Nondiscrimination on the Basis of Disability in Air Travel-Medical Oxygen and Portable Respiration Assistive Devices, 53108-53117 [05-17605]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 172 (Wednesday, September 7, 2005)]
[Proposed Rules]
[Pages 53108-53117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17605]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. OST-2005-22298]
RIN 2105-AC29


Nondiscrimination on the Basis of Disability in Air Travel--
Medical Oxygen and Portable Respiration Assistive Devices

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation proposes to amend its rules 
implementing the Air Carrier Access Act of 1986, 14 CFR part 382, to 
provide greater accommodations in air travel for persons with 
respiratory disabilities. This notice of proposed rulemaking (NPRM) 
applies to U.S. air carriers and foreign air carriers operating flights 
in, to and from the U.S. The proposed rule establishes procedures 
within applicable U.S. and foreign safety rules for the carriage and 
use of portable respiration-related assistive devices and medical 
oxygen devices aboard commercial flights by passengers with 
disabilities.

[[Page 53109]]


DATES: Comment Closing Date: Comments must be received by November 7, 
2005. Comments received after this date will be considered to the 
extent practicable.

ADDRESSES: Please include the docket number of this document in all 
comments submitted to the docket. Written comments should be sent to 
Docket Clerk, Department of Transportation, 400 7th Street, SW., Room 
PL-401, Washington, DC 20590. For confirmation of the receipt of 
written comments, commenters may include a stamped, self-addressed 
postcard. The Docket Clerk will date-stamp the postcard and mail it 
back to the commenter. Comments are available for inspection at this 
address from 9 a.m. to 5 p.m., Monday through Friday. Comments can also 
be reviewed through the Dockets Management System (DMS) pages of the 
Department's Web site (https://dms.dot.gov). Commenters may also submit 
comments electronically. Instructions appear on the DMS Web site.

