohibition of the transport of lithium
ion batteries (UN3480) as cargo on passenger aircraft was made in
response to tests that demonstrate that fire involving lithium ion
batteries may exceed the capability of aircraft cargo fire protection
systems. The additional requirements to mitigate risks posed by lithium
batteries, which will continue to be permitted for transport on cargo
aircraft, include transporting all lithium ion batteries at a state of
charge not exceeding 30 percent of their rated capacity and limiting
the number of packages of small lithium ion or lithium metal batteries.
While the likelihood of a fire involving a shipment of lithium
batteries in air transport is low, the consequences of such an incident
would be catastrophic. With the potential for an uncontrolled fire
involving a relatively small quantity of lithium batteries to lead to a
catastrophic failure of the airframe, the inability of the package or
the aircraft fire suppression system to control such a fire presents an
unacceptable safety risk. PHMSA acknowledges that there are
advancements in packaging design and packaging configurations,
including fill materials and fire suppression agents, which are
promising and may eventually provide safe and reliable ways to continue
to transport lithium batteries on board passenger aircraft. However,
PHMSA identified a total of 39 incidents in air cargo transportation
between 2010 and 2016, with 13 of these incidents involving lithium
batteries and smoke, fire, extreme heat, or explosion, that would have
been affected by this IFR. These types of incidents are indicative of
the types of events that are possible if lithium ion batteries continue
to be transported on passenger aircraft. Below are summaries of three
U.S. and international events that highlight the potential for lithium
batteries to contribute to an incident resulting is loss of life and/or
loss of aircraft.
     February 7, 2006: Incident at the Philadelphia
International Airport in which a fire suspected to have been caused by
lithium ion batteries destroyed a cargo aircraft and much of its cargo.
     September 3, 2010: Dubai, United Arab Emirates, a 747-400
cargo aircraft (U.S. flag) crashed while attempting to land at the
Dubai International Airport after a fire was discovered. Both pilots
were killed, and the aircraft and its cargo, which included a
significant quantity of lithium ion batteries, were destroyed.
     July 28, 2011: The Republic of Korea, a 747-400 cargo
aircraft crashed into international waters. The two pilots aboard the
flight were killed. The Korea Aviation and Railway Accident
Investigation Board determined that the cause of this accident was a
fire that developed on or near two pallets containing hazardous
materials packages, including hybrid-electric vehicle lithium ion
batteries and flammable liquids.
    Please see the Appendix A of the RIA for this rulemaking, a copy of
which has been placed in the docket, for more detail on PHMSA Incident
Reports involving lithium batteries.
    Although the aforementioned measures provide significant
improvements to safety, they do not eliminate all risks and should be
coupled with other mitigation strategies as part of a layered approach
to safety. In this IFR, PHMSA is adopting the changes approved by ICAO
that were informed by aviation safety experts and are already
implemented in international air transportation.
    As discussed in ``Section IV. Good Cause for Immediate Adoption,''
PHMSA has determined that proceeding with notice and comment to adopt
additional safety measures for transport of lithium ion batteries is
impracticable.
D. Alternative Transport Conditions
    PHMSA considered an alternative in which the IFR would prescribe
specific conditions authorizing the transport of lithium ion batteries
at a charge greater than 30 percent on cargo-only aircraft or as cargo
on passenger aircraft. The conditions would need to mitigate the safety
risks posed by the batteries, which include fire, thermal runaway, and
explosion from ignition of vented gases. The conditions considered
included limits on the size and number of cells, a reduced state of
charge, the number of packages, the packaging, additional fire
suppression systems, and manufacturing controls on the cells
themselves. PHMSA was unable to identify a general set of conditions in
which it would be safe to transport any quantity or type of lithium ion
cells as cargo on a passenger aircraft or at a charge greater than 30
percent on cargo-only aircraft.
    However, PHMSA is authorizing, with the approval of the Associate
Administrator, up to two lithium batteries used for medical devices to
be transported on passenger aircraft, and as applicable, at a state of
charge higher than 30 percent, when the intended destination of the
batteries is not serviced daily by cargo aircraft. See ``Section V.D.
Limited Exceptions to Restrictions on Air Transportation of Medical
Device Cells or Batteries'' for further discussion. This provision
addresses the legislation titled ``FAA Reauthorization Act of 2018''
signed on October 5, 2018, by the President, which instructs the
Secretary to issue limited exceptions for lithium ion and metal cells
or batteries used for a medical device to be transported on passenger
aircraft. See Public Law 302-89. Additionally, the provision addresses
comments submitted to Docket No. DOT-OST-2015-0169 announcing a public
meeting to seek input on issues concerning lithium batteries that were
to be discussed by the ICAO DGP, in which the Medical Device Battery
Transport Council (MDBTC) noted concerns relevant to shipping medical
devices and batteries by air (e.g., delivery to remote locations and
increased supply chain constraints). The MDBTC noted that prohibiting
the transport of lithium ion batteries on passenger aircraft and the 30
percent state of charge restriction would negatively impact the
transport of replacement lithium ion batteries for medical devices. The
provision also addresses comments to the docket that identified a need
to ship lithium ion cells and batteries to remote areas.
    As previously discussed in ``Subsection A. FAA Technical Center
Testing'' of this section, the ineffectiveness of fire suppression
systems (Halon or oxygen starvation) to control propagation of thermal
runaway from cell to cell or to control the production of large
quantities of flammable gases drives the need for additional safety
controls. The ICAO Council adopted a prohibition on the transport of
lithium ion batteries as cargo on passenger aircraft due to the
inability of aircraft fire suppression systems to mitigate a fire
involving lithium ion batteries. Determination of the aircraft fire
suppression system vulnerability was based on assessments and positions
presented by a wide range of global experts in the field of aircraft
design, certification, and operations. The additional requirements to
mitigate risks posed by lithium batteries, which will continue to be
permitted for transport on cargo aircraft, include transporting all
lithium ion batteries at a state of charge not exceeding 30 percent of
their rated capacity and limiting the number of packages of small
lithium ion or lithium metal batteries.
    Therefore, in this IFR, PHMSA is implementing the revisions
approved by ICAO and informed aviation safety experts to address the
risks created by the air transport of lithium batteries,
[[Page 8015]]
along with an exception for the limited transport of lithium cells or
batteries specifically used for a medical device where the intended
destination is not serviced daily by cargo aircraft, with the approval
of the Associate Administrator.
IV. Good Cause for Immediate Adoption
    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
generally requires public notice before promulgating regulations. See 5
U.S.C. 553(b). The APA provides an exception, however, when there is
good cause to conclude that notice and public comment is impracticable,
unnecessary, or contrary to the public interest. See 5 U.S.C.
553(b)(3)(B).
    PHMSA finds that compliance with the notice-and-comment process for
this rulemaking would be impracticable. Accordingly, PHMSA finds that
there is good cause for this IFR to be exempt from the notice-and-
comment process. Interested parties will still have an opportunity to
submit comments in response to this IFR before a permanent final rule
is issued.\37\ PHMSA's finding of good cause is based on the
impracticability of providing the public with notice-and-comment while
attempting to comply with the 90-day statutory rulemaking mandate in
the FAA Reauthorization Act of 2018, Public Law 115-254 (October 5,
2018, FAA Reauthorization Act of 2018).\38\
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    \37\ DOT has sought public input on multiple occasions prior to
this rulemaking. DOT held a public meeting on September 18, 2015, to
discuss the ICAO Technical Instructions lithium battery amendments
and to obtain input on mitigation strategies, information, and data
on how to better ensure the safe transportation of lithium batteries
by air. See Notice of Lithium Battery Safety Public Meeting and
Request for Information, 80 FR 52368 (August 28, 2015).
Additionally, FAA hosted a public meeting on October 8, 2015, to
discuss the agenda for ICAO's lithium battery proposed amendments.
    \38\ PHMSA's compliance with the statutory deadline was
negatively impacted by a lapse in funding from December 22, 2018
through January 25, 2019, that affected PHMSA, FAA, and other
government agencies.
---------------------------------------------------------------------------
    Section 333 of the FAA Reauthorization Act of 2018 requires the
Secretary of Transportation to conform U.S. regulations on the air
transportation of lithium cells and batteries to the 2015-2016 edition
of the ICAO Technical Instructions, including the amendments that were
made effective on April 1, 2016. The act was signed into law on October
5, 2018, and requires DOT to take this action within 90 days, which is
January 3, 2019. This IFR adopts the 2015-2016 edition of the ICAO
Technical Instructions and subsequent revised standards effective April
1, 2016, into the domestic HMR, as required. The IFR is necessary to
allow PHMSA to come close to complying with the 90-day timeframe
required by the FAA Reauthorization Act of 2018. The statutory mandated
deadline does not provide PHMSA with sufficient time to prepare and
publish a proposed regulation in the Federal Register, provide an
opportunity to comment, and issue a final rule.
    The purpose of Section 333 is to address the potential safety risk
in transporting lithium batteries by air. Indeed, the caption of the
provision is ``Safe Air Transportation of Lithium Cells and
Batteries.'' Congress's choice to single out Section 333 for rapid
implementation suggests that it perceived this safety risk to warrant
accelerated intervention. The need to follow Congress's directive to
address, within 90 days, a status quo that Congress itself regarded as
demanding urgent remediation would make the notice-and-comment process
ordinarily applicable under the APA ``contrary to the public interest''
in this instance. Congress's desire to eliminate, as speedily as
possible, potential air transportation risks associated with lithium
batteries among air operators which have not already voluntarily
adopted ICAO's 2015-2016 lithium battery standards is supported by FAA
Technical Center testing showing the potential for an uncontrolled fire
involving a relatively small quantity of lithium batteries and the
potential buildup of flammable gases in a suppressed lithium ion
battery fire that could lead to a catastrophic failure of the airframe,
as well as the large body of research conducted by DOT, NTSB, and other
respected sources that demonstrates the potential safety risks of
lithium batteries transported by air under the current regulations and
the connection of the revised regulations to those hazards.
    PHMSA finds that the use of notice and comment procedures before
issuing this rulemaking is impracticable. This IFR is the only
rulemaking option that will allow PHMSA to come close to meeting the
statutory deadline in the FAA Reauthorization Act of 2018 while
addressing the potential safety risk in transporting lithium batteries
by air. Additionally, while the APA generally requires that publication
of a substantive rulemaking be made at least 30 days before its
effective date, the APA provides for dispensation of the 30-day
effectiveness delay upon good cause similar to the notice and comment
requirements. 5 U.S.C. 553(d). For the reasons discussed above, PHMSA
finds good cause to dispense with the 30-day delay in effectiveness
upon publication. Accordingly, this IFR is effective upon publication
in the Federal Register.
