Congressional action on carriage of lithium batteries overcome by ICAO raising the safety bar

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News Article: U.S. Proposes to ‘Harmonize’ Global Lithium-Battery Rule

Congress, in its infinite wisdom, entered the realm of regulating aviation safety, enacted §828 of the Reauthorization Act. That limited the FAA’s ability to regulate the carriage of these batteries to the standards established by the International Civil Aviation Organization’s (ICAO) criteria. This section was advocated by both A4A and the Rechargeable Battery Association, of Washington, which represents battery- and device makers including Apple, Samsung and Motorola Mobility Holdings Inc. 

This unusual section places the burden on the FAA to find that these batteries contributed to an accident from either (1) a credible report of “a national or international governmental or regulatory or investigating body or (2) “upon substantial credible evidence that the otherwise permissible evidence of” such batteries “would substantially contribute to” to a fire on board.  This is a significant departure from the standards on which the FAA has historically been authorized to issue new safety standards; Congress has basically said that the safety assessment of ICAO and other national CAAs is given higher deference than the FAA’s own judgment.

The good news is that ICAO just last month raised the safety bar and implemented a higher standard for the shipment of Lithium batteries which FAA can now adopt.

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