Hazardous Materials: Carriage of Battery-Powered Electronic Smoking Devices in Passenger Baggage, 66817-66821 [2015-27622]

Download as PDF Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations [FR Doc. 2015–27630 Filed 10–29–15; 8:45 am] an immediate safety risk. This interim 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. Because the actions taken in this interim final rule address a public safety risk, PHMSA finds that good cause exists to amend the regulations without advance notice and opportunity for public comment. For the reasons described below, public notice is impracticable, unnecessary, and contrary to the public interest. PHMSA encourages persons to participate in this rulemaking by submitting comments containing relevant information, data, or views. We will consider all comments received on or before the closing date for comments. We will consider late filed comments to the extent practicable. This interim final rule may be amended based on comments received. BILLING CODE 6712–01–P DATES: than 11:59 p.m. (EST) on the due date; or confirmation an ACH was credited no later than 11:59 p.m. (EST) on the due date. In instances where a non-annual regulatory payment (i.e., delinquent payment) is made by check, cashier’s check, or money order, a timely fee payment or installment payment is one received at the Commission’s lockbox bank by the due date specified by the Commission or by the Managing Director. Where a non-annual regulatory fee payment is made by check, cashier’s check, or money order, a timely fee payment or installment payment is one received at the Commission’s lockbox bank by the due date specified by the Commission or the Managing Director. Any late payment or insufficient payment of a regulatory fee, not excused by bank error, shall subject the regulatee to a 25 percent penalty of the amount of the fee of installment payment which was not paid in a timely manner. * * * * * DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 175 [Docket No. PHMSA–2015–0165] RIN 2137–AF12 Hazardous Materials: Carriage of Battery-Powered Electronic Smoking Devices in Passenger Baggage Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Interim final rule. AGENCY: PHMSA is issuing an interim final rule to prohibit passengers and crewmembers from carrying batterypowered portable electronic smoking devices (e.g., e-cigarettes, e-cigs, ecigars, e-pipes, e-hookahs, personal vaporizers, electronic nicotine delivery systems) in checked baggage and prohibit passengers and crewmembers from charging the devices and/or batteries on board the aircraft. These devices may continue to be carried in carry-on baggage. This action is consistent with a similar action taken by the International Civil Aviation Organization (ICAO) that incorporated this restriction into the 2015–2016 Edition of the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air by way of an addendum and is necessary to address Lhorne on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 14:41 Oct 29, 2015 Jkt 238001 Effective Date: The effective date of these amendments is November 6, 2015. Comments: Comments must be received by November 30, 2015. ADDRESSES: You may submit comments by any of the following methods: 1. Federal Rulemaking Portal: https:// www.regulations.gov. Follow the on-line instructions for submitting comments. 2. Fax: 1–202–493–2251. 3. Mail: Docket Management System; U.S. Department of Transportation, Dockets Operations, M–30, Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590– 0001. 4. Hand Delivery: To U.S. Department of Transportation, Dockets Operations, M–30, Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. Instructions: Include the agency name and docket number PHMSA–2015–0165 or RIN 2137–AF12 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to https:// www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 66817 document (or signing the document, if submitted on behalf of an association, business, labor union, etc.), as described in the system of records notice (DOT/ ALL–14 FDMS), which can be reviewed at www.dot.gov/privacy. Docket: You may view the public docket through the Internet at https:// www.regulations.gov or in person at the Docket Operations office at the above address (See ADDRESSES). FOR FURTHER INFORMATION CONTACT: Kevin A. Leary, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366– 8553. SUPPLEMENTARY INFORMATION: I. Background A battery-powered portable electronic smoking device (e-cigarette), also called an e-cig, a personal vaporizer or electronic nicotine delivery system, is a battery-powered device that simulates tobacco smoking. E-cigarettes contain a liquid, an atomizer or heating element, and a battery. When an e-cigarette is operated by a user, the heating element vaporizes the liquid. Many e-cigarettes are designed to look like traditional cigarettes, but they are also made to look like cigars, pipes, and even everyday products such as pens. The use of ecigarettes has been rising substantially and e-cigarettes have increasingly become a common item in passenger baggage. Airline passengers and crewmembers are currently permitted to carry these devices under the provisions for portable electronic devices contained in 49 CFR 175.10(a)(18). However, the provisions for portable electronic devices do not adequately address the safety risks posed by ecigarettes, which include a heating element as a function of their design. Recent fire incidents involving ecigarettes in checked baggage, along with actions taken by the Federal Aviation Administration (FAA) and ICAO, highlight the need for PHMSA to take prompt action to address this issue. On August 9, 2014, at Boston’s Logan Airport, an e-cigarette contained in a passenger’s checked bag in the cargo hold of a passenger aircraft caused a fire that forced an evacuation of the aircraft. An airline ramp agent noticed smoke coming from the bag. The bag was removed from the aircraft cargo compartment and investigators determined the source of the fire was an e-cigarette, which continued to burn after it was removed from the bag. Air carrier personnel extinguished the fire. Massport Fire responded and ensured the fire was no longer burning. The fire E:\FR\FM\30OCR1.SGM 30OCR1 66818 Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations Lhorne on DSK5TPTVN1PROD with RULES burned a hole approximately 4 inches in diameter in the outer pocket of the bag. Passengers were deplaned as a precaution. On January 4, 2015, at Los Angeles International Airport, a checked bag that arrived late and missed its connecting flight was found to be on fire in a baggage area. Emergency responders attributed the fire to an overheated ecigarette inside the bag. These incidents have shown that ecigarettes can overheat and cause fires when the heating element is accidentally activated or turned on. This danger may be exacerbated by the growing trend of users modifying and rebuilding their reusable e-cigarette devices and swapping components, which may include the use of batteries, heating elements, and electronic components not original to the manufactured e-cigarette. An October 2014 report from the U.S. Fire Administration 1 identified at least 25 incidents of explosion and fire involving e-cigarettes between 2009 and 2014. Many of these incidents occurred while the device was charging and resulted in the ignition of nearby combustible materials. This report highlights the risks associated with charging e-cigarettes. Following the fire at Logan Airport, on December 10, 2014, the ICAO issued an Electronic Bulletin (EB) titled, Dangerous Goods Carried by Passenger and Crew—Incidents Related to Electronic Cigarettes (EB 2014/074).2 The ICAO bulletin recommended that a passenger’s e-cigarettes be carried in the cabin of