V. Summary of Changes
    To ensure the safe transport of lithium batteries by air and
protect the traveling public, flight crews, and for harmonization with
international regulations from ICAO, PHMSA amends the HMR to prohibit
the transport of lithium ion cells and batteries (UN3480) as cargo on
passenger aircraft; require all lithium ion cells and batteries
(UN3480) to be shipped at not more than a 30 percent state of charge on
cargo-only aircraft; and restrict small lithium cell or battery
shipments to one package per consignment or overpack. Also, PHMSA is
providing a limited exception, with the approval of the Associate
Administrator, to the restrictions on the air transport of replacement
medical device cells and batteries if the intended destination for the
cells or batteries is not serviced daily by cargo aircraft. PHMSA would
authorize the transport on passenger aircraft of not more than two
lithium cells or batteries specifically used for a medical device and
would waive the 30 percent state of charge limit for lithium ion cells
and batteries, with an approval of the Associate Administrator. PHMSA
further defines medical device for the purposes of the HMR as an
instrument, apparatus, implement, machine, contrivance, implant, or in
vitro reagent, including any component, part, or accessory thereof,
which is intended for use in the diagnosis of disease or other
conditions, or in the cure, mitigation, treatment, or prevention of
disease, of a person. See ``Subsection D. Limited Exceptions to
Restrictions on Air Transportation of Medical Device Cells or
Batteries'' of this section for further discussion.
A. Passenger Aircraft Prohibition
    PHMSA is prohibiting the transport of lithium ion batteries
(UN3480) as cargo on passenger aircraft because of their unique
challenges associated with thermal runaway: Pressure pulses, venting of
flammable gas, and resistance to extinguishment. The FAA Technical
Center investigated the ability of various fire suppression measures--
fire suppression agents, depressurization, FCC, and FRC--to control
lithium ion battery fires. The results concluded that gaseous fire
suppression agents were effective in extinguishing the electrolyte fire
but had no effect in stopping the propagation of thermal runaway from
cell to cell. Therefore, a lithium ion battery fire can still
compromise the aircraft critical systems even in the presence of Halon,
which is the current
[[Page 8016]]
means of suppression in passenger aircraft cargo compartments. A
lithium ion battery fire was marginally controlled through oxygen
starvation, which is the primary means of controlling fires in Class E
cargo compartments.\39\ The FCCs were unable to contain flames and
flammable gases from escaping, and tests involving FRCs resulted in
explosions. The FRCs permitted flammable gases generated from cells in
thermal runaway to accumulate in a confined area within the FRC before
being ignited by burning packages, or a spark from a burning cell, and
exploding. An analysis of the batteries consumed in the FRC fire test
indicated that only a small fraction of the 5,000 cells went into
thermal runaway, vented, and caused the explosion.
---------------------------------------------------------------------------
    \39\ Class E cargo compartments are common on the upper deck
cargo compartments of freighter aircraft. Class E compartments have
fire detection systems, the means to shut off ventilation flow, and
the means to exclude hazardous quantities of smoke, flames, and
noxious gases from the flight crew compartment. Class C cargo
compartments also include an approved built-in fire extinguishing or
suppression system controllable from the cockpit. See 14 CFR 25.857.
---------------------------------------------------------------------------
    As discussed in this IFR, the FAA Technical Center tested the
ability of several common shipping containers to contain the effects of
a thermal runaway originating from a single lithium cell. Currently
authorized packages, package configurations, shipping containers, and
consignment limits could neither contain a lithium battery fire nor
prevent the propagation of fire from one package to another. FCCs and
FRCs were unable to contain a fire involving lithium batteries.
Overpack containers designed to transport chemical oxygen generators
successfully contained the fire from lithium ion batteries but
permitted smoke and vapors to escape. Neither were fire suppression
systems, including the Halon that is currently used in cargo
compartments, entirely effective against lithium battery fires. Of the
package configurations that were tested, the only effective methods to
stop propagation of thermal runaway were reducing the state of charge
to 30 percent and adding a pack of water above the cells.\40\ The
inability of the package or the aircraft fire suppression system to
control a fire involving lithium ion batteries presents an immediate
safety hazard of which the actions in this IFR will address, while also
harmonizing to the ICAO Technical Instructions.
---------------------------------------------------------------------------
    \40\ Maloney, T., and Dadia, D. See footnote 23.
---------------------------------------------------------------------------
    This IFR is consistent with the July 2015 aircraft manufacturer
notices to air carriers warning of these hazards and supporting a
prohibition on the carriage of high-density packages of lithium ion
batteries on passenger aircraft. Several large passenger air carriers
responded to the notices by voluntarily instituting bans on the
transport of lithium ion batteries.
Removal of Authorization for Lithium Ion Aircraft Batteries
    As a consequence of the prohibition on the transport of lithium ion
batteries (UN3480) as cargo on passenger aircraft, PHMSA is removing
the authorization in Sec.  172.102(c)(2) special provision A51 that
permits the transport of lithium ion aircraft batteries on passenger
aircraft. Special provision A51 was added to the HMR in the HM-215L
final rule. 78 FR 987 (Jan. 7, 2013). This amendment, which became
effective on January 1, 2013, harmonized the HMR with an authorization
added to the 2013-2014 ICAO Technical Instructions that allowed a
package containing a single lithium ion aircraft battery with a net
mass not exceeding 35 kg on passenger aircraft. In 2013, shortly after
the authorization in special provision A51 became effective, there were
two incidents involving lithium ion batteries installed in Boeing Model
787-8 aircraft. The first incident on January 7, 2013, involved a Japan
Airlines Boeing 787-8 that was parked at the gate at Logan
International Airport in Boston, MA. Maintenance personnel observed
smoke coming from the lid of the auxiliary power unit battery case, as
well as a fire with two distinct flames at the electrical connector on
the front of the case. No passengers or crewmembers were aboard the
airplane at the time and none of the maintenance or cleaning personnel
aboard the airplane was injured.\41\ A second incident on January 16,
2013, on an All Nippon Airways flight required the flight to make an
emergency landing. Four passengers out of the 173 occupants on board
the aircraft suffered minor injuries during the evacuation. It appears
that in both cases the heat from a single overheated cell propagated to
adjacent cells resulting in a thermal runaway.\42\ In response to these
incidents, ICAO issued an addendum in February 2013 to disallow lithium
ion batteries from being transported under special provision A51.
Lithium ion batteries with a net weight of up to 35 kg may continue to
be transported on cargo-only aircraft.\43\
---------------------------------------------------------------------------
    \41\ Aircraft Incident Report; Auxiliary Power Unit Battery
Fire; National Transportation Safety Board NTSB/AIR-14/01; Adopted
November 21, 2014.
    \42\ Aircraft Serious Incident Investigation Report, Japan
Transport Safety Board; AI25014-4; September 25, 2014.
    \43\ Addendum 1 to the 2013-2014 edition of the ICAO Technical
Instructions, issued February 12, 2013. http://www.icao.int/safety/DangerousGoods/Documents/Doc%209284-2013-2014Edition_Addendum-1.en.pdf.
---------------------------------------------------------------------------
B. State of Charge Requirement
    PHMSA is requiring all lithium ion cells and batteries transported
as UN3480 (not packed with or contained in equipment) on cargo-only
aircraft be shipped at a state of charge of not more than 30 percent of
their rated capacity. This requirement was determined based on FAA
Technical Center test results demonstrating that the propagation of
thermal runaway could be greatly reduced or eliminated at this level.
The hazardous effects of thermal runaway were markedly less when the
cells were at 30 percent state of charge or less relative to higher
states of charge. The FAA tested lithium ion 18650 LiCoO2 cells at five
charge states: 100% (two tests), 50%, 40%, 30%, and 20%.
    The results can be summed up as follows:
     The 100% cell exploded in both tests, and rapid cooling
was observed. Peak temperature: 1030 [deg]F.
     The 50% test consumed all cells. Peak temperature: 1044
[deg]F.
     At 40%, two cells were consumed, and the peak temperature
760 [deg]F decreased after thermal runaway in Cell 2.
     At 30%, venting occurred in Cell 1 with no thermal
runaway. Peak temperature: 560 [deg]F.
     At 20%, venting occurred in Cell 1 with no thermal
runaway. Peak temperature: 502 [deg]F.
    These results apply to lithium ion cells of this size and chemistry
and thermal runaway effects may be different for different cell sizes
and chemistries. However other studies involving different lithium ion
cell chemistries show a similar trend of reduced hazardous effects at a
reduced state of charge. The ICAO agreed that a 30 percent state of
charge limit was appropriate based on the testing information
available.
    In implementing the ICAO Technical Instructions, PHMSA has fully
transmitted the provisions into the HMR. Consistent with the ICAO
Technical Instructions, PHMSA authorizes the transport of lithium ion
cells or batteries on cargo-only aircraft at a higher state of charge
subject to the approval of the Associate Administrator for Hazardous
Materials Safety. Also, consistent with ICAO, PHMSA did not provide an
authorization for transporting lithium ion batteries as
[[Page 8017]]
cargo on passenger aircraft. Accordingly, if there is a need to
transport lithium ion batteries on a passenger aircraft, an applicant
must apply for a special permit in accordance with the provisions of
part 107, subpart B.
    An approval is written consent, including a competent authority
approval, from the Associate Administrator or other designated
Department official, to perform a function that requires prior consent
under the HMR. Approvals are an extension of the regulations and
facilitate the continued safe transport of hazardous materials by
providing specific regulatory relief on a case-by-case basis. Approvals
are valid for both domestic and international transportation and are
recognized as approval by a competent authority for the purposes of the
ICAO Technical Instructions and other international hazardous materials
regulations. When shipping internationally, approval is required from
the country of origin and the country of the air carrier. Only a single
approval is required for shipments originating in the United States
transported by a domestic air carrier. PHMSA's approval application
procedures are set forth in 49 CFR part 107, subpart H. PHMSA specifies
an expiration date in each approval, which is typically 2 years from
the date of issuance. It is important to note that PHMSA only grants
approvals for activities allowed (if approved) under specific
conditions identified in the HMR. Applications for approvals and
supporting documentation may be submitted by mail, by facsimile,
electronically via email, or through PHMSA's online system. Unless
emergency processing is requested and granted, applications are usually
processed in the order in which they are filed.
    Lithium ion batteries contain both a chemical and an electrical
hazard. It is the combination of these two hazards that creates a
unique challenge to safety in the air transportation environment. As
referenced in this section, numerous private and public sector studies
have clearly demonstrated and validated through physical testing that
reducing a cell or battery's state of charge measurably reduces this
risk. A number of factors can lead to an incident in transport,
including but not limited to thermal, mechanical, or electrical abuse;
substandard cell design; and internal cell faults associated with cell
manufacturing defects. Existing transport requirements reduce the
likelihood of thermal runaway from damage and external short circuits.
Internal short circuits can form during charge and discharge cycles,
physical damage to the cell or battery or manufacturing defects.
