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Safety Recommendation Details

Safety Recommendation A-07-109
Details
Synopsis: On February 7, 2006, about 2359 eastern standard time, United Parcel Service Company (UPS) flight 1307, a McDonnell Douglas DC-8-71F, N748UP, landed at its destination airport, Philadelphia International Airport (PHL), Philadelphia, Pennsylvania, after a cargo smoke indication in the cockpit. The captain, first officer, and flight engineer evacuated the airplane after landing. The flight crewmembers sustained minor injuries, and the airplane and most of the cargo were destroyed by fire after landing. The scheduled cargo flight was operating under the provisions of 14 Code of Federal Regulations (CFR) Part 121 on an instrument flight rules flight plan. Night visual conditions prevailed at the time of the accident.
Recommendation: TO THE PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION: Eliminate regulatory exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries (no more than 8 grams equivalent lithium content) until the analysis of the failures and the implementation of risk-based requirements asked for in Safety Recommendation A-07-108 are completed.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Acceptable Alternate Action
Mode: Aviation
Location: Philadelphia, PA, United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DCA06MA022
Accident Reports: In-Flight Cargo Fire, United Parcel Service Company Flight 1307, McDonnell Douglas DC-8-71F, N748UP
Report #: AAR-07-07
Accident Date: 2/7/2006
Issue Date: 12/17/2007
Date Closed: 11/12/2014
Addressee(s) and Addressee Status: PHMSA (Closed - Acceptable Alternate Action)
Keyword(s): Cargo, Hazmat

Safety Recommendation History
From: NTSB
To: PHMSA
Date: 11/12/2014
Response: We note that, on August 6, 2014, PHMSA published final rule Hazardous Materials-224F, revising the Hazardous Materials Regulations requirements for the transportation of lithium cells and batteries by air to make the requirements consistent with those of the 2013-2014 International Civil Aviation Organization Technical Instructions. Your actions constitute an acceptable alternate solution to the safety concern we identified; accordingly, Safety Recommendations A-07-108 and -109 are classified CLOSED—ACCEPTABLE ALTERNATE ACTION.

From: PHMSA
To: NTSB
Date: 8/27/2014
Response: -From Timothy Butters, Deputy Administrator: In its December 26, 2012 letter to PHMSA, the NTSB indicated that the 2013-2014 International Civil Aviation Organization Technical Instructions (ICAO TI) on the Transport of Dangerous by Air provisions for lithium battery transport by air are responsive to recommendations A-07-108 and A-07-109 and PHMSA would satisfy the recommendations if it were to incorporate the ICAO TI provisions for lithium battery transport into the HMR. This was reiterated in its September 6, 2013 letter to PHMSA, in which the NTSB specifically states that it believes that a mandate for compliance with the 2013-2014 ICAO TI provisions for lithium battery transport is needed for PHMSA’s actions to constitute an acceptable alternate solution to the problem. Accordingly, on August 6, 2014, PHMSA published a final rule (HM-224F; 79 FR 46011) revising the HMR requirements applicable to the transportation of lithium cells and batteries by air to make them consistent with the ICAO TI. The rulemaking is available at our website at www.phmsa.dot.gov/hazmat or at www.federalregister.gov. PHMSA will continue to monitor incidents and analyze the causes of thermal failures and fires involving lithium metal and lithium ion batteries for possible future safety improvements, bearing in mind the statutory limitation to not be more stringent than the ICAO TI, except under certain conditions. PHMSA appreciates the NTSB’s continued efforts to improve safety in transporting lithium batteries by air.

