
[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)]
[Notices]
[Pages 66713-66716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23332]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2016-9156]


Hazardous Materials: Emergency Restriction/Prohibition Order

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Emergency Restriction/Prohibition Order.

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SUMMARY: This notice provides Emergency Restriction/Prohibition Order 
No. FAA-2016-9156, issued September 16, 2016 to Braille Battery, Inc. 
The Emergency Order prohibits Braille Battery from offering for 
transportation and transporting, any lithium ion battery that is not in 
compliance with the HMR or the International Civil Aviation 
Organization (ICAO) Technical Instructions as permitted in the HMR; 
requires Braille Battery to maintain and make publicly available the 
complete test record issued by the testing facility for each lithium 
ion battery manufactured by Braille Battery proven to meet the criteria 
in part III, sub-section 38.3 of the UN Manual of Tests and Criteria; 
requires Braille Battery to notify third party vendors that may offer 
for transportation, or transport, via air any lithium ion battery 
manufactured by Braille Battery that the third party vendor should not 
offer for transportation, nor transport, via air a Braille Battery 
lithium ion battery until Braille Battery confirms that the lithium ion 
battery is of a design type proven to meet the criteria in part III, 
sub-section 38.3 of the UN Manual of Tests and Criteria; prohibits 
Braille from using any ``hazmat employee'' that has not received 
training in accordance with the HMR; and prohibits Braille Battery from 
offering for transportation, or transporting, by air any hazardous 
materials requiring a DOT specification or UN standard packaging unless 
Braille Battery follows the applicable packing and closure 
instructions.

DATES: Effective Date: The Emergency Restriction/Prohibition Order 
provided in this notice was effective September 16, 2016.

FOR FURTHER INFORMATION CONTACT: Ryan Landers, Office of the Chief 
Counsel, Federal Aviation Administration, 1701 Columbia Ave., College 
Park, GA 30337; telephone: (404) 305-5200; email: ryan.landers@faa.gov.

SUPPLEMENTARY INFORMATION: As required by 49 CFR 109.19(f)(2), the full 
text of Emergency Restriction/Prohibition Order No. FAA-2016-9156 
issued September 16, 2016 is as follows:
    This notice constitutes an Emergency Restriction/Prohibition Order 
(Order) by the United States Department of Transportation (DOT) 
pursuant to 49 U.S.C. 5121(d) and 49 CFR 109.17(a); and pursuant to 
delegation of authority to the Administrator, Federal Aviation 
Administration (Administrator), United States Department of 
Transportation. This Order is issued to Braille Battery, Inc., (Braille 
Battery) 6935 15th St. E Bldg 115, Sarasota, FL 34243. Upon information 
derived from recent Braille Battery lithium ion battery shipments and 
subsequent FAA investigations, the Administrator has found violations 
of the Federal Hazmat law (49 U.S.C. 5101, et seq.) or the Hazardous 
Materials Regulations (HMR) (49 CFR parts 171 to 180); an unsafe 
condition, and that an unsafe practice is causing or otherwise 
constitutes an imminent hazard to the safe transportation of hazardous 
materials. Specifically, Braille Battery's continued offering of 
lithium ion batteries for transport via air that are neither proven to 
meet the criteria in part III, sub-section 38.3 of the UN Manual of 
Tests and Criteria, nor properly classified and packaged, constitutes 
an imminent hazard under 49 U.S.C. 5121(d) and 5102(5). For more 
detailed information see ``Background/Basis for Order'' below.

Effective Immediately Braille Battery

    (1) Shall not offer for transportation, nor transport, via air any 
lithium ion battery that is not in compliance with the HMR or the 
International Civil Aviation Organization (ICAO) Technical Instructions 
as permitted in the HMR. This includes, but is not limited to, all (1) 
lithium ion batteries of a design type that has not been proven to meet 
the criteria in part III, sub-section 38.3 of the UN Manual of Tests 
and Criteria, (2) lithium ion batteries of a type proven to meet the 
criteria in part III, sub-section 38.3 of the UN Manual of Tests and 
Criteria, but exceed the watt-hour (Wh) rating limitations for the 
lithium ion battery type that meets the criteria, and (3) lithium ion 
batteries not properly packaged and prepared in compliance with 49 CFR 
173.185(b) and (c) or the ICAO Technical Instructions.
    (2) Shall, for each lithium ion battery manufactured by Braille 
Battery proven to meet the criteria in part III, sub-section 38.3 of 
the UN Manual of Tests and Criteria, maintain and make publicly 
available the complete test record issued by the testing facility. If 
Braille Battery does not possess the complete test record issued by the 
testing facility for any lithium ion battery it manufactures, Braille 
Battery must immediately contact the testing facility(s) and obtain the 
complete test record. To assist third-party vendors and carriers in 
confirming that Braille Battery lithium ion batteries are in compliance 
with part III, sub-section 38.3 of the UN Manual of Tests and Criteria, 
Braille Battery must make the complete test record by the testing

