[Federal Register Volume 62, Number 108 (Thursday, June 5, 1997)]
[Rules and Regulations]
[Pages 30767-30772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14739]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, and 172
[Docket No. HM-224A]
RIN 2137-AD02
Hazardous Materials: Shipping Description and Packaging of Oxygen
Generators
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: RSPA is amending the Hazardous Materials Regulations to add a
specific shipping description to the Hazardous Materials Table for
chemical oxygen generators and to require approval of a chemical oxygen
generator, and its packaging, when the chemical oxygen generator is to
be transported with its means of initiation attached. Oxygen generators
currently are transported under several different shipping descriptions
which identify chemical constituents but do not identify that the
packaged articles are oxygen generators. These changes will facilitate
the identification of oxygen generators in transportation, making it
easier to comply with and enforce existing prohibitions against the
carriage of chemical oxygen generators on passenger aircraft and in
inaccessible locations on cargo aircraft, and enhance packaging
requirements.
DATES: Effective: The effective date of these amendments is July 7,
1997. The provisions of Sec. 172.101(l)(1)(ii), which otherwise would
allow up to one year after a change in the Hazardous Materials Table to
use up stocks of preprinted shipping papers and to ship packages that
were marked prior to the change, do not apply to these amendments.
FOR FURTHER INFORMATION CONTACT: Diane LaValle, Office of Hazardous
Materials Standards, 202-366-8553, Research and Special Programs
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
Following the May 11, 1996 crash of ValuJet flight 592 into the
Florida Everglades, where chemical oxygen generators carried as cargo
may have caused or contributed to the severity of the accident, RSPA
published an interim final rule in the Federal Register (61 FR 26418)
on May 24, 1996, followed by a final rule on December 30, 1996 (61 FR
68952) prohibiting the transportation of chemical oxygen generators as
cargo on passenger-carrying aircraft. This prohibition is responsive to
a May 31, 1996 recommendation 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 their expiration dates, and the chemical
core has not been depleted. (Class I, Urgent Action) (A-96-29).
On December 30, 1996, RSPA published a notice of proposed
rulemaking (NPRM) in the Federal Register (61 FR 68955)that proposed,
in relevant part, several additional changes with respect to chemical
oxygen generators: (1) adding a shipping description for ``Oxygen
generator, chemical, 5.1, UN 3353, PG-I and PG-II,'' consistent with
the recent adoption of this shipping description by the International
Civil Aviation Organization (ICAO); (2) indicating in Secs. 172.101
(the Hazardous Materials Table), Secs. 171.11 and 175.85 of the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) that
chemical oxygen generators may not be transported aboard passenger-
carrying aircraft or in inaccessible cargo compartments in cargo
aircraft; (3) indicating in Secs. 171.11, 171.12, and 171.12a that
there are no exceptions from HMR requirements for classification,
approval and description of oxygen generators; and (4) specifying
packaging requirements for shipment of chemical oxygen generators.
This final rule adopts these proposals from the December 30, 1996
NPRM concerning oxygen generators with minor changes. In Secs. 171.11,
171.12 and 171.12a, proposed new paragraphs (d)(14), (b)(17) and
(b)(16) have been adopted as new paragraphs (d)(15), (b)(18) and
(b)(17), respectively. Additionally, paragraph (d)(15) does not
reference the exception in Sec. 175.10 because it is redundant as a
result of the entry for ``Oxygen generator, chemical'' and the
corresponding special provision.
RSPA's December 30, 1996 NPRM also proposed to prohibit the
transportation of oxidizers, including compressed oxygen, on passenger-
carrying aircraft (which would also limit oxidizers that are allowed on
cargo aircraft only to cargo locations that are accessible to crew
members during flight; Sec. 175.85(b)). Docket No. HM-224A, 61 FR
68955. This proposed amendment to the Hazardous Materials Regulations
(HMR), 49 CFR Parts 171-180, is consistent with the NTSB recommendation
that RSPA:
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. (Class I, Urgent Action) (A-96-30).
In the December 30, 1996 NPRM, RSPA expressed its intent to issue a
supplemental NPRM to more fully address proposals pertaining to a
prohibition against oxidizers on passenger aircraft and in inaccessible
locations on cargo aircraft. RSPA expects to publish the supplemental
NPRM in the near future.
RSPA received several requests to extend the comment period on the
December 30, 1996 NPRM for either 60 or 90 days. The requests for an
extension of time to comment did not relate to the proposals in the
December 30, 1996 NPRM concerning the shipping description and
packaging of chemical oxygen generators.
