[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Proposed Rules]
[Pages 45912-45920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23010]
[[Page 45911]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
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14 CFR Parts 91, et al.
Prohibition on the Transportation of Devices Designed as Chemical
Oxygen Generators as Cargo in Aircraft; Proposed Rule
Federal Register / Vol. 63, No. 166 / Thursday, August 27, 1998 /
Proposed Rules
[[Page 45912]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 91, 119, 121, 125, and 135
[Docket No. 29318; Notice No. 98-12]
RIN 2120-AG35
Prohibition on the Transportation of Devices Designed as Chemical
Oxygen Generators as Cargo in Aircraft
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA is proposing to ban, in certain domestic operations,
the transportation of devices designed to chemically generate oxygen,
including devices that have been discharged and newly manufactured
devices that have not yet been charged for the generation of oxygen,
with limited exceptions. These devices could, if inadvertently
transported when charged, initiate or provide a secondary source of
oxygen to fuel a fire. This proposed ban is intended to enhance
aviation safety by reducing the risk of human error in recognizing
whether such a device is charged or has been discharged.
DATES: Comments must be received on or before October 26, 1998.
ADDRESSES: Comments on this notice may be delivered or mailed, in
duplicate, to: U.S. Department of Transportation Dockets, Docket No.
FAA-98-29318; 400 Seventh St., SW., Rm. Plaza 401, Washington, DC
20590. Comments may also be sent electronically to the following
internet address: [email protected]. Comments may be filed and/or
examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays, except
federal holidays.
FOR FURTHER INFORMATION CONTACT: David L. Catey, Flight Standards
Service, Air Transportation Division, AFS-200, Federal Aviation
Administration, 800 Independence Ave., Washington, DC 20591. Telephone:
(202) 267-8166.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments, as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this notice are also invited. Substantive comments should
be accompanied by cost estimates. Comments must identify the regulatory
docket or notice number and be submitted in duplicate to the Rules
Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel on this rulemaking, will
be filed in the docket. The docket is available for public inspection
before and after the comment closing date.
All comments received on or before the closing date will be
considered by the Administrator before taking action on this proposed
rulemaking. Late-filed comments will be considered to the extent
practicable. The proposals contained in this notice may be changed in
light of the comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. 29318.'' The postcard will be date
stamped and mailed to the commenter.
Availability of NPRM
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339), the Government Printing Office's electronic bulletin board
service (telephone: 202-512-1661), or the FAA's Aviation Rulemaking
Advisory Committee Bulletin Board service (telephone: 1-800-FAA-ARAC).
Internet users may reach the FAA's webpage at http://www.faa.gov/
avr/arm/nprm/nprm.htm or the Government Printing Office's webpage at
http://www.access.gpo.gov/nara for access to recently published
rulemaking documents.
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Rulemaking, ARM-1,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9680. Communications must identify the notice number or docket
number of this NPRM.
Persons interested in being placed on the mailing list for future
NPRM's should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, that
describes the application procedure.
I. Background
A. Accident Involving Chemical Oxygen Generators
On May 11, 1996, ValuJet flight 592 crashed into an Everglades
swamp shortly after takeoff from Miami International Airport, Florida.
Both pilots, the three flight attendants, and all 105 passengers were
killed. Before the accident, the flight crew reported to air traffic
control that it was experiencing smoke in the cabin and cockpit. The
evidence indicates that five fiberboard boxes containing as many as 144
chemical oxygen generators, most with unexpended oxidizer cores, and
three aircraft wheel/tire assemblies had been loaded in the forward
cargo compartment shortly before departure. These items were being
shipped as company material. Additionally, some passenger baggage and
U.S. mail were loaded into the forward cargo compartment, which had no
fire/smoke detection system to alert the cockpit crew of a fire within
the compartment. On August 19, 1997, the NTSB issued its aircraft
accident report entitled ``In-Flight Fire and Impact With Terrain;
ValuJet Airlines Flight 592.'' In that report, the NTSB determined that
one of the probable causes of the accident resulted from a fire in the
airplane's Class D cargo compartment that was initiated by the
actuation of one or more of the chemical oxygen generators being
improperly carried as cargo.
B. Incidents Involving Chemical Oxygen Generators
In addition to the ValuJet accident discussed above, the FAA and
the NTSB have investigated as many as 20 other incidents involving
chemical oxygen generators, all caused by either undeclared, improperly
packaged, or mishandled units. Fortunately, none of these incidents
resulted in loss of life; however, they show the various ways in which
chemical oxygen generators can pose dangers. The NTSB's August 19,
1997, accident report on the crash of ValuJet flight 592 also cited the
following incidents:
(1) On August 10, 1986, an American Trans Air McDonnell Douglas DC-
10-40 arrived without incident at Chicago's O'Hare International
Airport; however, after the passengers and crew had deplaned, a fire
spread rapidly throughout the entire cabin and destroyed the airplane.
The National Transportation Safety Board (NTSB) concluded that the fire
started as a result of a mechanic's improper handling of a chemical
oxygen generator inside a seatback that was being shipped as company
material. (The NTSB
[[Page 45913]]
learned as a consequence of this incident that some air carriers were
not taking the required precautions when shipping chemical oxygen
generators and were not aware that solid-state passenger supplemental
chemical oxygen generators were capable of generating high temperatures
and were classified as hazardous materials when carried as company
material in cargo compartments.)
(2) On February 19, 1988, Eastern Airlines flight 215 carrying 131
passengers and 6 crewmembers experienced an in-flight fire but reached
its destination safely. A chemical oxygen generator, taken out by a
flight attendant while assisting a passenger who was complaining of
shortness of breath, malfunctioned and was laid aside on the shelf of a
beverage cart; it was then covered with a damp linen napkin for
cooling. The cart, with the hot oxygen generator, was later put into
the forward galley and several minutes later the linen napkin and other
material in the galley caught fire. Flight attendants extinguished the
fire with halon fire extinguishers.
