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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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