FOR FURTHER INFORMATION CONTACT: Ann G. Gawalt and Blane A. Workie, 
Office of Assistant General Counsel for Aviation Enforcement and 
Proceedings, 400 7th Street, SW., Room 4116, Washington, DC 29590. 
Phone: (202) 366-1677. TTY: (202) 366-9342. Fax: (202) 366-7152. E-
mail: ann.gawalt@dot.gov or blane.workie@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    In 1986, Congress passed the Air Carrier Access Act (ACAA) which 
prohibits discrimination in airline service on the basis of disability. 
Since the Department issued the final rule implementing the ACAA, 14 
CFR part 382 (part 382) in 1990, it has amended part 382 ten times.\1\ 
Part 382 does not require any specific accommodations by air carriers 
for passengers who use supplemental medical oxygen during commercial 
flights.\2\ In November 2004, the Department issued an NPRM proposing 
to revise part 382 to cover foreign air carriers (hereinafter Foreign 
Air Carrier NPRM). See 69 FR 64364. That Foreign Air Carrier NPRM does 
not contain any proposed substantive regulatory changes relating to the 
carriage and use of medical oxygen by passengers with disabilities 
aboard commercial flights.
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    \1\ The dates and citations for these amendments are the 
following: April 3, 1990; 55 FR 12341; June 11, 1990; 55 FR 23544; 
November 1, 1996; 61 FR 56422; January 2, 1997; 62 FR 17; March 4, 
1998; 63 FR 10535; March 11, 1998; 63 FR 11954; August 2, 1999; 64 
FR 41703; January 5, 2000; 65 FR 352; May 3, 2001; 66 FR 22115; July 
8, 2003; 68 FR 40488.
    \2\ Under 14 CFR 382.33(b)(1), an air carrier may require a 
passenger to provide 48 hours advance notice to request medical 
oxygen for use on board the aircraft, if the carrier chooses to make 
this service available on the flight.
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    The Department is proposing a rule at this time to address the 
carriage and use of supplemental oxygen devices by passengers on 
commercial flights. There are several reasons for this initiative. 
First, the Department consistently receives complaints from consumers 
regarding the lack of accommodations in air travel for passengers who 
use medical oxygen. These complaints generally allege that there are a 
limited number of carriers that provide supplemental oxygen service 
(several major carriers do not); that the service, when available, is 
prohibitively expensive, at times exceeding the cost of air 
transportation \3\; and that those passengers who need supplemental 
oxygen have to independently arrange with medical supply companies for 
additional supplies of oxygen during layovers and connections between 
flights. As a result, many passengers with respiratory disabilities are 
not able to avail themselves of air transportation readily available to 
the general public. Because the Department views these consumer 
complaints and the issues they raise seriously, the Department is 
proposing to amend part 382 to address these matters.
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    \3\ The Department is aware of one survey which shows that the 
cost of supplemental oxygen can range from an additional $64 to 
$1500 per trip. James Stoller, A Comparative Analysis of Arranging 
In-Flight Oxygen Aboard Commercial Air Carrier, Chest (April 1999).
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    Second, we believe a rulemaking is necessary because of the 
technological advances in oxygen-delivery systems. In April 2002, a 
letter from a coalition of medical and patient groups made the 
Department aware of state of the art technology in three types of 
oxygen delivery systems: portable oxygen concentrators, portable liquid 
oxygen units, and safety-sealed compressed oxygen. The Department then 
carefully considered how these devices could be approved for carriage 
and use by passengers during commercial flights within the existing 
safety regulatory scheme.
    During this process, the Department's Pipeline and Hazardous 
Materials Safety Administration (PHMSA), formerly the Research and 
Special Programs Administration (RSPA), determined that the portable 
concentrator units manufactured by AirSep Inc. and Inogen Inc. do not 
contain hazardous materials and therefore are not subject to PHMSA's 
regulations. The other two devices (liquid oxygen units and safety-
sealed compressed oxygen), unless exempted, would be subject to 49 CFR 
175.75(a), PHMSA's safety regulation covering the carriage of hazardous 
materials aboard commercial aircraft.
    The Federal Aviation Administration (FAA) also made several 
important determinations with respect to oxygen delivery systems. 
First, it decided that the carriage and use of all oxygen delivery 
devices, including portable concentrators deemed not to contain 
hazardous material, would require either an exemption from 14 CFR 
121.574, 125.219, or 135.91, its rules covering oxygen delivery 
systems, or approval through a separate rulemaking. Because it did not 
receive an exemption petition from an air carrier prior to July 2004, 
the FAA issued an NPRM proposing to permit air carriers to allow 
passengers to use certain types of portable oxygen concentrators during 
commercial flights subject to certain conditions. See 69 FR 42324. On 
July 12, 2005, the FAA issued a final rule that permits air carriers to 
allow passengers to use Air Sep Lifestyle and Inogen One portable 
oxygen concentrator units during commercial flights provided carriers 
and passengers comply with certain conditions. See 70 FR 40156. As a 
corollary to the FAA rulemaking on allowing the use of certain portable 
oxygen concentrators, the Department is now proposing a rulemaking to 
address the treatment of these portable oxygen concentrators as an 
assistive device in air travel.
    The FAA also determined that other passenger-owned medical oxygen 
devices could be used during commercial flights if the air carrier 
agrees to inspect and test the equipment in accordance with 14 CFR 
121.574, 125.219, or 135.91, as appropriate, and then furnish the 
devices to the passengers for their flights.
    Finally, the Department is proposing a rule because passengers who 
use other respiratory assistive devices such as respirators and 
ventilators have also complained that they have not been able to travel 
on certain flights because carriers were concerned about possible 
electromagnetic interference (EMI) with aircraft navigation and 
communication systems. Because portable electronic devices including 
portable electronic assistive devices emit some type of electromagnetic 
waves, FAA safety regulations require that air carriers test these 
devices to determine if the devices' radio frequencies interfere with 
its aircrafts' systems before permitting the devices to be used in 
flight. We believe a number of foreign governments have similar 
requirements.

[[Page 53110]]

    Currently, part 382 requires carriers to permit the carriage and 
the use of ventilators and respirators in accordance with PHMSA and FAA 
regulations. As proposed, the Foreign Air Carrier NPRM would impose the 
same requirement on foreign air carriers. However, neither part 382 nor 
the Foreign Air Carrier NPRM requires carriers to conduct the necessary 
EMI evaluation required under FAA rules or applicable foreign rules to 
determine whether the use of these devices would cause interference 
with aircraft navigation and communication systems. Therefore, the 
Department is proposing this rule to address this gap in the 
regulations so that passengers who use ventilators or respirators can 
be assured greater access to air travel.

