Council on Safe Transport of Hazardous Articles, Inc. — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, DC 20590 FEB 2 0 2018 Ms. L'Gena Shaffer, CDGP Technical Consultant Council on Safe Transport of Hazardous Articles, Inc. 10 Hunter Brook Lane Queensbury, NY 12804 Reference No. 17-0060 Dear Ms. Shaffer: This letter is in response to your January 19, 2017, email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the carriage of non-spillable batteries used to power portable electronic devices on passenger-carrying aircraft. Specifically, you reference a letter of interpretation previously issued by this Office under Reference No. 11-0113, and ask whether answer "A4," which stated in part that a non-spillable battery is not permitted in a passenger's carry-on baggage, should be revised based on recent regulatory amendments to§ 175.10(a)(l 8)(iii). The answer is yes; the previous answer "A4" in Reference No. 11-0113 is no longer valid. A non-spillable battery is permitted in a passenger's carry-on baggage, provided the non-spillable battery meets the requirements prescribed in § 175.1O(a)(l8)(iii). Please note the exceptions provided in§ 175.10(a)(18)(iii) for non-spillable batteries apply to portable electronic devices only-such as watches, cameras, camcorders, and medical devices-and not to a mobility aid- such as a wheelchair. Further, the battery and equipment must conform to§ 173.159a(d). Each battery must not exceed a voltage greater than 12 volts and a watt-hour (Wh) rating of not more than 100 Wh. No more than two individually protected spare batteries may be carried. Such equipment and spare batteries may be carried in checked baggage or carry-on baggage. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, ~~~//VF(/~--··· r T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division#

Page 2- ------ -----·---- ----- -· -- ---· ---- - ~---· ------·--··--··----····--- -··- -- ---- ·----··-- - ·~-- . ~ . . From: L'Gena Shaffer [mailto:Lgena@costha.com] ~ I ·7 3. ) 59 cl )" Sent: Thursday, January 19, 2017 1:28 PM 8 c;... To: Stevens, Michael (PHMSA) I J-- ' Cc: L'Gena Shaffer; Chris Yakush; Tom Ferguson /..:::;~(° ~ Subject: Interpretation letter review - Ref. 11-0113 / - Importance: High - 00 ~ O Hello Mr. Stevens! I hope this email finds you well. I need some guidance and hope you can help me. The attached interpretation appears to have an outdated response (04). Ultimately, we'd like to have is an 'updated' response to question 4 without losing the responses to other 3 questions. We believe the answer to question 4 has changed due to updates in the HMR. Q4. If a non-spillable battery meets the conditions of§ 173.159a(d), is it permitted in the cabin of an aircraft as carry-on baggage when the battery is installed in medical equipment, assistive devices, or mobility aids? A4. No. As indicated in A3 above, a non-spillable battery is not permitted in a passenger's carry-on baggage. The Department's disability regulation states that a carrier must permit passengers with a disability to bring manual wheelchairs, other mobility aids (e.g., canes), or other assistive devices into the aircraft cabin, provided that their stowage in the cabin is consist~nt with FAA, PHMSA, TSA, or applicable foreign government requirements. (see 14 CFR 382.121). If an assistive device cannot, consistent with government safety and security requirements, such as the HMR, be transported in the cabin, 14 CFR Part 3 82 does not require the carrier to accept it in the cabin. In fact, the carrier must not accept a material that would result in violation of the HMR. However, the current regulations allow a "PED" with a non-spillable battery in checked or carry-on baggage. § 175.10(a)(18) (iii) For a non-spillable battery, the battery and equipment must conform to §173.159a(d). Each battery must not exceed a voltage greater than 12 volts and a watt-hour rating of not more than 100 Wh. No more than two individually protected spare batteries may be carried. Such equipment and spare batteries must be carried in checked or carry-on baggage. The HMR would supersede an interpretation letter, but this interpretation has been widely used and referenced by air carriers. Is it possible to get a 'revised' interpretation to replace the current one? If so, do I need to formally request the review? If it is easier to discuss via phone call, please feel free to call me to discuss. Best regards, ,L ·~ S~, CDGP Technical Consultant COST HA 10 Hunter Brook Lane Queensbury, NY 12804 http://www.costha.com lgena@costha.com 0: 518-761-0389 Extn. 206 COSTHA Office: 518-761-0389 F: 518-792-7781 COSTHA 2017 Annual Forum & Expo -April 30-May 3 - Scottsdale, AZ 2#