the aircraft and not in checked baggage. On January 22, 2015, the FAA issued a Safety Alert for Operators (SAFO) 3 that highlighted current provisions of the hazardous materials regulations (HMR), which state, ‘‘transportation of battery-powered devices that are likely to create sparks or generate a dangerous evolution of heat is prohibited unless 1 Electronic Cigarette Fires and Explosions, U.S. Fire Administration, October 2014 (See appendix 1 for a list of the incidents) https:// www.usfa.fema.gov/downloads/pdf/publications/ electronic_cigarettes.pdf. 2 Dangerous Goods Carried by Passenger and Crew—Incidents Related to Electronic Cigarettes, Electronic Bulletin (EB) 2104/074, International Civil Aviation Administration (ICAO), October 10, 2014, https://www.faa.gov/about/office_org/ headquarters_offices/ash/ash_programs/hazmat/ passenger_info/media/ICAO_ecigarettes_ bulletin.pdf. 3 Fire Risk of Electronic Cigarettes (e-cigarettes) in Checked Baggage, Safety Alert for Operators— SAFO15003, Federal Aviation Administration (FAA), January 22, 2015, https://www.faa.gov/ other_visit/aviation_industry/airline_operators/ airline_safety/safo/all_safos/media/2015/ SAFO15003.pdf. VerDate Sep<11>2014 14:41 Oct 29, 2015 Jkt 238001 they are packaged in such a manner to preclude such an occurrence (see 49 CFR 173.21(c)).’’ The SAFO further recommended that air operators require their passengers to carry e-cigarettes only in the cabin of the aircraft. Effective June 9, 2015, the ICAO published an addendum to the 2015– 2016 ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air to prohibit carriage of e-cigarettes in checked baggage and restrict the charging of these devices while on board the aircraft. This addendum constitutes an amendment to the 2015– 2016 ICAO Technical Instructions, which took effect on January 1, 2015. On January 8, 2015, PHMSA published a rulemaking harmonizing the HMR with the 2015–2016 ICAO Technical Instructions. This issuance of this interim final rule is necessary to incorporate the June 9, 2015 amendment to the Technical Instructions to address the known safety risk. The partial restriction in this interim final rule applies only to batterypowered portable electronic smoking devices (e.g., e-cigarettes, e-cigs, ecigars, e-pipes, e-hookahs, personal vaporizers, electronic nicotine delivery systems). Passengers and crewmembers can continue to carry battery-powered portable electronic smoking devices in carry-on baggage. This interim final rule does not prohibit a passenger 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 a passenger from transporting batteries for personal use in carry-on baggage. II. Justification for Interim Final Rule PHMSA is issuing this interim final rule without providing an opportunity for prior public notice and comment as is normally required by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds for good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). ‘‘Good cause’’ exists in impracticable situations when notice unavoidably prevents the due and required execution of agency functions or when an agency finds that due and timely execution of its functions is impeded by the notice otherwise required by the APA. For example, an ‘‘impracticable’’ good cause situation might be where air safety rules should be amended without delay if the FAA determines that the safety of the PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 traveling public is at stake. Public notice is unnecessary when the public does not need or benefit from the notice and comment, such as with a minor or technical amendment. ‘‘Public interest’’ supplements the other terms and requires that public rulemaking procedures must not prevent an agency from operating and that a lack of public concern warrants an agency dispensing with public procedure. In this case, the agency finds, for good cause, that notice and public comment is impracticable, unnecessary, and contrary to the public interest. The importance of the safety of the flying public provides good cause for this measure. Here, there is a credible indication of an emerging transportation safety risk from two recent incidents involving battery-powered portable electronic smoking devices in checked baggage and additional nontransportation incidents that occurred while these types of devices were being charged. In August 2014 at Boston’s Logan Airport, an e-cigarette contained in a passenger’s checked bag caught fire pre-flight and caused the evacuation of an airplane. Similarly, in January 2015 at Los Angeles International Airport, a bag containing an e-cigarette was found to be on fire in a baggage area. The bag in question had missed a flight connection, and should have been in the air at the time of the incident. Although neither airplane was in the air when the fires ignited, these incidents represent two near misses for the safety of aviation passengers. E-cigarettes in checked bags present a safety risk because the devices are capable of generating extreme heat and an incident can result in the ignition of nearby contents. Carriage of e-cigarettes in the passenger cabin addresses this safety risk by ensuring that if an incident does occur, it can be immediately identified and mitigated. PHMSA believes that a delay in implementing this measure could result in serious harm to the traveling public. Under these circumstances, notice is impracticable and contrary to the public interest. Because ICAO issued the addendum on a very short timeframe due to the gravity of the safety risk, the HMR are currently not harmonized with the ICAO Technical Instructions. Given the safety risks posed by e-cigarettes in checked baggage, PHMSA believes that public notice would frustrate the due and required execution of agency functions. Although some airlines have voluntarily complied with the SAFO recommendations, there is no domestic regulation to require continued compliance with the recently adopted ICAO amendment. Typically, PHMSA E:\FR\FM\30OCR1.SGM 30OCR1 Lhorne on DSK5TPTVN1PROD with RULES Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations amends the HMR to conform to recent amendments to the ICAO Technical Instructions through periodic international harmonization rulemaking. If PHMSA utilized this process, this HMR amendment would become effective no earlier than January 1, 2017. The accelerated effective date of the addendum to the ICAO Technical Instructions ensures that passengers that travel on international airlines are subject to this provision before PHMSA would have time to issue a final rule through its regular harmonization rulemaking process. In light of the recent incidents and the serious harm that could result from the public safety risk of e-cigarettes in checked baggage, PHMSA believes that a delay caused by adhering to the APA notice-andcomment process to adopt conforming amendments is impracticable and contrary to the public interest. Further, PHMSA believes that APA notice and comment would be unnecessary because the public would not benefit from such notice. The scope of this regulatory change is very limited; PHMSA is including a new entry for ecigarettes in 49 CFR 175.10 with carriage instructions. The change does not impact whether passengers may bring their e-cigarettes on an airplane. Instead, the new language affects how the e-cigarettes must be stowed. This rulemaking does not impact the ability to travel by air with these devices. FAA’s January 2015 SAFO recommended that air carriers require their passengers to carry e-cigarettes and related devices exclusively in the cabin of the aircraft. In voluntary compliance with the SAFO, many airlines instruct passengers to carry their e-cigarettes in carry-on baggage only. Because a substantial degree of compliance with this safety