[Federal Register Volume 80, Number 60 (Monday, March 30, 2015)]
[Rules and Regulations]
[Pages 16579-16583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07109]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 175

[Docket No. PHMSA-2009-0126, Notice No. 15-3]


Hazardous Materials: Spare Fuel Cell Cartridges Containing 
Flammable Gas Transported by Aircraft in Passenger and Crew Member 
Checked Baggage

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

[[Page 16580]]


ACTION: Notification of a More Definitive Statement.

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SUMMARY: PHMSA issued a 2011 final rule in which we did not harmonize 
with international regulations regarding the carriage of spare fuel 
cell cartridges in passenger and crew member checked baggage. 
Lilliputian Systems, Inc. (Lilliputian) contested this final rule, 
first by filing an administrative appeal, then challenging the final 
rule in the United States Court of Appeals for the District of Columbia 
Circuit. On January 31, 2014, the Court remanded the rule and ordered 
PHMSA to provide further explanation for the prohibition on airline 
passengers and crew carrying flammable gas fuel cell cartridges in 
their checked baggage, including its response to Lilliputian's 
comments. 741 F.3d 1309, 1314 (D.C. Cir. 2014). As a result, we are 
issuing this document which provides a more thorough explanation and 
substantial evidence to support PHMSA's decision to prohibit the 
carriage of spare fuel cell cartridges in passenger and crew member 
checked baggage.

DATES: March 30, 2015.

FOR FURTHER INFORMATION CONTACT: Michael Stevens, Transportation 
Specialist (Regulations), Standards and Rulemaking Division, Office of 
Hazardous Materials Safety, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590, Telephone: (202) 366-8553 or, via 
email: [email protected] or Shawn Wolsey, Senior Attorney, Office 
of the Chief Counsel, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590, (202) 366-4400 or, via email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In 2009, the International Civil Aviation Organization (ICAO) voted 
and reissued its Technical Instructions for the Safe Transport of 
Dangerous Goods by Air (ICAO Technical Instructions), which lifted the 
previous restriction of spare fuel cell cartridges for all but Division 
4.3 chemistries from passenger and crew member checked baggage. In 
response, on August 24, 2010, the Pipeline and Hazardous Materials 
Safety Administration (PHMSA) issued a notice of proposed rulemaking 
(NPRM) to harmonize U.S. Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) with updated international standards. These changes 
included updates to packaging, labeling, and testing requirements to 
increase harmony with the international rules and promote the flow of 
goods (75 FR 52070, HM-215K, 8/24/2010). PHMSA stated its goal was ``. 
. . to harmonize without diminishing the level of safety currently 
provided by the HMR and without imposing undue burdens on the regulated 
public'' and that we ``. . . evaluate[d] each amendment on its own 
merit.'' [75 FR 52071]
    Ultimately, PHMSA did not adopt every provision of every set of the 
international regulations. In the final rule published January 19, 2011 
[76 FR 3308], PHMSA revised the 49 CFR 175.10 passenger exceptions to 
allow passengers and crew members to place certain spare fuel cell 
cartridges containing a flammable liquid (Class 3) or corrosive 
material (Class 8) in checked baggage. PHMSA stated, ``fuel cell 
cartridges themselves are subject to much more stringent construction, 
testing, and packaging requirements than for similar articles (e.g., 
aerosols).'' However, PHMSA limited the scope of spare fuel cell 
cartridge chemistries allowed in checked baggage by excluding fuel cell 
cartridges containing Division 2.1 (flammable gas) and Division 4.3 
(dangerous when wet) material. In the interest of safety, PHMSA elected 
to continue the longstanding limitations in the HMR for Division 2.1 
(flammable gas) on passenger-carrying aircraft and thus maintained the 
existing prohibition on the transport of spare fuel cells containing 
Division 2.1 (flammable gas) in checked baggage. PHMSA and the Federal 
Aviation Administration (FAA) explained their expressed concern ``due 
to the questionable integrity of [fuel cells] when packed in a 
passenger's checked baggage'' [76 FR 3337].
    As a result of PHMSA's rulemaking, Lilliputian filed an 
administrative appeal in accordance with 49 CFR 106.110. It requested 
PHMSA to revise 49 CFR 175.10(a)(19) to align with the ICAO Technical 
Instructions and allow spare fuel cell cartridges containing Division 
2.1 (flammable gas) to be carried in checked baggage. PHMSA granted the 
administrative appeal by providing Lilliputian and the public 
additional opportunity for comment in a May 25, 2012 NPRM [77 FR 
31274]. The subsequent final rule issued on January 7, 2013 [78 FR 
1101] denied the placement of spare Division 2.1 fuel cell cartridges 
in checked baggage but continued to allow two spare Division 2.1 fuel 
cell cartridges in carry-on baggage.
    Lilliputian filed a Petition for Review of the Final Order in the 
United States Court of Appeals for the District of Columbia Circuit on 
March 8, 2013. In a January 31, 2014, (731 F.3d 1309) decision, the 
Court remanded the rule and ordered PHMSA to ``provide further 
explanation for the prohibition on airline passengers and crew carrying 
flammable-gas fuel cell cartridges in their checked baggage, including 
its response to Lilliputian's comments.'' \1\
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    \1\ 741 F.3d 1314.
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Justification for Denial of the Administrative Appeal

