[Federal Register Volume 72, Number 182 (Thursday, September 20, 2007)]
[Proposed Rules]
[Pages 53744-53749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18532]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 173, and 175

[Docket No. PHMSA-2006-25446 (HM-243)]
RIN 2137-AE19


Hazardous Materials: Fuel Cell Cartridges and Systems Transported 
on Board Passenger Aircraft in Carry-on Baggage

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA is proposing to amend the Hazardous Materials 
Regulations (HMR) to permit certain fuel cell cartridges and fuel cell 
systems designed for portable electronic devices to be transported by 
passengers and crew in carry-on baggage on board passenger-carrying 
aircraft. The proposed rule would cover fuel cells containing certain 
hazardous materials (flammable liquids, including methanol; formic 
acid; certain borohydride materials; or butane) and meeting certain 
performance and consumer use standards, which we are proposing to 
incorporate by reference into the HMR. We have evaluated the possible 
transportation safety risks presented by these fuel cell cartridges and 
systems and have determined they may safely be transported in the cabin 
of a passenger-carrying aircraft.

DATES: Written comments should be submitted on or before November 19, 
2007.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2006-25446 (HM-243) by any of the following methods:
     Web site: Until September 27, 2007, electronic submissions 
to the DOT Docket Management System (DMS), located at http://dms.dot.gov. Starting on September 28, 2007, all electronic submissions 
must be made to the Federal Docket Management System's (FDMS) 
eRulemaking Portal located at http://www.regulations.gov, and the 
information in the DOT DMS will be migrated to the FDMS. This work is 
being done as part of a larger project to consolidate the federal 
rulemaking docket systems. Please note the FDMS is significantly 
different from the DOT DMS and may assign a new docket number to each 
existing docket. Follow the instructions specific to each docket Web 
site for submitting comments. On December 31, 2007, the DOT DMS will be 
permanently decommissioned.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
notice. For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the Public Participation 
heading of the Supplementary Information section of this document. Note 
that all comments received will be posted without change to the docket 
management system, including any personal information provided. Please 
see the Privacy Act heading under SUPPLEMENTARY INFORMATION.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://dms.dot.gov, and after September 28, 
2007, to http://www.regulations.gov at any time or to Docket 
Operations, U.S. Department of Transportation (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration (PHMSA) 1200 New Jersey Avenue, SE., Washington, 
DC 20590, facsimile telephone number (202) 366-7435, or by e-mail to 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Fuel cell cartridges and fuel cell systems are an emerging energy 
technology developed to provide a more efficient, longer-lasting, and 
renewable power source for electrically operated equipment. Fuel cells 
are designed to replace, augment, or recharge existing battery sources. 
Various types of fuels may be used in fuel cell systems, including but 
not limited to gases meeting the criteria for classification as 
Division 2.1 (flammable gases), solids meeting the criteria for 
classification as Division 4.3 (dangerous when wet), and liquids 
meeting the criteria for classification as Class 3 (flammable) or Class 
8 (corrosive) material. Specific materials used in fuel cells include 
methanol and other types of flammable liquids, butane, hydrogen in 
metal hydride, borohydrides, and formic acid.

II. Current HMR Requirements Applicable to the Transportation of Fuel 
Cells

    Under the Hazardous Materials Regulations (HMR; 49 CFR parts 171-
180), fuel cells generally must be transported in accordance with 
requirements applicable to the material they contain. Thus, a fuel cell 
containing a corrosive material must conform to the packaging and 
hazard communication requirements applicable to that corrosive material 
when offered for transportation. After careful evaluation of possible 
transportation safety risks, PHMSA adopted packaging, testing, and 
hazard communication requirements for transporting fuel cell systems 
and fuel cell cartridges containing flammable liquids, including 
methanol or methanol and water solutions, as cargo by all modes (final 
rule published December 29, 2006; 71 FR 7896). The HMR requirements are 
consistent with international transportation standards applicable to 
the transportation of fuel cell cartridges and systems containing 
flammable liquids in the 14th Revised Edition of the UN Recommendations 
on the Transport of Dangerous Goods (UN Recommendations).