provision already exists through voluntary airline actions, this amendment is limited in scope yet pivotal for the safety of the traveling public. Thus, in light of the recent safety incidents and limited scope of the June 9, 2015, ICAO amendment, PHMSA has determined that the notice and comment rulemaking process is unnecessary, impracticable, and contrary to the public interest in this instance. The DOT is taking immediate action to strengthen safeguards for the carriage of battery-powered portable electronic smoking devices in passenger checked baggage and prohibit passengers and crewmembers from charging the devices and/or batteries on board the aircraft. This interim final rule is effective seven days after publication in the Federal Register. The APA requires agencies to delay the effective date of regulations VerDate Sep<11>2014 14:41 Oct 29, 2015 Jkt 238001 for 30 days after publication, unless the agency finds good cause to make the regulations effective sooner. See 5 U.S.C. 553(d). This interim final rule meets the good cause exception in this instance because of credible evidence from two separate incidents involving battery-powered portable electronic smoking devices in checked baggage and additional non-transportation incidents that occurred while the devices were being charged. The retroactive nature of the ICAO amendments makes a 30-day effective date impracticable and contrary to the public interest, because such a delay would further extend the time period in which the HMR does not harmonize with ICAO. Because several incidents have highlighted the safety risks of the charging and cargo carriage of these devices, the public interest is served by providing a seven-day effective date for this interim final rule. The Regulatory Policies and Procedures of DOT (44 FR 110034; February 26, 1979) provide that, to the maximum extent possible, DOT operating administrations should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, PHMSA encourages persons to participate in this rulemaking by submitting comments containing relevant information, data, or views. We will consider all comments received on or before the closing date for comments. We will consider late filed comments to the extent practicable. This interim final rule may be amended based on comments received. III. Rulemaking Analysis and Notices A. Statutory/Legal Authority for This Rulemaking This interim final rule is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) and 49 U.S.C. 44701. Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 44701 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. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 66819 regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This final rule is amending the HMR to maintain alignment with the ICAO Technical Instructions. B. Executive Orders 13563 and 12866 and DOT Regulatory Policies and Procedures The Department has determined that the transportation of battery-powered portable electronic smoking devices in checked baggage is an immediate safety threat. Therefore, this rule is being issued to address an emergency situation within the meaning of Section 6(a)(3)(D) of Executive Order 12866. Under section 6(a)(3)(D), in emergency situations, an agency must notify OMB as soon as possible and, to the extent practicable, comply with subsections (a)(3)(B) and (C) of section 6 of EO 12866. The Department has notified and consulted with OMB on this interim final rule. We do not anticipate the actions in this interim final rule will impose a significant impact on airlines, airline passengers, crewmembers, or the Federal government. We expect airlines will incur minimal costs associated with updating notifications to airline passengers (e.g. Web sites, automated check-in facilities, signage and verbal notifications from the operator). Airlines already have mechanisms to notify airline passengers of hazardous materials restrictions and we expect that airlines would incorporate this additional provision into existing notifications. Airline passengers will still be permitted to carry their ecigarettes in their carry-on baggage or on their person. Spare lithium batteries 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). This is consistent with existing requirements for the carriage of spare lithium batteries for portable electronic devices. We do not anticipate this would result in any impact on passengers because these devices are a type of portable electronic device and spare lithium batteries for portable electronic devices are already required to be protected from short circuits and carried in carry-on baggage only. Some passengers may incur a nonquantifiable cost in the lost opportunity to charge their device while on board the aircraft. We expect that this will be a small number of passengers and that the per-passenger cost will also be small. The Transportation Security E:\FR\FM\30OCR1.SGM 30OCR1 66820 Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations Administration may incur new costs associated with amending security procedures for checked baggage to inform security officers that these items should be treated as hazardous materials. PHMSA welcomes public comments on potential costs and benefits of this regulatory action. Under the Department of Transportation’s Regulatory Policies and Procedures (44 FR 11034), this rule is considered to be an emergency regulation. The Department has determined that an immediate safety threat exists in the carriage of batterypowered portable electronic smoking devices in checked baggage and, therefore, this rule is considered to be an emergency regulation. Because of the need to move quickly to address this risk, it would be impractical, unnecessary, and contrary to the public interest to follow the usual procedures under the DOT order. Lhorne on DSK5TPTVN1PROD with RULES C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (‘‘Federalism’’). This rule preempts State, local and Indian tribe requirements but does not impose any regulation that 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. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazardous materials transportation law, 49 U.S.C. 5101–27, contains express preemption provisions (49 U.S.C. 5125) that preempt inconsistent State, local, and Indian tribe requirements, including requirements on the following subjects: (1) The designation, description, and classification of hazardous materials; (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials; (3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents; (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or (5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. VerDate Sep<11>2014 14:41 Oct 29, 2015 Jkt 238001 This rule addresses subject items (1) and (2) described above and, accordingly, State, local, and Indian tribe requirements on these subjects that do not meet the ‘‘substantively the same’’ standard will be preempted. Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of a final rule and not later than two years after the date of issuance. The effective date of Federal preemption is 90 days from publication of this interim final rule in this matter in the Federal Register. This effective date for preemptive effect should not provide a conflict with the overall effective date for this interim final rule because the FAA Act, and various court decisions dealing with the regulation of air transport, generally preempts State and local requirements. Historically the States and localities are aware of this preemptive effect and do not regulate in conflict with Federal requirements in these situations. 