[Federal Register Volume 70, Number 217 (Thursday, November 10, 2005)]
[Rules and Regulations]
[Pages 68330-68333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22456]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No.: FAA-2005-22915; Amendment No. 121-317]
RIN 2120-ai65


Supplemental Oxygen

AGENCY: Federal Aviation Administration, DOT.

ACTION: Direct final rule; request for comments.

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SUMMARY: In this direct final rule, the FAA is amending its regulation 
on the use of pilot supplemental oxygen. The amendment changes the 
flight level at which the remaining pilot at the controls of the 
airplane must put on and use his oxygen mask if the other pilot at any 
time leaves his control station of the airplane. This amendment revises 
that altitude to ``above flight level 350'' from ``above flight level 
250.'' It will also eliminate the needless use of oxygen that is not 
otherwise required to provide for safety in air carrier operations. 
This will reduce needless expenditures to replace oxygen equipment that 
is subject to excessive wear and tear.

DATES: Effective January 9, 2006.
    Comments for inclusion in the Rules Docket must be received on or 
before December 27, 2005.

ADDRESSES: You may send comments [identified by Docket Number [Insert 
docket number, for example, FAA-200X-XXXXX]] using any of the following 
methods:
    <bullet> DOT Docket Web site: Go to  http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
    <bullet> Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
    <bullet> Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael J. Coffey, Air Transportation 
Division (AFS-220), Flight Standards Service, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
Telephone No. (202) 267-3750.

SUPPLEMENTARY INFORMATION: On February 25, 2004, the FAA published a 
notice in the Federal Register asking the public to tell us which 
regulations we should amend, remove, or simplify. See 69 FR 8575. In 
response to the February notice, we received four comments on the topic 
of supplemental oxygen. Additionally, the FAA has received numerous 
petitions for exemption from 14 CFR 121.333(c)(3). These petitions 
requested relief from the regulation so that if it is necessary for one 
pilot to leave his station at the controls of the airplane when the 
aircraft is above flight level (FL) 250, the remaining pilot at the 
controls must put on and use his oxygen mask until the other pilot has 
returned to his duty station. The petitioners sought relief up to FL 
410.
    When flight operations above FL 250 were first initiated, there was 
uncertainty of the ability of pilots to safely operate in that 
environment. Before the establishment of the FAA in 1958, the Civil 
Aeronautics Board (CAB) was responsible for safety in air 
transportation. The CAB established requirements that both pilots must 
wear oxygen masks at all times when the airplane was operated above FL 
250. The FAA carried forward this requirement without comment into its 
regulations.
    As airplanes, pressurization systems, engines, and other systems, 
became more reliable, the FAA amended the requirements concerning 
oxygen masks.

[[Page 68331]]