From: NTSB
To: PHMSA
Date: 9/6/2013
Response: We are encouraged to learn that, effective January 1, 2013, the HMR reference the 2013 2014 ICAO technical instructions (TI), which allow shippers and carriers to use the 2013 2014 ICAO TI; however, the regulations do not mandate compliance. Although the revised regulations constitute a noteworthy improvement, we believe that a mandate for compliance with the 2013 2014 ICAO TI provisions for lithium battery transport is needed for PHMSA’s actions to constitute an acceptable alternate solution to the problem. Accordingly, pending our receipt and review of the revised HMR, including plans to mandate compliance as described above, Safety Recommendations A 07-108 and -109 remain classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

From: PHMSA
To: NTSB
Date: 6/25/2013
Response: -From Cynthia Quarterman, Administrator: In the December 26, 2012 letter, the NTSB indicated awareness that the 2013-2014 International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (“ICAO TI”) includes provisions for lithium battery transport that are responsive to these recommendations, and that incorporation into the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) would satisfy the recommendations. Relative to this position, PHMSA recently published two rulemakings in the Federal Register on January 7, 2013. PHMSA published a final rule (78 FR 988) incorporating by reference the 2013–2014 ICAO TI into the HMR. Effective January 1, 2013, transport of lithium batteries in accordance with the 2013–2014 ICAO TI is authorized subject to limitations outlined in Part 171, Subpart C of the HMR (see 49 CFR 171.24(d)(1)(ii) and 171.24(d)(1)(iii)). Incorporation by reference of the 2013–2014 Edition of the ICAO TI provides shippers and carriers with the ability to use the 2013-2014 ICAO TI for transportation within the United States by aircraft and by motor vehicle or rail either before or after being transported by aircraft. PHMSA also published a notice of proposed rulemaking (78 FR 1119) seeking public comment on the impact of the changes made to provisions for lithium battery transport in the 2013–2014 ICAO TI. PHMSA issued this notice in consideration of the long-term impacts on domestic transportation of authorizing shippers and carriers to choose between compliance with the existing language for lithium battery transport in the HMR and compliance with the ICAO TI under the aforementioned final rule. Specifically, PHMSA sought comment on whether to make mandatory compliance with the 2013–2014 ICAO TI provisions for lithium battery transport for both domestic and international transport. Taking commenter feedback into consideration, PHMSA may issue a final rule to revise the HMR to incorporate the lithium battery provisions specified in the 2013–2014 ICAO TI into the HMR (i.e., incorporate regulatory text versus authorizing use of an international standard that contains that regulatory text). Although the 2013-2014 ICAO TI provisions for lithium battery transport are not incorporated verbatim into the HMR, the regulatory amendment to incorporate by reference will allow shippers and carriers to opt for the method of compliance appropriate to each specific shipment. Knowing that some domestic air carriers and all international air carriers comply with the ICAO TI (subject, of course, to limitations placed by the HMR for transport in the United States) for the transportation of hazardous material including lithium battery transport, we believe incorporation by reference of the 2013-2014 ICAO TI still satisfies Safety Recommendations A-07-108 and A-07-109.

From: NTSB
To: PHMSA
Date: 3/8/2013
Response: Notation 8477 (Dated 3/8/2013): The National Transportation Safety Board (NTSB) has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) notice of proposed rulemaking (NPRM), “Hazardous Materials: Transportation of Lithium Batteries.” The notice requested additional comments about the impact of changes to the requirements for the air transport of lithium batteries that have been adopted into the 2013–2014 International Civil Aviation Organization Technical Instructions on the Transport of Dangerous Goods by Air (ICAO Technical Instructions) and subsequently incorporated by reference in the Hazardous Materials Regulations (HMR). The NTSB notes that PHMSA is considering the long-term impacts of permitting shippers and carriers to choose between compliance with the existing HMR or compliance with the ICAO Technical Instructions, when transporting lithium batteries domestically by air. The NTSB further notes that PHMSA is seeking comment on whether to require mandatory compliance with the ICAO Technical Instructions for all shipments of lithium batteries by air, both foreign and domestic. The NTSB believes that allowing domestic cargo shippers and carriers to choose between alternative standards for transporting lithium batteries would place carriers at greater risk when transporting such cargo in accordance with US regulations that currently provide less protection than the ICAO Technical Instructions. On April 14, 2010, the NTSB provided comments on the January 11, 2010, NPRM. The 2010 NPRM proposed new requirements to address NTSB Safety Recommendations A-07-104, A-07-105, and A-07-107 through -109 that were issued as a result of the NTSB investigation of the February 7, 2006, in-flight cargo fire on a United Parcel Service Company (UPS) cargo airplane at Philadelphia International Airport in Philadelphia, Pennsylvania. The 2010 NPRM acknowledged that under the HMR, materials that pose a specific and serious air transportation risk are regulated more stringently than materials that pose less of a risk when transported by air, with lithium batteries being the current exception to this standard. Included in the proposals at that time was the elimination of regulatory exemptions for packages of small lithium batteries. The NTSB stated that cargo shipments of small lithium batteries should be subject to the same packaging and identification requirements that apply to medium and large lithium batteries to increase the awareness of the risks associated with these batteries and to alert package handlers to exercise greater care when loading and unloading packages containing them. In its 2010 comments, the NTSB fully supported the proposal to eliminate exceptions for small lithium batteries, believing that implementation would have satisfied the intent of the following safety recommendation to PHMSA: Eliminate regulatory exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries (no more than 8 grams equivalent lithium content) until