Beveridge & Diamond
 

Congress Limits DOT Authority over the Transport of Lithium Batteries

Beveridge & Diamond, P.C., February 8, 2012

On February 6, 2012, Congress passed legislation, which is expected to be signed soon by President Obama, to prohibit the United States Department of Transportation (“DOT”) from issuing or enforcing any regulation regarding the transport of lithium batteries by aircraft that is more stringent than the requirements of the Technical Instructions for the Safe Transport of Dangerous Goods by Air issued by the International Civil Aviation Organization (“ICAO”).  See H.R. 658, Section 828(a), available in House Conference Report 112-381 (112th Cong., 2d Sess.) (http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf) at 125. 

The main effect of this legislation is to block DOT from unilaterally issuing more stringent requirements for transport of lithium batteries and products containing such batteries by aircraft, such as the Department proposed to do in 2010.  See 75 Fed. Reg. 1302 (January 11, 2010).  However, the legislation includes an exception that allows DOT to continue enforcing the existing prohibition on transport of lithium metal batteries aboard passenger aircraft (set forth in Special Provision A100 of 49 CFR 172.102).  See H.R. 658, Section 828(b)(1).  In addition, if DOT obtains credible reports that lithium batteries meeting ICAO requirements have substantially contributed to the initiation or propagation of a fire on board an aircraft, it can issue narrowly crafted regulations to address such risk.  See H.R. 658, Section 828(b)(2).  Moreover, DOT may soon finalize some regulatory amendments to bring the existing U.S. rules more in line with current international standards. 

It is important to note that the ICAO Working Group of the Whole on Lithium Batteries is meeting the week of February 6, 2012, in Montreal to consider various industry and governmental proposals for changes to the current ICAO requirements, including: (1) eliminating certain exceptions that currently exist for regulation of the transport of small lithium ion and lithium metal batteries; (2) subjecting certain categories of lithium cells and batteries to additional requirements for the securing of dangerous goods and protection of packages during loading; (3) amending pilot notification requirements for lithium ion and metal batteries; (4) establishing alternatives to the current process for securing approvals for transporting large lithium ion batteries; (5) developing an ICAO lithium batteries training program for shippers; and (6) various other industry alternatives to fully regulating lithium batteries as dangerous goods.  The Working Group is also expected to review flammability test data compiled by the Rechargeable Battery Association (“PRBA”) and a recent Federal Aviation Administration (“FAA”) study regarding the potential fire threat posed by the bulk shipment of lithium batteries.   See generally http://www.icao.int/safety/DangerousGoods/Pages/
Working-Group-of-the-Whole-on-Lithium-Batteries.aspx

In a related development, the U.S. Postal Service, which had published a final rule last summer that would have restricted the conditions under which lithium batteries could be mailed internationally from the United States, decided to withdraw that rule in advance of its effective date.  The withdrawal was necessitated by an ICAO request for a delay in implementation of the proposed changes until ICAO had an opportunity to review the changes and incorporate them into the Technical Instructions for the Safe Transport of Dangerous Goods by Air.  See 76 Fed. Reg. 55799 (September 9, 2011)

For more information, please contact Aaron Goldebrg at agoldberg@bdlaw.com, Paul Hagen at phagen@bdlaw.com or Elizabeth Richardson at erichardson@bdlaw.com.

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