[Federal Register Volume 74, Number 198 (Thursday, October 15, 2009)]
[Rules and Regulations]
[Pages 52896-52900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24779]
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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
Hazardous Materials: Chemical Oxygen Generators
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA).
ACTION: Direct final rule.
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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
[[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 [deg]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 [deg]F for three hours. The 400 [deg]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 [deg]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 [deg]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 [deg]C (199 [deg]F) when
exposed to a 400 [deg]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
[[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
Sec. 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
[[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 Sec.
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
[[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.
0
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
0
1. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.
Sec. 172.101 [Amended]
0
2. In the Hazardous Materials Table, in Sec. 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]
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