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’’). Because this interim final rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. E. Regulatory Flexibility Act and Executive Order 13272 Section 603 of the Regulatory Flexibility Act (RFA) requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553 to publish a general notice of proposed rulemaking for any proposed rule. Similarly, section 604 of the RFA requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after being required to publish a general notice of proposed rulemaking. Because of the need to move quickly to address the identified risk, prior notice and comment would be contrary to the public interest. As prior notice and comment under 5 U.S.C. 553 are not required to be provided in this situation, the analyses in 5 U.S.C.s 603 and 604 are not required. PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 F. Unfunded Mandates Reform Act of 1995 This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $155,000,000 or more, adjusted for inflation, to either State, local or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule. G. Paperwork Reduction Act There are no new information collection requirements in this final rule. H. 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 number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda. I. Environmental Assessment The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321–4347), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. This interim final rule prohibits the carriage of batterypowered portable electronic smoking devices in checked baggage and the charging of such devices on board a passenger-carrying aircraft. Airline passengers will still be permitted to carry their e-cigarettes in their carry-on baggage or on their person. In other words, the interim final rule only impacts how a passenger may carry battery-powered portable electronic smoking devices on aircraft, not whether a passenger can carry such devices. We find that there are no significant environmental impacts associated with this interim final rule. J. Privacy Act Anyone is able to search the electronic form of any 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.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78) or you E:\FR\FM\30OCR1.SGM 30OCR1 Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations may visit https://www.regulations.gov/ search/footer/privacyanduse.jsp DEPARTMENT OF THE INTERIOR Fish and Wildlife Service List of Subjects in 49 CFR Part 175 50 CFR Part 17 Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements. [Docket No. FWS–R6–ES–2015–0013; FXES11130900000C6–145–FF09E42000] RIN 1018–BA42 In consideration of the foregoing, we amend 49 CFR Chapter I as follows: PART 175—CARRIAGE BY AIRCRAFT Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-footed Ferrets in Wyoming Fish and Wildlife Service, Interior. ACTION: Final rule. ■ AGENCY: Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.81 and 1.97. SUMMARY: 1. The authority citation for part 175 continues to read as follows: 2. In § 175.10, redesignate paragraphs (a)(19) through (a)(24) as paragraphs (a)(20) through (a)(25) and add new paragraph (a)(19) to read as follows: ■ § 175.10 Exceptions for passengers, crewmembers, and air operators. Lhorne on DSK5TPTVN1PROD with RULES (a) * * * (19) Except as provided in § 173.21 of this subchapter, battery-powered portable electronic smoking devices (e.g., e-cigarettes, e-cigs, e-cigars, epipes, 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 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, Sub-section 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 Watthour rating of 100 Wh. * * * * * Issued in Washington, DC, on October 23, 2015 under authority delegated in 49 CFR part 1.97 Marie Therese Dominguez, Administrator. [FR Doc. 2015–27622 Filed 10–29–15; 8:45 am] BILLING CODE 4910–60–P VerDate Sep<11>2014 14:41 Oct 29, 2015 Jkt 238001 We, the U.S. Fish and Wildlife Service (Service), in coordination with the State of Wyoming and other partners, will reestablish additional populations of the blackfooted ferret (Mustela nigripes), a federally listed endangered mammal, into prairie dog (Cynomys spp.) occupied habitat in Wyoming and classify any reestablished population as a nonessential experimental population (NEP) under section 10(j) of the Endangered Species Act of 1973, as amended (Act). This final rule establishes the NEP area and provides for allowable legal incidental taking of the black-footed ferret within the defined NEP area. The best available data indicate the reintroduction of black-footed ferrets to Wyoming is biologically feasible and will promote conservation and recovery of the species. This NEP area and two previously designated NEPs in Wyoming collectively cover the entire State of Wyoming and provide consistent management flexibility Statewide. We are also amending the historical range column for the species within the List of Endangered and Threatened Wildlife (List) to include Mexico; the historical range information in the List is informational, not regulatory. DATES: This rule becomes effective November 30, 2015. ADDRESSES: This final rule, along with the public comments, environmental assessment (EA), and finding of no significant impact (FONSI), is available on the Internet at https:// www.regulations.gov, Docket No. FWS– R6–ES–2015–0013. Comments and materials received, as well as supporting documentation used in the preparation of this rule, will also be available for public inspection, by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office, 5353 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 66821 Yellowstone Road, Suite 308A, Cheyenne, WY 82009; telephone 307– 772–2374. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Services (FIRS) at 800–877–8339. FOR FURTHER INFORMATION CONTACT: Mark Sattelberg, Field Supervisor, Telephone: 307–772–2374. Direct all questions or requests for additional information to: BLACK–FOOTED FERRET QUESTIONS, U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office, 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009. Individuals who are hearingimpaired or speech-impaired may call the Federal Relay Service at 1–800–877– 8337 for TTY assistance. SUPPLEMENTARY INFORMATION: Executive Summary Purpose of the Regulatory Action This is a final rule to designate the black-footed ferret (Mustela nigripes) nonessential experimental population (NEP) area in the State of Wyoming in accordance with section 10(j) of the Endangered Species Act (Act). This designation increases the Service’s flexibility and discretion in managing reintroduced endangered species and allows promulgation of regulations deemed appropriate for conservation of the reintroduced species. We have determined that the issuance of this rule will advance the recovery of the endangered black-footed ferret. Specifically, this rulemaking will facilitate the establishment of freeranging populations of ferrets within the species’ historical range in Wyoming, thereby contributing to the numerical and distributional population targets laid out in the recovery plan’s delisting and downlisting (reclassifying from endangered to threatened) criteria (U.S. Fish and Wildlife Service 2013a, p. 6) Summary of the Major Provisions of the Regulatory Action In Question Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may establish an NEP, outside of the current range of the species, but within its historical range, for the purposes of reintroducing the species into formerly occupied habitat. Under this 10(j) rule, the Service is classifying any reestablished black-footed ferret population in the State of Wyoming as an NEP. The Service has determined that this NEP designation meets the requirements of the Act; the population is wholly geographically separate from other populations, and the experimental population is not essential to the E:\FR\FM\30OCR1.SGM 30OCR1