the analysis of the failures and the implementation of risk-based requirements asked for in Safety Recommendation A-07-108 are completed. (A-07-109) The NTSB recognizes that PHMSA was barred from implementing its original proposal to eliminate small lithium battery air cargo transport exceptions because of provisions in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 that prohibit PHMSA from imposing requirements that are more stringent than the ICAO Technical Instructions. Since commenting on the 2010 NPRM, the NTSB has been involved in the investigation of two additional catastrophic in-flight cargo fires on aircraft that were transporting large quantities of lithium batteries. On September 3, 2010, a Boeing 747-400F, operated by UPS, crash landed at a military base in Dubai, United Arab Emirates, while the crew was trying to return to the airport for an emergency landing due to a fire in the main deck cargo compartment. Both crewmembers died as a result of injuries sustained during the crash, and the aircraft was a total loss. On July 28, 2011, a Boeing 747-400F, operated by Asiana Cargo, crashed about 70 miles west of Jeju Island, Republic of Korea, after the flight crew declared an emergency due to a cargo fire and attempted to divert to Jeju International Airport. Again, both crewmembers died as result of injuries sustained during the crash, and the aircraft was a total loss. Based on these ongoing accident investigations, the NTSB remains concerned about the risks to aircraft flight crews from in-flight fires involving lithium batteries. These investigations also prompted the NTSB to issue Safety Recommendations A-12-68 through -70 on November 28, 2012, to the FAA. These recommendations were issued to improve the early detection of fires originating in cargo containers and pallets, to develop materials standards for cargo containers that provide better fire resistance, and to require active fire-suppression systems in all cargo compartments or containers. Meanwhile, the current HMR for domestic air cargo transport continue to allow many small lithium batteries to be transported as general cargo without the safety precautions that are provided for other common hazardous materials. Under current regulations, certain shipments of small batteries are exempt from hazardous materials packaging and identification requirements. These exemptions potentially permit large quantities of unidentified small lithium battery shipments on board both cargo and passenger aircraft, while the revised ICAO Technical Instructions substantially reduce the sizes of small lithium batteries that are subject to regulation. Lithium battery shipments in aircraft are increasing in number, and batteries are increasing in energy density. Recent incidents and research continue to show that lithium battery failures (regardless of the source or cause) can release flammable electrolyte or result in violent, high temperature reactions that can ignite combustible or flammable material nearby or further fuel an existing fire. The PHMSA final rule incorporated the ICAO Technical Instructions by reference, thus permitting, but not mandating, domestic lithium battery shipments to be transported by air in accordance with the international standards (except where the HMR prohibit primary lithium batteries and unapproved prototype lithium batteries and cells aboard passenger carrying aircraft). The ICAO Technical Instructions increased restrictions for shipment of lithium batteries by significantly decreasing the excepted quantity permitted in international cargo shipments. If the HMR are harmonized with the ICAO Technical Instructions, a significantly larger number of fully regulated domestic air cargo shipments of lithium batteries would be subject to the greater level of safety provided by specification packaging requirements and United Nations safety testing, labeling, and hazard communication standards. Complying with such increased safety requirements and standards would reduce the risks associated with transporting these materials. The NPRM Question 1 asks if any unintended consequences are anticipated if PHMSA authorizes the use of the ICAO Technical Instructions as an optional method of compliance with the HMR and does not issue a final rule revising the HMR to require domestic shipments of lithium batteries to comply with the provisions specified in the ICAO Technical Instructions. The NTSB strongly believes that unintended negative consequences would result if shippers and carriers were permitted to choose compliance with alternative standards for domestic cargo shipments as suggested in the NPRM. Such action would undermine the safety benefit offered by the improved ICAO Technical Instructions. Domestic carriers who choose not to apply the ICAO Technical Instructions would be placed at higher risk of cargo fires than their foreign competitors because of the current disparity between requirements in the HMR and the ICAO Technical Instructions. Failure to require domestic shipments of lithium batteries to comply with regulations equivalent to the international provisions would also place the United States in an inexplicable position of having weaker safety standards at a time when it should be leading the way in response to serious safety concerns about transporting these materials. The NPRM would be improved if the excepted amounts authorized by the HMR are at least consistent with the provisions in the ICAO Technical Instructions. The proposal should require that all lithium batteries, consistent with current ICAO packaging criteria, such as battery power, size, and quantity limitations in air transportation, be regulated as class 9 materials and subjected to the requirements of Title 49 Code of Federal Regulations 173.185, including packaging standards and hazard communication requirements. Adoption of this proposal would reduce the risk of lithium battery fires during shipment. The proposal also should require personnel involved in packaging and shipping lithium batteries to be properly trained in their respective hazardous materials handling functions. The proposal should further ensure that these packages are clearly labeled, providing a visible indication of the presence of hazardous materials for flight crews, cargo handlers, and emergency responders. Finally, the proposal should ensure that all lithium battery shipments are listed on the Notice to Pilot in Command or hazardous materials cargo manifest to inform flight crews about the quantity, location, and type of lithium batteries on board an aircraft. The NTSB appreciates the opportunity to comment on the notice.

