Developments in HAZMAT Regulations: Shipping Lithium Batteries by Air

The pace of changes in the hazardous materials (HAZMAT) regulations governing the transporting of lithium batteries (and equipment containing lithium batteries) continues to create confusion among shippers and carriers. Further, the shipment of lithium batteries by air remains a top enforcement priority for the Federal Aviation Administration (FAA), the agency which enforces transport of HAZMAT by air in the U.S. One needs to look no further than the FAA’s battery-related incident reports to understand why enforcement has become a priority for the FAA.¹

What Products Are Controlled?

The HAZMAT regulations govern not only shipments of lithium batteries in bulk (e.g., as cargo) but also:

• equipment shipped with lithium batteries (such as a package containing a flashlight and uninstalled lithium batteries)
• battery-powered devices with lithium batteries installed, such as cell phones, PDAs and laptops
• other “plug-in” electronic devices, such as desktop computers or microwave ovens, that may have lithium button batteries installed on circuit boards for functions such as maintaining date and time
• spare batteries and battery-powered devices carried on or checked as luggage by individual passengers and flight crew

Lithium Battery Terminology

Lithium-ion batteries (secondary lithium batteries) are, in general, rechargeable batteries commonly used to power a variety of battery-powered consumer devices such as PDAs, laptops and cell phones. Lithium-metal batteries (primary lithium batteries) are not rechargeable and, as discussed below, are subject to more restrictions. Small lithium-metal batteries (button batteries) may be used in low-power consumption portable devices (such as watches); they also perform back-up time/date functions in larger devices. For example, a laptop computer may be powered by a relatively large lithium-ion battery and also have circuit boards that contain one or more small lithium metal button batteries. In addition to the type of battery, the regulations also address the capacity of the battery, which is measured by lithium content (by weight) and watt/hours (Wh).

What Rules Apply?

The Hazardous Materials Regulations (HMR)² apply to shipments to, from, or through the United States. However, when transporting batteries by air, virtually all carriers require shipments be made in accordance with the IATA Dangerous Goods Regulations.³ As a practical matter, such terminology is correct. However, as a legal matter, the HMR incorporates by reference the ICAO Technical Instructions (ICAO TI),⁴ subject to certain U.S. variations.⁵ In particular, certain lithium-metal batteries are prohibited for shipment on passenger aircraft under U.S. law and must be marked “PRIMARY LITHIUM BATTERIES – FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.” The IATA Regulations essentially restate and provide additional amplifying information to the ICAO TI. Thus, when a carrier requires that a shipment comply with IATA, it seeks compliance with the ICAO TI subject to U.S. variations and additional IATA amplifying instructions.

What Are the Recent Changes?

In 2009, the ICAO TI (and IATA Regulations) significantly changed the labeling and documentation requirements for packaging and marking lithium batteries and equipment containing or packed with lithium batteries. Although substantial, these changes did not mirror the more stringent U.S. requirements already in place. The “Packing Instruction” and supplemental guidance documents provided by IATA⁶ and ICAO⁷ are the key elements to consider when determining the applicable requirements.

Confusion Over Requirements

Because the requirements differ depending on the size and type of battery, whether the battery is in or with equipment, and the number of cells or batteries in a “package,” there is ample room for confusion. As most major carriers and logistics providers have been targeted by the FAA for HAZMAT compliance, the FAA may be quick to question labeling by shippers and apply blanket conservative policies. Hence, for routine shipments through major commercial carriers, it may take some time to resolve the confusion arising out of the requirements.

FAA Enforcement

In late 2009, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice essentially warning that lithium battery shipments would be a high priority for enforcement.⁸ As a result, such shipments are more likely to be targeted for physical or documentary inspection. In the event that the FAA believes there is a violation, penalties can be significant. Currently, civil penalties are $50,000 per violation or $100,000 if the violation causes death, injury, or substantial destruction of property. A company’s handling of an FAA notice of investigation or pre-penalty notice can make a significant difference in the outcome of a case, and there is a delicate balance between interposing a vigorous defense and demonstrating that the company is cooperating and taking steps to prevent future violations. It is not uncommon for the FAA to allege a large number of violations. Thus, it is prudent to review each alleged violation because it is possible that some may be without merit.

