
[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Proposed Rules]
[Pages 1119-1120]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31244]



  Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / 
Proposed Rules  

[[Page 1119]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172, 173, and 175

[Docket No. PHMSA-2009-0095 (HM-224F)]
RIN 2137-AE44


Hazardous Materials: Transportation of Lithium Batteries

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking; request for additional comment.

-----------------------------------------------------------------------

SUMMARY: In this document, PHMSA is seeking additional comment on the 
impact of changes to the requirements for the air transport of lithium 
cells and batteries that have been adopted into the 2013-2014 
International Civil Aviation Organization Technical Instructions on the 
Transport of Dangerous Goods by Air (ICAO Technical Instructions), and 
subsequently incorporated by reference in a final rule published 
elsewhere in this issue of the Federal Register. PHMSA is considering 
the long-term impacts of permitting shippers and carriers to choose 
between compliance with the existing HMR, or compliance with the ICAO 
Technical Instructions 2013-2014 edition, when transporting batteries 
domestically by air. Incorporation by reference of the 2013-2014 
Edition of the ICAO Technical Instructions will allow each shipper and 
carrier to choose the method of compliance that is most appropriate for 
its operation; likewise, each shipper and carrier will have the 
responsibility to ensure that the proper method of compliance is chosen 
for each shipment, since the chosen method may not comply with the ICAO 
Technical Instructions. PHMSA is seeking supplemental comments to our 
January 11, 2010, Notice of Proposed Rulemaking (NPRM) and our April 
11, 2012, request for additional comment in light of the publication of 
the HM-215L final rule. Specifically, PHMSA is seeking comment on 
whether to require mandatory compliance with the 2013-2014 ICAO 
Technical Instructions for all shipments of lithium batteries by air, 
both foreign and domestic. Based on the comments received, PHMSA may 
issue a final rule to revise the HMR to reflect the lithium battery 
provisions specified in the 2013-2014 Edition of the ICAO Technical 
Instructions.

DATES: Comments must be received by March 8, 2013.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2009-0095 (HM-224F) by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To the Docket Management System; Room W12-
140 on the ground floor of the West Building, 1200 New Jersey Avenue 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. To avoid 
duplication, please use only one of these four methods. All comments 
received will be posted without change to http://www.regulations.gov 
and will include any personal information you provide.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505/pdf.

FOR FURTHER INFORMATION CONTACT: Charles E. Betts or Kevin A. Leary, 
Standards and Rulemaking Division, Pipeline and Hazardous Materials 
Safety Administration, telephone (202) 366-8553; Michael Locke, Program 
Development Division, Pipeline and Hazardous Materials Safety 
Administration, telephone (202) 366-1074.

SUPPLEMENTARY INFORMATION: 

Background

HM-224F Notice of Proposed Rulemaking (NPRM)

    On January 11, 2010, PHMSA, in consultation with the Federal 
Aviation Administration (FAA), issued a Notice of Proposed Rulemaking 
(NPRM) under Docket HM-224F (75 FR 1302, RIN 2137-AE44) proposing to 
amend requirements in the Hazardous Materials Regulations (HMR) on the 
transportation of lithium cells and batteries, including lithium cells 
and batteries packed with or contained in equipment.

HM-224 Request for Additional Comment

    In the spring of 2012, the ICAO Dangerous Goods Panel incorporated 
into the 2013-2014 Edition of the ICAO Technical Instructions certain 
changes applicable to the air transport of lithium cells and batteries. 
Accordingly, on April 11, 2012, PHMSA issued a subsequent notice 
requesting additional comment on the expected costs and benefits of 
adopting these changes into the HMR (77 FR 21714). While the commenters 
supported harmonization of the HMR with the 2013-2014 ICAO Technical 
Instructions, several commenters expressed uncertainty whether the 
requirements in 2013-2014 ICAO Technical Instructions were replacing 
the proposals in PHMSA's January 11, 2010 NPRM.
    As a result of changes to the ICAO Technical Instructions over the 
past two years, and the statutory prohibition contained within the FAA 
Modernization and Reform Act of 2012 (Sec.  828, Pub. L. 112-95; 126 
Stat. 133 (Feb 14, 2012), PHMSA is no longer considering many of the 
provisions in the January 11, 2010 notice of proposed rulemaking.
    PHMSA received many comments on issues related to harmonization 
with ICAO Technical Instructions in its April 2012 notice; PHMSA will 
respond to all of those comments, as well as the comments on the 
January 2010 NPRM, in this same docket at a later date. However, in 
order to focus the comments in this notice on the few remaining issues 
where we would like to receive additional information, we are not 
seeking further comment on the following issues at this time:

--Replacing the equivalent lithium content requirements for lithium ion 
cells and batteries with Watt-hours consistent with international 
standards;
--Provisions for ``small'' and ``medium'' size lithium cells and 
batteries;
--Provisions for shipments of prototype lithium ion batteries in 
vehicles;
--Provisions for shipments of ``small production'' and prototype 
lithium cells and batteries consistent with the IMDG Code and ICAO 
Technical Instructions;

[[Page 1120]]

--Provisions for the transport of damaged, defective and recalled 
lithium batteries; and
--Harmonization of the relevant lithium battery proper shipping names 
and descriptions listed in the Hazardous Materials Table with those 
listed in the IMDG Code and ICAO Technical Instructions.

