[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





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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