Hazardous Materials: Shipping Description and Packaging of Oxygen Generators

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, and 172

[Docket No. HM-224A]

RIN 2137-AD02

Hazardous Materials: Shipping Description and Packaging of Oxygen

Generators

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: RSPA is amending the Hazardous Materials Regulations to add a

specific shipping description to the Hazardous Materials Table for

chemical oxygen generators and to require approval of a chemical oxygen

generator, and its packaging, when the chemical oxygen generator is to

be transported with its means of initiation attached. Oxygen generators

currently are transported under several different shipping descriptions

which identify chemical constituents but do not identify that the

packaged articles are oxygen generators. These changes will facilitate

the identification of oxygen generators in transportation, making it

easier to comply with and enforce existing prohibitions against the

carriage of chemical oxygen generators on passenger aircraft and in

inaccessible locations on cargo aircraft, and enhance packaging

requirements.

DATES: Effective: The effective date of these amendments is July 7,

1997. The provisions of Sec. 172.101(l)(1)(ii), which otherwise would

allow up to one year after a change in the Hazardous Materials Table to

use up stocks of preprinted shipping papers and to ship packages that

were marked prior to the change, do not apply to these amendments.

FOR FURTHER INFORMATION CONTACT: Diane LaValle, Office of Hazardous

Materials Standards, 202-366-8553, Research and Special Programs

Administration, U.S. Department of Transportation, 400 Seventh Street,

SW, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

Following the May 11, 1996 crash of ValuJet flight 592 into the

Florida Everglades, where chemical oxygen generators carried as cargo

may have caused or contributed to the severity of the accident, RSPA

published an interim final rule in the Federal Register (61 FR 26418)

on May 24, 1996, followed by a final rule on December 30, 1996 (61 FR

68952) prohibiting the transportation of chemical oxygen generators as

cargo on passenger-carrying aircraft. This prohibition is responsive to

a May 31, 1996 recommendation 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 their expiration dates, and the chemical

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

On December 30, 1996, RSPA published a notice of proposed

rulemaking (NPRM) in the Federal Register (61 FR 68955)that proposed,

in relevant part, several additional changes with respect to chemical

oxygen generators: (1) adding a shipping description for ``Oxygen

generator, chemical, 5.1, UN 3353, PG-I and PG-II,'' consistent with

the recent adoption of this shipping description by the International

Civil Aviation Organization (ICAO); (2) indicating in Secs. 172.101

(the Hazardous Materials Table), Secs. 171.11 and 175.85 of the

Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) that

chemical oxygen generators may not be transported aboard passenger-

carrying aircraft or in inaccessible cargo compartments in cargo

aircraft; (3) indicating in Secs. 171.11, 171.12, and 171.12a that

there are no exceptions from HMR requirements for classification,

approval and description of oxygen generators; and (4) specifying

packaging requirements for shipment of chemical oxygen generators.

This final rule adopts these proposals from the December 30, 1996

NPRM concerning oxygen generators with minor changes. In Secs. 171.11,

171.12 and 171.12a, proposed new paragraphs (d)(14), (b)(17) and

(b)(16) have been adopted as new paragraphs (d)(15), (b)(18) and

(b)(17), respectively. Additionally, paragraph (d)(15) does not

reference the exception in Sec. 175.10 because it is redundant as a

result of the entry for ``Oxygen generator, chemical'' and the

corresponding special provision.

RSPA's December 30, 1996 NPRM also proposed to prohibit the

transportation of oxidizers, including compressed oxygen, on passenger-

carrying aircraft (which would also limit oxidizers that are allowed on

cargo aircraft only to cargo locations that are accessible to crew

members during flight; Sec. 175.85(b)). Docket No. HM-224A, 61 FR

68955. This proposed amendment to the Hazardous Materials Regulations

(HMR), 49 CFR Parts 171-180, is consistent with the NTSB recommendation

that RSPA:

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

In the December 30, 1996 NPRM, RSPA expressed its intent to issue a

supplemental NPRM to more fully address proposals pertaining to a

prohibition against oxidizers on passenger aircraft and in inaccessible

locations on cargo aircraft. RSPA expects to publish the supplemental

NPRM in the near future.

