Background
The Air Navigation Commission (ANC), the highest technical body of the United Nations International Civil Aviation Organization (ICAO) made an announcement on Wednesday January 27th recommending lithium-ion batteries be banned as cargo on passenger airlines given the danger they pose to life and property. The proposed ban will not apply to cargo planes or carry-on luggage, a provision that drew fire from the Air Line Pilots Association, that in a statement stated the ban should be extended to cargo planes as well in order to be effective.
Lithium-ion batteries are used in a variety of devices from basic handheld electronics to electric cars. A battery is made up of two or more of these cells and approximately 5.4 billion lithium-ion cells have been produced since 2014. Currently, around 70 percent of these batteries are transported via cargo ship while 30 percent are moved by plane.
Tests carried out by the Federal Aviation Administration (FAA) have uncovered that a single damaged battery can “experience uncontrolled temperature increases, which can spread throughout a shipment.” Given the fact these batteries are usually transported by the thousands, this indeed could cause serious damage. Tests have revealed damaged batteries have the potential to release “explosive gases that, when ignited, have blown the doors off cargo containers and sent boxes of batteries hurtling through the air before becoming engulfed in flames.”
Since 2006, three cargo plane fire incidents, accounting for four causalities, have been attributed to these batteries. In recent months, seemingly random hoverboards related fires and explosions have also been blamed on lithium-ion batteries leading many airlines to ban them onboard and even some universities banning them on campus.
Discussions regarding lithium-ion batteries have been up in the air for quite a while. Last March, airline executives informed the ICAO that allowing these batteries onboard would pose “an unacceptable risk,” calling for action. Furthermore, the ICAO came up with specific safety improvement strategies for producers at the Dangerous Goods Conference in Montreal last year, which will be implemented in April. The industry has long attributed safety concerns to “shady manufacturers, mostly in China, that evade packaging and handling regulations.” It seemed hopeful, however, these changes would increase safety, but the ICAO has now decided that even those strategies were inefficient.
A ban of this nature has been a contentious issue with an ICAO panel actually voting against the ban in October 2015 and the U.S. Department of Transportation having to hold back on imposing its own ban due to a federal law passed in 2012. While the ban still awaits approval by the ICAO council on February 22nd, the ANC did propose that the ban be lifted if producers can come up with new packaging that would reduce risks associated with the batteries and increase safety.
Findings
A holistic examination finds the proposed ban inconsistent, impractical and unsuccessful in addressing the root cause of the problem – a more-well tailored fix to mitigate the risk.
The industry consistently argues that increasing the packaging and handling standards is sufficient and less commercially restrictive than an outright ban. ANC’s proposal that the ban be lifted if new packaging can be developed is consistent with industry’s position that the proposed ban is an overly broad regulation aimed at finding a quick fix to the issue.
These batteries only pose a danger if they are damaged or defective and shipped in large quantities. The proposed ban only covers cargo on passenger planes and excludes cargo planes and batteries carried in hand luggage, which seems to be a strange loophole if the intent of the ban is to reduce the risks associated with transporting these batteries. Furthermore given that 70 percent of these batteries are transported via cargo ship, the same danger still exists in the marine sphere.
Before implementing a blanket ban, ICAO should engage in meaningful dialog with the aviation industry and Lithium battery producers to find a solution that improves packaging and handling standards without halting commercial exchange entirely. One idea is to issue strict guidelines and implement an international safety sticker for producers who comply with enhanced standards to prevent low-grade products from entering the market.
FAA Reauthorization
Meanwhile, the ANC recommendation has had quite an impact on the FAA reauthorization bill. Already at a gridlock on the restructuring of air traffic control, House Transportation Committee leadership are locked in a debate regarding which agency should posses authority to ban these batteries on planes.
While Committee Chairman Bill Shuster has supported the ICAO’s authority on the matter given its international standing, the committee’s leading democratic Congressman Peter DeFazio has attempted to include a provision in the bill which gives the USDOT jurisdiction to implement such a ban, claiming it would lead to more efficient and uniform implementation of the law.
The bill in its current form carries a provision under Sec. 615 that prohibits the Secretary of Transportation from issuing or enforcing any regulation or requirement regarding the transportation of lithium batteries if they are more stringent that the ICAO technical instructions. In this context, authority to regulate domestic safety concerns in the transportation sector should indeed be handled by the USDOT and not the ICAO. While the recommendations of a body like the ICAO should be taken into consideration when making regulations, permitting an international body to directly regulate such an issue and binding the authority of the Secretary of Transportation would equate abdicating U.S. national authority.
The problem, however, is proponents of the USDOT regulating lithium batteries are pushing for an immediate ban on their transportation. Such a unilateral step by the United States has the potential to place it at a disadvantage internationally. Instead of acting on impulse, this matter should be looked at from multiple dimensions, to come up with effective legislation that could solve the problem in the long run (i.e: packaging and handling standards). The aviation industry is very much dependent on cooperation between countries, and any uncoordinated move by a single player could cause extensive damage to the nation’s economy and travel and trade sectors.
Lithium batteries have become an integral component of devices we use daily. If public health and safety are the main concerns behind the implementation of such bans, then a long-lasting, uniform, and permanent solution should be sought regarding the dangers posed by these batteries instead of passing legislation that changes too much too soon.
For media inquiries contact Emily Hanhart at ehanhart@nouveaucorp.com.