    When PHMSA decides whether to allow an item on a passenger-carrying 
aircraft, the Department only tolerates extraordinarily low levels of 
risk. For example, when failure of a component in an airplane could 
interfere with continued flight and safe landing, the risk of failure 
must be less than one billion to one.\2\ This low level of tolerance 
for risk makes sense because, due to the high volume of air transport, 
even a very improbable event may eventually occur, and with 
catastrophic results. Additionally, PHMSA is required by 49 U.S.C. 
5108(b) to pursue the ``highest degree of safety in pipeline 
transportation and hazardous materials transportation.'' \3\ Under 49 
U.S.C. 5103(b), PHMSA is authorized to issue regulations for the safe 
and secure transportation of hazardous materials in commerce, including 
transportation by air.
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    \2\ http://www.faa.gov/documentLibrary/media/Advisory_Circular/AC25.1309-1A.pdf.
    \3\ PHMSA's Administrator is charged with carrying out all 
duties and powers vested in the Secretary of Transportation under 
chapter 51 of Title 49 of the U.S. Code, which governs the 
transportation of hazardous materials. 49 U.S.C. 108(f)(1).
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    The risks presented by flammable gas on airplanes are clear. 
Flammable gases will burn if mixed with an appropriate amount of air, 
and an ignition source is present, and confined burning of a flammable 
gas can lead to detonation. As a result, PHMSA remains concerned with 
the hazards posed by flammable gases (such as the butane contained in 
some fuel cells) contributing to a fire in the cargo compartment of a 
passenger-carrying aircraft. This concern is particularly relevant to 
carriage in checked baggage, where damage to the fuel cell cartridge 
and the release of a flammable gas may occur if the baggage is 
mishandled.
    PHMSA denied Lilliputian's appeal due to the uncertainty of the 
safety risks posed when combining (1) the uncertainty of how the 
baggage handling would affect the durability and stability