II. Oxygen Generators
The international shipment of hazardous materials by air is
governed by the International Civil Aviation Organization (ICAO)
Technical Instructions for the Safe Transport of Dangerous Goods by Air
(ICAO Technical Instructions). The HMR allow the use of the ICAO
Technical Instructions as an alternative to corresponding hazard
communication and packaging requirements of the HMR (see 49 CFR
171.11). As explained in the NPRM, ICAO recently adopted a shipping
description, ``Oxygen generator, chemical, 5.1, UN 3353, II,'' for
chemical oxygen generators. RSPA proposed this description in the NPRM
to make it easier to identify chemical oxygen generators and for
consistency with the ICAO provisions.
RSPA also explained in the December 30, 1996 NPRM its proposals to
require special packaging for a chemical oxygen generator that is
shipped with its means of initiation attached. RSPA proposed
[[Page 30768]]
to: (1) clarify that oxygen generators must be classed and approved by
the Associate Administrator for Hazardous Material Safety (which may
include packaging requirements); (2) require oxygen generators to
incorporate no less than two safety features that will prevent
unintentional activation of the generator; and (3) require that, when
transported on a cargo-only aircraft, a generator must be contained in
a packaging prepared and originally offered for transportation by the
approval holder. Moreover, each offeror of an approved oxygen generator
must have a copy of the approval, and the approval number must be
marked on the outside of the package.
RSPA received six comments on the proposals dealing with oxygen
generators. All of the commenters supported the addition of the new
shipping description for chemical oxygen generators. Therefore, RSPA is
adding the shipping description ``Oxygen generator, chemical, 5.1, UN
3353, PG-I and PG-II,'' for chemical oxygen generators.
Two commenters suggested that shipping papers for oxygen generators
also contain: (1) a certification that safety caps were inspected prior
to packaging and were in place when packed; and (2) a statement as to
what type of fire extinguisher is effective on the canisters. RSPA
notes that Sec. 172.204 currently requires certification as to
compliance with packaging requirements by the offeror and subpart G of
part 172 has requirements for providing and maintaining emergency
response information. Neither of the suggested changes was proposed in
the NPRM and RSPA does not believe that the commenters have provided
sufficient justification to warrant changing the regulations. However,
these suggestions may be considered in a future rulemaking proceeding
if either or both of these commenters petition for rulemaking in
accordance with 49 CFR 106.31. Section 106.31 requires, in pertinent
part, that a petitioner provide information and arguments that support
the proposed action, including relevant technical, scientific or other
data as available to the petitioner.
One commenter who agreed with the proposal to add Special Provision
57 (adopted as Special Provision 60), which would require an oxygen
generator to be shipped with two safety features that will prevent
unintentional activation, requested that RSPA clarify the means of
compliance with this provision. This commenter also requested RSPA
specifically allow the use of protective packaging and insulation as a
means of meeting this requirement. Another commenter stated that the
proposed language does not make it clear whether the ``two safety
features'' are intended to be additional to the existing device on the
generator which prevents activation. Two other commenters requested
that safety caps be installed on all chemical oxygen generators, and
that the approved packagings be designed to prevent its movement.
RSPA is revising special provision 60, for clarity and consistency
with the ICAO Technical Instructions, to require that oxygen generators
that are shipped with their means of initiation attached incorporate at
least ``two positive means of preventing unintentional actuation''
rather than ``two safety features that will prevent unintentional
activation.'' Activation mechanisms for oxygen generators are not
identical in design or operation. It is not possible to specify
detailed methods of preventing activation without an examination of
each design. Manufacturers are advised that in order to be approved,
current designs must be adapted to provide for two independent means or
systems for prevention of activation and that future designs should
incorporate this capability. Each means or system must be independent
of the other. For example, two hammer retainers or one retainer and a
protective cap. Systems which use two features on one preventive system
(one hammer pin with a retainer on the pin) or use packaging and
insulation to substitute for one system are not acceptable.
RSPA received two comments on the proposal to require approval by
the Associate Administrator for Hazardous Materials Safety (AAHMS) for
the transportation of chemical oxygen generators. The National
Transportation Safety Board (NTSB) stated that ``the Safety Board
supports RSPA's proposal to require special approval for chemical
oxygen generators to determine if these generators, which have
actuators attached, can be safely packaged to prevent initiation during
shipping, and to establish a standard for compliance.'' NTSB also
stated that it ``understands that Title 49 CFR currently requires
chemical oxygen generators to have an RSPA approval, or a previously
authorized Bureau of Explosives approval, to be transported because the
generators contain an explosive actuator.'' Another commenter stated
that the use of device-specific approval is needlessly burdensome and
in many respects is a step backwards to the era of specification,
rather than performance-oriented, requirements.
