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1119Federal Register / Vol. 78, No. 4/ Monday, January 7, 2013/ Proposed Rules

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous MaterialsSafety Administration

49 CFR Parts 172, 173, and 175

[Docket No. PHMSA20090095 (HM224F)]

RIN 2137AE44

Hazardous Materials: Transportation ofLithium Batteries

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

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

SUMMARY: In this document, PHMSA isseeking additional comment on theimpact of changes to the requirementsfor the air transport of lithium cells and

batteries that have been adopted into the

20132014 International Civil AviationOrganization Technical Instructions onthe Transport of Dangerous Goods byAir (ICAO Technical Instructions), andsubsequently incorporated by referencein a final rule published elsewhere inthis issue of the Federal Register.PHMSA is considering the long-termimpacts of permitting shippers andcarriers to choose between compliancewith the existing HMR, or compliancewith the ICAO Technical Instructions20132014 edition, when transporting

batteries domestically by air.Incorporation by reference of the 2013

2014 Edition of the ICAO TechnicalInstructions will allow each shipper andcarrier to choose the method ofcompliance that is most appropriate forits operation; likewise, each shipper andcarrier will have the responsibility toensure that the proper method ofcompliance is chosen for eachshipment, since the chosen method maynot comply with the ICAO TechnicalInstructions. PHMSA is seekingsupplemental comments to our January11, 2010, Notice of ProposedRulemaking (NPRM) and our April 11,2012, request for additional comment inlight of the publication of the HM215Lfinal rule. Specifically, PHMSA isseeking comment on whether to requiremandatory compliance with the 20132014 ICAO Technical Instructions for allshipments of lithium batteries by air,

both foreign and domestic. Based on thecomments received, PHMSA may issuea final rule to revise the HMR to reflectthe lithium battery provisions specifiedin the 20132014 Edition of the ICAOTechnical Instructions.

DATES: Comments must be received byMarch 8, 2013.

ADDRESSES: You may submit commentsidentified by the docket numberPHMSA20090095 (HM224F) by anyof the following methods:

Federal eRulemaking Portal:http://www.regulations.gov.Follow theinstructions for submitting comments.

Fax:12024932251. Mail:Docket Management System;

U.S. Department of Transportation,West Building, Ground Floor, RoomW12140, Routing Symbol M30, 1200New Jersey Avenue SE., Washington,DC 20590.

Hand Delivery:To the DocketManagement System; Room W12140on the ground floor of the WestBuilding, 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 mustinclude the agency name and docketnumber for this notice at the beginningof the comment. To avoid duplication,please use only one of these fourmethods. All comments received will beposted without change to http://www.regulations.govand will includeany personal information you provide.

Docket:For access to the dockets toread background documents orcomments received, go to http://www.regulations.govor DOTs DocketOperations Office (see ADDRESSES).

Privacy Act:Anyone is able to searchthe electronic form of any writtencommunications and commentsreceived into any of our dockets by thename of the individual submitting the

document (or signing the document, ifsubmitted on behalf of an association,

business, labor union, etc.). You mayreview DOTs complete Privacy ActStatement in the Federal Registerpublished on April 11, 2000 (65 FR19477) or you may visit http://www.gpo.gov/fdsys/pkg/FR20000411/pdf/008505/pdf.FOR FURTHER INFORMATION CONTACT:Charles E. Betts or Kevin A. Leary,Standards and Rulemaking Division,Pipeline and Hazardous Materials SafetyAdministration, telephone (202) 3668553; Michael Locke, Program

Development Division, Pipeline andHazardous Materials SafetyAdministration, telephone (202) 3661074.

SUPPLEMENTARY INFORMATION:

Background

HM224F Notice of ProposedRulemaking (NPRM)

On January 11, 2010, PHMSA, inconsultation with the Federal AviationAdministration (FAA), issued a Noticeof Proposed Rulemaking (NPRM) under

Docket HM224F (75 FR 1302, RIN2137AE44) proposing to amendrequirements in the HazardousMaterials Regulations (HMR) on thetransportation of lithium cells and

batteries, including lithium cells andbatteries packed with or contained inequipment.

HM224 Request for AdditionalComment

In the spring of 2012, the ICAODangerous Goods Panel incorporatedinto the 20132014 Edition of the ICAOTechnical Instructions certain changesapplicable to the air transport of lithiumcells and batteries. Accordingly, onApril 11, 2012, PHMSA issued asubsequent notice requesting additionalcomment on the expected costs and

benefits of adopting these changes intothe HMR (77 FR 21714). While thecommenters supported harmonizationof the HMR with the 20132014 ICAO

Technical Instructions, severalcommenters expressed uncertaintywhether the requirements in 20132014ICAO Technical Instructions werereplacing the proposals in PHMSAs

January 11, 2010 NPRM.

As a result of changes to the ICAOTechnical Instructions over the past twoyears, and the statutory prohibitioncontained within the FAAModernization and Reform Act of 2012( 828, Pub. L. 11295; 126 Stat. 133(Feb 14, 2012), PHMSA is no longerconsidering many of the provisions inthe January 11, 2010 notice of proposed

rulemaking.PHMSA received many comments on

issues related to harmonization withICAO Technical Instructions in its April2012 notice; PHMSA will respond to allof those comments, as well as thecomments on the January 2010 NPRM,in this same docket at a later date.However, in order to focus thecomments in this notice on the fewremaining issues where we would liketo receive additional information, weare not seeking further comment on thefollowing issues at this time:

Replacing the equivalent lithium

content requirements for lithium ioncells and batteries with Watt-hoursconsistent with internationalstandards;

Provisions for small and mediumsize lithium cells and batteries;

Provisions for shipments of prototypelithium ion batteries in vehicles;