Formatting

    This NPRM has been formatted in accord with the format of the 
Foreign Air Carrier NPRM issued on November 4, 2004, which proposes to 
apply 14 CFR part 382 to foreign air carriers and convert part 382 into 
a question-and-answer format. The Department proposes that the instant 
NPRM apply to foreign carriers. Additionally, the Department will 
ultimately merge the final rule resulting from the instant NPRM with 
any final rule that results from the November 4, 2004, Foreign Air 
Carrier NPRM. Because of this, the instant NPRM is in a question-and-
answer format and the section numbering is consistent with the November 
4, 2004, NPRM.

Section-by-Section Analysis

    This portion of the preamble discusses each section of the proposed 
rule.

Section 382.3 What do the Terms in This Part Mean?

    This section proposes to supplement the proposed rule text of the 
November 2004 Foreign Air Carrier NPRM by adding the meaning of the 
term ``PHMSA.''

Section 382.5 To Whom do the Provisions of This part apply?

    This NPRM proposes to be applicable to certain U.S. and foreign air 
carriers. The instant NPRM applies to foreign air carriers in nearly 
the same manner as proposed in the November 4, 2004, Foreign Air 
Carrier NPRM since the proposed rule would apply to any flight that 
begins or ends at a U.S. airport, as the word ``flight'' is defined in 
the NPRM. To the extent that individuals have already submitted 
comments regarding the extension of part 382 to foreign carriers in 
response to the November 4, 2004, Foreign Air Carrier NPRM, those 
comments will be considered with regard to the final rule issued as a 
result of the instant NPRM.
    However, this NPRM does not propose to make the requirements 
relating to the carriage and use of portable respiration assistive 
devices and medical oxygen devices aboard commercial flights applicable 
to all U.S. carriers and foreign air carriers operating to and from the 
U.S. but rather proposes to limit the applicability of the requirements 
to certain U.S. and foreign air carriers as described in sections 
382.133 and 382.135. As a result, the instant NPRM would change section 
382.5 as proposed in the Foreign Air Carrier NPRM by adding the phrase 
``except as otherwise indicated within this part'' to section 382.5(a) 
which addresses the applicability of part 382 to U.S. carriers and 
382.5(b) which addresses the applicability of part 382 to foreign air 
carriers. No other change to section 382.5 has been made.

Section 382.133 What Are the Requirements Concerning the Evaluation and 
use of Passenger-Owned Electronic Devices That Assist Passengers With 
Respiration in the Cabin During Flight and That do not Contain 
Hazardous Materials?

    FAA regulations state that U.S. air carriers may not permit 
passengers to operate portable electronic devices during a flight 
except for certain devices listed in those sections and any other 
device that the carrier has determined will not cause interference with 
the navigation or communication system of the aircraft on which it is 
to be used. See, 14 CFR 91.21, 121.306 and 135.144. The Department 
recognizes that foreign carriers operate under a variety of safety laws 
and regulations, and is proposing that foreign carriers permit 
passengers to carry and use electronic devices consistent with the 
foreign law involved. In proposed section 382.133, the Department is 
proposing that U.S. and foreign air carriers be required to (1) test 
certain types of electronic respiratory assistive devices in accordance 
with U.S. and foreign safety rules, as applicable, and (2) permit the 
use of those devices within applicable U.S. and foreign safety 
regulations during all phases of commercial flight if they have had 
positive safety determinations.

Applicability to Carriers

    As proposed, section 382.133 applies to all U.S. carriers that 
conduct passenger-carrying service other than those carriers that are 
operating as on-demand air taxis. An on-demand air taxi is an air taxi 
operator which carries passengers or property and is not a commuter air 
carrier as defined in 14 CFR part 298. A commuter air carrier is an air 
taxi operator that carries passengers on at least 5 round trips per 
week on at least one route between two or more points according to its 
published flight schedules that specify the times, days of the week and 
places between which those flights are performed. See, 14 CFR 298.2. 
This proposal also applies to foreign air carriers operating to and 
from the United States that conduct passenger-carrying service and are 
not on demand air taxi operators. We specifically request comment as to 
whether the Department should limit coverage of this section to 
carriers operating larger than 60 seat aircraft, i.e., excluding 
carriers operating only small aircraft. Do carriers that operate only 
small aircraft have special needs or problems with complying with 
proposed section 382.133 of which the Department should be aware? Also, 
should the scope of this section be further limited so that flights 
performed by commuter carriers would not be covered?

