Temporary Prohibition of Oxygen Generators as Cargo in Passenger Aircraft

SUMMARY: To protect life and property, RSPA is issuing an interim final

rule temporarily prohibiting the offering for transportation and

transportation of oxygen generators as cargo in passenger-carrying

aircraft. This rule applies to both foreign and domestic passenger-

carrying aircraft entering, leaving or operating in the United States

and to any person offering an oxygen generator for transportation on

any passenger-carrying aircraft.

DATES: Effective date: This interim final rule is effective May 24,

1996.

Comment date: Comments must be received by July 23, 1996.

ADDRESSES: Address comments to the Dockets Unit, Research and Special

Programs Administration, U.S. Department of Transportation, room 8421,

400 Seventh Street, SW, Washington, DC 20590-0001. Comments should

identify the docket number and be submitted in five copies. Persons

wishing to receive confirmation of receipt of their comments should

include a self-addressed, stamped postcard. The Dockets Unit is located

in the Department of Transportation headquarters building (NASSIF

Building) at the above address on the eighth floor. Public dockets may

be reviewed there between the hours of 8:30 a.m. and 5 p.m., Monday

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: William E. Vincent, Acting Director,

Office of Policy and Program Support, (202) 366-4831, Research and

Special Programs Administration, U.S. Department of Transportation, 400

Seventh Street SW, Washington DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

Under a Secretarial delegation (49 CFR 1.53(b)), the Research and

Special Programs Administration (RSPA) is the administration within the

Department of Transportation (DOT) primarily responsible for issuing

regulations implementing the Federal hazardous material transportation

law (Federal hazmat law), 49 U.S.C. 5101-5127. Under this delegated

authority, RSPA has issued the Hazardous Materials Regulations (HMR),

49 CFR Parts 171-180.

Under delegations from the Secretary of Transportation (49 CFR Part

1), the authority for enforcement under the Federal hazmat law is

shared by RSPA and each of four modal administrations: the Federal

Highway Administration, the Federal Railroad Administration, the

Federal Aviation Administration (FAA), and the United States Coast

Guard. FAA has primary enforcement authority concerning transportation

and shipments of hazardous materials by air. 49 CFR 1.47(k).

The National Transportation Safety Board and the FAA are

investigating a recent accident involving a passenger-carrying

aircraft. Preliminary evidence indicates that oxygen generators

(chemical) were carried as cargo on board the aircraft and may have

caused, or contributed to the severity, of the accident. Oxygen

generators are safely installed inside thermal protective casings in

the cabins of many passenger-carrying aircraft to provide oxygen in

emergencies to passengers and certain crew members.

Some persons have offered, and some air carriers have transported,

uninstalled generators as cargo on passenger-carrying aircraft under

authority in the HMR, including Secs. 175.10(a)(2) and 171.11 (which

authorizes use of the International Civil Aviation Organization (ICAO)

Technical Instructions).

In order to preclude the possibility that an oxygen generator

carried as cargo may cause or contribute to a future incident in air

commerce, RSPA is issuing this interim final rule prohibiting until

January 1, 1997, with one exception, transportation in passenger-

carrying aircraft, and offering for transportation in passenger-

carrying aircraft, any oxygen generator as cargo. This regulation

applies to both foreign and domestic aircraft entering, leaving or

operating in the United States and to any person offering an oxygen

generator for transportation on any of those aircraft as cargo.

This regulation applies to oxygen generators (chemical) and not to

cylinders containing compressed oxygen. Unlike oxygen generators

(chemical), compressed oxygen cylinders do not involve heat-producing

mixing of chemicals to create oxygen. To clarify the applicability of

the prohibition in this rule, RSPA is adding a definition of ``oxygen

generator (chemical)'' to 49 CFR Sec. 171.8. That definition reads ``a

device containing chemicals that upon activation release oxygen as a

product of chemical reaction.''

