{"operation":"document","citation":"12-0044","title":"Council on the Safe Transportation of Hazardous Articles, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-05-04","effective_on":null,"summary":"12-0044 response to Council on the Safe Transportation of Hazardous Articles, Inc. concerning 175.10.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0044.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0044.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0044","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120044.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 0 1 2012\nTom Ferguson, PG, CHMM, DGSA\nTechnical Consultant\nCouncil on the Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court\nFairfax Station, VA 22039\nRef. No. 12-0044\nDear Mr. Ferguson:\nThis responds to your request for written clarification of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180) applicable to the stowage of a passenger-offered\nlithium ion battery-powered mobility aid in the cargo compartment of an aircraft.\nSpecifically, you request clarification of the orientation requirements for such an article\nunder§ 175.10(a)(17) as amended in a final rule published in the Federal Register on\nJanuary 19, 2011 (HM-215K; 76 FR 3308). Your questions are paraphrased and answered\nas follows: ·\nQl. In the January 19, 201.1 final rule, was it PHMSA's intent to require that passenger-\noffered lithium ion battery-powered mobility aids be stowed in an upright orientation\nat all times?\nAl. The answer is no. A wheelchair or other mobility aid may be loaded in other than an\nupright position. However, we stress the importance of stowing the mobility aid in\nsuch a manner that it is protected from unintended activation and from damage.\nThe intent of the amendments to§ 175.10(a)(17) in the January 19, 2011 final rule\nwere to specify that a non-spillable battery, such as a lithium ion battery, may be\nremoved from the wheelchair and packed separately, if necessary (e.g., if the battery\nwere not adequately secured to the wheelchair). When a non-spillable battery, such\nas a lithium ion battery, is securely attached to a wheelchair in a manner that assures\nit will not become separated under normal conditions of transportation, there is no\nneed for the non-spillable battery, such as a lithium ion battery, to be packed ·\nseparately as prescribed under the HMR. Consequently, a wheelchair or other\nmobility aid may be loaded in other than an upright position if its non-spillable\nbattery is securely attached and the other relevant stowage criteria are met.\n\n<<<PAGE 2>>>\n\nQ2. A2. For the purposes of§ 175.10(a)(17) of the HMR, does PHMSA consider a lithium\nion battery \"spillable\" or \"non-spillable\"?\nFor the purposes of§ 175.10(a)(17) of the HMR, PHMSA considers a lithium battery\nto be non-spillable. We intend to address this issue in an upcoming rulemaking and\napologize for any inconvenience the lack of clarification may have caused.\nI trust this satisfies your inquiry. Please contact us if we can be of any further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nCOUNCIL ON SAFE TRANSPORTATION\nOF H.AZAROOUS ARTIClES. tNC.\nPresident\nRobert Heinrich\nNovartis Pharmaceuticals\nRobert.Heinrich@novartis.com\nFirst Vice President\nDonald Bossow\nDiversey, Inc.\ndonald.hossow@diversey.com\nSecond Vice Presidentffreasurer\nJohn D' Aloia\nMary Kay, Inc.\njohn.d1 aloia@mkcorp.com\nSecretary\nJeanne Zmich\nLabelmaster\nJEANNEZ@alc-net.com\nExecutive Committee Member\nRichard Lattimer\nEli Lilly and Company\nR.Lattimer@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 Corporation\namy.fischesser@na.sunchem.com\nAlicia Gaines\nAbbott Laboratories\nalicia.gaines@abbott.com\nJames Jahnke\nMerck and Co\njames.jahnke@merck.com\nDave Madsen\nAutoliv, Inc.\nDave.Madsen@autoliv.com\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\nJanuary 31, 2012\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 49\nCFR, Part 175, §175.1 0, paragraph (a)(17)(i)(E). Specifically,\nCOSTHA is requesting clarification as to whether the Pipeline and\nHazardous Materials Safety Administration (PHMSA) intended for\nlithium ion battery-powered wheelchairs to remain stowed in an upright\nposition when loaded in the cargo compartment of an aircraft.\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.\nIn the Final Rule HM-215K published on January 19, 2011, PHMSA\nadded paragraph (a)(17) to §175.1 0. This new paragraph detailed\nprovisions for the carriage of wheelchairs powered by lithium ion\nbatteries as baggage on passenger aircraft. Subparagraph (i)\naddresses general requirements which apply to the condition,\ninspection, and handling of the wheelchair while subparagraph (ii)\ndesignated additional conditions which would apply when transported\nas carry-on or checked baggage. Sub-subparagraphs (a)(17)(i)(B) and\n(ii)(B) were modified in the Final Rule HM-218F, published on July 20,\n2011, however these modifications do not have relevance to this\nrequest.