26418 Federal Register / Vol. 61, No. 102 / Friday, May 24, 1996 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Parts 171 and 173

[Docket No. HM–224, Amdt No. 171–146,

173–254]

RIN 2137–AC89

Temporary Prohibition of Oxygen

Generators as Cargo in Passenger

Aircraft

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Interim final rule.

SUMMARY: To protect life and property,

RSPA is issuing an interim final rule

temporarily prohibiting the offering for

transportation and transportation of

oxygen generators as cargo in passengercarrying aircraft. This rule applies to

both foreign and domestic passengercarrying aircraft entering, leaving or

operating in the United States and to

any person offering an oxygen generator

for transportation on any passengercarrying aircraft.

DATES: Effective date: This interim final

rule is effective May 24, 1996.

Comment date: Comments must be

received by July 23, 1996.

ADDRESSES: Address comments to the

Dockets Unit, Research and Special

Programs Administration, U.S.

Department of Transportation, room

8421, 400 Seventh Street, SW,

Washington, DC 20590–0001.

Comments should identify the docket

number and be submitted in five copies.

Persons wishing to receive confirmation

of receipt of their comments should

include a self-addressed, stamped

postcard. The Dockets Unit is located in

the Department of Transportation

headquarters building (NASSIF

Building) at the above address on the

eighth floor. Public dockets may be

reviewed there between the hours of

8:30 a.m. and 5 p.m., Monday through

Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

William E. Vincent, Acting Director,

Office of Policy and Program Support,

(202) 366–4831, Research and Special

Programs Administration, U.S.

Department of Transportation, 400

Seventh Street SW, Washington DC

20590–0001.

SUPPLEMENTARY INFORMATION:

I. Background

Under a Secretarial delegation (49

CFR 1.53(b)), the Research and Special

Programs Administration (RSPA) is the

administration within the Department of

Transportation (DOT) primarily

responsible for issuing regulations

implementing the Federal hazardous

material transportation law (Federal

hazmat law), 49 U.S.C. 5101–5127.

Under this delegated authority, RSPA

has issued the Hazardous Materials

Regulations (HMR), 49 CFR Parts 171–

180.

Under delegations from the Secretary

of Transportation (49 CFR Part 1), the

authority for enforcement under the

Federal hazmat law is shared by RSPA

and each of four modal administrations:

the Federal Highway Administration,

the Federal Railroad Administration, the

Federal Aviation Administration (FAA),

and the United States Coast Guard. FAA

has primary enforcement authority

concerning transportation and

shipments of hazardous materials by air.

49 CFR 1.47(k).

The National Transportation Safety

Board and the FAA are investigating a

recent accident involving a passengercarrying aircraft. Preliminary evidence

indicates that oxygen generators

(chemical) were carried as cargo on

board the aircraft and may have caused,

or contributed to the severity, of the

accident. Oxygen generators are safely

installed inside thermal protective

casings in the cabins of many passengercarrying aircraft to provide oxygen in

emergencies to passengers and certain

crew members.

Some persons have offered, and some

air carriers have transported,

uninstalled generators as cargo on

passenger-carrying aircraft under

authority in the HMR, including

§§ 175.10(a)(2) and 171.11 (which

authorizes use of the International Civil

Aviation Organization (ICAO) Technical

Instructions).

In order to preclude the possibility

that an oxygen generator carried as

cargo may cause or contribute to a

future incident in air commerce, RSPA

is issuing this interim final rule

prohibiting until January 1, 1997, with

one exception, transportation in

passenger-carrying aircraft, and offering

for transportation in passenger-carrying

aircraft, any oxygen generator as cargo.

This regulation applies to both foreign

and domestic aircraft entering, leaving

or operating in the United States and to

any person offering an oxygen generator

for transportation on any of those

aircraft as cargo.

This regulation applies to oxygen

generators (chemical) and not to

cylinders containing compressed

oxygen. Unlike oxygen generators

(chemical), compressed oxygen

cylinders do not involve heat-producing

mixing of chemicals to create oxygen.

To clarify the applicability of the

prohibition in this rule, RSPA is adding

a definition of ‘‘oxygen generator

(chemical)’’ to 49 CFR § 171.8. That

definition reads ‘‘a device containing

chemicals that upon activation release

oxygen as a product of chemical

reaction.’’

