Prohibition of Oxygen Generators as Cargo in Passenger- Aircraft

SUMMARY: RSPA is prohibiting the transportation of oxygen generators as

cargo on board 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.

EFFECTIVE DATE: This final rule is effective December 31, 1996.

FOR FURTHER INFORMATION CONTACT: William E. Vincent, 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

On May 24, 1996, RSPA published in the Federal Register an interim

final rule temporarily prohibiting, until January 1, 1997, the

transportation of chemical oxygen generators as cargo on passenger-

carrying aircraft. 61 FR 26418. This prohibition applies to domestic

and foreign air carriers operating passenger-carrying aircraft

entering, leaving or operating in the United States, and to any person

offering a chemical oxygen generator for transportation as cargo on any

of these aircraft.

This interim final rule was issued under the authority delegated to

RSPA by the Secretary of Transportation, in 49 CFR 1.53(b), to issue

regulations implementing the Federal hazardous material transportation

law, 49 U.S.C. 5101-5127. Enforcement of the Federal hazardous material

transportation law and the Hazardous Materials Regulations (HMR, 49 CFR

Parts 171-180) issued under that law is shared by RSPA and four modal

administrations within the Department of Transportation: Federal

Aviation Administration (FAA), Federal Highway Administration, Federal

Railroad Administration, and United States Coast Guard. FAA has primary

enforcement authority concerning transportation of hazardous materials

by air. 49 CFR 1.47(k).

RSPA does not regulate, and the HMR do not apply to, components of

the aircraft itself. Accordingly, the May 24, 1996 interim final rule

does not apply to chemical oxygen generators that are installed in the

cabins of many aircraft to provide oxygen in emergencies to passengers

and crew members. The prohibition in the May 24, 1996 interim final

rule also does not apply to compressed oxygen in cylinders.

The May 24, 1996 interim final rule included the following

definition of an oxygen generator to which the prohibition applies:

``Oxygen generator (chemical) means a device containing chemicals that

upon activation release oxygen as a product of chemical reaction.'' 49

CFR 171.8 (61 FR 26419). Exceptions to the prohibition are provided for

a chemical oxygen generator that meets the specific safety requirements

of 49 CFR 175.10(a)(7), for medical use of passengers in the passenger

cabin, and for small oxygen generators for personal use that are

transported as checked baggage in accordance with 49 CFR 175.10(a)(24).

49 CFR 173.21(k) (61 FR 26419). As discussed below, in a separate

rulemaking proceeding in Docket No. HM-224A, RSPA is proposing

elimination of the exception in 49 CFR 175.10(a)(24) for small personal

oxygen generators.

II. NTSB Recommendations

The May 24, 1996 interim final rule responds in part to the

following two recommendations of the National Transportation Safety

Board (NTSB) that RSPA:

In cooperation with the Federal Aviation Administration,

permanently prohibit the transportation of chemical oxygen

generators as cargo on board any passenger or cargo aircraft when

the generators have passed expiration dates, and the chemical core

has not been depleted. (A-96-29) (Class I, Urgent Action)

In cooperation with the Federal Aviation Administration,

prohibit the transportation of oxidizers and oxidizing materials

(e.g., nitric acid) in cargo compartments that do not have fire or

smoke detection systems. (A-96-30) (Class I, Urgent Action)

These recommendations were issued as part of NTSB's ongoing

investigation of the May 11, 1996 accident involving the loss of

ValuJet Airlines Flight 592. Preliminary evidence indicates that

chemical oxygen generators were being carried in a cargo compartment on

board Flight 592 and may have caused, or contributed to the severity

of, the accident. NTSB and FAA are continuing to investigate this

accident and issues concerning whether the chemical oxygen generators

in the cargo compartment on board Flight 592 were offered for

transportation, and were being transported, in accordance with the

applicable requirements of the HMR. Nonetheless, RSPA issued the May

24, 1996 interim final rule to prevent any similar incidents involving

chemical oxygen generators as cargo on passenger-carrying aircraft

while RSPA could consider whether to make this prohibition permanent.

