Exem ption No. 10136

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

FEDEX EXPRESS Regulatory Docket No. FAA-2009-1217

for an exemption from § 121.333(c)(3) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated Decem ber 17, 2009, Captain James Bowman, Director of Operations, FedEx Express, 3131 Democrat Road, Building C, Suite C112, Memphis, TN 38118 petitioned the Federal Aviation Administration (FAA) on behalf of FedEx Express for an exemption from § 121.333(c)(3) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow one pilot to leave their station at the controls of the airplane when operating at flight altitudes above flight level (FL) 250, while the remaining pilot at the controls could remove their oxygen mask from the stowage unit and have it in his or her lap until the other pilot has returned to his or her duty station.

The petitioner requests relief from the following regulation:

Section 121.333(c)(3) prescribes, in pertinent part, that notwithstanding paragraph (c)(2) of this section, if for any reason at any time it is necessary for one pilot to leave his station at the controls of the airplane when operating at flight altitudes above flight level 250, the remaining pilot at the controls shall put on and use his oxygen mask until the other pilot has returned to his duty station.

The petitioner supports its request with the following information:

The petitioner asserts that this petition for exemption is reasonable and urgently needed due to the World Health Organization (WHO) raising the worldwide pandemic alert level for influenza A (H1N1) to Phase 6. Additionally the U.S. Centers for Disease Control and Prevention (CDC) has announced that a pandemic has been declared for the H1N1

AFS-10-128-E2

flu within the United States. The petitioner believes that the potential exists for flight

crewmembers to contract H1N1.

The petitioner notes that on December 10, 2009, the CDC updated its “Outbreak” notice for Hand, Foot, and Mouth Disease (HFMD) to include Hong Kong, Taiwan, Singapore and mainland China. Most notable are the 50,000 plus cases of HFMD confirmed in China to include Guangdong Province. FedEx Express currently operates from all the noted countries to include its principle Asian Hub at Guangzhou Airport located in Guangdong Province.

The petitioner believes that the current oxygen mask use procedures place FedEx Express pilots at increased risk for contracting transmissible disease such as H1N1, measles, polio, and forms of tuberculosis in areas as varied as the United Kingdom to Southeast Asia, which are all in its areas of operation.

The petitioner notes that the current method of disinfecting oxygen masks is to use Celeste Industries Sanicom disinfectant wipes to clean the masks. However, the petitioner adds that the effectiveness of this method is limited due to the need to subject the mask to a wet solution for an adequate period of time. The petitioner believes that the problem of disinfecting the mask is compounded by the fact that the active ingredient in Sanicom disinfectant wipes, benzalkonium chloride has been shown to be a factor in creating super bacteria that are becoming more resistant to antibiotics.

The petitioner states that both Boeing and Airbus have collected data since the 1950s over millions of flight hours regarding rapid depressurizations above flight level FL 250. Since that time, there have been only a handful of incidents, none of which has had an adverse outcome due to pilot physiology. The petitioner states that the probability of rapid depressurization is miniscule yet the risk to pilot health from sharing contaminated oxygen masks is significant.

The petitioner proposes to have pilots remove the oxygen mask from its stowage container whenever one pilot leaves his or her duty station on the flight deck. The remaining pilot at the controls would then have his or her oxygen mask out, tested and in his or her lap at the ready, further reducing the time required to don the oxygen mask.

The petitioner points out that FAA Advisory Circular (AC) 61-107A dated January 02, 2003, (Operations of Aircraft at Altit udes Above 25,000 feet MSL and/or Mach Numbers (MMO) Greater Than .75) states in Table 1-1 that expected time of useful consciousness (TUC) at a cabin altitude of 40,000 feet is between 7-10 seconds. The petitioner asserts that, using standard pressurization tables for all of FedExExpress’s transport category aircraft, it is reasonable to expect a cabin decompression rate of approximately 7,000 feet at FL400. Using a cabin altitude of 7,000 feet per second, the flight deck altitude would take 4 seconds to reach 35,000 feet. The petitioner added this3

time to the TUC and determines that a pilot would have between 11-14 seconds to don the oxygen mask.

The petitioner believes that the FAA needs to harmonize its regulations on oxygen mask use with the rest of the world. The petitioner cites Canadian Aviation Regulations and European Aviation Regulations that have no requirement to don an oxygen mask when a single pilot is at the controls below FL420.

The petitioner contends that non-U.S. pilots flying in United States airspace are not required to don oxygen mask above FL250 when only one pilot is at the controls.

The petitioner indicates that a grant of exemption would result in a safer and more healthful working environment for its pilots. It would minimize the potential for the spread of serious, life-threatening illnesses among its flight crewmembers and ground personnel, while helping to protect airline scheduling integrity. The petitioner believes that there would be no compromise to safety with this exemption, and in fact, that safety would be improved.

The petitioner includes a copy of the following as attachments to the petition.

1. “Oxygen Mask Use in Aviation,” Air Line Pilots Association (October 2009).

2. Nancy C. Burton, PhD, MPH, Letter of Health Hazard Evaluation, National Institute for Occupational Safety and Health, (July 10, 2009).

3. “Transmission of Influenza A in Human Beings,” Infection Prevention and Control Unit, University Health Network, Toronto, Ontario, Canada (February 19, 2007).

4. “Significance of Fomites in the Spread of Respiratory and Enteric Viral Disease,” Applied and Environmental Microbiology (March 2007).

5. Respiratory Protection Against Bioaerosol s: Literature Review and Research Needs,” American Journal of Infection Control (2004).

