HAZARDOUS MATERIALS / Should shippers and carriers be allowed to choose between U.S. Hazardous Materials Regulations versus ICAO Dangerous Goods rules when transporting lithium batteries by airline domestically?

To date PHMSA has in many situations allowed shippers and carriers of “hazardous materials” (U.S. legal term of art) / “dangerous goods” (international legal term of art) choice to conform either to U.S. Hazardous Materials Regulations or ICAO Dangerous Goods Technical Instructions on the Transport of Dangerous Goods by Air – for domestic freight moves within the United States.

January 7, 2013, Notice of proposed rulemaking; request for additional comment.

As the U.S. DOT Pipeline and Hazardous Materials Safety Administration put it: 

“In this document, PHMSA is seeking additional comment on the impact of changes to the requirements for the air transport of lithium cells and batteries that have been adopted into the 2013-2014 International Civil Aviation Organization Technical Instructions on the Transport of Dangerous Goods by Air (ICAO Technical Instructions), and subsequently incorporated by reference in a final rule published elsewhere in this issue of the Federal Register. PHMSA is considering the long-term impacts of permitting shippers and carriers to choose between compliance with the existing HMR, or compliance with the ICAO Technical Instructions 2013-2014 edition, when transporting batteries domestically by air. Incorporation by reference of the 2013-2014 Edition of the ICAO Technical Instructions will allow each shipper and carrier to choose the method of compliance that is most appropriate for its operation; likewise, each shipper and carrier will have the responsibility to ensure that the proper method of compliance is chosen for each shipment, since the chosen method may not comply with the ICAO Technical Instructions. PHMSA is seeking supplemental comments to our January 11, 2010, Notice of Proposed Rulemaking (NPRM) and our April 11, 2012, request for additional comment in light of the publication of the HM-215L final rule. Specifically, PHMSA is seeking comment on whether to require mandatory compliance with the 2013-2014 ICAO Technical Instructions for all shipments of lithium batteries by air, both foreign and domestic. Based on the comments received, PHMSA may issue a final rule to revise the HMR to reflect the lithium battery provisions specified in the 2013-2014 Edition of the ICAO Technical Instructions.”