[[Page 16581]]

of these products, (2) the possible over-sight of hazmat communication 
and packaging requirements because the regulations do not apply to 
passengers, and (3) the limitations of aircraft's fire suppression 
systems. PHMSA was particularly concerned by the allowance for 
passengers to transport flammable-gas fuel cells because passengers 
``are not trained to recognize potential hazards'' and ``are unlikely 
to be aware of the safety implications'' of improper packaging or 
handling. Considering those factors combined with the limitations of 
the aircraft's suppression system, (fire suppression systems ``do not 
prevent fires'' and are not ``designed to completely extinguish 
fires'') the safety risks were too great to authorize this exemption. 
PHMSA further explained that the authorization of any additional 
flammable gas on an airplane, in addition to the gases contained in the 
toiletry and medicinal items already allowed, would need to take into 
account ``the cumulative risk of the new authorization combined with 
existing authorizations.'' [78 FR 1104] PHMSA expressed willingness, 
however, to consider allowing certain fuel cells models on a case-by-
case basis. For example, portable oxygen concentrators may be allowed 
at some point in the future, when experience and testing prove that 
safe designs exist.
    Because of the risks presented by flammable gases, a number of 
safety requirements apply to shipments of flammable gas on passenger-
carrying aircraft. PHMSA believes there is sufficient basis for its 
decision because, as previously stated, in the area of aviation safety, 
there is a very low tolerance for risk. In its decision, PHMSA 
considered the known risks of flammable gases, coupled with the 
uncertainties relating to the safety of new fuel cell technology, added 
to the already high volume of air travel and the catastrophic 
consequences of any failure.

Cumulative Risk

    PHMSA's approach to aviation safety is not to permit items merely 
because they are similar to items already permitted. The authorization 
of any additional flammable gas on an aircraft, in addition to the 
toiletry and medicinal items already allowed, needs to take into 
account the cumulative risk of the new authorization combined with 
existing authorizations. A limited exception has existed since 1972 for 
small quantities of such gases in personal medicinal and toiletry 
items, such as the butane used as a propellant in a small aerosol can 
or a butane-powered curling iron (49 CFR 175.10(a)(1)(i). However, most 
Division 2.1 (flammable gas) substances and articles are forbidden from 
transportation as cargo aboard passenger-carrying aircraft, and thus 
prohibiting the carriage of spare fuel cell cartridges containing 
flammable gas in checked baggage is consistent with the agency's 
longstanding position with regard to flammable gases.

Checked Baggage

    The exceptions in 49 CFR 175.10 have not been expanded to permit 
additional flammable gases in checked baggage. As previously noted, 
allowing transportation of flammable gas in airline passengers' checked 
baggage would be inconsistent with the exceptions in 49 CFR 175.10. 
Airline passengers do not comply with the important packaging, 
labeling, and hazard communication requirements when they put items in 
their checked baggage, and they may not even be aware of such 
requirements. Without hazard communication and other notifications to 
handlers that the passenger's baggage contains flammable gas, checked 
baggage could be mishandled, damaging the integrity of an improperly 
packaged container of flammable gas. Negligent packing and excessive 
handling increases the potential that a container of flammable gas in 
checked baggage could rupture, creating conditions for an explosion. 76 
FR 3337.
    Beginning in 2009, the ICAO began considering whether to change its 
regulations to allow transport of fuel cells in checked baggage. Prior 
to that time, fuel cells had been allowed only in carry-on baggage or 
on one's person, in order to mitigate the risk of the fuel cell 
cartridge inadvertently coming into contact with an ignition source.\4\ 
Although members of the ICAO Dangerous Goods Panel were generally 
supportive of permitting most fuel cells containing flammable liquids 
in checked baggage, ``many were wary of permitting fuel cartridges 
containing substances of other classes.'' In particular, ``[s]ome felt 
further consideration was needed with respect to fuel cell cartridges 
containing flammable gases.'' Some participants suggested that changes 
not be adopted to allow these new technologies until ``experience based 
on a longer timeframe could be demonstrated.'' \5\ In the end, ICAO 
included in its Technical Instructions a provision to allow two spare 
fuel cell cartridges containing flammable gas in checked baggage. It 
should be noted that the ICAO Dangerous Goods Panel does not operate 
solely on a consensus basis and that some delegates, including the U.S. 
Panel Member, were not in agreement with this decision. The U.S. Panel 
member spoke against the adoption of this provision when the amendment 
was discussed and agreed to by majority vote during the Dangerous Goods 
Panel's 22nd meeting (held in Montreal, Canada from October 5-16, 
2009).\6\
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    \4\ With regard to the allowance of fuel cell cartridges in 
carry-on baggage or on one's person, the risk is mitigated because 
the fuel cells are contained in a supervised environment. Thus, a 
flight attendant would be able to extinguish any fires that might 
occur in a carry-on bag in the event of a fuel cell cartridge 
inadvertently coming into contact with an ignition source.
    \5\ http://www.icao.int/safety/DangerousGoods/DGP%2022%20Working%20Papers/DGP.22.WP.100.en.pdf at 2.9.4.
    \6\ http://www.icao.int/safety/DangerousGoods/DGP%2022%20Working%20Papers/DGP.22.WP.100.en.pdf.
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FAA Technical Report

