2020-06312. Oxygen Mask Requirement: Supplemental Oxygen for Emergency Descent and for First Aid; Turbine Engine Powered Airplanes With Pressurized Cabins

AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

This action amends the oxygen mask requirement for circumstances in which a single pilot is at the aircraft controls. This action applies to all certificate holders who conduct domestic, flag, and supplemental operations. This action responds to a statutory mandate that requires the FAA to increase the flight level threshold at which the FAA requires use of an oxygen mask by the remaining pilot at the aircraft controls when the other pilot at the controls leaves the control station.

DATES:

This final rule is effective on March 23, 2020.

FOR FURTHER INFORMATION CONTACT:

Daniel T. Ronneberg, Part 121 Air Carrier Operations, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone [phone]; email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

This final rule addresses section 579 of the Federal Aviation Administration Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 2018) (“FAARA 2018”), which requires the FAA to issue a final regulation revising § 121.333(c)(3) of title 14, Code of Federal Regulations (14 CFR), to apply only to flight altitudes above flight level 410. Such an amendment would increase the flight level ^[1] threshold from flight level 250 to flight level 410 (i.e., a flight altitude of 41,000 feet), at which the FAA requires a pilot at the controls to put on and use the required oxygen mask while the other pilot leaves his or her control station. As a result, by this action, the FAA amends 14 CFR 121.333(c)(3) to replace the current flight altitude threshold of flight level 250 with flight level 410.

II. Legal Authority and Good Cause

A. Legal Authority

The FAA is responsible for the safety of flight in the United States and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA Administrator's authority to issue rules on aviation safety is found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). Section 106(f) vests final authority in the Administrator for carrying out all functions, powers, and duties of the administration relating to the promulgation of regulations and rules.

Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 44701(a)(5) requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security. In addition, section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Further, section 44701(d)(1)(A) specifically states that the Administrator, when prescribing safety regulations, must consider the duty of an air carrier to provide service with the highest possible degree of safety in the public interest. In addition, section 579 of Public Law 115-254 (Oct. 5, 2018) requires this amendment, stating that the Administrator of the FAA shall issue a final regulation revising § 121.333(c)(3) of title 14 CFR to apply only to flight altitudes above flight level 410.

This rulemaking is promulgated pursuant to the authority described in the preceding paragraphs. These authorities apply to the oversight the FAA exercises to ensure safety of air carrier operations, including flight crewmember supplemental oxygen usage.

B. Good Cause for Immediate Adoption and Basis for Immediate Effective Date

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally requires public notice and an opportunity to comment before promulgating regulations. The APA provides an exception to the notice and comment process in section 553(b)(3)(B). That exception authorizes an agency to dispense with notice and comment rulemaking procedures when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

In this instance, the FAA finds good cause exists to forgo notice and comment because notice and comment would be unnecessary, and contrary to the public interest. The statute unambiguously requires replacing the flight altitude threshold of flight level 250 with flight level 410. This mandated amendment is specific, prescriptive, and inflexible. It is a directive that leaves no room for discretion or interpretation. Because this rule implements a statutory requirement without change, the FAA lacks the discretion to make changes in response to comments. Therefore, notice and comment procedures are unnecessary and contrary to the public interest.

Section 553(d)(1) also provides an exception to the general requirement that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, where a substantive rule grants or recognizes an exemption or relieves a restriction. This rule is relieving in that it provides for a higher threshold flight level at which a remaining pilot would be required to put on an oxygen mask.

Accordingly, the FAA finds good cause exists to forgo notice and comment procedures, and to make this rule immediately effective.

III. Background

The FAA has long required certificate holders to furnish, and flight crewmembers to put on and use, oxygen masks during each domestic, flag, or supplemental operation in which the certificate holder uses a turbine engine powered airplane with a pressurized cabin. The FAA established these requirements to mitigate the risk of an event of an in-flight cabin pressurization failure. Under 14 CFR 121.385, the minimum pilot crew is two pilots for such operations. During such operations, under the provisions of § 121.543, a pilot is allowed to leave the flight controls under certain specified circumstances. The FAA designed the requirement codified at § 121.333(c)(3) to mitigate the risk of having a pressurization or other oxygen failure incident when only one pilot is at the flight controls. The FAA requires that if the aircraft is above flight level 250, the pilot remaining on the flight deck must put on and use the provided oxygen mask. This requirement ensures the remaining pilot is never without oxygen. Such a requirement is particularly important because, in the case of an emergency, the pilot would have to initiate and accomplish multiple tasks immediately.

Pursuant to section 579 of FAARA 2018, this final rule amends 14 CFR 121.333(c)(3) to remove the current flight altitude threshold of flight level 250 and replace it with a flight altitude threshold of flight level 410.

IV. Discussion of the Final Rule

As discussed above, this final rule amends 14 CFR 121.333(c)(3) to remove the current flight altitude threshold of flight level 250 and replace it with a flight altitude threshold of flight level 410. This change results in a requirement that in domestic, flag, and supplemental operations, when only one pilot is at the flight controls, the pilot remaining at his or her control station must wear an oxygen mask if the aircraft is above flight level 410 and the other pilot has left his or her aircraft control station.

The FAA expects certificate holders' implementation of this updated standard will be straightforward because it only increases the flight level threshold at which the pilot who remains at the appropriate control station must put on and use an oxygen mask. Pilots may continue to use their oxygen masks at lower flight levels, but such use would not be required until the aircraft exceeds flight level 410.