Exceptions to the prohibition are provided for an oxygen generator

for medical use of a passenger that is carried in the passenger cabin

and meets the specific safety requirements of Sec. 175.10(a)(7) and for

a small oxygen generator for personal use that is transported as

checked baggage and meets the specific safety requirements of

Sec. 175.10(a)(24).

Because of the potential safety risk posed by continued

transportation of oxygen generators as cargo in passenger-carrying

aircraft, RSPA has determined that good cause exists for making this

rule effective less than 30 days from its issuance and that notice and

comment is impractical and contrary to public interest.

Based on currently available information, RSPA believes that at

least a temporary ban on offering and transportation of the generators

is justified on an emergency basis because of the potential for loss of

life and damage to property. Although an opportunity for public comment

on this rule has not been provided prior to issuance of this interim

final rule, RSPA seeks public comment. Based on comments received, NTSB

and FAA investigation, and RSPA and FAA joint inspection of contract

maintenance vendors, RSPA may make the ban permanent, terminate or

modify the ban, or otherwise amend the provisions of this rule. As an

interim final rule, however, this regulation is in effect and binding

upon publication in the Federal Register.

RSPA encourages interested persons to participate in this

rulemaking by submitting written views, data and information concerning

this interim final rule. Commenters should provide a reason or basis

for each comment. RSPA will consider all public comments and will make

changes to this rule if public comments indicate a change is necessary.

II. Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a significant regulatory action under

section 3(f) of Executive Order 12866 and therefore is subject to

review by the Office of Management and Budget. The rule is significant

according to the Regulatory Policies and Procedures of

[[Page 26419]]

the Department of Transportation (44 FR 11034).

The changes adopted in this rule should not result in any

significant additional costs to persons subject to the HMR. About

150,000 of these oxygen generators are installed on about 1,000 U.S.

passenger-carrying aircraft. Because of their typical effective life of

about ten years, it is not necessary to frequently transport these

generators as uninstalled or not-in-use materials. In addition,

alternative transportation is available for these generators because

this rule does not prohibit or inhibit their transportation by highway,

rail, water or cargo aircraft. Because of the minimal economic impact

of this rule, a full regulatory evaluation is not warranted.

Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria in Executive Order 12612 (``Federalism'') and does not

have sufficient Federalism impacts to warrant the preparation of a

federalism assessment.

Regulatory Flexibility Act

I certify that this final rule will not have a significant economic

impact on a substantial number of small entities. This rule imposes a

limited prohibition on certain persons subject to the HMR. However,

there are limited adverse economic impacts on small businesses or other

organizations.

Paperwork Reduction Act

There are no information collection requirements in this final

rule.

Regulation Identifier Number

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Reporting and recordkeeping requirements.

49 CFR Part 173

Hazardous materials transportation, Packaging and containers,

Radioactive materials, Reporting and recordkeeping requirements,

Uranium.

In consideration of the foregoing, 49 CFR Parts 171 and 173 are

amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for Part 171 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

2. In Sec. 171.8, a definition for ``oxygen generator (chemical)''

is added in alphabetical order to read as follows:

Sec. 171.8 Definitions and abbreviations.

* * * * *

Oxygen generator (chemical) means a device containing chemicals

that upon activation release oxygen as a product of chemical reaction.

* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS

3. The authority citation for Part 173 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

4. In Sec. 173.21, paragraph (k) is added to read as follows:

Sec. 173.21 Forbidden materials and packages.

* * * * *

(k) Notwithstanding any other provision of this subchapter,

including Secs. 171.11 and 175.10(a)(2) of this subchapter, an oxygen

generator (chemical) as cargo on a passenger-carrying aircraft until

January 1, 1997. This prohibition does not apply to an oxygen generator

for medical or personal use of a passenger that meets the requirements

of Sec. 175.10(a)(7) or Sec. 175.10(a)(24) of this subchapter.

Issued in Washington, DC on May 23, 1996 under authority

delegated in 49 CFR part 1.

D.K. Sharma,

Administrator, Research and Special Programs Administration.

[FR Doc. 96-13404 Filed 5-23-96; 12:31 pm]

BILLING CODE 4910-60-P