In the separate rulemaking in Docket No. HM-224A, RSPA addresses the

remaining parts of the NTSB recommendations by proposing to prohibit

oxidizers from being transported aboard all passenger-carrying aircraft

and in those inaccessible cargo compartments on cargo aircraft that

lack fire or smoke detection and suppression systems (i.e., Class D

compartments, see 14 CFR 25.857).

III. Comments and Other Matters Considered

RSPA received five comments on the interim final rule. As discussed

below, RSPA is permanently prohibiting the transportation of oxygen

generators (chemical) as cargo on passenger-carrying aircraft. This

prohibition is consistent with the July 1996 amendment to the 1995-96

Edition of the International Civil Aviation Organization's Technical

Instructions for the Safe Transport of Dangerous Goods by Air. (The HMR

authorize the transportation of hazardous materials within the United

States by aircraft in accordance with the ICAO Technical Instructions.

49 CFR 171.11.)

Two commenters recommended that the prohibition in the interim

final rule be made permanent and extended to cargo aircraft. According

to the Air Line Pilots Association (ALPA), similar crash scenarios

``can produce the same amount of destruction'' for both cargo and

passenger-carrying aircraft. ALPA stated that oxygen generators pose a

significant potential hazard to all aircraft and that the ``line of

demarcation'' is not the number of persons on board an aircraft that

might be lost, but whether the aircraft could withstand the potential

hazard and be landed safety without loss of life or the aircraft.

A consultant who previously worked for FAA as a hazardous material

inspector and coordinator expressed his concern that chemical oxygen

generators should be forbidden for

[[Page 68953]]

transport by any type of aircraft. He stated that it is difficult, if

not impossible, for an air carrier to insure that these items are in

safe condition for transportation. He believes that airlines could

normally transport replacement generators by ground and keep a supply

at strategic locations, to avoid the need to carry them as cargo on

their own airplanes, but he indicated that a limited exemption might be

appropriate to allow replacements to be transported to overseas or

remote areas. A private citizen also expressed her concern about

hazardous materials contained in passengers' baggage. She recommended a

prohibition against transportation of any material having the remotest

possibility of endangering those on board an aircraft.

The Air Transport Association (ATA) supported the interim final

rule but recommended that RSPA not rule out the possibility of

reauthorizing the air transportation of chemical oxygen generators at a

future date. ATA expressed its understanding that the oxygen generators

carried aboard ValuJet Flight 592 ``were unnecessarily and perhaps

improperly offered for transportation by aircraft.'' It stated that,

``since chemical oxygen generators were first installed in aircraft in

lieu of oxygen bottles, tens of thousands have been safely transported

by airlines in compliance with regulations'' and also ``as part of the

aircraft's installation.'' ATA urged RSPA and FAA to address the ``two

possible failure modes'' for these devices, inadequate safety devices

and high ambient temperatures, through regulations that would require

protective devices (such as a locking pin and a protective cap) and

research into packaging methodologies that would provide thermal

protection. ATA recommended that these issues receive further analysis

``before RSPA totally forecloses the possibility of the resupply of

chemical oxygen generators for installation in air carrier fleets via

the combination air carriers' cargo system.'' ATA also indicated that

air carriers had sought for many years, and would welcome, an increase

in enforcement directed at offerors who fail to properly disclose

shipments of hazardous materials.

A European supplier of aircraft oxygen equipment stated that it was

necessary to allow chemical oxygen generators to be transported on

passenger-carrying aircraft in order to repair planes on which the

oxygen equipment had malfunctioned. This company indicated it is often

requested to supply replacement equipment within four hours, because an

aircraft is not permitted to take off before the defective equipment is

replaced. This commenter stated that this happens ``monthly several

times all over the world,'' and asked if there was an exemption for an

``aircraft on ground'' situation. Otherwise, it stated, a forwarding

agency would have to wait for a cargo-only aircraft, which operate less

frequently.