Page 3U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Avenue, SE Washington, D.C. 20590 MAY 1 6 2012 Mr. Thomas W. Ferguson Technical Consultant Council on Safe Transport of Hazardous Articles, Inc. 7803 Hill House Court Fairfax Station, VA 22039 Ref. No.: 11-0113 Dear Mr. Ferguson: This responds to your May 6, 2011, letter posing several questions concerning the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to the carriage of an airline passenger's non-spillable battery in carry-on or checked baggage. You also asked about a carrier's obligation to accept a non-spillable battery-powered wheelchair or other non-spillable battery-powered mobility aid 1 in accordance with nondiscrimination requirements under 14 CFR Part 382, Subpart I, specifically, 14 CFR 382.121. Your questions have been paraphrased and are answered as follows: Q 1. Is a non-spillable battery that meets the conditions of§ 173.159a( d) subject to the additional conditions of§ 175. l O(a)( 15) when offered for transportation as checked baggage? A 1. Yes, a passenger may only transport a non-spillable battery as checked baggage if it meets the conditions of§ 17 5. I 0( a )(15). - , '~ 'f'. Q2. Is a carrier required to transport a non-spillable battery as checked baggage when it is not installed in a battery powered mobility aid? A2. A non-spillable battery may be separately packaged and transported in the baggage compartment along with the wheelchair or mobility aid that it powers, if the removal of the battery from the device is necessary to prevent a short circuit or unintentional activation (see . § 175. lO(a)(lS)). A carrier is required to transport a battery-powered mobility aid as checked baggage so long as such transportation is consistent with PHMSA's hazardous materials regulations specified in§§ 173.159a(d) and 175.IO(a)(lS). Furthennore, with respect to the carriers' responsibility, 14 CFR 382.127 prohibits a carrier from requiring that the non-spillable . ·battery be removed from the wheelchair or other mobility aid unless it is necessary to do so for 1 A battery-powered mobility aid means an assistive device that is used by individuals with mobility impainnents such as a wheelchair, a scooter, or a Segway when it is used as a mobility device by a person with a mobility-related disability.#

Page 4safety reasons. When the non-spillable battery must be detached from the assistive device, it may only be carried if it is placed in packaging meeting the requirements of§ 175.10. Q3. If a non-spillable battery meets the conditions of§ 173.159a(d), is it permitted in the cabin of an aircraft as carry-on baggage (i.e. not installed in equipment)? A3 . No, as indicated in Al above, a hazardous material carried by a passenger must meet an exception in § 175 .10. Section 175. l 0 does not provide an exception for carriage of a non- 'J .i. cl 0 "-.! Yl 0 , ,J spillable battery as carry-on baggage and as such does not pennit a passenger to carry a non- 11 5 , 1 u ( ,, -, ( 1 ~· , • ) spillable battery in the cabin of an aircraft, regardless of whether it is transported alone or attached to a device. Q4. If a non-spillable battery meets the conditions of§ 173.159a(d), is it permitted in the cabin of an aircraft as carry-on baggage when the battery is installed in medical equipment, assistive devices, or mobility aids? -:! t , , ,, , • A4. No. As indicated in A3 above, a non-spillable battery is not permitted in a passenger's carry-on baggage. The Department's disability regulation states that a carrier must permit passengers with a disability to bring manual wheelchairs, other mobility aids (e.g., canes), or other assisti ve devices into the aircraft cabin, provided that their stowage in the cabin is consistent with FAA, P HMSA, TSA, or applicable foreign government requirements. (see 14 CFR 382.121). If an assistive device cannot, consistent with government safety and security requirements, such as the HMR, be transported in the cabin, 14 CFR Part 3 82 does not require the carrier to accept it in the cabin. In fact, the carrier must not accept a material that would result in violation of the HMR. I hope this answers your inquiry. If you need additional assistance, please contact the Standards and Rulemaking Division. Sincerely, 1P~ irector Standards and Rulemaking Division#

Page 5Lear<1 ~ 173. T39 ~/75. JO Oatterie~ I I -OJ Jc COUNCIL ON SAFE TRANSPORTATION OF HAZARDOUS ARTICLES, INC. May 6, 2011 President Robert Heinrich Novartis Pharmaceuticals Roben.Heinrich@novartis.com First Vice President bonald Bossow Diverscy, lnc. donaJd.bossow@diversey com Second Vitt Prr:sidr:ntffreasurr:r John D' Aloia Mary Kay. Inc. john . d' aloi~mkcorp . com Secretary Jeanne Zmich Label master JEANNEZ@alc-net.com Eucu.tive Committe« Member Richa rd Lattimer [Ii Lilly 1md Company Rl.attimer@lilly.com Board of Dirutors Le• Adolph Amuican Airlines Les.Adolph@aa.com Sean Broderick Procter & Gamble Distributing LLC Bmderick.sp@pg.com David [vans Purolator Courier Ltd. devans2@purolator com Amy Fischesser Sun Chemical Corporation amy.fisches.scr@na.sWlchem.com Alicia Gaines Abbotl Laboratories alicia.gaines@abbon.com Dave Madsen Autoliv, Jnc. Oave.Madsen@autoliv.com Rich MoskowiR American Truckine: Associations, Inc:. rmoskow;tt@trucking.org Christopher Palabrica, CPM, CH.MM Mays Chemical C'.G. chrisp@mayschem.com Dan With~n Toyota Molor Sales, USA1 Tm:. dan_wieten@toyota.com Genera.I Counsel Richard Schweitzer, PLLC Magdy El-Sibaie, PhD Associate Administrator, Hazardous Materials Safety Pipeline and Hazardous Materials Safety Administration US Department of Transportation 1200 New Jersey Ave., SE East Bldg. Second Floor Washington, DC 20590-0001 Dear Dr. El-Sibaie: The Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) hereby submits a request for interpretation regarding the applicability of 49 CFR, Part 175, §175.10, paragraph (a)(15) to wet, non-spillable batteries meeting the exceptions defined in 49 CFR, Part 173, §173.159a, paragraph (d). COSTHA is a not-for-profit organization representing manufacturers, shippers, distributors, carriers, freight forwarders, trainers, packaging manufacturers and others associated with the hazardous materials transportation industry. In addition to promoting regulatory compliance and safety in hazardous materials transportation, COSTHA assists its members and the public in evaluating the practicality and efficacy of laws, rules and regulations for the safe transportation and distribution of hazardous materials. The Hazardous Materials Regulations (HMR) provide specific provisions for the carriage of hazardous materials in checked or carry- on baggage in §175.10. Paragraph (a)(15) details provisions for the carriage of wheelchairs or mobility aids with non-spillable batteries when offered as checked baggage. Further, Subparagraph (a)(15)(i) includes the requirement for such a non-spillable battery to meet the requirements of §173.159a(d). Subparagraphs (a)(15)(ii), (iii), and (iv) detail additional requirements above § 173.159a(d) which must be met including visual inspection of the battery, battery disconnection unless the wheelchair or mobility aid provides an effective means to do so, and additional specific handling procedures. The Council on Safe Transportation of Hazardous Articles, Inc. 7803 Hill House Court Fairfax Station, VA 22039 Phone: 703/451-4031 Fax: 703/451-4207 mail@costha.com www.costha.com#

