WAIS Document Retrieval[Federal Register: August 19, 1999 (Volume 64, Number 160)]
[Rules and Regulations]               
[Page 45387-45398]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19au99-19]                         


[[Page 45387]]

_______________________________________________________________________

Part V





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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49 CFR Parts 171, 172 and 175



Hazardous Materials: Chemical Oxidizers and Compressed Oxygen Aboard 
Aircraft; Final Rule


[[Page 45388]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 172, and 175

[Docket No. HM-224A]
RIN 2137-AC92

 
Hazardous Materials: Chemical Oxidizers and Compressed Oxygen 
Aboard Aircraft

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: RSPA is amending the Hazardous Materials Regulations to: 
Prohibit the carriage of chemical oxidizers in inaccessible aircraft 
cargo compartments that do not have a fire or smoke detection and fire 
suppression system; require oxygen cylinders to be placed in an outer 
packaging when transported aboard aircraft; limit the number of oxygen 
cylinders that may be stowed on an aircraft in inaccessible cargo 
compartments that do not have a fire or smoke detection system and a 
fire suppression system (e.g., a Class D cargo compartment); limit the 
number of oxygen cylinders that may be stowed in a Class B cargo 
compartment or its equivalent (i.e., an accessible cargo compartment 
equipped with a fire or smoke detection system but not a fire 
suppression system); authorize transportation of a limited number of 
oxygen cylinders in the passenger cabin of passenger-carrying aircraft; 
and prohibit the carriage of personal-use chemical oxygen generators on 
passenger-carrying aircraft and the carriage of spent chemical oxygen 
generators on both passenger-carrying and cargo aircraft.
    This final rule is being issued in consultation with the Federal 
Aviation Administration (FAA) to enhance air transportation safety.

DATES: Effective Date: The effective date of these amendments is March 
1, 2000.
    Permissive Compliance Date: Compliance with the requirements 
adopted herein is authorized as of October 22, 1999.
    Incorporation by Reference Date: The incorporation by reference of 
a publication listed in this final rule is approved by the Director of 
the Federal Register as of March 1, 2000.

FOR FURTHER INFORMATION CONTACT: Diane LaValle or John Gale, Office of 
Hazardous Materials Standards, (202) 366-8553, Research and Special 
Programs Administration, U.S. Department of Transportation, 400 Seventh 
Street S.W., Washington DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 11, 1996, ValuJet Airlines flight No. 596 crashed in the 
Florida Everglades resulting in 110 fatalities. The National 
Transportation Safety Board (NTSB) found that chemical oxygen 
generators initiated and then intensified a fire in a Class D cargo 
compartment, which caused the crash. Shortly after the crash, NTSB 
recommended that RSPA, together with FAA, ``prohibit the transportation 
of oxidizers and oxidizing materials (e.g., nitric acid) in cargo 
compartments that do not have fire or smoke detection systems.''
    In subsequent rulemaking actions, RSPA has prohibited the 
transportation of chemical oxygen generators as cargo on board 
passenger-carrying airlines, and issued standards governing the 
transportation of chemical oxygen generators on cargo-only aircraft. 61 
FR 26418 (May 24, 1996); 61 FR 68952 (Dec. 30, 1996); 62 FR 30767 (June 
5, 1997); 62 FR 34667 (June 27, 1997). On February 17, 1998, FAA 
published a final rule that upgraded the fire safety standards for 
Class D compartments for certain transport-category airplanes. 63 FR 
8033. FAA's rulemaking has a compliance date of March 19, 2001.
    On December 30, 1996, RSPA published a notice of proposed 
rulemaking (NPRM) in the Federal Register (61 FR 68955) proposing to 
amend the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) 
to prohibit the carriage of oxidizers, including compressed oxygen, in 
passenger-carrying aircraft. That proposal also would have had the 
effect of limiting packages of oxidizers that are allowed on cargo 
aircraft to locations accessible to crew members (see 49 CFR 
175.85(b)). In the December 30, 1996 NPRM, RSPA analyzed the possible 
prohibition of oxidizers in Class D cargo compartments only, and 
proposed a new Sec. 175.85(d) to prohibit loading or transporting in a 
Class D compartment any package containing a hazardous material for 
which an OXIDIZER or OXYGEN label is required. On August 20, 1997, RSPA 
published a supplemental notice of proposed rulemaking (SNPRM) (62 FR 
44374) further analyzing the possible prohibition of oxidizers aboard 
passenger-carrying aircraft in Class B and C cargo compartments.
    The classification of cargo compartments aboard transport-category 
aircraft is specified in 14 CFR 25.857 and discussed in RSPA's NPRM and 
SNPRM. In general, a Class B compartment is one which is accessible to 
a crew member with a hand-held fire extinguisher and has an approved 
smoke or fire detection system. Class C and D compartments are not 
accessible during flight and have means to control ventilation and 
exclude hazardous quantities of smoke or flames from the passenger 
compartment and cockpit. A Class C compartment also has an approved 
smoke or fire detection system and a built-in fire suppression system. 
In this final rule, when reference is made to Class B, Class C or Class 
D aircraft cargo compartments, we are also including cargo compartments 
on non-transport category airplanes that have similar characteristics. 
The limitations and prohibitions for Class D compartments also apply to 
non-transport category airplanes that do not have detection and 
suppression equipment, similar to Class D compartments in transport-
category airplanes.
    In the NPRM and SNPRM, RSPA also proposed to completely prohibit 
the transportation of chemical oxygen generators that have been 
discharged (``spent'') and to prohibit the transportation of personal-
use chemical oxygen generators on passenger-carrying aircraft. On 
August 27, 1998, FAA published an NPRM proposing to ban, in certain 
domestic operations, the transportation of devices designed to 
chemically generate oxygen, including devices that have not yet been 
charged for the generation of oxygen. 63 FR 45913. In response to a 
request from nine industry associations, on January 14, 1998, RSPA and 
FAA held a public meeting to more fully explore all the issues relating 
to the proposals in the NPRM and SNPRM.
    The amendments adopted in this final rule respond to the NTSB 
recommendation and are based on the merits of comments and the 
assessment of RSPA and the FAA of the hazards posed by oxidizers. In 
its recommendation, NTSB cited three previous incidents in which 
oxidizers caused fires aboard aircraft. In each of these incidents, 
there were apparent or known serious violations of the HMR. RSPA and 
FAA are not aware of any fire aboard an aircraft having been caused 
directly by transport of oxidizers in conformance with the HMR. 
However, RSPA and FAA agree with the NTSB that, in certain 
circumstances, oxidizers can contribute to the severity of a fire and 
pose an unreasonable risk when transported in an inaccessible cargo 
compartment which does not have a fire or smoke detection system and a 
fire suppression system.

[[Page 45389]]

II. Comments and Regulatory Changes

A. General

    RSPA received more than 55 written comments, and 14 persons made 
oral presentations at the public meeting, in response to the NPRM and 
SNPRM. The commenters included shippers and carriers of oxidizers by 
air, related trade associations, the NTSB, and persons who need 
supplemental oxygen during flight for medical reasons. In general, the 
persons that submitted comments:
    (1) Supported the prohibition of oxidizers, other than oxygen, in 
those cargo compartments that do not have fire or smoke detection and 
fire suppression systems;
    (2) Disagreed with the proposed total prohibition of oxidizers 
carried in cargo compartments aboard passenger-carrying aircraft and in 
inaccessible cargo compartments aboard cargo aircraft, including those 
compartments with detection and suppression systems;
    (3) Disagreed with the proposed prohibition of the carriage of 
compressed oxygen in cargo compartments aboard passenger-carrying 
aircraft; and
    (4) Supported the proposals to prohibit the transportation of spent 
oxygen generators aboard aircraft and to eliminate the exception 
provided in 49 CFR 175.10(a)(24) for personal oxygen generators.

