[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Rules and Regulations]
[Pages 68952-68954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33036]
[[Page 68951]]
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Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
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49 CFR Part 171 et al.
Prohibition of Oxygen Generators as Cargo in Passenger-Aircraft; Final
Rule and Prohibition of Oxidizers Aboard Aircraft; Proposed Rule
Federal Register / Vol. 61, No. 251 / Monday, December 30, 1996 /
Rules and Regulations
[[Page 68952]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 and 173
[Docket No. HM-224; Amdt. Nos. 171-146; and 173-254 ]
RIN 2137-AC89
Prohibition of Oxygen Generators as Cargo in Passenger- Aircraft
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: RSPA is prohibiting the transportation of oxygen generators as
cargo on board passenger-carrying aircraft. This rule applies to both
foreign and domestic passenger-carrying aircraft entering, leaving or
operating in the United States, and to any person offering an oxygen
generator for transportation on any passenger-carrying aircraft.
EFFECTIVE DATE: This final rule is effective December 31, 1996.
FOR FURTHER INFORMATION CONTACT: William E. Vincent, Director, Office
of Policy and Program Support, (202) 366-4831, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
Street SW., Washington DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On May 24, 1996, RSPA published in the Federal Register an interim
final rule temporarily prohibiting, until January 1, 1997, the
transportation of chemical oxygen generators as cargo on passenger-
carrying aircraft. 61 FR 26418. This prohibition applies to domestic
and foreign air carriers operating passenger-carrying aircraft
entering, leaving or operating in the United States, and to any person
offering a chemical oxygen generator for transportation as cargo on any
of these aircraft.
This interim final rule was issued under the authority delegated to
RSPA by the Secretary of Transportation, in 49 CFR 1.53(b), to issue
regulations implementing the Federal hazardous material transportation
law, 49 U.S.C. 5101-5127. Enforcement of the Federal hazardous material
transportation law and the Hazardous Materials Regulations (HMR, 49 CFR
Parts 171-180) issued under that law is shared by RSPA and four modal
administrations within the Department of Transportation: Federal
Aviation Administration (FAA), Federal Highway Administration, Federal
Railroad Administration, and United States Coast Guard. FAA has primary
enforcement authority concerning transportation of hazardous materials
by air. 49 CFR 1.47(k).
RSPA does not regulate, and the HMR do not apply to, components of
the aircraft itself. Accordingly, the May 24, 1996 interim final rule
does not apply to chemical oxygen generators that are installed in the
cabins of many aircraft to provide oxygen in emergencies to passengers
and crew members. The prohibition in the May 24, 1996 interim final
rule also does not apply to compressed oxygen in cylinders.
The May 24, 1996 interim final rule included the following
definition of an oxygen generator to which the prohibition applies:
``Oxygen generator (chemical) means a device containing chemicals that
upon activation release oxygen as a product of chemical reaction.'' 49
CFR 171.8 (61 FR 26419). Exceptions to the prohibition are provided for
a chemical oxygen generator that meets the specific safety requirements
of 49 CFR 175.10(a)(7), for medical use of passengers in the passenger
cabin, and for small oxygen generators for personal use that are
transported as checked baggage in accordance with 49 CFR 175.10(a)(24).
49 CFR 173.21(k) (61 FR 26419). As discussed below, in a separate
rulemaking proceeding in Docket No. HM-224A, RSPA is proposing
elimination of the exception in 49 CFR 175.10(a)(24) for small personal
oxygen generators.
II. NTSB Recommendations
The May 24, 1996 interim final rule responds in part to the
following two recommendations of the National Transportation Safety
Board (NTSB) that RSPA:
In cooperation with the Federal Aviation Administration,
permanently prohibit the transportation of chemical oxygen
generators as cargo on board any passenger or cargo aircraft when
the generators have passed expiration dates, and the chemical core
has not been depleted. (A-96-29) (Class I, Urgent Action)
In cooperation with the Federal Aviation Administration,
prohibit the transportation of oxidizers and oxidizing materials
(e.g., nitric acid) in cargo compartments that do not have fire or
smoke detection systems. (A-96-30) (Class I, Urgent Action)
These recommendations were issued as part of NTSB's ongoing
investigation of the May 11, 1996 accident involving the loss of
ValuJet Airlines Flight 592. Preliminary evidence indicates that
chemical oxygen generators were being carried in a cargo compartment on
board Flight 592 and may have caused, or contributed to the severity
of, the accident. NTSB and FAA are continuing to investigate this
accident and issues concerning whether the chemical oxygen generators
in the cargo compartment on board Flight 592 were offered for
transportation, and were being transported, in accordance with the
applicable requirements of the HMR. Nonetheless, RSPA issued the May
24, 1996 interim final rule to prevent any similar incidents involving
chemical oxygen generators as cargo on passenger-carrying aircraft
while RSPA could consider whether to make this prohibition permanent.
