PHMSA Signals Intent to Adopt ICAO Ban on Bulk Shipments of Lithium Ion Batteries as Cargo on U.S. Passenger Aircraft

by Beveridge & Diamond PC
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Summary: The Pipeline and Hazardous Materials Safety Administration issued a safety advisory notice indicating that the agency may soon adopt a ban on bulk shipments of lithium ion batteries shipped alone as cargo on passenger aircraft.  Congress is also considering legislation that would have the same effect.  Manufacturers, distributors, retailers, and end users of electronic equipment should closely monitor these developments to ensure they remain in compliance with evolving lithium ion battery regulations.

On April 7, 2016, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) released a safety advisory notice signaling that the agency may amend its Hazardous Materials Regulations to align with the recent International Civil Aviation Organization (“ICAO”) decision to ban bulk shipments of lithium ion batteries (i.e., shipments of lithium ion batteries not contained in or packed with equipment) as cargo on passenger aircraft.  PHMSA’s safety advisory notice refers to the ICAO’s February 22, 2016 decision to place an interim ban on bulk shipments of lithium ion batteries as cargo on passenger aircraft, which became effective on April 1, 2016.  The ICAO Council adopted this aviation safety measure after the ICAO’s top technical body, the Air Navigation Commission, recommended a ban on these shipments.  For information on ICAO’s ban, please see our Alert: ICAO Bans Bulk Shipments of Lithium Batteries as Cargo on Passenger Aircraft (Feb. 26, 2016).

PHMSA’s safety advisory notice cites research indicating that the fire suppression capabilities of an aircraft may be overwhelmed by heat and flames caused by “thermal runaway” in packages of lithium ion batteries, which could lead to a “catastrophic loss of the aircraft because of a fire that cannot be contained or suppressed.”  Research conducted by the U.S. Federal Aviation Administration (“FAA”) highlighted concerns that the cargo compartment fire protection standards for passenger aircraft are not designed to address the unique hazards associated with the transport of lithium batteries.  

Based on this research and ICAO’s ban, PHMSA is considering amendments to its Hazardous Materials Regulations that would prohibit the transport of lithium ion cells and batteries as cargo aboard passenger carrying aircraft.  Like the ICAO’s ban, PHMSA’s regulations would likely apply only to lithium cells and batteries that are not packed with or contained in equipment when transported as cargo.  PHMSA is also considering ICAO’s requirement that lithium ion cells and batteries be shipped at a state of charge of no more than 30 percent of their rated capacity when transported on cargo aircraft.  In addition, PHMSA may amend its regulations to limit the transportation of small lithium ion and lithium metal batteries on cargo aircraft to one package of such batteries per consignment or overpack.

While PHMSA considers adopting the ICAO’s ban, Congress may pass legislation requiring the U.S. Department of Transportation (“DOT”) and PHMSA to harmonize the lithium battery provisions of the U.S. Hazardous Materials Regulations with the ICAO Technical Instructions (“ICAO-TI”) as a part of a broader package to reauthorize the FAA.  Both the U.S. House of Representatives and the U.S. Senate are considering FAA reauthorization bills:   

  • House of Representatives Bill.  On February 3, 2016, H.R. 4441, the Aviation Innovation, Reform, and Reauthorization Act of 2016, was introduced in the U.S. House of Representatives, which includes specific provisions regarding the transport of lithium batteries.  H.R. 4441 would direct DOT to adopt and implement amendments to the ICAO-TI related to lithium ion battery shipments as cargo on passenger aircraft into the U.S. Hazardous Materials Regulations.  More specifically, H.R. 4441 would require DOT to harmonize the Hazardous Materials Regulations with the ICAO-TI, and prohibit DOT from adopting regulations on lithium ion cells or batteries that are more stringent than those in the ICAO-TI.  According to the language in H.R. 4441, DOT “may not issue or enforce any regulation or other requirement regarding the transportation by aircraft of lithium ion cells or batteries, whether transported separately or packed with or contained in equipment, if the requirement is more stringent than the requirements of the ICAO Technical Instructions.”  Members of the retail, electronics, and medical device industries expressed their support for H.R. 4441’s lithium battery transport provisions, including harmonization with the ICAO-TI.   
  • Senate Bill On March 9, 2016, S. 2658, the Federal Aviation Administration Reauthorization Act of 2016, was introduced in the U.S. Senate Committee on Commerce, Science, and Transportation, and includes similar provisions regarding air transport of lithium ion batteries on passenger aircraft.  Section 2317 of S. 2658 would require the FAA to adopt the ICAO’s ban on bulk lithium ion battery shipments on passenger aircraft within 90 days of enactment of the bill.  S. 2658 would also compel FAA to adopt the ICAO’s state of charge requirements limiting the state of charge for lithium ion batteries and cells in bulk shipments to 30 percent of their rated capacity when transported on cargo aircraft.  A diverse group of 43 industry organizations and companies issued a letter generally supporting S. 2658 and harmonization with the ICAO-TI, while noting concern that other “cumbersome, costly, and unnecessary regulations” could be added to S. 2658 that would disrupt and frustrate harmonization.  In particular, the industry letter expressed concern with a proposal to add a “Notice to Captain” requirement for all shipments of lithium batteries on commercial aircraft.

Given PHMSA’s safety advisory notice and developments in Congress to address lithium ion batteries, it appears likely that the Hazardous Materials Regulations will be significantly revised to reflect updates to the ICAO-TI at the international level.  Because lithium batteries are such a common component of modern electronics, manufacturers, distributors, retailers, and end users of electronic equipment should closely monitor these developments regarding the manner of shipment for lithium ion batteries.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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