{"operation":"document","citation":"74 FR 2200","title":"Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2009-01-14","effective_on":"2009-02-13","summary":"This final rule revises the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, Transport Canada's Transportation of Dangerous Goods Regulations, and the United Nations Recommendations on the Transport of Dangerous Goods. These revisions also include amendments and clarifications addressing the safe transportation of batteries and battery-powered devices. Consistent with recent changes to the International Civil Aviation Organization's Technical Instructions, PHMSA is clarifying the prohibition against transporting electrical devices, including batteries and battery-powered devices that are likely to create sparks or generate a dangerous amount of heat. PHMSA is also modifying and enhancing requirements for the packaging and handling of batteries and battery-powered devices, particularly in air commerce, to emphasize the safety precautions that are necessary to prevent incidents during transportation. PHMSA developed these revisions in conjunction with the Federal Aviation Administration to enhance the safe transportation of batteries and battery-powered devices.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-e8-31383.json","markdown":"https://regulus.evalyn.ai/document/federal-register-e8-31383.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-e8-31383","source_url":"https://www.federalregister.gov/documents/2009/01/14/E8-31383/hazardous-materials-revision-to-requirements-for-the-transportation-of-batteries-and-battery-powered","body":"Federal Register, Volume 74 Issue 9 (Wednesday, January 14, 2009) [Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)] [Rules and Regulations] [Pages 2200-2270] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: E8-31383] [[Page 2199]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. ----------------------------------------------------------------------- Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions; Final Rule Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Rules and Regulations [[Page 2200]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, and 178 [Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J)] RIN 2137-AE31 Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule revises the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, Transport Canada's Transportation of Dangerous Goods Regulations, and the United Nations Recommendations on the Transport of Dangerous Goods. These revisions also include amendments and clarifications addressing the safe transportation of batteries and battery-powered devices. Consistent with recent changes to the International Civil Aviation Organization's Technical Instructions, PHMSA is clarifying the prohibition against transporting electrical devices, including batteries and battery-powered devices that are likely to create sparks or generate a dangerous amount of heat. PHMSA is also modifying and enhancing requirements for the packaging and handling of batteries and battery-powered devices, particularly in air commerce, to emphasize the safety precautions that are necessary to prevent incidents during transportation. PHMSA developed these revisions in conjunction with the Federal Aviation Administration to enhance the safe transportation of batteries and battery-powered devices. DATES: Effective date: February 13, 2009. Voluntary Compliance Date: PHMSA is authorizing voluntary compliance beginning January 1, 2009. Delayed Compliance Date: Except as specified in Sec. Sec. 171.14, 171.25, 172.102, 172.448, and 178.703 as amended herein, compliance with the amendments adopted in this final rule is required beginning January 1, 2010. Incorporation by Reference Date: The incorporation by reference of the publications adopted in Sec. 171.7 of this final rule has been approved by the Director of the Federal Register as of February 13, 2009. FOR FURTHER INFORMATION CONTACT: T. Glenn Foster or Charles Betts, Office of Hazardous Materials Standards, telephone (202) 366-8553, or Shane Kelley, International Standards, telephone (202) 366-0656, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Background II. Overview A. Amendments To Enhance the Safe Transportation of Batteries and Battery-Powered Devices B. Additional Amendments Adopted in This Final Rule C. Amendments Not Being Adopted in This Final Rule III. Section-by-Section Review IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis I. Background In a notice of proposed rulemaking (NPRM) published July 31, 2008 [73 FR 44804], PHMSA proposed a number of revisions to the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to incorporate recent updates and revisions to Transport Canada's Transportation of Dangerous Goods (TDG) regulations, the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations), the International Maritime Dangerous Goods (IMDG) Code, and the International Civil Aviation Organization Technical Instructions (ICAO TI) for the Transport of Dangerous Goods by Air. The UN Recommendations are amended and updated biennially by the UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labeling of Chemicals and serve as the basis for national, regional, and international modal regulations, including the IMDG Code, and the ICAO Technical Instructions. The revisions proposed in the July NPRM cover classification of materials, hazard communication, and packaging requirements. The most noteworthy proposals in the July NPRM