(3) On November 7, 1992, an air cargo package fire broke out at a
Wilson UTC, Inc., freight-forwarder facility in North Hollywood, CA,
where cargo was being loaded into a container that was to have been
subsequently loaded onto a Qantas Airways flight. The container was
moved to a concrete area where the fire was extinguished. The fire was
caused by a chemical oxygen generator being shipped without proper
papers, not marked or labeled in accordance with hazardous materials
regulations, and not properly assembled.
(4) On September 24, 1993, a burning cargo container was unloaded
from an aircraft at a Federal Express facility in Oakland, CA. As with
the Wilson UTC incident described above, a chemical oxygen generator
had been shipped without proper papers, not marked and labeled in
accordance with hazardous materials regulations, and not properly
assembled.
(5) On October 21, 1994, a box containing 37 chemical oxygen
generators caught fire at an Emery Worldwide building in Los Angeles,
CA. Once again, the box of chemical oxygen generators was found to have
been shipped without proper papers, not properly marked and labeled,
and not properly assembled and packaged.
(6) On January 26, 1996, an undeclared shipment of 11 chemical
oxygen generators was discovered during the loading of an America West
aircraft in Las Vegas, NV. A maintenance technician noticed partially
obscured hazardous materials labels and opened the package to discover
the chemical oxygen generators, packed at random, most with their
actuating devices in the firing position, one with no retaining pin
inserted.
(7) On April 12, 1997, one of Continental Airlines' contract
maintenance companies shipped seven chemical oxygen generators on
Continental flight 190. The chemical oxygen generators were loosely
packed in a box containing a life vest and their percussion firing
mechanisms were in the ``disarmed'' position. The shipping papers
listed the contents of the box simply as ``aircraft parts.''
C. National Transportation Safety Board (NTSB) Recommendation
On May 31, 1996, the NTSB issued Recommendation A-96-29, which
stated that the Research and Special Projects Administration (RSPA)
should, ``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)
D. Research and Special Programs Administration (RSPA) Actions
On May 24, 1996, RSPA published an interim final rule in the
Federal Register (61 FR 26418), which temporarily prohibited the
offering for transportation and the transportation of chemical oxygen
generators as cargo in passenger-carrying operations. The RSPA interim
final rule was adopted as a final rule on December 30, 1996 (61 FR
68952), resulting in the permanent ban on carrying chemical oxygen
generators as cargo on all passenger-carrying operations. On the same
date, RSPA proposed to limit the carriage of oxidizers, including
compressed oxygen, to accessible locations on all-cargo operations, and
prohibit such oxidizers from being transported in all passenger-
carrying aircraft (61 FR 68955, Dec. 30, 1996).
On June 5, 1997, RSPA adopted a more specific shipping description
for chemical oxygen generators to make it easier for carriers to
identify these devices, and also specified additional packaging
requirements (see 49 CFR 171.101 (62 FR 30770-30771, June 5, 1997)). If
a chemical oxygen generator is shipped with its means of initiation
attached, the generator must incorporate at least two positive means of
preventing unintentional initiation, and be classed and approved by
RSPA. A person who offers a chemical oxygen generator must: (1) Ensure
that the generator is offered in conformance with the conditions of the
approval; (2) maintain a copy of the approval at each facility where
the chemical oxygen generator is packaged; and (3) mark the approval
number on the outside of the package (see 49 CFR 171.102, special
provision 60 (62 FR 30772, June 5, 1997, and 62 FR 34669, June 27,
1997)). When transported by air (on all-cargo aircraft), a chemical
oxygen generator must conform to the provisions of the approval issued
by RSPA and be contained in a packaging prepared and originally offered
for transportation by the approval holder (see 49 CFR 171.102, special
provision A51 (62 FR 30772, June 5, 1997)).
On August 20, 1997, RSPA published a Supplemental Notice of
Proposed Rulemaking (SNPRM) (62 FR 44374) to determine whether the
proposed oxidizer prohibition should extend to Classes B and C
compartments on passenger-carrying aircraft. RSPA also proposed in the
SNPRM to completely prohibit the carriage of chemical oxygen generators
that have been discharged (``spent'') and to prohibit the carriage of
personal-use chemical oxygen generators on passenger-carrying aircraft
(see also 61 FR 68955, Dec. 30, 1996).
E. Design of Cargo Compartments Aboard Aircraft
Various features incorporated into the designs of cargo
compartments are intended to control or extinguish fires that might
occur. Under the Federal Aviation Regulations, cargo compartments in
transport category aircraft are classified into five categories,
Classes A, B, C, D, and E (14 CFR 25.857). Although the FAA has not
classified cargo compartments in non-transport category aircraft, the
FAA believes that the same risks also apply to compartments in non-
transport category aircraft that share similar design features. It
should be noted that none of the compartments are designed to control
fires fueled by chemical oxygen generators. In brief, the five classes
of compartments are as follows:
Class A Compartments
A Class A compartment is one which is easily accessible in flight
and in which the presence of a fire would be easily discovered by a
crewmember.
Class B Compartments
A Class B compartment is one which is completely accessible in
flight to a crewmember with a hand held fire extinguisher; from which
no hazardous quantities of smoke, flames, or extinguishing agent will
enter any
[[Page 45914]]
compartment occupied by the crew or passengers when the compartment is
being accessed; and in which an approved smoke detector or fire
detector system is installed.
Class C Compartments
A Class C compartment is not accessible but has an approved smoke
detector or fire detector system, an approved built-in fire-
extinguishing system, a means to control ventilation and drafts so that
the extinguishing agent can control a fire that starts within the
compartment, and a means to exclude hazardous quantities of smoke,
flames or extinguishing agent from any compartment occupied by crew or
passengers.
