[Federal Register Volume 85, Number 58 (Wednesday, March 25, 2020)]
[Rules and Regulations]
[Pages 16897-16900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06312]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No.: FAA-2020-0289; Amdt. No. 121-383]
RIN 2120-AL62


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

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

ACTION: Final rule.

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

DATES: This final rule is effective on March 23, 2020.

FOR FURTHER INFORMATION CONTACT: Daniel T. Ronneberg, Part 121 Air 
Carrier Operations, Air Transportation Division, Flight Standards 
Service, Federal Aviation Administration, 800 Independence Avenue SW, 
Washington, DC 20591; telephone 202-267-1216; email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This final rule addresses section 579 of the Federal Aviation 
Administration Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 
2018) (``FAARA 2018''), which requires the FAA to issue a final 
regulation revising Sec.  121.333(c)(3) of title 14, Code of Federal 
Regulations (14 CFR), to apply only to flight altitudes above flight 
level 410. Such an amendment would increase the flight level \1\ 
threshold from flight level 250 to flight level 410 (i.e., a flight 
altitude of 41,000 feet), at which the FAA requires a pilot at the 
controls to put on and use the required oxygen mask while the other 
pilot leaves his or her control station. As a result, by this action, 
the FAA amends 14 CFR 121.333(c)(3) to replace the current flight 
altitude threshold of flight level 250 with flight level 410.
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    \1\ As further explained in Section III of this final rule, the 
FAA defines ``flight level'' in 14 CFR 1.1 as a level of constant 
atmospheric pressure related to a reference datum of 29.92 inches of 
mercury. Flight levels are stated in three digits that represent 
hundreds of feet. For example, flight level 250 represents a 
barometric altimeter indication of 25,000 feet.

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[[Page 16898]]

II. Legal Authority and Good Cause

A. Legal Authority

    The FAA is responsible for the safety of flight in the United 
States and for the safety of U.S. civil operators, U.S.-registered 
civil aircraft, and U.S.-certificated airmen throughout the world. The 
FAA Administrator's authority to issue rules on aviation safety is 
found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). 
Section 106(f) vests final authority in the Administrator for carrying 
out all functions, powers, and duties of the administration relating to 
the promulgation of regulations and rules.
    Subtitle VII of title 49, Aviation Programs, describes in more 
detail the scope of the agency's authority. Section 44701(a)(5) 
requires the Administrator to promulgate regulations and minimum 
standards for other practices, methods, and procedures that the 
Administrator finds necessary for safety in air commerce and national 
security. In addition, section 40101(d)(1) provides that the 
Administrator shall consider in the public interest, among other 
matters, assigning, maintaining, and enhancing safety and security as 
the highest priorities in air commerce. Further, section 44701(d)(1)(A) 
specifically states that the Administrator, when prescribing safety 
regulations, must consider the duty of an air carrier to provide 
service with the highest possible degree of safety in the public 
interest. In addition, section 579 of Public Law 115-254 (Oct. 5, 2018) 
requires this amendment, stating that the Administrator of the FAA 
shall issue a final regulation revising Sec.  121.333(c)(3) of title 14 
CFR to apply only to flight altitudes above flight level 410.
    This rulemaking is promulgated pursuant to the authority described 
in the preceding paragraphs. These authorities apply to the oversight 
the FAA exercises to ensure safety of air carrier operations, including 
flight crewmember supplemental oxygen usage.

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

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
generally requires public notice and an opportunity to comment before 
promulgating regulations. The APA provides an exception to the notice 
and comment process in section 553(b)(3)(B). That exception authorizes 
an agency to dispense with notice and comment rulemaking procedures 
when the agency for ``good cause'' finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.''
    In this instance, the FAA finds good cause exists to forgo notice 
and comment because notice and comment would be unnecessary, and 
contrary to the public interest. The statute unambiguously requires 
replacing the flight altitude threshold of flight level 250 with flight 
level 410. This mandated amendment is specific, prescriptive, and 
inflexible. It is a directive that leaves no room for discretion or 
interpretation. Because this rule implements a statutory requirement 
without change, the FAA lacks the discretion to make changes in 
response to comments. Therefore, notice and comment procedures are 
unnecessary and contrary to the public interest.
    Section 553(d)(1) also provides an exception to the general 
requirement that the required publication or service of a substantive 
rule shall be made not less than 30 days before its effective date, 
where a substantive rule grants or recognizes an exemption or relieves 
a restriction. This rule is relieving in that it provides for a higher 
threshold flight level at which a remaining pilot would be required to 
put on an oxygen mask.
    Accordingly, the FAA finds good cause exists to forgo notice and 
comment procedures, and to make this rule immediately effective.