concerned the transportation of batteries and battery-powered devices. Specifically, the NPRM proposed enhanced packaging and hazardous communication requirements consistent with international standards that address the electrical hazards posed by batteries and battery-powered devices. In the NPRM, we proposed the following amendments applicable to the transportation of batteries and battery-powered devices: Require reporting of incidents involving batteries and battery-powered devices (devices include equipment) or vehicles. Clarify the requirement that batteries, and battery- powered devices and vehicles, be offered for transportation and transported in a manner that prevents short-circuiting, dangerous evolution of heat, damage to terminals, and, in the case of transportation by aircraft, unintentional activation. Clarify the requirements for determining whether a battery is considered non-spillable. This included designation of a new section outlining conditions for packaging and transport of batteries determined to be non-spillable. Require a certification on the shipping documentation that batteries and battery-powered devices have met the conditions and all requirements for transport as specified in the applicable exception or special provision. Eliminate the requirement to disconnect the terminals when a battery-powered wheelchair or mobility aid is transported as checked baggage, provided the wheelchair or mobility aid design provides an effective means of preventing unintentional activation. Clarify the requirements for transport of dry batteries including a [[Page 2201]] revision of the proper shipping name used to describe dry batteries. The measures proposed in the NPRM for batteries and battery-powered devices were intended to harmonize the HMR with applicable international standards. More importantly, the proposals to amend the incident reporting requirements related to the transport of batteries and battery-powered devices would enable the agency to acquire and assess data on the causes of battery incidents in transportation. We could then use that information to develop strategies to reduce the associated risks. Harmonization of domestic and international standards becomes increasingly important as the volume of hazardous materials transported in international commerce grows. Harmonization facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials to and from the United States. By facilitating compliance, harmonization enhances safety for international movements, but only if the international standards themselves provide an appropriate level of safety. To that end, PHMSA actively participates in the development of international standards for the transportation of hazardous materials, frequently advocating the adoption in international standards of particular HMR requirements. When considering the adoption of international standards under the HMR, we review and consider each amendment on its own merit, including an assessment of its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public. To maintain alignment of the HMR with international requirements, in this final rule, we are incorporating changes based on the Fifteenth revised edition of the UN Recommendations, Amendment 34 to the IMDG Code, and the 2009-2010 ICAO TI, all of which become effective January 1, 2009. We are also addressing petitions for rulemaking concerning harmonization with international standards and additional measures to facilitate international transportation. The July NPRM incorporated two separate rulemaking dockets--HM-224D addressing battery safety issues and HM-215J addressing more general harmonization issues. The comment period for the proposed rule closed on September 29, 2008. A total of 33 persons submitted comments in response to the NPRM. Some of the comments we received were provided in duplicate to both Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008- 0005 (HM-215J). For reader utility, we have listed all comments received in numerical order by the Document ID number assigned when submitted, including those submitted in duplicate to each docket. The following individuals, companies, and organizations submitted comments to the Docket for HM-224D: (1) Adrien Tusek (Tusek; PHMSA-2007-0065-0013); (2) FedEx Express (FedEx; PHMSA-2007-0065-0016); (3) National Air Carrier Association (NACA; PHMSA-2007-0065-0017); (4) HMT Associates, LLC (HMT; PHMSA-2007-0065-0018); (5) Robert Herman (Paralyzed Veterans of America) (PVA; PHMSA-2007- 0065-0020); (6) Independent Pilots Association (IPA; PHMSA-2007-0065-0021); (7) United Parcel Service (UPS; PHMSA-2007-0065-0019, 0022); (8) Arkema, Inc. (Arkema; PHMSA-2007-0065-0023); (9) Procter & Gamble Company (P & G; PHMSA-2007-0065-0024); (10) Fedco Electronics, Inc. (Fedco; PHMSA-2007-0065-0025); (11) U.S. Fuel Cell Council (FCC; PHMSA-2007-0065-0026); (12) Joseph Schohn (Tyco International) (Tyco; PHMSA-2007-0065- 0027, 0034); (13) Omni Air International (Omni; PHMSA-2007-0065-0029); (14) URS Corporation (URS; PHMSA-2007-0065-0030, 0031); (15) Air Line Pilots Association, International (ALPA; PHMSA-2007- 0065-0032); and (16) Dangerous Goods Advisory Council (DGAC; PHMSA-2007-0065-0037). The following individuals, companies and organizations submitted comments to the Docket for HM-215J: (1) Signal Administration, Inc. (Signal; PHMSA-2008-0005-0002); (2) Omni Air International (Omni; PHMSA-2008-0005-0003); (3) The Fertilizer Institute (TFI; PHMSA-2008-0005-0004); (4) FedEx Express (FedEx; PHMSA-2008-0005-0005); (5) HMT