Tips for Avoiding Violations and Delays

Shippers may take several proactive steps to avoid delays resulting from carriers holding up shipments or, even worse, a seizure or investigation by the FAA:

• Establish clear and uniform procedures for labeling and marking shipments (for example, use the “Lithium Battery Handling” label). It may be more prudent to take a conservative approach to avoid potential issues with the carrier.
• Obtain prior “approval” from your regular carrier for shipments, which may be as simple as an email exchange with the carrier’s dangerous goods manager.
• Utilize procedures to ensure that even non-routine shipments go through normal supply chain channels. An inordinate percentage of HAZMAT violations occur in shipments that are made outside the normal supply chain channels, which include return of defective products or the use of alternative suppliers.
• Ensure that your third-party suppliers (particularly foreign manufacturers) understand and comply with applicable regulations (especially U.S. specific HAZMAT requirements). However, at the same time, the U.S. importer should avoid performing “pre-transportation” functions that may result in liability for the mistakes of a third-party supplier.
• Seek informal or formal guidance from the appropriate agency or from counsel or consultants with expertise in this area.

Future Changes

A number of changes to the ICAO Technical Instructions will go into effect January 1, 2011.⁹ These changes will:

• expressly provide that certain products, such as RFID tags and watches, be shipped in an activated state
• clarify annotations required on air-waybills
• clarify prohibitions on shipment of defective/waste batteries
• allow use of smaller lithium battery handling labels when the package is small

In January 2010, the U.S. Department of Transportation also proposed additional regulations on carriage of lithium batteries.¹⁰ The comments to these proposed regulations have been highly critical for a number of reasons, including that the trend appears to be divergence from, rather than harmonization with, international standards.

The HAZMAT regulations governing transport of lithium batteries by air are complex, changing and subject to strict enforcement by the FAA. Companies need to ensure their shipping procedures are up-to-date and cover relevant products. Particularly in the event of an FAA investigation or civil penalty action, it is important to seek advice from counsel with experience in this highly technical area.

¹ A summary of incidents can be found at: http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_
programs/hazmat/aircarrier_info/media/Battery_incident_chart.pdf

² 49 C.F.R. §§ 105-180.

³ The International Air Transportation Association (IATA), a nongovernmental body, is a private international organization whose members consist of approximately 230 passenger and cargo airlines.

⁴ The International Civil Aviation Organization, Technical Instructions for the Safe Transport of Dangerous Goods by Air, Doc. 9284 AN/905 (2009-2010 Edition).

⁵ See 49 C.F.R. § 171.24. U.S. variations are also listed in the ICAO TI.

⁶ See IATA guidance document at: http://www.iata.org/SiteCollection_Documents/Documents/Guidance
DocumentontheTransportofLiBatt_2010.pdf 

⁷ See ICAO guidance document at: http://www.icao.int/anb/Fls/dangerousgoods/ICAOLithiumBatteryGuidance
/ICAOLithiumBatteryGuidance.pdf

⁸ Advisory Guidance: Transportation of Batteries and Battery-Powered Devices, 74 Fed. Reg. 51643 (Oct. 7, 2009).

⁹ See Report of 22nd Meeting of the Dangerous Goods Panel, dated 16 Oct. 2009 (providing recommendations to the ICAO Air Navigation Committee of proposed changes), available at: http://www.icao.int/anb/FLS/DangerousGoods/DGP/DGP22/Report/DGP.22
.WP.100.en.pdf

¹⁰ Notice of Proposed Rulemaking, Hazardous Materials, Transportation of Lithium Batteries, 75 Fed. Reg. 1302 (Jan. 11, 2010).