Thermal runaway events originating from internal cell faults appear to
be rare, but do nevertheless occur. Regardless of the cause, the
hazardous effects of a thermal runaway event are the same. Cell
chemistry, state of charge, and heat transfer environment are some of
the significant factors that influence the effects of failure.\44\
Multiple independent studies have shown that, independent of the
initiating factor, reducing the state of charge measurably reduces both
the likelihood and consequence of an incident involving lithium ion
batteries. Most significantly, lowering the state of charge reduces or
eliminates the ability of a cell to experience thermal runaway and the
potential for propagation. Reducing the state of charge for lithium ion
cells and batteries offered for transport translates to a safer
transport environment.
---------------------------------------------------------------------------
    \44\ Mikolajczak et al. See footnote 4.
---------------------------------------------------------------------------
    Specifically, reducing the state of charge of a lithium ion cell or
battery:
     Decreases the likelihood of thermal runaway; \45\
---------------------------------------------------------------------------
    \45\ Doughty, Dan, and Roth, E. Peter, A General Discussion of
Li Ion Battery Safety, The Electrochemical Society Interface, Vol.
21, No.2, Summer 2012.
    \46\ Doughty, Dan, and Roth, E. Peter. See footnote 45.
---------------------------------------------------------------------------
     Decreases or eliminates the potential for thermal runaway
to spread to adjacent cells or batteries; \46\
     Increases the cell's ability to tolerate a short circuit
and significantly reduces the maximum temperature achieved at the point
of shorting; \47\
---------------------------------------------------------------------------
    \47\ Doughty, Dan, and Roth, E. Peter. See footnote 45.
---------------------------------------------------------------------------
     Reduces the quantities of gases released if thermal
runaway occurs; 48 49 50 51
---------------------------------------------------------------------------
    \48\ Doughty, Dan, and Roth, E. Peter. See footnote 45.
    \49\ Somandepalli, V., Marr, Kevin C., and Horn, Quinn C.,
Quantification of Combustion Hazards of Thermal Runaway Failures in
Lithium-Ion Batteries, SAE International. J. Alt. Power, Vol. 3, No.
1, May 2014.
    \50\ Golubkov, Andrey W., Scheikl, Sebastian, Planteu,
Ren[eacute], Voitic, Gernot, Wiltsche, Helmar, Stangl, Christoph,
Fauler, Gisela, Thaler, Alexander, and Hacker, Viktor, Thermal
runaway of commercial 18650 Li-ion batteries with LFP and NCA
cathodes--impact of state of charge and overcharge, Royal Society of
Chemistry Advances, Issue 70, June 2015.
    \51\ Roth, E. P., Crafts, CC, Doughty, D. H., and McBreen J.,
Advanced Technology Development Program for Lithium-Ion Batteries:
Thermal Abuse Performance of 18650 Li-Ion Cells, Sandia Report:
SAND2004-0584, March 2004.
---------------------------------------------------------------------------
     Reduces the magnitude of the heating rate if thermal
runaway occurs.52 53 54 55 56
---------------------------------------------------------------------------
    \52\ Doughty, Dan, and Roth, E. Peter. See footnote 45.
    \53\ Somandepalli et al. See footnote 49.
    \54\ Bandhauer et al. See footnote 3.
    \55\ Roth et al. See footnote 51.
    \56\ Golubkov et al. See footnote 52.
---------------------------------------------------------------------------
    Comprehensive laboratory testing from various sources, including
the FAA, has shown that lithium ion batteries are thermally more stable
and the hazardous effects of thermal runaway are less when the battery
is at a reduced state of charge. Both Roth et al.\57\ and Doughty and
Roth \58\ found that a higher state of charge in commercially-available
lithium ion 18650 LiCoO2 cells resulted in lower onset temperature of
self-generated heating and that the magnitude of a cell's response to
internal short circuit is influenced by state of charge. Other studies,
such as that done by Somandepalli et al.\59\ have observed that the
volume of gas vented from cells in thermal runway is less at lower
states of charge. More importantly, a sufficiently reduced state of
charge for the most commonly carried cells eliminates propagation of
thermal runaway and the potential for a chain reaction in the event of
a single cell failure.
---------------------------------------------------------------------------
    \57\ Roth et al. See footnote 51.
    \58\ Doughty, Dan, and Roth, E. Peter. See footnote 45.
    \59\ Somandepalli et al. See footnote 49.
---------------------------------------------------------------------------
    In an aviation environment, the safety benefits associated with a
reduced state of charge are more pronounced than for other modes due to
the potential consequences of an in-flight event. As evidenced by
testing conducted by the FAA Technical Center and supported by analyses
performed by a major aircraft manufacturer, an incident involving even
a relatively small number of lithium ion cells is sufficient to
overwhelm existing aircraft safety systems and compromise the integrity
of the aircraft. Taking this into account, manufacturers often
preemptively ship lithium ion batteries at a reduced state of charge as
a business practice.
[[Page 8018]]
    Existing aircraft protection systems simply cannot mitigate the
accumulation and potential for ignition of flammable gases, which can
completely overwhelm current aircraft safety systems and lead to loss
of the aircraft's flight capabilities. Requiring cells and batteries to
be transported at a sufficiently reduced state of charge would
immediately and measurably reduce both the likelihood and consequences
of an incident involving lithium ion cells or batteries in an aviation
environment. As demonstrated by multiple studies and physical testing,
the exothermic reaction experienced by a cell is highly dependent on
the state of charge.60 61 For the most commonly carried
cell, the lithium ion 18650 LiCoO2 cell, research and testing is
particularly significant. The FAA Technical Center testing has
specifically demonstrated that for these cells, a state of charge of 30
percent not only reduces the intensity of thermal runaway but also
completely eliminates propagation of thermal runaway.\62\ While no one
safety measure known today is singularly effective in eliminating all
hazards inherent in the transport of lithium ion batteries, this
particular measure dramatically reduces the possibility of an
unmanageable event that could lead to loss of the aircraft and the
lives of those aboard. Further research and additional work is
necessary to more comprehensively assess the most effective mechanisms
to mitigate those hazards. While this work continues, it is in the best
interest of the public that carriage of lithium ion cells or batteries
as cargo on passenger aircraft be prohibited and that state of charge
be reduced on lithium ion cells and batteries being carried as cargo on
cargo-only aircraft.
---------------------------------------------------------------------------
    \60\ Mikolajczak, C.J., and A. Wagner-Jaureff, US FAA-Style
Flammability Assessment of Lithium Ion Cells and Battery Packs in
Aircraft Cargo Holds, Exponent Failure Analysis Report, April 15,
2005 Retrieved from: http://www.prba.org/wp-content/uploads/Exponent_PRBA_burn_box_report_final1.pdf.
    \61\ Webster, H. See footnote 20.
    \62\ Maloney, T., and Dadia, D. See footnote 23.
---------------------------------------------------------------------------
C. Consignment and Overpack Restriction
    PHMSA is restricting the use of alternative provisions for small
lithium cells and batteries to one package per overpack or consignment
to prevent the consolidation of large numbers of lithium cell and
battery shipments in a single overpack or consignment under provisions
designed for small quantities of batteries. Shippers can still offer
lithium cells or batteries in an overpack or a consolidated
consignment, but these must be identified to the air operator as
hazardous materials. The identification of these consignments as
hazardous materials will allow operators to consider safety risk
assessments and implement mitigation strategies appropriate to the
operator's specific capabilities, thus reducing the hazards posed by
such consignments.
    The hazardous materials regulatory system has for decades proven
its effectiveness in mitigating risks associated with hazardous
materials transportation. Shippers and operators understand this system
and have included steps in their processes to ensure compliance.
Current provisions for small batteries were developed based on the
reduced risk posed by a limited number of small batteries in a single
package. These provisions were developed before current research and
testing that demonstrate the significant fire hazard posed by
consolidations of such packages in an aviation environment. ICAO
considered reducing or eliminating the provisions for Section II of the
ICAO Technical Instructions because such consignments do not require
shipping papers or notification to the pilot in command. Shipping
papers provide air carriers with information (i.e., quantity, type of
package, package weight) that is essential to accurately identify
packages of lithium batteries and to conduct effective safety
assessments. ICAO ultimately agreed to limit provisions for Section II
batteries by restricting to one the number of packages that can be
offered as a single shipment or placed into a single overpack and noted
that this action would ensure such consignments were subject to
standard hazard communication, thereby improving awareness to the
operator. ICAO considered recent actions by government regulators and
the industry, and various recommendations from the Third International
Multidisciplinary Lithium Battery Transport Coordination Meeting:
     A safety alert for operators issued by the FAA in 2010
(SAFO 10017) recommending that operators load bulk consignments of
Section II batteries in Class C cargo compartments or locations where
alternate fire suppression was available; \63\
---------------------------------------------------------------------------
    \63\ The FAA Safety Alert for Operators (SAFO) 10017 is
available through the following URL: http://www.faa.gov/news/press_releases/media/safo10017.pdf.
---------------------------------------------------------------------------
     A multi-operator message issued by the Boeing Company in
2015 (MOM-MOM-15-0469-01B) advising operators who transport lithium
batteries to conduct a safety risk assessment that takes into account,
among other factors, the types and quantities of lithium batteries
carried, the quantity per flight, their location within the cargo
compartment, and their proximity to other dangerous goods;
     An in-service information article issued by Airbus
Industries in 2015 (ISI 00.00.00182) advising operators who transport
lithium batteries to conduct a safety assessment that considers, among
other factors, information on the types of lithium batteries being
shipped, as well as the quantity and density of the consignment. Airbus
further recommended that all consignments of lithium batteries be
identified and notified, and that policy to notify the flight crew of
all lithium battery consignments is established; and
     Interim recommendations from the Third International
Multidisciplinary Lithium Battery Transport Coordination Meeting (see
paragraph 5.1.3 and appendix A to the report available at http://www.icao.int/safety/DangerousGoods/Pages/Multidisciplinary.aspx),
including safety risk assessments by operators who wished to transport
lithium batteries that would require consideration of information on
the types and quantities of lithium batteries and cells being
transported.
    Alignment of the HMR with the revised Section II provisions in the
ICAO Technical Instructions for small batteries directly addresses NTSB
Recommendation A-07-109 that the Department ``eliminate regulatory
exemptions for the packaging, marking, and labeling of cargo
consignments of small secondary lithium batteries (no more than 8 grams
equivalent lithium content) until the analysis of the failures and the
implementation of risk-based requirements asked for in Safety
Recommendation A-07-108 are completed.'' This recommendation was closed
by NTSB when the DOT took an ``Acceptable Alternative Action'' by
harmonizing the HMR with the 2013-2014 ICAO Technical Instructions,
which included amended provisions for Section II batteries. The
relevant amendments to the 2013-2014 ICAO Technical Instructions were
adopted by ICAO on the basis that those amendments were considered to
ensure that:
    [T]raining would now be required for many more shippers
preparing lithium battery shipments; operators would now be required
to perform acceptance checks on all large shipments of lithium
batteries prior to loading and stowage aboard an aircraft; pilots
would be notified of the presence, location and quantity of lithium
batteries aboard the aircraft . . . and regulators would be
[[Page 8019]]
provided a framework in which better training, oversight and
enforcement could be applied.