From: NTSB
To: PHMSA
Date: 12/26/2012
Response: PHMSA indicated that it is currently evaluating the 2013–2014 ICAO technical instructions to determine whether the instructions address either of these recommendations. The NTSB is aware that the 2013–2014 ICAO technical instructions would include (1) a restriction on exemptions from full regulation under Class 9 for small quantities and small packages, (2) new language in the packing instructions to bring some small shipments of Li metal and Li ion cells and batteries under Class 9, but also to provide some relief from full Class 9 requirements that apply to bulk shipments, and (3) a net-weight limit per package for batteries packed with, or contained in, equipment. We believe that these revisions are responsive to these recommendations and, if included in the HMRs, would constitute an acceptable alternate solution to the problem. Accordingly, pending our receipt and review of the revised HMRs, Safety Recommendations A 07-108 and -109 are classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

From: PHMSA
To: NTSB
Date: 6/6/2012
Response: -From Cynthia L. Quarterman, Administrator: This is in response to your June 15, 2011 letter regarding NTSB Safety Recommendations A-07-104 through -108. This letter provides an update on Pipeline and Hazardous Materials Safety Administration (PHMSA) actions relative to those recommendations (excluding A-07-106, that has been closed) as well as Safety Recommendation A-07-109. The National Transportation Safety Board (NTSB) issued the recommendations based on an investigation of a fire on a United Parcel Service cargo aircraft at Philadelphia International Airport, Philadelphia, Pennsylvania, and on concerns about the increasing number of incidents documented by the Federal Aviation Administration (FAA) involving overheating and fires initiated by rechargeable lithium ion batteries. As you may know, recent Congressional action limits PHMSA’s ability to address several of the referenced recommendations. On February 14, 2012, Congress enacted the FAA Modernization and Reform Act of 2012 (the FAA Act). The FAA Act specifically restricts PHMSA’s authority to issue any regulations that are more stringent than the requirements of the International Civil Aviation Organization’s Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions). The FAA Act, in part, says: The Secretary of Transportation, including a designee of the Secretary, may not issue or enforce any regulation or other requirement regarding the transportation by aircraft of lithium metal cells or batteries or lithium ion cells or batteries, whether transported separately or packed with or contained in equipment, if the requirement is more stringent than the requirements of the ICAO Technical Instructions. Pub. L. 112-95 section 828.The FAA Act does, under certain conditions, allow for more stringent PHMSA action only when PHMSA obtains a credible report that demonstrates that the presence of lithium cells or batteries, transported in accordance with the ICAO Technical Instructions, substantially contributed to the initiation or propagation of an onboard fire. PHMSA is currently evaluating the safety impacts of changes made to the ICAO Technical Instructions relative to these recommendations and will provide NTSB with an update after a determination is made based on the evaluation. The January 2010 proposed rule effectively eliminated the regulatory exceptions for packages of small lithium batteries when transported aboard aircraft. PHMSA chose this regulatory approach because a multi-layered safety system encompassing packaging, hazard communication and employee training has proven to be effective for ensuring the safe transport of larger lithium batteries as well as other hazardous material. Since publication of the proposal, the ICAO Dangerous Goods Panel has adopted more stringent rules with regard to the air transport of lithium batteries under the 2013-2014 ICAO Technical Instructions. These new rules would subject packages containing more than 8 small lithium cells or 2 small lithium batteries, which were previously excepted from most of the requirements of the ICAO Technical Instructions, to additional requirements. These requirements include package weight limits (10 kg for lithium ion cells and batteries and 2.5 kg for lithium metal cells and batteries) and hazard communication requirements including a notice to the pilot in command and a requirement for air carrier personnel to inspect such packages. PHMSA recently published a notice (70 FR 21714; April 11, 2012) seeking additional comment on the impact of these changes and others. PHMSA is considering whether to harmonize with these requirements and the notice will allow opportunity to supplement comments to our January 2010 proposed rule.

