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The Department of Transportation issued today an Interim Final Rule (IFR) prohibiting the transport of lithium ion cells and batteries as cargo on passenger aircraft. The IFR also prohibits lithium ion cells and batteries from being shipped at more than a 30 percent charge aboard cargo-only aircraft when not packed with or contained in equipment. Personal electronic devices powered by lithium ion batteries are still permitted onboard passenger aircraft as long as they are in the cabin.

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The IFR contains a limited exception for not more than two replacement lithium cells or batteries specifically used for medical devices to be transported by passenger aircraft to remote areas that do not have daily air cargo service. Such shipments are also excepted from the state of charge requirements, when meeting certain conditions. In addition, the IFR limits the use of alternative provisions for small lithium cells and batteries to one package per overpack or consignment to prevent the consolidation of large numbers of lithium cell and battery shipments. Shippers can still offer lithium cells or batteries in an overpack or a consolidated consignment, but these must be identified to the air operator as hazardous materials.

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The Federal Aviation Administration (FAA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) teamed up to issue the IFR, which they claim will enhance air safety by revising the Hazardous Material Regulations (HMR) for lithium ion cells or batteries transported by aircraft. These amendments predominantly affect air carriers (both passenger and cargo-only) and shippers offering lithium ion cells and batteries for transport as cargo by aircraft. Industry will have an opportunity to comment on the IFR within 60 days.

The FAA Reauthorization Act of 2018 required this rulemaking to be effective within 90 days of enactment of the statute. According to PHMSA, the statutory deadline and the serious public safety hazards associated with lithium battery transportation necessitate the immediate adoption of these standards. The IFR also harmonizes the HMR with emergency amendments to the 2015-2016 edition of the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air.

PHMSA stated that while it values public participation in the rulemaking process, the current risk of a lithium battery incident and the statutory deadline imposed by Congress make it impractical and contrary to public interest to delay the effect of this rulemaking until after a notice and comment period. PHMSA stated that it will consider all comments received before the closing date and will make any necessary amendments as appropriate.

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For more information on the lithium ion cell and battery IFR, or for assistance in developing comments to the IFR for DOT’s consideration, please contact:

Karyn A. Booth 202.263.4108 <a href="mailto:Karyn.Booth@ThompsonHine.com">Karyn.Booth@ThompsonHine.com</a>

Brent Connor 202.263.4188 <a href="mailto:Brent.Connor@ThompsonHine.com">Brent.Connor@ThompsonHine.com</a>

Jason D. Tutrone 202.263.4143 <a href="mailto:Jason.Tutrone@ThompsonHine.com">Jason.Tutrone@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

DOT Announces New Rule for Air Transport of Lithium Batteries

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