{"operation":"document","citation":"11-0113","title":"Council on Safe Transport of Hazardous Articles, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-05-16","effective_on":null,"summary":"11-0113 response to Council on Safe Transport of Hazardous Articles, Inc. concerning 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0113.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0113.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0113","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110113.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMAY 1 6 2012\nMr. Thomas W. Ferguson\nTechnical Consultant\nCouncil on Safe Transport of Hazardous Articles, Inc.\n7803 Hill House Court\nFairfax Station, VA 22039\nRef. No.: 11-0113\nDear Mr. Ferguson:\nThis responds to your May 6, 20 11, letter posing several questions concerning the applicability\nof the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the carriage of an\nairline passenger's non-spillable battery in carry-on or checked baggage. You also asked about a\ncarrier's obligation to accept a non-spillable battery-powered wheelchair or other non-spillable\nbattery-powered mobility aid 1 in accordance with nondiscrimination requirements under 14 CFR\nPart 382, Subpart I, specifically, 14 CFR 382.121. Your questions have been paraphrased and\nare answered as follows:\nQ1. Is a non-spillable battery that meets the conditions of§ 173.159a(d) subject to the additional\nconditions of§ 175.1 0( a)(l5) when offered for transportation as checked baggage?\nA 1. Yes, a passenger may only transport a non-spillable battery as checked baggage if it meets\nthe conditions of§ 175.10(a)(l5).\nQ2. Is a carrier required to transport a non-spillable battery as checked baggage when it is not\ninstalled in a battery powered mobility aid?\nA2. A non-spillable battery may be separately packaged and transported in the baggage\ncompartment along with the wheelchair or mobility aid that it powers, if the removal of the\nbattery from the device is necessary to prevent a short circuit or unintentional activation (see\n§ 175.1 O(a)(l5)). A carrier is required to transport a battery-powered mobility aid as checked\nbaggage so long as such transportation is consistent with PHMSA' s hazardous materials\nregulations specified in §§ 173.159a(d) and 175.1 O(a)(l5). Furthermore, with respect to the\ncarriers' responsibility, 14 CFR 382.127 prohibits a carrier from requiring that the non-spillable\nbattery be removed from the wheelchair or other mobility aid unless it is necessary to do so for\n1 A battery-powered mobility aid means an assistive device that is used by individuals with mobility impairments\nsuch as a wheelchair, a scooter, or a Segway when it is used as a mobility device by a person with a mobility-related\ndisability.\n\n<<<PAGE 2>>>\n\nsafety reasons. When the non-spillable battery must be detached from the assistive device, it\nmay only be carried if it is placed in packaging meeting the requirements of§ 175.10.\nQ3. If a non-spillable battery meets the conditions of§ 173.159a(d), is it permitted in the cabin\nof an aircraft as carry-on baggage (i.e. not installed in equipment)?\nA3. No, as indicated in A1 above, a hazardous material carried by a passenger must meet an\nexception in § 175.10. Section 175.10 does not provide an exception for carriage of a non-\nspillable battery as carry-on baggage and as such does not permit a passenger to carry a non-\nspillable battery in the cabin of an aircraft, regardless of whether it is transported alone or\nattached to a device.\nQ4. If a non-spillable battery meets the conditions of§ 173.159a(d), is it permitted in the cabin\nof an aircraft as carry-on baggage when the battery is installed in medical equipment, assistive\ndevices, or mobility aids?