2017-00555. Hazardous Materials: Amended Emergency Restriction/Prohibition Order

AGENCY:

Federal Aviation Administration (FAA), DOT

ACTION:

Notice of amended emergency restriction/prohibition order.

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: [phone]; email: [e-mail].

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 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 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 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.

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 (http://Regulations.gov). Furthermore, a petition for review must state the material facts at issue which the petitioner believes dispute the existence of an imminent hazard and must include all evidence and exhibits to be considered. The petition must also state the relief sought. Within 30 days from the date the petition for review is filed, the Secretary must approve or deny the relief in writing; or find that the imminent hazard continues to exist, and extend the original Emergency Order. In response to a petition for review, the Secretary may grant the requested relief in whole or in part; or may order other relief as justice may require (including the immediate assignment the case to the Office of Hearings for a formal hearing on the record).

Emergency Contact Official

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

Issued in Washington, DC, on January 9, 2017.

Reginald C. Govan,

Chief Counsel, Federal Aviation Administration.

Footnotes

1.  https://news.samsung.com/​us/​2016/​12/​09/​samsung-taking-bold-steps-to-increase-galaxy-note7-device-returns/​; see also http://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.