III. International Standards Applicable to the Transportation of Fuel 
Cells

    The International Civil Aviation Organization (ICAO) adopted 
provisions for transporting fuel cell systems and fuel cell cartridges 
containing flammable liquid as cargo on board aircraft in the 2007-2008 
edition of the ICAO Technical Instructions for the Safe Transport of 
Dangerous Goods by Air (ICAO Technical Instructions). These provisions 
are consistent with those for fuel cell systems and cartridges in the 
UN Recommendations. At that time, ICAO also adopted under Section 8; 
1.1.2(r) provisions for transporting fuel cell systems and cartridges 
containing

[[Page 53745]]

flammable liquids (including methanol), formic acid, and butane, in 
carry-on baggage on board passenger-carrying aircraft under certain 
conditions. This passenger carry-on authorization applies to fuel cell 
cartridges with a maximum quantity of 200 ml (6.76 ounces) for liquids, 
200 ml (6.76 ounces) for metal fuel cell cartridges containing butane, 
and 120 ml (4.1 ounces) for non-metallic fuel cell cartridges 
containing butane. No more than two spare fuel cell cartridges are 
allowed per passenger.
    One of the conditions for the passenger authorization in the ICAO 
Technical Instructions is that the fuel cell systems and cartridges 
must conform to the industry technical specification governing the 
design and consumer use of fuel cell cartridges, power units, and power 
systems developed by the IEC. The IEC Specification No. IEC/PAS 62282-
6-1 First Edition, with Technical Corrigendum 1, 2006, addresses fuel 
cell systems with outputs that do not exceed 60 volts and 240 watts. 
The IEC specification provides detailed manufacturing, safety, and 
testing requirements to address use, misuse, and consumer 
transportation. To ensure the capability of the fuel cell and cartridge 
to withstand normal conditions of consumer handling and transportation, 
the specification requires various design type tests such as pressure 
differential, vibration, temperature cycling, high temperature 
exposure, drop, compressive loading, connection cycling, external short 
circuit, and long-term storage.
    Members of the fuel cell industry and the IEC prepared and 
submitted proposals (included in this docket) to the ICAO Dangerous 
Goods Panel that the Panel considered in making its decision to permit 
certain fuel cell systems and cartridges to be transported by 
passengers on board aircraft beginning on January 1, 2007. The 
proposals provide an assessment of the benefits and risks associated 
with transporting fuel cell systems and cartridges containing butane, 
formic acid, methanol, hydrogen stored in metal hydrides, and sodium 
borohydride-based and potassium borohydride-based fuels. PHMSA 
conducted its own independent technical assessment of the safety risks 
associated with each of the proposed fuel cell system and cartridge 
technologies; based on this evaluation, PHMSA supported the passenger 
provisions adopted in the ICAO Technical Instructions.

IV. Flammable Gas (Butane) and Leakage Criteria

    In our technical evaluation for this NPRM, PHMSA, in coordination 
with the Federal Aviation Administration's (FAA's) William J. Hughes 
Technical Center (FAA Tech Center), conducted an additional examination 
specific to the design type testing criteria for fuel cell cartridges 
containing liquefied flammable gas (butane). This evaluation concluded 
that the industry technical specification developed to govern the 
design and use of fuel cell cartridges and systems, IEC/PAS 62282-6-1, 
required amendment to ensure fuel cells containing a flammable gas are 
designed and tested to a standard that is equivalent to the safety 
standard established for certain non-bulk gas packagings in the HMR.
    Based on the PHMSA and FAA evaluations, the ICAO Dangerous Goods 
Panel at its Working Group 2006 meeting (October 25-November 3, 2006) 
recommended that the IEC amend its fuel cell specification to mandate a 
zero-leak standard as a basis for successfully passing the design-type 
tests. This zero-leak standard would be demonstrated by subjecting the 
cartridge test sample to a water bath test (consistent with Section 
6.2.4.1 of the UN Recommendations) after each design type test. The IEC 
revised its test protocols and acceptance criteria and issued an 
addendum (included in this docket) to the IEC PAS 62282-6-1 on April 
18, 2007, published as ``IEC/PAS 62282-6-1 First Edition, with 
Technical Corrigendum 1, 2006.'' The IEC plans to continue to review 
this standard for possible improvements. PHMSA will monitor further 
developments to the standard and, subject to technical review, may 
propose to adopt a later version in a subsequent rulemaking.