The FAA notes that certificate holders generally review and update their manuals on a periodic basis, and that it is likely that they will update any sections of their manuals concerning pilot oxygen requirements to address the new flight level threshold. Certificate holders also review training programs on a periodic basis and might also update their flight crewmember training programs to capture the new flight level standard. Because certificate holders would update their manuals and training programs on a periodic basis irrespective of this rule, the FAA does not expect that implementation of this rule, including any resulting updates to the certificate holders' manuals or training programs, would result in a burden to carriers.

V. Regulatory Notices and Analyses

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined this rule is not a significant regulatory action, as defined in section 3(f) of Executive Order 12866. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

This action amends § 121.333(c)(3) to address the requirement of section 579 of FAARA 2018, which requires the FAA to issue a final regulation revising that section, to apply only to flight altitudes above flight level 410. Such an amendment means that, when one pilot leaves his or her control station, the remaining pilot is not required to put on and use an oxygen mask until the aircraft reaches flight level 410. Consequently, certificate holders will incur minimal costs associated with updating manuals and flight crewmember training programs to capture the new flight level standard; however, industry has indicated it supports this amendment.^[2] Certificate holders already make frequent updates; this change would be a straightforward change in flight level and regulatory references. As previously mentioned, petitioners have asserted that the more limited use of oxygen masks below flight level 410 would not adversely affect safety because of the extremely low risk for depressurization at altitudes above flight level 250. This rule only updates the text of § 121.333(c)(3) to comply with the mandate at section 579 of FAARA 2018. The FAA finds this rule would have minimal costs.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553, or any other law, to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking. The FAA found good cause exists to forgo notice and comment and any delay in the effective date for this rule. As notice and comment under 5 U.S.C. 553 are not required in this situation, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are similarly not required.

C. International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and has determined that it is consistent with international standards. Therefore, this final rule complies with the Trade Agreements Act of 1979.

D. Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined there is no new requirement for information collection associated with this final rule.

F. International Compatibility and Cooperation

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable.

The FAA finds that this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.

The FAA has reviewed the relevant standards of the International Civil Aviation Organization and concludes that it would not be contrary to any ICAO standard to amend § 121.333(c)(3) to change the threshold for requiring a remaining pilot to put on and use an oxygen mask to flight level 410 rather than flight level 250. In this regard, ICAO Annex 6 (“Operation of Aircraft”) does not require that oxygen masks must be routinely worn above flight level 250. Annex 6, section 4.4.5 (“Use of Oxygen”), only requires oxygen masks to be available above 25,000 feet mean sea level (MSL). The standard states, “[a]ll flight crew members of pressurized aeroplanes operating above an altitude where the atmospheric pressure is less than 376 hPa [25,000 feet MSL] shall have available at the flight duty station a quick-donning type of oxygen mask which will readily supply oxygen upon demand.” Therefore, the revision to § 121.333(c)(3) that the FAA now promulgates is not contrary to ICAO standards.

G. Environmental Analysis

The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114, because it does not have the potential for a significant effect on the environment outside the United States.

In accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination; this memorandum has been placed in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory Cooperation

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

D. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

IX. Additional Information

A. Availability of Rulemaking Documents

An electronic copy of a rulemaking document may be obtained from the internet by—

• Searching the Federal Document Management System (FDMS) Portal at http://www.regulations.gov;​;
• Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/​regulations_​policies;​; or
• Accessing the Government Publishing Office's website at http://www.govinfo.gov.

Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling [phone].

All documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal Document Management System Portal referenced previously.

B. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.

List of Subjects in 14 CFR Part 121

• Air carriers
• Aircraft
• Airmen
• Aviation safety
• Reporting and recordkeeping requirements
• Safety
• Transportation

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, part 121, as follows:

PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS

1. The authority citation for part 121 continues to read as follows:

Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40119, 41706, 42301 preceding note added by Pub. L. 112-95, sec. 412, 126 Stat. 89, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note); Pub. L. 112-95, 126 Stat. 62 (49 U.S.C. 44732 note).

2. Amend § 121.333 by revising paragraph (c)(3) to read as follows:

§ 121.333

Supplemental oxygen for emergency descent and for first aid; turbine engine powered airplanes with pressurized cabins.

* * * * *

(c) * * *

(3) Notwithstanding paragraph (c)(2) of this section, if for any reason at any time it is necessary for one pilot to leave his station at the controls of the airplane when operating at flight altitudes above flight level 410, the remaining pilot at the controls shall put on and use his oxygen mask until the other pilot has returned to his duty station.

* * * * *

Issued in Washington, DC, under the authority of 49 U.S.C. 106(f) and (g), and 44701(a)(5), on March 20, 2020.

Steve Dickson,

Administrator, Federal Aviation Administration.

Footnotes

1.  As further explained in Section III of this final rule, the FAA defines “flight level” in 14 CFR 1.1 as a level of constant atmospheric pressure related to a reference datum of 29.92 inches of mercury. Flight levels are stated in three digits that represent hundreds of feet. For example, flight level 250 represents a barometric altimeter indication of 25,000 feet.

2.  Airlines for America, Request for Temporary Enforcement Suspension of and Exemption from 14 CFR 121.333 (c)(3) (Mar. 17, 2020), available in the docket for this rulemaking.