6. Operations of Aircraft at Altitudes A bove 25,000 Feet MSL and/or Mach Numbers (MMO) Greater Than .75.

A summary of the petition was published in the Federal Register on March 4, 2010 (75 FR 10016). Three comments were received; one opposing a grant of exemption and two in support of a grant of exemption. The Air Line Pilots Association, International (ALPA) supports a grant of exemption. As justification for the exemption, ALPA cited the documentation that was submitted in the FedEx Express petition, the inability to clean oxygen masks adequately on the flight deck, and aircraft reliability.4

The FAA's analysis is as follows:

The FAA has fully considered the petitioner’s supporting information as well as the comments submitted in response to the announcement in the Federal Register supporting and opposing the petition on behalf of FedEx Express. The FAA has determined that the circumstances the petitioner presents do not justify a grant of exemption. The FAA finds that the petitioner has not shown how a grant of exemption would be in the public interest or how it would provide a level of safety equivalent to that provided under the current regulation.

The FAA notes that the transport category aircraft the petitioner operates are type-certified for operation by two fully trained and qualified pilots. The FAA also notes that normal, abnormal, and emergency procedures and checklists require both pilots to participate in operating the aircraft. The FAA notes that during part 121 operations, one pilot is allowed to leave the seat for brief intervals for physiological breaks. The FAA requires that if the aircraft is above FL250, the pilot remaining on the flight deck must wear an oxygen mask. This requirement ensures the remaining pilot is never without oxygen. The FAA notes that in an emergency, the remaining pilot would have to immediately initiate and accomplish multiple tasks that would otherwise be accomplished by two pilots working in coordination with each other. Therefore, the FAA finds that if an emergency were to occur, it is critical that the remaining pilot have his or her oxygen in use. The FAA finds that the petitioner’s proposal to have the oxygen mask in the pilot’s lap and ready for use would not provide a level of safety equivalent to that provided under the regulation.

The applicable regulation, § 121.333, requires that pilots flying aircraft with a payload capacity of more than 7,500 pounds have oxygen immediately available between FL 250 and FL 410 feet. This is defined as being able to maneuver the quick-don mask into position within 5 seconds. Furthermore, if one pilot leaves the flight deck while the aircraft is operating above 25,000 ft, the remaining pilot must wear his or her oxygen mask. This mask must be a pressure demand type mask that will deliver 98.4% oxygen with the first breath after a decompression. FedEx Express is requesting an exemption from § 121.333 because of disease transmission concerns. Its argument that safety of flight is not an issue has two main points:

1. Time of useful consciousness (TUC) at FL410 averages 16-17 seconds.

2. Five seconds is sufficient time for the pilot remaining in the cockpit to don an oxygen mask following a decompression, which is well within the average 16-17 seconds of

TUC.

Regarding petitioner’s assertion that 5 seconds is sufficient time to don a mask, the FAA is in the process of rewriting AC-61-107 because of misconceptions among pilots regarding TUCs following a decompression. Although pilots may not become completely unconscious until5

the end of the periods given in the table, their judgment and motor skills may become impaired almost immediately

.

Because of the possibility of immediate impairment, the exemption the petitioner proposes poses an unacceptable risk to the safety of flight because crewmembers may not be aware of a gradual decompression. In such situations, crewmembers may fail to recognize the effects of hypoxia, and a single pilot not wearing an oxygen mask may not be able to don the mask before he or she is affected by hypoxia. See NTSB accident report number CHI96IA157, May 26, 1996 (incident involving American Trans Air, flight 406); see also William F. O’Conner, Ph.D. and George E. Pendergrass, Effects of Decompression on Operator Performance, DOT/FAAAM 66-10 at 6 (concluding that “the various analyses indicate impairment of the operator’s rate of performance for 2 to 4 minutes following rapid decompression with some suggestion that the severity of effects increases with increase in decompression altitude;” further, “[t]he operator’s total time lost from his primary task, at the point of decompression where donning is required, has a mean value of some 16 seconds,

while the 95 th percentile falls at about 25 seconds”); G. Bennett, Reactions and Performance of Pilots Following Decompression, Aerospace Medicine 32 at 134-136 (finding that only 36% of pilots were able to don their masks within 10 seconds following a decompression to 30,000 feet; and further finding that all subjects reported hypoxia symptoms; finally, concluding that full protection at 40,000 feet could not be guaranteed unless pilots were wearing their masks and breathing oxygen at the time of decompression).

The petitioner asserts that given the advances in technology, a rapid decompression event would be very rare, and even in the case of a such an event, the mask could be easily donned by the crewmembers. However, the FAA notes that relative to the potential duration of a decompression, the Transport Aircraft Directorate (TAD) has developed mathematical decompression models for aircraft certification. According to the TAD, an engine rotor burst event could cause a very rapid decompression, even in a large volume aircraft. Such an event is rare; however, the TAD can not classify the event as “extremely improbable.” In the case of such an event, however, a crewmember must be able to respond quickly, and to ensure such response, it is necessary for the crewmember to comply with § 121.331.

Furthermore, the FAA notes that the FedEx Express pilot group is not at any greater risk of contracting H1N1 than the general population. Rather, the petitioner believes that the FAA needs to harmonize its regulations on oxygen masks use with the rest of the world. This argument indicates that this request for relief is not unique to FedEx Express and is more appropriate for a petition for rulemaking.

Finally, the FAA finds that the operational safety risk of a rapid decompression to the flying public by a single pilot not wearing the oxygen mask outweighs the risk of a single pilot catching a life-threatening communicable disease. Therefore, a grant of exemption is not in the public interest.6

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exem ption would not be in the public interest. Therefore, under the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of FedEx Express for an exemption from 14 CFR § 121.333(c)(3) is denied.

Issued in Washington, DC, on October 22, 2010

/s/ Raymond Towles Acting Director, Flight Standards

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