As noted by NTSB, the HMR already require a chemical oxygen
generator, or any other device, that contains an explosive to be
approved by the AAHMS. The addition of the approval requirement into
Special Provision 60 clarifies that chemical oxygen generators that are
shipped with their means of initiation attached must be approved by the
AAHMS. The approval provision also would apply to non-explosive means
of ignition, if employed. RSPA disagrees that device-specific approval
is needlessly burdensome, believing that the degree of hazard posed by
chemical oxygen generators with means of ignition attached warrants
individual approval. Therefore, Special Provision 60 (originally
proposed as Special Provision 57), requiring that an oxygen generator
that is shipped with its means of initiation attached must be approved
by the AAHMS, is adopted in this final rule.
RSPA received one comment on the proposal to require, for
transportation by cargo-only aircraft, that an oxygen generator must be
contained in a packaging prepared and originally offered for
transportation by the approval holder. The commenter stated that
adoption of this requirement, and the proposal that each offerer of an
approved oxygen generator must have a copy of the approval, will
needlessly impede shipments. The commenter stated that these provisions
will delay shipments of these ``lifesaving devices'' and have little,
if any, impact on transportation safety.
In order to assure their safe transport aboard cargo aircraft, RSPA
believes that chemical oxygen generators may only be transported in a
packaging prepared and originally offered for transportation by an
approval holder. RSPA believes that by requiring a generator to be
packaged by the approval holder, the level of safety for the
transportation of oxygen generators aboard cargo aircraft will be
increased because the approval holder, the party most knowledgeable
about the shipment, can be confident that the packaging is in
compliance with the approval. RSPA also believes that, by requiring
each offerer of an approved generator to have a copy of the approval,
the offerer will be assured that: (1) The generator has been approved;
(2) the shipping description is correct; and (3) the offerer has
knowledge of all relevant packaging requirements. RSPA does not believe
that a shipper can be aware of all these things without a copy of the
approval. Therefore, RSPA is adopting in this final rule requirements
that: (1) For transportation by cargo aircraft, an oxygen generator
must be contained in a packaging prepared and originally offered for
transportation by the
[[Page 30769]]
approval holder; (2) each offerer of an approved oxygen generator must
have a copy of the approval for that generator; and (3) that the
approval number must be marked on the outside of the package. Although
originally proposed as part of Special Provision 60, the requirement
that an oxygen generator must be contained in a packaging prepared and
originally offered for transportation by the approval holder is moved
to Special Provision A51. Language is added to clarify that the oxygen
generator must conform to the provisions of the approval. Special
Provision A51 effectively precludes the shipment by aircraft of an
oxygen generator unless it is repacked in its original packaging. For
example, an oxygen generator which is removed from an aircraft by a
repair facility because the generator is beyond its service life could
not be transported by cargo aircraft unless the repair facility has
approved procedures for repackaging the generator.
The provisions being adopted into the HMR for oxygen generators
generally are consistent with those provisions in the ICAO Technical
Instructions for the shipment of oxygen generators. However, ICAO has
also adopted additional provisions which require: (a) A 1.8 meter drop
test on an unpackaged oxygen generator; and (b) that an oxygen
generator be transported in a package that, when one generator in the
package is actuated, the other generators will not actuate, the
packaging material will not ignite, and the outside surface temperature
of the completed package will not exceed 100 degrees C. Though these
provisions have not been adopted into this final rule, RSPA may propose
to add them in a future rulemaking.
III. Costs and Benefits
A preliminary regulatory evaluation for the December 30, 1996 NPRM,
addressing the proposed prohibition of oxidizers in Class D cargo
compartments, is available for review in the public docket. It
estimates costs of $25 million ($17 million, discounted), in 1995
dollars, over the next ten years to aircraft operators. The potential
safety benefits for the NPRM, i.e., the added assurance that an
accident does not take place as the result of oxidizers enhancing a
cargo compartment fire that would result in the loss of life or
property damage, are estimated to exceed costs if the proposed rule
prevents 9 accidental deaths or approximately 150 injuries over that
ten year period. RSPA anticipates revising the preliminary regulatory
evaluation prior to issuing a supplemental NPRM under Docket HM-224A
and issuing a final regulatory evaluation when a final rule is issued
on the prohibition of oxidizers aboard passenger aircraft.
RSPA does not believe it to be necessary to separate the costs and
benefits in this final rule concerning shipping descriptions and
packagings for chemical oxygen generators from the total costs and
benefits estimated in the preliminary regulatory evaluation. On a
qualitative basis, the rule enhances safety by ensuring that chemical
oxygen generators are properly packaged and identified in
transportation, thus reducing the risks posed by them. Also, the costs
of this rulemaking are minimal: Chemical oxygen generators already are
subject to RSPA approval provisions; minimal added costs will be
incurred by a small number of shippers for changing package markings
and shipping paper descriptions for relatively small numbers of
shipments of oxygen generators.