B. Oxidizers

1. Summary of Comments on Chemical Oxidizers
    RSPA proposed to prohibit the transportation of chemical oxidizers 
aboard passenger-carrying aircraft and in inaccessible cargo 
compartments of cargo aircraft. Most of the commenters agreed with the 
proposal to prohibit chemical oxidizers in cargo compartments that are 
not equipped with fire or smoke detection systems and fire suppression 
systems, but disagreed with the proposal to ban oxidizers from cargo 
compartments with fire or smoke detection and fire suppression systems.
    Air Products and Chemicals, Inc. supported the rule as proposed. It 
stated that ``the prohibition of oxidizers and similar materials aboard 
passenger-carrying aircraft is a sensible approach to improving the 
safety of passenger flights.'' NTSB stated that it ``supports 
prohibiting the carriage of oxidizers, including compressed oxygen, in 
Class D compartments because these compartments do not have smoke and 
fire detection systems * * *'' In its comments to the SNPRM, NTSB 
referred to an earlier recommendation that FAA ``consider the effects 
of authorized hazardous materials cargo in fires for all types of cargo 
compartments.'' It urged RSPA and FAA to complete a study of the risks 
associated with the transportation of hazardous materials on aircraft 
and ``to ban any hazardous materials, including oxidizers, that cannot 
be safely transported in aircraft cargo compartments.''
    Several commenters specifically stated that they did not support 
the ban of an entire division of hazardous materials aboard passenger-
carrying aircraft and that a complete ban of oxidizers would increase 
the number of undeclared hazardous materials. The Airline Pilots 
Association (ALPA) stated ``prohibiting the carriage of all oxidizers 
may introduce additional hazards. This may inadvertently force shippers 
into illegally shipping materials as undeclared * * *'' ALPA went on to 
say that ``the complete banning of all oxidizers * * * goes beyond the 
seemingly obvious safety implication and does not appear to be 
reasonable.''
    Many other commenters noted that, to date, incidents involving 
hazardous materials have been due to lack of compliance with the HMR. 
They stated that the better course of action would be to increase 
education and enforcement, rather than ban an entire category of 
hazardous materials. The Conference on Safe Transportation of Hazardous 
Articles stated:

    People who ship undeclared hazardous materials do not read the 
CFRs. You can give all the instructions you like in the regulations, 
and the people who ignored the instructions in the past will ignore 
them in the future. Now, in fact, the prohibition will give them 
greater incentive to embrace ignorance.

The Hazardous Materials Advisory Council (HMAC) stated its belief that:

* * * the rule's provisions will do nothing to address the known 
problem of undeclared or misdeclared shipments of hazardous 
materials and may be counterproductive by increasing such shipments 
by unscrupulous persons. In our opinion this could present a more 
dangerous situation to passengers and airline employees than at 
present.

    Several commenters stated that a ban of certain materials on 
aircraft is no guarantee that those who are unaware of the regulations 
will not continue to ship undeclared hazardous materials. They 
suggested that public education and aggressive enforcement (including 
appropriate penalties for violation of the HMR) would better promote 
safe transportation. Mallinckrodt, a shipper of oxidizers, stated, ``We 
ship oxidizers, paying particular attention to complying with these 
methods and have had no incidents of which we are aware. We do not feel 
that we should be penalized for incidents as outlined in the Docket, 
which were clear violations of the law.''
    Hach Company manufactures and distributes several hundred products 
that are or contain oxidizing materials, including laboratory 
instruments, process analyzers, test kits and analytical reagents some 
of which are used to analyze the quality and safety of water. It ships 
the majority of its international orders by air, primarily on 
passenger-carrying aircraft. Hach stated that it would prefer to ship 
by cargo aircraft but that cargo aircraft are not available to a large 
percentage of the end-user locations. It also stated that ocean 
transportation is not a viable alternative because of location, time 
and cost constraints. Hach stated that the proposed rule, if 
promulgated could put it at a significant commercial disadvantage with 
its foreign competitors. Hach supported a prohibition on transportation 
of oxidizers in Class D cargo compartments, but opposed a prohibition 
that would apply to other cargo compartments.
    The International Air Transport Association (IATA) stated that 
cargo aircraft are not a substitute for passenger-carrying aircraft 
because cargo operations serve only a fraction of airports, 
international and domestic, and do not have the frequency of service 
required by shippers. IATA stated ``Typically, a dangerous goods 
shipment by air is time critical and the facility provided by passenger 
aircraft service is essential to shipper's requirements.'' Another 
commenter stated that the safety need for the proposed general 
prohibition on the transport of all oxidizers aboard passenger-carrying 
aircraft has not been technically or rationally proven by FAA and RSPA.
    Some commenters expressed concern that RSPA and FAA would ban all 
materials within Division 5.1 from passenger-carrying aircraft without 
regard to the lesser hazards posed by materials in lower packing 
groups, or shipped in limited quantities. ATA stated that the proposed 
rules:

* * * offer no analysis or rationale to explain how a properly 
packaged, low-oxidizing potential material would pose such risks. In 
this regard, the transport, for example, of properly packaged and 
identified low-oxidizing potential (i.e., Packing Group III) solid 
oxidizers, is not considered to pose a significant risk to safety in 
air transport. Such a material would be incapable of spontaneously 
initiating a fire (even when in contact with organic material) under 
conditions normally incident to transport.

    ATA also stated that ``normal'' oxidizers can only reasonably be

[[Page 45390]]

