[Federal Register Volume 67, Number 239 (Thursday, December 12, 2002)]
[Proposed Rules]
[Pages 76624-76625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31255]



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Part IV





Department of Transportation





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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. 67, No. 239 / Thursday, December 12, 2002 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 119, 121, 125, and 135

[Docket No. FAA-98-4458]
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); withdrawal.

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SUMMARY: The FAA is withdrawing proposed amendments regarding the 
transportation of devices designed as chemical oxygen generators, 
including ones that have been discharged and ones that are newly 
manufactured but not yet charged. Since the NPRM was issued, the FAA 
has determined that regulations adopted by the Research and Special 
Programs Administration (RSPA) alleviate the FAA's specific concerns 
that gave rise to the NPRM. In addition, the FAA is withdrawing a 
proposed amendment to require that unexpired chemical oxygen generators 
be placed in a central location in an accessible compartment and 
separated from other cargo in all-cargo operations. This proposed 
amendment is being withdrawn because the FAA and RSPA are evaluating 
the need for improved packaging for chemical oxygen generators, which 
would be proposed in an NPRM by RSPA and would satisfy the intent of 
the FAA's NPRM.

FOR FURTHER INFORMATION CONTACT: David L. Catey, Flight Standards 
Service, Air Transportation Division, AFS-200, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone (202) 267-8166.

SUPPLEMENTARY INFORMATION:

Background

    After the May 11, 1996 crash of ValuJet Flight 592, the National 
Transportation Safety Board (NTSB) issued Recommendation A-96-29 on May 
31, 1996, which stated that the Research and Special Programs 
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'' and ``prohibit the 
transportation of oxidizers and oxidizing materials * * * in cargo 
compartments that do not have fire or smoke detection systems.''
    Since that recommendation was issued, both RSPA and FAA have 
published several final rules that address the concerns raised by the 
NTSB. First, RSPA has prohibited the transportation of chemical oxygen 
generators as cargo on board passenger-carrying aircraft (61 FR 68952; 
Dec. 30, 1996). Second, in 1997, RSPA adopted a more specific shipping 
description for chemical oxygen generators to make it easier for air 
carriers to identify them and specified additional packaging 
requirements (62 FR 30767, June 5, 1997). RSPA's Hazardous Materials 
Regulations define a chemical oxygen generator as, ``a device 
containing chemicals that upon activation release oxygen as a product 
of chemical reaction.'' In that rulemaking, RSPA also aligned its 
hazardous materials regulations with the provisions of the 
International Civil Aviation Organization's Technical Instructions on 
the Safe Transport of Dangerous Goods. Finally, in 1998, the FAA issued 
a final rule that upgraded the fire safety standards for Class D cargo 
compartments for certain transport-category aircraft (63 FR 8033; Feb. 
17, 1998).
    On August 27, 1998, the FAA issued an NPRM entitled ``Prohibition 
on the Transportation of Devices Designed as Chemical Oxygen Generators 
as Cargo in Aircraft'' (63 FR 45912; Aug. 27, 1998), which was intended 
to supplement RSPA's rules and help eliminate human error. That NPRM 
proposed to amend 14 CFR parts 91, 119, 121, 125, and 135 to ban the 
transportation of devices designed to chemically generate oxygen. In 
the NPRM, the FAA proposed to create a definition for the terms 
``devices designed as chemical oxygen generators'' and ``chemical 
oxygen generator.'' The term ``devices designed as chemical oxygen 
generators'' would have been defined to include all chemical oxygen 
generators carried as cargo, even those that had been discharged, those 
past their expiration dates and newly manufactured devices designed as 
chemical oxygen generators but not yet charged with chemicals. The NPRM 
would not have applied to chemical oxygen generators that are installed 
to meet aircraft certification requirements or other FAA regulations. 
The proposal also contained another definition for the term ``chemical 
oxygen generator'' that would have been different from the term used in 
RSPA's hazardous materials regulations.
    The FAA's NPRM also would have prohibited devices designed as 
chemical oxygen generators from being carried as cargo on passenger 
carrying operations. The carriage of devices designed as chemical 
oxygen generators would have been permitted on aircraft engaged in all-
cargo operations only if they were located in an accessible cargo 
compartment that was equipped with a fire and smoke detection system, 
the cargo was separated from other cargo, and was shipped in compliance 
with RSPA's hazardous materials regulations.
    In 1999, RSPA addressed several of the FAA's concerns identified in 
its 1998 NPRM by publishing a final rule (64 FR 45388; Aug. 19, 1999) 
that prohibited the following on aircraft:
    [sbull] Chemical oxidizers in inaccessible cargo compartments 
without fire or smoke detection and fire suppression systems;
    [sbull] Personal-use chemical oxygen generators on passenger-
carrying aircraft; and
    [sbull] Spent chemical oxygen generators on passenger and cargo 
aircraft.
    In addition to the August 1999 final rule, RSPA informed NTSB by 
letter (included in the public docket for this rulemaking) that its 
June 5, 1997 final rule prohibited the transportation of chemical 
oxygen generators as cargo on passenger-carrying aircraft, regardless 
of whether they have passed their expiration dates.
    RSPA's final rule did not prohibit the transportation of newly 
manufactured devices not yet charged for the generation of oxygen. The 
FAA's 1998 NPRM, on the other hand, did contain such a proposal. The 
FAA, however, has decided not to adopt that prohibition because, as 
discussed below, it has determined that the proposed amendment is not 
necessary.

