Legislation Restricts DOT Lithium Battery Regulation (Maybe), Provides Exemption from Oxygen Overpack Requirements for Alaska

A compromise by the U.S. House and Senate on competing Federal Aviation Administration long-term funding bills includes provisions affecting two hot button issues for U.S. hazardous material shippers: lithium battery shipping standards and overpack requirements for transporting oxygen in Alaska.

Lithium Batteries

On Jan. 31, 2012, members of the House and Senate announced they had reached an agreement on an FAA reauthorization bill based on bills previously passed by each body in late 2011. Language included in the compromise is intended to limit the DOT from issuing or enforcing any regulation regarding aircraft transport of lithium batteries and cells if the requirements are more stringent than the requirements implemented in the ICAO Technical Instructions.

Of note is that the proposed text does allow for the DOT to issue and enforce more stringent regulations if the department receives a “credible report” that lithium batteries or cells contributed to an onboard fire. Recent serious aircraft fires, including Asiana Airlines Flight 991, a Boeing 747-400F freighter that crashed off the coast of Jeju Island last July after reporting a fire in the cargo compartment, could not be conclusively attributed to having been the result of a lithium battery fire. Yet, investigations have indicated that many of these types of incidents were caused by lithium batteries and, in other cases, that there was a high probability that lithium batteries were a causal factor.  Most importantly, every incident involved some level of non-compliance.  These incidents occurred both in the passenger cabin aboard passenger aircraft and in the cargo holds of cargo aircraft, and range in severity.  PHMSA and FAA receive reports of fires involving lithium batteries (e.g. a passenger’s camera or laptop battery catches fire in the overhead) an average of 2-3 times per year (see “Batteries & Battery-Powered Devices – Aviation Incidents Involving Smoke, Fire, Extreme Heat or Explosion”; Note: the list of incidents is not frequently updated by FAA ).

For transport by aircraft, 49 CFR §172.102 Special Provision 188 (h) requires “a telephone report if a fire, violent rupture, dangerous evolution of heat or explosion occurs involving a lithium battery.” Based on prior history, the agency could receive a credible report of a lithium battery incident prior to or shortly after the legislation is formally signed into law. So one has to wonder: does the legislation really change anything?

Ironically, while the legislation is intended to limit DOT in its rule-making authority, ICAO is considering tighter restrictions on air shipments of lithium batteries and cells based in part on a proposal and data submitted to the ICAO Dangerous Goods Panel by a representative from the FAA.  A special working group session of the ICAO Dangerous Goods Panel will meet this week to examine the issue. While the FAA has not submitted a specific proposal to this meeting, the ICAO Secretariat has included the proposed changes offered by FAA during last October’s session of the ICAO Dangerous Goods Panel in the list of documents to be considered during the working group meeting. These papers will form the basis for discussion by the working group. The ICAO Web site contains the Secretariat papers and others submitted for consideration by the lithium battery working group.  There are currently 11 working papers from various members and observers as well as one information paper from the Rechargeable Battery Association (PRBA) which includes a document entitled, “Appendix: The Proposed Rule Cannot be Justified by PHMSA’s Cost-Benefit Analysis.” These papers will serve as the basis for considering new proposals on Section II shipments of lithium batteries. Those interested in pending lithium battery legislation would be well advised to review the various papers. Members of the Dangerous Goods Advisory Council (DGAC) can submit comments to DGAC, which will take part in the working group.

Oxygen Cylinder Overpacking

The FAA reauthorization bill also includes an exemption from having to overpack cylinders containing oxygen and oxidizing gases when transported in Alaska.  PHMSA, in coordination with FAA, issued a number of special permits to shippers and carriers of oxygen that operate in Alaska for cylinders where overpacks were not commercially available.  Some of the oxygen cylinders are extremely large and overpacks for these cylinders are not commercially available.  While the special permits included equivalent safety measures and conditions and were only issued to companies after a fitness investigation was successfully conducted, the legislation includes a broad exception without any equivalent safety conditions (e.g. limiting the exception only in the case where overpacks are not commercially available and imposing equivalent safety measures, such as requiring the cylinders to be transported in protective unit load devices or crates and protected with a fire resistant blanket or wrap).

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If you have questions about this proposed legislation and how it might affect your shipping operations, please don’t hesitate to reach out to the Labelmaster Services team at contact@labelmasterservices.com or 866-655-5539.

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  1. Bob Richard said:

    The Senate approved HR 658, FAA Reauthorization, yesterday by a vote of 75 to 20. The President is expected to sign before the February 17th interim expiration.

  2. Bob Richard said:

    The Senate approved HR 658, FAA Reauthorization, yesterday by a vote of 75 to 20. The President is expected to sign before the February 17th interim expiration.

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