Agencies

[Federal Register Volume 80, Number 210 (Friday, October 30, 2015)]
[Rules and Regulations]
[Pages 66817-66821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27622]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 175

[Docket No. PHMSA-2015-0165]
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: Interim final rule.

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SUMMARY: PHMSA is issuing an interim 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 prohibit passengers and crewmembers from charging 
the devices and/or batteries on board the aircraft. These devices may 
continue to be carried in carry-on baggage. This action is consistent 
with a similar action taken by the International Civil Aviation 
Organization (ICAO) that incorporated this restriction into the 2015-
2016 Edition of the ICAO Technical Instructions for the Safe Transport 
of Dangerous Goods by Air by way of an addendum and is necessary to 
address an immediate safety risk. This interim 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.
    Because the actions taken in this interim final rule address a 
public safety risk, PHMSA finds that good cause exists to amend the 
regulations without advance notice and opportunity for public comment. 
For the reasons described below, public notice is impracticable, 
unnecessary, and contrary to the public interest. PHMSA encourages 
persons to participate in this rulemaking by submitting comments 
containing relevant information, data, or views. We will consider all 
comments received on or before the closing date for comments. We will 
consider late filed comments to the extent practicable. This interim 
final rule may be amended based on comments received.

DATES: Effective Date: The effective date of these amendments is 
November 6, 2015.
    Comments: Comments must be received by November 30, 2015.

ADDRESSES: You may submit comments by any of the following methods:
    1. Federal Rulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Fax: 1-202-493-2251.
    3. Mail: Docket Management System; U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001.
    4. Hand Delivery: To U.S. Department of Transportation, Dockets 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2015-
0165 or RIN 2137-AF12 for this rulemaking at the beginning of your 
comment. Note that all comments received will be posted without change 
to https://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Privacy Act: Anyone is able to search the electronic form of any 
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.), as described in the system of records notice (DOT/ALL-14 
FDMS), which can be reviewed at www.dot.gov/privacy.
    Docket: You may view the public docket through the Internet at 
https://www.regulations.gov or in person at the Docket Operations office 
at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Kevin A. Leary, Standards and 
Rulemaking Division, Pipeline and Hazardous Materials Safety 
Administration, telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    A battery-powered portable electronic smoking device (e-cigarette), 
also called an e-cig, a personal vaporizer or electronic nicotine 
delivery system, is a battery-powered device that simulates tobacco 
smoking. E-cigarettes contain a liquid, an atomizer or heating element, 
and a battery. When an e-cigarette is operated by a user, the heating 
element vaporizes the liquid. Many e-cigarettes are designed to look 
like traditional cigarettes, but they are also made to look like 
cigars, pipes, and even everyday products such as pens. The use of e-
cigarettes has been rising substantially and e-cigarettes have 
increasingly become a common item in passenger baggage. Airline 
passengers and crewmembers are currently permitted to carry these 
devices under the provisions for portable electronic devices contained 
in 49 CFR 175.10(a)(18). However, the provisions for portable 
electronic devices do not adequately address the safety risks posed by 
e-cigarettes, which include a heating element as a function of their 
design.
    Recent fire incidents involving e-cigarettes in checked baggage, 
along with actions taken by the Federal Aviation Administration (FAA) 
and ICAO, highlight the need for PHMSA to take prompt action to address 
this issue.
    On August 9, 2014, at Boston's Logan Airport, an e-cigarette 
contained in a passenger's checked bag in the cargo hold of a passenger 
aircraft caused a fire that forced an evacuation of the aircraft. An 
airline ramp agent noticed smoke coming from the bag. The bag was 
removed from the aircraft cargo compartment and investigators 
determined the source of the fire was an e-cigarette, which continued 
to burn after it was removed from the bag. Air carrier personnel 
extinguished the fire. Massport Fire responded and ensured the fire was 
no longer burning. The fire