Exceptions to the prohibition are

provided for an oxygen generator for

medical use of a passenger that is

carried in the passenger cabin and meets

the specific safety requirements of

§ 175.10(a)(7) and for a small oxygen

generator for personal use that is

transported as checked baggage and

meets the specific safety requirements of

§ 175.10(a)(24).

Because of the potential safety risk

posed by continued transportation of

oxygen generators as cargo in passengercarrying aircraft, RSPA has determined

that good cause exists for making this

rule effective less than 30 days from its

issuance and that notice and comment

is impractical and contrary to public

interest.

Based on currently available

information, RSPA believes that at least

a temporary ban on offering and

transportation of the generators is

justified on an emergency basis because

of the potential for loss of life and

damage to property. Although an

opportunity for public comment on this

rule has not been provided prior to

issuance of this interim final rule, RSPA

seeks public comment. Based on

comments received, NTSB and FAA

investigation, and RSPA and FAA joint

inspection of contract maintenance

vendors, RSPA may make the ban

permanent, terminate or modify the ban,

or otherwise amend the provisions of

this rule. As an interim final rule,

however, this regulation is in effect and

binding upon publication in the Federal

Register.

RSPA encourages interested persons

to participate in this rulemaking by

submitting written views, data and

information concerning this interim

final rule. Commenters should provide

a reason or basis for each comment.

RSPA will consider all public comments

and will make changes to this rule if

public comments indicate a change is

necessary.

II. Rulemaking 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 therefore is subject to review by the

Office of Management and Budget. The

rule is significant according to the

Regulatory Policies and Procedures of
Federal Register / Vol. 61, No. 102 / Friday, May 24, 1996 / Rules and Regulations 26419

the Department of Transportation (44 FR

11034).

The changes adopted in this rule

should not result in any significant

additional costs to persons subject to the

HMR. About 150,000 of these oxygen

generators are installed on about 1,000

U.S. passenger-carrying aircraft. Because

of their typical effective life of about ten

years, it is not necessary to frequently

transport these generators as uninstalled

or not-in-use materials. In addition,

alternative transportation is available for

these generators because this rule does

not prohibit or inhibit their

transportation by highway, rail, water or

cargo aircraft. Because of the minimal

economic impact of this rule, a full

regulatory evaluation is not warranted.

Executive Order 12612

This final rule has been analyzed in

accordance with the principles and

criteria in Executive Order 12612

(‘‘Federalism’’) and does not have

sufficient Federalism impacts to warrant

the preparation of a federalism

assessment.

Regulatory Flexibility Act

I certify that this final rule will not

have a significant economic impact on

a substantial number of small entities.

This rule imposes a limited prohibition

on certain persons subject to the HMR.

However, there are limited adverse

economic impacts on small businesses

or other organizations.

Paperwork Reduction Act

There are no information collection

requirements in this final rule.

Regulation Identifier Number

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, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation,

Packaging and containers, Radioactive

materials, Reporting and recordkeeping

requirements, Uranium.

In consideration of the foregoing, 49

CFR Parts 171 and 173 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, 44701; 49

CFR 1.45, 1.53.

2. In § 171.8, a definition for ‘‘oxygen

generator (chemical)’’ is added in

alphabetical order to read as follows:

§ 171.8 Definitions and abbreviations.

* * * * *

Oxygen generator (chemical) means a

device containing chemicals that upon

activation release oxygen as a product of

chemical reaction.

* * * * *

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

AND PACKAGINGS

3. The authority citation for Part 173

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49

CFR 1.45, 1.53.

4. In § 173.21, paragraph (k) is added

to read as follows:

§ 173.21 Forbidden materials and

packages.

* * * * *

(k) Notwithstanding any other

provision of this subchapter, including

§§ 171.11 and 175.10(a)(2) of this

subchapter, an oxygen generator

(chemical) as cargo on a passengercarrying aircraft until January 1, 1997.

This prohibition does not apply to an

oxygen generator for medical or

personal use of a passenger that meets

the requirements of § 175.10(a)(7) or

§ 175.10(a)(24) of this subchapter.

Issued in Washington, DC on May 23, 1996

under authority delegated in 49 CFR part 1.

D.K. Sharma,

Administrator, Research and Special

Programs Administration.

[FR Doc. 96–13404 Filed 5–23–96; 12:31 pm]

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