    In Lilliputian's comments posted to the docket of the August 24, 
2010 NPRM (PHMSA-2009-0126-2027), they posed five recommendations for 
conducting a proper risk analysis:
     Any analysis should begin with the risk of ignition or 
sparking.
     The analysis should examine the risk of catching fire as a 
result of an external fire.
     The analysis should examine whether a fuel cell fire, once 
ignited, can be effectively extinguished in a timely manner.
     The analysis should look to any experience involving 
similar materials.
     The analysis should evaluate whether the volume of the 
material is relevant in terms of the risk and managing that risk.
    We believe that the Preliminary Investigation of the Fire Hazard 
Inherent in Micro Fuel Cell Cartridges (Final Report) \7\ prepared by 
the FAA Technical Center did address these recommendations posed by 
Lilliputian. The report examined the fire risk presented by fuel cells, 
including cells powered by flammable solids, liquids, and gas, 
including a test that exposed single, small fuel cells of various types 
to a low-intensity flame in a controlled environment. Only a few 
varieties of fuel cells were tested, because the technology was still 
developing; however, one of the fuel cells tested was a butane fuel 
cell manufactured by Lilliputian. The test results showed that, of the 
fuel types tested, ``[b]utane produced the most vigorous fire.'' The 
plastic cartridge used by Lilliputian was breached only 45 seconds 
after exposure

[[Page 16582]]