envisioned contributing to a fire originating in adjacent cargo when 
the fire has progressed to the extent that a packaging containing 
``normal'' oxidizers has been substantially degraded. In such a case, 
ATA stated the fire may be uncontrollable in any event or the 
contribution to the intensity of the fire of a low-oxidizing potential 
solid oxidizer may be insignificant. ALPA suggested that RSPA further 
examine those oxidizing substances presently authorized by the HMR to 
be carried aboard passenger-carrying aircraft which pose the greatest 
potential risk to safety and those oxidizers that have caused problems 
when transported by air. ALPA suggested that, following this re-
examination, RSPA should determine whether changes to the current HMR 
might be necessary concerning these materials, such as decreasing net 
quantity limitations, increasing the packaging requirements, or 
prohibiting their carriage by aircraft.
2. Summary of Comments on Compressed Oxygen
    RSPA proposed to prohibit the transportation of compressed oxygen 
as cargo aboard passenger-carrying aircraft, and in inaccessible 
locations aboard cargo aircraft. RSPA also proposed, based on the 
provision of an existing exemption, to allow a limited number of 
airline-owned and passenger-owned oxygen cylinders to be stowed in the 
cabin of a passenger-carrying aircraft when placed in an overpack. RSPA 
also proposed to require that the overpack be labeled CARGO AIRCRAFT 
ONLY but marked with the statement ``Passenger cabin acceptable per 49 
CFR 175.10.''
    As already mentioned NTSB supported the proposal to prohibit the 
carriage of compressed oxygen in Class D compartments. Air Products and 
Chemicals, Inc. also supported the proposal and stated, ``the result of 
the proposal should improve overall aircraft safety, but, there should 
also be an effort to improve enforcement of all rules pertaining to 
hazardous and forbidden materials in airplanes.''
    The majority of the commenters opposed the proposal. Most 
commenters stated that transporting oxygen cylinders in the cargo hold 
does not present a significant risk. For example, the Regional Airline 
Association (RAA) stated ``RSPA has failed to show that the 
transportation of pressurized oxygen is sufficiently hazardous to deny 
shipment within Class C and Class D compartments.'' RAA went on to say 
that airlines that operate in remote locations where ground 
transportation is not available, such as Alaska, will have to either 
withdraw from operations or fly to their destination knowing that their 
destination is not equipped to return them to service if they deplete 
an oxygen bottle during the flight.
    The Alaska Air Carriers Association (AACA) and Peninsula Airways 
also opposed the proposed rule, particularly regarding oxygen, due to 
the adverse consequence on transportation in and through Alaska. 
Peninsula Airways stated ``implementation of the NPRM's provisions that 
affect this issue will make it virtually impossible to legally provide 
medical oxygen for passengers/patients in remote areas of Alaska.'' 
Peninsula Airways and AACA both pointed out that Section 1205 of Public 
Law 104-264, Regulations Affecting Intrastate Aviation in Alaska, give 
FAA the authority to consider Alaska's unique transportation 
circumstances when conducting rulemaking. Peninsula Airways stated that 
``this is clearly a situation where RSPA must reconsider the NPRM's 
impact on Alaska and modify the proposed rule * * * to make it 
workable, safe to use and safe to transport medical oxygen cylinders in 
Alaska.''
    Commenters also contended that prohibiting transportation of 
compressed oxygen on board passenger-carrying aircraft would have 
significant cost impacts on the airline industry and severely hamper 
the ability of disabled persons to travel by the air mode. ATA stated 
that a fire capable of generating enough heat to potentially affect an 
oxygen cylinder would cause severe structural damage to the aircraft 
before the cylinder would ever be dangerously involved.
    Caledonia Airways disagreed with the proposed exception for 
transporting compressed oxygen in the passenger cabin. It stated that 
such transportation is contrary to any training that airline personnel 
have received and also conflicts with the International Civil Aviation 
Organization's (ICAO) Technical Instructions for the Safe 
Transportation of Dangerous Goods. Other commenters noted that adoption 
of the proposed ban on compressed oxygen, in conjunction with the 
general ban on carriage of dangerous goods in the passenger cabin set 
forth in the ICAO Technical Instructions, could effectively prohibit 
any transportation of oxygen cylinders as COMAT (airline company 
material) on international flights. Commenters also stated that 
limiting a carrier to six COMAT cylinders per flight would 
unnecessarily restrict its ability to pre-position cylinders and to 
transport cylinders to locations where they are needed to replace used 
cylinders.
    RAA stated that the proposed exception for oxygen cylinders in the 
cabin is a suitable alternative for transportation of medical oxygen 
cylinders, but it does not address the needs of regional operators to 
ship spare oxygen cylinders used in support of aircraft pressurized 
oxygen systems. ALPA stated that many airplanes do not have available 
storage locations of adequate size and strength to hold oxygen 
cylinders contained within their strong outer packagings. ALPA went on 
to say that for such aircraft, creation of such areas or compartments 
would require significant investment in engineering development and 
aircraft retrofitting. Qantas Airlines pointed out that an oxygen 
cylinder is often an unwieldy and heavy piece of equipment which 
represents a serious hazard to passengers in the cabin not only in 
regular handling, but especially during turbulence and other in-flight 
emergencies.
    ALPA specifically disagreed with the statement in the NPRM that it 
would be safer to carry personal medical oxygen cylinders in the 
passenger cabin because the crew could quickly remove the cylinders 
from any fire area of the cabin. It stated that the aircraft crew 
should not be considered a fire suppression resource. In its view, a 
member of flight deck crew on a two-person crew would not leave his or 
her station and enter a compartment that is on fire to attempt to fight 
the fire, nor move a package containing an oxidizer away from the fire.
    Many commenters noted that there has not been any incident 
involving the transport of compressed oxygen in cylinders designed for 
and used aboard aircraft in any compartment, including an inaccessible 
cargo compartment. IATA pointed out that there is no record of any 
lives having been lost due to properly packaged oxidizers, including 
oxygen, in the 76 years of commercial aviation history and, in 
particular, since the implementation of the first air-mode Dangerous 
Goods Code in 1956. ATA stated that the industry system of COMAT 
distribution of oxygen cylinders has been safely in place since 
supplemental oxygen was needed on commercial aircraft between 1946-1948 
when the Lockheed Constellation, Douglas DC-6 and Convair aircraft 
entered service. Air New Zealand, pointing out that there are large 
quantities of oxygen stored in cylinders behind the sidewalls of cargo 
compartments, stated that the only protection these cylinders have from 
a cargo compartment fire is the compartment wall lining which meets the 
flame penetration requirements of

[[Page 45391]]

