[Federal Register: November 10, 2005 (Volume 70, Number 217)]
[Rules and Regulations]
[Page 68330-68333]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no05-2]
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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:
DOT Docket Web site: Go to http://dms.dot.gov and follow
the instructions for sending your comments electronically.
Government-wide rulemaking Web site: Go to http://www.regulations.gov
and follow the instructions for sending your
comments electronically.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
Fax: 1-202-493-2251.
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:
Minimum standards required in the interest of safety for
the design and performance of aircraft;
Regulations and minimum standards in the interest of
safety for inspecting, servicing, and overhauling aircraft; and
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://
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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