Class D Compartments
A Class D compartment is designed to control ventilation and
drafts. The compartment volume does not exceed 1,000 cubic feet, and
there are means to exclude hazardous quantities of smoke, flames or
noxious gases from any compartment occupied by crew or passengers. Its
design is intended to confine and control the severity of a fire by
limiting air flow. For a compartment of 500 cubic feet (cu. ft.) or
less, an air flow of 1500 cu. ft. per hour (three air exchanges per
hour) is acceptable. On February 17, 1998, the FAA issued a final rule
(63 FR 8032) that requires that compartments designated as Class D on
passenger-carrying aircraft used in part 121 operations meet fire
detection and suppression standards for Class C compartments, as
applicable, by the year 2000. In addition, the final rule requires
that, for all-cargo part 121 operations, Class D compartments meet at
least the detection standards of Class E compartments.
Class E Compartments
A Class E compartment is found on all-cargo aircraft, has an
approved smoke or fire detector system, a means to shut off the
ventilating airflow, a means to exclude hazardous quantities of smoke,
flames or noxious gases from the flight crew compartment, and required
crew emergency exits are accessible under any cargo loading condition.
II. Today's Proposed Action
The actions proposed in this notice, in conjunction with RSPA's
actions regarding chemical oxygen generators, are responsive to the
NTSB's recommendations and are based on FAA's assessment of possible
human errors in identifying a device designed as a chemical oxygen
generator that is charged versus one that has never been charged or has
been previously discharged. The FAA proposes to define a ``device
designed as a chemical oxygen generator'' as a device that: (1) Is
charged with or contains a chemical or chemicals that produce oxygen by
chemical reaction, regardless of whether the expiration date for the
device has passed; (2) has been discharged, and thus has already
produced oxygen by chemical reaction, regardless of whether there is
residue remaining in the device; and (3) is newly manufactured but not
charged with chemicals for the generation of oxygen. The FAA also
proposes to include, in 14 CFR 119.3, the same definition of chemical
oxygen generator that is currently found in 14 CFR 25.1450, i.e., ``a
device which produces oxygen by chemical reaction.'' The FAA's
definition differs slightly from RSPA's, as finalized in its May 24,
1996 interim final rule (61 FR 26418), which defines an oxygen
generator (chemical) as `` a device containing chemicals that upon
activation release oxygen as a product of chemical reaction.'' Although
worded slightly differently, the FAA does not view these definitions as
being in direct conflict. Nevertheless, the FAA requests comments as to
whether the inclusion of the part 25 definition of chemical oxygen
generator in Sec. 119.3 causes confusion for air carriers and hazardous
materials shippers/offerors.
The FAA is very concerned about the possibility of the packaging of
a device designed as a chemical oxygen generator being mismarked
because of the hazards posed by such devices. In certain circumstances,
devices designed as chemical oxygen generators can initiate fires on
aircraft. Even in cases where they are shipped in accordance with the
Hazardous Materials Regulations (HMR's) (49 CFR parts 171-180) and do
not actually start a fire, their presence may contribute to the
severity of a fire by providing a secondary source of oxygen not
otherwise present. Therefore, the FAA believes that the transportation
of these items poses an unacceptable risk in both domestic (1)
passenger-carrying operations conducted under 14 CFR parts 91, 121,
125, and 135, and (2) all-cargo operations conducted under 14 CFR parts
91, 121, 125, and 135 when those items are transported in cargo
compartments that are not equipped with fire/smoke detection systems.
The prohibition would not, however, extend to those devices designed as
chemical oxygen generators that are installed in an aircraft to conform
with aircraft type-certification requirements or are present to conform
with, or permitted to be carried under, FAA operating rules for a
particular flight.
The FAA notes that the proposed prohibition on the carriage of
devices designed as chemical oxygen generators would overlap, in some
instances, with RSPA's final and proposed hazardous materials
regulations. The FAA would not charge a person with the same violation
of both FAA's and RSPA's rules to enhance the sanction sought.
Accordingly, the FAA would not seek more than a single civil penalty
for any one violation; however, there are situations in which two
sanctions for a violation might be appropriate. For example, a
violation might warrant remedial certificate suspension or revocation
because a certificate holder's qualifications to hold a certificate
might be at issue. At the same time, a civil penalty for that violation
might also be warranted.
A. Passenger-Carrying Operations
The FAA proposes to ban the transportation of any device designed
as a chemical oxygen generator aboard domestic passenger-carrying
aircraft conducting operations under parts 91, 121, 125, and 135 of the
Federal Aviation Regulations. The ban would also apply to any person
who carries or acts in any manner that could result in the carriage
(shipment) of devices that are the subject of the proposed ban;
therefore, any person who attempts to offer such devices for carriage
on board a domestic aircraft, even if not successful, would be in
violation of the prohibition.
Devices designed as chemical oxygen generators can produce a
secondary source of oxygen not otherwise present aboard an aircraft. A
fire in an oxygen-enriched environment increases the risk that control
of the aircraft will be lost. This may be caused by damage to the
aircraft's flight control cables, hydraulic systems, or electrical
systems. In addition, compared to a fire that is not in an oxygen-
enriched environment, a fire that is fed by a secondary source of
oxygen increases the risk that the flames and resultant toxic fumes and
smoke will cause injuries or death. The heat generated from charged and
activated chemical oxygen generators, including what is sometimes
referred to as ``hotel oxygen'' or ``executive emergency oxygen kits,''
could cause a fire to start in clothing, paper, and other items that
might be carried near these devices. Even if these devices do not
initiate a fire, they could become involved in a fire started elsewhere
and feed the fire with oxygen.