14 CFR 25.855. Air New Zealand went on to say that ``it would be 
logical to ship cylinders in the cargo compartment in overpacks meeting 
the same flame penetration standards.''
    Most of the comments opposing the proposals related to the 
transportation of compressed oxygen aboard passenger-carrying aircraft 
were from airlines who need to resupply (or deploy) charged oxygen 
cylinders for compliance with FAA airworthiness requirements and for 
use by passengers who require supplemental oxygen during flight. 
Several airlines stated that they store the oxygen cylinders at their 
hub facilities where they can safeguard their storage and maintenance 
and then deploy them as needed aboard their aircraft to other operating 
locations. ALPA pointed out that without the required oxygen for crew 
and passengers, an aircraft is not considered airworthy and is not 
authorized to be flown. It stated that one way to restore the aircraft 
to a flyable status is to remove and replace oxygen cylinders, and the 
potential for an aircraft being grounded at a non-maintenance station 
is great if these fully charged cylinders may not be moved by an 
airline around its system.
    Carnival Air Lines stated that it would be forced to rely on other 
carriers to resupply its cylinders and position its maintenance and 
replacement parts. Carnival also stated that this forced reliance upon 
other carriers would inevitably lead to at least occasional 
cancellations or lengthy flight delays resulting from an aircraft being 
forced out of service awaiting required oxygen. It stated that the 
costs associated with these delays would be ``very substantial.''
    Several airline commenters stated that if the amendments were 
adopted as proposed they will be unable to provide the current level of 
service without incurring significant costs. For example, Continental 
Airlines stated that it transports approximately 300 oxygen cylinders 
per month and if the proposal is adopted it would not be able to 
effectively and efficiently distribute medical oxygen to the places 
where and when it is needed in order to accommodate passenger needs.
    Numerous commenters were concerned about the proposed placement of 
the Cargo Aircraft Only (CAO) (49 CFR 172.448) label on cylinders of 
oxygen that would be transported in the cabin of a passenger-carrying 
aircraft. Some stated that adoption of this proposal would cause 
unacceptable confusion and would be detrimental to safety. Others 
stated that allowing one material labeled CAO to be loaded in a 
passenger-carrying aircraft would dilute the meaning of the label and 
cause confusion. ALPA stated that placing packages of hazardous 
materials that are labeled CAO in passenger-carrying aircraft is 
``totally unacceptable and will not be tolerated.'' ALPA also stated 
that if a label must be used, then development of a separate 
``accessible while inflight'' label may be warranted. ATA stated that 
``misuse'' of the hazard communication system would cause confusion 
about the true meaning of the Cargo Aircraft Only label, which may well 
increase the potential for a serious incident involving a passenger-
carrying aircraft.
    The National Association for Medical Direction of Respiratory Care 
(NAMDRC) and the American Lung Association (ALA) supported the proposal 
to allow the carriage of passenger-owned cylinders of compressed oxygen 
in the cabin of the aircraft. NAMDRC and ALA also stated that this 
exception would provide patients timely access to their personal oxygen 
containers upon landing at a layover site or at their final 
destination. These commenters, however, were under the mistaken 
impression that this exception would allow passengers to transport 
their cylinders in the aircraft by relinquishing the cylinders to the 
flight crew. These commenters also asked: (1) Will the airlines have an 
option or will they be required to transport the oxygen cylinders? (2) 
Will the airlines be able to charge for the service? (3) What 
documentation or security measures will be required for transport of 
the oxygen cylinders? and (4) What types of oxygen cylinders will be 
allowed to be stowed in the cabin and what type of testing will be 
required before a cylinder is allowed on the aircraft?
3. RSPA Response to Comments
    i. Chemical Oxidizers. Oxidizers currently authorized for carriage 
aboard passenger aircraft in inaccessible cargo compartments will not 
spontaneously initiate a fire. The potential hazard posed by these 
oxidizers is that, if a fire were to occur elsewhere in the 
compartment, such as in luggage or other cargo, and if there were no 
means to suppress or extinguish the fire, the fire might burn long 
enough to involve the oxidizer. The oxidizer, even in Packing Group 
III, could potentially provide an oxygen source which could intensify 
the fire to an extent that the limited safety features of the 
compartment would be ineffective. For these reasons, and based on its 
review of comments received to the NPRM, SNPRM and at the public 
hearing, RSPA believes that there is a need to prohibit the 
transportation of chemical oxidizers (i.e., oxidizers other than 
compressed oxygen) in inaccessible cargo compartments that do not have 
fire or smoke detection and fire suppression systems. Therefore, 
consistent with the NTSB recommendation, RSPA is prohibiting the 
transportation of chemical oxidizers in inaccessible cargo compartments 
that do not have fire or smoke detection and fire suppression systems.
    Based on evaluation of comments and the hazards posed by chemical 
oxidizers, RSPA does not believe that chemical oxidizers should be 
completely forbidden aboard passenger-carrying aircraft. RSPA is 
confident that chemical oxidizers can be safely transported in Class B, 
and Class C compartments when transported in accordance with the HMR. 
RSPA is also confident that the safety features of a Class B 
compartment (i.e., an accessible compartment with fire or smoke 
detection equipment) and those of a Class C compartment (i.e., an 
inaccessible cargo compartment that has both a fire or smoke detection 
system and a fire suppression system) counter the risk posed to an 
aircraft from the carriage of chemical oxidizers that are transported 
in accordance with the HMR. Therefore, RSPA is not adopting the 
proposal to prohibit the carriage of chemical oxidizers aboard 
passenger-carrying aircraft in Class B or Class C aircraft cargo 
compartments.
    ii. Compressed Oxygen. The potential hazard posed by compressed 
oxygen is that it will intensify a fire. Thus, if a fire, from any 
source, were to occur in an aircraft cargo compartment containing an 
oxygen cylinder, the fire might burn long enough to heat the cylinder 
sufficiently to cause the pressure relief mechanism on the cylinder to 
open. The released oxygen could then intensify the fire to an extent 
that the safety features of the compartment would be ineffective, 
potentially resulting in the loss of the aircraft.
    Under the HMR, compressed oxygen must be packaged in a DOT 
specification cylinder, constructed of steel or aluminum. The cylinder 
is required to incorporate a pressure relief device that will release 
its contents if the internal pressure in the cylinder approaches the 
test pressure of the cylinder. If the cylinder incorporates a valve, 
sufficient protection must be provided to prevent operation of, and 
damage to the valve during transportation, such as by boxing or crating 
the cylinder or by equipping it with protective caps or head rings (see 
49 CFR 173.27(g)). Some types of

[[Page 45392]]

cylinders may only be shipped in strong outside packagings, regardless 
of whether or not the cylinder incorporates a valve (see 49 CFR 
173.301(k)). An overpack or outer packaging commonly used by the 
airlines to transport their oxygen cylinders is the ATA Specification 
No. 300, Packaging of Airline Supplies, Category I. An ATA 
Specification No. 300 Category I (ATA 300) overpack or outer packaging 
is a resilient, durable overpack intended to be reused for a minimum of 
100 round trips which meets specified performance standards, as 
demonstrated by design tests (e.g., drop test and puncture resistance). 
The overpack or outer packaging must also provide protection from shock 
and vibration.
    Numerous commenters pointed out the long safety record that oxygen 
cylinders have had in commercial aviation and expressed the view that 
RSPA and FAA had no basis for proposing to prohibit the transportation 
of oxygen cylinders aboard passenger-carrying aircraft. Commenters 
requested that RSPA and FAA reevaluate the proposal regarding oxygen 
cylinders. After the ValuJet accident, RSPA and FAA began evaluating 
the risks associated with the transport of hazardous materials by 
aircraft. This rule reflects the agency's decisions regarding oxidizers 
and compressed oxygen cylinders and is based on written comments, 
information from the public hearing and FAA testing.
    At the public hearing, the FAA asked whether any of the attendees 
were aware of any testing results that would support assertions by some 
commenters that a fire capable of generating enough heat to potentially 
affect an oxygen cylinder would cause severe structural damage to the 
aircraft before the cylinder would ever be dangerously involved. No one 
cited any tests. In an effort to establish whether these assertions 
were valid, the FAA conducted oven, fire, and overpack tests on 
compressed oxygen cylinders. These tests were conducted at the FAA 
Technical Center. A copy of the test report is available for review in 
the public docket. As discussed below, the FAA found that oxygen 
cylinders release their contents at temperatures well-below those that 
would be needed to damage aircraft cargo compartment liners and 
structures. However, an outer packaging or overpack will lengthen the 
time for a cylinder to release its contents at these temperatures.
Oven Test
    The purpose of the first test series was to determine the 
approximate time and rate of release when an unprotected cylinder is 
exposed to high temperatures, as might be experienced in a cargo 
compartment fire. For this test, cylinders normally used for compressed 
oxygen were filled with nitrogen to 1,800 p.s.i. This test was 
performed on three cylinders of different capacity (i.e., 11, 76.5 and 
115 cubic foot capacity). Each cylinder was placed in an industrial-
type electric conduction oven and the temperature of the oven was 
increased to 400 deg.F. On average, the cylinders released their 
contents within 14 minutes, when the temperature inside the oven was 
approximately 370 deg.F. The average external temperature of the 
cylinder at the time of release was 300 deg.F.
Fire Tests
    During the second test series, FAA attempted to determine the 
effect of releasing oxygen during a fire. For this test, an empty 
cylinder was placed in a steel frame receptacle constructed in the 
shape of a LD-3 container which is typically used in the lower deck of 
a wide-body aircraft. Cardboard boxes filled with shredded paper were 
loaded into the LD-3 container and a small fire initiated. When the 
temperature of the cylinder reached the temperature obtained during the 
first (oven) test, the oxygen was vented into the container through 
piping. This test was performed three times using the contents of an 11 
cubic foot cylinder and once using about 22 cubic feet of oxygen. The 
first time a slight increase in temperature in the LD-3 container was 
observed, but the oxygen release had little overall impact on the fire. 
The second time the smoldering fire erupted violently with visible 
flames appearing at one edge of the container. Although violent, the 
eruption was short in duration and the fire was contained. The third 
time the release of oxygen again caused a violent reaction inside the 
container, which produced enough pressure to force open taped seams on 
the container. However, it was again very short in duration much like 
the previous test. The fourth time, the temperature in the LD-3 
container increased dramatically immediately following the oxygen 
release and the fire completely burned through the ceiling and part of 
the front side of the container, totally destroying it.
Overpack Tests
    During the third test series the level of thermal protection 
provided by a variety of overpack or outer packagings was examined. 
First, currently available overpack or outer packagings meeting ATA 
300, Category I and containing a 76.5 cubic foot cylinder filled with 
nitrogen were placed in an oven and the temperature was increased to 
400  deg.F. This test was repeated numerous times. The first time, 
after sixty minutes, the cylinder's surface temperature ranged from 230 
 deg.F to 280  deg.F, below the temperature at which the pressure 
relief mechanism usually actuates to relieve the pressure within the 
cylinder. The test was terminated after 69 minutes with the maximum 
surface temperature of the cylinder reaching 300  deg.F. The second 
time, after 60 minutes the surface temperature of the cylinder reached 
300  deg.F (the temperature at which the pressure relief mechanism 
usually actuates). The third time the surface temperature of the 
cylinder reached 300  deg.F after 90 minutes, at which time the test 
was terminated.
    Then, in an effort to evaluate the increase in thermal protection 
offered by a modified overpack case, additional tests were performed on 
overpacks specifically designed for this purpose and having an exterior 
made of a flame retardant thermoplastic known as Kydex. In addition, a 
one inch thick fiberglass insulation was sandwiched between the 
exterior layer of Kydex and an inner layer of foamed plastic. The test 
was allowed to progress for approximately 60 minutes without the 
cylinder surface temperature exceeding 100  deg.F.
    As demonstrated by these tests, when the surface temperature of a 
cylinder of compressed oxygen reaches approximately 300  deg.F, the 
increase in pressure causes the cylinder's pressure relief mechanism to 
open and release oxygen. If oxygen vents directly into the fire it 
could cause a potentially catastrophic event. However, these tests also 
show that an outer packaging that provides greater flame penetration 
resistance and thermal protection can increase the level of safety in 
the transportation of compressed oxygen aboard aircraft. Some thermal 
protection, up to 60 minutes or more, is provided by overpacks or outer 
packagings meeting the ATA 300 specification. Even more protection 
would be provided by an improved overpack that provides thermal 
protection and satisfies flame protection criteria.
    The tests performed by FAA demonstrate that there is an increased 
risk posed by the presence of compressed oxygen in the event of a fire 
in a cargo compartment. This risk is due to the fact that, if the 
temperature of an oxygen cylinder reaches approximately 300  deg.F, the 
cylinder will vent oxygen into the cargo compartment and intensify the 
fire. Consequently, action can and should be taken to reduce or 
eliminate this risk. At this time, RSPA

