SUMMARY: PHMSA is amending the Hazardous Materials Regulations (HMR) to permit certain fuel cell cartridges and fuel cell systems designed for portable electronic devices to be transported by passengers and crew in carry-on baggage on board passenger-carrying aircraft. Fuel cell cartridges and fuel cell systems are an emerging energy technology developed to provide a more efficient, longer-lasting, and renewable power source for electrically operated equipment. This final rule prescribes regulations for transporting fuel cells containing flammable liquids, including methanol; formic acid; certain borohydride materials; or butane that meet certain performance and consumer use standards. PHMSA is issuing this final rule in cooperation with the Federal Aviation Administration (FAA).

EFFECTIVE DATE: Effective date: The effective date of these amendments is October 1, 2008.

Voluntary Compliance Date: Voluntary compliance is authorized as of May 30, 2008.

Incorporation by Reference Date: The incorporation by reference of publications listed in this final rule is approved by the Director of the Federal Register as of October 1, 2008.

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson, Office of Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration (PHMSA), 1200 New Jersey Avenue, SE., Washington, DC 20590, facsimile telephone number (202) 366-7435, or by e-mail to Eileen.Edmonson@dot.gov.

SUPPLEMENTARY INFORMATION: On September 20, 2007, PHMSA published a notice of proposed rulemaking (NPRM; 72 FR 53744) that proposed to amend the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to permit certain fuel cell cartridges and systems designed for use in portable electronic devices to be transported in carry-on baggage on board passenger-carrying aircraft. Consistent with the requirements adopted by the International Civil Aviation Organization (ICAO) in section 8.1.1.2(r) of the 2007-2008 edition of the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), the NPRM proposed to permit fuel cell systems and cartridges that contain flammable liquids (including methanol), formic acid, and butane in carry-on baggage on board passenger-carrying aircraft provided the fuel cells conform to the industry technical specification governing the design and consumer use of fuel cell cartridges, power units, and power systems developed by the International Electrotechnical Commission (IEC)--IEC/PAS 62282-6-1:2006(E), First Edition 2006-02, with Corrigendum 1, First Edition 2007-04. We also proposed in the NPRM, in response to petitions for rulemaking, numbered P-1475 and P-1483, to permit fuel cell cartridges and systems that contain certain Class 8 (corrosive) borohydride materials to be transported in carry-on baggage on board passenger-carrying aircraft. We agreed with the petitioners that fuel cell cartridges and systems containing these materials pose similar safety risks and will operate in a similar manner as those containing formic acid. We also proposed to require that fuel cell cartridges and systems containing certain borohydride materials conform to the same IEC technical specification described earlier.

The IEC specification contains detailed manufacturing, safety, and testing requirements to address conditions that may be encountered during use, misuse, and consumer transportation. One design requirement of the IEC specification is that the fuel cell systems' outputs do not exceed 60 volts and 240 watts. To ensure the capability of the fuel cell and cartridge to withstand normal conditions of consumer handling and transportation, the specification requires various design-type tests such as pressure differential, vibration, temperature cycling, high temperature exposure, drop, compressive loading, connection cycling, external short circuit, and long-term storage.

Under the NPRM, we proposed to limit the amount of fuel per cartridge to a maximum quantity of 200 mL (6.76 ounces) for liquids, 200 mL (6.76 ounces) for metal fuel cell cartridges containing butane, 120 mL (4.0 ounces) for non-metallic fuel cell cartridges containing butane, and 200 g (7 ounces) for solids. Because the IEC specification states Class 8 borohydride fuels may be liquid or solid (see Figure E1.4 and Sections E1.3.5.1, E1.3.7.1, and E1.3.46), and establishes a 200 g limit for solid fuel per fuel cell cartridge (see Sections E1.4.12.1.3 and E2.4.12.1.3), we proposed this same limit for solid fuel in the NPRM. We also proposed to limit aircraft passengers to two spare fuel cell cartridges per person.

We proposed in the NPRM to permit fuel cells containing the following types of materials to be transported in carry-on baggage on passenger aircraft: (1) Gases meeting the criteria for classification as Division 2.1 (flammable gases), (2) solids meeting the criteria for classification as Division 4.3 (dangerous when wet), and (3) liquids meeting the criteria for classification as Class 3 (flammable) or Class 8 (corrosive) material. We unintentionally omitted from the NPRM's preamble text that the proposed rulemaking also considered solid fuels meeting the criteria for classification as Class 8 material. PHMSA worked closely with FAA to evaluate the transportation safety risks presented by these fuel cell cartridges and systems and determined that they may be transported safely in the cabin of a passenger-carrying aircraft.