The FAA believes that for passenger-carrying operations, the most
prudent
[[Page 45915]]
thing to do is to ban, in the cabin and in all cargo compartments, the
carriage of devices designed as chemical oxygen generators. These
devices would be banned in both the cargo areas and cabins of
passenger-carrying aircraft operated under parts 91, 121, 125, and 135
of the Federal Aviation Regulations, unless those devices were
installed in that aircraft for the aircraft to be in conformity with
aircraft type-certification or are otherwise permitted to be carried
under FAA operating rules for that particular flight.
This proposed rule supplements RSPA's December 30, 1997 final rule
(61 FR 68952) prohibiting chemical oxygen generators from being shipped
as cargo aboard aircraft engaged in passenger operations. Specifically,
the proposed rule applies to devices designed as chemical oxygen
generators; therefore, this proposed ban applies to devices that are
newly manufactured but are not charged with chemicals for the
generation of oxygen. The FAA believes that these devices might be
manufactured in one location and transported to another location to be
charged. This could lead to human errors in determining whether the
device designed as a chemical oxygen generator has been charged. The
FAA specifically requests comments on whether these devices are
manufactured in one location, but charged in another location.
The proposed ban would also apply to fully charged devices that
contain a chemical or chemicals that produce oxygen by chemical
reaction. Although the prohibition of fully charged devices is similar
to RSPA's final prohibition (61 FR 68952), the FAA believes that it is
necessary to include it in this rulemaking so as to avoid the confusion
of an operator having to consult two different sets of regulations to
determine whether fully charged chemical oxygen generators are banned
from passenger-carrying operations.
The FAA's proposed ban also would apply to devices designed as
chemical oxygen generators that have been discharged and have only some
residue remaining or have had all of the chemicals consumed in the
generation of oxygen (spent chemical oxygen generators) in both
passenger-carrying and all-cargo operations under parts 91, 121, 125,
and 135. The FAA believes that there would be an increase in safety by
banning all chemical oxygen generators in passenger-carrying
operations, even if those devices are believed to have been previously
discharged. From reports about the ValuJet accident, it appears that
some people might have believed that the chemical oxygen generators had
been previously discharged, when in fact they had not. While it may be
true that a chemical oxygen generator that has been discharged does not
present an actual fire or smoke threat to aviation, human errors in
assessing whether such devices have been discharged can result in
catastrophes. The FAA believes that the public interest in reducing the
possibility of this type of human error, which could result in loss of
life and property, outweighs any public or private interest in the
transportation of devices designed as chemical oxygen generators on
passenger-carrying operations conducted by air carriers and other
commercial operators.
In addition to the general rationale provided above to support the
proposed ban on the transportation of devices designed as chemical
oxygen generators, the FAA believes that there is additional rationale
to support the ban in specific classes of cargo compartments in
transport-category aircraft. Although the FAA has not classified the
cargo compartments in non-transport category aircraft, the following
discussion and analysis of risks in Classes B, C, and D cargo
compartments also applies to cargo compartments in non-transport
category aircraft that share similar design features.
Concerns Regarding Class B Compartments
One major concern regarding fires in Class B compartments is that
the supplemental oxygen breathing system for passengers is not designed
to be a system that would protect them from smoke and fumes. Instead,
the supplemental oxygen system for passengers was designed to provide a
combination of supplemental oxygen and ambient cabin air for use in
emergency depressurization situations. When passengers use the
supplemental oxygen system, they continue to inhale some amount of
ambient air in the cabin. Dangerous or even fatal levels of smoke and
fumes are more likely to develop when a fire is fed by a secondary
source of oxygen, and would be inhaled by passengers in such a
situation. Thus, a fire fed by a secondary source of oxygen creates
additional smoke and fume risks to passengers that would not otherwise
be present in fires that are not fed by a secondary source of oxygen.
Another problem is that, although all areas of the Class B
compartment must be accessible to the contents of a hand-held fire
extinguisher, devices designed as chemical oxygen generators in such
compartments may not be readily accessible and easily removed from the
location of the fire. In other words, in a Class B compartment the
crewmember might not be able to quickly remove a device designed as a
chemical oxygen generator from the fire area because of its size,
weight, or location. Even if a halon or water fire extinguisher is
present, it may not have a sufficient quantity of halon or water to
extinguish a fire that continues to re-ignite because it is being fed
by a secondary source of oxygen.
Concerns Regarding Class C Compartments
Like Class B compartments, Class C compartments may not adequately
protect passengers if an oxygen-fed fire exists. The current means of
suppression in Class C compartments is halon. Halon, however, will not
always suppress an oxygen-fed fire, and thus the FAA believes it would
be in the public interest to ban devices designed as chemical oxygen
generators from Class C compartments. Additionally, unlike a Class B
compartment that a crewmember can enter, a Class C compartment is not
accessible to crewmembers. While the design of a Class C cargo
compartment can be very effective in fighting most types of fires, the
FAA believes that oxygen-fed fires present an unacceptable risk in this
environment since a crewmember cannot remove a device designed as a
chemical oxygen generator from the area of the fire.
Concerns Regarding Class D Compartments
Class D cargo compartments have the same problems as Class B and
Class C compartments. In addition, smoke and fire detection devices are
not required in Class D compartments. The first indication of a fire is
generally in the form of smoke or fumes entering the cabin or the
flight deck. Another initial indication might be that the passengers or
crew realize that the passenger compartment floor has become hot. By
the time the flight crew realizes that there might be a fire in the
Class D compartment, it may be too late to save the aircraft by making
an emergency landing. Also, the crew cannot take direct firefighting
measures against a fire in a Class D compartment. Even indirect
firefighting measures, such as attempting to starve the fire of oxygen
by depressurizing the aircraft, will not be effective if a fully
charged device designed as a chemical oxygen generator is involved in
the fire. Ultimately the safety of the flight depends on the actions of
the crew, and time is of the essence. Since entry into a Class D
compartment is not possible, and
[[Page 45916]]
depressurization of the cabin with passengers is impractical, the only
way the crew could save the aircraft would be to land it as soon as
possible, and their ability to do so would depend on the availability
of a suitable landing site.
