[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)]
[Rules and Regulations]
[Pages 71983-71986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25322]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2016-9288]


Hazardous Materials: Emergency Restriction/Prohibition Order

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Emergency restriction/prohibition order.

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SUMMARY: This document provides Emergency Restriction/Prohibition Order 
No. FAA-2016-9288, issued October 14, 2016 and effective at 12 p.m. 
(noon) Eastern Daylight Time (EDT), October 15, 2016 to Samsung Galaxy 
Note 7 Users and air carriers. The Emergency Order prohibits persons 
from offering for air transportation or transporting via air any 
Samsung Galaxy Note 7 device on their person, in carry-on baggage, in 
checked baggage, or as cargo; requires individuals who

[[Page 71984]]

inadvertently bring a Samsung Galaxy Note 7 device onto an aircraft 
immediately power off the device, not use or charge the device while 
aboard the aircraft, protect the device from accidental activation, 
including disabling any features that may turn on the device, such as 
alarm clocks, and keep the device on their person and not in the 
overhead compartment, seat back pocket, nor in any carry-on baggage, 
for the duration of the flight; requires air carriers to alert 
passengers to the prohibition against air transport of Samsung Galaxy 
Note 7 devices, in particular, immediately prior to boarding, and to 
deny boarding to a passenger in possession of a Samsung Galaxy Note 7 
device unless and until the passenger divests themselves and their 
baggage of the Samsung Galaxy Note 7 device; and requires that if an 
air carrier flight crew member identifies that a passenger is in 
possession of a Samsung Galaxy Note 7 device while the aircraft is in 
flight, the crew member must instruct the passenger to power off the 
device and not to use or charge the device onboard the aircraft and 
protect the device from accidental activation, including disabling any 
features that may turn on the device, such as alarm clocks, and keep 
the device on their person and not in the overhead compartment, seat 
back pocket, nor in any carry-on baggage, for the duration of the 
flight.

DATES: The Emergency Restriction/Prohibition Order provided in this 
document is effective at 12 p.m. (noon) Eastern Daylight Time (EDT) on 
October 15, 2016.

FOR FURTHER INFORMATION CONTACT: Ryan Landers, Office of the Chief 
Counsel, Federal Aviation Administration, 1701 Columbia Ave., College 
Park, GA 30337; telephone: (404)-305-5200; email: [email protected].

SUPPLEMENTARY INFORMATION: The full text of Emergency Restriction/
Prohibition Order No. FAA-2016-9288 issued October 14, 2016 is as 
follows:
    This Emergency Restriction/Prohibition Order (Order) is issued by 
the United States Department of Transportation (DOT) pursuant to 49 
U.S.C. 5121(d) and will be effective at 12:00 p.m. (noon) Eastern 
Daylight Time (EDT), October 15, 2016. This Order is issued to all 
persons who transport or offer a Samsung Galaxy Note 7 device for air 
transportation in commerce within the United States. Individuals who 
own or possess a Samsung Galaxy Note 7 device may not transport the 
device on their person, in carry-on baggage, in checked baggage, nor 
offer the device for air cargo shipment. This prohibition includes all 
Samsung Galaxy Note 7 devices. Samsung Galaxy Note 7 devices are 
properly classified as lithium ion batteries contained in equipment, 
UN3481, Class 9 (49 CFR 172.101).
    By this Order, DOT is:
    * Prohibiting persons from transporting or offering for air 
transportation a Samsung Galaxy Note 7 device, by either carrying it on 
their person or in carry-on baggage when boarding an aircraft, placing 
the Samsung Galaxy Note 7 device in checked baggage, or shipping it via 
air as cargo;
    * requiring air carriers to alert passengers to the prohibition 
against air transport of a Samsung Galaxy Note 7 device, in particular, 
immediately prior to boarding and to deny boarding to a passenger in 
possession of a Samsung Galaxy Note 7 device unless and until the 
passenger divests themselves and their baggage, including carry-on and 
checked, of the Samsung Galaxy Note 7 device;
    * requiring that persons who inadvertently bring a Samsung Galaxy 
Note 7 device onto an aircraft immediately power off the device, do not 
use or charge the device while aboard the aircraft, protect the device 
from accidental activation, including disabling any features that may 
turn on the device, such as alarm clocks, and keep the device on their 
person and not in the overhead compartment, seat back pocket, nor in 
any carry-on baggage, for the duration of the flight; and
    * requiring that if an air carrier flight crew member identifies 
that a passenger is in possession of a Samsung Galaxy Note 7 device 
while the aircraft is in flight, the crew member must instruct the 
passenger to power off the device, do not use or charge the device 
while aboard the aircraft, protect the device from accidental 
activation, including disabling any features that may turn on the 
device, such as alarm clocks, and keep the device on their person and 
not in the overhead compartment, seat back pocket, nor in any carry-on 
baggage, for the duration of the flight.
    Upon information derived from the Samsung Galaxy Note 7 device 
recall issued September 15, 2016, recent incidents of a dangerous 
evolution of heat with Samsung Galaxy Note 7 replacement devices, 
Samsung's October 11, 2016 decision to stop manufacturing and selling 
Samsung Galaxy Note 7 devices due to the inability to identify the root 
cause of the incidents, and the U.S. Consumer Product Safety Commission 
(CPSC) recall of all Samsung Galaxy Note 7 device issued October 13, 
2016, the Secretary of Transportation (Secretary) has found an unsafe 
condition and that an unsafe practice exists and constitutes an 
imminent hazard to the safety of air transportation. For more detailed 
information see ``Background/Basis for Order'' below.