RSPA received several requests to extend the comment period on the

December 30, 1996 NPRM for either 60 or 90 days. The requests for an

extension of time to comment did not relate to the proposals in the

December 30, 1996 NPRM concerning the shipping description and

packaging of chemical oxygen generators.

II. Oxygen Generators

The international shipment of hazardous materials by air is

governed by the International Civil Aviation Organization (ICAO)

Technical Instructions for the Safe Transport of Dangerous Goods by Air

(ICAO Technical Instructions). The HMR allow the use of the ICAO

Technical Instructions as an alternative to corresponding hazard

communication and packaging requirements of the HMR (see 49 CFR

171.11). As explained in the NPRM, ICAO recently adopted a shipping

description, ``Oxygen generator, chemical, 5.1, UN 3353, II,'' for

chemical oxygen generators. RSPA proposed this description in the NPRM

to make it easier to identify chemical oxygen generators and for

consistency with the ICAO provisions.

RSPA also explained in the December 30, 1996 NPRM its proposals to

require special packaging for a chemical oxygen generator that is

shipped with its means of initiation attached. RSPA proposed

[[Page 30768]]

to: (1) clarify that oxygen generators must be classed and approved by

the Associate Administrator for Hazardous Material Safety (which may

include packaging requirements); (2) require oxygen generators to

incorporate no less than two safety features that will prevent

unintentional activation of the generator; and (3) require that, when

transported on a cargo-only aircraft, a generator must be contained in

a packaging prepared and originally offered for transportation by the

approval holder. Moreover, each offeror of an approved oxygen generator

must have a copy of the approval, and the approval number must be

marked on the outside of the package.

RSPA received six comments on the proposals dealing with oxygen

generators. All of the commenters supported the addition of the new

shipping description for chemical oxygen generators. Therefore, RSPA is

adding the shipping description ``Oxygen generator, chemical, 5.1, UN

3353, PG-I and PG-II,'' for chemical oxygen generators.

Two commenters suggested that shipping papers for oxygen generators

also contain: (1) a certification that safety caps were inspected prior

to packaging and were in place when packed; and (2) a statement as to

what type of fire extinguisher is effective on the canisters. RSPA

notes that Sec. 172.204 currently requires certification as to

compliance with packaging requirements by the offeror and subpart G of

part 172 has requirements for providing and maintaining emergency

response information. Neither of the suggested changes was proposed in

the NPRM and RSPA does not believe that the commenters have provided

sufficient justification to warrant changing the regulations. However,

these suggestions may be considered in a future rulemaking proceeding

if either or both of these commenters petition for rulemaking in

accordance with 49 CFR 106.31. Section 106.31 requires, in pertinent

part, that a petitioner provide information and arguments that support

the proposed action, including relevant technical, scientific or other

data as available to the petitioner.

One commenter who agreed with the proposal to add Special Provision

57 (adopted as Special Provision 60), which would require an oxygen

generator to be shipped with two safety features that will prevent

unintentional activation, requested that RSPA clarify the means of

compliance with this provision. This commenter also requested RSPA

specifically allow the use of protective packaging and insulation as a

means of meeting this requirement. Another commenter stated that the

proposed language does not make it clear whether the ``two safety

features'' are intended to be additional to the existing device on the

generator which prevents activation. Two other commenters requested

that safety caps be installed on all chemical oxygen generators, and

that the approved packagings be designed to prevent its movement.

