[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Rules and Regulations]
[Pages 31529-31531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11729]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 175

[Docket No. PHMSA-2015-0165 (HM-262)]
RIN 2137-AF12


Hazardous Materials: Carriage of Battery-Powered Electronic 
Smoking Devices in Passenger Baggage

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA) is issuing a final rule to prohibit passengers and crewmembers 
from carrying battery-powered portable electronic smoking devices 
(e.g., e-cigarettes, e-cigs, e-cigars, e-pipes, e-hookahs, personal 
vaporizers, electronic nicotine delivery systems) in checked baggage 
and from charging these devices and their batteries on board the 
aircraft. However, these devices may continue to be carried in carry-on 
baggage. This action is consistent with the interim final rule (IFR) 
published in the Federal Register on October 30, 2015, and a similar 
amendment in the 2015-2016 Edition of the International Civil Aviation 
Organization Technical Instructions for the Safe Transport of Dangerous 
Goods by Air (ICAO Technical Instructions). This final rule amends the 
Hazardous Materials Regulations to maintain alignment with the ICAO 
Technical Instructions. Furthermore, this final rule does not impact 
the existing rules on the transport of lithium batteries or other 
portable electronic devices that are transported for personal use in a 
passenger's checked or carry-on baggage.

DATES: Effective: June 20, 2016.

FOR FURTHER INFORMATION CONTACT: Kevin A. Leary, (202) 366-8553, 
Standards and Rulemaking Division, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Ave. SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Comment Discussion
III. Regulatory Analyses and Notices
    A. Statutory Authority for This Rulemaking
    B. Executive Order 12866, Executive Order 13563, and DOT 
Regulatory Policies and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Executive Order 13609 and International Trade Analysis
    J. Environmental Assessment
    K. Privacy Act
IV. List of Subjects

I. Background

    On October 30, 2015, PHMSA published an IFR in the Federal Register 
[80 FR 66817] that prohibits passengers and crewmembers from carrying 
battery-powered portable electronic smoking devices (e.g., e-
cigarettes, e-cigs, e-cigars, e-pipes, personal vaporizers, electronic 
nicotine delivery systems) in checked baggage and from charging these 
devices and their batteries on board the aircraft. The use of battery-
powered portable electronic smoking devices has been rising 
substantially, and they have increasingly become a common item in 
passenger baggage. Prior to the issuance of this IFR, airline 
passengers and crewmembers were permitted to carry these devices in 
either checked or carry-on baggage under the provisions for portable 
electronic devices contained in Sec.  175.10(a)(18) of the Hazardous 
Materials Regulations (HMR; 49 CFR parts 171-180). However, the 
provisions for portable electronic devices do not adequately address 
the safety risks posed by battery-powered portable electronic smoking 
devices, which include a heating element as a function of their design. 
Specifically, a battery-powered portable electronic smoking device 
contains a liquid, an atomizer or heating element, and a battery. When 
this device is operated the heating element vaporizes the liquid, so 
when in checked baggage, the device may lead to the generation of 
extreme heat with potential ignition of nearby contents.
    Recent fire incidents involving battery-powered portable electronic 
smoking devices in checked baggage and actions taken by the Federal 
Aviation Administration (FAA) and ICAO all of which are described in 
the October 30, 2015 IFR, prompted action to address this issue. The 
requirements in this final rule apply only to battery-powered portable 
electronic smoking devices (e.g., e-cigarettes, e-cigs, e-cigars, e-
pipes, e-hookahs, personal vaporizers, electronic nicotine delivery 
systems). Notably, this final rule does neither prohibits passengers 
from transporting other devices containing batteries for personal use 
(such as laptop computers, cell phones, cameras, etc.) in checked or 
carry-on baggage, nor does it restrict passengers from transporting 
batteries for personal use in carry-on baggage.