From: NTSB
To: PHMSA
Date: 4/14/2010
Response: Notation 7772F: The National Transportation Safety Board (NTSB) has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) notice of proposed rulemaking (NPRM), “Hazardous Materials: Transportation of Lithium Batteries,” that was published at 75 Federal Register 1302 on January 11, 2010. The NPRM requests comments on revisions to the requirements for the transportation of lithium batteries in the Hazardous Materials Regulations (HMRs). The primary purpose of the NPRM is to enhance the safe transportation of primary (non-rechargeable) and secondary (rechargeable) lithium batteries when transported as cargo in all modes, with an emphasis on aviation. The NTSB believes that PHMSA has proposed requirements that should improve the level of safety for transporting lithium battery cargoes, particularly on aircraft. However, the NTSB offers the following comments to strengthen and clarify the proposed rule. Overview The NPRM proposes new requirements that address Safety Recommendations A-07-104, A-07-105, and A-07-107 through -109 that were issued as a result of the NTSB’s 2006 investigation of an in-flight cargo fire on a cargo airplane at Philadelphia International Airport in Philadelphia, Pennsylvania. The NPRM specifically addresses these safety recommendations through proposed requirements concerning the stowage of lithium batteries, the reporting and analysis of lithium battery failures, and the elimination of regulatory exceptions for small lithium batteries. The NTSB has included detailed comments about each of these areas in subsequent sections of this letter. The NTSB notes that PHMSA also proposes other requirements, and those are addressed as well. The NPRM does not address Safety Recommendations A-08-1 and -2, which were issued separately from the Philadelphia accident report but also pertain to the transportation of lithium batteries. Safety Recommendations A-08-1 and -2 concern the implementation and evaluation of public awareness programs for air passengers and crews who carry portable electronic devices containing lithium batteries or pack spare lithium batteries in their baggage or carry-on items. The NTSB notes that PHMSA plans to address these two recommendations under a separate rulemaking. However, because of the proliferation of personal electronic devices carried by the traveling public, the NTSB urges PHMSA to expedite its rulemaking regarding these recommendations. Stowage of Lithium Batteries Cargo shipments of primary lithium batteries have been prohibited on passenger aircraft for more than 10 years, but they are still permitted on cargo-only aircraft. Cargo shipments of secondary lithium batteries are permitted on both passenger and cargo-only aircraft. The transportation of primary lithium batteries is potentially dangerous, particularly on board aircraft, because there is currently no known fire suppression system capable of extinguishing fires involving these types of batteries. Fires involving secondary lithium batteries are extinguishable by fire suppression systems approved by the Federal Aviation Administration (FAA). Although fire suppression systems are required in cargo compartments of passenger aircraft, they are not required in cargo-only aircraft. The investigation of the Philadelphia accident showed that flight crews on cargo-only aircraft remain at risk from in-flight fires involving primary lithium batteries and from fires involving secondary lithium batteries on aircraft not equipped with fire suppression systems. Consequently, the NTSB issued the following recommendations to PHMSA: Require aircraft operators to implement measures to reduce the risk of primary lithium batteries becoming involved in fires on cargo-only aircraft, such as transporting such batteries in fire resistant containers and/or in restricted quantities at any single location on the aircraft. (A-07-104) Until fire suppression systems are required on cargo-only aircraft, as asked for in Safety Recommendation A-07-99, require that cargo shipments of secondary lithium batteries, including those contained in or packed with equipment, be transported in crew-accessible locations where portable fire suppression systems can be used. (A-07-105) The NTSB believes that the NPRM fully addresses Safety Recommendation A-07-105 but only partially addresses Safety Recommendation A-07-104. The proposed rule would require that if either primary or secondary lithium batteries are transported in inaccessible cargo compartments or freight containers, the compartments or containers must be equipped with an FAA-approved fire suppression system, or that the packages of batteries must be transported in an FAA-approved fire-resistant container. Because current FAA-approved suppression systems are ineffective on fires involving primary lithium batteries, the NTSB believes that the NPRM would be improved if it explicitly required that shipments of primary lithium batteries be transported in FAA-approved fire-resistant containers. When the FAA approves a fire suppression system that is