RSPA is revising special provision 60, for clarity and consistency

with the ICAO Technical Instructions, to require that oxygen generators

that are shipped with their means of initiation attached incorporate at

least ``two positive means of preventing unintentional actuation''

rather than ``two safety features that will prevent unintentional

activation.'' Activation mechanisms for oxygen generators are not

identical in design or operation. It is not possible to specify

detailed methods of preventing activation without an examination of

each design. Manufacturers are advised that in order to be approved,

current designs must be adapted to provide for two independent means or

systems for prevention of activation and that future designs should

incorporate this capability. Each means or system must be independent

of the other. For example, two hammer retainers or one retainer and a

protective cap. Systems which use two features on one preventive system

(one hammer pin with a retainer on the pin) or use packaging and

insulation to substitute for one system are not acceptable.

RSPA received two comments on the proposal to require approval by

the Associate Administrator for Hazardous Materials Safety (AAHMS) for

the transportation of chemical oxygen generators. The National

Transportation Safety Board (NTSB) stated that ``the Safety Board

supports RSPA's proposal to require special approval for chemical

oxygen generators to determine if these generators, which have

actuators attached, can be safely packaged to prevent initiation during

shipping, and to establish a standard for compliance.'' NTSB also

stated that it ``understands that Title 49 CFR currently requires

chemical oxygen generators to have an RSPA approval, or a previously

authorized Bureau of Explosives approval, to be transported because the

generators contain an explosive actuator.'' Another commenter stated

that the use of device-specific approval is needlessly burdensome and

in many respects is a step backwards to the era of specification,

rather than performance-oriented, requirements.

As noted by NTSB, the HMR already require a chemical oxygen

generator, or any other device, that contains an explosive to be

approved by the AAHMS. The addition of the approval requirement into

Special Provision 60 clarifies that chemical oxygen generators that are

shipped with their means of initiation attached must be approved by the

AAHMS. The approval provision also would apply to non-explosive means

of ignition, if employed. RSPA disagrees that device-specific approval

is needlessly burdensome, believing that the degree of hazard posed by

chemical oxygen generators with means of ignition attached warrants

individual approval. Therefore, Special Provision 60 (originally

proposed as Special Provision 57), requiring that an oxygen generator

that is shipped with its means of initiation attached must be approved

by the AAHMS, is adopted in this final rule.

RSPA received one comment on the proposal to require, for

transportation by cargo-only aircraft, that an oxygen generator must be

contained in a packaging prepared and originally offered for

transportation by the approval holder. The commenter stated that

adoption of this requirement, and the proposal that each offerer of an

approved oxygen generator must have a copy of the approval, will

needlessly impede shipments. The commenter stated that these provisions

will delay shipments of these ``lifesaving devices'' and have little,

if any, impact on transportation safety.

In order to assure their safe transport aboard cargo aircraft, RSPA

believes that chemical oxygen generators may only be transported in a

packaging prepared and originally offered for transportation by an

approval holder. RSPA believes that by requiring a generator to be

packaged by the approval holder, the level of safety for the

transportation of oxygen generators aboard cargo aircraft will be

increased because the approval holder, the party most knowledgeable

about the shipment, can be confident that the packaging is in

compliance with the approval. RSPA also believes that, by requiring

each offerer of an approved generator to have a copy of the approval,

the offerer will be assured that: (1) The generator has been approved;

(2) the shipping description is correct; and (3) the offerer has

knowledge of all relevant packaging requirements. RSPA does not believe

that a shipper can be aware of all these things without a copy of the

approval. Therefore, RSPA is adopting in this final rule requirements

that: (1) For transportation by cargo aircraft, an oxygen generator

must be contained in a packaging prepared and originally offered for

transportation by the

[[Page 30769]]

approval holder; (2) each offerer of an approved oxygen generator must

have a copy of the approval for that generator; and (3) that the

approval number must be marked on the outside of the package. Although

originally proposed as part of Special Provision 60, the requirement

that an oxygen generator must be contained in a packaging prepared and

originally offered for transportation by the approval holder is moved

to Special Provision A51. Language is added to clarify that the oxygen

generator must conform to the provisions of the approval. Special

Provision A51 effectively precludes the shipment by aircraft of an

oxygen generator unless it is repacked in its original packaging. For

example, an oxygen generator which is removed from an aircraft by a

repair facility because the generator is beyond its service life could

not be transported by cargo aircraft unless the repair facility has

approved procedures for repackaging the generator.