V. Petitions for Rulemaking

    On March 2, 2006, the U.S. Fuel Cell Council petitioned PHMSA to 
permit airline passengers and crew to transport fuel cell systems and 
cartridges in carry-on baggage (Petition No. P-1475). In its petition, 
the U.S. Fuel Cell Council requests that PHMSA revise Sec.  175.10 to 
permit portable electronic devices, such as cameras, laptop computers, 
and hand-held audio devices, powered by fuel cell systems and 
cartridges containing flammable liquid, formic acid, or butane to be 
transported by passengers and crew on passenger-carrying aircraft under 
the conditions adopted by ICAO. On August 23, 2006, Medis Technologies, 
Ltd., and Millennium Cell, Inc., petitioned PHMSA to permit fuel cell 
systems and cartridges containing Class 8 borohydride materials to be 
transported by passengers and crew in carry-on baggage on board 
passenger-carrying aircraft (Petition No. P-1483). Medis Technologies 
and Millennium Cell assert that Class 8 borohydride materials present 
the same risks in transportation as formic acid, also a Class 8 
material. Both petitions may be viewed until September 27, 2007, in the 
DMS docket for this rulemaking at http://dms.dot.gov, and beginning on 
September 28, 2007, in the FDMS docket for this rulemaking at http://www.regulations.gov.

VI. Proposals in This NPRM

    In this NPRM, we are proposing to permit the transportation in 
carry-on baggage on passenger-carrying aircraft of fuel cell cartridges 
and systems containing Class 3 flammable liquids, including methanol; 
formic acid and borohydride materials meeting the definition for a 
Class 8 material; and butane, a Division 2.1 gas. As proposed in this 
NPRM, the fuel cells must conform to certain performance criteria. The 
proposals in this NPRM are consistent with the passenger authorizations 
adopted for the 2007-2008 edition of the ICAO Technical Instructions.
    Based on our assessment to date, we agree with the U.S. Fuel Cell 
Council that fuel cell cartridges and systems containing flammable 
liquids, formic acid, and butane do not pose an unreasonable safety 
risk when carried on board aircraft by passengers and crew members, 
provided they meet the specified performance standards. We also agree 
with Medis Technologies and Millennium Cell that fuel cell cartridges 
and systems containing borohydride materials pose similar safety risks 
and will operate in a similar manner as those containing formic acid.
    It is important to note, however, that we are continuing to work 
with the FAA Tech Center to evaluate the safety risks posed by the air 
transportation of fuel cell cartridges and systems containing various 
types and classes of hazardous materials. We expect to conclude this 
evaluation prior to issuing a final rule under this docket; it will be 
placed in the docket for this rulemaking.
    As indicated above, we are proposing to require fuel cell 
cartridges and systems to meet rigorous performance criteria that are 
consistent with the conditions applicable to the passenger 
authorization in the ICAO Technical Instructions. First, we are 
proposing to incorporate into the HMR the industry technical 
specification and addendum developed by the IEC governing the

