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###### Department of Transportation

###### Pipeline and Hazardous Materials Safety Administration

          - 49 CFR Part 172
          - [Docket No. PHMSA-2009-0238 (HM-224G)]
          - RIN 2137-AE49

# AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA).

# ACTION:

Direct final rule.

# SUMMARY:

This direct final rule amends the Hazardous Materials Regulations to revise the quantity limitation from 25 kg “gross” to 25 kg “net” for packages of chemical oxygen generators transported aboard cargo aircraft only. The intended effect of this rule is to provide regulatory relief by raising the quantity threshold for shipments of chemical oxygen generators transported aboard cargo aircraft only. This action is necessary to address difficulties concerning implementation and compliance with the requirements for the transportation of chemical oxygen generators in outer packagings meeting certain flame penetration resistance standards and thermal protection capabilities, as evidenced by comments received from the hazardous materials industry and other interested parties. The amendment contained in this rule is a minor substantive change, in the public interest, and unlikely to result in adverse comment.

# DATES:

                        This direct final rule is effective November 16, 2009, unless an adverse comment or notice of intent to file an adverse comment is received by November 16, 2009. PHMSA will publish in the                         **Federal Register**                         a timely document confirming the effective date of this final rule.                    

# ADDRESSES:

You may submit comments identified by the docket number PHMSA-2009-0238 by any of the following methods:

*Federal eRulemaking Portal:*                         Go to                         *http://www.regulations.gov.*                         Follow the online instructions for submitting comments.                    

*Fax:*                         1-202-493-2251.                    

*Mail:*                         Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.                    

*Hand Delivery:*                         To Docket Operations; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                    

*Instructions:*                         All submissions must include the agency name and docket number for this rule. Note that all comments received will be posted without change, including any personal information provided.                    

# FOR FURTHER INFORMATION CONTACT:

T. Glenn Foster, (202) 366-8553, U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, Office of Hazardous Materials Standards, 1200 New Jersey Avenue, SE., Washington, DC 20590.

# SUPPLEMENTARY INFORMATION:

## List of Topics

I. Background

II. Appeals to the January 31, 2007 Final Rule

III. Petitions to the January 31, 2007 Final Rule

IV. Summary of the Direct Final Rule

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for Rulemaking

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

C. Executive Order 13132

D. Executive Order 13175

E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies

F. Unfunded Mandates Reform Act of 1995

G. Paperwork Reduction Act

H. Regulation Identifier Number (RIN)

I. Environmental Assessment

J. Privacy Act

## I. Background

The National Transportation Safety Board found that one of the probable causes of the May 11, 1996 crash of ValuJet Airlines flight No. 596 was a fire in the airplane's cargo compartment that was initiated and enhanced by the actuation of one or more chemical oxygen generators that were being improperly carried as cargo. Following that tragedy, in which 110 lives were lost, the Department of Transportation:

—Prohibited the transportation of chemical oxygen generators (including personal-use chemical oxygen generators) on board passenger-carrying aircraft and the transportation of spent chemical oxygen generators on both passenger-carrying and cargo-only aircraft, 61 FR 26418 (May 24, 1996), 61 FR 68952 (Dec. 30, 1996), 64 FR 45388 (Aug. 19, 1999);

                    —Issued standards governing the transportation of chemical oxygen generators on cargo-only aircraft (and by motor vehicle, rail car and vessel), including the requirement for an approval issued by the Research and Special Programs Administration                           ( print page 52897)                        (RSPA), the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA), 62 FR 30767 (June 5, 1997), 62 FR 34667 (June 27, 1997);                

—Upgraded fire safety standards for Class D cargo compartments on aircraft to require a smoke or fire detection system and a means of suppressing a fire or minimizing the available oxygen, on certain transport-category aircraft, 63 FR 8033 (Feb. 17, 1998); and

—Imposed additional requirements on the transportation of cylinders of compressed oxygen by aircraft and prohibited the carriage of chemical oxidizers in inaccessible aircraft cargo compartments that do not have a fire or smoke detection and fire suppression system, 64 FR 45388 (Aug. 19, 1999).

In the August 19, 1999 final rule, we amended the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to: (1) Allow a limited number of cylinders containing medical-use oxygen to be carried in the cabin of a passenger-carrying aircraft, 49 CFR 175.10(b); (2) limit the number of oxygen cylinders that may be carried as cargo in compartments that lack a fire suppression system and require that cylinders be stowed horizontally on the floor or as close as practicable to the floor of the cargo compartment or unit load device, 49 CFR 175.85(h) & (i); and (3) require each cylinder of compressed oxygen (in the passenger cabin or a cargo compartment) to be placed in an overpack or outer packaging that meets the performance criteria of Air Transport Association Specification 300 for Type I (ATA 300) shipping containers, 49 CFR 172.102, Special Provision A52.