The provisions being adopted into the HMR for oxygen generators

generally are consistent with those provisions in the ICAO Technical

Instructions for the shipment of oxygen generators. However, ICAO has

also adopted additional provisions which require: (a) A 1.8 meter drop

test on an unpackaged oxygen generator; and (b) that an oxygen

generator be transported in a package that, when one generator in the

package is actuated, the other generators will not actuate, the

packaging material will not ignite, and the outside surface temperature

of the completed package will not exceed 100 degrees C. Though these

provisions have not been adopted into this final rule, RSPA may propose

to add them in a future rulemaking.

III. Costs and Benefits

A preliminary regulatory evaluation for the December 30, 1996 NPRM,

addressing the proposed prohibition of oxidizers in Class D cargo

compartments, is available for review in the public docket. It

estimates costs of $25 million ($17 million, discounted), in 1995

dollars, over the next ten years to aircraft operators. The potential

safety benefits for the NPRM, i.e., the added assurance that an

accident does not take place as the result of oxidizers enhancing a

cargo compartment fire that would result in the loss of life or

property damage, are estimated to exceed costs if the proposed rule

prevents 9 accidental deaths or approximately 150 injuries over that

ten year period. RSPA anticipates revising the preliminary regulatory

evaluation prior to issuing a supplemental NPRM under Docket HM-224A

and issuing a final regulatory evaluation when a final rule is issued

on the prohibition of oxidizers aboard passenger aircraft.

RSPA does not believe it to be necessary to separate the costs and

benefits in this final rule concerning shipping descriptions and

packagings for chemical oxygen generators from the total costs and

benefits estimated in the preliminary regulatory evaluation. On a

qualitative basis, the rule enhances safety by ensuring that chemical

oxygen generators are properly packaged and identified in

transportation, thus reducing the risks posed by them. Also, the costs

of this rulemaking are minimal: Chemical oxygen generators already are

subject to RSPA approval provisions; minimal added costs will be

incurred by a small number of shippers for changing package markings

and shipping paper descriptions for relatively small numbers of

shipments of oxygen generators.

IV. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866 and was not reviewed by the

Office of Management and Budget. The rule is not considered significant

under the regulatory policies and procedures of the Department of

Transportation (44 FR 11034). The economic impact of this rule is so

minimal that the preparation of a regulatory evaluation is not

warranted.

Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism''). The

Federal hazardous materials transportation law (49 U.S.C. 5101-5127)

contains an express preemption provision that preempts State, local,

and Indian tribe requirements on certain covered subjects. Covered

subjects are:

(i) the designation, description, and classification of hazardous

material;

(ii) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(iii) the preparation, execution, and use of shipping documents

pertaining to hazardous material and requirements respecting the

number, content, and placement of such documents;

(iv) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(v) the design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous material.

This final rule concerns the classification, shipping description

and packaging of chemical oxygen generators. RSPA lacks discretion in

the preemptive nature of this final rule, and preparation of a

federalism assessment is not warranted.

Title 49 U.S.C. 5125(b)(2) provides that DOT must determine and

publish in the Federal Register the effective date of Federal

preemption. That effective date may not be earlier than the 90th day

following the date of issuance of the final rule and not later than two

years after the date of issuance. RSPA has determined that the

effective date of Federal preemption for these requirements will be

September 3, 1997.

Regulatory Flexibility Act

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

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

applies to persons who transport chemical oxygen generators and who

offer these generators for transportation, most of whom are not small

entities.