B. All-Cargo Operations
The FAA is also proposing to ban the transportation of any device
designed as a chemical oxygen generator in domestic, ``all-cargo
operations'' (as defined in 14 CFR 119.3) conducted under parts 91,
121, 125, and 135 of the Federal Aviation Regulations, with limited
exceptions. The ban would apply to any person who carries or acts in
any manner that would result in the carriage (shipment) of devices that
are the subject of the proposed ban. Much of the analysis of the
potential dangers of shipping devices designed as chemical oxygen
generators and the possibility of human error in passenger-carrying
operations also apply to all-cargo operations. Transport-category
aircraft used in all-cargo operations often have Class E compartments
that are not found in passenger-carrying, transport-category aircraft.
Exception To Allow for the Transportation of Chemical Oxygen Generators
in All-Cargo Operations
The FAA is proposing to allow all-cargo operators under 14 CFR
parts 91, 121, 125 and 135 to carry unexpired chemical oxygen
generators under certain circumstances in both transport and non-
transport category aircraft. This exception to the general prohibition
would not, however, permit the carriage of those devices designed as
chemical oxygen generators that have previously been discharged or
those that are newly manufactured but are not charged for the
generation of oxygen. Further, a chemical oxygen generator that has
passed its expiration (i.e., time-in-service) date is not eligible for
the exception, and thus cannot be carried as cargo in an all-cargo
operation. Neither the FAA nor RSPA specify the expiration date for
such chemical oxygen generators in their regulations. Rather, the
expiration date is established through the aircraft certification
process and then incorporated into an operator's aircraft inspection
program or, in the case of an air carrier with a continuous
airworthiness maintenance program, incorporated into its maintenance
time limitations.
This proposed exception differs from RSPA's December 30, 1996 final
rule, which would allow the carriage of chemical oxygen generators
aboard aircraft used in all-cargo operations, regardless of the
expiration date on the generators. This is because RSPA views any
chemical oxygen generators, whether expired or unexpired, as having the
same inherent risk. The FAA believes, however, that a human performance
problem exists that makes the distinction between expired and unexpired
generators important. The FAA is concerned that an individual may
mistakenly believe that an ``expired'' chemical oxygen generator is, in
effect, no longer a hazard, and thus can be shipped without any of the
safeguards imposed by the HMR's. Therefore, to avoid such a mistake,
the FAA proposes to ban the shipment of ``expired'' chemical oxygen
generators aboard both passenger and all-cargo operations. Accordingly,
if finalized, a person would be in violation of FAA's prohibition if he
or she offered ``expired'' chemical oxygen generators for carriage
aboard a domestic all-cargo aircraft, notwithstanding the fact that
RSPA's rules permit such carriage. The FAA specifically requests
comment on whether the proposed ban on air shipment of ``expired''
chemical oxygen generators would negatively impact all-cargo
operations.
The proposed exception for domestic all-cargo operations is
therefore limited to the carriage of unexpired chemical oxygen
generators (i.e., those that are charged but whose expiration dates
have not yet passed), provided that the generators are: (1) Originally
prepared and offered for transportation by a RSPA Special Provision 60
approval holder (49 CFR 172.102(c)); (2) labeled and loaded in
accordance with the HMRs (49 CFR parts 171-180); (3) separated from
other cargo before flight; and (4) restricted to the quantity limits
specified in the HMR's.
The FAA believes that the proposed exception to the ban in all-
cargo operations strikes the appropriate safety balance for the
following reasons: (1) requiring packaging by a RSPA Special Provision
60 approval holder, as well as compliance with the HMR labeling and
loading requirements for chemical oxygen generators would reduce the
likelihood that accidental activation would occur; (2) the separation
requirement, which is broader in scope than RSPA's separation
requirement, would reduce the likelihood that such generators are
placed beside incompatible hazardous materials, as well as other cargo;
and (3) the quantity limitation would ensure that excess carriage of
these devices on any one flight does not occur. RSPA's regulations
provide physical and performance standards for segregating certain
incompatible materials, including oxidizing substances, from other
hazardous materials on aircraft (49 CFR 175.78). FAA's proposal is
broader in scope, however, in that devices designed as chemical oxygen
generators would have to be separated from all other cargo before
flight, not just other incompatible hazardous materials. The FAA
specifically requests comments on this approach.
The FAA recognizes that the crew in an all-cargo part 121 operation
would have access to protective breathing equipment (PBE) (both smoke
and fume and firefighting), which would enable them to function and
survive in a fire, smoke and toxic fume environment for a longer period
than the crew in a part 135 operation. This is because part 135
operators are not required to have PBE aboard an aircraft. Therefore,
the FAA may consider, for a future rulemaking, the extent to which PBE,
such as smoke and fume PBE, should be required for part 135 operators
transporting certain hazardous cargo.
The FAA requests comment on whether it would be helpful if both
RSPA and FAA were to provide cross-references to each other's
respective regulations as they pertain to devices designed as chemical
oxygen generators. Such cross-referencing would serve to notify all
hazardous materials shippers/offerors as well as aircraft operators
that they must comply with both FAA and RSPA regulations when shipping
devices designed as chemical oxygen generators. The FAA also requests
comment on how best to inform foreign shippers of the FAA restrictions
on the carriage of devices designed as chemical oxygen generators on
aircraft operated under parts 91, 121, 125 and 135 of the Federal
Aviation Regulations.