On January 31, 2007, PHMSA issued a final rule under Docket No. RSPA-04-17664 (HM-224B) to enhance the safety standards for transportation by air of compressed oxygen, other oxidizing gases, and chemical oxygen generators (72 FR 4442). Specifically, the final rule amended the HMR to require cylinders of compressed oxygen and chemical oxygen generators to be transported in an outer packaging that: (1) Meets the same flame penetration resistance standards as required for cargo compartment sidewalls and ceiling panels in transport category airplanes; and (2) provides certain thermal protection capabilities so as to retain its contents during an otherwise controllable cargo compartment fire. These performance requirements must remain in effect for the entire service life of the outer packaging. The outer packaging standard addresses two safety concerns—protecting a cylinder and an oxygen generator that could be exposed directly to flames from a fire and protecting a cylinder and an oxygen generator that could be exposed indirectly to heat from a fire.

In addition, an outer packaging for a cylinder containing compressed oxygen or another oxidizing gas and a package containing an oxygen generator were required to meet the standards in Part III of Appendix F to 14 CFR Part 25, Test Method to Determine Flame Penetration Resistance of Cargo Compartment Liners. An outer packaging's materials of construction must prevent penetration by a flame of 1,700 °F for five minutes, in accordance with Part III of Appendix F, paragraphs (a)(3) and (f)(5) of 14 CFR Part 25.

Further, a cylinder of compressed oxygen or another oxidizing gas must remain below the temperature at which its pressure relief device would activate and an oxygen generator must not actuate when exposed to a temperature of at least 400 °F for three hours. The 400 °F temperature is the estimated mean temperature of a cargo compartment during a halon-suppressed fire. Three hours and 27 minutes is the maximum estimated diversion time world-wide, based on an aircraft flying a southern route over the Pacific Ocean. Data collected during Federal Aviation Administration (FAA) tests indicate that, on average, a 3AA seamless steel oxygen cylinder with a pressure relief device set at cylinder test pressure will open when the cylinder reaches a temperature of approximately 300 °F. This result is consistent with calculations performed by PHMSA. In analyzing pressure relief device (PRD) function, PHMSA calculated that a 3HT seamless steel cylinder for aircraft with a PRD set at 90% of cylinder test pressure will vent at temperatures greater than 220 °F. In order to assure an adequate safety margin for all authorized cylinders, including 3HT cylinders, we amended the HMR to require cylinders of compressed oxygen and other oxidizing gases, which are contained in the specified outer packaging, to maintain an external temperature below 93 °C (199 °F) when exposed to a 400 °F temperature for three hours.

## II. Appeals to the January 31, 2007 Final Rule

The following organizations submitted appeals to the January 31, 2007 final rule, in accordance with 49 CFR Part 106: Air Canada (AC); Barlen and Associates, Inc. (Barlen); PSI Plus, Inc. (PSI); and United Airlines, Inc. (United). Delta Airlines (Delta) also submitted a letter expressing its general support for United's formal appeal. The appellants based their appeals on several aspects of the January 31 final rule, most notably, the effective date of certain requirements in the rule, cost and availability of the required outer packaging, marking requirements, and thermal resistance testing. We also received requests for clarification of certain requirements of the final rule.

In response to the appeals, we published a final rule on September 28, 2007 (72 FR 55091) granting the request to delay the mandatory effective date for a new limit on PRD settings on cylinders containing compressed oxygen or other oxidizing gases transported on board aircraft from October 1, 2007 until October 1, 2008. We also clarified the thermal resistance test methods for packagings for oxygen cylinders and oxygen generators in Appendix D to Part 178, and added a new Appendix E to Part 178—Flame Penetration Resistance to incorporate the standards in Part III of Appendix F to 14 CFR Part 25, Test Method to Determine Flame Penetration Resistance of Cargo Compartment Liners Flame Penetration Resistance Test. In addition, we granted the request to include DOT specifications 3E seamless steel and 39 non-reusable (non-refillable) cylinders among the types of cylinders authorized for the transportation of compressed oxygen and other oxidizing gases aboard aircraft. Further, we provided a marking option to ensure easier identification of cylinders equipped with the new PRD and outer packagings meeting the flame penetration and thermal resistance requirements. Finally, in response to the concerns of appellants pertaining to the availability of the required packaging, we indicated that PHMSA and FAA would closely monitor the availability of the required packaging as the effective date (after September 30, 2009) of this provision approached and would consider an extension of the compliance date for this requirement if it was determined that a sufficient supply of the required outer packaging would not be available.