[[Page 66818]]

burned a hole approximately 4 inches in diameter in the outer pocket of 
the bag. Passengers were deplaned as a precaution.
    On January 4, 2015, at Los Angeles International Airport, a checked 
bag that arrived late and missed its connecting flight was found to be 
on fire in a baggage area. Emergency responders attributed the fire to 
an overheated e-cigarette inside the bag.
    These incidents have shown that e-cigarettes can overheat and cause 
fires when the heating element is accidentally activated or turned on. 
This danger may be exacerbated by the growing trend of users modifying 
and rebuilding their reusable e-cigarette devices and swapping 
components, which may include the use of batteries, heating elements, 
and electronic components not original to the manufactured e-cigarette.
    An October 2014 report from the U.S. Fire Administration \1\ 
identified at least 25 incidents of explosion and fire involving e-
cigarettes between 2009 and 2014. Many of these incidents occurred 
while the device was charging and resulted in the ignition of nearby 
combustible materials. This report highlights the risks associated with 
charging e-cigarettes.
---------------------------------------------------------------------------

    \1\ Electronic Cigarette Fires and Explosions, U.S. Fire 
Administration, October 2014 (See appendix 1 for a list of the 
incidents) https://www.usfa.fema.gov/downloads/pdf/publications/electronic_cigarettes.pdf.
---------------------------------------------------------------------------

    Following the fire at Logan Airport, on December 10, 2014, the ICAO 
issued an Electronic Bulletin (EB) titled, Dangerous Goods Carried by 
Passenger and Crew--Incidents Related to Electronic Cigarettes (EB 
2014/074).\2\ The ICAO bulletin recommended that a passenger's e-
cigarettes be carried in the cabin of the aircraft and not in checked 
baggage.
---------------------------------------------------------------------------

    \2\ Dangerous Goods Carried by Passenger and Crew--Incidents 
Related to Electronic Cigarettes, Electronic Bulletin (EB) 2104/074, 
International Civil Aviation Administration (ICAO), October 10, 
2014, https://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/hazmat/passenger_info/media/ICAO_ecigarettes_bulletin.pdf.
---------------------------------------------------------------------------

    On January 22, 2015, the FAA issued a Safety Alert for Operators 
(SAFO) \3\ that highlighted current provisions of the hazardous 
materials regulations (HMR), which state, ``transportation of battery-
powered devices that are likely to create sparks or generate a 
dangerous evolution of heat is prohibited unless they are packaged in 
such a manner to preclude such an occurrence (see 49 CFR 173.21(c)).'' 
The SAFO further recommended that air operators require their 
passengers to carry e-cigarettes only in the cabin of the aircraft.
---------------------------------------------------------------------------

    \3\ Fire Risk of Electronic Cigarettes (e-cigarettes) in Checked 
Baggage, Safety Alert for Operators--SAFO15003, Federal Aviation 
Administration (FAA), January 22, 2015, https://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2015/SAFO15003.pdf.
---------------------------------------------------------------------------

    Effective June 9, 2015, the ICAO published an addendum to the 2015-
2016 ICAO Technical Instructions for the Safe Transport of Dangerous 
Goods by Air to prohibit carriage of e-cigarettes in checked baggage 
and restrict the charging of these devices while on board the aircraft. 
This addendum constitutes an amendment to the 2015-2016 ICAO Technical 
Instructions, which took effect on January 1, 2015. On January 8, 2015, 
PHMSA published a rulemaking harmonizing the HMR with the 2015-2016 
ICAO Technical Instructions. This issuance of this interim final rule 
is necessary to incorporate the June 9, 2015 amendment to the Technical 
Instructions to address the known safety risk.
    The partial restriction in this interim final rule applies 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). Passengers and crewmembers can 
continue to carry battery-powered portable electronic smoking devices 
in carry-on baggage. This interim final rule does not prohibit a 
passenger 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 a passenger from 
transporting batteries for personal use in carry-on baggage.

