Hazardous Materials: Amended Emergency Restriction/Prohibition Order, 3606-3609 [2017-00555]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Rules and Regulations]
[Pages 3606-3609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00555]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2016-9288]


Hazardous Materials: Amended Emergency Restriction/Prohibition 
Order

AGENCY: Federal Aviation Administration (FAA), DOT

ACTION: Notice of amended emergency restriction/prohibition order.

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SUMMARY: This document provides notice of the Amended Emergency 
Restriction/Prohibition Order No. FAA-2016-9288, issued by the 
Secretary of the Department of Transportation on January 9, 2017, and 
effective on January 10, 2017, to Samsung Galaxy Note 7 Users and air 
carriers. The Amended Emergency Restriction/Prohibition Order continues 
to prohibit persons from offering for air transportation or 
transporting via air any Samsung Galaxy Note 7 device on their person, 
in carry-on baggage, in checked baggage, or as cargo; requires 
individuals who inadvertently bring a Samsung Galaxy Note 7 device onto 
an aircraft immediately power off the device, not use or charge the 
device while aboard the aircraft, protect the device from accidental 
activation, including disabling any features that may turn on the 
device, such as alarm clocks, and keep the device on their person and 
not in the overhead compartment, seat back pocket, nor in any carry-on 
baggage, for the duration of the flight; requires air carriers to deny 
boarding to a passenger in possession of a Samsung Galaxy Note 7 device 
unless and until the passenger divests themselves and their baggage of 
the Samsung Galaxy Note 7 device; and requires that if an air carrier 
flight crew member identifies that a passenger is in possession of a 
Samsung Galaxy Note 7 device while the aircraft is in flight, the crew 
member must instruct the passenger to power off the device and not to 
use or charge the device onboard the aircraft and protect the device 
from accidental activation, including disabling any features that may 
turn on the device, such as alarm clocks, and keep the device on their 
person and not in the overhead compartment, seat back pocket, nor in 
any carry-on baggage, for the duration of the flight. The Amended 
Emergency Restriction/Prohibition Order only removes the requirement 
for air carriers to alert passengers to the prohibition against air 
transport of a Samsung Galaxy Note 7 device, in particular, immediately 
prior to boarding.

DATES: The Amended Emergency Restriction/Prohibition Order issued on 
January 9, 2017, by the Secretary of the Department of Transportation 
and provided in this document is effective on January 10, 2017.

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

SUPPLEMENTARY INFORMATION: The full text of the Amended Emergency 
Restriction/Prohibition Order No. FAA-2016-9288 issued January 9, 2017, 
is as follows:
    The Emergency Restriction/Prohibition Order (Order) issued by the 
United States Department of Transportation (DOT) on October 14, 2016, 
is hereby amended to remove the requirement for air carriers to alert 
passengers to the prohibition against air

[[Page 3607]]