Associates, LLC (HMT; PHMSA-2008-0005-0006); (6) Air Transport Association (ATA; PHMSA-2008-0005-0008); (7) National Electrical Manufacturer's Association (NEMA; PHMSA- 2008-0005-0009); (8) Chemical Products and Technology Division (American Chemistry Council) (CPTD; PHMSA-2008-0005-0010); (9) Lilliputian Systems, Inc. (Lilliputian; PHMSA-2008-0005-0011); (10) Association of Hazmat Shippers, Inc. (AHS; PHMSA-2008-0005- 0012); (11) American Trucking Associations (American Trucking Associations) (PHMSA-2008-0005-0013); (12) The Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA; PHMSA-2008-0005-0014); (13) Battery Council International (BCI; PHMSA-2008-0005-0015); (14) Portable Rechargeable Battery Association (PRBA; PHMSA-2008- 0005-0017); (15) International Vessel Operators Hazardous Materials Association, Inc. (VOHMA; PHMSA-2008-0005-0018); (16) URS Corporation (URS; PHMSA-2008-0005-0019); (17) Deeds (Industrial Health & Safety Consultants, Inc.) (Deeds; PHMSA-2008-0005-0020); (18) Anderson Products, Inc. (API; PHMSA-2008-0005-0021); (19) National Transportation Safety Board (NTSB; PHMSA-2008-0005- 0022); and (20) Dangerous Goods Advisory Council (DGAC; PHMSA-2008-0005-0023). Commenters were supportive of PHMSA's efforts to harmonize the HMR with international standards. Many of the proposals in the NPRM are fully supported by commenters, while others received little or no comment; these amendments are adopted as proposed. Several comments were beyond the scope of this rulemaking and are not addressed in this final rule. Comments are addressed in more detail in the Section-by- Section Review. II. Overview A. Amendments To Enhance the Safe Transportation of Batteries and Battery-Powered Devices The most noteworthy amendments in this final rule address the transportation of batteries and battery-powered devices. Currently, batteries and battery-powered devices are subject to a number of requirements in the HMR. Most importantly, the HMR restrict the transportation of electrical devices, including batteries and battery- powered devices, that are likely to create sparks or generate a dangerous amount of heat that could cause fire, smoke, or otherwise adversely affect the packaging material or means of conveyance. These batteries and battery-powered devices [[Page 2202]] are forbidden from transportation unless packaged in a manner that prevents such an occurrence (Sec. 173.21(c)). Additionally, the following types of batteries and devices powered by batteries are subject to packaging and hazard communication requirements: Wet (electric storage) batteries (Sec. 173.159); Batteries containing sodium (Sec. 173.189); Lithium cells and batteries (Sec. 173.185); Solid potassium hydroxide batteries (Sec. 173.213); and Battery-powered vehicles and equipment (Sec. 173.220). These requirements primarily address the hazards posed by the chemicals contained in the batteries as opposed to the stored electrical energy. For instance, wet cell batteries are required to be packaged in a manner to prevent leakage of the corrosive battery fluid in the event of an accident. The electrical hazard of the battery is addressed through general requirements to prevent short-circuiting, and the general prohibition on transporting electrical devices without proper protection and packaging (Sec. 173.21). However, the HMR currently prescribe no separate or unique classification for identifying materials that present a hazard in transport based on their stored electrical energy. This final rule addresses the electrical hazards posed by batteries and battery-powered devices by enhancing packaging and hazard communication requirements. A growing number of incidents involving batteries and battery- powered devices transported by aircraft have highlighted the transportation safety risks. Additionally, several factors are contributing to a heightened concern for the future transport of these devices, with particular attention to the risk onboard aircraft, including: (1) The increasing number of batteries and battery-powered portable and handheld devices (e.g., laptops, cellular phones, etc.) carried by airline passengers and otherwise transported in commerce; (2) the development and use of batteries with extended operating life and greater stored energy; and (3) the increasing number of counterfeit batteries in distribution and use. If not adequately protected from damage, short circuiting or, for devices containing batteries, inadvertent activation, batteries and battery-powered devices of all types can create or cause sparks or a dangerous amount of heat for extended periods, and in some cases, cause a fire. Cargo fires are a significant hazard in all modes of transportation and can have particularly catastrophic results in air transportation. If located aboard an aircraft during flight, inadequately protected batteries and battery-powered devices can pose a significant threat to the safety of people, property, and the environment. PHMSA and the Federal Aviation Administration (FAA) are aware of more than 96 incidents involving batteries or battery-powered devices in air transportation since 1996 that produced smoke, fire or a dangerous amount of heat. These incidents have occurred either on board an aircraft in cargo, checked, or carry-on baggage, or in ground transport facilities associated with air transportation. Many of these incidents involved shipments of batteries as cargo. The remainder involved shipments of electrically powered vehicles, equipment, or apparatus