[[Page 66714]]

facility available via an internet Web site. While this Order is in 
effect and prior to offering or transporting via air, Braille Battery 
must add to the internet Web site any and all new test records obtained 
to show that its lithium ion battery(s) are of a type proven to meet 
the criteria in part III, sub-section 38.3 of the UN Manual of Tests 
and Criteria. Additionally, Braille Battery must provide to the FAA any 
and all new test records showing that its lithium ion battery(s) are of 
a type proven to meet the criteria in part III, sub-section 38.3 of the 
UN Manual of Tests and Criteria prior to offering them for 
transportation, or transporting, via air.
    (3) Shall notify any and all third party vendors that may offer for 
transportation, or transport, via air any lithium ion battery 
manufactured by Braille Battery that the third party vendor should not 
offer for transportation, nor transport, via air a Braille Battery 
lithium ion battery until Braille Battery confirms that the lithium ion 
battery is of a design type proven to meet the criteria in part III, 
sub-section 38.3 of the UN Manual of Tests and Criteria.
    (4) Shall not utilize any ``hazmat employee'' (49 CFR 171.8) not 
properly trained in accordance with the HMR (49 CFR 172.700-704 and/or 
173.185(c)(4)(v)) to perform a specific hazmat function covered by the 
HMR. This includes, but is not limited to, function-specific training 
concerning the requirements specifically applicable to the functions 
the employee performs (49 CFR 172.704(a)(2)). Braille Battery shall not 
utilize any hazmat employee trained per the HMR to perform the 
classification and packing function for air transportation if the 
hazmat employee does not demonstrate the ability to properly classify 
and package a lithium ion battery in compliance with 49 CFR 173.185(b) 
and (c) or the ICAO Technical Instructions.
    (5) Shall not offer for transportation, nor transport, by air any 
hazardous materials requiring a DOT specification or UN standard 
packaging unless Braille Battery follows the applicable packing and 
closure instructions.
    This Order applies to Braille Battery, its officers, directors, 
employees, subcontractors, and agents. This Order is effective 
immediately and remains in effect unless rescinded in writing by the 
Administrator or his designee, or until it otherwise expires by 
operation of law.

Jurisdiction

    The Secretary has the authority to regulate the transportation of 
lithium ion batteries in commerce. 49 U.S.C. 5103(b). The Secretary has 
designated lithium ion batteries, UN 3480, as a hazardous material 
subject to the requirements of the HMR. 49 U.S.C. 5103(a); 49 CFR 
172.101. The Administrator has the authority to carry out the functions 
vested in the Secretary by 49 U.S.C. 5121 relating to the 
transportation or shipment of hazardous materials by air. 49 CFR 
1.83(d)(1). Braille Battery offers for transportation or transports 
hazardous materials in commerce within the United States and therefore 
is a ``person'', as defined by 49 U.S.C. 5102(9), in addition to being 
a ``person'' under 1 U.S.C. 1 and a ``person who offers'' as defined by 
49 CFR 171.8. Commerce is as defined by 49 U.S.C. 5102(1) and 49 CFR 
171.8, and ``transportation'' or ``transport'' are as defined by 49 
U.S.C. 5102(13) and 49 CFR 171.8. Accordingly, Braille Battery is 
subject to the authority and jurisdiction of the Administrator 
including the authority to impose emergency restrictions, prohibitions, 
recalls, or out-of-service orders, without notice or an opportunity for 
hearing, to the extent necessary to abate the imminent hazard. 49 
U.S.C. 5121(d).