[[Page 53746]]

design and consumer use of fuel cell cartridges, power units, and power 
systems (IEC/PAS 62282-6-1 First Edition, with Technical Corrigendum 1, 
2006). The IEC technical specification is a comprehensive standard that 
addresses design, manufacturing, testing, and transportation specific 
to micro-fuel cells. It prescribes requirements for valves, filling, 
packaging performance, failure mode analysis, consumer refilling, 
materials of construction, exterior and exhaust temperature limits, 
warnings, certification, markings, and manufacturers' instructions. As 
revised by the recent addendum, the IEC specification mandates a zero-
leak standard as a basis for successfully passing the design-type tests 
and, thus, is equivalent to the safety standard established for certain 
non-bulk gas packagings in the HMR. We also propose to limit fuel cell 
cartridges and systems carried by airline passengers and crew to those 
marked ``APPROVED FOR CARRIAGE IN AIRCRAFT CABIN ONLY'' by the 
manufacturer. This marking is the manufacturer's certification that the 
fuel cell cartridges and systems conform to the performance standard 
established in the revised IEC technical specification.
    In addition, in this NPRM, we are proposing to limit the amount of 
hazardous material that may be contained in each individual fuel cell 
authorized for transportation in carry-on baggage on board passenger-
carrying aircraft. Consistent with the standard adopted for the ICAO 
Technical Instructions, we propose to limit fuel cells containing 
liquid fuels to 200 mL (6.76 ounces) of fuel per cartridge, fuel cells 
containing liquefied gases to 200 mL (6.76 ounces) of fuel per metal 
cartridge and 120 mL (4 fluid ounces) of fuel per non-metallic fuel 
cell cartridge, and fuel cells containing solid materials to 200 g (7 
ounces) of fuel per cartridge. Also consistent with the ICAO Technical 
Instructions, each passenger or crew member would be permitted to carry 
up to two spare cartridges.
    To reduce possible releases, we propose to prohibit passengers and 
crew members from refilling fuel cell cartridges and systems, except to 
install a spare cartridge. In addition, we propose to limit fuel cell 
cartridges and systems carried by passengers and crew members to a type 
and design that will not continue to charge batteries when the device 
being powered is not in use. Again, these prohibitions are consistent 
with the passenger authorizations for fuel cells adopted under the ICAO 
Technical Instructions.

VII. Transportation Security Administration

    The Department of Homeland Security's Transportation Security 
Administration (TSA) is authorized to prescribe security standards for 
all modes of transportation, including aviation (49 U.S.C. 114(d)). 
Under this authority, TSA prohibits airline passengers from carrying 
weapons, explosives, or incendiary devices and has published several 
interpretative rules to provide guidance on the types of property TSA 
considers subject to the prohibition (68 FR 7444; 68 FR 9902; 70 FR 
9877).
    As PHMSA developed this NPRM, we consulted with TSA concerning 
current security limitations applicable to the carriage of fuel cells 
by aircraft passengers and crew members and shared with TSA our 
technical analysis supporting this rulemaking. We understand that TSA 
is considering whether any additional security measures for fuel cells 
or fuel cell systems may be appropriate. In any case, this rulemaking 
would not limit TSA's authority to address security concerns related to 
the transportation of fuel cells or fuel cell systems.
    On September 26, 2006, TSA imposed a strict limit on liquids, gels, 
and aerosols an aircraft passenger is permitted to take through a 
security checkpoint in carry-on baggage. TSA limits these materials to 
3-ounce (100 mL) or smaller containers placed in a clear quart-size, 
zip-top plastic bag. Fuel cell cartridges and systems would be subject 
to this limitation, notwithstanding any rule adopted in this 
proceeding.