to flame and the ``butane ignition was rapid, almost explosive'' \8\ 
(emphasis added). It produced an approximately 1,000-degree Fahrenheit 
flame, by far the hottest flame produced by any of the materials in the 
study. While some of the other fuel cell fires were ``easily 
extinguished using Halon 1211,'' a fire suppression system commonly 
used in an aircraft, the butane fire burned so rapidly that the fire 
suppression system did not activate until after all the butane fuel had 
been consumed by the fire.
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    \7\ See Document PHMSA-2009-0126-2366 in this docket.
    \8\ See Document PHMSA-2009-0126-2366 in this docket.
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    A Halon 1211 system is not designed to detect fires. The pilot must 
first see that there is an alert from the fire detection system. Once 
that happens, the pilot will engage the Halon 1211 system, which will 
attempt to suppress, but not extinguish, the fire. While airplanes are 
equipped with fire detection systems, such as Halon 1211, there are no 
systems on board to detect a gas leak. Thus, if a fuel cell cartridge 
placed in checked baggage is damaged and allows butane gas to leak into 
the cargo compartment, there is no way for the pilot to be aware of 
this. The accumulation of the butane gas, if exposed to a spark, would 
then cause an explosion and would lead to a catastrophic failure of the 
airplane.
    The FAA Technical Center tests were designed to determine the 
flammability characteristics of fuel cell cartridges. The tests were 
conducted on single cartridges exposed to a controlled fire. The tests 
did not take into account the interaction of one or more cartridges and 
any adjacent combustible material (i.e., clothing, electronic devices, 
etc.) or the effect of fuel cell cartridges in propagating a fire. We 
do know from the test results that butane produced the most vigorous 
fire, the cartridge provided the least amount of protection from an 
external fire and, once penetrated, the liquid butane burned rapidly 
and filled the test chamber with fire. The butane fire also registered 
the highest temperature (1000 degrees Fahrenheit) and heat flux 
measurements of all tests conducted. The plastic cartridge used by 
Lilliputian was breached only 45 seconds after exposure to flame, and 
the butane ignition was rapid, almost explosive. Thus, the test results 
from the Final Report support our concern that the inherent hazards of 
compressed flammable gases, as demonstrated by exposure to a fire 
involving a fuel cell cartridge containing an estimated volume of only 
50 cc or less of butane, would pose an unacceptable risk in air 
transportation.
    As PHMSA stated in the preamble to the January 19, 2011 final rule, 
Federal hazmat law (49 U.S.C. 5101 et seq.) and policy encourages the 
harmonization of domestic and international standards for hazardous 
materials transportation to the extent practicable, but the law also 
permits PHMSA to depart from international standards in order to 
promote public safety. When considering the adoption of international 
standards under the HMR, PHMSA reviews and evaluates each amendment on 
its own merit, on the basis of its overall impact on transportation 
safety, and on the economic implications associated with its adoption. 
Our goal is to harmonize without diminishing the level of safety and 
without imposing undue burdens on the regulated public. In this 
instance, we believe that restricting the carriage of flammable gas 
fuel cell cartridges to be a necessary variation to the ICAO Technical 
Instructions that enhances the safety of aircraft passengers without 
imposing an unreasonable regulatory burden. Under Federal hazmat law, 
we are tasked with balancing the needs of public safety with economic 
burdens when considering harmonization with international standards. 
Consequently, because we elected not to revise the HMR to align with 
the ICAO Technical Instructions, we believe we did strike a balance by 
continuing to permit flammable gas fuel cell cartridges in carry-on 
baggage.

Disparate Treatment of Aerosols and Butane-Powered Articles

    The Court of Appeals for the District of Columbia Circuit also was 
concerned that PHMSA did not provide a reasoned explanation and 
substantial evidence for the disparate treatment of fuel cell 
cartridges as opposed to other products, particularly medicinal and 
toiletry items that contain flammable gases (i.e. aerosols).

Aerosols

    In order to determine if a hazardous material is permitted in 
checked baggage, PHMSA must take into account the cumulative risk of 
any new authorizations combined with any existing authorizations. Under 
certain conditions, 49 CFR 175.10 permits the carriage of aerosols in 
checked baggage on a passenger-carrying aircraft. This limited 
exception has existed since 1972 for aerosol containers in small 
quantities in personal medicinal and toiletry items. Such items include 
hair spray, deodorant, and certain medicinal products.
    To comply with the ban on chlorofluorocarbons (CFCs) that became 
effective January 1, 1994, \9\ the aerosol industry changed the type of 
propellant used in their products. Unfortunately, this new type of 
propellant is flammable and, because of its widespread use, there was 
concern of a risk-risk tradeoff (ozone layer damage versus cargo 
compartment safety on passenger-carrying aircraft). PHMSA and FAA were 
concerned that static electricity inherent in cargo compartments could 
ignite a leaking flammable aerosol container in passenger baggage.
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    \9\ http://www.epa.gov/ozone/snap/aerosol/qa.html.
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    Based on its concerns, PHMSA reviewed incident reports in the 
Hazardous Materials Identification System (HMIS) database and specific 
incidents that occurred during baggage handling provided by the FAA. 
Accordingly, PHMSA and FAA agreed to work together in certain areas to 
improve the safe transportation of flammable aerosols by adopting 
regulatory and non-regulatory solutions. For example, each agency 
agreed to: (1) Actively participate in the ICAO Dangerous Goods Panel 
that reviews the items that passengers are permitted to carry in the 
cabin and in checked baggage; (2) partner with the Consumer Specialty 
Products Association to enhance the design of aerosol products; and (3) 
amend the HMR to require or clarify that any release of hazmat in 
passenger baggage must be reported. Further, in a final rule published 
on December 20, 2004, PHMSA amended the HMR by requiring that release 
devices on aerosols be protected by a cap or other suitable means to 
prevent the inadvertent release of contents when placed in passenger or 
crew member baggage. [69 FR 76179; (HM-215G)] Because of the prevalence 
of aerosols in everyday travel, these adopted safety measures were 
deemed sufficient while not being overly burdensome to the traveling 
public. However, PHMSA continues to monitor this issue very closely and 
will respond to any negative trends accordingly.
    While PHMSA and FAA adopted safety measures to address the risks 
associated with permitting aerosols in checked baggage, the amount of 
butane in a fuel cartridge (200 mL) is approximately twice as much as 
the amount utilized in a typical 16 ounce aerosol can. Given the amount 
of electronic devices that passengers typically travel with, the 
cumulative volume of butane from fuel cell cartridges that passengers 
could bring aboard an aircraft is a concern. As a result, PHMSA has 
determined there is too much risk in allowing fuel cell