containing batteries. Since most batteries are excepted from the incident reporting requirements in the HMR, it is likely there have been additional incidents in all modes of transportation that were not reported. One major injury and several minor injuries were reported from these incidents. In some cases, the property damage and business interruption costs resulting from the incidents were significant. Most incidents occurred or were discovered on the ground in air transport facilities or vehicles. Three incidents occurred in flight on passenger and cargo planes, resulting in emergency landings or flight plan diversions. In response to these incidents, PHMSA's predecessor agency (the Research and Special Programs Administration) issued a public advisory on July 7, 1999 (64 FR 36743), reminding the transportation industry and public that batteries and electric devices that contain batteries are forbidden for transport unless properly packaged to prevent the creation of sparks or generation of a dangerous amount of heat (Sec. 173.21). The FAA issued safety advisories to the airline industry on July 2, 1999, and again on May 23, 2002. In addition, due to a series of incidents involving batteries carried by airline passengers, PHMSA initiated a campaign to educate the public about ways to reduce the risks posed in the transportation of batteries and battery-powered devices. The campaign included establishing a dedicated Web page for air travelers and developing a battery safety guide that includes safety measures and tips for the general public, for distribution at airports, in retail outlets, and through electronic media. As part of our battery safety campaign, we recommended various practical measures for complying with the regulations and reducing transportation risks. Recommended practices include keeping batteries installed in electronic devices; packing spare batteries individually in carry-on baggage; keeping spare batteries in their original retail packaging; separating batteries from other metallic objects, such as keys, coins, and jewelry; securely packing battery-powered devices in a manner to prevent accidental activation; and ensuring batteries are undamaged and purchased from reputable sources. On March 26, 2007, PHMSA issued a safety advisory notice (72 FR 14167) to further inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried on board an aircraft. We have also initiated a comprehensive strategy aimed at reducing the risks posed by batteries and battery-powered devices in transportation. On February 22, 2007; April 26, 2007; May 24-25 2007; and April 11, 2008, PHMSA hosted meetings with public and private sector stakeholders who share our concern for the safe transportation of batteries and battery-powered devices. The meetings provided an opportunity for representatives of the National Transportation Safety Board (NTSB), the Consumer Product Safety Commission, manufacturers of batteries and battery-powered devices, airlines, airline employee organizations, testing laboratories, and the emergency response and law enforcement communities to share and disseminate information about battery-related risks and developments. Understanding these risks is essential to promote improvements in industry standards and best practices. Together we identified a series of immediate and longer-term actions that participants are taking or will take to enhance safety, including: Comprehensive reporting and investigation of battery- related incidents; Improved battery, consumer product, and software design; Development and implementation of a technical standards agenda; Consideration and implementation of improved regulatory standards; Focused enforcement; and Development and implementation of a public outreach and education campaign. The requirements adopted in this final rule are an important element of the safety strategy designed to address specific battery- related hazards not [[Page 2203]] adequately addressed by existing HMR requirements. In this final rule, we are adopting the following amendments to enhance the safe transportation of batteries and battery-powered devices: Requirement to report incidents involving batteries and battery-powered devices including those that result in a fire, violent rupture, explosion, or dangerous evolution of heat. Immediate notice requirements are limited to air transport of batteries and battery- powered devices. Clarification of the requirement that batteries and battery-powered devices and vehicles be offered for transportation and transported in a manner that prevents short-circuiting, the potential of a dangerous evolution of heat, damage to terminals, and, in the case of transportation by aircraft, unintentional activation. Clarification of the requirements for determining whether a battery is considered non-spillable. This clarification includes the designation of a new section outlining conditions for packaging and transport of batteries determined to be non-spillable. Requirement for a shipper of batteries dry, sealed to indicate compliance with applicable special provisions and exceptions by marking each package with the words ``not restricted'' or, if a transport document such as an air waybill accompanies a shipment, by including the words ``not restricted'' on the document. Elimination of the requirement to disconnect the terminals when a battery-powered wheelchair or mobility aid is transported as checked baggage, provided the wheelchair or mobility aid design provides an effective means of preventing