[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)      
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                                
                                       *                  *                  *                  *                  *                  *                  *                                      
              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