\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\nThus the published language of §175.1 O(a)(17) states:\n(17) A lithium ion battery-powered wheelchair or other mobility aid as follows:\n(i) A wheelchair or other mobility aid equipped with a lithium ion battery, when\ncarried as checked baggage, provided-\n( A) The lithium ion battery must be of a type that successfully passed\neach test in the UN Manual of Tests and Criteria as specified in §173.185\nof this subchapter, unless approved by the Associate Administrator;\n(B) Visual inspection of the wheelchair or mobility aid reveals no obvious\ndefects;\n(C) Battery terminals must be protected from short circuits (e.g., by being\nenclosed within a battery container that is securely attached to the\nmobility aid);\n(D) The pilot-in-command is advised, either orally or in writing, prior to\ndeparture, as to the location of the wheelchair or mobility aid aboard the\naircraft; and\n(E) The wheelchair or mobility aid is loaded, stowed, secured and\nunloaded in an upright position and [emphasis added] in a manner that\nprevents unintentional activation and protects it from damage.\n(F) A lithium metal battery is forbidden aboard a passenger-carrying\naircraft.\n(ii) A wheelchair or other mobility aid when carried as checked or carry-on\nbaggage, provided-\n(A) The wheelchair or other mobility aid is designed and constructed in a\nmanner to allow for stowage in either a cargo compartment or in the\npassenger cabin;\n(B) The lithium ion battery and any spare batteries are carried in the same\nmanner as spare batteries in paragraph (a)(18) of this section.\n(C) The lithium ion battery and any spare batteries are carried in the\nsame manner as spare batteries in paragraph (a)(18) of this section.\nSub-subparagraph (i)(E) noted above requires the carrier to ensure the wheelchair or mobility\naid is loaded, stowed, secured and unloaded in an upright position. COSTHA notes this\nparagraph, (a)(17) including sub-subparagraph (i)(E) were drafted using existing language from\nparagraph (a)(16) applicable to the carriage of wet, spillable batteries, most typically lead-acid\nbased. For wet, spillable batteries, orientation of the battery, and thus the device in which the\nbattery contained, is crucial to prevent leakage of the acid contained within. The inclusion of\nsubparagraph (a)(16)(iv), requiring the device be oriented and secured in an upright manner, is\ntherefore logical.\nWhile the chemistry of lithium ion batteries differs from lead-acid batteries, lithium ion batteries\nare sealed devices and would be comparable to a wet, non-spillable battery. Orientation of the\nbattery does not prevent nor create a more or less safe condition. PHMSA does not require\nwet, non-spillable batteries secured within wheelchair or mobility aid to be loaded and secured\nin an upright position given the lack of such a requirement in paragraph (a)(15). Therefore, we\ndo not believe the inclusion of sub-subparagraph (a)(17)(i)(E) provides additional safety\nmeasures.\nLithium-ion batteries are not considered \"spillable\" and there are no other requirements in the\nexisting regulations (49 CFR 175.1 O(a)(18), 49 CFR 173.185, or associated ICAO language)\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com\n\n<<<PAGE 5>>>\n\npertaining to lithium batteries that include orientation requirements or a requirement to transport\nor handle these types of batteries in an upright manner.\nCOSTHA Air Carrier members are experiencing significant problems implementing the\nrequirements of sub-subparagraph (a)(17)(i)(E). Specifically, many mobility aids or wheelchairs\nare taller than the aircraft cargo compartment. This problem is prevalent on many smaller\naircraft utilized by regional operators as well as larger national and international carriers. Due to\nthe conditions of the Air Carrier Access Act (ACAA) and requirements noted in 14 CFR 382,\ncarriers are mandated to accept wheelchairs if safety conditions allow for their carriage. The\nsize of these devices and the requirements of sub-subparagraph (a)(17)(i)(E) are forcing\ncarriers to either remove the battery from the device (which leads to damaged wheelchairs or\ndevices) and store in the cabin of the aircraft, or storage of the device itself in the cabin of the\naircraft.\nGiven the information above, COSTHA requests PHMSA clarify whether they believe the upright\nstorage of a lithium ion powered wheelchair presents a safer condition than a device stored in\nany other orientation, and whether the inclusion of the requirement in §175.1 O(a)(17)(i)(E) was\nintentional.\nCOSTHA understands that if PHMSA agrees with COSTHA's assertion, a necessary solution\nwould be modification of the language in a future rulemaking. Please consider this document a\nPetition for Rulemaking to remove the words \"in an upright position and\" from sub-subparagraph\n(E) in that case.\nAs this interpretation has implications on pending FAA approval of multiple US air carriers'\nHazardous Materials Transport and Training Programs, we request PHMSA provide guidance\non this issue in an expeditious manner.\nPlease let me know if you have any questions regarding this issue.\nSincerely,\nTom Ferguson, DGSA\nTechnical Consultant\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com","truncated":false,"body_characters":11329}