HM-215L Notice of Proposed Rulemaking (NPRM) and Final Rule

    On August 15, 2012, PHMSA published an NPRM under Docket HM-215L 
(PHMSA-2012-0027; 77 FR 49168) that did not propose any specific 
amendments regarding the requirements for the air transportation and 
handling of lithium batteries. However, the NPRM did propose the 
incorporation by reference of the 2013-2014 Edition of the ICAO 
Technical Instructions, which addresses the air transportation of 
lithium batteries. In the final rule issued under Docket HM-215L 
(PHMSA-2012-0027) published elsewhere in this issue of the Federal 
Register, PHMSA incorporated the 2013-2014 Edition of the ICAO 
Technical Instructions by reference. Accordingly, for purposes of the 
HMR, a shipment of lithium batteries are permitted to be transported by 
air in accordance with the 2013-2014 Edition of the ICAO Technical 
Instructions (with the exception of primary lithium batteries and cells 
aboard passenger carrying aircraft and unapproved prototype lithium 
batteries and cells aboard passenger carrying aircraft), or the 
applicable requirements currently specified in the HMR (see Sec.  
171.24(d)(1)(ii) and (iii)). Incorporation by reference of the 2013-
2014 Edition of the ICAO Technical Instructions provides shippers and 
carriers with the flexibility to choose the method of compliance most 
appropriate for their operation and transportation scenario. However, 
it also places the responsibility to ensure that the proper method is 
chosen for each shipment, as domestic requirements may differ from 
those contained in the 2012-2014 Edition of the ICAO Technical 
Instructions. In the HM-215L final rule, PHMSA noted that it ``is 
requesting additional comment on various issues related to the air 
transportation and handling of lithium batteries in a separate 
Notice.'' This Notice is the notice referenced in the HM-215L final 
rule.

Request for Information

    Under the Docket HM-215L final rule published elsewhere in this 
issue of the Federal Register, shipments of lithium batteries may be 
prepared in accordance with the ICAO Technical Instructions, 2013-2014 
Edition (subject to the additional conditions specified in Sec.  
171.24(d)(1)(ii) and (iii)) or the applicable requirements currently 
specified in the HMR. Incorporating the 2013-2014 ICAO Technical 
Instructions into the HMR authorizes the use of these standards, but 
without additional action, differing domestic standards will remain in 
the HMR.
    In this document, PHMSA now seeks comments on potential amendments 
to the appropriate sections of the HMR consistent with provisions in 
the 2013-2014 ICAO Technical Instructions, not to the provisions 
proposed in the January 11, 2010, NPRM, as PHMSA is currently 
prohibited by the FAA Modernization and Reform Act of 2012 from 
imposing requirements more stringent than the ICAO standards.
    PHMSA seeks qualitative and quantitative information from the 
public on the following questions. In your comments please refer to the 
specific question number(s) to which you are responding.
    1. Do you anticipate any unintended consequences for shippers or 
carriers if PHMSA authorizes the use of the 2013-2014 ICAO Technical 
Instructions as an optional method of compliance with the HMR, but does 
not issue a final rule revising the HMR to require domestic shipments 
of lithium batteries to comply with the lithium battery provisions 
specified in the 2013-2014 Edition of the ICAO Technical Instructions? 
Please note that, HM-215L final rule allows compliance with the current 
HMR to be met through voluntary compliance with the ICAO Technical 
Instructions.
    2. As adopted in the HM-215L final rule, which individuals, and how 
many, will chose to comply with the ICAO Technical Instructions 2013-
2014 Edition (except those specified in Sec. Sec.  171.24(d)(1)(ii) and 
171.24(d)(1)(iii)) as opposed to the current requirements of the HMR?
    3. Do you anticipate confusion and/or inappropriately packaged/
prepared shipments if PHMSA were to authorize the use of the 2013-2014 
ICAO Technical Instructions, but does not issue a final rule revising 
the HMR to require compliance with the specific lithium battery 
provisions with those contained in the 2013-2014 Edition of the ICAO 
Technical Instructions? If so, which entities would be confused and 
what specifically would cause confusion? If you believe there will be 
confusion, under what circumstances and over what period of time would 
you expect such confusion or errors to occur? Are there ways to 
mitigate such problems without adding additional regulatory burdens?
    4. What changes, if any, would be made to shipments and/or 
operational processes if PHMSA were to require compliance with the 
applicable provisions for lithium batteries specified in the 2013-2014 
Edition of the ICAO Technical Instructions? Specifically, what costs 
and/or benefits (if any) would result if PHMSA were to publish a final 
rule that adopts the lithium battery provisions of the 2013-2014 ICAO 
Technical Instructions into the HMR? If there would be any costs or 
benefits, if possible, please provide data to support the comments. As 
noted above, this final rule would replace the proposals in the January 
11, 2010, NPRM.
    5. What are the benefits of allowing shippers and carriers the 
option to choose between alternative standards, depending on the type 
of shipment? How do these benefits from flexibility compare to the 
benefits of requiring a single standard? Are there any disadvantages or 
costs to allowing domestic shipments to follow a standard specific to 
domestic shipments?

Comments should be directed to the docket for the lithium battery 
rulemaking, which can be found at http://www.regulations.gov under 
docket number PHMSA-2009-0095.

    Issued in Washington, DC, on December 21, 2012 under authority 
delegated in 49 CFR part 106.
R. Ryan Posten,
Deputy Associate Administrator, Office of Hazardous Materials Safety, 
Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2012-31244 Filed 12-31-12; 4:15 pm]
BILLING CODE 4910-60-P