In the separate rulemaking in Docket No. HM-224A, RSPA addresses the
remaining parts of the NTSB recommendations by proposing to prohibit
oxidizers from being transported aboard all passenger-carrying aircraft
and in those inaccessible cargo compartments on cargo aircraft that
lack fire or smoke detection and suppression systems (i.e., Class D
compartments, see 14 CFR 25.857).
III. Comments and Other Matters Considered
RSPA received five comments on the interim final rule. As discussed
below, RSPA is permanently prohibiting the transportation of oxygen
generators (chemical) as cargo on passenger-carrying aircraft. This
prohibition is consistent with the July 1996 amendment to the 1995-96
Edition of the International Civil Aviation Organization's Technical
Instructions for the Safe Transport of Dangerous Goods by Air. (The HMR
authorize the transportation of hazardous materials within the United
States by aircraft in accordance with the ICAO Technical Instructions.
49 CFR 171.11.)
Two commenters recommended that the prohibition in the interim
final rule be made permanent and extended to cargo aircraft. According
to the Air Line Pilots Association (ALPA), similar crash scenarios
``can produce the same amount of destruction'' for both cargo and
passenger-carrying aircraft. ALPA stated that oxygen generators pose a
significant potential hazard to all aircraft and that the ``line of
demarcation'' is not the number of persons on board an aircraft that
might be lost, but whether the aircraft could withstand the potential
hazard and be landed safety without loss of life or the aircraft.
A consultant who previously worked for FAA as a hazardous material
inspector and coordinator expressed his concern that chemical oxygen
generators should be forbidden for
[[Page 68953]]
transport by any type of aircraft. He stated that it is difficult, if
not impossible, for an air carrier to insure that these items are in
safe condition for transportation. He believes that airlines could
normally transport replacement generators by ground and keep a supply
at strategic locations, to avoid the need to carry them as cargo on
their own airplanes, but he indicated that a limited exemption might be
appropriate to allow replacements to be transported to overseas or
remote areas. A private citizen also expressed her concern about
hazardous materials contained in passengers' baggage. She recommended a
prohibition against transportation of any material having the remotest
possibility of endangering those on board an aircraft.
The Air Transport Association (ATA) supported the interim final
rule but recommended that RSPA not rule out the possibility of
reauthorizing the air transportation of chemical oxygen generators at a
future date. ATA expressed its understanding that the oxygen generators
carried aboard ValuJet Flight 592 ``were unnecessarily and perhaps
improperly offered for transportation by aircraft.'' It stated that,
``since chemical oxygen generators were first installed in aircraft in
lieu of oxygen bottles, tens of thousands have been safely transported
by airlines in compliance with regulations'' and also ``as part of the
aircraft's installation.'' ATA urged RSPA and FAA to address the ``two
possible failure modes'' for these devices, inadequate safety devices
and high ambient temperatures, through regulations that would require
protective devices (such as a locking pin and a protective cap) and
research into packaging methodologies that would provide thermal
protection. ATA recommended that these issues receive further analysis
``before RSPA totally forecloses the possibility of the resupply of
chemical oxygen generators for installation in air carrier fleets via
the combination air carriers' cargo system.'' ATA also indicated that
air carriers had sought for many years, and would welcome, an increase
in enforcement directed at offerors who fail to properly disclose
shipments of hazardous materials.
A European supplier of aircraft oxygen equipment stated that it was
necessary to allow chemical oxygen generators to be transported on
passenger-carrying aircraft in order to repair planes on which the
oxygen equipment had malfunctioned. This company indicated it is often
requested to supply replacement equipment within four hours, because an
aircraft is not permitted to take off before the defective equipment is
replaced. This commenter stated that this happens ``monthly several
times all over the world,'' and asked if there was an exemption for an
``aircraft on ground'' situation. Otherwise, it stated, a forwarding
agency would have to wait for a cargo-only aircraft, which operate less
frequently.
RSPA recognizes that the oxygen generators involved in the ValuJet
accident appear to have been shipped in violation of the HMR, and RSPA
continues to believe that these generators may be safely transported in
compliance with the HMR, including the conditions of the approvals
under which the generators are offered for transportation by their
original manufacturers. However, these devices appear to be unique in
that, if handled improperly, they can both generate sufficient heat to
set adjacent materials on fire and also provide oxygen to intensify a
fire. The potential for loss of life and damage to property justify
this prohibition and the consequence that any generators needed as
replacement parts must be transported by ground or by cargo-only
aircraft.