The regulations were amended to permit flights above FL 250 up to FL 
410 for certain aircraft and up to FL 350 for all others with neither 
pilot being required to wear an oxygen mask if there were two pilots at 
the controls of the airplane and both pilots were equipped with 
approved ``Quick Don'' oxygen masks. In promulgating that amendment, 
the FAA required that when operating above FL 250, if one pilot is 
absent from his duty station, the other pilot must put on and use his 
oxygen mask until the other pilot has returned to his duty station.
    The FAA finds that the oxygen equipment in today's modern aircraft 
has improved to the extent that a pilot can safely operate an airplane 
during and following a rapid decompression, up to certain flight 
levels, without requiring the pilots to wear the oxygen masks. This 
finding is predicated on the pilot being fully trained and qualified in 
accordance with approved training programs and having state of the art 
oxygen equipment available for use within easy reach.
    Research in the area of aviation physiology began in the 1950s and 
was significantly expanded during the 1960s and 1970s. In 1973, The 
National Aeronautics and Space Administration (NASA) published 
information in this area in order to compile the large body of research 
generated in recent years. The FAA evaluated the data and affirms the 
validity of it in promulgating this rule.
    In The Bioastronautics Data Book, published by NASA, in 1973, NASA 
states that the mean time of useful consciousness (TUC) at FL 410 is 16 
to 17 seconds. In addition to the mean TUC, NASA provides data that the 
minimum TUC at FL 410 observed was less than 10 seconds and was in the 
region of 8 to 9 seconds. Based on these TUCs, the FAA finds safety 
would be compromised if FAA permitted operations up to FL 410 in which 
the only pilot on the flight deck was not wearing an oxygen mask. 
However, in reviewing the data published by NASA, the FAA now finds 
that a FL above FL 250 would still provide an acceptable level of 
safety, if a single pilot were at the flight controls and is not 
wearing and using an oxygen mask. The FAA analyzed the TUC at each FL 
between FL 250 and FL 410. The FAA finds that FL 250 could safely be 
raised but an increase to FL 410, as requested, would not provide an 
acceptable level of safety. After reviewing the different TUCs, the FAA 
finds that FL 350 is the highest FL that provides acceptable TUCs. The 
mean TUC at FL 350 is 34 seconds and the minimum observed TUC is 17 
seconds.
    In order to be approved for use under part 121, pilot oxygen masks 
must meet the requirements set forth under aircraft certification 
standards. These set forth, among other requirements, that the oxygen 
equipment must be designed and manufactured so that each pilot may don 
the oxygen equipment with one hand, not disturb reading glasses, and 
establish communications, all within 5 seconds. While there is no 
literal regulatory requirement that each pilot actually demonstrate 
proficiency in this maneuver under part 121, approved training programs 
require that pilots train to proficiency in rapid decompression 
procedures. Thus, there is the commonly acknowledged ``5 second 
criteria.''
    The FAA believes that in actual aircraft operations, the single 
pilot may be delayed, and take longer than 5 seconds to start inhaling 
supplemental oxygen. Any such delay will take up part of the TUC. After 
considering the variables, the FAA finds the mean TUC at FL 350, 34 
seconds, and the minimum observed TUC at FL 350, 17 seconds, is the 
shortest TUC to which the FAA can safely revise the affected 
regulation.
    NASA provides these TUCs based on studies published by W.V. 
Blockley, and D.T. Hanifan, in An analysis of the oxygen protection 
problem at altitudes between 40,000 and 50,000 feet. Webb Associates, 
Santa Monica, California, California, 1961.
    This amendment will also bring the U.S. regulations in closer 
harmonization with Canadian Regulations on the use of oxygen. Section 
605.32(3) of the Canadian Aviation Regulations states ``the pilot at 
the flight controls of an aircraft shall use an oxygen mask if (a) the 
aircraft is not equipped with quick-donning oxygen masks and is 
operated at or above flight level 250; or (b) the aircraft is equipped 
with quick-donning oxygen masks and is operated above flight level 
410.''
    This rule only applies to 121 operations. The FAA has not 
considered the appropriateness of the rule for operations other than 
those conducted under part 121 because of insufficient data.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, section 106, 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the Agency's 
authority. This rulemaking is promulgated under the authority described 
in subtitle VII, part A, subpart III, section 44701, ``General 
requirements.'' Under that section, the FAA is charged with promoting 
safe flight of civil aircraft in air commerce by prescribing:
    <bullet> Minimum standards required in the interest of safety for 
the design and performance of aircraft;
    <bullet> Regulations and minimum standards in the interest of 
safety for inspecting, servicing, and overhauling aircraft; and
    <bullet> Regulations for other practices, methods, and procedures 
the Administrator finds necessary for safety in air commerce.
    This regulation is within the scope of that authority because it 
prescribes a safe level of flight that a single pilot during 
decompression can safely don oxygen equipment and maneuver the airplane 
to an altitude not requiring supplemental oxygen.

The Direct Final Rule Procedure

    In accordance with Sec.  11.13, the FAA is issuing this rule as a 
direct final with request for comment because we do not expect to 
receive any adverse comments, and thus, an NPRM is unnecessary. 
However, to be certain that we are correct, we set the comment period 
to end before the effective date. If the FAA receives any adverse 
comment or notice, then the final rule is withdrawn before it becomes 
effective. The FAA may then issue an NPRM.
    The FAA anticipates that this regulation will not result in adverse 
or negative comment and therefore is issuing it as a direct final rule. 
This final rule reduces the restrictiveness of a requirement as it 
applies to air carriers conducting operations under part 121. The 
reduction in the requirement will not affect the safety of these 
operations because of the improvement of oxygen equipment. As a result, 
the FAA has determined that this amendment is a relieving change that 
has no adverse effect on public safety.
    Unless a written adverse or negative comment, or a written notice 
of intent to submit an adverse or negative comment is received within 
the comment period, the regulation will become effective on the date 
specified above. After the close of the comment period, the FAA will 
publish a document in the Federal Register indicating that no adverse 
or negative comments were received and confirming the date on which the 
final rule will become effective. If the FAA does receive, within the 
comment period, an adverse or negative comment,

[[Page 68332]]

or written notice of intent to submit such a comment, a document 
withdrawing the direct final rule will be published in the Federal 
Register, and a notice of proposed rulemaking may be published with a 
new comment period.