VIII. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This notice of proposed rulemaking is published under the following 
statutory authorities:
    1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to 
prescribe regulations for the safe transportation, including security, 
of hazardous material in intrastate, interstate, and foreign commerce. 
This NPRM proposes regulations to promote the safe transportation of 
fuel cells carried by airline passengers and crew members. To this end, 
as detailed above, PHMSA proposes to limit the types and quantities of 
fuel cell cartridges and fuel cell systems permitted on passenger 
aircraft, prescribe specific performance-based design and packaging 
criteria for these articles, and limit the manner in which they may be 
used during air transportation.
    2. Section 5120 of Federal hazardous materials transportation law 
(49 U.S.C. 5120), authorizes the Secretary of Transportation to 
participate in the development of international standards for the 
transportation of hazardous materials and grants the Secretary broad 
discretion to harmonize the HMR with international standards. Section 
5120(c) permits the Secretary to establish more stringent standards for 
transportation in the United States as necessary in the public 
interest. The proposals in this NPRM would harmonize the HMR with 
international requirements for fuel cell systems and cartridges to the 
extent these are consistent with PHMSA's safety objectives.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and was not reviewed by the 
Office of Management and Budget. This NPRM is a non-significant rule 
under the Regulatory Policies and Procedures of the Department of 
Transportation [44 FR 11034].
    Fuel cells are an emerging technology designed to meet the growing 
demand for alternative energy sources. Fuel cell technology has not yet 
achieved wide-spread commercialization, but is being developed for use 
in mobile phones, laptop computers, and, to a lesser extent, 
camcorders, digital cameras, and personal digital assistants 
(``PDAs''). The U.S. Fuel Cell Council found, as a result of its 2006 
survey of 181 industry respondents, that sales from 2005 to 2006 of all 
fuel cell and fuel cell-based systems, of which those designed for 
portable electronic devices are currently a small part, increased by 7 
percent to $353 million, and research and development expenditures and 
industry employment over the same period increased by 11 and 12 percent 
to $796 million and 7,074 employees, respectively. The industry 
projects fuel cells for portable electronic devices will achieve 
significant market penetration by 2009.
    By proposing to authorize their carriage by airline passengers and 
crew, the regulatory changes addressed in this rulemaking will lift 
barriers to the commercialization and distribution of fuel cell 
cartridges for use in personal electronic equipment. The costs 
associated with this rulemaking proposal primarily relate to the costs 
for testing fuel cell designs in accordance with the IEC consensus 
standard. We expect most fuel cell manufacturers will voluntarily 
comply with the IEC standard as a positive marketing tool

[[Page 53747]]

because it addresses broad consumer safety issues and provides 
independent assurance that fuel cells will meet a rigorous safety 
standard. Thus, the incremental costs imposed by this NPRM are expected 
to be minimal.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria set forth in Executive Order 13132 
(``Federalism''). Any rule resulting from this rulemaking will preempt 
State, local, and Indian tribe requirements but will not have 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    Federal hazardous materials transportation law (49 U.S.C. 5125(b)) 
expressly preempts State, local, and Indian tribe requirements on 
certain covered subjects, as follows:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials, and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials; and
    (5) The design, manufacture, fabrication, inspection, marking, 
maintenance, reconditioning, repair, or testing of a packaging or 
container represented, marked, certified, or sold as qualified for use 
in transporting hazardous material.
    This proposed rule addresses covered subject items (1), (2), (3), 
and (5) above and would preempt State, local, and Indian tribe 
requirements not meeting the ``substantively the same'' standard. 
Pursuant to 49 U.S.C. 5125(b)(2), we would deem federal preemption 
effective upon the effective date of the final rule. We are proposing 
to make the final rule effective approximately 90 days after it is 
published in the Federal Register.

D. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles 
and criteria set forth in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not have tribal implications and does not impose substantial 
direct compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities, 
unless the agency determines the rule is not expected to have a 
significant impact on a substantial number of small entities. The 
proposed rule will relax regulatory barriers to the transportation of 
fuel cells used in personal electronic devices and, accordingly, is 
expected to have a positive impact on small businesses that 
manufacture, distribute, transport, or use such items. As indicated 
above, we expect the incremental costs imposed by this NPRM to be 
minimal. Therefore, I certify that, if adopted, the proposals in this 
NPRM will not have a significant impact on a substantial number of 
small entities.
    This proposed rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    Section 1320.8(d), Title 5, Code of Federal Regulations, requires 
PHMSA to provide interested members of the public and affected agencies 
an opportunity to comment on information collection and recordkeeping 
requests. This NPRM does not include new information collection or 
recordkeeping requirements.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$120.7 million or more to either State, local or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act (NEPA), Sec. Sec.  4321-4375, 
requires that federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order federal agencies to conduct an environmental review considering 
(1) the need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
alternatives, and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b).
Purpose and Need
    Fuel cells are an emerging energy technology designed to replace, 
augment, or recharge existing battery sources. The fuel cell designs 
currently under development are powered by one of a variety of 
hazardous materials fuels, including methanol and other types of 
flammable liquids, butane flammable gas, dangerous when wet hydrogen in 
metal hydride, and corrosive liquids containing formic acid or 
borohydride materials.
    The HMR and the ICAO Technical Instructions already include 
provisions for transporting fuel cell systems and fuel cell cartridges 
containing flammable liquid as cargo on board aircraft. See 49 CFR 
173.230, and Special Provision 146 of the HMR, and Packing Instruction 
313 of the 2007-2008 edition of the ICAO Technical Instructions. In 
addition, the ICAO also adopted (in Section 8:1.1.2(r)) provisions that 
will permit these devices to be fueled by formic acid or butane, and 
transported in carry-on baggage on board passenger-carrying aircraft 
under certain conditions. This rulemaking proposes to harmonize the HMR 
with these additional ICAO requirements. To limit both the safety and 
environmental consequences should an incident occur, this rulemaking 
also proposes restrictions on the fuel cell system configurations and 
limits on the amount of hazardous material contained in each fuel cell 
cartridge. There are no significant environmental impacts associated 
with this NPRM.
Alternatives
    The alternatives PHMSA is considering are as follows:
    No action--If no action is taken, passengers would not be permitted 
to

[[Page 53748]]