III. Background

    The FAA has long required certificate holders to furnish, and 
flight crewmembers to put on and use, oxygen masks during each 
domestic, flag, or supplemental operation in which the certificate 
holder uses a turbine engine powered airplane with a pressurized cabin. 
The FAA established these requirements to mitigate the risk of an event 
of an in-flight cabin pressurization failure. Under 14 CFR 121.385, the 
minimum pilot crew is two pilots for such operations. During such 
operations, under the provisions of Sec.  121.543, a pilot is allowed 
to leave the flight controls under certain specified circumstances. The 
FAA designed the requirement codified at Sec.  121.333(c)(3) to 
mitigate the risk of having a pressurization or other oxygen failure 
incident when only one pilot is at the flight controls. The FAA 
requires that if the aircraft is above flight level 250, the pilot 
remaining on the flight deck must put on and use the provided oxygen 
mask. This requirement ensures the remaining pilot is never without 
oxygen. Such a requirement is particularly important because, in the 
case of an emergency, the pilot would have to initiate and accomplish 
multiple tasks immediately.
    Pursuant to section 579 of FAARA 2018, this final rule amends 14 
CFR 121.333(c)(3) to remove the current flight altitude threshold of 
flight level 250 and replace it with a flight altitude threshold of 
flight level 410.

IV. Discussion of the Final Rule

    As discussed above, this final rule amends 14 CFR 121.333(c)(3) to 
remove the current flight altitude threshold of flight level 250 and 
replace it with a flight altitude threshold of flight level 410. This 
change results in a requirement that in domestic, flag, and 
supplemental operations, when only one pilot is at the flight controls, 
the pilot remaining at his or her control station must wear an oxygen 
mask if the aircraft is above flight level 410 and the other pilot has 
left his or her aircraft control station.
    The FAA expects certificate holders' implementation of this updated 
standard will be straightforward because it only increases the flight 
level threshold at which the pilot who remains at the appropriate 
control station must put on and use an oxygen mask. Pilots may continue 
to use their oxygen masks at lower flight levels, but such use would 
not be required until the aircraft exceeds flight level 410.
    The FAA notes that certificate holders generally review and update 
their manuals on a periodic basis, and that it is likely that they will 
update any sections of their manuals concerning pilot oxygen 
requirements to address the new flight level threshold. Certificate 
holders also review training programs on a periodic basis and might 
also update their flight crewmember training programs to capture the 
new flight level standard. Because certificate holders would update 
their manuals and training programs on a periodic basis irrespective of 
this rule, the FAA does not expect that implementation of this rule, 
including any resulting updates to the certificate holders' manuals or 
training programs, would result in a burden to carriers.

V. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Orders 12866 and 13563 direct that each 
Federal agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), 
as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act of 1979 (Pub. L. 96-39),

[[Page 16899]]

as codified in 19 U.S.C. Chapter 13, prohibits agencies from setting 
standards that create unnecessary obstacles to the foreign commerce of 
the United States. In developing U.S. standards, the Trade Agreements 
Act requires agencies to consider international standards and, where 
appropriate, that they be the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 
U.S.C. Chapter 25, requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this rule is 
not a significant regulatory action, as defined in section 3(f) of 
Executive Order 12866. As notice and comment under 5 U.S.C. 553 are not 
required for this final rule, the regulatory flexibility analyses 
described in 5 U.S.C. 603 and 604 regarding impacts on small entities 
are not required. This rule will not create unnecessary obstacles to 
the foreign commerce of the United States. This rule will not impose an 
unfunded mandate on State, local, or tribal governments, or on the 
private sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