II. Justification for Interim Final Rule

    PHMSA is issuing this interim final rule without providing an 
opportunity for prior public notice and comment as is normally required 
by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA 
authorizes agencies to dispense with certain notice and comment 
procedures if the agency finds for good cause that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest. See 5 U.S.C. 553(b)(3)(B). ``Good cause'' exists in 
impracticable situations when notice unavoidably prevents the due and 
required execution of agency functions or when an agency finds that due 
and timely execution of its functions is impeded by the notice 
otherwise required by the APA. For example, an ``impracticable'' good 
cause situation might be where air safety rules should be amended 
without delay if the FAA determines that the safety of the traveling 
public is at stake. Public notice is unnecessary when the public does 
not need or benefit from the notice and comment, such as with a minor 
or technical amendment. ``Public interest'' supplements the other terms 
and requires that public rulemaking procedures must not prevent an 
agency from operating and that a lack of public concern warrants an 
agency dispensing with public procedure.
    In this case, the agency finds, for good cause, that notice and 
public comment is impracticable, unnecessary, and contrary to the 
public interest. The importance of the safety of the flying public 
provides good cause for this measure. Here, there is a credible 
indication of an emerging transportation safety risk from two recent 
incidents involving battery-powered portable electronic smoking devices 
in checked baggage and additional non-transportation incidents that 
occurred while these types of devices were being charged. In August 
2014 at Boston's Logan Airport, an e-cigarette contained in a 
passenger's checked bag caught fire pre-flight and caused the 
evacuation of an airplane. Similarly, in January 2015 at Los Angeles 
International Airport, a bag containing an e-cigarette was found to be 
on fire in a baggage area. The bag in question had missed a flight 
connection, and should have been in the air at the time of the 
incident. Although neither airplane was in the air when the fires 
ignited, these incidents represent two near misses for the safety of 
aviation passengers. E-cigarettes in checked bags present a safety risk 
because the devices are capable of generating extreme heat and an 
incident can result in the ignition of nearby contents. Carriage of e-
cigarettes in the passenger cabin addresses this safety risk by 
ensuring that if an incident does occur, it can be immediately 
identified and mitigated. PHMSA believes that a delay in implementing 
this measure could result in serious harm to the traveling public.
    Under these circumstances, notice is impracticable and contrary to 
the public interest. Because ICAO issued the addendum on a very short 
timeframe due to the gravity of the safety risk, the HMR are currently 
not harmonized with the ICAO Technical Instructions. Given the safety 
risks posed by e-cigarettes in checked baggage, PHMSA believes that 
public notice would frustrate the due and required execution of agency 
functions. Although some airlines have voluntarily complied with the 
SAFO recommendations, there is no domestic regulation to require 
continued compliance with the recently adopted ICAO amendment. 
Typically, PHMSA

[[Page 66819]]

amends the HMR to conform to recent amendments to the ICAO Technical 
Instructions through periodic international harmonization rulemaking. 
If PHMSA utilized this process, this HMR amendment would become 
effective no earlier than January 1, 2017. The accelerated effective 
date of the addendum to the ICAO Technical Instructions ensures that 
passengers that travel on international airlines are subject to this 
provision before PHMSA would have time to issue a final rule through 
its regular harmonization rulemaking process. In light of the recent 
incidents and the serious harm that could result from the public safety 
risk of e-cigarettes in checked baggage, PHMSA believes that a delay 
caused by adhering to the APA notice-and-comment process to adopt 
conforming amendments is impracticable and contrary to the public 
interest.
    Further, PHMSA believes that APA notice and comment would be 
unnecessary because the public would not benefit from such notice. The 
scope of this regulatory change is very limited; PHMSA is including a 
new entry for e-cigarettes in 49 CFR 175.10 with carriage instructions. 
The change does not impact whether passengers may bring their e-
cigarettes on an airplane. Instead, the new language affects how the e-
cigarettes must be stowed. This rulemaking does not impact the ability 
to travel by air with these devices. FAA's January 2015 SAFO 
recommended that air carriers require their passengers to carry e-
cigarettes and related devices exclusively in the cabin of the 
aircraft. In voluntary compliance with the SAFO, many airlines instruct 
passengers to carry their e-cigarettes in carry-on baggage only. 
Because a substantial degree of compliance with this safety provision 
already exists through voluntary airline actions, this amendment is 
limited in scope yet pivotal for the safety of the traveling public. 
Thus, in light of the recent safety incidents and limited scope of the 
June 9, 2015, ICAO amendment, PHMSA has determined that the notice and 
comment rulemaking process is unnecessary, impracticable, and contrary 
to the public interest in this instance.
    The DOT is taking immediate action to strengthen safeguards for the 
carriage of battery-powered portable electronic smoking devices in 
passenger checked baggage and prohibit passengers and crewmembers from 
charging the devices and/or batteries on board the aircraft. This 
interim final rule is effective seven days after publication in the 
Federal Register. The APA requires agencies to delay the effective date 
of regulations for 30 days after publication, unless the agency finds 
good cause to make the regulations effective sooner. See 5 U.S.C. 
553(d). This interim final rule meets the good cause exception in this 
instance because of credible evidence from two separate incidents 
involving battery-powered portable electronic smoking devices in 
checked baggage and additional non-transportation incidents that 
occurred while the devices were being charged. The retroactive nature 
of the ICAO amendments makes a 30-day effective date impracticable and 
contrary to the public interest, because such a delay would further 
extend the time period in which the HMR does not harmonize with ICAO. 
Because several incidents have highlighted the safety risks of the 
charging and cargo carriage of these devices, the public interest is 
served by providing a seven-day effective date for this interim final 
rule.
    The Regulatory Policies and Procedures of DOT (44 FR 110034; 
February 26, 1979) provide that, to the maximum extent possible, DOT 
operating administrations should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, PHMSA 
encourages persons to participate in this rulemaking by submitting 
comments containing relevant information, data, or views. We will 
consider all comments received on or before the closing date for 
comments. We will consider late filed comments to the extent 
practicable. This interim final rule may be amended based on comments 
received.

III. Rulemaking Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This interim final rule is published under authority of Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.) and 49 U.S.C. 44701. Section 5103(b) of Federal hazmat 
law authorizes the Secretary of Transportation to prescribe regulations 
for the safe transportation, including security, of hazardous material 
in intrastate, interstate, and foreign commerce. 49 U.S.C. 44701 
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. 5120(b) 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. This 
final rule is amending the HMR to maintain alignment with the ICAO 
Technical Instructions.