Effective at 12 p.m. (Noon) Eastern Daylight Time, October 15, 2016, 
Any Person Identified by This Order

    (1) Shall not transport, nor offer for transportation, via air a 
Samsung Galaxy Note 7 device. By virtue of this Order and the CPSC 
recalls, the Samsung Galaxy Note 7 devices are now forbidden for 
transportation by air. For purposes of this Order, transporting or 
offering for transportation includes bringing a Samsung Galaxy Note 7 
device aboard an aircraft on your person (e.g., in your pocket), 
bringing a Samsung Galaxy Note 7 device aboard an aircraft in carry-on 
baggage, offering a Samsung Galaxy Note 7 device in checked baggage, 
and offering a Samsung Galaxy Note 7 device for air cargo shipment 
(e.g., Federal Express or United Parcel Service).
    (2) Shall ensure that a prohibited Samsung Galaxy Note 7 device 
inadvertently brought aboard an aircraft is immediately powered off, 
not used or charged while aboard the aircraft, protected from 
accidental activation, including disabling any features that may turn 
on the device, such as alarm clocks, and kept on their person and not 
in the overhead compartment, seat back pocket, nor in any carry-on 
baggage, for the duration of the flight.

Air Carrier Requirements

    By virtue of this Order and the CPSC recalls, the Samsung Galaxy 
Note 7 device is a forbidden hazardous material. In accordance with 49 
CFR part 175, air carriers must not accept these devices for air 
transportation by knowingly permitting a passenger to board an aircraft 
with a Samsung Galaxy Note 7 device. Damaged or recalled lithium ion 
batteries, including those contained in equipment, are not permitted to 
be transported by air, and a Samsung Galaxy Note 7 device is 
categorized as ``forbidden.'' 49 CFR 173.21(c). Air carriers are 
required to make passengers aware of the prohibition against transport 
of Samsung Galaxy Note 7 devices aboard aircraft on their person, in 
carry-on or checked baggage, and as air cargo. Air carriers must also 
alert passengers to this prohibition immediately prior to boarding. If 
an air carrier representative identifies that a passenger is in 
possession of a Samsung Galaxy Note 7

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device prior to boarding the aircraft, the air carrier must deny 
boarding to the passenger unless and until the passenger divests 
themselves, including on their person and in checked and carry-on 
baggage, of the Samsung Galaxy Note 7 device. If an air carrier flight 
crew member identifies that a passenger is in possession of a Samsung 
Galaxy Note 7 device while the aircraft is in flight, the crew member 
must instruct the passenger to power off the device, not use or charge 
the device while aboard the aircraft, protect the device from 
accidental activation, including disabling any features that may turn 
on the device, such as alarm clocks, and keep the device on their 
person and not in the overhead compartment, seat back pocket, nor in 
any carry-on baggage, for the duration of the flight.
    This Order applies to all persons who transport Samsung Galaxy Note 
7 devices, or offer them for transportation, by air in commerce (as 
defined by 49 U.S.C. 5102(1)) to, from, and within the United States, 
and their officers, directors, employees, subcontractors, and agents. 
This Order is effective at 12 p.m. (noon) Eastern Daylight Time (EDT), 
October 15, 2016, and remains in effect unless rescinded in writing by 
the Secretary, or until it otherwise expires by operation of regulation 
and/or law.