[[Page 45393]]

does not believe that a complete prohibition on the transportation of 
oxygen cylinders aboard passenger-carrying aircraft will be necessary. 
Thus, RSPA is permitting oxygen cylinders to be loaded into and 
transported on passenger-carrying aircraft and in inaccessible 
locations on cargo-only aircraft subject to restrictions. Furthermore, 
RSPA and FAA are developing additional standards for protection of 
oxygen cylinders to be proposed in a separate future rulemaking. RSPA 
is not adopting the proposal to require the ``Cargo Aircraft Only'' 
label on cylinders of compressed oxygen because it is continuing to 
allow compressed oxygen to be carried in cargo compartments of 
passenger aircraft.
    Based on the merits of comments, past shipping experience, FAA 
testing and its own evaluation, in this final rule, RSPA is amending 
requirements for the packaging, stowage and transport of oxygen 
cylinders on aircraft, summarized as follows:
    <bullet> For transportation aboard a passenger-carrying aircraft or 
in an inaccessible cargo location on a cargo-only aircraft, each 
cylinder must be placed in an overpack or an outer packaging that 
satisfies the performance criteria in ATA Specification 300.
    <bullet> Each cylinder must be stowed horizontally on or as close 
as practicable to the floor of the cargo compartment or unit load 
device.
    <bullet> No more than a total of six cylinders may be stowed on an 
aircraft in inaccessible cargo compartments that do not have a fire or 
smoke detection system and a fire suppression system (e.g., a Class D 
cargo compartment).
    <bullet> No more than six cylinders may be stowed in a Class B 
cargo compartment or its equivalent (i.e., an accessible cargo 
compartment equipped with a fire or smoke detection system but not a 
fire suppression system), except that one additional cylinder 
containing medical-use oxygen may be carried per passenger needing the 
oxygen at destination.
    <bullet> A limited number of oxygen cylinders, each with a capacity 
no greater than 850 liters (30 cubic feet), may be carried in the 
passenger cabin of a passenger-carrying aircraft. This authorization is 
limited to no more than six airline-owned cylinders and one additional 
cylinder containing medical-use oxygen per passenger needing the oxygen 
at destination.
    For transportation aboard a passenger-carrying aircraft or in an 
inaccessible cargo location on a cargo-only aircraft, RSPA is requiring 
that each cylinder of compressed oxygen be placed in an overpack or 
outer packaging meeting the performance criteria in ATA Specification 
300. (See Special Provision A52 in the amendment to Section 172.102 of 
this final rule.) RSPA believes requiring cylinders of compressed 
oxygen to be placed in these overpacks or outer packagings provides an 
incremental level of safety in the interim until new overpack standards 
are developed and are in production.
    Based on the FAA testing, RSPA believes that any increase in risk 
posed by the presence of a compressed oxygen cylinder in a cargo 
compartment can be significantly reduced, or even eliminated, if the 
oxygen cylinder is placed in an outer packaging or overpack that 
provides more thermal protection and flame resistence than the ATA 300 
overpacks currently in use. To this end, RSPA is developing proposed 
enhanced standards for outer packagings or overpacks to further protect 
cylinders from heat and fire. RSPA anticipates publishing an NPRM later 
this year to invite comments on enhanced standards for these outer 
packagings or overpacks, including a proposed date for their 
implementation. At present, RSPA is considering a requirement that an 
oxygen cylinder may be carried in an inaccessible cargo compartment on 
an aircraft only when the cylinder is placed in an outer packaging or 
overpack meeting certain flame penetration resistance, thermal 
protection, and integrity standards. The flame penetration standards 
would likely be similar to those specified for Class C cargo 
compartment liners in 14 CFR part 25, appendix F, part III.
    If RSPA adopts enhanced standards for outer packagings or 
overpacks, we would require use of an enhanced outer packaging or 
overpack as soon as practicable. On the other hand, if RSPA ultimately 
concludes that enhanced standards will not provide significantly more 
thermal protection and heat penetration resistence than the ATA 300 
overpacks currently in use, RSPA may prohibit the carriage of oxygen 
cylinders in inaccessible cargo compartments that do not have 
appropriate fire or smoke detection systems and fire suppression 
systems.
    RSPA is also adopting stowage requirements and numerical 
limitations with regard to oxygen cylinders in aircraft cargo 
compartments--rather than completely prohibiting the transportation of 
oxygen cylinders in cargo compartments of passenger aircraft and in 
inaccessible cargo compartments on all-cargo aircraft. The temperatures 
of a fire in a cargo compartment are, for the most part, much higher at 
the top of the compartment than at the bottom. RSPA believes that 
stowing the cylinders horizontally on the floor of the compartment may 
decrease the likelihood that a cylinder exposed to a cargo compartment 
fire will vent. Therefore, RSPA is requiring that cylinders of 
compressed oxygen be placed horizontally on or as close as practicable 
to the floor of the cargo compartment or unit load device. RSPA also 
believes that only a limited number of cylinders should be transported 
in Class B and D cargo compartments in order to decrease the aggregate 
risk to the aircraft. Therefore, RSPA is limiting to six the number of 
cylinders that can be stowed in an aircraft in Class B compartments 
(accessible, no fire suppression systems) and Class D compartments (no 
fire or smoke detection or fire suppression systems). RSPA believes 
that the concerns expressed by foreign aircraft operators and aircraft 
operators in remote locations (e.g., Alaska) are addressed by 
continuing to allow oxygen cylinders to be transported aboard 
passenger-carrying aircraft.
    As proposed in the SNPRM, this final rule will allow for the 
carriage of a limited number of oxygen cylinders, as cargo, in the 
passenger cabin of an aircraft, under certain conditions. This 
authorization is limited to no more than six airline-owned cylinders 
and one additional cylinder containing medical-use oxygen per passenger 
needing the oxygen at destination. However, consistent with the 
exemption on which the proposal was based (see SNPRM; 62 FR 44377), 
RSPA is limiting this allowance to small ``medical-use'' oxygen 
cylinders with capacities no greater than 850 liters (30 cubic feet). 
Consistent with the outer packaging requirements for other cargo 
compartments, RSPA is requiring that these cylinders be placed in an 
overpack or outer packaging that meets the requirements of ATA 300. 
This exception is provided to ensure that cylinders of medical oxygen 
owned by an airline or a passenger--requiring oxygen at destination--
can continue to be transported aboard passenger-carrying aircraft.
    The exception does not eliminate or waive any of the current 
packaging, maintenance, or use requirements of the HMR related to 
cylinders of compressed oxygen, or any of the FAA or airline security 
requirements. If an airline elects to accept for transportation 
passenger-owned oxygen cylinders in accordance with 175.10(b), the 
passenger will have to offer the cylinder to the airline in accordance 
with the