    However, implementation of the revised ICAO provisions in practice
revealed a deficiency in that large numbers of Section II packages
continued to enter the air transport stream in bulk (overpacked and/or
palletized) configurations. Adopting the amendments in this IFR will
bring the HMR into alignment with the ICAO Technical Instructions and
address this deficiency.
D. Limited Exceptions to Restrictions on Air Transportation of Medical
Device Cells or Batteries
    To execute the mandate in Section 333 of the FAA Reauthorization
Act of 2018, PHMSA is authorizing, with the approval of the Associate
Administrator, the transport of not more than two lithium cells or
batteries used for a medical device to be transported on passenger
aircraft and an exception from the 30 percent state of charge limit
under specified conditions. This provision applies when the intended
destination of the batteries is not serviced daily by cargo aircraft
and the batteries are required for medically necessary care. The
medical device cells or batteries must be (1) individually packed in an
inner packaging that completely encloses the cell or battery, (2)
placed in a rigid outer packaging, and (3) protected to prevent short
circuiting.\64\ PHMSA is also adopting the definition of medical device
as used in the FAA Reauthorization Act of 2018 as follows: ``A medical
device means an instrument, apparatus, implement, machine, contrivance,
implant, or in vitro reagent, including any component, part, or
accessory thereof, which is intended for use in the diagnosis of
disease or other conditions, or in the cure, mitigation, treatment, or
prevention of disease, of a person.''
---------------------------------------------------------------------------
    \64\ PHMSA notes methods to prevent short circuiting include,
but are not limited to: Packaging each battery in fully enclosed
inner packages made of non-conductive material, packaging batteries
in a manner to prevent contact with other batteries, devices or
conductive materials, and ensuring exposed terminals or connectors
are protected with non-conductive caps, non-conductive tape, or by
other appropriate means. See PHMSA Letter of Interpretation,
Reference Number 16-0174; May 18, 2018.
---------------------------------------------------------------------------
    Several aspects necessary to implement the FAA Reauthorization Act
of 2018 requirements, are not defined in the congressional mandate. In
this IFR, PHMSA defines requirements based on previous interpretations,
current regulatory requirements, and ease of implementation. PHMSA
requests comments on these criteria, including potential impacts these
criteria may have on stakeholders.
     The limitation to ``not more than two replacement lithium
cells or batteries'' applies to the number of cells or batteries per
package, as approved by the Associate Administrator.
     A destination is no longer considered to be ``serviced
daily by a cargo aircraft'' when it is impracticable \65\ to reach the
intended destination by cargo aircraft and subsequent motor vehicle
transportation. The person applying for the approval of the Associate
Administrator must demonstrate that this provision applies. PHMSA has
not provided a specific distance of when a location is no longer
considered serviced daily by a cargo aircraft to allow for flexibility
in evaluating each scenario on a case-by-case basis; however, PHMSA
seeks comment on whether a distance should be considered.
---------------------------------------------------------------------------
    \65\ PHMSA has previously used the term ``impracticable'' in the
HMR. See Sec. Sec.  173.150(f) and 175.310(a).
---------------------------------------------------------------------------
     Batteries ``required for medically necessary care'' are
batteries that are needed for a medical device that is used by the
recipient for medical care.
    PHMSA's standard operating procedures [for approvals and special
permits] will be updated when reviewing applications for consignments
of lithium cells or batteries for medical devices, as prescribed in
Section 333 paragraph (b)(1) of the FAA Reauthorization Act of 2018.
Specifically, PHMSA will either grant or deny an application for air
transportation of lithium ion cells or batteries specifically used for
medical devices, no later than 45 days after receipt of the
application. A draft will be submitted to the FAA no later than 30 days
after the date of application, and the FAA will conduct an on-site
inspection no later than 20 days after receiving the draft from PHMSA.
Section 333 paragraph (b)(1) applies to only lithium ion cells and
batteries, but since paragraph (b)(2) applies to both lithium ion and
metal batteries for medical devices, PHMSA understands the FAA
Reauthorization Act of 2018 language in section 333 paragraph (b)(1) to
also apply to lithium metal batteries for medical devices. PHMSA seeks
comments on the application requirements or evaluation process,
including any potential impacts on applicants or airlines, such as
package design, distance between the intended destination and an
airport not serviced daily by a cargo aircraft, communication
requirements, and the FAA on-site inspection.
    This limited exception also addresses comments submitted to Docket
No. DOT-OST-2015-0169, which identified a need to transport lithium ion
batteries to remote areas that are accessible by passenger aircraft
only.
VI. Regulatory Analysis and Notices
A. Statutory/Legal Authority for This Rulemaking
    This IFR is published under the authority of the Federal Hazardous
Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 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. This IFR revises
regulations for the safe transport of lithium cells and batteries by
air and the protection of aircraft operators and the flying public.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
    Executive Order 12866 (``Regulatory Planning and Review'') requires
agencies to regulate in the ``most cost-effective manner,'' to make a
``reasoned determination that the benefits of the intended regulation
justify its costs,'' and to develop regulations that ``impose the least
burden on society.''
    This IFR is considered a significant regulatory action under E.O.
12866 and the Regulatory Policies and Procedures of the Department of
Transportation. 44 FR 11034. However, this IFR is not an economically
significant regulatory action as defined by section 3(f)(1) under E.O.
12866, because it does not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. A Regulatory Impact Analysis (RIA) is
available for review in the public docket for this rulemaking and
summarized below. Please see the RIA for more details on the benefits
and costs of the IFR.
    As previously discussed, the safe transport of lithium batteries by
air has been an ongoing concern for PHMSA, FAA, and DOT. Lithium
batteries pose unique challenges to safety in a transportation
environment because, unlike other hazardous materials, they contain
both a chemical and an electrical hazard. This combination of hazards,
when involved in a fire encompassing significant quantities of
[[Page 8020]]
lithium batteries, may exceed the fire suppression capability of the
aircraft and lead to a catastrophic loss of the aircraft.
    In response to both the hazards posed by the transport of lithium
ion batteries by air, as evidenced by the FAA Technical Center testing
results (see ``Section III.A. FAA Technical Center Testing''), and the
recent developments in the international community, PHMSA is amending
the HMR applicable to lithium cells and batteries not contained in or
packed with equipment to:
    (1) Prohibit the transport of lithium ion cells and batteries (not
packed with or contained in equipment) as cargo on passenger aircraft;
    (2) Require all lithium ion cells and batteries (not packed with or
contained in equipment) to be shipped at not more than a 30 percent
state of charge on cargo-only aircraft; and
    (3) Restrict small lithium cell and battery shipments to one
package per consignment or overpack.
    Some costs and benefits are related to the total number of
companies or employees affected. The IFR potentially impacts
approximately 99 domestic passenger airlines, 468 shipping firms, and
over 27,000 employees on average. PHMSA examined the benefits and the
costs of the provisions of this rulemaking using the post-ICAO baseline
\66\ as the basis for the analysis as shown below. Table 2 summarizes
the benefits and costs by rulemaking provision over a 10-year period
and annualized, discounted at a 7 percent rate.
---------------------------------------------------------------------------
    \66\ The post-ICAO baseline is the international operating
environment present after April 1, 2016; this would (1) restrict
lithium ion batteries to a 30 percent state of charge for
international air shipments, (2) restrict the number of Section II
packages to one per consignment on international air shipments, and
(3) prohibit the shipping of lithium ion batteries as cargo on
international passenger flights. This environment also includes a
level of voluntary domestic compliance with the above provisions in
the United States.
                Table 2--Summary of Benefits and Costs for Lithium Battery Provisions--Post ICAO
----------------------------------------------------------------------------------------------------------------
                                                                                             10-Year  quantified
             Provision                       Benefits               Unquantified costs           cost  (7%)
----------------------------------------------------------------------------------------------------------------
State of Charge...................   Limits the volume   Potential changes  $2,304,551. These
                                     of flammable gases          in manufacturing            estimates include
                                     emitted by lithium ion      procedures to ensure        only the cost for
                                     cells propagated in a       compliance with state of    entities to apply
                                     thermal runaway.            charge provision.           for permission to
                                     Results in a less   Reevaluation of     ship batteries at
                                     energetic thermal runaway   management practices and    higher charge
                                     event if one should occur.  potentially instituting     levels.
                                     Reduces the         changes to avoid or
                                     likelihood of thermal       lessen supply chain
                                     propagation from cell to    impacts such as reduced
                                     cell.                       shelf life of batteries
                                     Harmonization       and battery quality
                                     facilitates international   issues.
                                     trade by minimizing the     Additional time
                                     burden of complying with    for end users needed to
                                     multiple or inconsistent    charge the batteries from
                                     safety requirements         30 percent state of
                                     (although currently         charge or less instead of
                                     domestic shippers and       the typical levels of 40
                                     carriers have the option    or 50 percent at which
                                     to voluntarily comply       manufacturers currently
                                     with ICAO requirements).    set the state of charge.
                                     Consistency between
                                     regulations reduces
                                     compliance costs and
                                     helps to avoid costly
                                     frustrations of
                                     international shipments.
Consignment Limit.................   Reduces the risk    Costs due to       $44,328,936. Costs
                                     of fire from shipping       modal shift that might      include additional
                                     large quantities of         occur from air transport    hazard
                                     excepted batteries that     to ground or marine         communication and
                                     were previously being       transport due to higher     employee training.
                                     consolidated in             shipping costs by air.
                                     overpacks, pallets, in      The end receivers may be
                                     single-unit load devices    inconvenienced by longer
                                     and single aircraft cargo   shipping times that imply
                                     compartments.               less prompt access to
                                     Reduces the         goods purchased.
                                     propensity for large
                                     numbers of batteries or
                                     packages shipped in
                                     accordance with
                                     regulatory exceptions.
                                     Harmonization
                                     facilitates international
                                     trade by minimizing the
                                     burden of complying with
                                     multiple or inconsistent
                                     safety requirements
                                     (although currently
                                     domestic shippers and
                                     carriers have the option
                                     to voluntarily comply
                                     with ICAO requirements).
                                     Consistency between
                                     regulations reduces
                                     compliance costs and
                                     helps to avoid costly
                                     frustrations of
                                     international shipments.
[[Page 8021]]

Lithium Battery Prohibition as       Safety benefits     Potential          Impact expected low
 Cargo on Passenger Aircraft.        expected to be low or       additional costs to air     given evidence of
                                     none given evidence of      carriers transporting       pre-IFR compliance.