II. Comments on the NPRM

PHMSA received comments from the Methanol Institute, MTI MicroFuel Cells, Inc., the U.S. Fuel Cell Council, and Lilliputian Systems. The commenters unanimously support adoption of the proposed rule. Several offered more specific comments on particular aspects of the proposal, as addressed in detail below.

A. Limitation on Fuel Cells Used To Charge Batteries or Devices

In the NPRM, we proposed to limit fuel cell cartridges and systems carried by passengers and crew members to a type and design that will not continue to charge batteries when the device being powered is not in use. This proposed limitation is consistent with restrictions adopted by ICAO.

The Methanol Institute and MTI MicroFuel Cells, Inc., suggest that this restriction is inconsistent with HMR requirements applicable to other energy producing devices such as lithium metal or lithium ion batteries, which are not subject to operating limitations when carried in the passenger cabin of an aircraft. Although the function of fuel cell cartridges and devices may be similar to those of other energy producing devices permitted in transportation under the HMR, we disagree with the commenters that the risks posed by these devices are similar. We determined through our technical review that fuel cell cartridges and systems designed solely to energize devices or that energize devices that are not in use have the potential to overwhelm the safety systems contained in the device, posing a risk of overheating, electric shock, or fuel product release. We will continue to work with the industry and international agencies to evaluate the safety of these fuel cell cartridges and systems as the technology evolves and to consider whether additional rulemaking may be appropriate.

B. Use of the Term "Fuel Cell Cartridge"

The U.S. Fuel Cell Council objects to PHMSA's use of the wording "fuel cell cartridge." It states one company, ReliOn, has used the term since the year 2000 to refer to its patented fuel cell system, composed of multiple "hot-swappable" fuel cell cartridges, and to refer to a cartridge that holds a fuel cell but not fuel. The commenter states the use of this wording will cause confusion in the marketplace and requests that we replace it with the wording "fuel cartridges for fuel cell devices."

We do not agree that our use of the term "fuel cell cartridge" will cause confusion in the regulated community. We note that the terms "fuel cell cartridge" and "fuel cell system" are used extensively in the IEC Specification No. IEC/PAS 62282-6-1 and the U.S. Fuel Council's Special Permit request, dated November 28, 2006, submitted by Dangerous Goods Transport Consulting, Inc., on its behalf. The term "fuel cell cartridge" has a well-established meaning in the industry and is not generally used as a specific reference to the system developed by the ReliOn Company.

III. Provisions of This Final Rule

In this final rule, PHMSA is amending the HMR to permit the transportation in carry-on baggage on passenger-carrying aircraft of fuel cell cartridges and systems containing Class 3 flammable liquids, including methanol; formic acid and borohydride materials meeting the definition for a Class 8 material; and butane, a Division 2.1 gas.

PHMSA is also requiring fuel cells to conform to certain rigorous performance criteria, which are consistent with the passenger authorizations adopted for the 2007-2008 edition of the ICAO Technical Instructions. As stated earlier in this preamble, these criteria include compliance with the industry technical specification and addendum developed by the IEC governing the design and consumer use of fuel cell cartridges, power units, and power systems (IEC Specification No. IEC/PAS 62282-6-1:2006(E), First Edition 2006, with Corrigendum 1, First Edition 2007). PHMSA finds the IEC technical specification comprehensive in that it addresses design, manufacturing, testing, and transportation specific to micro-fuel cells, as well as requirements for valves, filling, packaging performance, failure mode analysis, consumer refilling, materials of construction, exterior and exhaust temperature limits, warnings, certification, markings, and manufacturers' instructions. PHMSA and FAA also strongly support the recent addendum to the IEC specification mandating a zero-leak standard as a basis for successfully passing the design-type tests, which we find is equivalent to the safety standard established for certain non-bulk gas packagings in the HMR. Fuel cell cartridges and systems carried by airline passengers and crew must be marked "APPROVED FOR CARRIAGE IN AIRCRAFT CABIN ONLY" by the manufacturer. This marking is the manufacturer's certification that the fuel cell cartridges and systems conform to the performance standard established in the revised IEC technical specification and all other applicable requirements prescribed in the HMR.