[[Page 45394]]

established procedures of the airline. These procedures may require 
passengers to tender their cylinders at airline cargo facilities or at 
passenger check-in counters. In addition, the passengers will not have 
access to their cylinders until they are returned to them by the 
airlines. Again, these procedures will be established by the airlines. 
RSPA notes that none of DOT's requirements require airlines to accept 
passengers' cylinders of compressed oxygen, nor do they require or 
preclude airlines from charging fees for this service. In addition, 
RSPA also notes that nothing in this rulemaking mandates that an 
airline supply the ATA 300 overpack. If an airline elects not to supply 
the ATA 300 overpack or outer packaging, its passengers will be 
responsible for obtaining the overpack or outer packaging.
    New paragraph Sec. 175.10(b) allows six oxygen cylinders owned or 
leased by the aircraft operator or a passenger to be transported as 
cargo in the cabin of the aircraft. These oxygen cylinders are 
hazardous materials, subject to all applicable HMR requirements. See 
the RSPA's ``Advisory Notice: Transportation of Air Carrier Company 
Materials (COMAT) by Aircraft,'' 61 FR 65479 (December 13, 1996). Air 
carriers who do not elect to accept or transport hazardous materials 
(and have not developed the manuals and trained their employees as 
required by 14 CFR) must offer their company-owned oxygen cylinders to 
a carrier of another mode (e.g., highway) or to another air carrier 
that has an established program for transportation of hazardous 
materials.

C. Spent Chemical Oxygen Generators

    In the SNPRM, RSPA proposed to prohibit the transportation of spent 
chemical oxygen generators (i.e., generators in which the means of 
initiation and the chemical core have been expended) and to regulate 
them as Class 9 materials when transported by other means of 
transportation. All commenters supported this proposal. The NTSB stated 
that ``it is difficult to determine whether all of the oxidizing 
material in a spent generator has been depleted, since a generator is a 
closed container, and both the oxidizer within the generator before the 
reaction and the materials remaining in the generator after the 
reaction are solids with similar weights.''
    RSPA believes that lessening the possibility that this type of 
human error may occur outweighs any interest in, or need for, 
transporting spent chemical oxygen generators by aircraft. Accordingly, 
RSPA is prohibiting the transportation by aircraft of spent chemical 
oxygen generators and to regulate them as Class 9 materials when 
transported by other than aircraft.
    Based on the foregoing, RSPA is adding to the Hazardous Materials 
Table (HMT) the new shipping description, ``Oxygen generator, chemical, 
spent, 9, NA3356, III.'' The entry is preceded by a plus sign (``+'') 
in Column 1 to fix the proper shipping name, hazard class and packing 
group for the entry without regard to whether the material meets the 
definition of a Class 9 hazardous material. Special provision 61 is 
added in Column 7 to specify the conditions under which an oxygen 
generator is considered ``spent.'' In addition, ``None'' is added to 
Column 8A of the HMT because RSPA believes that spent oxygen generators 
should not be eligible for limited quantity exceptions or to be 
reclassified as a consumer commodity. RSPA is also amending 
Secs. 171.11, 171.12 and 171.12a, consistent with the proposals, to 
indicate that there are no exceptions from HMR requirements for 
classification, description, and packaging of spent chemical oxygen 
generators when shipping to, from or within the U.S. under the 
provisions of international or Canadian regulations.

D. Personal Oxygen Generators

    RSPA proposed to eliminate the exception in 49 CFR 175.10(a)(24) 
that allows the transportation of small personal oxygen generators in 
checked baggage. There was no opposition and a number of commenters, 
including the NTSB, expressed support for this proposal. The NTSB 
stated that this exception currently permits the placement of oxidizers 
in cargo compartments that do not have fire or smoke detection systems 
and that are designed to suppress a fire by limiting the oxygen 
available to support combustion and, therefore, it supports the 
proposal.
    As proposed in the December 30, 1996 NPRM, RSPA is removing the 
exception provided in Sec. 175.10(a)(24) for small personal chemical 
oxygen generators in checked baggage.

E. Other Materials

    The NPRM and the SNPRM proposed to prohibit the transportation of 
packages required to be labeled OXIDIZER or OXYGEN on passenger 
aircraft and in inaccessible cargo compartments aboard cargo aircraft. 
Therefore, the proposed prohibition did not apply to an oxidizer 
classed as a consumer commodity, ORM-D, under the provisions of 49 CFR 
173.152. The ICAO Technical Instructions do not allow Division 5.1 
materials (oxidizers) to be reclassified as a consumer commodity. RSPA 
specifically requested comments regarding whether it would be 
appropriate to extend the prohibition to consumer commodities that are 
oxidizers or whether quantity limits should be imposed on these 
materials in 49 CFR 175.75.
    In its comments, NTSB stated that it was concerned that the 
proposals did not include a prohibition on those oxidizers that are 
shipped as consumer commodities. It also stated that the exception in 
49 CFR 173.152 allows the placement of oxidizers in cargo compartments 
that do not have fire or smoke detection/suppression systems and, 
therefore, urged that the consumer commodity exception for oxidizers be 
eliminated. NTSB also requested that RSPA include organic peroxides in 
its study of the effects of hazardous materials in cargo compartments 
fires and to ban them from transportation by air if they cannot be 
transported safely.
    Other commenters stated that they opposed extending the prohibition 
to consumer commodity oxidizers. These commenters stated that these 
materials are adequately regulated under ICAO and 49 CFR 173.152. HMAC 
stated that penalizing those who comply with the regulations does not 
address the issues of untrained and undertrained personnel and 
undeclared and misdeclared hazardous materials nor does it improve 
safety for the general public. HMAC urged RSPA to focus on aggressively 
enforcing current regulations, educating the regulated community, and 
taking appropriate penalty actions against those that do not comply.
    RSPA believes that those oxidizers authorized to be reclassed as 
ORM-D (i.e., consumer commodities) are of a form and quantity that 
would not pose an unacceptable risk to the safety of an aircraft, even 
in cargo compartments that lack a fire and smoke detection system. 
Therefore, RSPA is not prohibiting oxidizers that have been reclassed 
as an ORM-D from being transported in Class D cargo compartments. RSPA 
also believes that NTSB's request to include organic peroxides in the 
prohibition is outside the scope of this rulemaking and, therefore, has 
not been adopted. However, as noted in the December 30, 1996 NPRM, RSPA 
has initiated a study to assess the risks associated with the 
transportation of hazardous materials in aircraft cargo compartments 
that may result in RSPA publishing another rulemaking to ban additional 
hazardous materials. As part of that study, RSPA is reviewing the 
hazards posed by materials similar to oxidizers, such as organic 
peroxides.