III. Exceptions for Materials and Devices That Are Required Parts
of the Aircraft or That Are Otherwise Required or Permitted To Be
Carried Under FAA Operating Rules
The FAA believes that oxygen devices required to be in aircraft as
specified in the FAA's certification and operating rules are safe, as
they are maintained in accordance with approved maintenance and
airworthiness programs, and are essential for the safety of the crew
and passengers. Therefore, devices designed as chemical oxygen
generators that are installed in aircraft to conform with aircraft
type-certification requirements, or are present to conform with, or
permitted to be carried under, FAA operating rules for that particular
flight are exempt from the proposed ban. This exception for the
carriage of devices designed as chemical oxygen generators under the
FAA operating rules is
[[Page 45917]]
limited to those items that are required for the particular operation
flown, so as to preclude operators from pre-positioning such devices in
circumvention of the prohibition.
IV. Economic Summary
Proposed and final rule changes to Federal regulations must undergo
several economic analyses. First, Executive Order 12866 directs 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
requires agencies to analyze the economic effect of regulatory changes
on small entities. Third, the Office of Management and Budget directs
agencies to assess the effect of regulatory changes on international
trade. In conducting these analyses, the FAA has determined that the
proposed rule would generate benefits that justify its costs and is not
an economically significant regulatory action as defined in Executive
Order 12866; however, it is considered significant under the Executive
Order and DOT Order 2100.5, Policies and Procedures for Simplification,
Analysis, and Review of Regulations, because of the public interest
involved. The FAA certifies that this proposed rule, if adopted, will
not have a significant impact on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act because almost no
newly manufactured devices designed as chemical oxygen generators are
expected to be transported by air. The FAA also certifies that this
proposed rule, if adopted, will not constitute a barrier to
international trade and does not contain any Federal intergovernmental
or private sector mandates; therefore, the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply. The Office of
Management and Budget (OMB) has reviewed this rule under Executive
Order 12866.
Overview
This proposed rule would ban, in certain aircraft, the
transportation of devices designed to chemically generate oxygen,
including devices that have been discharged and newly manufactured
devices that have not yet been charged for the generation of oxygen.
For the following reasons, a shortened regulatory evaluation will
be prepared for this proposed rule, which will serve as both the
summary and full regulatory evaluation. All but one of the requirements
of this proposed rule have been covered and analyzed by the regulatory
evaluation prepared for RSPA's supplemental notice of proposed
rulemaking (SNPRM) (62 FR 44374, Aug. 20, 1997). A copy of the full
regulatory evaluation for that SNPRM is included in the docket for this
proposed rule. The one requirement not covered by RSPA's SNPRM
represents the proposed ban for newly manufactured devices that have
not yet been charged for the generation of oxygen. That is, this
proposed rule includes the ban for newly manufactured devices. Since
these newly manufactured devices have little or no economic value and
are not considered to be time-critical, they are not expected to be
shipped by air. Thus, little or no costs (quantitative or qualitative)
are expected to be imposed on the U.S. aviation community. These newly
manufactured devices are expected to generate only qualitative safety
benefits (such benefits will be discussed in more detail below in the
benefits section). Therefore, it is for this reason that the evaluation
for this proposed rule will only focus on the potential costs and
benefits associated with banning the newly manufactured devices on
aircraft operators conducting their operations under parts 91, 121,
125, and 135.
Costs
The FAA has determined that this proposed rule would not impose any
additional costs on the U.S. aviation community. Based on conversations
with industry and FAA technical personnel, it is unlikely that the
newly manufactured devices would be shipped by air because they have
little or no economic value. Oxygen generators go through several
stages of processing before becoming a fully functional and valued
commodity. Because they are shipped in large quantities and not
considered to be time-critical, newly manufactured devices are likely
to be shipped by rail and truck to the final processing plant(s) for
future use as oxygen generators. While the FAA believes this cost
assessment to be reasonably accurate, there is still a small element of
uncertainty about coverage of all of the potential costs associated
with newly manufactured devices. As the result of this uncertainty, the
FAA solicits comments from the aviation community as to accuracy of
this assessment. The FAA requests that comments be as detailed as
possible and cite or include supporting documentation.
Benefits
This proposed rule is considered to be complementary to RSPA's
SNPRM and would generate potential qualitative benefits by ensuring
that the enhanced safety benefits of RSPA's SNPRM would be fully
realized. This task would be accomplished by reducing the risk of human
error in recognizing whether such a device is charged or has been
charged, and which could, if inadvertently transported aboard an
airplane when charged, initiate or provide a secondary source of oxygen
to fuel a fire. While the chance of newly manufactured devices being
shipped by air is small, it still could happen in the absence of this
proposed ban. Regardless of how small the likelihood may be, this
proposed ban would ensure that newly manufactured devices would not be
shipped by air; thus, this action would further reduce the chance of
mislabeling of oxygen generators due to human error.
V. Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily burdened
by government regulations. The RFA requires agencies to review rules
that may have a ``significant economic impact on a substantial number
of small entities.''
In terms of regulatory flexibility, the FAA has determined that
this proposed rule would not have a significant economic impact on a
substantial number of small entities. As stated previously in the cost
section of this evaluation, the proposed rule is not expected to impose
any compliance costs on those aircraft operators operating under parts
91, 121, 125, and 135.
VI. International Trade Impact Assessment
In accordance with the Office of Management and Budget's memorandum
dated March 1983, federal agencies engaged in rulemaking activities are
required to assess the effects of regulatory changes on international
trade. The FAA finds that the proposed rule would not have a
detrimental impact on the trade opportunities for either U.S. firms
conducting business abroad or foreign firms conducting business in the
United States. This assessment is based on the belief that the proposed
rule would not impose any costs on potentially impacted aircraft
operators.