Jurisdiction

    The Secretary has the authority to regulate the transportation of 
lithium ion batteries contained in equipment in commerce. 49 U.S.C. 
5103(b). The Secretary has designated lithium ion batteries contained 
in equipment, UN 3481, as a hazardous material subject to the 
requirements of the HMR. 49 U.S.C. 5103(a); 49 CFR 172.101. Persons who 
offer for transportation, or transport, lithium ion batteries contained 
in equipment by air in commerce to, from, and within the United States 
are a ``person,'' as defined by 49 U.S.C. 5102(9), in addition to being 
a ``person'' under 1 U.S.C. 1 and a ``person who offers'' as defined by 
49 CFR 171.8. ``Commerce'' is as defined by 49 U.S.C. 5102(1) and 49 
CFR 171.8, and ``transportation'' or ``transport'' are as defined by 49 
U.S.C. 5102(13) and 49 CFR 171.8. Accordingly, persons who transport or 
offer for transportation lithium ion batteries contained in equipment 
in commerce, including by air, are subject to the authority and 
jurisdiction of the Secretary including the authority to impose 
emergency restrictions, prohibitions, recalls, or out-of-service 
orders, without notice or an opportunity for hearing, to the extent 
necessary to abate the imminent hazard. 49 U.S.C. 5121(d).

Background/Basis for Order

    An imminent hazard, as defined by 49 U.S.C. 5102(5), constitutes 
the existence of a condition relating to hazardous materials that 
presents a substantial likelihood that death, serious illness, severe 
personal injury, or a substantial endangerment to health, property, or 
the environment may occur before the reasonably foreseeable completion 
date of a formal proceeding begun to lessen the risk that death, 
illness, injury or endangerment may occur.
    A Samsung Galaxy Note 7 device may cause an ignition or a dangerous 
evolution of heat or become a fuel source for fire. Samsung and CPSC 
acknowledged this fact with the September 15, 2016 recall, Samsung's 
October 11, 2016 announcement that it was suspending the manufacture 
and sale of the Samsung Galaxy Note 7 device, and the October 13, 2016 
Samsung and CPSC expanded recall covering all Samsung Galaxy Note 7 
devices. Furthermore, persons have experienced incidents of dangerous 
evolution of heat with the recalled Samsung Galaxy Note 7 devices. Just 
one fire incident poses a high risk of death, serious illness, severe 
personal injury, and danger to property and the environment. This risk 
is magnified when the fire or evolution of heat occurs aboard an 
aircraft during flight. Therefore, each offering and transportation of 
a Samsung Galaxy Note 7 device constitutes an imminent hazard.

A. Samsung Galaxy Note 7 Recall and Incidents

    On September 15, 2016, Samsung and the CPSC recalled certain 
Samsung Galaxy Note 7 devices sold prior to September 15, 2016. The 
recall was based on a finding that the lithium ion battery in a Samsung 
Galaxy Note 7 device ``can overheat and catch fire.'' Samsung offered 
either a refund or replacement Samsung Galaxy Note 7 device. 
Subsequently, there were reported incidents of the replacement Samsung 
Galaxy Note 7 devices overheating and/or catching fire. In a decision 
announced on October 11, 2016, Samsung stopped production and sale of 
Samsung Galaxy Note 7 devices. On October 13, 2016, Samsung and the 
CPSC expanded the recall to include all Samsung Galaxy Note 7 devices 
because they ``can overheat and catch fire.''

B. DOT Actions To Mitigate the Safety Risk of Samsung Galaxy Note 7 
Devices in Air Transportation

    In the wake of Samsung Galaxy Note 7 device incidents, the Federal 
Aviation Administration (FAA) and Pipeline and Hazardous Materials 
Safety Administration (PHMSA) have taken a number of steps to mitigate 
the safety risk of Samsung Galaxy Note 7 devices in air transportation. 
On September 8, 2016, the FAA issued a statement strongly advising 
passengers not to turn on or charge a Samsung Galaxy Note 7 device 
aboard an aircraft, nor stow a Samsung Galaxy Note 7 device in any 
checked baggage. On September 15, 2016, PHMSA issued a Safety Advisory 
Notice to inform the public about the risks associated with 
transporting damaged, defective, or recalled lithium batteries or 
portable electronic devices, including the Samsung Galaxy Note 7 device 
recalled by the CPSC. The Safety Advisory Notice required that persons 
who wish to carry the recalled Samsung Galaxy Note 7 device aboard an 
aircraft must (1) turn off the device; (2) disconnect the device from 
charging equipment; (3) disable all applications that could 
inadvertently activate the phone; protect the power switch to prevent 
its unintentional activation; and (4) keep the device in carry-on 
baggage or on your person.
    On September 16, 2016, the FAA issued general guidance to airlines 
about the rules for carrying recalled or defective lithium batteries 
and lithium battery-powered devices aboard an aircraft. Specifically, 
the FAA noted that (1) U.S. hazardous materials regulations prohibit 
air cargo shipments of recalled or defective lithium batteries and 
lithium battery-powered devices; (2) passengers may not turn on or 
charge the devices when they carry them aboard the aircraft; (3) 
passengers must protect the devices from accidental activation; and (4) 
passengers must not pack them in checked baggage. On September 16, 
2016, the FAA issued a Safety Alert for Operators (SAFO), recommending 
the following action by air operators: (1) Ensure that operator 
personnel responsible for cargo processing know and understand that 
damaged or recalled lithium batteries--including those installed in 
equipment and devices--are forbidden on aircraft as air cargo; and (2) 
ensure that operator personnel responsible for passenger processing and 
cabin safety know and understand that damaged or recalled lithium 
batteries--including those installed in devices--may be restricted from 
carriage or use on the aircraft. On October 10, 2016, the FAA issued