Paperwork Reduction Act

This final rule does not propose any additional information

collection burdens. Information collection requirements contained in

Special Provision 60 in this final rule are currently approved under

OMB control number 2137-0557 with regard to approvals for new

explosives under 49 CFR 173.56. A reference to Special Provision 60

will be included in the next revision of the OMB approval. Shipping

paper requirements are currently approved under OMB control number

2137-0037. Under the Paperwork Reduction Act of 1995, no person is

required to respond to an information collection unless it displays a

valid OMB control number.

Regulation Identifier Number (RIN)

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. The amendments adopted in this final rule were

originally proposed in the December 30, 1996, NPRM with RIN 2137-AC92.

[[Page 30770]]

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Reporting and recordkeeping requirements.

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labeling,

Marking, Packaging and containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49 CFR Parts 171, and 172 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; 49 CFR 1.53.

2. In Sec. 171.11, paragraph (d)(15) is added to read as follows:

Sec. 171.11 Use of ICAO Technical Instructions.

* * * * *

(d) * * *

(15) An oxygen generator (chemical) must be classed, approved, and

described in accordance with the requirements of this subchapter.

3. In Sec. 171.12, paragraph (b)(18) is added to read as follows:

Sec. 171.12 Import and export shipments.

* * * * *

(b) * * *

(18) An oxygen generator (chemical) must be classed, approved, and

described in accordance with the requirements of this subchapter.

* * * * *

4. In Sec. 171.12a, paragraph (b)(17) is added to read as follows:

Sec. 171.12a Canadian shipments and packagings.

* * * * *

(b) * * *

(17) An oxygen generator (chemical) must be classed, approved, and

described in accordance with the requirements of this subchapter.

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

5. The authority citation for part 172 continues to read as

follows:

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

Sec. 172.101 [Amended]

6. In the Sec. 172.101 Hazardous Materials Table, the following

entry is added in appropriate alphabetical order:

[[Page 30771]]

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(8) Packaging authorizations (Sec. (9) Quantity (10) Vessel stowage

Hazardous 173.***) limitations requirements

materials Hazard Identification Label Special ------------------------------------------------------------------------------------------

Symbols descriptions and class or numbers PG codes provisions Passenger Cargo Other

proper shipping division Exceptions Non-bulk Bulk pack- aircraft or aircraft Vessel stowage

names pack-aging aging railcar only stowage provisions

(1) (2).............. (3) (4)............. (5)......... (6) (7)......... (8A)....... (8B)....... (8C)....... (9A)....... (9B)....... (10A)...... (10B)

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* * * * * * *

Oxygen generator, 5.1 UN3353.......... I........... 5.1 60, A51..... None....... 211........ None....... Forbidden.. 15 kg...... (1)........ 56, 58, 69,

chemical. 106

II.......... 5.1 60, A51..... None....... 212........ None....... Forbidden.. 25 kg...... (1)........ 56, 58, 69,

106

* * * * * * *

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[[Page 30772]]

7. In 172.102, in paragraph (c)(1), Special Provision 60 is added,

and in paragraph (c)(2), Special Provision A51 is added to read as

follows:

Sec. 172.102 Special provisions.

* * * * *

(c) * * *

(1) * * *

* * * * *

60 An oxygen generator, chemical, that is shipped with its means of

initiation attached must incorporate at least two positive means of

preventing unintentional actuation of the generator, and be classed

and approved by the Associate Administrator for Hazardous Materials

Safety. Each person who offers an oxygen generator for

transportation shall: (1) ensure that the shipment conforms to the

conditions of the approval; (2) maintain a copy of the approval at

each facility where an oxygen generator is prepared for

transportation, and (3) mark the approval number on the outside of

the package.

* * * * *

(2) * * *

A51 When transported by cargo-only aircraft, an oxygen generator

must conform to the provisions of an approval issued under Special

Provision 60 and be contained in a packaging prepared and originally

offered for transportation by the approval holder.

* * * * *

Issued in Washington, DC on May 30, 1997, under the authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Deputy Administrator, Research and Special Programs Administration.

[FR Doc. 97-14739 Filed 6-4-97; 8:45 am]

BILLING CODE 4910-60-P