                                     pre-IFR compliance.         cargo shipments of the
                                     Eliminates the      lithium ion batteries on
                                     risk of an incident         cargo planes instead of
                                     induced by lithium ion      passenger airplanes. They
                                     batteries shipped as        vary for each air carrier
                                     cargo in a passenger        function of the size of
                                     aircraft.                   the airline and the areas
                                     Eliminates the      they service, the
                                     risk of a fire              availability of cargo-
                                     exacerbated by the          only aircraft fleet, the
                                     presence of lithium ion     capacity usage and cargo
                                     batteries involving the     volume availability of
                                     cargo hold of a passenger   their cargo aircraft
                                     aircraft.                   fleet, the volume of
                                     Harmonization       lithium ion batteries
                                     facilitates international   they were transporting by
                                     trade by minimizing the     passenger airplanes.
                                     burden of complying with    Cost due to modal
                                     multiple or inconsistent    shift that might occur as
                                     safety requirements         higher costs to ship by
                                     (although currently         air may induce shippers
                                     domestic shippers and       to send by ground and
                                     carriers have the option    marine transportation.
                                     to voluntarily comply       The end receivers may be
                                     with ICAO requirements).    inconvenienced by longer
                                     Consistency between         shipping times that imply
                                     regulations reduces         less prompt access to
                                     compliance costs and        goods purchased. This can
                                     helps to avoid costly       have potential impacts on
                                     frustrations of             rural and remote
                                     international shipments.    communities not serviced
                                                                 daily by cargo aircraft
                                                                 or only serviced by
                                                                 passenger aircraft. For
                                                                 customers needing lithium
                                                                 batteries used in devices
                                                                 other than medical
                                                                 devices, the delays in
                                                                 the delivery of the
                                                                 required batteries could
                                                                 result in a range of
                                                                 consequences depending on
                                                                 their intended need.
                                                                                           ---------------------
    Total.........................  ..........................  ..........................  10-Year:
                                                                                             $46,633,487.
                                                                                             Annualized:
                                                                                             $6,639,559.
----------------------------------------------------------------------------------------------------------------
    Based on the analysis described in this RIA, at the mean, PHMSA
estimates the present value costs about $46.6 million over 10 years and
about $6.6 million annualized (at a 7 percent discount rate).
    While PHMSA examined the benefits and the costs of the provisions
of this rulemaking using the post-ICAO baseline, we acknowledge that
using the pre-ICAO baseline \67\ would produce different cost and
benefit figures. That said, given the significant data uncertainties
regarding pre-ICAO baseline and operational practices, PHMSA was unable
to completely quantify the pre-ICAO baseline. For more detail on cost
and benefits of the pre-ICAO baseline see the ``Section 11 Alternative
Baseline Analysis'' of the RIA included in the docket for this
rulemaking.
---------------------------------------------------------------------------
    \67\ The pre-ICAO baseline is the international operating
environment present before April 1, 2016 with: (1) No limitations of
state of charge, (2) No limitation on the number of Section II
packages offered in a single consignment, and (3) No prohibition of
shipping Lithium ion batteries as cargo on passenger carrying
aircraft.
---------------------------------------------------------------------------
    PHMSA reviewed incidents involving lithium batteries shipped by air
to determine how many reported incidents would be affected by the scope
of this IFR. The following summary provides a breakdown of U.S.
passenger and cargo-only aircraft incidents involving lithium batteries
from 2010 to 2016 in which a Hazardous Materials Incident Report, DOT
Form 5800.1, was submitted.
    We filtered incidents for those involving lithium batteries and
fire, extreme heat, or explosion. In addition, we filtered passenger
aircraft incidents for those occurring in cargo as opposed to passenger
baggage. We also filtered both passenger and cargo-only aircraft
incidents for those involving lithium ion batteries as opposed to
lithium metal batteries given applicability of the three provisions and
the extent that information was available in the incident report. We
further filtered incidents for undeclared shipments or those without
labels and markings where possible.
    U.S. Passenger Aircraft Lithium Battery Incidents: PHMSA identified
a total of 21 lithium battery incidents in passenger air transportation
relevant to the scope of this rulemaking. PHMSA started with a set of
36 lithium battery incidents in passenger air transportation and
filtered out 15 of the incidents involving lithium ion batteries and
fire, extreme heat, or explosion. PHMSA determined that the incidents
resulting in fire involved lithium ion batteries transported in
passenger baggage or were packed in equipment. While these incidents
indicate the potential harm from the presence of a lithium ion battery
fire, the scope of this rulemaking does not affect lithium ion
batteries carried in airline passenger baggage or packed in equipment.
There were no fatalities or hospitalizations associated with these
incidents.
    U.S. Cargo Aircraft Lithium Battery Incidents: PHMSA identified a
total of 139 incidents in air cargo transportation. Thirteen of these
incidents involved lithium batteries and fire, extreme heat or
explosion that would be affected by the IFR. PHMSA cannot be certain of
how many of the 13 lithium battery incidents in cargo transportation
relate to the consignment limit provision. However, based on review of
the narratives of the incidents, PHMSA believes that at least five of
the incidents are related to the consignment limit provision.
Summary of Benefits
    PHMSA expects the IFR will improve safety for flight crews, air
cargo operators, and the public as a result of the state of charge
requirement and the consignment and overpack restriction by reducing
the possibility of fire on cargo-only aircraft. Additionally, the IFR
will harmonize the prohibition of
[[Page 8022]]
lithium ion batteries as cargo on passenger aircraft and eliminate the
possibility of a package of lithium ion batteries causing or
contributing to a fire in the cargo hold of a passenger aircraft.
Passenger Aircraft Prohibition
    The provision prohibiting lithium ion batteries as cargo on
passenger aircraft will provide safety benefits to air operators and
the public by virtually eliminating the possibility of (1) an incident
induced by lithium ion batteries shipped as cargo in a passenger
aircraft and (2) a fire exacerbated by the presence of lithium ion
batteries in the cargo compartment of a passenger aircraft. In
addition, this rulemaking will harmonize U.S. regulations with the ICAO
Technical Instructions.
State of Charge Requirement
    The provision limiting the state of charge will provide safety
benefits to air cargo operators and the public by reducing the
available energy and limiting the propagation of heat and fire in the
event of thermal runaway in lithium ion cells and batteries. The FAA
Technical Center report, Hazards Produced by Lithium Batteries in
Thermal Runaway in Aircraft Cargo Compartments, found that the volume
of gases emitted by lithium ion cells in thermal runaway is dependent
on the state of charge of the cell and higher states of charge yield
greater volumes of flammable gases. Further, reducing the state of
charge of lithium ion 18650 LiCoO2 cells to not more than 30 percent
resulted in a less energetic thermal runaway event and greatly reduced
the likelihood of thermal propagation from cell to cell.\68\ As such,
the state of charge requirement in this rulemaking will serve to
mitigate the likelihood of thermal propagation for lithium ion cells
stored in cargo holds of cargo-only aircraft, particularly for lithium
ion 18650 LiCoO2 cells, by preventing the propagation of thermal
runaway.
---------------------------------------------------------------------------
    \68\ Webster et al. See footnote 7.
---------------------------------------------------------------------------
Consignment and Overpack Restriction
    The provision restricting the number of packages per consignment or
overpack when transported in accordance with limited hazard
communication will provide safety benefits to air cargo operators and
the public by addressing the fire hazard associated with shipping large
quantities of small lithium cells and batteries that were previously
being consolidated in overpacks, pallets, in single unit load devices.
The existing regulations permit large quantities of closely packed
lithium ion batteries to be transported by aircraft without requiring
the shipper to disclose information to the air operator or the pilot in
command. The potential for a small number of lithium batteries in
thermal runaway to vent flammable gas and propagate thermal runaway
between cells in the same package and between adjacent packages and
material caused the ICAO to review the effectiveness of the existing
safety standards. ICAO adopted a consignment restriction to preclude
abuse of the relief provided for small quantities of small lithium
cells and batteries.
    Based on the estimated mean 10-year undiscounted cost of $65.84
million and the estimated economic consequences of $34.9 million for a
cargo-only flight incident, the rulemaking would need to prevent 1.9
incidents over the next 10 years for the benefits to exceed the
quantified costs, or approximately one every 5 years. The rulemaking
would need to prevent a larger number of incidents to exceed the
rulemaking's cost when non-quantified costs are considered. There have
been two fatalities in the U.S. safety record,\69\ which covers the
period related to accidents involving lithium ion batteries shipped by
air.
---------------------------------------------------------------------------
    \69\ For the purposes of this analysis, the scope of the U.S.
safety record includes incidents reported to PHMSA over a 10-year
period using a DOT Form 5800.1. Furthermore, PHMSA is unable to
conduct a root cause analysis on many lithium battery incidents due
to the destruction of evidence in fire.
---------------------------------------------------------------------------
C. Executive Order
    This rulemaking is considered an Executive Order 13771 regulatory
action. Details on the estimated costs of this rulemaking can be found
in the rulemaking's economic analysis.
D. Executive Order 13132
    This IFR has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism'') and the
President's memorandum (``Preemption'') published in the Federal
Register on May 22, 2009 [74 FR 24693]. This IFR will preempt 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. If adopted, this IFR will preempt
any State, local, or tribal requirements concerning these subjects
unless the non-Federal requirements are ``substantively the same'' as
the Federal requirements. In addition, this IFR does not have
sufficient federalism impacts to warrant the preparation of a
federalism assessment.
E. Executive Order 13175
    This IFR has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rulemaking
does not significantly or uniquely affect the communities of Tribal
governments and does not impose substantial direct compliance costs,
the funding and consultation requirements of Executive Order 13175 do
not apply.
F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Regulatory Policies and Procedures
    Section 603 of the Regulatory Flexibility Act (RFA) requires an
agency to prepare an initial regulatory flexibility analysis describing
impacts on small entities whenever an agency is required by 5 U.S.C.
553 to publish a general notice of proposed rulemaking for any proposed
rulemaking. Similarly, section 604 of the RFA requires an agency to
prepare a final regulatory flexibility analysis when an agency issues a
final rule under 5 U.S.C. 553 after being required to publish a general
notice of proposed rulemaking. Because of the contributing factors and
the need to address the identified safety risk, PHMSA has found that
there is good cause to forgo notice and comment pursuant to the
exceptions in 5 U.S.C. 553(b)(B)(3). Accordingly, PHMSA has not
analyzed the effects of this action under 5 U.S.C. 603 and 604.