[[Page 45395]]

IV. Regulatory 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 was reviewed by the Office of 
Management and Budget. The rule is considered significant under the 
regulatory policies and procedures of the Department of Transportation 
(44 FR 11034). A regulatory evaluation is available for review in the 
public docket.

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:
    (A) The designation, description, and classification of hazardous 
material;
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (C) The preparation, execution, and use of shipping documents 
pertaining to hazardous material and requirements respecting the 
number, content, and placement of such documents;
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (E) 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.
    Because RSPA lacks discretion in this area, 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. This rule requires oxidizers to be 
transported in certain types of cargo compartments aboard aircraft and 
specifies overpacking requirements for cylinder of compressed oxygen. 
RSPA determined that the effective date of Federal preemption for the 
requirements in this rule concerning covered subjects is March 1, 2000.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (the Act) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statues, to 
fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the Act requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rational for their actions. The Act covers a wide-range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis (RFA) as 
described in the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the Act provides that the 
head of the agency may so certify and an RFA is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    This rule will prohibit the carriage of oxidizers onboard aircraft 
in inaccessible cargo compartments that do not have a fire or smoke 
detection system and a fire suppression system. This rule will affect 
persons who ship oxidizers by air and the airline operators that 
transport oxidizers as cargo. However, it is assumed that shippers will 
not have to pay more to ship oxidizers by alternative means: on all-
cargo aircraft that have accessible cargo compartments or cargo 
compartments with a fire or smoke detection system and a fire 
suppression system, on passenger-carrying aircraft that have cargo 
compartments with a fire or smoke detection system and a fire 
suppression system, or by other modes of transportation. It is also 
assumed that there will be no loss of revenue for all-cargo operators 
because they can transport oxidizers in class E cargo compartments or 
(if the aircraft is so equipped) in class C cargo compartments.
    Accordingly, this rule will only reduce the freight revenues of an 
operator of passenger-carrying aircraft that also carry oxidizers as 
cargo in compartments that do not have a fire or smoke detection system 
and a fire suppression system. The effect of this rule on an operator 
certificated under 14 CFR part 121 will only last until March 19, 2001, 
because the class D compartments on their aircraft (i.e., those 
compartments without a fire or smoke detection system and a fire 
suppression system) must meet the standards for a class C or class E 
compartment by that date.
    In the SNPRM, RSPA evaluated the effect of its proposed rule on 
part 121 operators under FAA Order 2100.A and stated that it lacked 
sufficient data to determine the proposed rule's economic impact on 
entities other than those operating under 14 CFR part 121 (e.g., part 
135 operators). Although RSPA requested comments ``on the economic 
impact, if any, of this proposed rule on other entities,'' no comments 
were submitted that would assist RSPA's evaluation of the impact of 
this rule on small entities.
    Because the FAA no longer uses the criteria in its Order 2100.A to 
determine who are small entities, RSPA considers that an airline 
operator with fewer than 1,500 employees is a small entity, under the 
Small Business Administration's criteria in 13 CFR part 121. RSPA 
reviewed air carrier traffic and revenue statistics complied by DOT's 
Office of Airline Information and information provided by FAA as to the 
air carriers approved to transport hazardous materials. These sources 
indicate that there is only one part 121 air carrier with fewer than 
1,500 employees that carries passengers and accepts oxidizers for 
transportation as cargo.
    There are many air carriers certificated under 14 CFR part 135 that 
are approved by FAA to carry hazardous materials. Many of these 
carriers transport only cargo. In general, they provide on-demand, 
rather than schedule service, and the inaccessible cargo compartment on 
these aircraft are small. (Most of the cargo is carried in the main 
compartment when there are no passengers.) RSPA does not have 
information on which part 135 carriers carry passengers or, more 
importantly, whether any of them carry passengers and hazardous 
materials on the same flight. Because of their limited cargo capacity 
and lack of schedule service, however, RSPA assumes that the passenger-
carrying aircraft operated by part 135 carriers are not utilized for 
the transportation of oxidizers.
    Accordingly, RSPA certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

[[Page 45396]]

Executive Order 13084

    RSPA believes that this final rule will have no significant or 
unique effect on the communities of Indian tribal governments when 
analyzed under the principles and criteria contained in Executive Order 
13084 (``Consultation and Coordination with Indian Tribal 
Governments''). Therefore, the funding and consultation requirements of 
this Executive Order do not apply.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It will not result in costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector. 
This final rule is the least burdensome alternative that achieves the 
objective of the rule.

Impact on Business Processes and Computer Systems (Year 2000)

    Many computers that use two digits to keep track of dates may, on 
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900. 
This Year 2000 problem could cause computers to stop running or to 
start generating erroneous data. The Year 2000 problem poses a threat 
to the global economy in which Americans live and work. With the help 
of the President's Council on Year 2000 Conversion, Federal agencies 
are reaching out to increase awareness of the problem and to offer 
support. We do not want to impose new requirements that would mandate 
business process changes when the resources necessary to implement 
those requirements would otherwise be applied to the Year 2000 problem.
    This final rule does not impose business process changes or require 
modification to computer systems. Because the final rule does not 
affect organizations' ability to respond to the Year 2000 problem, we 
do not intend to delay the effectiveness of the requirements in the 
final rule.

Paperwork Reduction Act

    This final rule does not impose any new information collection 
requirements.

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.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Marking, Packaging and containers, Reporting and 
recordkeeping requirements.

49 CFR Part 175

    Air carriers, Hazardous materials transportation, Radioactive 
materials, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 49 CFR Parts 171, 172, and 175 
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 171.7, in the Table of material incorporated by reference in 
paragraph (a)(3), a new entry is added in appropriate alphabetical 
order to read as follows:


Sec. 171.7  Reference material.

    (a) * * *
    (3) * * *

------------------------------------------------------------------------
                                                              49 CFR
               Source and name of material                   reference
------------------------------------------------------------------------
Air Transport Association of America, 1301 Pennsylvania   ..............
 Avenue, N.W., Washington, DC 20004-1707
    ATA Specification No. 300 Packaging of Airline               172.102
     Supplies, Revision 19, July 31, 1996...............

                  *        *        *        *        *
------------------------------------------------------------------------

* * * * *
    3. In Sec. 171.11, paragraph (d)(15) is revised and paragraph 
(d)(16) is added to read as follows:


Sec. 171.11  Use of ICAO Technical Instructions.

