From:
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NTSB
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To:
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FAA
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Date:
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3/8/2013
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Response:
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Notation 8477 (Dated 3/8/2013): The National Transportation Safety Board (NTSB) has reviewed the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) notice of proposed rulemaking (NPRM), “Hazardous Materials: Transportation of Lithium Batteries.” The notice requested additional comments about the impact of changes to the requirements for the air transport of lithium 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 the Hazardous Materials Regulations (HMR). The NTSB notes that 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, when transporting lithium batteries domestically by air. The NTSB further notes that PHMSA is seeking comment on whether to require mandatory compliance with the ICAO Technical Instructions for all shipments of lithium batteries by air, both foreign and domestic. The NTSB believes that allowing domestic cargo shippers and carriers to choose between alternative standards for transporting lithium batteries would place carriers at greater risk when transporting such cargo in accordance with US regulations that currently provide less protection than the ICAO Technical Instructions.
On April 14, 2010, the NTSB provided comments on the January 11, 2010, NPRM. The 2010 NPRM proposed new requirements to address NTSB Safety Recommendations A-07-104, A-07-105, and A-07-107 through -109 that were issued as a result of the NTSB investigation of the February 7, 2006, in-flight cargo fire on a United Parcel Service Company (UPS) cargo airplane at Philadelphia International Airport in Philadelphia, Pennsylvania. The 2010 NPRM acknowledged that under the HMR, materials that pose a specific and serious air transportation risk are regulated more stringently than materials that pose less of a risk when transported by air, with lithium batteries being the current exception to this standard. Included in the proposals at that time was the elimination of regulatory exemptions for packages of small lithium batteries. The NTSB stated that cargo shipments of small lithium batteries should be subject to the same packaging and identification requirements that apply to medium and large lithium batteries to increase the awareness of the risks associated with these batteries and to alert package handlers to exercise greater care when loading and unloading packages containing them. In its 2010 comments, the NTSB fully supported the proposal to eliminate exceptions for small lithium batteries, believing that implementation would have satisfied the intent of the following safety recommendation to PHMSA:
Eliminate regulatory exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries (no more than 8 grams equivalent lithium content) until the analysis of the failures and the implementation of risk-based requirements asked for in Safety Recommendation A-07-108 are completed. (A-07-109)
The NTSB recognizes that PHMSA was barred from implementing its original proposal to eliminate small lithium battery air cargo transport exceptions because of provisions in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 that prohibit PHMSA from imposing requirements that are more stringent than the ICAO Technical Instructions.
Since commenting on the 2010 NPRM, the NTSB has been involved in the investigation of two additional catastrophic in-flight cargo fires on aircraft that were transporting large quantities of lithium batteries. On September 3, 2010, a Boeing 747-400F, operated by UPS, crash landed at a military base in Dubai, United Arab Emirates, while the crew was trying to return to the airport for an emergency landing due to a fire in the main deck cargo compartment. Both crewmembers died as a result of injuries sustained during the crash, and the aircraft was a total loss. On July 28, 2011, a Boeing 747-400F, operated by Asiana Cargo, crashed about 70 miles west of Jeju Island, Republic of Korea, after the flight crew declared an emergency due to a cargo fire and attempted to divert to Jeju International Airport. Again, both crewmembers died as result of injuries sustained during the crash, and the aircraft was a total loss.
Based on these ongoing accident investigations, the NTSB remains concerned about the risks to aircraft flight crews from in-flight fires involving lithium batteries. These investigations also prompted the NTSB to issue Safety Recommendations A-12-68 through -70 on November 28, 2012, to the FAA. These recommendations were issued to improve the early detection of fires originating in cargo containers and pallets, to develop materials standards for cargo containers that provide better fire resistance, and to require active fire-suppression systems in all cargo compartments or containers.
Meanwhile, the current HMR for domestic air cargo transport continue to allow many small lithium batteries to be transported as general cargo without the safety precautions that are provided for other common hazardous materials. Under current regulations, certain shipments of small batteries are exempt from hazardous materials packaging and identification requirements. These exemptions potentially permit large quantities of unidentified small lithium battery shipments on board both cargo and passenger aircraft, while the revised ICAO Technical Instructions substantially reduce the sizes of small lithium batteries that are subject to regulation. Lithium battery shipments in aircraft are increasing in number, and batteries are increasing in energy density. Recent incidents and research continue to show that lithium battery failures (regardless of the source or cause) can release flammable electrolyte or result in violent, high temperature reactions that can ignite combustible or flammable material nearby or further fuel an existing fire.
The PHMSA final rule incorporated the ICAO Technical Instructions by reference, thus permitting, but not mandating, domestic lithium battery shipments to be transported by air in accordance with the international standards (except where the HMR prohibit primary lithium batteries and unapproved prototype lithium batteries and cells aboard passenger carrying aircraft). The ICAO Technical Instructions increased restrictions for shipment of lithium batteries by significantly decreasing the excepted quantity permitted in international cargo shipments. If the HMR are harmonized with the ICAO Technical Instructions, a significantly larger number of fully regulated domestic air cargo shipments of lithium batteries would be subject to the greater level of safety provided by specification packaging requirements and United Nations safety testing, labeling, and hazard communication standards. Complying with such increased safety requirements and standards would reduce the risks associated with transporting these materials.
The NPRM Question 1 asks if any unintended consequences are anticipated if PHMSA authorizes the use of the ICAO Technical Instructions as an optional method of compliance with the HMR and does not issue a final rule revising the HMR to require domestic shipments of lithium batteries to comply with the provisions specified in the ICAO Technical Instructions. The NTSB strongly believes that unintended negative consequences would result if shippers and carriers were permitted to choose compliance with alternative standards for domestic cargo shipments as suggested in the NPRM. Such action would undermine the safety benefit offered by the improved ICAO Technical Instructions. Domestic carriers who choose not to apply the ICAO Technical Instructions would be placed at higher risk of cargo fires than their foreign competitors because of the current disparity between requirements in the HMR and the ICAO Technical Instructions. Failure to require domestic shipments of lithium batteries to comply with regulations equivalent to the international provisions would also place the United States in an inexplicable position of having weaker safety standards at a time when it should be leading the way in response to serious safety concerns about transporting these materials.
The NPRM would be improved if the excepted amounts authorized by the HMR are at least consistent with the provisions in the ICAO Technical Instructions. The proposal should require that all lithium batteries, consistent with current ICAO packaging criteria, such as battery power, size, and quantity limitations in air transportation, be regulated as class 9 materials and subjected to the requirements of Title 49 Code of Federal Regulations 173.185, including packaging standards and hazard communication requirements. Adoption of this proposal would reduce the risk of lithium battery fires during shipment.
The proposal also should require personnel involved in packaging and shipping lithium batteries to be properly trained in their respective hazardous materials handling functions. The proposal should further ensure that these packages are clearly labeled, providing a visible indication of the presence of hazardous materials for flight crews, cargo handlers, and emergency responders. Finally, the proposal should ensure that all lithium battery shipments are listed on the Notice to Pilot in Command or hazardous materials cargo manifest to inform flight crews about the quantity, location, and type of lithium batteries on board an aircraft.
The NTSB appreciates the opportunity to comment on the notice.
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