Types of Portable Respiration-Related Assistive Devices Covered

    Section 382.133 proposes to address the carriage of four types of 
respiratory devices: ventilators, respirators, continuous positive 
airway pressure (CPAP) machines, and portable oxygen concentrators 
excepted from coverage under 14 CFR 121.574 and 135.91. The language of 
382.133(a) is intended to make clear that this section covers only 
those oxygen concentrators that the FAA, through a rulemaking, has 
specifically excepted from 14 CFR 121.574 and 14 CFR 131.91 coverage. 
Currently, the Air Sep Lifestyle and Inogen One portable concentrator 
units have been excepted from such coverage and qualify under 
subsection (1).
    If an applicable foreign safety regulation precludes a foreign 
carrier from permitting passengers to carry the four types of 
respiratory devices mentioned above, this section would not require 
their carriage or use. The language of 382.133(b) is intended to make 
clear that this section only covers those respirators, ventilators, 
CPAP machines and oxygen concentrators that are not restricted by 
foreign government safety rules. As stated previously, it is the 
Department's intention to address the carriage and use of electronic 
respiratory devices within applicable safety rules. Therefore, as an 
example, if a foreign carrier is prohibited from carrying an oxygen 
concentrator because of its homeland safety requirements,

[[Page 53111]]

then that foreign carrier would not be required to test, carry, or 
permit the use of such device on flights to and from the U.S. The 
Department seeks comment and information from foreign governments, 
foreign carriers, and other interested parties on the following 
questions regarding foreign safety restrictions affecting the carriage 
and use of electronic respiratory assistive devices. What foreign 
governments, if any, prohibit the carriage and use of respiratory 
devices? What devices, if any, are specifically prohibited by foreign 
safety rules? Describe safety restrictions other than prohibitions on 
these types of devices. Other than safety prohibitions or restrictions, 
what other foreign restrictions apply to the carriage and use of 
electronic assistive devices?

Proposed Testing Requirements

    Section 382.133 proposes to require that, upon a request from a 
person with a disability or manufacturer of a device described above to 
a U.S. or foreign air carrier, the carrier would make a one-time 
determination whether such respiration assistive device can be carried 
safely in accordance with FAA or applicable foreign safety rules. For 
U.S. carriers, the rule proposes that carriers first determine whether 
the device is electronic and therefore subject to FAA regulations, 
i.e., 14 CFR 91.21, 121.306 or 135.144. If the device is subject to 
those regulations, proposed section 382.133(a)(2) would require that 
U.S. air carriers conduct the necessary evaluation and/or 
electromagnetic (EMI) testing to determine whether such a respiratory 
assistive device causes interference with aircraft communication and 
navigation systems. Under subsection 382.133(b) foreign air carriers 
would also be required to make any necessary evaluations or conduct any 
necessary testing under applicable foreign requirements to determine if 
such device can be safely used during flight.\4\ The Department 
requests comments as to the benefit or detriment of requiring 
passengers requesting the testing of ventilators, respirators, CPAP 
machines, and portable oxygen concentrators to either provide carriers 
with the applicable manufacturer's contact information when submitting 
the device for testing or to have the manufacturer provide the device 
directly to the carrier.
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    \4\ Foreign air carriers that are operating U.S. registered 
aircraft on flights in, to, and from the United States could be 
subject to the safety requirements of 14 CFR 91.21. Foreign air 
carriers operating non-U.S. registered aircraft may also be subject 
to foreign requirements similar to section 91.21.
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    This section also proposes that U.S. air carriers test each device 
model for each model of aircraft that they operate. With respect to 
foreign carriers, this section proposes to require that foreign 
carriers test each device model for each aircraft model that they 
operate on flights to and from the United States. The testing for a 
device model is intended to be limited to a one-time testing event for 
each aircraft model covered by the rule. The Department intends that 
once a carrier completes the review and testing of a device, then the 
carrier would permit all positively tested devices of the same model to 
be used by passengers with disabilities on that model of aircraft. In 
other words, if a carrier determines that ``Acme ventilator'' owned by 
Passenger X does not cause interference with its Airbus A-320 or Boeing 
747-400 aircraft that it operates and therefore permits Passenger X to 
use it on his flight, then Passenger Y and all other qualified 
passengers should be permitted to use the same model of the ``Acme 
ventilator'' during all flights on A-320's or 747-400's operated by 
that carrier.
    The Department expects that carriers will test any device submitted 
for use during all phases of flight, including take-offs and landings. 
Since these devices are used to assist a person to breathe, a passenger 
may need to use his or her device during ascent and descent. Of course 
if a device is found to interfere with navigation or communications 
equipment during a particular phase of a flight, then its use must be 
prohibited during that phase of flight.
    The Department recognizes that this proposal could require a 
carrier to conduct a number of tests during the initial compliance 
phase that other carriers will conduct or have conducted. However, as 
noted by the FAA in its July 12, 2005, final rule on use of certain 
portable oxygen concentrator devices onboard aircraft, if a medical 
portable electronic device (M-PED) such as the Inogen One or the AirSep 
Lifestyle has been tested to meet the Radio Technical Commission for 
Aeronautics (RTCA) standard found in FAA Advisory Circular 91.21-1A, 
and the test results are provided to, and verified by, the aircraft 
operator, no further testing by the aircraft operator would be 
required. The Department seeks comment on other ways, if any, to 
streamline the testing requirement for respiratory devices, including 
whether aircraft manufacturers should have a role in evaluating devices 
for use on a given model of aircraft.