proven to be effective on fires involving primary lithium batteries, the NTSB would consider such a suppression system an acceptable alternative to an FAA-approved fire-resistant container. Because current FAA-approved fire suppression systems are effective on fires involving secondary lithium batteries, the NTSB supports the NPRM in that it would require that inaccessible shipments of secondary lithium batteries be transported in either cargo compartments or freight containers equipped with an FAA-approved fire suppression system or in FAA-approved fire-resistant containers. PHMSA states in the NPRM that it is considering whether a limit on the number of primary lithium battery packages transported in a single airplane or single container would further enhance safety. Although PHMSA acknowledges the cumulative effect and the potential risks of packaging thousands of small primary batteries in close proximity, it has not proposed any requirements to mitigate the risks. The NTSB believes that the NPRM would be improved if restrictions were imposed on the clustering of primary lithium battery shipments on cargo-only aircraft. Reporting and Analysis of Lithium Battery Failures In the Philadelphia accident report, the NTSB noted that the causes of secondary lithium battery failures are not well understood or documented. The NTSB suggested that this may be due, in part, to the fact that proper evaluation of failed lithium batteries is not always performed, and that, in many cases, these batteries are disposed of before the incident is reported, precluding an accurate analysis of the failures. As a result, the NTSB issued the following recommendations to PHMSA: Require commercial cargo and passenger operators to report to the Pipeline and Hazardous Materials Safety Administration all incidents involving primary and secondary lithium batteries, including those contained in or packed with equipment, that occur either on board or during loading or unloading operations and retain the failed items for evaluation purposes. (A-07-107) Analyze the causes of all thermal failures and fires involving secondary and primary lithium batteries and, based on this analysis, take appropriate action to mitigate any risks determined to be posed by transporting secondary and primary lithium batteries, including those contained in or packed with equipment, on board cargo and passenger aircraft as cargo; checked baggage; or carry-on items. (A-07-108) On July 31, 2008, PHMSA published an NPRM to revise requirements for the transportation of battery-powered devices and batteries and to harmonize the U.S. Department of Transportation HMRs with international standards. The NPRM included a proposal to require that all incidents involving lithium batteries and devices containing them be immediately reported. In a letter dated November 19, 2008, the NTSB suggested that the NPRM could be improved by also requiring that failed lithium batteries and associated equipment be retained in order to ensure proper analysis. The reporting requirement was included in the final rule published on January 14, 2009; however, the retention requirement was not. The NTSB is disappointed that the current NPRM also does not propose the retention requirement, but only requests comments about how retention of failed batteries and equipment might be achieved and a proper analysis conducted. The NPRM notes that available incident data suggest that the most likely causes of lithium battery incidents are • External short circuiting (an exposed battery terminal contacts a metal object). • In-use situation (improper charging or discharging conditions associated with the use of equipment, including inadvertent activation and overheating). • Noncompliance (faulty battery design, false certification, or improper packaging). • Internal short circuit (foreign matter within the cell or battery, or physical damage). However, PHMSA does not discuss the reliability of the data used to determine these causes, and the NTSB is concerned that such determinations are being made without retaining and analyzing failed batteries. In the absence of sound failure analyses, the establishment of the appropriate and effective transportation requirements is questionable, and without a regulatory requirement to retain failed batteries and a program to analyze the retained batteries and equipment, the NPRM fails to fully address Safety Recommendations A-07-107 and -108. The NTSB believes that the proposed rule would be significantly improved if retention and analysis of failed batteries and equipment were required. Elimination of Regulatory Exceptions for Small Lithium Batteries The NTSB’s investigation of the Philadelphia accident also dealt with regulatory exceptions for packages of small secondary lithium batteries, such as those used to power laptop computers, cameras, cell phones, and other personal electronic devices. Under these exceptions, based on battery power, size, and weight, certain shipments of small batteries are exempt from the hazardous materials packaging and identification