## III. Petitions to the January 31, 2007 Final Rule

                    PHMSA received petitions dated September 23, 2008 and April 21, 2009 from the Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) pertaining to the mandatory compliance date for the required outer packaging. In its September 23, 2008 petition, COSTHA requested an extension of the compliance date until April 1, 2011 for the outer packaging requirement, and                           ( print page 52898)                        also suggested that PHMSA permit the current use of non-rigid outer packagings meeting the requirements of ATA Spec 300 through April 1, 2010. COSTHA argued that the additional time would “allow packaging manufacturers to competitively introduce lightweight, durable, and affordable packaging with an anticipated long term safety benefit.” PHMSA denied this petition, and in our response, reiterated our intention to monitor the availability and costs of the required outer packaging and to consider an extension of the compliance date for this requirement if it were determined that a sufficient supply of the required outer packaging would not be available as we approached the compliance date.                

In its petition dated April 21, 2009, COSTHA again requested the compliance date be extended to April 1, 2011 and suggested that the required outer packagings were currently not in production and would not be available in sufficient time to meet the October 1, 2009 compliance date. COSTHA further requested that PHMSA re-evaluate the entire rulemaking based on its contention that the original regulatory evaluation developed in support of the final rule was “significantly flawed and incomplete.” We denied this petition based on our identification of a number of packaging manufacturers that are able to produce outer packagings that conform to the performance standards established in the January 31, 2007 final rule in quantities sufficient to meet expected demand by October 1, 2009. We based our conclusion on consultations with companies that are able to produce similar packaging, and on demonstrations presented to the Department by packaging manufacturers detailing development and production plans for the required packaging, supporting test documentation, cost estimates, and samples of their packaging prototypes.

In addition, PHMSA and FAA attended a conference sponsored by American Airlines held in Tulsa, Oklahoma on March 10-11, 2009 for airline representative and packaging manufacturers to discuss issues pertaining to the HM-224B outer packaging requirements. At this meeting, eight (8) packaging manufacturers provided presentations that discussed the weight, cost, production lead-times, life expectancy, and production rate of the required outer packaging, with several manufactures providing production-ready prototypes. We also re-examined the regulatory evaluation developed in support of the final rule. We agreed with the petitioner that the regulatory evaluation underestimates the costs for outer packagings that conform to the performance standard established in the final rule. However, we also found that the evaluation significantly underestimates the expected life-span for such outer packagings. In addition, the regulatory evaluation overestimates the number of such packagings that would be required to accommodate air shipments of compressed oxygen and other oxidizing gases and chemical oxygen generators. Based on this re-evaluation, we concluded that the costs associated with the requirement that outer packagings meet certain flame penetration and thermal resistance requirements when transported aboard aircraft are within the range of the costs estimated in the regulatory evaluation. Following our denial of COSTHA's second petition, we posted an advisory alert on our website confirming the mandatory compliance for the outer packaging requirement, and provided a contact list of packaging manufacturers who have indicated they are able to produce the required packaging.

PHMSA also received a petition dated June 29, 2009 (P-1544) from Satair USA, Inc pertaining to the quantity limitation for packages of chemical oxygen generators. Currently, the HMR limits the total package weight (gross) of chemical oxygen generators to a maximum of 25 kilograms when transported aboard cargo-aircraft only. This 25 kilogram gross limit includes the hazardous material and its outer packaging. In its petition, Satair contends that because of the additional weight of the more robust outer packaging required by the January 31, 2007 final rule, much of the 25 kilogram limit is utilized by the weight of the outer packaging thereby limiting the actual weight of the hazardous material to be transported. Satair states that if the 25 kilogram gross requirement remains in place, it will severely limit the quantity of items that may be shipped within each container. In its petition, Satair requested that we amend the HMR to revise the quantity limitation for packages of chemical oxygen generators transported aboard cargo aircraft only. We agree with the petitioner. During our monitoring of the availability of the required outer packaging and conversations with several packaging manufacturers, we agreed that the weight of the outer packaging material will be increased because of the additional thermal resistance and flame penetration requirements of the January 31, 2007 final rule, and thereby limits the amount of hazardous materials that can be transported. We believe that the allowable weight of chemical oxygen generators can be increased by revising the quantity limit from “gross” to “net,” in this direct final rule without sacrificing our intent of protecting a chemical oxygen generator exposed directly to flames from a fire or exposed indirectly to heat from a fire. Therefore, in this direct final rule, we are amending the HMR to revise the quantity limitation for packages of chemical oxygen generators transported aboard cargo aircraft only from 25 kilograms “gross” to 25 kilograms “net.” We note that the revision applies to chemical oxygen generators transported by cargo-only aircraft, and that the transportation of chemical oxygen generators by passenger aircraft or rail continues to be prohibited.

## IV. Summary of the Direct Final Rule

Based on petitions received in response to the final rule and our own initiatives, we are adopting a requirement that quantities of chemical oxygen generators are limited to 25 kg net mass per package for transport aboard cargo-only aircraft. Any quantity of chemical oxygen generators transported aboard passenger aircraft or rail car remains prohibited.