[[Page 16583]]

cartridges in checked baggage in addition to the currently authorized 
flammable aerosols when stowed in inaccessible cargo compartments on 
passenger-carrying aircraft.

Butane-Powered Curling Iron Articles

    As previously stated, 49 CFR 175.10 prescribes certain conditional 
exceptions to the HMR for passengers, crewmembers, and air operators 
for hazardous materials contained in their carry-on (including on one's 
person) and checked baggage. In paragraph (a)(6), hair curlers (curling 
irons), containing a hydrocarbon gas such as butane, are excepted from 
the requirements of the HMR in checked baggage. Flammable gas refills 
for such curlers are not permitted in carry-on or checked baggage. 
(emphasis added).
    In an NPRM published January 23, 2015 (80 FR 3836; [HM-218H]), 
PHMSA is considering prohibiting butane-powered curling iron articles 
in checked baggage. We believe the risk posed by flammable gases in an 
inaccessible compartment on a passenger-carrying aircraft is clear. 
Flammable gases will burn if mixed with an appropriate amount of air 
and confined burning of a flammable gas can lead to detonation. As a 
result, we remain concerned with the flammability hazard posed by 
butane and other flammable gases and the ability of such gases to 
propagate or contribute to a fire in the cargo compartment of an 
aircraft. This concern is particularly relevant to carriage in checked 
baggage, where damage to the curling iron and the subsequent release of 
a flammable gas may occur if the baggage is mishandled or the article 
itself is compromised.

Conclusion

    Because of the risks posed by flammable gas, a number of safety 
requirements apply to cargo shipments of flammable gas on passenger-
carrying aircraft. As previously stated, most Division 2.1 (flammable 
gas) substances and articles are generally forbidden from 
transportation as cargo aboard passenger-carrying aircraft, and PHMSA's 
proposal to prohibit the carriage of butane-powered curling irons in 
checked baggage is consistent with this provision. In the area of 
aviation safety, where the high volume of travel and the catastrophic 
consequences of failure lead to a very low tolerance for risk, we 
firmly believe the known risks of flammable gas are sufficient basis 
for our decision.
    We remain concerned with the flammability hazard posed by butane 
and other flammable gases and the ability of such gases to propagate or 
contribute to a fire in an inaccessible cargo compartment of a 
passenger-carrying aircraft. Moreover, in light of the well-established 
risks related to flammable gas and the long-standing prohibition of 
most flammable gas on passenger-carrying aircraft, PHMSA will continue 
to prohibit fuel cell cartridges that contain a class 2.1 flammable gas 
from being placed in checked baggage.

 Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2015-07109 Filed 3-27-15; 8:45 am]
 BILLING CODE 4910-60-P