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. We ask that you send us two copies of written 
comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the Web address in the ADDRESSES section.
    Privacy Act: Using the search function of our docket web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment 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 (65 FR 19477-78) or you may visit 
http://dms.dot.gov.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies; or
    (3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact their local FAA official, 
or the person listed under FOR FURTHER INFORMATION CONTACT. You can 
find out more about SBREFA on the Internet at our site, http://www.faa.gov/avr/arm/sbrefa.cfm.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
are no requirements for information collection associated with this 
rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
identified and discussed similarities and differences in these proposed 
amendments and foreign regulations.

Economic Evaluation, Regulatory Flexibility Act, Trade Impact 
Assessment, and Unfunded Mandates Assessment

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency to propose or adopt a regulation only after upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act also requires agencies to consider 
international standards and, where appropriate, use them as the basis 
of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation.)
    The FAA has determined this rule (1) has benefits which do justify 
its costs, is not a ``significant regulatory action'' as defined in the 
Executive Order and is ``not significant'' as defined in DOT's 
Regulatory Policies and Procedures; (2) will not have a significant 
impact on a substantial number of small entities; (3) does not impose 
any barriers to international trade; and (4) does not impose an 
unfunded mandate on state, local, or tribal governments, or on the 
private sector.
    The Department of Transportation Order DOT 2100.5 prescribes 
policies and procedures for simplification, analysis, and review of 
regulations. If it is determined that the expected cost impact is so 
minimal that a proposal does not warrant a full evaluation, this order 
permits a statement to that effect and the basis for it to be included 
in the preamble and a full regulatory evaluation cost benefit 
evaluation need not be prepared. Such a determination has been made for 
this rule. The reasoning for that determination follows.
    Since this final rule is relieving, the FAA has determined that the 
rule will have minimal impact. The FAA requests comment with supporting 
justification regarding the FAA determination of minimal impact.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and

[[Page 68333]]

governmental jurisdictions subject to regulation.'' To achieve that 
principle, the RFA requires agencies to solicit and consider flexible 
regulatory proposals and to explain the rationale for their actions. 
The RFA 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 agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    This final rule will provide minor cost savings to small part 121 
operators. Therefore, the FAA Administrator certifies this action will 
not have a significant economic impact on a substantial number of small 
entities.

Trade Impact Assessment

    The Trade Agreements Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. The FAA has assessed the potential effect of this final rule 
and has determined that it will provide cost savings to domestic 
operators and will not impose any costs on international entities, and 
thus has a neutral trade impact.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal agency to 
prepare a written statement assessing the effects of any Federal 
mandate in a proposed or final agency rule that may result in a $100 
million or more expenditure (adjusted annually for inflation). The FAA 
currently uses an inflation-adjusted value of $120.7 million in lieu of 
$100 million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply to this regulation.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we determined that this final rule does not have 
federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 312d and involves no extraordinary 
circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 18, 2001). We have determined 
that it is not a ``significant energy action'' under the executive 
order because it is not a ``significant regulatory action'' under 
Executive Order 12866, and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 121

    Air Carriers, Aircraft, Airmen, Aviation Safety, Charter Flight, 
Safety, Transportation.

Adoption of the Amendment

0
Accordingly, the Federal Aviation Administration amends part 121 of the 
Federal Aviation Regulations (14 CFR part 121) as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.


Sec.  121.333  [Amended]

0
2. Amend Sec.  121.333 by:
0
a. Changing the word ``shall'' to ``must'' wherever it appears in the 
section; and
0
b. By removing the reference in paragraph (c) to ``flight level 250'' 
wherever it appears and inserting the reference to ``flight level 350'' 
in its place.

    Issued in Washington, DC on November 4, 2005.
Marion C. Blakey,
Administrator.
[FR Doc. 05-22456 Filed 11-9-05; 8:45 am]
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