Discussion of Comments

    The FAA received 14 comments. One comment was from the National 
Transportation Safety Board, and one from a group of individuals 
outside the aviation industry. Commenters from the aviation-related 
organizations included the following--

Regional Airline Association (RAA)
Air Transport Association (ATA)
Conference on Safe Transportation of Hazardous Articles, Inc., (COSTHA)
Air Line Pilots Association, International (ALPA)
International Air Transport Association (IATA)
British Airways
Drager Aerospace North America
Aviosupport, Inc.
Teamsters Airline Division
American Trans Air, Inc.
Boeing
Independent Pilots Association (IPA)


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    The comment from the group of non-industry individuals supported 
the proposal. Other commenters, however, either wanted the proposal 
withdrawn completely or turned over to RSPA for action, or they 
objected to various details of the NPRM. Several of these objections 
concerned matters that have since been disposed of by RSPA in its final 
regulation. Major points are discussed below.
    Comment: ATA, Aviosupport, Inc., Boeing, and RAA stated that newly 
manufactured, never-been-charged containers are not hazardous materials 
and therefore should not be regulated. Aviosupport also stated that, to 
their knowledge, manufacturers charge oxygen generators as part of the 
assembly process and do not ship them empty.
    FAA Response: After discussing the issue with RSPA, the FAA agrees 
that it is not necessary to regulate newly manufactured, never-been-
charged devices. RSPA agrees with the Aviosupport comment that 
generators are not shipped empty to be charged elsewhere, and the FAA 
did not receive any rebuttal comments indicating otherwise and does not 
have any information to the contrary. Although the FAA's original goal 
was to reduce the risk of human error in a situation in which charged 
generators were improperly offered as never-been-filled, the FAA is 
satisfied that newly manufactured, never-been-charged devices will not 
be transported by aircraft. The FAA is therefore withdrawing the 
proposal.
    Comment: ATA, RAA, ALPA, American Trans Air, Inc., COSTHA, and IATA 
wanted the NPRM to be withdrawn or referred to RSPA for action because 
it would overlap RSPA's regulations and go against the provisions in 
Executive Order 12866 regarding duplicative regulations.
    FAA Response: The FAA agrees. RSPA addressed many of the FAA's 
concerns in its August 19, 1999, final rule, and the FAA has decided 
that it is not necessary to regulate newly manufactured, never-been-
charged devices (as discussed in the response above). The FAA remains 
concerned about the possibility that chemical oxygen generators could 
fuel a fire that started in a cargo compartment. However, FAA believes 
that this issue can be resolved through improved packaging for these 
devices and is working with RSPA to address this concern.
    Comment: IATA and Teamsters do not believe that the FAA defined 
``separation'' of chemical oxygen generators from other cargo 
adequately.
    FAA Response: The FAA agrees that its use of the term 
``separation'' was not well defined. The FAA's proposed use of the term 
``separation'' was not consistent with RSPA's use of the word. Given 
that RSPA already uses the term and specifies how to separate the 
material, the FAA recognizes that its separation proposal was 
confusing. The FAA's separation proposal was designed to preclude, as 
much as possible, the placement of chemical oxygen generators (and 
devices designed as chemical oxygen generators) close to other cargo. 
The proposal was intended to prevent those devices from being enveloped 
in a fire generated in other cargo and, upon ignition of the chemical 
reaction for producing oxygen, feeding an uncontrollable fire.
    Since the NPRM was published, the FAA has reconsidered the proposed 
amendment. The FAA still believes that separating all chemical oxygen 
generators, as currently packaged, from potential sources of ignition 
is critical to reducing the risk of a catastrophic fire on an aircraft. 
The FAA has determined, however, that this separation is not necessary 
if chemical oxygen generators are placed in outer packaging that 
satisfies the FAA's testing criteria for materials to meet flame 
penetration resistance and thermal protection standards. RSPA is 
currently working with the FAA to develop a proposed rule that would 
require this kind of packaging, so the FAA's proposed rule that would 
require separation is not needed at this time.
    Comment: ALPA and Aviosupport, Inc. point out that in the 
justification of the NPRM, the FAA cited safety concerns arising from 
improperly shipped chemical oxygen generators, and that better training 
in hazardous materials recognition is the better solution.
    FAA Response: The FAA recognizes that training is an important 
aspect to reducing the amount of improperly shipped hazardous 
materials. The FAA currently is developing a separate NPRM that would 
improve training standards for air carriers, repair stations, and their 
contract employees.
    Comment: ALPA points out that the FAA used a different definition 
of ``chemical oxygen generator'' than RSPA's definition.
    FAA Response: The FAA agrees. Since there is no longer a need for a 
different definition, the FAA is withdrawing this proposal.
    Comment: ALPA and Teamsters state that one member of a two-person 
crew on an all-cargo operation is not likely to leave the flight deck 
to enter a cargo compartment to put out a fire alone.
    FAA Response: The FAA did not intend to require that members of 
two-person cargo crews fight fires. Rather, the operator's procedures 
would indicate whether fighting fires is within the scope of 
crewmembers' duties.

Conclusion

    The FAA has determined that regulatory action is no longer 
necessary and, therefore, withdraws the NPRM entitled ``Prohibition on 
the Transportation of Devices Designed as Chemical Oxygen Generators as 
Cargo in Aircraft'' published on August 27, 1998 (63 FR 45912; Aug. 27, 
1998).
    Withdrawal of this NPRM does not preclude the FAA from issuing 
another notice on the subject in the future or from committing to any 
future action.

    Issued in Washington, DC on December 5, 2002.
Louis C. Cusimano,
Acting Director, Flight Standards Service.
[FR Doc. 02-31255 Filed 12-11-02; 8:45 am]
BILLING CODE 4910-13-P