Time Limits for Testing and Acceptance of a Device

    The Department is proposing that a carrier have 90 days from 
receipt of a request to test a device on each model of aircraft it 
operates, and 30 days from the date of a positive determination to 
implement procedures to permit the device's use. The Department is 
proposing a total of 120 days to conduct the evaluation and make 
operational decisions and changes, if any, because such a timeframe 
appears to be a reasonable time given the number of models of aircraft 
some carriers operate. The Department seeks comment with respect to the 
amount of time reasonably necessary to conduct required evaluations and 
testing.

Requirements Regarding Use of Respiratory Assistive Devices

    Section 382.133(d) proposes to require that carriers allow 
passengers to carry on board and use a portable respiratory assistive 
device on any aircraft model on which the device passed its safety 
evaluation and testing. Consistent with the FAA final rule on portable 
oxygen concentrators, subsection (d) does not propose to permit 
carriers to prohibit the use of these respiratory assistive devices 
during the ascent and descent stages of the flight, assuming use of the 
device is determined to be safe. However, if a carrier determines that 
a respiratory device can not be safely used during the ascent and 
descent, but can be used during all other phases during a flight, the 
carrier must permit use of that device during those phases when it can 
be safely used. The reason for this proposal is that some users of CPAP 
machines and oxygen concentrators do not need to use their devices 
until they reach a certain altitude such as cruising altitude or can go 
without using their devices during takeoff and landing. Because this 
proposal deviates from some carriers' standard practice in which all 
electronic devices are turned off during take-off and landing, the 
Department seeks comments as to any issues that may arise as a result 
of this particular proposal.
    The intent of section 382.133 as proposed is to create a system 
where on the day of flight a passenger with a disability can carry his 
or her approved respiratory device, such as a portable oxygen 
concentrator, from his or her home to the airport, through check-in, to 
the gate, and then on to the aircraft for

[[Page 53112]]

