81 FR 31529 - Hazardous Materials: Carriage of Battery-Powered Electronic Smoking Devices in Passenger Baggage
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration Federal Register Volume 81, Issue 97 (May 19, 2016)
Pipeline and Hazardous Materials Safety Administration
Federal Register Volume 81, Issue 97 (May 19, 2016)
| Page Range | 31529-31531 | |
| FR Document | 2016-11729 |
[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)] [Rules and Regulations] [Pages 31529-31531] From the Federal Register Online [www.thefederalregister.org] [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
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1552.242–70 Indirect costs. Pipeline and Hazardous Materials Safety Aviation Administration (FAA) and
As prescribed in 1542.705–70, insert Administration, U.S. Department of ICAO all of which are described in the
the following clause in all cost- Transportation, 1200 New Jersey Ave. October 30, 2015 IFR, prompted action
reimbursement and non-commercial SE., Washington, DC 20590–0001. to address this issue. The requirements
time and materials type contracts. If SUPPLEMENTARY INFORMATION: in this final rule apply only to battery-
ceilings are not being established, enter powered portable electronic smoking
Table of Contents devices (e.g., e-cigarettes, e-cigs, e-
‘‘not applicable’’ in paragraph (c) of the
clause. I. Background cigars, e-pipes, e-hookahs, personal
II. Comment Discussion vaporizers, electronic nicotine delivery
* * * * * III. Regulatory Analyses and Notices
[FR Doc. 2016–11838 Filed 5–18–16; 8:45 am] systems). Notably, this final rule does
A. Statutory Authority for This Rulemaking neither prohibits passengers from
BILLING CODE 6560–50–P B. Executive Order 12866, Executive Order
transporting other devices containing
13563, and DOT Regulatory Policies and
Procedures batteries for personal use (such as
C. Executive Order 13132 laptop computers, cell phones, cameras,
DEPARTMENT OF TRANSPORTATION etc.) in checked or carry-on baggage, nor
D. Executive Order 13175
Pipeline and Hazardous Materials E. Regulatory Flexibility Act, Executive does it restrict passengers from
Order 13272, and DOT Procedures and transporting batteries for personal use in
Safety Administration Policies carry-on baggage.
F. Paperwork Reduction Act
49 CFR Part 175 G. Regulation Identifier Number (RIN) II. Comment Discussion
H. Unfunded Mandates Reform Act PHMSA received eleven comments to
[Docket No. PHMSA–2015–0165 (HM–262)] I. Executive Order 13609 and International
Trade Analysis
the October 30, 2015 IFR: Four of the
RIN 2137–AF12 commenters supported the provisions of
J. Environmental Assessment
K. Privacy Act the IFR as written; four of the
Hazardous Materials: Carriage of
IV. List of Subjects commenters suggested the prohibition
Battery-Powered Electronic Smoking
of the carriage of battery-powered
Devices in Passenger Baggage I. Background portable electronic smoking devices
AGENCY: Pipeline and Hazardous On October 30, 2015, PHMSA should be extended to carry-on baggage;
Materials Safety Administration published an IFR in the Federal one commenter suggested that the
(PHMSA), DOT. Register [80 FR 66817] that prohibits prohibition should also be extended to
ACTION: Final rule.
passengers and crewmembers from prohibit such devices to be transported
carrying battery-powered portable as mail on passenger aircraft; and two
SUMMARY: The Pipeline and Hazardous electronic smoking devices (e.g., commenters objected to all or part of the
Materials Safety Administration e-cigarettes, e-cigs, e-cigars, e-pipes, IFR.
(PHMSA) is issuing a final rule to personal vaporizers, electronic nicotine The four commenters who
prohibit passengers and crewmembers delivery systems) in checked baggage recommended that PHMSA extend the
from carrying battery-powered portable and from charging these devices and prohibition of the IFR to prohibit the
electronic smoking devices (e.g., their batteries on board the aircraft. The carriage of battery-powered portable
e-cigarettes, e-cigs, e-cigars, e-pipes, use of battery-powered portable electronic smoking devices in carry-on
e-hookahs, personal vaporizers, electronic smoking devices has been and checked baggage noted that if these
electronic nicotine delivery systems) in rising substantially, and they have devices pose a fire risk they should not
checked baggage and from charging increasingly become a common item in be permitted in the cabin of an aircraft
these devices and their batteries on passenger baggage. Prior to the issuance either. PHMSA believes that prohibiting
board the aircraft. However, these of this IFR, airline passengers and the carriage of these devices only in
devices may continue to be carried in crewmembers were permitted to carry checked baggage best targets the safety
carry-on baggage. This action is these devices in either checked or carry- issue that we are addressing. Permitting
consistent with the interim final rule on baggage under the provisions for the carriage of these devices only in
(IFR) published in the Federal Register portable electronic devices contained in carry-on baggage or on the person would
on October 30, 2015, and a similar § 175.10(a)(18) of the Hazardous be the best alternative because when
amendment in the 2015–2016 Edition of Materials Regulations (HMR; 49 CFR carried in the passenger cabin, the flight
the International Civil Aviation parts 171–180). However, the provisions crew can quickly intervene in the case
Organization Technical Instructions for for portable electronic devices do not of overheating, short circuit, or fire.