Background/Basis for Order

A. Lithium Ion Battery HMR Requirements
    Shipping hazardous materials is inherently dangerous. The HMR and 
the ICAO Technical Instructions requirements for shipping lithium ion 
batteries via air, including the requirements that lithium ion 
batteries be properly classified, packaged, and of a type proven to 
meet the criteria in part III, sub-section 38.3 of the UN Manual of 
Tests and Criteria, are meant to protect people and property. Lithium 
ion batteries not in compliance with these requirements may not be 
offered or transported via air. Braille Battery, as a lithium ion 
battery manufacturer, is responsible for ensuring that each lithium ion 
battery it manufactures is of a type proven to meet the criteria in 
part III, sub-section 38.3 of the UN Manual of Tests and Criteria 
before it is offered for transportation or transported. Furthermore, 
Braille Battery is responsible for ensuring that any lithium ion 
battery it offers for transportation, or transports, via air is 
properly classified and packaged. This Order ensures that Braille 
Battery lithium ion battery shipments will be transported in compliance 
with the HMR or the ICAO Technical Instructions.
B. Braille Battery Lithium Ion Battery Shipments
    Upon reliable and credible information received in the course of 
investigations, the Administrator has learned Braille Battery is 
offering for air transport lithium ion batteries that do not meet the 
HMR or ICAO Technical Instructions requirements. On June 6, 2016, the 
FAA received notice from Federal Express regarding a Federal Express 
delivery truck that caught fire on June 3, 2016. In its notification, 
Federal Express indicated that four separate lithium ion battery 
packages offered by Braille Battery were onboard the delivery truck 
that caught fire. All four packages were offered for air transport and 
were transported via air prior to being loaded on the delivery truck 
that caught fire. Federal Express believes that one of the packages 
caused the fire.\1\
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    \1\ The National Transportation Safety Board is investigating 
the cause of the fire.
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    The FAA began an investigation into Braille Battery's shipment of 
lithium ion batteries. The investigation revealed that Braille Battery 
manufactured and offered for air transport the lithium ion batteries 
onboard the Federal Express delivery truck that caught fire on June 3, 
2016. The investigation also revealed that Braille Battery does not 
have proof that the four Braille Battery lithium ion batteries meet the 
criteria in part III, sub-section 38.3 of the UN Manual of Tests and 
Criteria. Further investigation found that Braille Battery possessed a 
three-page report allegedly issued by Intertek showing that the Braille 
Intensity and Braille Intensity 24v lithium ion batteries meet the 
criteria in part III, sub-section 38.3 of the UN Manual of Tests and 
Criteria. However, Braille Battery could not produce the complete test 
report, and Intertek denies ever testing the Braille Intensity or 
Braille Intensity 24v lithium ion batteries or creating the summary 
report.
    On June 15, 2016, FAA representatives notified Braille Battery that 
it could not transport lithium ion batteries lacking proof that they 
meet the criteria in part III, sub-section 38.3 of the UN Manual of 
Tests and Criteria. Between July 14, 2016 and August 19, 2016, Braille 
Battery offered 20 lithium ion battery shipments for air transport to 
DHL Express. The 20 lithium ion battery shipments offered to DHL 
Express included approximately 103 lithium ion batteries. At least 3 of 
the lithium ion batteries were not of a type proven to meet the 
criteria in part III, sub-section 38.3 of the UN Manual of Tests and 
Criteria. An additional 61 of the 103 lithium ion batteries offered to 
DHL