unintentional activation. Clarification of the requirements for the transport of dry batteries including a revision of the proper shipping name used to describe dry batteries and a provision to limit the applicability of transport requirements to a certain size of battery. As indicated earlier, these amendments will harmonize the HMR with international standards applicable to the transportation of batteries and battery-powered devices, improve communication of the standards pertaining to the transport of batteries and battery-powered devices to facilitate safe transport of these materials especially by aircraft, relieve burdens associated with compliance requirements, and provide data and information to enable PHMSA to develop an understanding of the causes of battery incidents in transportation and assist us in the reduction of the associated risks. Incident reporting. Most batteries are currently excepted from the incident reporting requirements in the HMR. We believe it is likely that numerous incidents involving batteries and battery-powered devices in all modes of transportation are not reported. This under-reporting has made it difficult to analyze the full body of incidents in transportation and to assess the full extent of the hazards associated with transporting batteries and battery-powered devices. In the July NPRM, we proposed to require immediate (telephonic) notice in accordance with Sec. 171.15 for all incidents involving shipments of batteries or battery-powered devices that result in a fire, violent rupture, explosion, or a dangerous evolution of heat. In addition, we proposed to require submission of a written incident report in accordance with Sec. 171.16 for battery related incidents, including incidents involving battery shipments that are prepared and offered as excepted from HMR requirements. We received a number of comments [ALPA, American Trucking Associations, COSTHA, NEMA, UPS, and VOHMA] supporting the proposal to require written reports in accordance with Sec. 171.16 of the HMR for incidents involving shipments of batteries or battery-powered devices that result in a fire, violent rupture, explosion, or a dangerous evolution of heat. We also received a number of comments [ALPA, COSTHA, NEMA, VOHMA] supporting the proposal to require immediate (telephonic) notice in accordance with Sec. 171.15. However, three commenters [American Trucking Associations, DGAC, UPS] oppose our proposal to require immediate notice of incidents involving shipments of batteries and battery-powered devices as unwarranted and burdensome, especially on carriers. DGAC does not believe, ``* * * a battery incident would warrant [an emergency response] and therefore consider[s] reporting of battery incidents to the NRC an unnecessary reporting burden.'' Additionally, commenters note it would be difficult to determine whether batteries or battery-powered devices were involved and whether they were the cause of the incident within the time constraints of immediate reporting requirements. As indicated by the American Trucking Associations, experience has shown that for trailer fires ``* * * it is very difficult to determine the cause of the fire and carriers may not even know that batteries were present until after the fire is extinguished.'' UPS indicates ``* * * the new language will create significant challenges for carriers.'' UPS also notes that ``[e]xperience demonstrates that there are occasions when fires occur but the cause cannot be determined'' and ``many hours or even days may be required to identify that the batteries were in the trailer.'' Both commenters express concern that fire fighters may shift or remove contents, thus complicating efforts to determine the cause of a fire. The American Trucking Associations and VOHMA specifically recommend that immediate notice should apply to air transportation only. Given the recent incidents involving batteries and battery-powered devices, we believe incident reporting will provide the data to enable us to identify the causes of battery incidents and determine whether additional measures would improve safe transport and help prevent future incidents. However, we agree with the commenters that immediate telephonic reporting of incidents that occur during ground transportation may not be necessary for this purpose. A written report of the incident submitted in accordance with Sec. 171.16 should provide sufficient information for us to identify and assess incident causes without imposing an undue burden on carriers. Since most of the anecdotal information about battery incidents is associated with aircraft incidents and because of the inherent safety hazards of air transport, we continue to believe that air carriers should be required to provide immediate notice of battery related incidents. Therefore, in this final rule, we are adopting the amendment to Sec. 171.15 to include a requirement for immediate notice of incidents involving shipments of batteries or battery-powered devices transported by aircraft resulting in a fire, violent rupture, explosion, or dangerous evolution of heat. Because this change from the incident reporting provisions proposed in the NPRM will revise the estimated reporting burden, we are re-calculating the information collection pertaining to incident reporting and will submit a revised package to the Office of Management and Budget (OMB). A separate Federal Register notice will be published pending OMB review (see discussion under ``Paperwork Reduction Act''). One of the reporting