the Safe Transport of Dangerous Goods adequately address the safety risks One commenter recommended that
by Air (ICAO Technical Instructions). posed by battery-powered portable PHMSA amend the IFR to prohibit the
This final rule amends the Hazardous electronic smoking devices, which transport of battery-powered portable
Materials Regulations to maintain include a heating element as a function electronic smoking devices in the mail
alignment with the ICAO Technical of their design. Specifically, a battery- because a package containing such
Instructions. Furthermore, this final rule powered portable electronic smoking devices could be carried as mail aboard
does not impact the existing rules on the device contains a liquid, an atomizer or a passenger aircraft. The HMR do not
transport of lithium batteries or other heating element, and a battery. When apply to any matter subject to the postal
portable electronic devices that are this device is operated the heating laws and regulations of the United
asabaliauskas on DSK3SPTVN1PROD with RULES
transported for personal use in a element vaporizes the liquid, so when States; therefore, this amendment is
passenger’s checked or carry-on in checked baggage, the device may lead beyond the scope of PHMSA’s
baggage. to the generation of extreme heat with regulatory authority (see § 171.1(d)(7)).
potential ignition of nearby contents. However, we shared the comment with
DATES: Effective: June 20, 2016. Recent fire incidents involving the United States Postal Service (USPS)
FOR FURTHER INFORMATION CONTACT: battery-powered portable electronic for their consideration.
Kevin A. Leary, (202) 366–8553, smoking devices in checked baggage Of the two commenters who objected
Standards and Rulemaking Division, and actions taken by the Federal to all or part of the IFR, one was
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opposed to the provisions and suggested regulations governing the transportation C. Executive Order 13132
that the devices should be made safer of hazardous materials in commerce are This final rule has been analyzed in
rather than restricting their use. PHMSA consistent with standards adopted by accordance with the principles and
is taking this action to address a international authorities (49 U.S.C. criteria contained in Executive Order
documented safety issue, and we do not 5120(b)). 13132 (‘‘Federalism’’), published in the
believe the restrictions will place an Federal Register on August 10, 1999 [64
In this final rule, PHMSA amends the
undue burden on device manufacturers, FR 43255], and the President’s
HMR to maintain alignment with the
aircraft passengers, crewmembers, or memorandum (‘‘Preemption’’),
airlines. The other commenter ICAO Technical Instructions.
published in the Federal Register on
recommended that PHMSA amend the B. Executive Order 12866, Executive May 22, 2009 [74 FR 24693]. This final
IFR to eliminate the prohibition against Order 13563, and DOT Regulatory rule does not adopt any regulation that:
the charging of standalone e-cigarette Policies and Procedures (1) Has substantial direct effects on the
batteries, further providing information
states, the relationship between the
on one specific product that Executive Orders 12866 (‘‘Regulatory
national government and the states, or
incorporates safety circuitry to prevent Planning and Review’’) and 13563
the distribution of power and
overcharge and evidence that it is (‘‘Improving Regulation and Regulatory
responsibilities among the various
intended to be charged only when Review’’) require Federal agencies to
levels of government; or (2) imposes
removed from the heater cartridge. In regulate in the ‘‘most cost-effective
substantial direct compliance costs on
the IFR, PHMSA noted that many of the manner,’’ to make a ‘‘reasoned State and local governments. PHMSA is
documented device failures occurred determination that the benefits of the not aware of any State, local, or tribal
while the device was charging, resulting intended regulation justify its costs,’’ requirements that would be preempted
in the ignition of nearby combustible and to develop regulations that ‘‘impose by amending the provisions for the
materials. PHMSA restricted charging of the least burden on society.’’ This final carriage of battery-powered portable
the devices and their batteries during rule is not considered a significant electronic smoking devices by airline
flight to address those concerns and to regulatory action under Executive Order passengers or crewmembers. In
maintain consistency with the ICAO 12866 and the Regulatory Policies and addition, this final rule does not have
Technical Instructions. While the Procedures of the Department of sufficient federalism impacts to warrant
commenter provided information on Transportation [44 FR 11034]. the preparation of a federalism
one battery-powered portable electronic
PHMSA does not anticipate that the assessment.