IV. Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget. The rule is not considered significant
under the regulatory policies and procedures of the Department of
Transportation (44 FR 11034). The economic impact of this rule is so
minimal that the preparation of a regulatory evaluation is not
warranted.
Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous materials transportation law (49 U.S.C. 5101-5127)
contains an express preemption provision that preempts State, local,
and Indian tribe requirements on certain covered subjects. Covered
subjects are:
(i) the designation, description, and classification of hazardous
material;
(ii) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements respecting the
number, content, and placement of such documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(v) the design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
This final rule concerns the classification, shipping description
and packaging of chemical oxygen generators. RSPA lacks discretion in
the preemptive nature of this final rule, and preparation of a
federalism assessment is not warranted.
Title 49 U.S.C. 5125(b)(2) provides that DOT must determine and
publish in the Federal Register the effective date of Federal
preemption. That effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance. RSPA has determined that the
effective date of Federal preemption for these requirements will be
September 3, 1997.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This final rule
applies to persons who transport chemical oxygen generators and who
offer these generators for transportation, most of whom are not small
entities.
Paperwork Reduction Act
This final rule does not propose any additional information
collection burdens. Information collection requirements contained in
Special Provision 60 in this final rule are currently approved under
OMB control number 2137-0557 with regard to approvals for new
explosives under 49 CFR 173.56. A reference to Special Provision 60
will be included in the next revision of the OMB approval. Shipping
paper requirements are currently approved under OMB control number
2137-0037. Under the Paperwork Reduction Act of 1995, no person is
required to respond to an information collection unless it displays a
valid OMB control number.
Regulation Identifier Number (RIN)
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. The amendments adopted in this final rule were
originally proposed in the December 30, 1996, NPRM with RIN 2137-AC92.
[[Page 30770]]
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Marking, Packaging and containers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 49 CFR Parts 171, and 172 are
amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 171.11, paragraph (d)(15) is added to read as follows:
Sec. 171.11 Use of ICAO Technical Instructions.
* * * * *
(d) * * *
(15) An oxygen generator (chemical) must be classed, approved, and
described in accordance with the requirements of this subchapter.
3. In Sec. 171.12, paragraph (b)(18) is added to read as follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) * * *
(18) An oxygen generator (chemical) must be classed, approved, and
described in accordance with the requirements of this subchapter.
* * * * *
4. In Sec. 171.12a, paragraph (b)(17) is added to read as follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(17) An oxygen generator (chemical) must be classed, approved, and
described in accordance with the requirements of this subchapter.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
5. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 172.101 [Amended]
6. In the Sec. 172.101 Hazardous Materials Table, the following
entry is added in appropriate alphabetical order:
[[Page 30771]]
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(8) Packaging authorizations (Sec. (9) Quantity (10) Vessel stowage
Hazardous 173.***) limitations requirements
materials Hazard Identification Label Special ------------------------------------------------------------------------------------------
Symbols descriptions and class or numbers PG codes provisions Passenger Cargo Other
proper shipping division Exceptions Non-bulk Bulk pack- aircraft or aircraft Vessel stowage
names pack-aging aging railcar only stowage provisions
(1) (2).............. (3) (4)............. (5)......... (6) (7)......... (8A)....... (8B)....... (8C)....... (9A)....... (9B)....... (10A)...... (10B)
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* * * * * * *
Oxygen generator, 5.1 UN3353.......... I........... 5.1 60, A51..... None....... 211........ None....... Forbidden.. 15 kg...... (1)........ 56, 58, 69,
chemical. 106
II.......... 5.1 60, A51..... None....... 212........ None....... Forbidden.. 25 kg...... (1)........ 56, 58, 69,
106
* * * * * * *
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[[Page 30772]]
7. In 172.102, in paragraph (c)(1), Special Provision 60 is added,
and in paragraph (c)(2), Special Provision A51 is added to read as
follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
* * * * *
60 An oxygen generator, chemical, that is shipped with its means of
initiation attached must incorporate at least two positive means of
preventing unintentional actuation of the generator, and be classed
and approved by the Associate Administrator for Hazardous Materials
Safety. Each person who offers an oxygen generator for
transportation shall: (1) ensure that the shipment conforms to the
conditions of the approval; (2) maintain a copy of the approval at
each facility where an oxygen generator is prepared for
transportation, and (3) mark the approval number on the outside of
the package.
* * * * *
(2) * * *
A51 When transported by cargo-only aircraft, an oxygen generator
must conform to the provisions of an approval issued under Special
Provision 60 and be contained in a packaging prepared and originally
offered for transportation by the approval holder.
* * * * *
Issued in Washington, DC on May 30, 1997, under the authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 97-14739 Filed 6-4-97; 8:45 am]
BILLING CODE 4910-60-P