    This action amends Sec.  121.333(c)(3) to address the requirement 
of section 579 of FAARA 2018, which requires the FAA to issue a final 
regulation revising that section, to apply only to flight altitudes 
above flight level 410. Such an amendment means that, when one pilot 
leaves his or her control station, the remaining pilot is not required 
to put on and use an oxygen mask until the aircraft reaches flight 
level 410. Consequently, certificate holders will incur minimal costs 
associated with updating manuals and flight crewmember training 
programs to capture the new flight level standard; however, industry 
has indicated it supports this amendment.\2\ Certificate holders 
already make frequent updates; this change would be a straightforward 
change in flight level and regulatory references. As previously 
mentioned, petitioners have asserted that the more limited use of 
oxygen masks below flight level 410 would not adversely affect safety 
because of the extremely low risk for depressurization at altitudes 
above flight level 250. This rule only updates the text of Sec.  
121.333(c)(3) to comply with the mandate at section 579 of FAARA 2018. 
The FAA finds this rule would have minimal costs.
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    \2\ Airlines for America, Request for Temporary Enforcement 
Suspension of and Exemption from 14 CFR 121.333(c)(3) (Mar. 17, 
2020), available in the docket for this rulemaking.
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B. Regulatory Flexibility Act

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

C. International Trade Impact Assessment

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

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $155 million in lieu of $100 
million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

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

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA's policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable.
    The FAA finds that this action is fully consistent with the 
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA 
exercises its duties consistently with the obligations of the United 
States under international agreements.
    The FAA has reviewed the relevant standards of the International 
Civil Aviation Organization and concludes that it would not be contrary 
to any ICAO standard to amend Sec.  121.333(c)(3) to change the 
threshold for requiring a remaining pilot to put on and use an oxygen 
mask to flight level 410 rather than flight level 250. In this regard, 
ICAO Annex 6 (``Operation of Aircraft'') does not require that oxygen 
masks must be routinely worn above flight level 250. Annex 6, section 
4.4.5 (``Use of Oxygen''), only requires oxygen masks to be available 
above 25,000 feet mean sea level (MSL). The standard states, ``[a]ll 
flight crew members of pressurized aeroplanes operating above an 
altitude where the atmospheric pressure is less than 376 hPa [25,000 
feet MSL] shall have available at the flight duty station a quick-
donning type of oxygen mask which will readily supply oxygen upon 
demand.'' Therefore, the revision to Sec.  121.333(c)(3) that the FAA 
now promulgates is not contrary to ICAO standards.

[[Page 16900]]

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions, and DOT Order 
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be 
informed of environmental considerations and take those considerations 
into account when making decisions on major Federal actions that could 
have environmental impacts anywhere beyond the borders of the United 
States. The FAA has determined this action is exempt pursuant to 
Section 2-5(a)(i) of Executive Order 12114, because it does not have 
the potential for a significant effect on the environment outside the 
United States.
    In accordance with FAA Order 1050.1F, ``Environmental Impacts: 
Policies and Procedures,'' paragraph 8-6(c), FAA has prepared a 
memorandum for the record stating the reason(s) for this determination; 
this memorandum has been placed in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

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

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

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

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

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

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

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

IX. Additional Information

A. Availability of Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained from 
the internet by--
     Searching the Federal Document Management System (FDMS) 
Portal at http://www.regulations.gov;
     Visiting the FAA's Regulations and Policies web page at 
http://www.faa.gov/regulations_policies; or
     Accessing the Government Publishing Office's website at 
http://www.govinfo.gov.
    Copies may also be obtained by sending a request (identified by 
amendment or docket number of this rulemaking) to the Federal Aviation 
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue 
SW, Washington, DC 20591, or by calling (202) 267-9677.
    All documents the FAA considered in developing this rule, including 
economic analyses and technical reports, may be accessed from the 
internet through the Federal Document Management System Portal 
referenced previously.

B. Small Business Regulatory Enforcement Fairness Act

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

List of Subjects in 14 CFR Part 121

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

The Amendment

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

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

0
1. The authority citation for part 121 continues to read as follows:

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


0
2. Amend Sec.  121.333 by revising paragraph (c)(3) to read as follows:


Sec.  121.333   Supplemental oxygen for emergency descent and for first 
aid; turbine engine powered airplanes with pressurized cabins.

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

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f) and (g), and 44701(a)(5), on March 20, 2020.
Steve Dickson,
Administrator, Federal Aviation Administration.
[FR Doc. 2020-06312 Filed 3-23-20; 11:15 am]
 BILLING CODE 4910-13-P