G. Paperwork Reduction Act
    PHMSA currently has approved information collections under Office
of Management and Budget (OMB) Control Numbers 2137-0034, ``Hazardous
Materials Shipping Papers and Emergency Response Information'' and
2137-0557, ``Approvals for Hazardous Materials.'' A review of the
baseline and change of paperwork and recordkeeping burden related to
this IFR would bring small lithium batteries into fully regulated
status, thus requiring shipping papers. PHMSA estimates that there will
be an additional 28,242 shipments annually that will require a shipping
paper. PHMSA estimates that each shipping paper takes one minute and
thirty seconds to complete (28,242 shipments x 1 minute 30 seconds),
which results in approximately 741 burden hours. PHMSA does not
[[Page 8023]]
estimate any increase in out-of-pocket costs. These shipments will also
require a notification to the pilot in command (NOPIC) taking 1 minute
per shipment (28,242 shipments x 1 minute), which results in an
increase of approximately 471 burden hours. PHMSA does not estimate any
increase in out-of-pocket costs. In total for this information
collection, PHMSA estimates an approximate increase of 56,484 annual
number of responses (28,242 shipping paper responses + 28,242 NOPIC
responses) and approximate increase of 1,212 burden hours (741 shipping
paper burden hours + 471 NOPIC burden hours).
    PHMSA also estimates that an additional 468 approval requests will
result from the new requirements in this IFR. PHMSA estimates that it
takes 40 hours to complete the paperwork portion of an approval
request, resulting in 18,720 additional burden hours (468 approval
requests x 40 hours per request). PHMSA does not estimate any increase
in out-of-pocket costs.
    A summary of the information collection changes can be found below:
OMB Control Number 2137-0034
    Annual Increase in Number of Respondents: 0.
    Annual Increase in Annual Number of Responses: 56,484.
    Annual Increase in Annual Burden Hours: 1,212.
    Annual Increase in Annual Burden Costs: $0.
OMB Control Number: 2137-0557
    Annual Increase in Number of Respondents: 468.
    Annual Increase in Annual Number of Responses: 468.
    Annual Increase in Annual Burden Hours: 18,720.
    Annual Increase in Annual Burden Costs: $0.
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, no
person is required to respond to an information collection unless it
has been approved by OMB and displays a valid OMB control number.
Section 1320.8(d) of title 5 of the CFR requires that PHMSA provide
interested members of the public and affected agencies an opportunity
to comment on information and recordkeeping requests. Please direct
your requests for a copy of the information collection to Steven
Andrews or Shelby Geller, U.S. Department of Transportation, Pipeline &
Hazardous Materials Safety Administration (PHMSA), East Building,
Office of Hazardous Materials Standards, 1200 New Jersey Avenue
Southeast, Washington DC 20590, Telephone (202) 366-8553.
H. Regulation Identifier Number (RIN)
    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
I. Unfunded Mandates Reform Act
    This IFR does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $141.3
million or more to either State, local, or Tribal governments, in the
aggregate, or to the private sector, and it is the least burdensome
alternative that achieves the objective of the rulemaking.
J. Environmental Assessment
    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375
(NEPA) requires Federal agencies to consider the environmental impacts
of proposed actions in their decision-making process. Where an agency
does not anticipate significant environmental impacts, the Council on
Environmental Quality (CEQ) regulations implementing NEPA require
Federal agencies to conduct an environmental assessment to consider (1)
the need for the action, (2) alternatives considered, (3) the human and
environmental impacts of the action and alternatives, and (4) a list of
the agencies and persons consulted. See 40 CFR 1508.9(b). This IFR
would amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-
180), with the following provisions to (1) prohibit the transport of
lithium ion cells and batteries as cargo on passenger aircraft; (2)
require all lithium ion cells and batteries to be shipped at not more
than a 30 percent state of charge on cargo-only aircraft; and (3)
restrict small lithium cell and battery shipments to one package per
consignment or overpack.
1. Need for the Action
    Lithium batteries pose unique challenges to safety when transported
by air because, unlike other hazardous materials, they contain both a
chemical and an electrical hazard. This combination of hazards, when
involved in a fire encompassing significant quantities of lithium
batteries, may exceed the fire suppression capability of an aircraft
and lead to a catastrophic lithium battery event. Lithium batteries can
overheat and ignite under certain conditions and, once ignited, can be
especially difficult to extinguish. The presence of lithium batteries
can also increase the severity of a fire originating from another
source. In general, lithium batteries have a higher energy density
(i.e., high energy to size ratio) than other types of batteries and are
susceptible to thermal runaway, which is a chain reaction leading to
self-heating and uncontrolled release of the battery's stored energy.
In addition, most lithium ion batteries manufactured today contain a
flammable electrolyte.
    Laboratory testing conducted at the FAA Technical Center has
demonstrated that lithium batteries pose a greater risk in air
transportation than other types of batteries (e.g., alkaline, nickel-
metal hydride, and nickel cadmium). This testing has also demonstrated
that even a few lithium batteries can present a serious hazard. The
current fire suppression systems installed on aircraft provide, at
best, limited effectiveness in mitigating fires involving a consignment
of lithium batteries, which confirms that lithium batteries pose unique
transportation hazards of which the current requirements are not
effective in mitigating.
    Additionally, during the ICAO Dangerous Goods Panel Meeting (DGP-
25; October 19-30, 2015), the DGP proposed two amendments to the ICAO
Technical Instructions. These proposed amendments were based on
recommendations developed at the Second and Third International
Multidisciplinary Lithium Battery Transport Coordination Meetings,
which took place in September 2014 and July 2015, respectively. By way
of DGP-25, the DGP recommended that the ICAO Technical Instructions be
amended to (1) require all lithium ion cells and batteries on cargo-
only aircraft to be shipped at not more than a 30 percent state of
charge and (2) restrict the number of packages that may be offered
under current ICAO Technical Instructions provisions for small
batteries (``Section II'' batteries) to not more than one package per
consignment. The ICAO Council approved and published these amendments
for incorporation into the 2015-2016 ICAO Technical Instructions in
January 2016, with an effective date of April 1, 2016.
    On February 22, 2016, in addition to the two safety enhancements
discussed above, ICAO adopted an additional safety measure that
prohibits, on an interim basis, all consignments of lithium ion
batteries as cargo on passenger aircraft. This prohibition will
[[Page 8024]]
continue to be in force as separate work continues through ICAO on a
new lithium battery packaging performance standard. This additional
safety measure is also effective April 1, 2016.
    Lastly, this rulemaking meets the congressional requirements in
Section 333 of the FAA Reauthorization Act of 2018. The FAA
Reauthorization Act of 2018 mandates that within 90 days of enactment,
the Secretary shall issue regulations that adopt the requirements in
the 2015-2016 ICAO Technical Instructions related to the air
transportation of lithium cells and batteries, as well as the revised
standards adopted by ICAO, which were effective on April 1, 2016, and
any other provisions adopted by ICAO prior to the effective date of the
FAA Reauthorization Act of 2018. The FAA Reauthorization Act of 2018
also directs the issuance of a limited exception to the restrictions on
medical device lithium cells and batteries transported via aircraft,
including an expedited review of applications for approvals and special
permits related to the air transportation of lithium cells and
batteries required for medically necessary care.
2. Alternatives Considered
    In this rulemaking, PHMSA considered the following three
alternatives:
    Selected Alternative:
    The Selected Alternative is the scenario, in which PHMSA adopts
into the HMR the amendments presented in this rulemaking, including to:
     Prohibit the transport of lithium ion cells and batteries
as cargo on passenger aircraft;
     Require all lithium ion cells and batteries to be shipped
at not more than a 30 percent state of charge on cargo-only aircraft;
and
     Restrict small lithium cell and battery shipments to one
package per consignment or overpack.
    PHMSA's selected alternative is the ``full harmonization'' approach
since it aligns with ICAO actions and amendments to the ICAO Technical
Instructions described in this rulemaking. Full harmonization under
this rulemaking includes all three amendments above. In addition, this
alternative meets the FAA Reauthorization Act of 2018 mandate to
harmonize with the 2015-2016 ICAO Technical Instructions for air
transportation of lithium cells and batteries and adopt any further
revisions adopted prior to the effective date of the FAA
Reauthorization Act of 2018 within 90 days of enactment (See Section
333). This alternative also meets the FAA Reauthorization Act of 2018
mandate to issue a limited exception for lithium cells and batteries
transported via aircraft for medically necessary care.
    Alternative 1: No Action Alternative:
    The No Action Alternative is the scenario in which PHMSA does not
adopt any of the provisions that comprise the IFR. This alternative
represents a baseline scenario in that it portrays the way the world
would look absent of PHMSA action. The current regulatory standards
would remain in effect. This alternative does not meet the FAA
Reauthorization Act of 2018 congressional mandate to harmonize with the
2015-2016 ICAO Technical Instructions for air transportation of lithium
cells and batteries, harmonize with any further revisions including
those effective on April 1, 2016, and to add a limited exception and
expedited review of special permit and approval applications for air
transportation of lithium cells and batteries for medical device.
    Alternative 2: Partial Harmonization Alternative:
    Under the Partial Harmonization Alternative, PHMSA would:
     Partially adopt the planned regulation. In particular,
this alternative would involve adoption of the prohibition provision
described in this rulemaking as well as the 30 percent state of charge
provision (see ``Section V. Summary of Changes'' for further detail on
these provisions). While there may be some combination of factors that
effectively mitigate the hazards posed by the transportation of lithium
ion batteries on passenger aircraft, the variable effects of battery
chemistry, cargo compartment characteristics including fire suppression
capabilities, and loading configuration clearly demonstrates that there
is no single factor that would preclude the possibility of a thermal
runaway event for all types of lithium ion batteries. Therefore, since
the information to date does not provide for a level of surety that the
risk can be fully mitigated, a prohibition on the transport of lithium
ion batteries as cargo on passenger aircraft is most suitable option.
With respect to the prohibition provision, PHMSA expects that the
prohibition on transporting lithium ion batteries on domestic passenger
aircraft would result in minimal cost impacts on shippers of lithium
ion batteries and air carriers. This is because most U.S. passenger air
carriers have already voluntarily stopped carrying this cargo on their
passenger aircraft.
     Adopt the 30 percent state of charge requirement. PHMSA
maintains that the technical basis for this provision is widely agreed-
upon; numerous laboratory tests support that thermal runaway is related
to the battery's state of charge.
     Not adopt the provision to restrict excepted battery
shipments to one package per consignment or overpack.
     As this alternative only partially addresses the
transportation of lithium cells and batteries adopted by ICAO prior to
the effective date of the FAA Reauthorization Act of 2018, this
alternative would not meet congressional mandate in its entirety.