\nA4. No. As indicated in A3 above, a non-spillable battery is not permitted in a passenger's\ncarry-on baggage. The Department's disability regulation states that a carrier must permit\npassengers with a disability to bring manual wheelchairs, other mobility aids (e.g., canes), or\nother assistive devices into the aircraft cabin, provided that their stowage in the cabin is\nconsistent with FAA, PHMSA, TSA, or applicable foreign government requirements. (see 14 CFR\n382.121). If an assistive device cannot, consistent with government safety and security\nrequirements, such as the HMR, be transported in the cabin, 14 CFR Part 3 82 does not require\nthe carrier to accept it in the cabin. In fact, the carrier must not accept a material that would\nresult in violation of the HMR.\nI hope this answers your inquiry. If you need additional assistance, please contact the Standards\nand Rulemaking Division.\nSincerely,\n+P~\nirector\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nLearV\\\n~173.T3q\n'3175. JO\nBa t+eries.\nII -OJlc\nCOUNCIL ON SAFE TRANSPORTATION\nOF HAZARDOUS ARTICLES, INC.\nMay 6, 2011\nPresident\nRobert Heinrich\nNovartis Pharmaceuticals\nRobert.Heinrich@novartis.com\nFirst Vice President\nDonald Bossow\nDiversey, Inc.\ndonald.bossow@diversey com\nSecond Vice President/Treasurer\nJohn D' Aloia\nMary Kay, Inc.\njohn.d'a1oia@mkcorp.com\nSecretary\nJeanne Zmich\nLabelmaster\nJEANNEZ@alc-net.com\nExecutive Committee Membu\nRichard Lattimer\nEli Lilly and Company\nRLattimer@lilly.com\nBoard of Directors\nLes Adolph\nAmerican Airlines\nLes.Adolph@aa.com\nSean Broderick\nProcter & Gamble Distributing LLC\nBroderick.sp@pg.com\nDavid Evans\nPurolator Courier Ltd.\ndevans2@purolator com\nAmy Fischesser\nSun Chemical Corpo.-ation\narny.fischesser@nasunchem.com\nAlicia Gaines\nAbbott Laborato1·ies\na1iciagaines@abbott.com\nDave Madsen\nAutoliv, Inc.\nDave.Madsen@autoliv.com\nRich Moskowitz\nAmerican Trucking Associations, Inc.\nrmoskowitz@trucking.org\nChristopher Palabrica, CPM, CHMM\nMays Chemical Co.\nchrisp@mayschem.com\nDan Wieten\nToyota Motor Sales, USA, Inc.\ndan_wieten@toyota.com\nGeneral Counsel\nRichard Schweitzer, PLLC\nMagdy EI-Sibaie, PhD\nAssociate Administrator, Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nUS Department of Transportation\n1200 New Jersey Ave., SE\nEast Bldg. Second Floor\nWashington, DC 20590-0001\nDear Dr. EI-Sibaie:\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n(COSTHA) hereby submits a request for interpretation regarding the\napplicability of 49 CFR, Part 175, § 175.10, paragraph (a)(15) to wet,\nnon-spillable batteries meeting the exceptions defined in 49 CFR, Part\n173, §173.159a, paragraph (d).\nCOSTHA is a not-for-profit organization representing manufacturers,\nshippers, distributors, carriers, freight forwarders, trainers, packaging\nmanufacturers and others associated with the hazardous materials\ntransportation industry. In addition to promoting regulatory compliance\nand safety in hazardous materials transportation, COSTHA assists its\nmembers and the public in evaluating the practicality and efficacy of\nlaws, rules and regulations for the safe transportation and distribution\nof hazardous materials.\nThe Hazardous Materials Regulations (HMR) provide specific\nprovisions for the carriage of hazardous materials in checked or carry-\non baggage in §175.10. Paragraph (a)(15) details provisions for the\ncarriage of wheelchairs or mobility aids with non-spillable batteries\nwhen offered as checked baggage. Further, Subparagraph (a)(15)(i)\nincludes the requirement for such a non-spillable battery to meet the\nrequirements of §173.159a(d). Subparagraphs (a)(15)(ii), (iii), and (iv)\ndetail additional requirements above §173.159a(d) which must be met\nincluding visual inspection of the battery, battery disconnection unless\nthe wheelchair or mobility aid provides an effective means to do so,\nand additional specific handling procedures.