Beveridge & Diamond

DOT Requests Comment on Harmonizing Lithium Battery Transport Rules with New ICAO Rules

Beveridge & Diamond, P.C., April 13, 2012

The U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) is seeking comment on aligning U.S. standards with the newly revised standards of the International Civil Aviation Organization (ICAO). This new solicitation of comments from stakeholders is a follow-up to PHMSA’s controversial 2010 proposal to greatly increase the safety requirements for air transport of lithium cells and batteries.[1] Comments must be received by May 11, 2012.[2]

In the 2010 notice of proposed rulemaking, PHSMA had proposed to eliminate, in all but a few limited instances, the current exceptions from Class 9 requirements for transport of small lithium batteries by aircraft. Industry comments generally indicated that the proposed stricter regulations would have a more serious impact on supply chains than PHMSA had predicted, in part because they diverged from international standards.[3] In response, Congress passed legislation in February 2012 to prohibit DOT from issuing or enforcing any regulation regarding the transport of lithium batteries by aircraft that is more stringent than the requirements of the ICAO Technical Instructions.[4]

Shortly thereafter, ICAO agreed to amend its Technical Instructions, effective January 1, 2013, to significantly limit the current exceptions from Class 9 requirements for all but the smallest lithium batteries not packed with or inside equipment. Batteries not packed with or inside equipment that were formerly excepted would fall under a new intermediate provision between the more limited exception and full Class 9 requirements. That intermediate provision, Section IB, would allow non-UN specification packagings and alternative written documentation, but that would otherwise impose all other Class 9 requirements as well as a lithium battery handling label requirement.[5]

In a Federal Register notice published April 11, 2012, PHMSA is seeking comment on the effects of the ICAO amendments and on whether it should harmonize U.S. regulations with those amendments. Specifically, PHMSA requests input on the following questions relating to cells and batteries shipped separately (not in or with equipment), particularly those with up to 1 gram lithium per lithium metal cell and 2 grams per lithium metal battery, or those that are up to 20 Watt hours (Wh) per lithium ion cell and 100 Wh per lithium ion battery:

1. How many lithium cells, batteries, and packages that were previously excepted from full hazardous materials packaging and labeling requirements would now be subject to additional requirements?

2. What impacts would arise from allowing use of non-UN Specification packaging for cells and batteries to be shipped under the proposed Section IB of ICAO Packing Instructions 965 and 968?

3. What impacts would result if PHMSA chooses not to harmonize its regulations?

4. Will harmonization result in any modal impacts or diversions, and if so, what would be the quantitative effects?

5. If PHMSA were to harmonize the regulations, what would be the projected burden (time and/or cost) for compliance, and are there other Paperwork Reduction Act related activities that PHMSA should consider?

6. Could PHMSA reduce regulatory burden or cost of implementation, for example, by a delayed effective date?

PHMSA also welcomes any other relevant information that it should consider before harmonizing with ICAO’s standards for lithium cells and batteries.

For more information, please contact Elizabeth Richardson at, Aaron Goldberg at, or Alexandra Wyatt at

[1] 77 Fed. Reg. 21714 (Apr. 11, 2012), available at

[2] Comments may be submitted to Document ID PHMSA-2009-0095-0242 at!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR%252BPS;rpp=250;so=DESC;sb=postedDate;po=0;D=PHMSA-2009-0095.

[3] See Comment Docket Folder, “Hazardous Materials Revision to Requirements for the Transportation Lithium Batteries,”!submitComment;D=PHMSA-2009-0095-0242.

[4] See Beveridge & Diamond P.C., Congress Limits DOT Authority over the Transport of Lithium Batteries (Feb. 8, 2012), (discussing H.R. 658, FAA Modernization and Reform Act of 2012, § 828).

[5] See Beveridge & Diamond P.C., “New Rules for Lithium Battery Air Transport” (Mar. 16, 2012),