criteria proposed in the NPRM was for an incident involving a ``dangerous evolution of heat.'' Several commenters [American Trucking Associations, COSTHA, FedEx, UPS, VOHMA] express concern that the criterion is vague and open to interpretation. The commenters request that we clarify the meaning of a [[Page 2204]] ``dangerous evolution of heat'' or remove the condition altogether in order to relieve any potential ambiguity from the incident reporting requirements for the shipment of batteries or battery-powered devices. As FedEx states, ``this [term] is subjective and certainly requires further review or additional clarification.'' We continue to believe that a requirement to report incidents involving a ``dangerous evolution of heat'' will assist us to evaluate the potential fire risks associated with the transportation of batteries and battery-powered devices. However, we agree that clarification would be helpful. VOHMA suggests that the reporting requirement should be triggered by visible evidence of an amount of heat sufficient to be dangerous to packaging or personal safety to include ``* * * charring of packaging, melting of packaging, scorching of packaging, or other evidence.'' We agree and are adding this clarification to the reporting requirements. Battery safety. In this final rule, we are adopting a number of revisions to clarify that batteries of all types and battery-powered devices, equipment, and vehicles must be packaged for transportation in a manner that prevents short-circuiting, damage to terminals, the potential of a dangerous evolution of heat, and, for transportation by aircraft, unintentional activation. We are including several examples of packaging methods that may meet this performance standard, including packaging each battery or each battery-powered device in fully enclosed inner packagings made of non-conductive material, and separating batteries and battery-powered devices in a manner to prevent contact with other batteries, devices or conductive materials (e.g., metal) in the packagings. Batteries designed with exposed terminals or connectors should have the exposed terminals or connectors protected with non- conductive caps. We have included language in Sec. Sec. 171.15, 171.16, 172.102 Special Provision 130, 173.21, 173.159, 173.220, and 175.10 to further clarify these requirements. The HMR include a number of provisions applicable to batteries installed in vehicles, machinery, or other types of equipment. Section 173.220 establishes transportation requirements for internal combustion engines, self-propelled vehicles, mechanical equipment containing internal combustion engines, and battery powered vehicles or equipment. Generally, this section excepts battery-powered vehicles, machinery, and equipment from the HMR, provided they meet certain minimal requirements. We are aware of several incidents resulting in a dangerous evolution of heat initiated by batteries of this design which have been inadequately protected. In this final rule, we are adopting an amendment to require battery-powered vehicles, machinery, and equipment, including battery-powered wheelchairs and mobility aids, to conform to the new requirements in Sec. 173.159, paragraphs (a) and (b), including requirements for protecting terminals and preventing short-circuiting and unintentional activation. In addition, we are clarifying that battery-powered vehicles, machinery, and equipment are forbidden to be transported unless packaged in a manner preventing the creation of sparks, a dangerous amount of heat and, in air transportation, unintentional activation. Non-spillable batteries. Section 173.159 establishes requirements for the transportation of wet batteries, including non-spillable batteries. If certain conditions are met, non-spillable batteries are excepted from the HMR. Non-spillable batteries meeting additional requirements are excepted from all other requirements of the HMR. Unless all of the conditions specified in Sec. 173.159(d) are met, a non-spillable battery is fully subject to the HMR as a wet electric storage battery. International regulations outline the conditions under which a battery is considered non-spillable and provide packaging requirements specific to non-spillable batteries. In this final rule, we are describing in Sec. 173.159(f) the conditions under which a battery is considered non-spillable and relocating the exceptions pertaining to non-spillable batteries to a new Sec. 173.159a. Consistent with international requirements, we are specifying that batteries are considered ``non-spillable'' when they are capable of passing a vibration test and a pressure differential test without leakage. We are also adopting the requirement that non-spillable batteries must be packaged in strong outer packaging and securely fastened in the battery holder or the equipment when the battery is an integral part of the operation of mechanical or electronic equipment. In addition, we are specifying that, except for the incident reporting requirements of Sec. Sec. 171.15 and 171.16, non-spillable batteries are not subject to the requirements of the HMR if they meet the following additional conditions: At a temperature of 55 [deg]C (131 [deg]F), the battery does not contain any unabsorbed free-flowing liquid, and is designed so that electrolyte will not flow from a ruptured or cracked case; The battery is protected against short-circuiting and securely packaged in strong outer packaging; The battery is marked ``NONSPILLABLE'' or ``NONSPILLABLE