3. Environmental Impacts
    Preferred Alternative:
    In selecting the provisions as described in this IFR, PHMSA
concluded that human safety and environmental risks would be reduced
and an increase in protections to human health and environmental
resources. As discussed in detail in ``Section III. Need for the
Rule,'' FAA research has shown that air transportation of lithium ion
batteries poses a human safety risk. This IFR includes the specific
measures to reduce environmental and human safety risks to air cargo
operators and the public. Specifically, the consignment and overpack
restriction will lower the risk of inadvertent bulk loading batteries
in a cargo compartment of a cargo-only aircraft without full hazard
communication, and the state of charge provision will decrease both the
likelihood and consequence of an incident involving lithium ion
batteries. Additionally, the prohibition of lithium ion batteries as
cargo on passenger aircraft will generate human safety benefits to air
operators and public by eliminating the possibility of (1) an incident
induced by lithium ion batteries and (2) a fire exacerbated by the
presence of lithium ion batteries involving the cargo hold of a
passenger aircraft.
    Potential environmental impacts of each amendment in the IFR are
discussed below:
    (1) Prohibit the transport of lithium ion cells and batteries as
cargo on passenger aircraft.
    Prohibiting lithium ion batteries as cargo on passenger aircraft
will generate human safety benefits to air operators and the public by
virtually eliminating the possibility of (1) an incident induced by
lithium ion batteries shipped as cargo in a passenger aircraft and (2)
a fire exacerbated by the presence of lithium ion batteries involving
the cargo compartment of a passenger aircraft.
    Incident-related contaminated debris entering the air, water
(possible when aircraft make transoceanic flights or a
[[Page 8025]]
cargo's manifest involves a segment of transportation aboard an ocean
vessel), and soil media would be avoided or mitigated and thus benefit
the natural environment under this provision. Additionally, fewer and
mitigated incidents involving lithium batteries will result in less
contaminated debris to be landfilled. PHMSA expects that the
prohibition on transporting lithium ion batteries on domestic passenger
aircraft will have an incremental benefit to human safety and the
environment over the current state since most U.S. passenger air
carriers have already voluntarily stopped carrying this cargo on their
passenger aircraft.
    PHMSA acknowledges that the medical device exception poses an
increase in safety risk and environmental risk due to the dangers posed
by lithium ion cells and batteries. The FAA Reauthorization Act of 2018
requires the implementation of a medical device exception but did not
fully specify how the exception applies. By providing this exception,
PHMSA has considered the needs of individuals who require the
replacement of lithium ion cells or batteries for medically necessary
purposes as required by the FAA Reauthorization Act of 2018.
    PHMSA further concludes that this amendment, which will increase
standardization and consistency of regulations, will result in greater
protection of human health and the environment. Consistency between
U.S. and international transportation requirements enhances the safety
and environmental protection of international hazardous materials
transportation through:
     Better understanding of the regulations;
     An increased level of industry awareness and hence,
compliance;
     The smooth flow of hazardous materials from their points
of origin to their points of destination; and
     Consistent emergency response in the event of a hazardous
materials incident.
    Protections for human safety and environmental protection will also
be enhanced through more targeted and effective training. This
amendment will eliminate inconsistent hazardous materials regulations,
which hamper compliance training efforts. For ease of compliance with
appropriate regulations, air carriers engaged in the transportation of
hazardous materials generally elect to comply with the ICAO Technical
Instructions, as appropriate. By maintaining consistency between these
international regulations and the HMR, shippers and carriers are able
to train their hazmat employees in a single set of requirements for
classification, packaging, hazard communication, handling, stowage,
etc., thereby minimizing the possibility of improperly preparing and
transporting a consignment of hazardous materials because of
differences between domestic and international regulations. Greenhouse
gas emissions would remain the same under this amendment.
    (2) Require all lithium ion cells and batteries to be shipped at
not more than a 30 percent state of charge on cargo-only aircraft.
    Requiring all lithium ion cells and batteries on cargo-only
aircraft to be shipped at not more than a 30 percent state of charge
will provide safety benefits to air cargo operators and the public by
reducing the available energy and limiting the propagation of heat and
fire in the event of thermal runaway in lithium ion cells and
batteries. The FAA Technical Center report, Summary of FAA Studies
Related to the Hazards Produced by Lithium Cells in Thermal Runaway in
Aircraft Cargo Compartments, FAA Report DOT/FAA/TC-16/37, June 2016,
found that ``the volume of gases emitted by lithium ion cells in
thermal runaway is dependent on the state of charge of the cell. Higher
states of charge yield greater volumes of flammable gases. Reducing the
state of charge of lithium ion 18650 LiCoO2 cells to thirty percent or
less resulted in a less energetic thermal runaway event and greatly
reduced the likelihood of thermal propagation from cell to cell.'' As
such, the state of charge requirement in this rulemaking will serve to
mitigate the likelihood of thermal propagation for lithium ion cells
stored in cargo holds of cargo-only aircraft, particularly for lithium
ion 18650 LiCoO2 cells, by preventing propagation of thermal runaway.
    In addition to human safety benefits, incident-related contaminated
debris entering the air, water (possible when aircraft make
transoceanic flights or a cargo's manifest involves a segment of
transportation aboard an ocean vessel), and soil media would be avoided
or mitigated and thus benefit the natural environment under this
provision. Additionally, fewer and mitigated incidents involving
lithium batteries will result in less contaminated debris to be
landfilled.
    PHMSA acknowledges that the medical device exception poses an
increase in safety risk and environmental risk due to the dangers posed
by lithium ion cells and batteries. The FAA Reauthorization Act of 2018
requires the implementation of a medical device exception but did not
fully specify how the exception applies. By providing this exception,
PHMSA has considered the needs of individuals who require the
replacement of lithium ion cells or batteries for medically necessary
purposes as required by the FAA Reauthorization Act of 2018.
    PHMSA further concludes that the amendment, which will increase
standardization and consistency of regulations, will also result in
greater protection of human health and the environment. Consistency
between U.S. and international transportation requirements enhances the
safety and environmental protection of international hazardous
materials transportation through:
     Better understanding of the regulations;
     An increased level of industry awareness and hence,
compliance;
     The smooth flow of hazardous materials from their points
of origin to their points of destination; and
     Consistent emergency response in the event of a hazardous
materials incident.
    Enhanced environmental protection will also be achieved through
more targeted and effective training. This amendment will eliminate
inconsistent hazardous materials regulations, which hamper compliance
training efforts. For ease of compliance with appropriate regulations,
air carriers engaged in the transportation of hazardous materials
generally elect to comply with the ICAO Technical Instructions, as
appropriate. By maintaining consistency between these international
regulations and the HMR, shippers and carriers are able to train their
hazmat employees in a single set of requirements for classification,
packaging, hazard communication, handling, stowage, etc., thereby
minimizing the possibility of improperly preparing and transporting a
consignment of hazardous materials because of differences between
domestic and international regulations. Greenhouse gas emissions would
remain the same under this amendment.
    (3) Restrict the number of packages that may be offered under
current provisions for small cells and batteries to one package per
consignment or overpack.
    Restricting each consignment and overpack to one package will
provide human safety benefits to air cargo operators and the public by
addressing the fire hazards associated with shipping large quantities
of small lithium cells and batteries, which were previously being
consolidated in overpack pallets, in single unit load devices and in
single aircraft cargo compartments. Under this provision, air cargo
operators will be able to more
[[Page 8026]]
accurately control the number of batteries loaded on an aircraft and
thus prevent fires that could result in injuries and loss of life. The
number of consignments and paperwork for air operators and offerors
will increase with only one package allowed per consignment. However,
the additional amount of administrative work is expected to be small
and would be offset by the much greater savings in avoided and
mitigated incidents.
    In addition to human safety benefits, incident-related contaminated
debris entering the air, water (possible when aircraft make
transoceanic flights or a cargo's manifest involves a segment of
transportation aboard an ocean vessel), and soil media would be avoided
or mitigated and thus benefit the natural environment under this
provision. Additionally, fewer and mitigated incidents involving
lithium batteries will result in less contaminated debris to be
landfilled.
    PHMSA further concludes that the amendment, which will increase
standardization and consistency of regulations, will also result in
greater protection of human health and the environment. Consistency
between U.S. and international transportation requirements enhances the
safety and environmental protection of international hazardous
materials transportation through:
     Better understanding of the regulations;
     An increased level of industry awareness and hence,
compliance;
     The smooth flow of hazardous materials from their points
of origin to their points of destination; and
     Consistent emergency response in the event of a hazardous
materials incident.
    Enhanced environmental protection will also be achieved through
more targeted and effective training. This amendment will eliminate
inconsistent hazardous materials regulations, which hamper compliance
training efforts. For ease of compliance with appropriate regulations,
air carriers engaged in the transportation of hazardous materials
generally elect to comply with the ICAO Technical Instructions, as
appropriate. By maintaining consistency between these international
regulations and the HMR, shippers and carriers are able to train their
hazmat employees in a single set of requirements for classification,
packaging, hazard communication, handling, stowage, etc., thereby
minimizing the possibility of improperly preparing and transporting a
consignment of hazardous materials because of differences between
domestic and international regulations. Greenhouse gas emissions would
remain the same under this amendment.
    Alternative 1: No Action Alternative:
    Under the No Action Alternative, current regulations would remain
in place, and PHMSA would not add new provisions to the HMR. Not
adopting the environmental and safety requirements in the IFR under the
No Action Alternative would result in a lost opportunity for reducing
the number of and mitigating the damage from environmental and safety-
related incidents.
    Additionally, efficiencies gained through harmonization in updates
to transport standards would not be realized. Foregone efficiencies in
the No Action Alternative include freeing up limited resources to
concentrate on air transport hazard communication issues of potentially
much greater environmental impact. Greenhouse gas emissions would
remain the same under the No Action Alternative.
    Alternative 2: Partial Harmonization Alternative:
    Under the Partial Harmonization Alternative, PHMSA would adopt the
passenger aircraft prohibition provision, as well as the 30 percent
state of charge provision into the HMR. The Partial Harmonization
Alternative does not, however, include the consignment and overpack
provision. Improvements in human safety and reduction in potential for
environmental impacts from an incident under this alternative would
therefore lie somewhere between the No Action Alternative and those in
the IFR. Referring to the regulation portion of the probable
environmental impacts section above, the same increases in human safety
and reduction in potential for environment impacts from an incident
would occur for human safety and the environment as those discussed
under provisions (1) and (2). Similarly, as discussed under provisions
(1) and (2), PHMSA acknowledges that there are some safety and
environmental risks to allowing the transportation of lithium cells and
batteries for the purposes of medically necessary care, with the
approval of the Associate Administrator, on passenger aircraft and at a
state of charge greater than 30 percent, but that those risks are
outweighed by the benefits to those individuals needing the replacement
lithium cells and batteries for their medical devices. Those human
safety and environmental benefits discussed under provision (3) would
not be expected to occur.
    The main difference between the Partial Harmonization Alternative
and the regulation's environmental benefits is that the regulation will
allow for better control of fires and consequent deaths, injuries, and
environmental contamination through smaller, more controlled
consignments, whereas the Partial Harmonization Alternative will not
offer these protections.
4. Agencies Consulted
    PHMSA has coordinated with the FAA in the development of this
rulemaking.