transport of a Samsung Galaxy Note 7 device, in particular, immediately 
prior to boarding. As discussed herein, DOT is removing this 
requirement due to the extensive efforts by Samsung and U.S. wireless 
providers to recall all Samsung Galaxy Note 7 devices and to make users 
aware the Samsung Galaxy Note 7 device is forbidden from transportation 
by air, as well as the deployment by major U.S. wireless providers of a 
software update that will ultimately render the phones inoperable as 
mobile devices. In addition, the hazardous materials regulations (HMR; 
49 CFR parts 171-180) provide a systematic framework to protect the 
safe transportation of hazardous materials that includes procedures for 
notification, handling, and reporting of discrepancies and incidents at 
air passenger facilities and cargo facilities. All other requirements 
of the Order issued on October 14, 2016, remain in effect and are not 
impacted by this Amendment. The Order, as amended, reads in full as 
follows:
    This Amended Emergency Restriction/Prohibition Order (Amended 
Order) is issued by the DOT pursuant to 49 U.S.C. 5121(d) and will be 
effective on January 9, 2017. This Amended Order is issued to all 
persons who transport or offer a Samsung Galaxy Note 7 device for air 
transportation in commerce within the United States. Individuals who 
own or possess a Samsung Galaxy Note 7 device may not transport the 
device on their person, in carry-on baggage, in checked baggage, nor 
offer the device for air cargo shipment. This prohibition includes all 
Samsung Galaxy Note 7 devices. Samsung Galaxy Note 7 devices are 
properly classified as lithium ion batteries contained in equipment, 
UN3481, Class 9 (49 CFR 172.101).
    By this Amended Order, DOT is:
    * Continuing to prohibit persons from transporting or offering for 
air transportation a Samsung Galaxy Note 7 device, by either carrying 
it on their person or in carry-on baggage when boarding an aircraft, 
placing the Samsung Galaxy Note 7 device in checked baggage, or 
shipping it via air as cargo;
    * continuing to require air carriers to handle Samsung Galaxy Note 
7 devices consistently with other forbidden hazardous materials under 
title 49 of the Code of Federal Regulations, and to deny boarding to a 
passenger in possession of a Samsung Galaxy Note 7 device unless and 
until the passenger divests themselves and their baggage, including 
carry-on and checked, of the Samsung Galaxy Note 7 device;
    * continuing to require that persons who inadvertently bring a 
Samsung Galaxy Note 7 device onto an aircraft immediately power off the 
device, do not use or charge the device while aboard the aircraft, 
protect the device from accidental activation, including disabling any 
features that may turn on the device, such as alarm clocks, and keep 
the device on their person and not in the overhead compartment, seat 
back pocket, nor in any carry-on baggage, for the duration of the 
flight; and
    * continuing to require that if an air carrier flight crew member 
identifies that a passenger is in possession of a Samsung Galaxy Note 7 
device while the aircraft is in flight, the crew member must instruct 
the passenger to power off the device, do not use or charge the device 
while aboard the aircraft, protect the device from accidental 
activation, including disabling any features that may turn on the 
device, such as alarm clocks, and keep the device on their person and 
not in the overhead compartment, seat back pocket, nor in any carry-on 
baggage, for the duration of the flight.
    Upon information derived from the Samsung Galaxy Note 7 device 
recall under Order issued September 15, 2016, recent incidents of a 
dangerous evolution of heat with Samsung Galaxy Note 7 replacement 
devices, Samsung's October 11, 2016, decision to stop manufacturing and 
selling Samsung Galaxy Note 7 devices due to the inability to identify 
the root cause of the incidents, and the U.S. Consumer Product Safety 
Commission (CPSC) recall of all Samsung Galaxy Note 7 devices issued 
October 13, 2016, the Secretary of Transportation (Secretary) has found 
an unsafe condition and that an unsafe practice exists and constitutes 
an imminent hazard to the safety of air transportation. For more 
detailed information, see ``Background/Basis for Order'' below.

Effective January 10, 2017, any Person Identified by This Amended Order

    (1) Shall not transport, nor offer for transportation, via air a 
Samsung Galaxy Note 7 device. By virtue of the Order issued October 14, 
2016, and the CPSC recalls, the Samsung Galaxy Note 7 devices are 
forbidden for transportation by air. For purposes of this Amended 
Order, transporting or offering for transportation includes bringing a 
Samsung Galaxy Note 7 device aboard an aircraft on your person (e.g., 
in your pocket), bringing a Samsung Galaxy Note 7 device aboard an 
aircraft in carry-on baggage, offering a Samsung Galaxy Note 7 device 
in checked baggage, and offering a Samsung Galaxy Note 7 device for air 
cargo shipment (e.g., FedEx or United Parcel Service).
    (2) Shall ensure that a prohibited Samsung Galaxy Note 7 device 
inadvertently brought aboard an aircraft is immediately powered off, 
not used or charged while aboard the aircraft, protected from 
accidental activation, including disabling any features that may turn 
on the device, such as alarm clocks, and kept on their person and not 
in the overhead compartment, seat back pocket, nor in any carry-on 
baggage, for the duration of the flight.

Air Carrier Requirements

    By virtue of the Order issued October 14, 2016, this Amended Order, 
and the CPSC recalls, the Samsung Galaxy Note 7 device is a forbidden 
hazardous material. In accordance with 49 CFR part 175, air carriers 
must not accept these devices for air transportation by knowingly 
permitting a passenger to board an aircraft with a Samsung Galaxy Note 
7 device. Damaged or recalled lithium ion batteries, including those 
contained in equipment, are not permitted to be transported by air, and 
a Samsung Galaxy Note 7 device is categorized as ``forbidden.'' 49 CFR 
173.21(c). Upon inquiry from a passenger, air carriers are required to 
make passengers aware of the continuing prohibition against the 
transportation of Samsung Galaxy Note 7 devices aboard aircraft on 
their person, in carry on or checked baggage, and in cargo. If an air 
carrier representative identifies that a passenger is in possession of 
a Samsung Galaxy Note 7 device prior to boarding the aircraft, the air 
carrier must deny boarding to the passenger unless and until the 
passenger divests themselves, including on their person and in checked 
and carry-on baggage, of the Samsung Galaxy Note 7 device. If an air 
carrier flight crew member identifies that a passenger is in possession 
of a Samsung Galaxy Note 7 device while the aircraft is in flight, the 
crew member must instruct the passenger to power off the device, not 
use or charge the device while aboard the aircraft, protect the device 
from accidental activation, including disabling any features that may 
turn on the device, such as alarm clocks, and keep the device on their 
person and not in the overhead compartment, seat back pocket, nor in 
any carry-on baggage, for the duration of the flight.
    This Amended Order applies to all persons who transport Samsung 
Galaxy Note 7 devices, or offer them for transportation, by air in 
commerce (as defined by 49 U.S.C. 5102(1)) to, from, and within the 
United States, and their