BATTERY''; and For transportation by aircraft: The battery must meet the provisions of Sec. 173.159(b)(2). One commenter [Tyco] expresses concern regarding shipments of non- spillable batteries that otherwise appear to meet the requirements for transport of non-spillable batteries (see Sec. 173.159a), but leak after being damaged during transportation. The commenter states that it conducted an internal investigation, which involved test samples of all non-spillable batteries it utilizes, to determine if those batteries met the criteria of a ``non-spillable'' battery because they leaked and contained free liquids. According to the commenter, a number of the tested batteries exhibited observable leakage, although the manufacturers and distributors of the batteries had provided certification and laboratory results showing no failures. Based on this information, the commenter recommends that PHMSA clarify any ambiguity surrounding the methodology used to determine whether a battery is ``non-spillable'' to improve safety during the transportation of these materials. Specifically, the commenter requests PHMSA identify a testing protocol to determine whether a battery is designed so that electrolyte will not flow from a ruptured or cracked case. We commend the efforts of the commenter and appreciate the information provided in its comments. However, the recommendation provided by the commenter is outside the scope of this rulemaking as revisions to the criteria for determination of a non-spillable battery were not proposed in the NPRM. We will consider this information as part of our comprehensive strategy aimed at reducing the risks posed by batteries and battery-powered devices in transportation. We received two comments [BCI, PRBA] expressing disappointment that PHMSA did not consider provisions for shipments of non-spillable batteries transported for recycling or disposal. The commenters indicate that ``* * * it is almost impossible for shippers of used batteries to know if nonspillable batteries have been subject to the required vibration, pressure differential, and `crack test' at 55 [deg]C (131 [deg]F) or marked NONSPILLABLE or NONSPILLABLE BATTERY * * *'' Both commenters request that PHMSA include a new paragraph in Sec. 173.159 [[Page 2205]] which would provide relief from these tests for batteries transported for disposal or recycling. The request by the commenters is beyond the scope of this rulemaking. We did not propose the addition of a new paragraph which provides relief from non-spillable test requirements for shipments of non-spillable batteries intended for recycling or disposal. However, we will review the merits of this request and consider it for a future rulemaking. One commenter [BCI] requests that PHMSA remove the reference to ``batteries manufactured after September 30, 1995'' in the new Sec. 173.159a for exceptions for non-spillable batteries. BCI notes that ``* * * it is safe to assume that all nonspillable batteries being shipped today and in the future are manufactured after this date * * *'' We agree and in this final rule, we are removing the phrase ``batteries manufactured after September 30, 1995'' from the new Sec. 173.159a. Battery-powered wheelchairs or other mobility aids. Section 175.10 establishes exceptions for passengers, crewmembers, and air operators. Currently, the HMR permit a wheelchair or other battery-powered mobility aid to be carried on board a passenger aircraft as checked baggage provided that (1) visual inspection, including removal of the battery if necessary, reveals no obvious defects; (2) the battery is disconnected and terminals are insulated to prevent short-circuiting; and (3) the battery is securely attached to the wheelchair or mobility aid or removed and separately packaged. We are concerned, however, that repeated handling of the battery in a wheelchair or other mobility aid could result in damage or other problems that could compromise safety. Moreover, the design batteries and their housing have significantly improved in recent years. Therefore, in the NPRM, we proposed to revise Sec. 175.10(a)(15) to eliminate the requirement to disconnect the terminals when a battery-powered wheelchair or other mobility aid is transported as checked baggage provided the device provides an effective means of preventing unintentional activation. Battery terminals must continue to be protected from short-circuiting, but such protection is inherent in the design of most wheelchairs and mobility aids. Three commenters [ALPA, Omni, PVA] support PHMSA's proposal to eliminate the current requirement to disconnect the terminals when a battery-powered wheelchair or other mobility aid is transported as checked baggage provided the wheelchair or mobility aid has an effective means of preventing unintentional activation. ALPA states, ``* * * [w]e believe this provides an equivalent level of safety and will prevent inadvertent damage to wheelchairs by airline personnel, which could lead to a battery incident.'' However, one commenter [Tusek] expresses concern regarding the proposal to disconnect the battery if the wheelchair or mobility aid design does not provide an effective means of preventing unintentional activation. The commenter is concerned that such a requirement can be satisfied by merely unplugging a cable from a control unit rather than disconnecting the battery at the terminal(s). The commenter notes that the cable is still ``live'' and susceptible to ``arcing'' (short-ci","truncated":true,"body_characters":327228}