II. Comment Discussion

    PHMSA received eleven comments to the October 30, 2015 IFR: Four of 
the commenters supported the provisions of the IFR as written; four of 
the commenters suggested the prohibition of the carriage of battery-
powered portable electronic smoking devices should be extended to 
carry-on baggage; one commenter suggested that the prohibition should 
also be extended to prohibit such devices to be transported as mail on 
passenger aircraft; and two commenters objected to all or part of the 
IFR.
    The four commenters who recommended that PHMSA extend the 
prohibition of the IFR to prohibit the carriage of battery-powered 
portable electronic smoking devices in carry-on and checked baggage 
noted that if these devices pose a fire risk they should not be 
permitted in the cabin of an aircraft either. PHMSA believes that 
prohibiting the carriage of these devices only in checked baggage best 
targets the safety issue that we are addressing. Permitting the 
carriage of these devices only in carry-on baggage or on the person 
would be the best alternative because when carried in the passenger 
cabin, the flight crew can quickly intervene in the case of 
overheating, short circuit, or fire.
    One commenter recommended that PHMSA amend the IFR to prohibit the 
transport of battery-powered portable electronic smoking devices in the 
mail because a package containing such devices could be carried as mail 
aboard a passenger aircraft. The HMR do not apply to any matter subject 
to the postal laws and regulations of the United States; therefore, 
this amendment is beyond the scope of PHMSA's regulatory authority (see 
Sec.  171.1(d)(7)). However, we shared the comment with the United 
States Postal Service (USPS) for their consideration.
    Of the two commenters who objected to all or part of the IFR, one 
was

[[Page 31530]]

opposed to the provisions and suggested that the devices should be made 
safer rather than restricting their use. PHMSA is taking this action to 
address a documented safety issue, and we do not believe the 
restrictions will place an undue burden on device manufacturers, 
aircraft passengers, crewmembers, or airlines. The other commenter 
recommended that PHMSA amend the IFR to eliminate the prohibition 
against the charging of standalone e-cigarette batteries, further 
providing information on one specific product that incorporates safety 
circuitry to prevent overcharge and evidence that it is intended to be 
charged only when removed from the heater cartridge. In the IFR, PHMSA 
noted that many of the documented device failures occurred while the 
device was charging, resulting in the ignition of nearby combustible 
materials. PHMSA restricted charging of the devices and their batteries 
during flight to address those concerns and to maintain consistency 
with the ICAO Technical Instructions. While the commenter provided 
information on one battery-powered portable electronic smoking device, 
there are many configurations, both with and without removable 
batteries, to consider. Additionally, users who modify their device may 
bypass the built-in safety circuitry designed to prevent overheating. 
PHMSA determined that the limited prohibition against the carriage of 
battery-powered portable electronic smoking devices in checked baggage 
and a prohibition against the charging of these devices and their 
batteries while on board the aircraft address the known risks in the 
narrowest possible way.

III. Regulatory Analyses and Notices

A. Statutory Authority for This Rulemaking

    This rulemaking is issued under the authority of the Federal 
Hazardous Materials Transportation Law (49 U.S.C. 5101 et seq.), which: 
(1) Authorizes the Secretary of Transportation to prescribe regulations 
for the safe transportation, including security, of hazardous materials 
in intrastate, interstate, and foreign commerce (49 U.S.C. 5103(b)); 
(2) authorizes the Administrator of the Federal Aviation Administration 
to promote safe flight of civil aircraft in air commerce by prescribing 
regulations and minimum standards for practices, methods, and 
procedures the Administrator finds necessary for safety in air commerce 
and national security (49 U.S.C. 44701); and (3) authorizes the 
Secretary of Transportation to ensure that, to the extent practicable, 
regulations governing the transportation of hazardous materials in 
commerce are consistent with standards adopted by international 
authorities (49 U.S.C. 5120(b)).
    In this final rule, PHMSA amends the HMR to maintain alignment with 
the ICAO Technical Instructions.