5. Finding of No Significant Impact
    The requirements in this IFR reduce the likelihood of lithium
batteries causing or contributing to accidents on a cargo-only aircraft
and virtually eliminate the likelihood on passenger aircraft. This
rulemaking would reduce the possibility of an incident on passenger
aircraft by prohibiting the transportation of lithium ion batteries as
cargo on passenger flights. Secondly, reducing the charge of lithium
ion batteries has been shown to reduce the likelihood of thermal
runaway, thereby reducing the likelihood of a lithium battery fire on
aircraft. Finally, the restriction of a consignment or overpack to one
package is intended to ensure that consignments that currently meet the
letter of, but not the spirit of, the alternative hazard communication
provisions are shipped and labeled as Class 9 hazardous material.
    In response to the hazard posed by the transport of lithium ion
batteries by air, and recent developments in the international
community, these amendments are intended to promote environmental
protection, safety, international harmonization, and clarity. These
regulatory revisions will offer more efficient and effective ways of
achieving PHMSA's goal of safe and secure transportation, protecting
both people and the environment from hazardous materials in commerce.
    The IFR provides more protection to human health and the
environment than the ``No Action'' and ``Partial Harmonization''
Alternatives discussed above. The IFR thus comprises the most
environmentally preferable alternative. The provisions of this IFR
build on current regulatory requirements to enhance the transportation
safety and security of consignments of hazardous materials transported
by aircraft, thereby reducing the risks of an accidental or intentional
release of hazardous materials and consequent environmental damage.
PHMSA therefore believes that the net environmental impact will be
slightly positive. PHMSA finds that there are no significant
environmental impacts associated with this IFR.
[[Page 8027]]
K. Privacy Act
    Anyone may search the electronic form of written communications and
comments received into any of our dockets by the name of the individual
submitting the document (or signing the document, if submitted on
behalf of an association, business, labor union, etc.). The DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
L. Executive Order 13609 and International Trade Analysis
    Under Executive Order 13609, agencies must consider whether the
impacts associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed the effects of the IFR to ensure that it does not cause
unnecessary obstacles to foreign trade. In this case, the IFR will
fully harmonize U.S. lithium battery provisions with the ICAO
international standards. Further, the DOT engaged the public by
highlighting the provisions of this IFR in a domestic public meeting
prior to their adoption. DOT also requested comments from stakeholders
on the effect of these provisions. Accordingly, this rulemaking is
consistent with Executive Order 13609 and PHMSA's obligations under the
Trade Agreement Act, as amended.
List of Subjects
49 CFR Part 172
    Education, Hazardous materials transportation, Hazardous waste,
Incorporation by reference, Labeling, Markings, Packaging and
containers, Reporting and recordkeeping requirements.
49 CFR Part 173
    Hazardous materials transportation, Incorporation by reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements, Uranium.
    In consideration of the foregoing, PHMSA amends 49 CFR chapter I as
follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY PLANS
0
1. The authority citation for part 172 continues to read as follows:
    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.
0
2. In Sec.  172.101, the Hazardous Materials Table is amended by
revising the entry for ``Lithium ion batteries including lithium ion
polymer batteries'' to read as follows:
Sec.  172.101  Purpose and use of the hazardous materials table.
* * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       (8)                                (9)                       (10)
                   Hazardous                                                                         -------------------------------------------------------------------------------------------
                   materials       Hazard                                                Special          Packaging  (Sec.   173.* * *)       Quantity limitations  (see       Vessel stowage
   Symbols     descriptions and   class or    Identification       PG       Label      provisions    --------------------------------------     Sec.  Sec.   173.27 and    ---------------------
                proper shipping                    No.                      codes   (Sec.   172.102)                                       -------------175.75)------------
                     names        division                                                               Exceptions     Non-bulk    Bulk       Passenger    Cargo aircraft   Location     Other
                                                                                                                                            aircraft/ rail       only
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1)           (2)...............       (3)  (4)..............  (5)......       (6)  (7).............  (8A)...........  (8B).....  (8C)....  (9A)..........  (9B)..........  (10A).....  (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                          * * * * * * *
              Lithium ion                9  UN3480...........  .........         9  422, A54, A100..  185............  185......  185.....  Forbidden.....  35 kg.........  A.........  ........
               batteries
               including lithium
               ion polymer
               batteries.

                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec.  172.102, in paragraph (c)(2), revise special provision A51
and add special provision A100 in appropriate alphanumerical order to
read as follows:
Sec.  172.102  Special Provisions.
* * * * *
    (c) * * *
    (2) * * *
    A51 For aircraft batteries, irrespective of the quantity
limitations specified in Column (9A) of the Sec.  172.101 Table or
Sec.  175.75(c), wet cell batteries, UN2794 or UN2795, up to a limit of
100 kg net mass per package may be transported aboard passenger
aircraft. Transport in accordance with this special provision must be
noted on the shipping paper.
* * * * *
    A100 Lithium ion cells and batteries must be offered for transport
at a state of charge not exceeding 30 percent of their rated capacity.
Lithium ion cells and batteries at a state of charge greater than 30
percent of their rated capacity
[[Page 8028]]
may only be transported under conditions approved by the Associate
Administrator in accordance with the requirements in 49 CFR part 107,
subpart H. Guidance and methodology for determining the rated capacity
can be found in sub-section 38.3.2.3 of the UN Manual of Tests and
Criteria (IBR, see Sec.  171.7 of this subchapter).
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
4. The authority citation for part 173 continues to read as follows:
    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.
0
5. In Sec.  173.185:
0
a. Revise the introductory text and paragraphs (c)(1)(iii) and
(c)(4)(ii) through (vi);
0
b. Add paragraphs (c)(4)(vii) and (c)(5);
0
c. Redesignate paragraph (g) as paragraph (h); and
0
d. Add new paragraph (g).
    The revisions and additions read as follows:
Sec.  173.185  Lithium cells and batteries.
    As used in this section, consignment means one or more packages of
hazardous materials accepted by an operator from one shipper at one
time and at one address, receipted for in one lot and moving to one
consignee at one destination address. Equipment means the device or
apparatus for which the lithium cells or batteries will provide
electrical power for its operation. Lithium cell(s) or battery(ies)
includes both lithium metal and lithium ion chemistries. Medical device
means an instrument, apparatus, implement, machine, contrivance,
implant, or in vitro reagent, including any component, part, or
accessory thereof, which is intended for use in the diagnosis of
disease or other conditions, or in the cure, mitigation, treatment, or
prevention of disease, of a person.
* * * * *
    (c) * * *
    (1) * * *
    (iii) Except when lithium cells or batteries are packed with or
contained in equipment in quantities not exceeding 5 kg net weight, the
outer package that contains lithium cells or batteries must be
appropriately marked: ``PRIMARY LITHIUM BATTERIES--FORBIDDEN FOR
TRANSPORT ABOARD PASSENGER AIRCRAFT'', ``LITHIUM METAL BATTERIES--
FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'', ``LITHIUM ION
BATTERIES--FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT'' or
labeled with a ``CARGO AIRCRAFT ONLY'' label specified in Sec.  172.448
of this subchapter.
* * * * *
    (4) * * *
    (ii) Not more than one package prepared in accordance with this
paragraph (c)(4) may be placed into an overpack. When a package
displays the ``CARGO AIRCRAFT ONLY'' label, the paragraph (c)(1)(iii)
mark, or the paragraph (c)(3)(i) lithium battery mark and is placed in
an overpack, the appropriate label or mark must either be clearly
visible through the overpack, or the label or mark must also be affixed
on the outside of the overpack, and the overpack must be marked with
the word ``OVERPACK''.
    (iii) A shipper is not permitted to offer for transport more than
one package prepared in accordance with the provisions of this
paragraph in any single consignment.
    (iv) Each shipment with packages required to display the paragraph
(c)(3)(i) lithium battery mark must include an indication on the air
waybill of compliance with this paragraph (c)(4) (or the applicable
ICAO Technical Instructions Packing Instruction), when an air waybill
is used.
    (v) Packages and overpacks of lithium batteries prepared in
accordance with this paragraph (c)(4) must be offered to the operator
separately from cargo which is not subject to the requirements of this
subchapter and must not be loaded into a unit load device before being
offered to the operator.
    (vi) For lithium batteries packed with, or contained in, equipment,
the number of batteries in each package is limited to the minimum
number required to power the piece of equipment, plus two spares, and
the total net quantity (mass) of the lithium cells or batteries in the
completed package must not exceed 5 kg.
    (vii) Each person who prepares a package for transport containing
lithium cells or batteries, including cells or batteries packed with,
or contained in, equipment in accordance with the conditions and
limitations of this paragraph (c)(4), must receive instruction on these
conditions and limitations, corresponding to their functions.
    (5) For transportation by aircraft, a package that exceeds the
number or quantity (mass) limits in the table shown in paragraph
(c)(4)(i) of this section, the overpack limit described in paragraph
(c)(4)(ii) of this section, or the consignment limit described in
paragraph (c)(4)(iii) of this section is subject to all applicable
requirements of this subchapter, except that a package containing no
more than 2.5 kg lithium metal cells or batteries or 10 kg lithium ion
cells or batteries is not subject to the UN performance packaging
requirements in paragraph (b)(3)(ii) of this section when the package
displays both the lithium battery mark in paragraph (c)(3)(i) and the
Class 9 label. This paragraph does not apply to batteries or cells
packed with or contained in equipment.
* * * * *
    (g) Limited exceptions to restrictions on air transportation of
medical device batteries. Irrespective of the quantity limitations
described in column 9A of the Sec.  172.101 Hazardous Materials Table
of this subchapter, up to two replacement lithium cells or batteries
specifically used for a medical device as defined in this section may
be transported as cargo on a passenger aircraft. Packages containing
these cells or batteries are not subject to the marking requirement in
paragraph (c)(1)(iii) of this section or the ``CARGO AIRCRAFT ONLY''
label required by Sec.  172.402(c) of this subchapter and may be
transported as cargo on a passenger aircraft when approved by the
Associate Administrator and provided the following conditions are met:
    (1) The intended destination of the cells or batteries is not
serviced daily by cargo aircraft if a cell or battery is required for
medically necessary care; and
    (2) Lithium ion cells or batteries for medical devices are excepted
from the state of charge limitations in Sec.  172.102, special
provision A100, of this subchapter, provided each cell or battery is:
    (i) Individually packed in an inner packaging that completely
encloses the cell or battery;
    (ii) Placed in a rigid outer packaging; and
    (iii) Protected to prevent short circuits.
* * * * *
    Issued in Washington, DC on February 27, 2019, under authority
delegated in 49 CFR part 1.97.
Howard R. Elliott,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2019-03812 Filed 3-5-19; 8:45 am]
BILLING CODE 4910-60-P