* * * * *
    (d) * * *
    (15) A chemical oxygen generator is forbidden for transportation 
aboard a passenger-carrying aircraft and must be approved, classed, 
described and packaged in accordance with the requirements of this 
subchapter for transportation on cargo-only aircraft. A chemical oxygen 
generator (spent) is forbidden for transportation on aircraft.
    (16) A cylinder containing Oxygen, compressed, may not be 
transported on a passenger-carrying aircraft or in an inaccessible 
cargo location aboard a cargo-only aircraft unless it is packaged as 
required by Part 173 and Part 178 of this subchapter and is placed in 
an overpack or outer packaging that satisfies the requirements of 
Special Provision A52 in Sec. 172.102.
    4. In Sec. 171.12, paragraph (b)(18) is revised to read as follows:


Sec. 171.12  Import and export shipments.

* * * * *
    (b) * * *
    (18) A chemical oxygen generator must be approved in accordance 
with the requirements of this subchapter. A chemical oxygen generator 
and a chemical oxygen generator (spent) must be classed, described and 
packaged in accordance with the requirements of this subchapter.
* * * * *
    5. In Sec. 171.12a, paragraph (b)(17) is revised to read as 
follows:


Sec. 171.12a  Canadian shipments and packagings.

* * * * *
    (b) * * *
    (17) A chemical oxygen generator must be approved in accordance 
with the requirements of this subchapter. A chemical oxygen generator 
and a chemical oxygen generator (spent) must be classed, described and 
packaged in accordance with the requirements of this subchapter.

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    6. The authority citation for part 172 continues to read as 
follows:

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

    7. In the Sec. 172.101 Hazardous Materials Table, one entry is 
added in appropriate alphabetical order and one entry is revised to 
read as follows:


Sec. 172.101  Purpose and use of hazardous materials table.

* * * * *
      


[[Page 45397]]



                                                                            Sec.  172.101.--Hazardous Materials Table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                  Hazardous                                                                            (8)  Packaging authorizations     (9)  Quantity limitations       (10)  Vessel stowage
                  materials        Hazard                                                                     (Sec.  173.***)        --------------------------------        requirements
   Symbols     descriptions and   class or   Identification       PG       Label codes     Special   --------------------------------                                ---------------------------
               proper shipping    division       numbers                                 provisions                  Non-                Passenger    Cargo aircraft
                    names                                                                              Exceptions    bulk     Bulk     aircraft/rail       only         Location        Other
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1)           (2)..............        (3)  (4)               (5)         (6).........  (7)           (8A)........    (8B)  (8C)....  (9A)..........  (9B)..........  (10A)         (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
              [Revised]

                                       *                  *                  *                  *                  *                  *                  *
              Oxygen,                  2.2  UN1072            ..........  2.2, 5.1....  A52           306.........     302  314, 315  75 kg.........  150 kg........  A
               compressed.

                                       *                  *                  *                  *                  *                  *                  *
              [Added]

                                       *                  *                  *                  *                  *                  *                  *
      +       Oxygen generator,          9  NA3356            III         9...........  61            None........     213  None....  Forbidden.....  Forbidden.....  A
               chemical, spent.

                                       *                  *                  *                  *                  *                  *                  *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    8. In Sec. 172.102, special provision ``61'' is added in 
appropriate numerical sequence to paragraph (c)(1) and special 
provision ``A52'' is added in alphanumeric sequence to paragraph 
(c)(2), to read as follows:


Sec. 172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *

Code/Special Provisions

* * * * *
61  A chemical oxygen generator is spent if its means of ignition 
and all or a part of its chemical contents have been expended.
* * * * *
    (2) * * *

Code/Special Provisions

* * * * *
A52  A cylinder containing Oxygen, compressed, may not be loaded 
into a passenger-carrying aircraft or in an inaccessible cargo 
location on a cargo-only aircraft unless it is placed in an overpack 
or outer packaging that conforms to the performance criteria of Air 
Transport Association (ATA) Specification 300 for Type I shipping 
containers.
* * * * *

PART 175--CARRIAGE BY AIRCRAFT

    9. The authority citation for part 175 continues to read as 
follows:

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

    10. In Sec. 175.10, paragraph (b) is added to read as follows:


Sec. 175.10  Exceptions.

* * * * *
    (b) A cylinder containing medical-use compressed oxygen, owned or 
leased by an aircraft operator or offered for transportation by a 
passenger needing it for personal medical use at destination, may be 
carried in the cabin of a passenger-carrying aircraft in accordance 
with the following provisions:
    (1) No more than six cylinders belonging to the aircraft operator 
and, in addition, no more than one cylinder per passenger needing the 
oxygen at destination, may be transported in the cabin of the aircraft 
under the provisions of this paragraph (b);
    (2) The rated capacity of each cylinder may not exceed 850 liters 
(30 cubic feet);
    (3) Each cylinder and its overpack or outer packaging (see Special 
Provision A52 in Sec. 172.102 of this subchapter) must conform to the 
provisions of this subchapter;
    (4) The aircraft operator shall securely stow the cylinder in its 
overpack or outer packaging in the cabin of the aircraft and shall 
notify the pilot-in-command as specified in Sec. 175.33 of this part; 
and
    (5) Shipments under this paragraph (b) are not subject to--
    (i) Subpart C and, for passengers only, subpart H of part 172 of 
this subchapter;
    (ii) Section 173.25(a)(4) of this subchapter.
    (iii) Section 175.85(i).


Sec. 175.10  [Amended]

    11. In addition, in Sec. 175.10 paragraph (a)(24) is removed and 
reserved.
    12. In Sec. 175.85, paragraphs (h) and (i) are added to read as 
follows:


Sec. 175.85  Cargo location.

* * * * *
    (h) Compressed oxygen, when properly labeled Oxidizer or Oxygen, 
may be loaded and transported as provided in paragraph (i) of this 
section. No person may load or transport any other package containing a 
hazardous material for which an OXIDIZER label is required under this 
subchapter in an inaccessible cargo compartment that does not have a 
fire or smoke detection system and a fire suppression system.
    (i) In addition to the quantity limitations prescribed in 
Sec. 175.75, cylinders of compressed oxygen must be stowed in 
accordance with the following:
    (1) No more than a combined total of six cylinders of compressed 
oxygen may be stowed on an aircraft in the inaccessible aircraft cargo 
compartment(s) that do not have fire or smoke detection systems and 
fire suppression systems.
    (2) When loaded into a passenger-carrying aircraft or in an 
inaccessible cargo location on a cargo-only aircraft, cylinders of 
compressed oxygen must be stowed horizontally on the floor or as close 
as practicable to the floor of the cargo compartment or unit load 
device. This provision does not apply to cylinders stowed in the cabin 
of the aircraft in accordance with Sec. 175.10(b).
    (3) When transported in a Class B aircraft cargo compartment (see 
14 CFR 25.857(b)) or its equivalent (i.e., an accessible cargo 
compartment equipped with a fire or smoke detection system but not a 
fire suppression system), cylinders of compressed oxygen must be loaded 
in a manner that a crew member can see, handle and, when size and 
weight permit, separate the cylinders from other cargo during flight. 
No more than six cylinders of compressed oxygen

[[Page 45398]]

and, in addition, one cylinder of medical-use compressed oxygen per 
passenger needing oxygen at destination--with a rated capacity of 850 
liters (30 cubic feet) or less of oxygen--may be carried in a Class B 
aircraft cargo compartment or its equivalent.

    Issued in Washington, DC on August 11, 1999 under the authority 
delegated in 49 CFR part 1.
Kelley S. Coyner,
Administrator.
[FR Doc. 99-21187 Filed 8-18-99; 8:45 am]
BILLING CODE 4910-60-P