transport personal electronic devices powered by fuel cell technology 
in carry-on baggage on domestic flights. The industry views such 
authorization as key to continued development and use of this 
technology. Without explicit action to permit airline passengers to 
carry fuel cell powered devices, technological development could well 
be delayed. This action is not recommended.
    Actions Proposed in this NPRM--The actions proposed in this NPRM 
would harmonize the HMR requirements for fuel cells with those 
prescribed in the international regulations. These proposed amendments 
are intended to update, clarify, and provide relief from certain 
existing regulatory requirements to promote safer transportation 
practices, finalize outstanding petitions for rulemaking, facilitate 
international commerce, and make the regulations easier to understand. 
This action is recommended.
    To Regulate All Fuel Cells in the Manner Prescribed in the IEC 
Standard--In addition to the materials covered by the proposed rule, 
the IEC standard covers fuel cells containing solid Division 4.3 
(dangerous when wet) materials. As explained above, this design was not 
included in the ICAO standard to which we are proposing to harmonize in 
this rulemaking. PHMSA believes those fuel cell designs that have not 
been included in the ICAO standards warrant further safety review and 
that adopting a standard inconsistent with the international standard 
cannot be justified at this time.
Analysis of Environmental Impacts
    We regulate hazardous materials transported by aircraft, vessel, 
rail, and highway. The potential for environmental damage or 
contamination exists when packages of hazardous materials are involved 
in accidents or en route incidents resulting from cargo shifts, valve 
failures, package failures, or loading, unloading, or handling 
problems. The ecosystems that could be affected by a release include 
air, water, soil, and ecological resources (for example, wildlife 
habitats). The adverse environmental impacts associated with releases 
of most hazardous materials are short-term impacts that can be greatly 
reduced or eliminated through prompt clean up of the accident scene. 
Most hazardous materials are not transported in quantities sufficient 
to cause significant, long-term environmental damage if they are 
released.
    The hazardous material regulatory system is a risk-management 
system that is prevention oriented and focused on identifying a hazard 
and reducing the probability and quantity of a hazardous material 
release. Hazardous materials are categorized by hazard analysis and 
experience into hazard classes and packing groups. The regulations 
require each shipper to classify a material in accordance with these 
hazard classes and packing groups; the process of classifying a 
hazardous material is itself a form of hazard analysis. Further, the 
regulations require the shipper to communicate the material's hazards 
through use of the hazard class, packing group, and proper shipping 
name on the shipping paper, labels and markings on packages, and 
placards on transport vehicles. Thus the shipping paper, labels, 
markings, and placards communicate the most significant findings of the 
shipper's hazard analysis. Excluding compressed gases, radioactive 
materials, and explosives, which all have their own packaging strength 
criteria, a hazardous material is assigned to one of three packing 
groups based upon its degree of hazard--from a high hazard, Packing 
Group I, to a low hazard, Packing Group III material--except gases and 
certain other materials with high integrity packagings. The HMR are 
designed to ensure the quality, damage resistance, and performance 
standards of the packaging for each hazardous material are appropriate 
for the hazards of the material transported.
    We have reviewed the risks associated with transporting fuel cell 
systems and cartridges. The amount of hazardous material contained 
within the fuel cells or cartridges to which this NPRM applies is 
minimal, limited to 200 mL or 200 g by this proposal. Even if a large 
number of these devices were compromised and their hazardous materials 
contents released, the environmental impact of the release would not be 
significant. We have determined there will be no significant 
environmental impacts associated with this proposed rule.
Consultation and Public Comment
    As discussed above, PHMSA consulted with the IEC and many companies 
representing the fuel cell industry here and abroad to prepare for U.N. 
Dangerous Goods Council meetings on these devices. PHMSA also 
participated in the technical review of papers prepared by these 
companies explaining the potential risks and measures taken in the IEC 
standard to reduce risks for each fuel the IEC standard states may be 
present in a fuel cell. In addition, also as discussed earlier, PHMSA 
has consulted extensively with the U.S. Fuel Council, Medis 
Technologies, Ltd., and Millenium Cell, Inc., in response to their 
petitions for rulemaking, numbered P-1475 and P-1483, to permit 
passengers and crew to transport in carry-on baggage on board passenger 
aircraft fuel cells containing flammable liquid, formic acid, butane, 
and Class 8 borohydride materials for use in portable electronic 
devices. PHMSA has also received a letter signed by approximately 18 
companies supporting the proposed regulation of fuel cells in the HMR.
    We invite interested persons to submit comments on the potential 
environmental, safety, and other impacts of the proposals subject to 
federal regulation in this NPRM.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78), which may also be found at http://dms.dot.gov, and on 
and after September 28, 2007, may be found at http://www.regulations.gov.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

49 CFR Part 175

    Air carriers, Hazardous materials transportation, Incorporation by 
reference, Radioactive materials, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, we propose to amend 49 CFR 
Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 Note); Pub. L. 104-134 
section 31001.


[[Page 53749]]


    2. In Sec.  171.7, in paragraph (a)(3), in the Table, an entry for 
the International Electrotechnical Commission is added in appropriate 
alphabetical order to read as follows:


Sec.  171.7  Reference material.

* * * * *
    (a) * * *
    (3) * * *

------------------------------------------------------------------------
             Source and name of material               49 CFR reference
------------------------------------------------------------------------
 