VII. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each federal
agency, to the
[[Page 45918]]
extent permitted by law, to prepare a written assessment of the effects
of any federal mandate in a proposed or final agency rule that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. Section 204(a) of
the Act, 2 U.S.C. 1534(a), requires the federal agency to develop an
effective process to permit timely input by elected officers (or their
designees) of State, local, and tribal governments on a proposed
``significant intergovernmental mandate.'' A ``significant
intergovernmental mandate'' under the Act is any provision in a federal
agency regulation that will impose an enforceable duty upon State,
local, and tribal governments, in the aggregate, of $100 million
(adjusted annually for inflation) in any one year. Section 203 of the
Act, 2 U.S.C. 1533, which supplements section 204(a), provides that
before establishing any regulatory requirements that might
significantly or uniquely affect small governments, the agency shall
have developed a plan that, among other things, provides for notice to
potentially affected small governments, if any, and for a meaningful
and timely opportunity to provide input in the development of
regulatory proposals. This proposed rule does not contain any federal
intergovernmental mandates. However, it does contain a private sector
mandate. Since expenditures by the private sector will not exceed $100
million annually, because little or no costs are imposed by this
proposed rule, the requirements of Title II of the Unfunded Mandates
Reform Act of 1995 do not apply.
VIII. Federalism Implications
The regulations proposed herein will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among various levels of government. Thus, in
accordance with Executive Order 12612, it is determined that this
proposal would not have federalism implications warranting the
preparation of a Federalism Assessment.
IX. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), there are no requirements for information collection
associated with this proposed rule.
X. International Compatibility
The FAA has reviewed corresponding International Civil Aviation
Organization international rules and Joint Aviation Authorities rules
and has identified no conflicts between these proposed amendments and
the foreign requirements and prohibitions. Moreover, these proposed
rules, if adopted, will not apply to foreign operators. Nonetheless,
the FAA seeks comment on whether there are any differences between the
proposed rules and any corresponding ICAO standards.
XI. Regulations Affecting Intrastate Aviation in Alaska
Section 1205 of the Federal Aviation Reauthorization Act of 1996
(110 Stat. 3213) requires the Administrator, when modifying 14 CFR in a
manner affecting intrastate aviation in Alaska, to consider the extent
to which Alaska is not served by transportation modes other than
aviation, and to establish such regulatory distinctions as he or she
considers appropriate. Because this proposed rule would apply to the
operation of both transport and non-transport category airplanes under
14 CFR parts 91, 121, 125, and 135, it could, if adopted, affect
intrastate aviation in Alaska. The FAA therefore specifically requests
comments on whether there is justification for applying the proposed
rule differently to intrastate operations in Alaska.
List of Subjects
14 CFR Part 91
Aircraft, Airmen, Aviation Safety.
14 CFR Part 119
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Charter flights, Reporting and recordkeeping
requirements.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Aviation safety.
14 CFR Part 125
Aircraft, Airmen, Aviation safety.
14 CFR Part 135
Air taxis, Aircraft, Aviation safety.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend the Federal Aviation Regulations (14
CFR parts 91, 119, 121, 125, and 135) as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
1. The authority for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44712, 44715, 44716, 44717, 44722, 46306, 46315,
46316, 46504, 46506, 46507, 47122, 47508, 47528, 47531, articles 12
and 29 of the Convention on International Civil Aviation (62 stat.
1180).
2. Amend Sec. 91.1 by adding paragraph (c) to read as follows:
Sec. 91.1 Applicability.
* * * * *
(c) Each person who carries, or acts in any manner that would
result in the carriage of, a device designed as a chemical oxygen
generator is required to comply with the prohibitions in Sec. 91.20 of
this part.
3. Section 91.20 is added to read as follows:
Sec. 91.20 Prohibitions on the carriage of devices designed as
chemical oxygen generators.
(a) Except as provided in paragraphs (b) and (c) of this section,
no person may carry, or act in any manner that could result in the
carriage of a device designed as a chemical oxygen generator, as
defined in paragraph (d) of this section. This section is not intended
to affect a person's obligation to comply with 49 CFR 172.101 and
173.21.
(b) For all-cargo operations, an unexpired chemical oxygen
generator may be transported if it is originally prepared and offered
for transportation by a RSPA Special Provision 60 approval holder (49
CFR 172.102(c)), and in accordance with the labeling and loading
requirements of the Hazardous Materials Regulations (49 CFR parts 171
through 180), provided--
(1) It is located in a Class B or E cargo compartment, or a
compartment that is equipped with a fire/smoke detection system;
(2) It is separated from other cargo before flight; and
(3) The quantity carried does not exceed the quantity limits
specified in the Hazardous Materials Regulations (49 CFR parts 171
through 180).
(c) This section does not apply to chemical oxygen generators that
are installed to meet aircraft certification requirements or are
carried to meet other requirements of this part for that particular
flight.
(d) For purposes of this section, a ``device designed as a chemical
oxygen generator'' includes--
(1) A device that is charged with or contains a chemical or
chemicals that produce oxygen by chemical reaction, regardless of
whether the expiration date for the device has passed;
(2) A device that has been discharged and thus has already produced
oxygen by chemical reaction, regardless of whether there is residue
remaining in the device; and
[[Page 45919]]
(3) A device that is newly manufactured but not charged with
chemicals for the generation of oxygen..
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
1. The authority for part 119 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,
44912, 44914, 44936, 44938, 46103, 46105.
2. Section 119.3 is amended by adding the following definition in
alphabetical order:
Sec. 119.3 Definitions.
* * * * *
Chemical oxygen generator means a device that produces oxygen by
chemical reaction.
* * * * *
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(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
2. Amend Sec. 121.1 by adding paragraph (g) to read as follows:
Sec. 121.1 Applicability.
* * * * *
(g) Each person who carries, or acts in any manner that would
result in the carriage of, a device designed as a chemical oxygen
generator is required to comply with the prohibitions in Sec. 121.540.
3. Section 121.540 is added to read as follows:
Sec. 121.540 Prohibitions on the carriage of devices designed as
chemical oxygen generators.