smoking device, there are many
actions in this final rule will impose a D. Executive Order 13175
configurations, both with and without
significant impact on airlines, airline
removable batteries, to consider. This final rule has been analyzed in
Additionally, users who modify their passengers, crewmembers, or the
Federal government. In fact, most U.S. accordance with the principles and
device may bypass the built-in safety criteria contained in Executive Order
circuitry designed to prevent airlines proactively notified airline
passengers (e.g., Web sites, automated 13175 (‘‘Consultation and Coordination
overheating. PHMSA determined that with Indian Tribal Governments’’). This
the limited prohibition against the check-in facilities, signage, and verbal
notifications from the operator) prior to final rule does not have tribal
carriage of battery-powered portable implications and does not impose
electronic smoking devices in checked the issuance of the October 30, 2015
IFR. PHMSA, the FAA, and the substantial direct compliance costs,
baggage and a prohibition against the therefore the funding and consultation
charging of these devices and their Transportation Security Administration
(TSA) each updated its guidance to requirements of Executive Order 13175
batteries while on board the aircraft do not apply.
address the known risks in the passengers on prohibited items,
narrowest possible way. including battery-powered portable E. Regulatory Flexibility Act, Executive
electronic smoking devices, to reflect Order 13272, and DOT Procedures and
III. Regulatory Analyses and Notices the provisions of the IFR. Moreover, Policies
A. Statutory Authority for This airline passengers and crewmembers are The Regulatory Flexibility Act (5
Rulemaking still permitted to carry battery-powered U.S.C. 601 et seq.) requires Federal
This rulemaking is issued under the portable electronic smoking devices in agencies to review regulations to assess
authority of the Federal Hazardous their carry-on baggage or on their their impact on small entities, unless
Materials Transportation Law (49 U.S.C. person. Spare lithium batteries must be the agency determines that a rule is not
5101 et seq.), which: (1) Authorizes the individually protected by placement in expected to have a significant impact on
Secretary of Transportation to prescribe original retail packaging or by otherwise a substantial number of small entities.
regulations for the safe transportation, insulating terminals (e.g., by taping over Although this final rule places a limited
including security, of hazardous exposed terminals or placing each prohibition on the carriage of battery-
materials in intrastate, interstate, and battery in a separate plastic bag or powered portable electronic smoking
foreign commerce (49 U.S.C. 5103(b)); protective pouch). However, as this is devices by airline passengers and
(2) authorizes the Administrator of the consistent with existing requirements crewmembers in checked baggage, such
Federal Aviation Administration to for the carriage of spare lithium batteries individuals would still be permitted to
promote safe flight of civil aircraft in air for portable electronic devices, PHMSA carry these devices in carry-on baggage
asabaliauskas on DSK3SPTVN1PROD with RULES
commerce by prescribing regulations does not anticipate this will have any or on their person. The provisions of
and minimum standards for practices, impact on passengers. Some passengers this final rule do not impose any direct
methods, and procedures the may incur a non-quantifiable cost in the or indirect adverse economic impacts
Administrator finds necessary for safety lost opportunity to charge their device for small units of government,
in air commerce and national security while on board the aircraft, but PHMSA businesses, or other organizations, and
(49 U.S.C. 44701); and (3) authorizes the expects this will be a small number of PHMSA did not receive any comments
Secretary of Transportation to ensure passengers and the per-passenger cost specifically relating to the impact of the
that, to the extent practicable, will be small. IFR rule on small entities.
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F. Paperwork Reduction Act United States. For purposes of these Reporting and recordkeeping
There are no new information requirements, Federal agencies may requirements.
collection requirements in this final participate in the establishment of In consideration of the foregoing, we
rule. international standards, so long as the
amend 49 CFR Chapter I as follows:
standards have a legitimate domestic
G. Regulation Identifier Number (RIN) objective, such as providing for safety, PART 175—CARRIAGE BY AIRCRAFT
A regulation identifier number (RIN) and do not operate to exclude imports
is assigned to each regulatory action that meet this objective. The statute also ■ 1. The authority citation for part 175
listed in the Unified Agenda of Federal requires consideration of international continues to read as follows:
Regulations. The Regulatory Information standards and, where appropriate, that
they be the basis for U.S. standards. Authority: 49 U.S.C. 5101–5128, 44701; 49
Service Center publishes the Unified CFR 1.81 and 1.97.
Agenda in April and October of each PHMSA participates in the
year. The RIN contained in the heading establishment of international standards ■ 2. In § 175.10, revise paragraph (a)(19)
of this document can be used to cross- in order to protect the safety of the to read as follows:
reference this action with the Unified American public, and we have assessed
Agenda. the effects of this final rule to ensure § 175.10 Exceptions for passengers,
that it does not cause unnecessary crewmembers, and air operators.