Provisions for shipments of smallproduction and prototype lithiumcells and batteries consistent with theIMDG Code and ICAO TechnicalInstructions;

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Provisions for the transport ofdamaged, defective and recalledlithium batteries; and

Harmonization of the relevant lithiumbattery proper shipping names anddescriptions listed in the HazardousMaterials Table with those listed inthe IMDG Code and ICAO Technical

Instructions.HM215L Notice of ProposedRulemaking (NPRM) and Final Rule

On August 15, 2012, PHMSApublished an NPRM under Docket HM215L (PHMSA20120027; 77 FR49168) that did not propose any specificamendments regarding the requirementsfor the air transportation and handlingof lithium batteries. However, theNPRM did propose the incorporation byreference of the 20132014 Edition ofthe ICAO Technical Instructions, whichaddresses the air transportation of

lithium batteries. In the final rule issuedunder Docket HM215L (PHMSA20120027) published elsewhere in this issueof the Federal Register, PHMSAincorporated the 20132014 Edition ofthe ICAO Technical Instructions byreference. Accordingly, for purposes ofthe HMR, a shipment of lithium

batteries are permitted to be transportedby air in accordance with the 20132014Edition of the ICAO TechnicalInstructions (with the exception ofprimary lithium batteries and cellsaboard passenger carrying aircraft andunapproved prototype lithium batteries

and cells aboard passenger carryingaircraft), or the applicable requirementscurrently specified in the HMR (see 171.24(d)(1)(ii) and (iii)).Incorporation by reference of the 20132014 Edition of the ICAO TechnicalInstructions provides shippers andcarriers with the flexibility to choose themethod of compliance most appropriatefor their operation and transportationscenario. However, it also places theresponsibility to ensure that the propermethod is chosen for each shipment, asdomestic requirements may differ fromthose contained in the 20122014Edition of the ICAO Technical

Instructions. In the HM215L final rule,PHMSA noted that it is requestingadditional comment on various issuesrelated to the air transportation andhandling of lithium batteries in aseparate Notice. This Notice is the

notice referenced in the HM215L finalrule.

Request for Information

Under the Docket HM215L final rulepublished elsewhere in this issue of theFederal Register, shipments of lithium

batteries may be prepared in accordancewith the ICAO Technical Instructions,

20132014 Edition (subject to theadditional conditions specified in 171.24(d)(1)(ii) and (iii)) or theapplicable requirements currentlyspecified in the HMR. Incorporating the20132014 ICAO Technical Instructionsinto the HMR authorizes the use of thesestandards, but without additionalaction, differing domestic standards willremain in the HMR.

In this document, PHMSA now seekscomments on potential amendments tothe appropriate sections of the HMRconsistent with provisions in the 20132014 ICAO Technical Instructions, notto the provisions proposed in the

January 11, 2010, NPRM, as PHMSA iscurrently prohibited by the FAAModernization and Reform Act of 2012from imposing requirements morestringent than the ICAO standards.

PHMSA seeks qualitative andquantitative information from the publicon the following questions. In yourcomments please refer to the specificquestion number(s) to which you areresponding.

1. Do you anticipate any unintendedconsequences for shippers or carriers ifPHMSA authorizes the use of the 20132014 ICAO Technical Instructions as an

optional method of compliance with theHMR, but does not issue a final rulerevising the HMR to require domesticshipments of lithium batteries tocomply with the lithium batteryprovisions specified in the 20132014Edition of the ICAO TechnicalInstructions? Please note that, HM215Lfinal rule allows compliance with thecurrent HMR to be met throughvoluntary compliance with the ICAOTechnical Instructions.

2. As adopted in the HM215L finalrule, which individuals, and how many,will chose to comply with the ICAOTechnical Instructions 20132014Edition (except those specified in 171.24(d)(1)(ii) and 171.24(d)(1)(iii))as opposed to the current requirementsof the HMR?

3. Do you anticipate confusion and/orinappropriately packaged/prepared

shipments if PHMSA were to authorizethe use of the 20132014 ICAOTechnical Instructions, but does notissue a final rule revising the HMR torequire compliance with the specificlithium battery provisions with thosecontained in the 20132014 Edition ofthe ICAO Technical Instructions? If so,which entities would be confused and

what specifically would causeconfusion? If you believe there will beconfusion, under what circumstancesand over what period of time would youexpect such confusion or errors tooccur? Are there ways to mitigate suchproblems without adding additionalregulatory burdens?

4. What changes, if any, would bemade to shipments and/or operationalprocesses if PHMSA were to requirecompliance with the applicableprovisions for lithium batteriesspecified in the 20132014 Edition ofthe ICAO Technical Instructions?

Specifically, what costs and/or benefits(if any) would result if PHMSA were topublish a final rule that adopts thelithium battery provisions of the 20132014 ICAO Technical Instructions intothe HMR? If there would be any costs or

benefits, if possible, please provide datato support the comments. As notedabove, this final rule would replace theproposals in the January 11, 2010,NPRM.

5. What are the benefits of allowingshippers and carriers the option tochoose between alternative standards,depending on the type of shipment?

How do these benefits from flexibilitycompare to the benefits of requiring asingle standard? Are there anydisadvantages or costs to allowingdomestic shipments to follow a standardspecific to domestic shipments?

Comments should be directed to thedocket for the lithium batteryrulemaking, which can be found athttp://www.regulations.govunderdocket number PHMSA20090095.

Issued in Washington, DC, on December21, 2012 under authority delegated in 49 CFRpart 106.

R. Ryan Posten,Deputy Associate Administrator, Office ofHazardous Materials Safety, Pipeline andHazardous Materials Safety Administration.

[FR Doc. 201231244 Filed 123112; 4:15 pm]

BILLING CODE 491060P

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