(a) Except as provided in paragraphs (b) and (c) of this section,
no person may carry, or act in any manner that could result in the
carriage of, a device designed as a chemical oxygen generator, as
defined in paragraph (d) of this section. This section is not intended
to affect a person's obligation to comply with 49 CFR 172.101 and
173.21.
(b) For all-cargo operations, an unexpired chemical oxygen
generator may be transported if it is originally prepared and offered
for transportation by a RSPA Special Provision 60 approval holder (49
CFR 172.102(c)) , and in accordance with the labeling and loading
requirements of the Hazardous Materials Regulations (49 CFR parts 171
through 180), provided--
(1) It is located in a Class B or E cargo compartment, or a
compartment that is equipped with a fire/smoke detection system;
(2) It is separated from other cargo before flight; and
(3) The quantity carried does not exceed the quantity limits
specified in the Hazardous Materials Regulations (49 CFR parts 171
through 180).
(c) This section does not apply to chemical oxygen generators that
are installed to meet aircraft certification requirements or are
carried to meet other requirements of this part for that particular
flight.
(d) For purposes of this section, a ``device designed as a chemical
oxygen generator'' includes--
(1) A device that is charged with or contains a chemical or
chemicals that produce oxygen by chemical reaction, regardless of
whether the expiration date for the device has passed;
(2) A device that has been discharged and thus has already produced
oxygen by chemical reaction, regardless of whether there is residue
remaining in the device; and
(3) A device that is newly manufactured but not charged with
chemicals for the generation of oxygen.
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE
1. The authority citation for part 125 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.
2. Amend Sec. 125.1 by adding paragraph (d) to read as follows:
Sec. 125.1 Applicability.
* * * * *
(d) Each person who carries, or acts in any manner that would
result in the carriage of, a device designed as a chemical oxygen
generator is required to comply with the prohibitions in Sec. 125.335.
3. Section 125.335 is added to read as follows:
Sec. 125.335 Prohibitions on the carriage of oxidizers and devices
designed as or used for the generation of oxygen.
(a) Except as provided in paragraphs (b) and (c) of this section,
no person may carry, or act in any manner that could result in the
carriage of, a device designed as a chemical oxygen generator as
defined in paragraph (d) of this section. This section is not intended
to affect a person's obligation to comply with 49 CFR 172.101 and
173.21.
(b) For all-cargo operations, an unexpired chemical oxygen
generator may be transported if it is originally prepared and offered
for transportation by a RSPA Special Provision 60 approval holder (49
CFR 172.102(c)) , and in accordance with the labeling and loading
requirements of the Hazardous Materials Regulations (49 CFR parts 171
through 180), provided--
(1) It is located in a Class B or E cargo compartment, or a
compartment that is equipped with a fire/smoke detection system,
(2) It is separated from other cargo before flight; and
(3) The quantity does not exceed the quantity limits specified in
the Hazardous Materials Regulations (49 CFR parts 171 through 180).
(c) This section does not apply to chemical oxygen generators that
are installed to meet aircraft certification requirements or are
carried to meet other requirements of this part for that particular
flight.
(d) For purposes of this section, a ``device designed as a chemical
oxygen generator'' includes--
(1) A device that is charged with or contains a chemical or
chemicals that produce oxygen by chemical reaction, regardless of
whether the expiration date for the device has passed;
(2) A device that has been discharged and thus has already produced
oxygen by chemical reaction regardless of whether there is residue
remaining in the device; and
(3) A device that is newly manufactured but not charged with
chemicals for the generation of oxygen.
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
1. The authority citation for part 135 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
2. Amend Sec. 135.1 by adding paragraph (e) to read as follows:
Sec. 135.1 Applicability.
* * * * *
(e) Each person who carries, or acts in any manner that would
result in the carriage of, a device designed as a chemical oxygen
generator is required to comply with the prohibitions in Sec. 135.88.
3. Section 135.88 is added to read as follows:
[[Page 45920]]
Sec. 135.88 Prohibitions on the carriage of devices designed as
chemical oxygen generators.
(a) Except as provided in paragraphs (b) and (c) of this section,
no person may carry, or act in any manner that would result in the
carriage of, a device designed as a chemical oxygen generator as
defined in paragraph (d) of this section. This section is not intended
to affect a person's obligation to comply with 49 CFR 172.101 and
173.21.
(b) For all-cargo operations, an unexpired chemical oxygen
generator may be transported if it is originally prepared and offered
for transportation by a RSPA Special Provision 60 approval holder (49
CFR 172.102(c)) , and in accordance with the labeling and loading
requirements of the Hazardous Materials Regulations (49 CFR parts 171
through 180), provided--
(1) It is located in a Class B or E cargo compartment or a
compartment that is equipped with a fire/smoke detection system;
(2) It is separated from other cargo before flight; and
(3) The quantity carried does not exceed the quantity limits
specified in the Hazardous Materials Regulations (49 CFR parts 171
through 180).
(c) This section does not apply to chemical oxygen generators that
are installed to meet aircraft certification requirements or are
carried to meet other requirements of this part for that particular
flight.
(d) For purposes of this section, a ``device designed as a chemical
oxygen generator'' includes--
(1) A device that is charged with or contains a chemical or
chemicals that produce oxygen by chemical reaction, regardless of
whether the expiration date for the device has passed;
(2) A device that has been discharged and thus has already produced
oxygen by chemical reaction, regardless of whether there is residue
remaining in the device; and
(3) A device that is newly manufactured but not charged with
chemicals for the generation of oxygen.
Issued in Washington, DC on August 21, 1998.
Richard O. Gordon,
Acting Director, Flight Standards Service.
[FR Doc. 98-23010 Filed 8-26-98; 8:45 am]
BILLING CODE 4910-13-P