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updated guidance on the Samsung Galaxy Note 7 device, urging passengers 
aboard an aircraft to power down and not use, charge, or stow in 
checked baggage, any Samsung Galaxy Note 7 device.
    Notwithstanding the above DOT actions, and in light of continued 
risks identified by Samsung and CPSC associated with Samsung Galaxy 
Note 7 devices, the further action described in this Order is necessary 
to eliminate unsafe conditions that create an imminent hazard to public 
health and safety and the environment.

Remedial Action

    To eliminate or abate the imminent hazard:
    (1) Persons covered by this Order shall not transport, nor offer 
for transportation, via air any Samsung Galaxy Note 7 device.
    (2) Air carriers are required to alert passengers to the 
prohibition against air transport of Samsung Galaxy Note 7 devices, in 
particular, immediately prior to boarding and to deny boarding to a 
passenger in possession of a Samsung Galaxy Note 7 device unless and 
until the passenger divests themselves and carry-on or checked baggage 
of the Samsung Galaxy Note 7 device.
    (3) Persons covered by this Order who inadvertently bring a 
prohibited Samsung Galaxy Note 7 device aboard an aircraft must 
immediately power off the device, leave it powered off until no longer 
aboard the aircraft, not use or charge the device while aboard the 
aircraft, protect the device from accidental activation, including 
disabling any features that may turn on the device, such as alarm 
clocks, and keep the device on their person and not in the overhead 
compartment, seat back pocket, nor in any carry-on baggage, for the 
duration of the flight.
    (4) When a flight crew member identifies that a passenger is in 
possession of a Samsung Galaxy Note 7 device while the aircraft is in 
flight, the crew member must instruct the passenger to power off the 
device, not use or charge the device while aboard the aircraft, protect 
the device from accidental activation, including disabling any features 
that may turn on the device, such as alarm clocks, and keep the device 
on their person and not in the overhead compartment, seat back pocket, 
nor in any carry-on baggage, for the duration of the flight.

Rescission of This Order

    This Order remains in effect until the Secretary determines that an 
imminent hazard no longer exists or a change in applicable statute or 
federal regulation occurs that supersedes the requirements of this 
Order, in which case the Secretary will issue a Rescission Order.

Failure To Comply

    Any person failing to comply with this Order is subject to civil 
penalties of up to $179,933 for each violation for each day they are 
found to be in violation (49 U.S.C. 5123). A person violating this 
Order may also be subject to criminal prosecution, which may result in 
fines under title 18, imprisonment of up to ten years, or both (49 
U.S.C. 5124).

Right To Review

    Pursuant to 49 U.S.C. 5121(d)(3) and in accordance with section 554 
of the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq, a 
review of this action may be filed. Any petition seeking relief must be 
filed within 20 calendar days of the date of this order (49 U.S.C. 
5121(d)(3)), and addressed to U.S. DOT Dockets, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590 (http://Regulations.gov). Furthermore, a petition for review 
must state the material facts at issue which the petitioner believes 
dispute the existence of an imminent hazard and must include all 
evidence and exhibits to be considered. The petition must also state 
the relief sought. Within 30 days from the date the petition for review 
is filed, the Secretary must approve or deny the relief in writing; or 
find that the imminent hazard continues to exist, and extend the 
original Emergency Order. In response to a petition for review, the 
Secretary may grant the requested relief in whole or in part; or may 
order other relief as justice may require (including the immediate 
assignment the case to the Office of Hearings for a formal hearing on 
the record).

Emergency Contact Official

    If you have any questions concerning this Emergency Restriction/
Prohibition Order, you should call PHMSA Hazardous Materials 
Information Center at 1-800-467-4922 or email at [email protected].

    Issued in Washington, DC, on October 14, 2016.
Patricia A. McNall,
Deputy Chief Counsel, Federal Aviation Administration.
[FR Doc. 2016-25322 Filed 10-14-16; 4:15 pm]
BILLING CODE 4910-13-P