                    This direct final rule is issued under the procedures set forth in § 106.40 of the HMR. Unless an adverse comment or notice of intent to file an adverse comment is received by November 16, 2009, this rule will become effective on November 16, 2009. An adverse comment explains why a rule would be inappropriate, or would be ineffective or unacceptable without a change. Under the direct final rule process, we do not consider a comment to be adverse that: (1) Recommends another rule change, in addition to the change in the direct final rule at issue, unless the commenter states why the rule would be ineffective without the change; or (2) is a frivolous or irrelevant comment. Therefore, comments that do not specifically address the 25 kg weight limitation for packages of chemical oxygen generators transported aboard cargo only aircraft will be considered beyond the scope of this rulemaking. PHMSA will publish in the                     **Federal Register**                     in a timely document confirming the effective date of this direct final rule.                

## V. Regulatory Analyses and Notices

### A. Statutory/Legal Authority for Rulemaking

                    This direct final rule is published under the authority of Federal hazardous materials transportation law                           ( print page 52899)                        (Federal hazmat law; 49 U.S.C. 5101*et seq.*) and 49 U.S.C. 44701. Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. Section 1.53 of 49 CFR delegates the authority to issue regulations in accordance with 49 U.S.C. 5103(b) to the Administrator of the Pipeline and Hazardous Materials Safety Administration.                

### B. Executive Order 12866 and DOT Regulatory Policies and Procedures

This direct final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

In this direct final rule, we are amending the HMR to enhance safety and to offer greater flexibility in complying with the regulatory requirements for packages of chemical oxygen generators without sacrificing the current HMR level of safety. These amendments are based on petitions for rulemaking submitted by the regulated community and, for the most part, should reduce overall compliance costs. The amendment pertaining to the quantity limitation of chemical oxygen generators aboard cargo-only aircraft adopted in this direct final rule provides regulatory relief by raising the quantity threshold for such shipments.

Overall this direct final rule will enhance transportation safety and reduce the overall compliance burden on the regulated industry.

### C. Executive Order 13132

This direct final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This direct final rule preempts State, local and Indian tribe requirements, but does not amend any regulation that has direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on the following subjects:

1. The designation, description, and classification of hazardous material;

2. The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

3. The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

4. The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

5. The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This direct final rule addresses items 1, 2 and 5 above and preempts any State, local, or Indian tribe requirements not meeting the “substantially the same” standard.

                    Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the                     **Federal Register**                     the effective date of Federal preemption. The 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 effective date of preemption is 90 days after the publication of this final rule in the                     **Federal Register**                    .                

### D. Executive Order 13175

This direct final rule has been analyzed in accordance with the principles and criteria contained in Executive order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this direct final rule will not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13084 do not apply, and a tribal summary impact statement is not required.

### E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies

The Regulatory Flexibility Act of 1980 requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. This direct final rule will not impose increased compliance costs on the regulated industry. The revisions, clarifications, and corrections we are making to the January 31, 2007 final rule will provide regulatory relief to persons transporting chemical oxygen generators on aircraft by revising the quantity limitation for packages of chemical oxygen generators transported aboard cargo aircraft only. Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), DOT certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This direct final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

### F. Unfunded Mandates Reform Act of 1995

This direct final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more to either State, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

### G. Paperwork Reduction Act

This direct final rule imposes no new information collection and recordkeeping requirements.

### H. 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.

### I. Environmental Assessment

                    The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations order federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the                           ( print page 52900)                        agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).                

The provisions of this direct final rule build on current regulatory requirements to enhance the safety and security of shipments of chemical oxygen generators when transported aboard an aircraft. The net environmental impact, therefore, will be moderately positive. There are no significant environmental impacts associated with this direct final rule.

### J. Privacy Act

                    Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the                     **Federal Register**                     published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit                     *http://dms.dot.gov.*

# List of Subjects in 49 CFR Part 172

      - Education
      - Hazardous materials transportation
      - Hazardous waste
      - Labeling
      - Markings
      - Packaging and containers
      - Reporting and recordkeeping requirements

In consideration of the foregoing, we are amending title 49 Chapter I, Subchapter C, as follows:

# PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS, AND SECURITY PLANS

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

§ 172.101 

2. In the Hazardous Materials Table, in § 172.101, for the shipping name “Oxygen generator, chemical ( *including when contained in associated equipment, e.g., passenger service units (PSUs), portable breathing equipment (PBE), etc*),” the entry in Column (9B), is revised to read “25 kg”.                    

Issued in Washington, DC on October 8, 2009 under authority delegated in 49 CFR part 106.

Cynthia Douglass,

Acting Deputy Administrator for Hazardous Materials Safety.

[FR Doc. E9-24779 Filed 10-14-09; 8:45 am]

BILLING CODE 4910-60-P