More than a year-and-a-half after the publication of the Pipeline and Hazardous Materials Safety Administration’s HM-224F Notice of Proposed Rulemaking (NPRM), the path to a published rule remains elusive. At this current juncture, it appears PHMSA has yet to receive any direction on how to proceed in relation to the many controversial proposed requirements in the lithium battery rule. In addition, Congress is currently considering legislation that would restrict the Department of Transportation’s (DOT) and the Federal Aviation Administration’s (FAA) abilities to publish and enforce regulations that are more restrictive than those in international regulations. If adopted, these new restrictions could certainly impact the rulemaking progression. It is unfortunate that some industry sectors felt that their only recourse was to approach Congress to develop this legislation. In the past, government and industry were able to communicate more effectively and PHMSA was more willing to solicit public comment through public meetings prior to publishing proposed rules, particularly when the implications were broad-based and far-reaching.
Many affected by the proposed amendments have questioned whether the proposed rules will enhance or compromise safety. Numerous industry associations, foreign governments and individuals have commented on the proposed rule. The White House’s Office of Management and Budget (OMB) has responsibility for reviewing and approving the publication of the rule, and has been actively engaged in working with DOT and PHMSA to provide direction for what should be published in a final rule, likely because of the significant opposition from a multitude of parties, including small businesses, medical device manufacturers and electronics retailers. The extent of the comments to the rule is a sign that perhaps additional public consultation may have been prudent prior to the publication of the NPRM.
It is highly likely that when PHMSA does publish a final rule, it will be much less conservative and controversial from what was in the proposed rule, albeit still in the best interests of transporting batteries in a safe and secure manner. If DOT decision makers and the OMB are attuned to taking the most effective approach to enhancing safety, they will harmonize U.S. requirements with those of the International Civil Aviation Organization Technical Instructions and the U.N. Model Regulations.
In the meantime, uncertainty about what PHMSA will ultimately adopt is causing companies to hold off on investing in compliance and safety enhancements, developing new businesses and products, and hiring employees at a time when the economy is suffering. Those companies using or planning to use lithium batteries for stationary applications should be aware of the pending new rules, as they will affect the transport of component cells and batteries. Additional restrictions may also apply for the transport of equipment containing batteries, particularly by aircraft.
Labelmaster will continue to stay abreast of lithium battery regulation developments and provide updates as they happen. For additional information on the proposed lithium battery regulations, please visit the Labelmaster lithium battery shipping products page or the Labelmaster Services lithium battery shipping services page.