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Express are currently being investigated to determine if they meet the 
criteria in part III, sub-section 38.3 of the UN Manual of Tests and 
Criteria.
C. Braille Battery Classification and Packaging
    The FAA's investigation also revealed that none of the above-
referenced 103 lithium ion batteries offered to DHL Express were likely 
in compliance with 49 CFR 173.185(b) and (c) or the ICAO Technical 
Instructions. Braille Battery employees who classify, prepare, and 
package lithium ion batteries for shipment fail to understand their 
function-specific requirements of how to properly classify or package a 
lithium ion battery under 49 CFR 173.185(b) and (c) or the ICAO 
Technical Instructions. During a follow-up inspection at Braille 
Battery on September 7-8, 2016, the hazmat employees responsible for 
classification and packaging did not follow the UN specification box 
instructions.
    Braille utilizes three Labelmaster UN specification boxes for 
lithium ion battery air transport shipments: (1) UA121212BSR; (2) 
UA151010BS; and (3) UA151414BS. The hazmat employees performing 
packaging did not follow the instructions for the three UN 
specification boxes. All three UN specification boxes provided the 
following warning as to proper packaging: ``This closure instruction 
includes the assembly procedures for this packaging design. 
Substitution of materials or a change to these closure instructions may 
cause non-compliance with regulations and void the test certification 
for the packaging.''
    The packaging instructions for UN specification boxes UA121212BSR, 
UA151414BS, and UA151010BS all require the use of a liner bag and nylon 
ties around the article. Braille Battery hazmat employees were not 
utilizing the liner bags or nylon ties when packaging lithium ion 
batteries in the UN specification boxes UA121212BSR, UA151414BS, and 
UA151010BS. The packaging instructions for UN specification boxes 
UA121212BSR and UA151010BS also require that an absorbent pad be placed 
in the liner bag. Braille Battery hazmat employees did not understand 
that the absorbent pad was required, and Braille Battery did not 
possess the required absorbent pads when UN specification boxes 
UA121212BSR and UA151010BS were used. Additionally, UN specification 
boxes UA121212BSR and UA151414BS require the use of ``3M 372 tape'' and 
UN specification box UA151010BS requires the use of ``3 mil, 3'' wide 
hot melt tape'' when closing the specification box. Braille Battery did 
not possess the required closure tape for any of the three UN 
specification boxes at any time when Braille Battery used the three UN 
specification boxes in the above-referenced shipments.
    The Braille Battery hazmat employees' failure to properly prepare 
the UN specification boxes for lithium ion battery air shipments 
resulted in the lithium ion battery packages that appeared to carriers 
to be in compliance with the applicable HMR or ICAO Technical 
Instructions, Packing Instruction 965, but were actually not safe for 
air transportation.
D. Finding of Imminent Hazard
    An imminent hazard, as defined by 49 U.S.C. 5102(5) and 49 CFR 
109.1, constitutes the existence of a condition relating to hazardous 
material that presents a substantial likelihood that death, serious 
illness, severe personal injury, or substantial endangerment to health, 
property, or the environment may occur before the reasonably 
foreseeable completion date of a formal proceeding begun to lessen the 
risk of death, illness, injury or endangerment. Shipments of lithium 
ion batteries that do not meet all the HMR or ICAO Technical 
Instructions requirements, including not meeting the criteria in part 
III, sub-section 38.3 of the UN Manual of Tests and Criteria and proper 
classification and packaging, may be of a design or condition that 
cannot be safely transported via air. They may cause an ignition or a 
dangerous evolution of heat or become a fuel source for fire. Just one 
fire incident poses a high risk of death, serious illness, severe 
personal injury, and danger to property and the environment. This risk 
is magnified when the fire or evolution of heat occurs aboard an 
aircraft during flight.
    Further, Braille Battery's overall conditions and practices, 
including Braille Battery's (a) failure to adequately train its 
employees to ship the lithium ion batteries in accordance with the HMR 
and ICAO Technical Instructions, and (b) continued offering for air 
transport lithium ion batteries that were not tested in accordance with 
the UN Manual of Tests and Criteria despite FAA warnings, when taken 
together, constitute an imminent hazard.
    Therefore, each continued offering and transportation of these 
untested, improperly classified and packaged lithium ion batteries 
constitutes an imminent hazard.

Remedial Action

    To eliminate or abate the imminent hazard, Braille Battery must, 
prior to offering for transport or transporting via air, ensure that 
each lithium ion battery fully complies with all HMR or ICAO Technical 
Instructions requirements for lithium ion battery air transport. This 
includes maintaining a record of proof that the lithium ion battery 
type meets the criteria in part III, sub-section 38.3 of the UN Manual 
of Tests and Criteria and notifying third-party vendors that they 
should not ship via air a Braille Battery lithium ion battery of a type 
lacking proof that it meets the criteria in part III, sub-section 38.3 
of the UN Manual of Tests and Criteria. This also includes ensuring 
that Braille Battery air transport shipments containing lithium ion 
batteries are classified and packaged in accordance with the HMR or 
ICAO Technical Instructions. Additionally, while this Order is in 
effect and prior to offering for transport or transporting via air, 
Braille Battery must, adequately demonstrate to the FAA that its 
employees can properly classify and package a lithium ion battery. For 
each DOT or UN specification box Braille Battery intends to use for 
lithium ion battery shipments, Braille Battery employees must 
demonstrate to the FAA that they understand the DOT or UN specification 
box instructions and can successfully package a lithium ion battery 
following those instructions.

