January 23, 2018

January 23, 2018

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January 22, 2018

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DOT Harmonizes Lithium Battery Regulations with International Standards for Air and Ground Transport in Long-Awaited Final Rule

On August 6, 2014, the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries, including lithium batteries contained in or packed with equipment.[i]  The rule, available here, mostly harmonizes the agency’s Hazardous Materials Regulations (HMR) with corresponding provisions from the United Nations (UN) Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the International Maritime Dangerous Goods (IMDG) Code.  The rule is effective immediately, and its requirements become mandatory on February 6, 2015.

The final rule is a significant departure from PHMSA’s original proposal issued on January 11, 2010.[ii]  That proposal garnered widespread disapproval, especially regarding proposed limitations on where lithium batteries could be stowed on board aircraft, which would have virtually halted express transport of high-demand consumer electronic devices containing lithium batteries.  Congress later weighed in, passing a law requiring any PHMSA rule on air transport of lithium batteries to be no more stringent than the ICAO Technical Instructions.[iii]  The ICAO subsequently strengthened its requirements in the Technical Instructions.[iv]  PHMSA then published another NPRM seeking feedback on aligning HMR provisions relating to the transport of lithium batteries and cells with the ICAO Technical Instructions.[v]  Following another round of stakeholder comments, PHMSA published the current final rule.

The final PHMSA rule largely harmonizes with international requirements.  For carriers and offerors that currently follow ICAO requirements for air transport, the rule does not present significant changes.  The PHMSA rule extends beyond air transport, however, and introduces stringent marking, documentation, and packaging requirements to highway, rail, and vessel transport.  In particular, the new rule:

  • Requires use of separate proper shipping names for lithium ion batteries and lithium metal batteries.

  • Replaces current HMR units for describing lithium ion battery size (“equivalent lithium content”) with units used in international regimes (“Watt-hours”).

  • Revises HMR provisions governing the shipment of small-sized batteries to be mostly consistent with international rules for all modes, but continues the current US restriction on lithium metal batteries on passenger aircraft.

  • Continues to allow medium-sized lithium batteries to be shipped by highway or rail provided stricter packaging, marking, and documentation requirements are met.

  • Prohibits air transport of damaged, defective, or recalled lithium batteries and requires certain packaging and marking for other modes of transport.

  • Adds recordkeeping requirements for test reports showing that lithium cells and battery designs offered for transport have passed UN design tests.

  • Revises requirements applicable to the transport of lithium batteries for disposal or recycling.

  • Revises requirements applicable to the transport of low-production and prototype lithium batteries.

[i] 79 Fed. Reg. 46012 (Aug. 6, 2014).

[ii] 75 Fed. Reg. 1302 (Jan. 11, 2010).

[iii] See FAA Modernization and Reform Act, Pub.L. 112-95, 126 Stat. 11.  SeeB&D Client Alert published February 8, 2012, “Congress Limits DOT Authority Over the Transport of Lithium Batteries” for more information. 

[iv] ICAO Dangerous Goods Panel, Working Group of the Whole on Lithium Batteries, First Meeting (Montréal, February 6-10, 2012) Report, available here. See B&D Client Alert published March 16, 2012, "New Rules for Lithium Battery Air Transport" for more information.

[v] 78 Fed. Reg. 1199 (Jan. 7, 2013).  See B&D Client Alert published January 4, 2013, “US DOT Seeking Comments on Aligning Lithium Battery Rules with 2013-2014 ICAO Technical Instructions” for more information.   

© 2018 Beveridge & Diamond PC


About this Author

Elizabeth M. Richardson Attorney, Environmental, Beveridge & Diamond Law Firm

Beth Richardson focuses her practice on environmental transactions and product regulatory issues. She works closely with clients to identify and limit environmental liabilities, effectively market their products, and manage their regulatory obligations. She leads B&D's Transactions & Auditing team and co-leads the firm's Chemicals, Products & Global Supply Chains team.

Aaron H. Goldberg, Environmental Attorney, Beveridge & Diamond Law Firm

Aaron Goldberg focuses on regulatory issues associated with hazardous wastes and consumer/industrial products.  He started his career as a consultant to the U.S. Environmental Protection Agency (EPA), working on the development of the hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).  After a stint in the White House Office of Management and Budget (OMB), he joined Beveridge & Diamond, P.C., where he has continued to concentrate on hazardous waste issues at the federal, state, and international levels. 

Because much of Mr. Goldberg’s hazardous waste work has been related to management of end-of-life products, he has become increasingly involved with other product regulatory issues, as well.  For example, he works extensively on U.S. and international rules for transport of hazardous materials or dangerous goods.  He also spends considerable time on regulations designed to prevent the diversion of chemical products to illicit purposes, such as in the production of chemical weapons or illegal drugs. 

Ryan J. Carra, Environmental Attorney, Beveridge & Diamond Law Firm

Ryan Carra utilizes his extensive technical background to assist in counseling clients in the electronics, chemicals, and energy sectors regarding a variety of environmental regulatory issues.  Ryan has advised on questions relating to waste classification, chemical hazard classification, chemical notification requirements, and requirements relating to radiation-emitting equipment both domestically and abroad.  Specifically, Ryan is well versed in international agreements relating to materials restrictions and waste, such as the Basel and Minamata Conventions.

Ryan has reviewed...