[[Page 3608]]

officers, directors, employees, subcontractors, and agents. This 
Amended Order is effective January 10, 2017, and remains in effect 
unless rescinded in writing by the Secretary, or until it otherwise 
expires by operation of regulation and/or law.

Jurisdiction

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

Background/Basis for Order

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

A. Samsung Galaxy Note 7 Recall and Incidents

    On September 15, 2016, Samsung and the CPSC recalled certain 
Samsung Galaxy Note 7 devices sold prior to September 15, 2016. The 
recall was based on a finding that the lithium ion battery in a Samsung 
Galaxy Note 7 device ``can overheat and catch fire.'' Samsung offered 
either a refund or replacement Samsung Galaxy Note 7 device. 
Subsequently, there were reported incidents of the replacement Samsung 
Galaxy Note 7 devices overheating and/or catching fire. In a decision 
announced on October 11, 2016, Samsung stopped production and sale of 
Samsung Galaxy Note 7 devices. On October 13, 2016, Samsung and the 
CPSC expanded the recall to include all Samsung Galaxy Note 7 devices 
because they ``can overheat and catch fire.'' On December 9, 2016, 
Samsung reported that it would release a software update starting on 
December 19, 2016 that would prevent U.S. Samsung Galaxy Note 7 devices 
from charging and eliminate their ability to work as mobile devices.

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

    In the wake of Samsung Galaxy Note 7 device incidents, the Federal 
Aviation Administration (FAA) and Pipeline and Hazardous Materials 
Safety Administration (PHMSA) have taken a number of steps to mitigate 
the safety risk of Samsung Galaxy Note 7 devices in air transportation. 
On September 8, 2016, the FAA issued a statement strongly advising 
passengers not to turn on or charge a Samsung Galaxy Note 7 device 
aboard an aircraft, nor stow a Samsung Galaxy Note 7 device in any 
checked baggage. On September 15, 2016, PHMSA issued a Safety Advisory 
Notice to inform the public about the risks associated with 
transporting damaged, defective, or recalled lithium batteries or 
portable electronic devices, including the Samsung Galaxy Note 7 device 
recalled by the CPSC. The Safety Advisory Notice required that persons 
who wish to carry the recalled Samsung Galaxy Note 7 device aboard an 
aircraft must (1) turn off the device; (2) disconnect the device from 
charging equipment; (3) disable all applications that could 
inadvertently activate the phone; protect the power switch to prevent 
its unintentional activation; and (4) keep the device in carry-on 
baggage or on your person.
    On September 16, 2016, the FAA issued general guidance to airlines 
about the rules for carrying recalled or defective lithium batteries 
and lithium battery-powered devices aboard an aircraft. Specifically, 
the FAA noted that (1) U.S. hazardous materials regulations prohibit 
air cargo shipments of recalled or defective lithium batteries and 
lithium battery-powered devices; (2) passengers may not turn on or 
charge the devices when they carry them aboard the aircraft; (3) 
passengers must protect the devices from accidental activation; and (4) 
passengers must not pack them in checked baggage. On September 16, 
2016, the FAA issued a Safety Alert for Operators (SAFO), recommending 
the following action by air operators: (1) Ensure that operator 
personnel responsible for cargo processing know and understand that 
damaged or recalled lithium batteries--including those installed in 
equipment and devices--are forbidden on aircraft as air cargo; and (2) 
ensure that operator personnel responsible for passenger processing and 
cabin safety know and understand that damaged or recalled lithium 
batteries--including those installed in devices--may be restricted from 
carriage or use on the aircraft. On October 10, 2016, the FAA issued 
updated guidance on the Samsung Galaxy Note 7 device, urging passengers 
aboard an aircraft to power down and not use, charge, or stow in 
checked baggage, any Samsung Galaxy Note 7 device.
    Notwithstanding the above DOT actions, and in light of continued 
risks identified by Samsung and CPSC associated with Samsung Galaxy 
Note 7 devices, on October 14, 2016, DOT issued the Order to forbid 
transport of Samsung Galaxy Note 7 devices by air transportation in 
commerce within the United States. The Order outlined remedial action 
required, which remains unchanged in this Amended Order except for the 
requirement for air carriers to alert passengers to the prohibition 
against air transport of the Samsung Galaxy Note 7 device, in 
particular, immediately prior to boarding. Since the issuance of the 
Order, DOT has determined that the remedial action of air carriers 
alerting passengers to the prohibition against air