B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') require Federal 
agencies to regulate in the ``most cost-effective manner,'' to make a 
``reasoned determination that the benefits of the intended regulation 
justify its costs,'' and to develop regulations that ``impose the least 
burden on society.'' This final rule is not considered a significant 
regulatory action under Executive Order 12866 and the Regulatory 
Policies and Procedures of the Department of Transportation [44 FR 
11034].
    PHMSA does not anticipate that the actions in this final rule will 
impose a significant impact on airlines, airline passengers, 
crewmembers, or the Federal government. In fact, most U.S. airlines 
proactively notified airline passengers (e.g., Web sites, automated 
check-in facilities, signage, and verbal notifications from the 
operator) prior to the issuance of the October 30, 2015 IFR. PHMSA, the 
FAA, and the Transportation Security Administration (TSA) each updated 
its guidance to passengers on prohibited items, including battery-
powered portable electronic smoking devices, to reflect the provisions 
of the IFR. Moreover, airline passengers and crewmembers are still 
permitted to carry battery-powered portable electronic smoking devices 
in their carry-on baggage or on their person. Spare lithium batteries 
must be individually protected by placement in original retail 
packaging or by otherwise insulating terminals (e.g., by taping over 
exposed terminals or placing each battery in a separate plastic bag or 
protective pouch). However, as this is consistent with existing 
requirements for the carriage of spare lithium batteries for portable 
electronic devices, PHMSA does not anticipate this will have any impact 
on passengers. Some passengers may incur a non-quantifiable cost in the 
lost opportunity to charge their device while on board the aircraft, 
but PHMSA expects this will be a small number of passengers and the 
per-passenger cost will be small.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''), 
published in the Federal Register on August 10, 1999 [64 FR 43255], and 
the President's memorandum (``Preemption''), published in the Federal 
Register on May 22, 2009 [74 FR 24693]. This final rule does not adopt 
any regulation that: (1) Has 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; or (2) imposes substantial direct compliance costs on State 
and local governments. PHMSA is not aware of any State, local, or 
tribal requirements that would be preempted by amending the provisions 
for the carriage of battery-powered portable electronic smoking devices 
by airline passengers or crewmembers. In addition, this final rule does 
not have sufficient federalism impacts to warrant the preparation of a 
federalism assessment.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). This final rule does 
not have tribal implications and does not impose substantial direct 
compliance costs, therefore the funding and consultation requirements 
of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
Federal agencies to review regulations to assess their impact on small 
entities, unless the agency determines that a rule is not expected to 
have a significant impact on a substantial number of small entities. 
Although this final rule places a limited prohibition on the carriage 
of battery-powered portable electronic smoking devices by airline 
passengers and crewmembers in checked baggage, such individuals would 
still be permitted to carry these devices in carry-on baggage or on 
their person. The provisions of this final rule do not impose any 
direct or indirect adverse economic impacts for small units of 
government, businesses, or other organizations, and PHMSA did not 
receive any comments specifically relating to the impact of the IFR 
rule on small entities.

[[Page 31531]]

F. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

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 rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $155 
million or more, adjusted for inflation, to State, local, or tribal 
governments, in the aggregate, or to the private sector in any one 
year, and it is the least burdensome alternative that achieves the 
objective of the rule.

I. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609 (``Promoting International Regulatory 
Cooperation''), Federal agencies must consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and we have 
assessed the effects of this final rule to ensure that it does not 
cause unnecessary obstacles to foreign trade. Therefore, this 
rulemaking is consistent with Executive Order 13609 and PHMSA's 
obligations under the Trade Agreement Act, as amended.

J. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires that Federal agencies consider the 
consequences of major Federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. This final rule only impacts how a passenger may carry 
battery-powered portable electronic smoking devices on aircraft, not 
whether a passenger may carry such devices. We find that there are no 
significant environmental impacts associated with this final rule.

K. Privacy Act

    Anyone may search the electronic form of 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.). The DOT's 
complete Privacy Act Statement can be found in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or 
by visiting http://www.regulations.gov/search/footer/privacyanduse.jsp.

List of Subjects in 49 CFR Part 175

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

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

PART 175--CARRIAGE BY AIRCRAFT

0
1. The authority citation for part 175 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.


0
2. In Sec.  175.10, revise paragraph (a)(19) to read as follows:


Sec.  175.10  Exceptions for passengers, crewmembers, and air 
operators.

    (a) * * *
    (19) Except as provided in Sec.  173.21 of this subchapter, 
battery-powered portable electronic smoking devices (e.g., e-
cigarettes, e-cigs, e-cigars, e-pipes, e-hookahs, personal vaporizers, 
electronic nicotine delivery systems) when carried by passengers or 
crewmembers for personal use must be carried on one's person or in 
carry-on baggage only. Spare lithium batteries also must be carried on 
one's person or in carry-on baggage only and must be individually 
protected so as to prevent short circuits (by placement in original 
retail packaging or by otherwise insulating terminals, e.g., by taping 
over exposed terminals or placing each battery in a separate plastic 
bag or protective pouch). Each lithium battery must be of a type which 
meets the requirements of each test in the UN Manual of Tests and 
Criteria, Part III, Subsection 38.3. Recharging of the devices and/or 
the batteries on board the aircraft is not permitted. Each battery must 
not exceed the following:
    (i) For lithium metal batteries, a lithium content of 2 grams; or
    (ii) For lithium ion batteries, a Watt-hour rating of 100 Wh.
* * * * *

    Issued in Washington, DC, on May 13, 2016, under authority 
delegated in 49 CFR 1.97.
Marie Therese Dominguez,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2016-11729 Filed 5-18-16; 8:45 am]
BILLING CODE 4910-60-P