Rescission of This Order

    This Order remains in effect until the Administrator determines 
that an imminent hazard no longer exists or a change in applicable 
statute or Federal regulation occurs that supersedes the requirements 
of this Order. Before Braille Battery may offer for transportation and/
or transport any package subject to this Order, Braille Battery must be 
able to adequately demonstrate to the Administrator that its lithium 
ion battery shipments comply with all HMR requirements, including (1) 
having proof that the battery type meets the criteria in part III, sub-
section 38.3 of the UN Manual of Tests and Criteria, and (2) that 
Braille Battery has trained all employees in accordance with how to 
classify and package a lithium ion battery in accordance with 49 CFR 
173.185(b) and (c) or the ICAO Technical Instructions, and (3) Braille 
Battery follows all relevant closure instructions for UN or DOT 
specification packagings. After Braille Battery makes such 
demonstration for all lithium ion battery models it manufactures and 
offers for transportation via air, the Administrator will issue a 
Rescission Order. Until the Administrator has issued the Rescission 
Order, Braille Battery must not offer or

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transport via air any package covered by this Order.

Failure To Comply

    Braille Battery or any person failing to comply with this Order is 
subject to civil penalties up to $179,933 for each violation for each 
day they are found to be in violation (49 U.S.C. 5123). A person 
violating this Order may also be subject to criminal prosecution, which 
may result in fines under title 18, imprisonment of up to ten years, or 
both (49 U.S.C. 5124).

Right To Review

    Any person to whom the Administrator has issued an Emergency Order 
is entitled to review of the order pursuant to 49 U.S.C. 5121(d)(3) and 
in accordance with section 554 of the Administrative Procedure Act 
(APA), 5 U.S.C. 500, et seq. Any petition seeking relief must be filed 
within 20 calendar days of the date of this Order (49 U.S.C. 
5121(d)(3)), and include one copy addressed to the Chief Safety Officer 
(CSO) for the Pipeline and Hazardous Materials Safety Administration, 
United States Department of Transportation, 1200 New Jersey Avenue SE., 
Washington DC 20590-0001 (ATTENTION: Office of Chief Counsel) 
(electronically to PHMSACHIEFCOUNSEL@DOT.GOV) and one copy addressed to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC 20590 (http://Regulations.gov under Docket #FAA-2016-
9156) (49 CFR 109.19). Furthermore, one copy must be addressed to 
Federal Aviation Administration, United States Department of 
Transportation, 800 Independence Avenue SW., Washington DC 20591 
(ATTENTION: Office of Chief Counsel, AGC-1) (49 CFR 109.19).
    A petition for review must state the material facts at issue which 
the petitioner believes dispute the existence of an imminent hazard and 
must include all evidence and exhibits to be considered. The petition 
must also state the relief sought. Within 30 days from the date the 
petition for review is filed, the CSO must approve or deny the relief 
in writing; or find that the imminent hazard continues to exist, and 
extend the original Emergency Order. In response to a petition for 
review, the CSO may grant the requested relief in whole or in part; or 
may order other relief as justice may require (including the immediate 
assignment of the case to the Office of Hearings for a formal hearing 
on the record).
    In order to request a formal hearing in accordance with 5 U.S.C. 
554, the petition must state that a formal hearing is requested and 
must identify the material facts in dispute giving rise to the request 
for a hearing (49 CFR 109.19). A petition which requests a formal 
hearing must include an additional copy addressed to the Chief 
Administrative Law Judge, U.S. Department of Transportation, Office of 
Hearings, M-20, Room E12-320, 1200 New Jersey Avenue SE., Room W12-140, 
Washington, DC 20590 (FAX: (202) 366-7536).

Emergency Contact Official

    If you have any questions concerning this Emergency Restriction/
Prohibition Order, you should call Office of Hazmat Safety, at 202-437-
7651.

    Issued in Washington, DC, on September 22, 2016.
Reginald C. Govan,
Chief Counsel, Federal Aviation Administration.
[FR Doc. 2016-23332 Filed 9-27-16; 8:45 am]
 BILLING CODE 4910-13-P