requirements. The exceptions allowed batteries to be shipped undetected on both cargo and passenger aircraft. Because small secondary lithium batteries have been involved in at least nine documented aviation incidents and their failure modes are not fully understood, the NTSB expressed concern about the exceptions. The NTSB stated that cargo shipments of small lithium batteries should be subject to the same packaging and identification requirements that apply to medium and large lithium batteries in order to increase public and industry awareness of the risks associated with these batteries and to alert package handlers to exercise greater care when loading and unloading packages containing them. Consequently, the NTSB issued the following recommendation to PHMSA: Eliminate regulatory exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries (no more than 8 grams equivalent lithium content) until the analysis of the failures and the implementation of risk-based requirements asked for in Safety Recommendation A-07-108 are completed. (A-07-109) The NPRM proposes to eliminate the regulatory exceptions for lithium cells and batteries transported on board aircraft. The proposal would require that all lithium cells and batteries be regulated as class 9 materials in air transportation and subjected to the requirements found in Title 49 Code of Federal Regulations (CFR) 173.185, including the packaging standards and the hazard communication requirements. Adoption of this proposal would ensure that all lithium battery shipments are packaged appropriately and that packages are clearly labeled, providing a visible indication of the presence of hazardous material. The proposal also would ensure that all aviation shipments of lithium batteries are listed on the notice to the pilot in command. The NTSB fully supports the proposal to eliminate exceptions for small lithium batteries and believes that the proposal, if implemented, will satisfy the intent of Safety Recommendation A-07-109. Other Proposed Requirements The NPRM proposes new requirements that have not been the subject of NTSB safety recommendations. The new proposals are discussed below. The NPRM proposes to change all references to primary and secondary lithium batteries in the HMRs to “lithium metal batteries” and “lithium ion batteries,” respectively. Because the chemistry, functionality, and fire exposure behavior of lithium metal batteries and lithium-ion batteries are notably different, PHMSA identified a need to distinguish between them. As a result, the NPRM proposes creating separate shipping names and entries for lithium metal and lithium-ion batteries, reassigning existing United Nations (UN) identification numbers for lithium batteries to lithium metal batteries, and creating new UN identification numbers for lithium-ion batteries. These changes would facilitate the development and implementation of transportation requirements that are most appropriate for each battery type. The NPRM proposes to adopt a methodology for determining the relative hazard associated with lithium-ion batteries by using measurements of watt-hours instead of equivalent lithium content. The NTSB agrees with PHMSA’s assessment that “watt-hours” is a more commonly used unit of measurement that is easier to calculate and understand. The NPRM notes that most of the recent lithium battery incidents in the aviation industry have involved noncompliant shipments. PHMSA contends that noncompliance often results from confusion regarding regulatory requirements, which in turn results from a lack of proper training. The NPRM points out that while shippers of small lithium batteries are currently exempted from the training requirements found in 49 CFR Part 172, Subpart H, the proposal to eliminate regulatory exceptions for shipments of small lithium batteries would require that these shippers train employees who prepare such shipments. PHMSA believes that the training would ensure that employees are knowledgeable about applicable regulatory requirements and that shipments conform to the requirements, which would ultimately result in a reduction of lithium battery incidents. The NTSB supports these additional proposals. The NTSB appreciates the opportunity to comment on this proposed rule and PHMSA’s continuing efforts to improve the safety of lithium battery transportation. Should you require any additional information or clarification, please contact us.

From: NTSB
To: PHMSA
Date: 12/19/2008
Response: In its March 28, 2008, letter, PHMSA stated that it plans to complete a formal assessment of the costs and benefits associated with eliminating the regulatory exceptions for small lithium batteries and will identify regulatory and other approaches based on that assessment. The Safety Board recognizes that the cost/benefit study that PHMSA plans to complete is a necessary step in making the regulatory change recommended. Pending revision of the regulations to eliminate exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries, Safety Recommendation A-07-109 is classified OPEN -- ACCEPTABLE RESPONSE.