\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court Fairfax Station, VA 22039 Phone: 703/451-4031 Fax: 703/451-4207\nmail@costha.com www.costha.com\n\n<<<PAGE 4>>>\n\nIn §173.159a, the HMR provides exceptions for non-spillable batteries. Paragraph (d) states:\n(d) Non-spillable batteries are excepted from all other requirements of this subchapter\nwhen offered for transportation and transported in accordance with paragraph (c) of this\nsection and the following:\n(1) At a temperature of 55 oc (131 oF), the battery must not contain any unabsorbed\nfree-flowing liquid, and must be designed so that electrolyte will not flow from a ruptured\nor cracked case; and\n(2) For transport by aircraft, when contained in a battery-powered device, equipment or\nvehicle must be prepared and packaged for transport in a manner to prevent\nunintentional activation in conformance with §173.159(b)(2) of this Subpart.\nThe introduction sentence in paragraph (d) above indicates that if the conditions in (d) are met,\nthe batteries are not subject to any other requirements of Subchapter C of Title 49 CFR.\nSubchapter C includes Part 175. Notwithstanding the conditions of§ 175.1, the wording in\n§173.159a(d) suggests the conditions detailed in §175.1 O(a)(15) are not applicable to batteries\nmeeting the conditions of §173.159a(d). The wording \"are excepted from all other requirements\nof this subchapter\" is confusing to the reader and would indicate a battery prepared in\naccordance with § 173.159a(d) may move freely through the transportation chain, including as\nchecked or carry-on baggage.\nGiven the current wording of the HMR, COSTHA poses the following question:\n1. Is a wet, non-spillable battery meeting the conditions of §173.159a(d) subject to the\nadditional conditions of §175.10(a)(15) when offered for air transport as checked\nbaggage?\nIn a separate but related issue, COSTHA is aware of language contained within 14 CFR, Part\n382, §382.121, Paragraph (a) which addresses mobility aids and assistive devices that must be\naccepted by an air carrier as carry-on baggage. The language contained within §382.121 (a)(3)\nstates:\n(a) As a carrier, you must permit passengers with a disability to bring the following kinds of\nitems into the aircraft cabin, provided that they can be stowed in designated priority\nstorage areas or in overhead compartments or under seats, consistent with FAA,\nPHSMA, TSA, or applicable foreign government requirements concerning security,\nsafety and hazardous materials with respect to the stowage of carry-on items.\n(3) Other assistive devices for stowage or use within the cabin (e.g., prescription\nmedications and any medical devices needed to administer them such as syringes or\nauto-injectors, vision-enhancing devices, and POCs, ventilators and respirators that use\nnon-spillable batteries, as long as they comply with applicable safety, security and\nhazardous material rules).\nThe language of §382.121 (a)(3) indicates carriers must permit the stowage in the cabin of\nassistive devices that use non-spillable batteries as long as they comply with applicable\nhazardous material regulations: However, 49 CFR §175.10(a) does not provide any provisions\nfor the carriage of non-spillable batteries other than those contained within mobility aids.\nNotwithstanding the answer to Question 1 above, this lack of clarity suggests that wet, non-\n\n<<<PAGE 5>>>\n\nspillable batteries meeting the requirements of §173.159a(d) are not permitted in the cabin of\nthe aircraft as carry-on baggage.\nTo clarify this point, COSTHA poses the following questions:\n2. If a wet, non-spillable battery meets the conditions of §173.159a(d), is it permitted in the\ncabin of an aircraft as carry-on baggage (alone, not installed in equipment)?\n3. If a wet, non-spillable battery meets the conditions of §173.159a(d), is it permitted in the\ncabin of an aircraft as carry-on baggage installed in medical equipment, assistive\ndevices, or mobility aids?\nCOSTHA notes that if the answer to Question 2 is no, then 14 CFR, §382.121(a)(3) details a\ncarrier requirement which is not permitted (the allowance of non-spillable batteries in assistive\ndevices) per the HMR.\nTimely clarification on these issues would be greatly appreciated.\nSincerely,\nThomas W. Ferguson, PG, CHMM, DGSA\nCOSTHA Technical Consultant","truncated":false,"body_characters":11590}