At the present time, RSPA is continuing this prohibition as limited
to passenger-carrying aircraft. RSPA believes that any decision to
prohibit chemical oxygen generators from cargo aircraft should only
follow public notice and an opportunity for further comment. A
prohibition against transporting any oxidizers in Class D compartments
of cargo aircraft, as proposed under docket HM-224A, would apply to
chemical oxygen generators. In that proceeding, among others, RSPA will
continue to evaluate the hazards posed by chemical oxygen generators to
determine what additional requirements, if any, are needed to insure
their safe transportation.
ALPA also recommended removing the exceptions provided in 49 CFR
175.10(a) (7) and (24). The first subparagraph allows the
transportation of an oxygen generator provided by the air carrier for
medical use of a passenger in the passenger cabin. The exception solely
applies to the transportation of those oxygen generators that are for
use by on-board passengers and does not provide for the transportation
of medical oxygen generators for the purposes of staging or
positioning. ALPA believes that the availability of gaseous oxygen
makes this part of the exception unnecessary. RSPA is not eliminating
this part of subparagraph 175.10(a)(7) at this time because there is
insufficient information on the potential effect on airline passengers
with breathing difficulties, and the public interest would require
public notice and comment before making this type of change to the HMR.
RSPA may consider removing oxygen generators from subparagraph (a)(7)
in a future rulemaking.
The exception in 49 CFR 175.10(a)(24) allows a small oxygen
generator intended for personal use to be transported as a passenger's
checked baggage under certain circumstances, including the approval of
the air carrier. ALPA believes that passengers are unaware of this
requirement, and therefore fail to notify the carrier, because of a
lack of public awareness programs and procedures for informing
passengers that they must contact the carrier before checking baggage
containing an oxygen generator. ALPA also stated that there is no
practical means of assuring that the person owning this type of oxygen
generator has been educated in how to inspect and maintain the
generator as specified in the HMR, and there is no way for the air
carrier to examine the generator to verify compliance with the
conditions in subsection 175.10(a)(24). ALPA pointed out that the
United Kingdom's Civil Aviation Authority has prohibited the
transportation of these personal oxygen generators on passenger-
carrying aircraft.
ALPA's arguments in favor of eliminating the exception in
subsection 175.10(a)(24) warrant further consideration. At the same
time, RSPA believes that any such change should follow public notice
and comment. Accordingly, RSPA is proposing to eliminate 49 CFR
175.10(a)(24) in the proposed rule in docket No. HM-224A. ALPA's
recommendation and supporting comments will be considered in that
proceeding.
IV. Effective Date
Because of the potential safety risk posed by continued
transportation of oxygen generators as cargo in passenger-carrying
aircraft, RSPA has determined that good cause exists for making this
rule effective less than 30 days following its issuance.
V. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is considered a significant regulatory action under
section 3(f) of Executive Order 12866 and therefore is subject to
review by the Office of Management and Budget. The rule is significant
according to the Regulatory Policies and Procedures of the Department
of Transportation (44 FR 11034).
[[Page 68954]]
The changes adopted in this rule should not result in any
significant additional costs to persons subject to the HMR. About
150,000 of these oxygen generators are installed on about 1,000 U.S.
passenger-carrying aircraft. Because of their typical effective life of
about twelve years, it is not necessary to frequently transport these
generators as uninstalled or not-in-use materials. In addition,
alternative transportation is available for these generators because
this rule does not prohibit or inhibit their transportation by highway,
rail, water or cargo aircraft. Because of the minimal economic impact
of this rule, a full regulatory evaluation is not warranted.
Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism'') and does not
have sufficient Federalism impacts to warrant the preparation of a
federalism assessment.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. There are limited
adverse economic impacts on small businesses or other organizations
because this rule imposes a limited prohibition on certain persons
subject to the HMR.
Paperwork Reduction Act
There are no information collection requirements in this final
rule.
Regulation Identifier Number
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 can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
In consideration of the foregoing, the interim rule amending 49 CFR
parts 171 and 173 which was published at 61 FR 26418 on May 24, 1996,
is adopted as a final rule with the following change:
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
1. The authority citation for Part 173 is revised to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
2. In Sec. 173.21, paragraph (k) is revised to read as follows:
Sec. 173.21 Forbidden materials and packages.
* * * * *
(k) Notwithstanding any other provision of this subchapter,
including Secs. 171.11 and 175.10(a)(2) of this subchapter, an oxygen
generator (chemical) as cargo on a passenger-carrying aircraft. This
prohibition does not apply to an oxygen generator for medical or
personal use of a passenger that meets the requirements of
Sec. 175.10(a)(7) or Sec. 175.10(a)(24) of this subchapter.
Issued in Washington, DC on December 23, 1996, under authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 96-33036 Filed 12-27-96; 8:45 am]
BILLING CODE 4910-60-P