RSPA recognizes that the oxygen generators involved in the ValuJet

accident appear to have been shipped in violation of the HMR, and RSPA

continues to believe that these generators may be safely transported in

compliance with the HMR, including the conditions of the approvals

under which the generators are offered for transportation by their

original manufacturers. However, these devices appear to be unique in

that, if handled improperly, they can both generate sufficient heat to

set adjacent materials on fire and also provide oxygen to intensify a

fire. The potential for loss of life and damage to property justify

this prohibition and the consequence that any generators needed as

replacement parts must be transported by ground or by cargo-only

aircraft.

At the present time, RSPA is continuing this prohibition as limited

to passenger-carrying aircraft. RSPA believes that any decision to

prohibit chemical oxygen generators from cargo aircraft should only

follow public notice and an opportunity for further comment. A

prohibition against transporting any oxidizers in Class D compartments

of cargo aircraft, as proposed under docket HM-224A, would apply to

chemical oxygen generators. In that proceeding, among others, RSPA will

continue to evaluate the hazards posed by chemical oxygen generators to

determine what additional requirements, if any, are needed to insure

their safe transportation.

ALPA also recommended removing the exceptions provided in 49 CFR

175.10(a) (7) and (24). The first subparagraph allows the

transportation of an oxygen generator provided by the air carrier for

medical use of a passenger in the passenger cabin. The exception solely

applies to the transportation of those oxygen generators that are for

use by on-board passengers and does not provide for the transportation

of medical oxygen generators for the purposes of staging or

positioning. ALPA believes that the availability of gaseous oxygen

makes this part of the exception unnecessary. RSPA is not eliminating

this part of subparagraph 175.10(a)(7) at this time because there is

insufficient information on the potential effect on airline passengers

with breathing difficulties, and the public interest would require

public notice and comment before making this type of change to the HMR.

RSPA may consider removing oxygen generators from subparagraph (a)(7)

in a future rulemaking.

The exception in 49 CFR 175.10(a)(24) allows a small oxygen

generator intended for personal use to be transported as a passenger's

checked baggage under certain circumstances, including the approval of

the air carrier. ALPA believes that passengers are unaware of this

requirement, and therefore fail to notify the carrier, because of a

lack of public awareness programs and procedures for informing

passengers that they must contact the carrier before checking baggage

containing an oxygen generator. ALPA also stated that there is no

practical means of assuring that the person owning this type of oxygen

generator has been educated in how to inspect and maintain the

generator as specified in the HMR, and there is no way for the air

carrier to examine the generator to verify compliance with the

conditions in subsection 175.10(a)(24). ALPA pointed out that the

United Kingdom's Civil Aviation Authority has prohibited the

transportation of these personal oxygen generators on passenger-

carrying aircraft.

ALPA's arguments in favor of eliminating the exception in

subsection 175.10(a)(24) warrant further consideration. At the same

time, RSPA believes that any such change should follow public notice

and comment. Accordingly, RSPA is proposing to eliminate 49 CFR

175.10(a)(24) in the proposed rule in docket No. HM-224A. ALPA's

recommendation and supporting comments will be considered in that

proceeding.

IV. Effective Date

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 following its issuance.

V. 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 the Department

of Transportation (44 FR 11034).

[[Page 68954]]

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 twelve 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. There are limited

adverse economic impacts on small businesses or other organizations

because this rule imposes a limited prohibition on certain persons

subject to the HMR.

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, the interim rule amending 49 CFR

parts 171 and 173 which was published at 61 FR 26418 on May 24, 1996,

is adopted as a final rule with the following change:

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

PACKAGINGS

1. The authority citation for Part 173 is revised to read as

follows:

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

2. In Sec. 173.21, paragraph (k) is revised 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. 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 December 23, 1996, under authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Acting Administrator, Research and Special Programs Administration.

[FR Doc. 96-33036 Filed 12-27-96; 8:45 am]

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