[[Page 3609]]

transport of the Samsung Galaxy Note 7 device, in particular, 
immediately prior to boarding is no longer warranted, due to the 
extensive efforts by Samsung and U.S. wireless providers to recall all 
Samsung Galaxy Note 7 devices and to make users aware the Samsung 
Galaxy Note 7 device is forbidden from transportation by air. Moreover, 
on December 9, 2016, Samsung reported on its Web site that more than 93 
percent of all recalled Samsung Galaxy Note 7 devices had been returned 
to Samsung and that it would release a software update starting on 
December 19, 2016 that would prevent U.S. Samsung Galaxy Note 7 devices 
from charging and eliminate their ability to work as mobile devices.\1\ 
We understand that major U.S. wireless providers will push out this 
update on or before January 8, 2017. T Mobile reported that it would 
push the software update on December 27, 2016.\2\ Verizon Wireless and 
AT&T both reported that they would push the software update on January 
5, 2017,\3\ and Sprint reported that it would push the update on 
January 8, 2017.\4\ We think that these efforts to render U.S. Samsung 
Galaxy Note 7 devices inoperable, in addition to the ongoing recall and 
notification efforts, will decrease the likelihood that Samsung Galaxy 
Note 7 devices will be brought on board aircraft. In addition, the 
hazardous materials regulations (HMR; 49 CFR parts 171-180) provide a 
systematic framework to protect the safe transportation of hazardous 
materials that includes procedures for notification, handling, and 
reporting of discrepancies and incidents at air passenger facilities 
and cargo facilities.
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    \1\ https://news.samsung.com/us/2016/12/09/samsung-taking-bold-steps-to-increase-galaxy-note7-device-returns/; see also https://www.samsung.com/us/note7recall/.
    \2\ https://explore.t-mobile.com/samsung-galaxy-note7-recall.
    \3\ https://www.verizonwireless.com/support/samsung-galaxy-note7-recall-faqs/; https://www.att.com/esupport/article.html#!/wireless/KM1122948.
    \4\ https://support.sprint.com/support/article/FAQs-about-the-Samsung-Galaxy-Note7-recall/817d4190-b2e2-43c8-b549-97b3553d5c24.
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Remedial Action

    To eliminate or abate the imminent hazard:
    (1) Persons covered by this Amended Order shall not transport, nor 
offer for transportation, via air any Samsung Galaxy Note 7 device.
    (2) Air carriers are required to handle Samsung Galaxy Note 7 
devices consistently with other forbidden hazardous materials under 49 
CFR parts 173 and 175, and to deny boarding to a passenger in 
possession of a Samsung Galaxy Note 7 device unless and until the 
passenger divests themselves and carry-on or checked baggage of the 
Samsung Galaxy Note 7 device.
    (3) Persons covered by this Amended Order who inadvertently bring a 
prohibited Samsung Galaxy Note 7 device aboard an aircraft must 
immediately power off the device, leave it powered off until no longer 
aboard the aircraft, not use or charge the device while aboard the 
aircraft, protect the device from accidental activation, including 
disabling any features that may turn on the device, such as alarm 
clocks, and keep the device on their person and not in the overhead 
compartment, seat back pocket, nor in any carry-on baggage, for the 
duration of the flight.
    (4) When a flight crew member identifies that a passenger is in 
possession of a Samsung Galaxy Note 7 device while the aircraft is in 
flight, the crew member must instruct the passenger to power off the 
device, not use or charge the device while aboard the aircraft, protect 
the device from accidental activation, including disabling any features 
that may turn on the device, such as alarm clocks, and keep the device 
on their person and not in the overhead compartment, seat back pocket, 
nor in any carry-on baggage, for the duration of the flight.

Rescission of This Amended Order

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

Failure To Comply

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

Right To Review

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

Emergency Contact Official

    If you have any questions concerning this Amended Emergency 
Restriction/Prohibition Order, you should call PHMSA Hazardous 
Materials Information Center at 1-800-467-4922 or email at phmsa.hm-infocenter@dot.gov.

    Issued in Washington, DC, on January 9, 2017.
Reginald C. Govan,
Chief Counsel, Federal Aviation Administration.
[FR Doc. 2017-00555 Filed 1-9-17; 4:15 pm]
 BILLING CODE 4910-13-P