[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]
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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.
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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]
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