H. Unfunded Mandates Reform Act obstacles to foreign trade. Therefore, (a) * * *
This rule does not impose unfunded this rulemaking is consistent with (19) Except as provided in § 173.21 of
mandates under the Unfunded Executive Order 13609 and PHMSA’s this subchapter, battery-powered
Mandates Reform Act of 1995. It does obligations under the Trade Agreement portable electronic smoking devices
not result in costs of $155 million or Act, as amended. (e.g., e-cigarettes, e-cigs, e-cigars,
more, adjusted for inflation, to State, e-pipes, e-hookahs, personal vaporizers,
local, or tribal governments, in the J. Environmental Assessment
The National Environmental Policy electronic nicotine delivery systems)
aggregate, or to the private sector in any
Act of 1969 (NEPA), as amended (42 when carried by passengers or
one year, and it is the least burdensome
U.S.C. 4321–4347), requires that Federal crewmembers for personal use must be
alternative that achieves the objective of
agencies consider the consequences of carried on one’s person or in carry-on
the rule.
major Federal actions and prepare a baggage only. Spare lithium batteries
I. Executive Order 13609 and also must be carried on one’s person or
detailed statement on actions
International Trade Analysis in carry-on baggage only and must be
significantly affecting the quality of the
Under Executive Order 13609 human environment. This final rule individually protected so as to prevent
(‘‘Promoting International Regulatory only impacts how a passenger may carry short circuits (by placement in original
Cooperation’’), Federal agencies must battery-powered portable electronic retail packaging or by otherwise
consider whether the impacts associated smoking devices on aircraft, not insulating terminals, e.g., by taping over
with significant variations between whether a passenger may carry such exposed terminals or placing each
domestic and international regulatory devices. We find that there are no battery in a separate plastic bag or
approaches are unnecessary or may significant environmental impacts protective pouch). Each lithium battery
impair the ability of American business associated with this final rule. must be of a type which meets the
to export and compete internationally. requirements of each test in the UN
In meeting shared challenges involving K. Privacy Act Manual of Tests and Criteria, Part III,
health, safety, labor, security, Anyone may search the electronic Subsection 38.3. Recharging of the
environmental, and other issues, form of written communications and devices and/or the batteries on board
international regulatory cooperation can comments received into any of our the aircraft is not permitted. Each
identify approaches that are at least as dockets by the name of the individual battery must not exceed the following:
protective as those that are or would be submitting the document (or signing the (i) For lithium metal batteries, a
adopted in the absence of such document, if submitted on behalf of an lithium content of 2 grams; or
cooperation. International regulatory association, business, labor union, etc.). (ii) For lithium ion batteries, a Watt-
cooperation can also reduce, eliminate, The DOT’s complete Privacy Act hour rating of 100 Wh.
or prevent unnecessary differences in Statement can be found in the Federal * * * * *
regulatory requirements. Register published on April 11, 2000
Similarly, the Trade Agreements Act (Volume 65, Number 70; Pages 19477– Issued in Washington, DC, on May 13,
of 1979 (Pub. L. 96–39), as amended by 78) or by visiting http:// 2016, under authority delegated in 49 CFR
the Uruguay Round Agreements Act 1.97.
www.regulations.gov/search/footer/
(Pub. L. 103–465), prohibits Federal privacyanduse.jsp. Marie Therese Dominguez,
agencies from establishing any Administrator, Pipeline and Hazardous
standards or engaging in related List of Subjects in 49 CFR Part 175 Materials Safety Administration.
activities that create unnecessary Air carriers, Hazardous materials [FR Doc. 2016–11729 Filed 5–18–16; 8:45 am]
obstacles to the foreign commerce of the transportation, Radioactive materials, BILLING CODE 4910–60–P
asabaliauskas on DSK3SPTVN1PROD with RULES
VerDate Sep<11>2014 16:37 May 18, 2016 Jkt 238001 PO 00000 Frm 00043 Fmt 4700 Sfmt 9990 E:\FR\FM\19MYR1.SGM 19MYR1](https://thefederalregister.org/doc/81_FR_31626/page/3.svg)
Document Created: 2018-02-07 15:01:44
Document Modified: 2018-02-07 15:01:44
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective: June 20, 2016. | |
| 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. | |
| FR Citation | 81 FR 31529 | |
| RIN Number | 2137-AF12 | |
| CFR Associated | Air Carriers; Hazardous Materials Transportation; Radioactive Materials and Reporting and Recordkeeping Requirements |
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