Page 6In §173.159a, the HMR provides exceptions for non-spillable batteries. Paragraph (d) states: (d) Non-spillable batteries are excepted from all other requirements of this subchapter when offered for transportation and transported in accordance with paragraph (c) of this section and the following: (1) At a temperature of 55 °C (131 °F), the battery must not contain any unabsorbed free-flowing liquid, and must be designed so that electrolyte will not flow from a ruptured or cracked case; and (2) For transport by aircraft, when contained in a battery-powered device, equipment or vehicle must be prepared and packaged for transport in a manner to prevent unintentional activation in conformance with §173.159(b)(2) of this Subpart. The introduction sentence in paragraph (d) above indicates that if the conditions in (d) are met, the batteries are not subject to any other requirements of Subchapter C of Title 49 CFR. Subchapter C includes Part 175. Notwithstanding the conditions of§ 175.1, the wording in §173.159a(d) suggests the conditions detailed in §175.1 O(a)(15) are not applicable to batteries meeting the conditions of §173.159a(d). The wording "are excepted from all other requirements of this subchapter" is confusing to the reader and would indicate a battery prepared in accordance with §173.159a(d) may move freely through the transportation chain, including as checked or carry-on baggage. Given the current wording of the HMR, COSTHA poses the following question: 1. Is a wet, non-spillable battery meeting the conditions of§ 173.159a(d) subject to the additional conditions of §175.10(a)(15) when offered for air transport as checked baggage? In a separate but related issue, COSTHA is aware of language contained within 14 CFR, Part 382, §382.121, Paragraph (a) which addresses mobility aids and assistive devices that must be accepted by an air carrier as carry-on baggage. The language contained within §382.121 (a)(3) states: (a) As a carrier, you must permit passengers with a disability to bring the following kinds of items into the aircraft cabin, provided that they can be stowed in designated priority storage areas or in overhead compartments or under seats, consistent with FAA, PHSMA, TSA, or applicable foreign government requirements concerning security, safety and hazardous materials with respect to the stowage of carry-on items. (3) Other assistive devices for stowage or use within the cabin (e.g., prescription medications and. any medical devices needed to administer them such as syringes or auto-injectors, vision-enhancing devices, and POCs, ventilators and respirators that use non-spillable batteries, as long as they comply with applicable safety, security and hazardous material rules). The language of §382.121 (a)(3) indicates carriers must permit the stowage in the cabin of assistive devices that use non-spillable batteries as long as they comply with applicable hazardous material regulations: However, 49 CFR §175.10(a) does not provide any provisions for the carriage of non-spillable batteries other than those contained within mobility aids. Notwithstanding the answer to Question 1 above, this lack of clarity suggests that wet, non-#

Page 7spillable batteries meeting the requirements of §173.159a(d) are not permitted in the cabin of the aircraft as carry-on baggage. To clarify this point, COSTHA poses the following questions: 2. If a wet, non-spillable battery meets the conditions of §173.159a(d), is it permitted in the cabin of an aircraft as carry-on baggage (alone, not installed in equipment)? 3. If a wet, non-spillable battery meets the conditions of §173.159a(d), is it permitted in the cabin of an aircraft as carry-on baggage installed in medical equipment, assistive devices, or mobility aids? COSTHA notes that if the answer to Question 2 is no, then 14 CFR, §382.121(a)(3) details a carrier requirement which is not permitted (the allowance of non-spillable batteries in assistive devices) per the HMR. Timely clarification on these is. sues would be greatly appreciated. Sincerely, Thomas w. Ferguson, PG, CHMM, DGSA COSTHA Technical Consultant#