TLA Feature Articles H OT P OCKET : S AMSUNG G ALAXY N OTE 7 R ECALL H IGHLIGHTS R ISK OF L ITHIUM B ATTERIES D URING A IR T RANSPORTATION Jonathan R. Todd* & David M. Krueger I. INTRODUCTION Air transportation of lithium ion batteries recently gar- nered significant attention due to events following reports of the Samsung Galaxy Note 7’s batteries overheating, catching fire, and even exploding. 1 Samsung responded by recalling the Galaxy Note 7 and ceasing production, which subsequently led the Federal Aviation Administration (“FAA”) to issue a Safety Alert For Operators (“SAFO”) prohibiting air transportation of recalled lithium batteries and lithium battery powered devices and limiting their carriage by air crew and passengers. 2 On October 15, 2016, the U.S. Department of Transportation (“DOT”), with 5 the FAA and the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), announced a complete ban the present regulatory environment is unique in its col- on the Galaxy Note 7 for both on-person carriage and as lective vision, collaboration, and speed of change. This air cargo. Samsung’s recall and the FAA’s corresponding article examines the current regulatory regime, the forces SAFO, culminating with a complete ban on the device, shaping is future, and the emerging trends in hazardous highlight the increasing hazards posed by transportation materials compliance as it relates to the air transport of of lithium batteries as air cargo. lithium batteries. Serious lithium battery incidents, including those causing catastrophic failure during flight, are not a new II. SUMMARY OF REGULATIONS concern. Domestically, there have been a total of 129 GOVERNING AIR CARRIAGE OF reported incidents involving lithium batteries. 3 However, LITHIUM BATTERIES the trend line is a stark reality to those in government and The PHMSA is the division of the DOT tasked with industry tasked with the safety and security of air freight. regulating the transportation of hazardous materials. The As more consumer products use lithium batteries, and term “hazardous materials” is defined broadly as any “sub- as manufacturers continue to push the envelope of these stance or material that the Secretary of Transportation batteries’ capabilities, the rate of incidents and frequency has determined is capable of posing an unreasonable of alarming headlines can be reasonably expected to rise. 4 risk to health, safety, and property when transported in The danger of fire and explosion associated with air commerce….” 7 Lithium batteries are regulated hazardous transportation of lithium ion batteries has been known to materials due to the risk of the batteries overheating and the air transportation community for decades. 6 However, causing a fire. 8 * Benesch, Friedlander, Coplan & Aronof LLP, Cleveland, OH Lithium batteries are specifically regulated as Class 32 T RANSPORTATION L AWYERS A SSOCIATION • C ANADIAN T RANSPORT L AWYERS A SSOCIATION
T HE T RANSPORTATION L AWYER TLA Feature Articles 9 hazardous materials under the Hazardous Materials than the typical airline passenger experiences. The gen- Regulations (“HMR”). 9 The hazardous materials classifi- eral approach manages risk by prescribing net quantity cation applies to the lithium ion batteries and cells that per package guidelines based upon the lithium content power consumer electrical devices as well as disposable of each cell or battery. 15 Lithium batteries packed with lithium metal batteries. Under the HMR, lithium batter- or contained in equipment are limited to the number ies are subject to complex inspection, testing, packaging, required to power the equipment plus two spares, provided labeling, recordkeeping, and notification requirements. 10 that the total net mass of the lithium cells or batteries in the package transported does not exceed 5 kg. 16 When The practical application of these rules differ depending on whether the batteries are contained in equipment carried packages of lithium metal cells or batteries exceed 5kg, aboard by passengers and crew, such as the Galaxy Note 7, the packaging may not be transported by air carrier and or instead tendered as air cargo. One of the key differences must be marked with one of the following warnings: under the HMR is the quantity of lithium and its contain- “PRIMARY LITHIUM BATTERIES – FORBIDDEN FOR ment in equipment. TRANSPORT ABOARD PASSENGER AIRCRAFT” or “LITHIUM METAL BATTERIES – FORBIDDEN FOR Air transportation of lithium batteries is a serious TRANSPORT ABOARD PASSENGER AIRCRAFT,” or matter for all parties involved. The FAA, as a sister DOT labeled “CARGO AIRCRAFT ONLY.” 17 division with PHMSA, does indeed hold authority to designate, and regulate the transportation of, hazardous materials to promote safe flight of civil aircraft. 11 Despite III. A VIEW TO THE FUTURE OF the risk of fire and explosion, there are limited exceptions. REGULATING LITHIUM BATTERY AIR Lithium batteries may be carried by air crew/passengers for TRANSPORTATION personal use subject to the following conditions: As one would expect based upon headlines and reported • � Lithium batteries installed in portable electronic incidents, the regulatory regime is quickly evolving. Agencies devices may be in carry-on or checked baggage. and trade associations across the globe are trending toward • Spare lithium batteries may be in carry-on bag- harmonized international rules and best practices for ship- gage only (not checked or gate-checked baggage), ments containing lithium batteries. The air transportation provided that the spare batteries are protected from industry in the United States is no exception in its align- damage or short circuit by being placed in secure ment with international trends. Two central themes are packaging with the terminals protected from con- emerging. First, the carriage of lithium batteries as cargo on passenger aircraft is quickly falling into disfavor. Those tacting other metal. batteries that are carried will face strict quantity, packaging, • Whether installed in portable electronic devices or and charge restrictions. Second, all parties involved in the carried as a spare: (1) lithium metal batteries may air transportation of lithium ion batteries are increasingly not have a lithium content of more than 2 grams per encouraged to adopt compliance measures tailored to their battery; and (2) lithium ion batteries may not have particular roles in the supply chain. Manufacturers and a Watt-hour rating exceeding 100 Wh (lithium ion shippers who seek to avoid compliance with international batteries with Watt-hour rating between 101-160 Wh norms will face increasing scrutiny – even in the form of may be carried subject to limited exceptions with air self-policing among legitimate industry. operator approval). 12 The most recent significant change came when However, the ability to carry lithium batteries and PHMSA issued a Notice of Proposed Rulemaking titled lithium powered devices on aircraft is not unlimited and Hazardous Materials: Harmonization With International is subject to reasonable restrictions for potentially unsafe Standards. 18 Chief among the material proposed amend- devices. Under the HMR, carriage of batteries or battery- ments is to prohibit transporting lithium cells and batteries powered devices is not permitted if the batteries or devices as cargo on passenger aircraft. When transporting on cargo “are likely to create sparks or generate a dangerous evolu- aircraft, lithium cells and batteries must hold a charge not tion of heat, unless packaged in a manner which precludes greater than 30 percent. PHMSA also proposes limiting such an occurrence.” 13 Further, lithium cells or batteries or eliminating certain exceptions for small shipments. that have been “identified by the manufacturer as being Finally, PHMSA seeks to update the hazard communica- defective for safety reasons [and] have the potential of tion requirements, such as the adoption of a standard producing a dangerous evolution of heat [or] fire,” such as lithium battery mark for use across all modes and requir- the Galaxy Note 7, are prohibited from air transportation. 14 ing that hazard markings are applied to each package or The broader regime governing transportation of lith- container of more than four cells or batteries in equip- ium batteries as air cargo is significantly more complex ment or where there are more than two packages in any T RANSPORTATION L AWYERS A SSOCIATION • C ANADIAN T RANSPORT L AWYERS A SSOCIATION 33
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