Interpretation Response #14-0217 ([Southwest Airlines Co.] [Mr. Ben Pritchett])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: Southwest Airlines Co.
Individual Name: Mr. Ben Pritchett
Location State: TX Country: US
View the Interpretation Document
Response text:
May 8, 2015
Mr. Ben Pritchett
Hazardous Material Specialist
Southwest Airlines Co.
P.O. Box 36611, HDQ-1SE
Dallas, TX 75235
Reference No. 14-0217
Dear Mr. Pritchett:
This responds to your November 10, 2014 email regarding the transportation of a passenger-provided lithium ion battery-powered mobility aid under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) with regards to its determination as an assistive device under the Department’s aviation disability regulation, 14 CFR Part 382 (Part 382).
In the scenario provided, a passenger offers for transport as checked baggage, a diver propulsion vehicle equipped with two lithium ion batteries rated at 296 watt hours (Wh) each. This device is used for propelling a scuba diver through water. To determine if this device met the criteria for an assistive device under Part 382, we contacted the Department’s Office of Aviation Enforcement and Proceedings (Enforcement Office) for clarification. The Enforcement Office explains that Part 382 defines an assistive device as any piece of equipment that assists a passenger with a disability to hear, see, communicate, or perform other functions of daily life. Devices that assist a person with a disability to engage in recreational activities do not qualify as an assistive device for the purpose of Part 382. However, if the device is necessary for work then it would be considered an assistive device as major life activities include not only hearing, seeing, and walking but also working. As such, airlines would only be required to treat the diver propulsion vehicle as an assistive device if the qualified individual with a disability is a diver by profession or needs the device for the purpose of carrying out professional activities (e.g., a professional photographer). Airlines are required to transport qualified assistive devices free of charge.
You ask if the ACPD does not require carriers to accept a device as an assistive device under 14 CFR Part 382, would PHMSA prohibit a carrier from accepting the same device for transport under the exceptions for passengers in 49 CFR § 175.10.
In a final rule published on January 19, 2011 (76 FR 3308; HM-215K), § 175.10(a)(17) of the HMR was revised to authorize lithium ion battery-powered mobility aids (e.g., wheelchairs). This authorization was intended to mirror the provisions in Part 8 of the International Civil Aviation Organization’s (ICAO) Technical Instructions (TI) that allow carriage of a passenger-provided mobility aid powered by a lithium ion battery. The ICAO TI in Part 8, Table 8-1, describe mobility aids as “Mobility aids (e.g. wheelchairs) powered by lithium ion batteries, for use by passengers whose mobility is restricted by either a disability, their health or age, or a temporary mobility problem (e.g. broken leg).” While this descriptive text is not included in the HMR, the provisions of § 175.10(a)(17) apply to “a wheelchair or other mobility aid” and this wording is intended to connote that the mobility aid is related to an assistive need. Therefore, unless the passenger offering the diver propulsion vehicle has a mobility-related disability that is aided by the use of the device and needs the device for working, it is the opinion of this Office that it would not meet the intent of an assistive device under Part 382 or the mobility aid exceptions for passengers in 49 CFR § 175.10 and should be offered for transport as cargo. Equipment powered by lithium ion batteries must be consigned under the entries “Lithium ion batteries,” “Lithium ion batteries contained in equipment” or “Lithium ion batteries packed with equipment” as appropriate.
I trust this information is helpful. If you have further questions, please do not hesitate to contact this office.
Sincerely,
Duane A. Pfund
International Standards Coordinator
Standards and Rulemaking Division
175.10, 175.10(a)(17)