B. Executive Orders 13563 and 12866 and DOT Regulatory Policies and 
Procedures

    The Department has determined that the transportation of battery-
powered portable electronic smoking devices in checked baggage is an 
immediate safety threat. Therefore, this rule is being issued to 
address an emergency situation within the meaning of Section 6(a)(3)(D) 
of Executive Order 12866. Under section 6(a)(3)(D), in emergency 
situations, an agency must notify OMB as soon as possible and, to the 
extent practicable, comply with subsections (a)(3)(B) and (C) of 
section 6 of EO 12866. The Department has notified and consulted with 
OMB on this interim final rule. We do not anticipate the actions in 
this interim final rule will impose a significant impact on airlines, 
airline passengers, crewmembers, or the Federal government. We expect 
airlines will incur minimal costs associated with updating 
notifications to airline passengers (e.g. Web sites, automated check-in 
facilities, signage and verbal notifications from the operator). 
Airlines already have mechanisms to notify airline passengers of 
hazardous materials restrictions and we expect that airlines would 
incorporate this additional provision into existing notifications. 
Airline passengers will still be permitted to carry their e-cigarettes 
in their carry-on baggage or on their person. Spare lithium batteries 
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). This is 
consistent with existing requirements for the carriage of spare lithium 
batteries for portable electronic devices. We do not anticipate this 
would result in any impact on passengers because these devices are a 
type of portable electronic device and spare lithium batteries for 
portable electronic devices are already required to be protected from 
short circuits and carried in carry-on baggage only. Some passengers 
may incur a non-quantifiable cost in the lost opportunity to charge 
their device while on board the aircraft. We expect that this will be a 
small number of passengers and that the per-passenger cost will also be 
small. The Transportation Security

[[Page 66820]]

Administration may incur new costs associated with amending security 
procedures for checked baggage to inform security officers that these 
items should be treated as hazardous materials. PHMSA welcomes public 
comments on potential costs and benefits of this regulatory action.
    Under the Department of Transportation's Regulatory Policies and 
Procedures (44 FR 11034), this rule is considered to be an emergency 
regulation. The Department has determined that an immediate safety 
threat exists in the carriage of battery-powered portable electronic 
smoking devices in checked baggage and, therefore, this rule is 
considered to be an emergency regulation. Because of the need to move 
quickly to address this risk, it would be impractical, unnecessary, and 
contrary to the public interest to follow the usual procedures under 
the DOT order.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
rule preempts State, local and Indian tribe requirements but does not 
impose any regulation that 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. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
27, contains express preemption provisions (49 U.S.C. 5125) that 
preempt inconsistent State, local, and Indian tribe requirements, 
including requirements on the following subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This rule addresses subject items (1) and (2) described above and, 
accordingly, State, local, and Indian tribe requirements on these 
subjects that do not meet the ``substantively the same'' standard will 
be preempted.
    Federal hazardous materials transportation law provides at Sec.  
5125(b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
a final rule and not later than two years after the date of issuance. 
The effective date of Federal preemption is 90 days from publication of 
this interim final rule in this matter in the Federal Register. This 
effective date for preemptive effect should not provide a conflict with 
the overall effective date for this interim final rule because the FAA 
Act, and various court decisions dealing with the regulation of air 
transport, generally preempts State and local requirements. 
Historically the States and localities are aware of this preemptive 
effect and do not regulate in conflict with Federal requirements in 
these situations.

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''). Because this interim 
final rule does not have tribal implications and does not impose direct 
compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

E. Regulatory Flexibility Act and Executive Order 13272

    Section 603 of the Regulatory Flexibility Act (RFA) requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever an agency is required by 5 U.S.C. 
553 to publish a general notice of proposed rulemaking for any proposed 
rule. Similarly, section 604 of the RFA requires an agency to prepare a 
final regulatory flexibility analysis when an agency issues a final 
rule under 5 U.S.C. 553 after being required to publish a general 
notice of proposed rulemaking. Because of the need to move quickly to 
address the identified risk, prior notice and comment would be contrary 
to the public interest. As prior notice and comment under 5 U.S.C. 553 
are not required to be provided in this situation, the analyses in 5 
U.S.C.s 603 and 604 are not required.

F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of 
$155,000,000 or more, adjusted for inflation, to either State, local or 
tribal governments, in the aggregate, or to the private sector in any 
one year, and is the least burdensome alternative that achieves the 
objective of the rule.

G. Paperwork Reduction Act

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

H. 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 number contained in the heading 
of this document may be used to cross-reference this action with the 
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major Federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. This interim final rule prohibits the carriage of battery-
powered portable electronic smoking devices in checked baggage and the 
charging of such devices on board a passenger-carrying aircraft. 
Airline passengers will still be permitted to carry their e-cigarettes 
in their carry-on baggage or on their person. In other words, the 
interim final rule only impacts how a passenger may carry battery-
powered portable electronic smoking devices on aircraft, not whether a 
passenger can carry such devices. We find that there are no significant 
environmental impacts associated with this interim final rule.

J. Privacy Act

    Anyone is able to search the electronic form of any 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.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you

[[Page 66821]]

may visit https://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, redesignate paragraphs (a)(19) through (a)(24) as 
paragraphs (a)(20) through (a)(25) and add new 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 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, Sub-section 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 October 23, 2015 under authority 
delegated in 49 CFR part 1.97
Marie Therese Dominguez,
Administrator.
[FR Doc. 2015-27622 Filed 10-29-15; 8:45 am]
BILLING CODE 4910-60-P