                              * * * * * * *
International Electrotechnical Commission (IEC) 3,
 rue de Varemb[eacute], P.O. Box 131, CH--1211,
 GENEVA 20, Switzerland:
    Fuel cell technologies--Part 6-1: Micro fuel           Sec.   175.10
     cell power systems--Safety, IEC/PAS 62282-6-1
     First Edition, with Technical Corrigendum 1,
     2006...........................................
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    2. In Sec.  171.8, two new definitions for ``fuel cell'' and ``fuel 
cell cartridge'' are added in alphabetical order to read as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Fuel cell means an electrochemical device that converts the energy 
of the chemical reaction between a fuel, such as hydrogen or hydrogen 
rich gases, alcohols, hydrocarbons, and an oxidant, such as air or 
oxygen, to direct current (d.c.) power, heat, and other reaction 
products.
    Fuel cell cartridge or Fuel cartridge means a removable article 
that contains and supplies fuel to the micro fuel cell power unit or 
internal reservoir, not to be refilled by the user.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    3. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    4. In Sec.  173.230, paragraph (a) is revised and new paragraph (d) 
is added, to read as follows:


Sec.  173.230  Fuel cell cartridges containing flammable liquids.

    (a) A fuel cell cartridge must be designed and constructed to 
prevent the fuel it contains from leaking during normal conditions of 
transportation and be free of electric charge generating components.
* * * * *
    (d) Fuel cells intended for transportation in carry-on baggage on 
board passenger aircraft must also comply with the applicable 
provisions prescribed in Sec.  175.10 of this subchapter.

PART 175--CARRIAGE BY AIRCRAFT

    5. The authority citation for part 175 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    6. In Sec.  175.10, paragraph (a)(18) is added to read as follows:


Sec.  175.10  Exceptions for passengers, crew members, and air 
operators.

    (a) * * *
    (18) Portable electronic devices (for example, cameras, cellular 
phones, laptop computers, and camcorders) powered by fuel cell systems, 
and not more than two spare fuel cartridges per passenger or crew 
member, when transported in carry-on baggage by aircraft under the 
following conditions:
    (i) Fuel cell cartridges may contain only Class 3 flammable liquids 
(including methanol), Class 8 formic acid, Class 8 borohydride 
materials, or Division 2.1 butane;
    (ii) The maximum quantity of fuel in any fuel cell cartridge may 
not exceed:
    (A) 200 mL (6.76 ounces) for liquids,
    (B) 120 mL (4 fluid ounces) for liquefied gases in non-metallic 
fuel cell cartridges, or 200 mL for metal fuel cell cartridges;
    (C) 200 g (7 ounces) for solids;
    (iii) No more than two spare fuel cell cartridges may be carried by 
a passenger;
    (iv) Fuel cell systems containing fuel and fuel cell cartridges 
including spare cartridges are permitted in carry-on baggage only;
    (v) Fuel cell cartridges may not be refillable by the user. 
Refueling of fuel cell systems is not permitted except that the 
installation of a spare cartridge is allowed. Fuel cell cartridges that 
are used to refill fuel cell systems but that are not designed or 
intended to remain installed (fuel cell refills) in a portable 
electronic device are not permitted;
    (vi) Fuel cell systems and fuel cell cartridges must conform to 
IEC/PAS 62282-6-1 (IBR; see Sec.  171.7 of this subchapter);
    (vii) Interaction between fuel cells and integrated batteries in a 
device must conform to IEC/PAS 62282-6-1. Fuel cell systems for which 
the sole function is to charge a battery in the device are not 
permitted;
    (viii) Fuel cell systems must be of a type that will not charge 
batteries when the portable electronic device is not in use; and
    (ix) Each fuel cell cartridge and system that conforms to the 
requirements in this paragraph (a)(18) must be durably marked by the 
manufacturer with the wording: ``APPROVED FOR CARRIAGE IN AIRCRAFT 
CABIN ONLY'' to certify that the fuel cell cartridge or system meets 
the specifications in IEC/PAS 62282-6-1 and with the maximum quantity 
and type of fuel contained in the cartridge or system.
* * * * *

    Issued in Washington, DC, on September 14, 2007, under the 
authority delegated in 49 CFR part 106.
Theodore L. Willke,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E7-18532 Filed 9-19-07; 8:45 am]
BILLING CODE 4910-60-P