From: PHMSA
To: NTSB
Date: 3/28/2008
Response: MC# 2080191: - From Stacey L. Gerard, Assistant Administrator/ Chief Safety Officer: Our August 9, 2007 final rule imposed new marking, documentation, and test requirements for small primary and secondary lithium batteries. Small lithium batteries must be tested in accordance with the United Nations Manual of Tests and Criteria to ensure they can withstand conditions encountered during transportation. In addition, each package containing more than 24 lithium cells or 12 lithium batteries must: (1) be marked to indicate that it contains lithium batteries, and special procedures should be followed in the event that the package is damaged; (2) be accompanied by a document indicating that the package contains lithium batteries and special procedures should be followed in the event that the package is damaged; (3) be capable of withstanding a 1.2 meter drop test in any orientation without damage to cells or batteries contained in the package, without shifting of the contents that would allow short circuiting and without release of package contents; and (4) not exceed a gross package weight of 30 kg. We plan to complete a formal assessment of the costs and benefits associated with eliminating the regulatory exceptions for small lithium batteries and will identify regulatory and other approaches based on that assessment. For example, we will consider whether requiring small lithium batteries to be regulated as Class 9 materials and subject to the full range of packaging and hazardous communication requirements applicable to Class 9 materials will be effective in reducing their risk in transportation, whether the measures taken to date are sufficient and whether other alternative solutions can be equally effective in reducing risk. PHMSA, in close cooperation with the FAA, led efforts to enhance international regulatory requirements for the transport of lithium batteries, including enhancements to the ICAO TI and the United Nations Recommendations on the Transport of Dangerous Goods. These enhanced requirements will apply to both shippers and carriers and will come into effect on January 1, 2009 in the 2009-2010 edition of the ICAO TI. They will provide for more precise shipping descriptions for lithium metal and lithium-ion batteries, improved packaging standards, and enhanced hazard communication requirements. For instance all packages containing small lithium batteries will be required to be marked with a 100mm x 100mm red hatched handling label (see attached example). The new marking also requires an indication of the type of battery, specific warning statements (pictograms for fragile and flammable potential if damaged), procedures to be followed in the event of an incident (a notification to not load or transport if the package is damaged), and an emergency response telephone number and to be accompanied by a shipping document with the same information. The new ICAO packaging standards for shipments of previously excepted small lithium batteries will require the package to be strong enough to withstand a 1.2 meter drop without damage to the package contents and there will be new limits on the quantity of small batteries permitted in a single package. For lithium-ion batteries, the authorized gross weight was reduced from 30 kg to 10 kg per package. For lithium metal batteries, the authorized gross weight under the exception was reduced from 30 kg per package to 2.5 kg per package. Limiting the total authorized gross weight of individual packages should result in a reduction in the total number of batteries in a consignment. We believe that the ICAO measures will enhance safety and will consider incorporating the new provisions into the Hazardous Materials Regulations. At the same time, we will work with FAA and others to consider and assess the effectiveness of additional regulatory requirements to address the safety risks associated with transporting lithium batteries on board cargo and passenger aircraft. Our August 9, 2007 final rule and the additional rulemaking actions we are planning are only one component of the comprehensive program PHMSA and the FAA have implemented to improve the safety of lithium batteries in transportation. We will continue to carry out a comprehensive strategy aimed at reducing the transportation risks posed by batteries of all types. We are planning on hosting a follow on public and private sector stakeholder meeting on April 11, 2008 to identify and agree on the next steps to advance initiatives to reduce risk and enhance safety. We hope you will be able to attend. Our continued actions will include comprehensive reporting and investigation of battery-related incidents; a focus on enhancing industry practices and consensus standards for improved battery, consumer product, and software design; consideration and implementation of improved regulatory standards; focused enforcement; and development and implementation of our public outreach and education campaign. Through an integrated and cooperative approach, we can be most successful in reducing incidents, enhancing safety, and protecting the public. We will continue to evaluate the hazards posed by lithium batteries in transportation, monitor and investigate incidents to identify root causes and continue to progress our multifaceted initiative involving rulemaking, outreach, enforcement and partnerships to raise public awareness. This is one of our top safety priorities and we are applying significant resources to minimizing the risk associated with the transportation of lithium batteries as cargo and by passengers aboard aircraft. As we complete our analyses and propose additional requirements, we will keep you informed of our progress. If you have any questions, please contact me at (202) 366- 4433. We request that you classify recommendations A-07-104, 105, 106, 107 and 109 as Open - Acceptable Action and A-07-108 as Closed Acceptable Action. We thank you for consideration of our request.