DOT Bans Galaxy Note7 In Airplanes
Why Not Anywhere Else?
WASHINGTON – The U.S. Department of Transportation (DOT), with the Federal Aviation Administration (FAA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA), today announced it is issuing an emergency order to ban all Samsung Galaxy Note7 smartphone devices from air transportation in the United States. Individuals who own or possess a Samsung Galaxy Note7 device may not transport the device on their person, in carry-on baggage, or in checked baggage on flights to, from, or within the United States.
“We recognize that banning these phones from airlines will inconvenience some passengers, but the safety of all those aboard an aircraft must take priority,” said Transportation Secretary Anthony Foxx. “We are taking this additional step because even one fire incident inflight poses a high risk of severe personal injury and puts many lives at risk.”
The above announcement by the US DoT Secretary and his modal Administrations, PHMSA and FAA, was not surprising. Actually, it was a second iteration of an earlier warning that passengers should not use the Note7 onboard airplanes. The fire outbreak incidents were sufficient in number and damage that the U.S. Consumer Product Safety Commission (CPSC) issued a warning to Samsung Galaxy Note7 owners to stop using these phones due to the risk of explosions and fires. Samsung also took steps to help mitigate the situation by expanding their voluntary recall, which allows an exchange for another phone or a refund, and by sending fire-resistant packages to its U.S. customers who wish to return their phone to the distributor.
- Issuing a SAFO entitled—“Air Transport Restrictions for Recalled Lithium Batteries and Lithium Battery Powered Devices”. Operators of Part 91 and 135 aircraft took notice of this SAFO, querying what they needed to do and how to search their passengers.
- Issuing a Part 139 (airports) Cert Alert asking airport operators to use all possible means to notify all their passengers of the ban.
- Issuing a Pack Safe notice to all passengers who attempt to evade the ban by packing their phone in checked luggage are increasing the risk of a catastrophic incident. Anyone violating the ban may be subject to criminal prosecution in addition to fines.
As the Hazardous Materials: Emergency Restriction/Prohibition Order made it clear, the power for issuance of the ban is that held by the Secretary, 49 USC §5121(d)(1):
If, upon inspection, investigation, testing, or research, the Secretary determines that a violation of a provision of this chapter, or a regulation prescribed under this chapter, or an unsafe condition or practice, constitutes or is causing an imminent hazard, the Secretary may issue or impose emergency restrictions, prohibitions, recalls, or out-of-service orders, without notice or an opportunity for a hearing, but only to the extent necessary to abate the imminent hazard.
That citation in the Emergency Restriction/Prohibition Order clarifies two legal questions:
- The authority of the FAA to issue a mandatory order prohibiting the carriage dangerous instruments did not seem to be supported by its statutory powers, 49 USC §44704 and 44709. A very broad interpretation would be needed to include smart phones carried by individuals as within the FAA’s jurisdiction.
- The Emergency Power is contained in 49USC Subtitle III › Chapter 51, which defines the powers of the Secretary as to all of the modes of transportation within his Department.
Since the Samsung Galaxy Note7 poses a threat to safe transportation (49 USC §5103) of passengers and goods, a predicate to a Chapter 51 action by the Secretary, more can/should be done. Why then, did the Secretary NOT issue orders protecting people and goods in automobiles, buses, trucks, mass transit and rails?
There seems to be a substantial risk that someone traveling on a train or on a bus or in a crowded subway would be severely injured by a Samsung Galaxy Note7 device conflagration. Shouldn’t these other modes issue similar orders prohibiting the carriage of these PEDs?
The NJ Transit and MTA have taken such precautions; WHERE’S THE DOT?