use during flight.\5\ It is also worth noting that section 382.41(c) of 
the current rule requires U.S. carriers to permit passengers with 
disabilities to stow assistive devices, including the four types of 
respiratory devices addressed in this NPRM, in the cabin consistent 
with FAA safety regulations. The November 4, 2004, NPRM proposed to 
extend this same requirement to foreign carriers in section 382.121. 
The instant NPRM maintains this requirement of the current rule and 
proposed section 382.121 of the November 4, 2004, NPRM. Further, it 
raises five additional issues on which the Department solicits comment:
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    \5\ The Transportation Security Administration has developed 
standard operating procedures to screen respiratory devices for 
security purposes.
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    (1) Passenger Information. We believe that a passenger who uses a 
respiratory device could have an extremely frustrating travel 
experience if he or she discovers on the day of the flight that the 
carrier will not accept his or her particular model of device because 
it can cause interference with the navigation or communication systems 
on the aircraft model the carrier is using to operate the passenger's 
flight. Part 382 currently requires that when a passenger with a 
disability requests information about an accommodation, the carrier 
must provide this passenger information on any limitation involved in 
providing the accommodation in question. See 14 CFR 382.45(a)(2). Also 
see, 14 CFR 382.41 in the November 4, 2004 Foreign Air Carrier NPRM. We 
have interpreted this section to mean that carriers must inform 
passengers who inquire about oxygen service or who make reference to a 
respiratory disability if accommodations such as the provision of 
medical oxygen are not offered for certain flights. Therefore, we 
believe that 382.45(a)(2) would require that carriers inform 
passengers, on request, about any restrictions on using their personal 
respiratory assistive devices aboard the carrier's flights. For 
example, we would expect that a carrier would explain to a passenger 
who requests to use an ``Acme CPAP machine'' on flight 123 that this 
device can only be used on flight 123 after takeoff and before landing, 
if appropriate. We would also expect that a carrier would inform the 
passenger, upon request, about the availability or lack thereof of 
electrical outlets on board aircraft that might be available to power 
the device.
    To provide this type of information, we anticipate that carriers 
would need to maintain a list or some type of operational guidance for 
its reservations agents itemizing the devices the carriers have 
evaluated and the results of the evaluations. The Department seeks 
comments on the following questions: What issues are involved in air 
carriers maintaining a centralized list of approved and disapproved 
devices? To what extent should carriers be required to provide 
information to disabled air travelers? Should carriers be required to 
inform passengers if a device is in the process of being evaluated? 
Should information about evaluations and acceptance/rejection of 
particular devices be placed on each carrier's Web site? What issues 
are raised if carriers are required to provide information on the 
limitations of the carriers' codeshare partners to accommodate the use 
of respiratory devices? What issues are raised in connection with 
codeshares if the ticketing carrier is aware that the carrier operating 
the codeshared flight has not conducted the necessary testing to allow 
for the use of a respiratory device? What process or procedures do U.S. 
carriers use today to ensure their travel agents comply with current 
requirements in section 382.45 regarding providing information to 
passengers about the accessibility features of an aircraft (e.g., 
location of movable armrests, limitations on the ability of the 
aircraft to accommodate qualified individuals with disabilities)? Would 
carriers be able to use the same or similar method to ensure their 
travel agents inform passengers who inquire about oxygen service or who 
make reference to a respiratory disability if appropriate 
accommodations are not offered for certain flights?
    (2) Advance Notice: Currently, section 382.33(b) permits carriers 
to require passengers who request medical oxygen service for their 
flight or who plan to hook up their respirator to the aircraft's 
electrical supply to provide 48 hours advance notice. What are the 
operational reasons, if any, in support of permitting carriers to 
require a passenger with a disability to provide advance notice of his 
or her intention to use a battery-operated CPAP machine, an approved 
portable oxygen concentrator, or a respirator or ventilator aboard a 
flight? What are the operational reasons, if any, in support of 
permitting carriers to require a passenger with a disability to provide 
advance notice of his or her intention to use the aircraft electrical 
system? What issues would arise for passengers with disabilities if 
carriers were permitted to require advance notice for use of a 
respiratory device? What is a reasonable amount of advance notice?
    (3) Advance check-in time: Current section 382.33(b) also permits 
air carriers to require that passengers who request medical oxygen 
service for their flight or who plan to hook up their respirator to the 
aircraft's electrical supply to check in an hour prior to their flight. 
What are the operational reasons, if any, for requiring passengers who 
request to use their respiratory assistive device to comply with an 
advance check-in deadline? What issues would passengers who use 
respiratory assistive devices face if carriers were permitted to 
require an advance check-in deadline? What would be a reasonable length 
of time for the advance check-in? Would an hour before the check-in 
time set by the carriers for general boarding passengers to present 
themselves at the airport be a reasonable amount of time to conduct any 
necessary check-in procedures associated with the carriage of the 
device? Should the length of time for advance check-in differ for 
international flights?
    (4) Seating accommodations: We believe that a passenger who uses 
electronic respiratory assistive devices (e.g., ventilator, respirator, 
CPAP machine, or portable oxygen concentrator) should be given priority 
over users of other types of electronic equipment that are not 
assistive devices (e.g., laptops) to plug the device into the 
aircraft's power supply consistent with FAA and foreign safety 
requirements. As such, we are seeking comment on whether to require 
that, if an electrical outlet is available on the aircraft and can 
safely be used, carriers must provide a seat, in the same class of 
service, closest to the electrical outlet to a passenger who self-
identifies as using the electronic respiratory assistive device and 
requests such a seat. The Department also seeks comment on whether 
there are any practical problems to implementing the proposed seating 
accommodation. If there are problems, we seek comment on how to avoid 
them while still accommodating passengers in this situation.
    (5) Batteries: Because respirators, ventilators, CPAP machines and 
the covered oxygen concentrators can be powered by batteries, the 
Department is seeking additional information in this area. More 
specifically, DOT requests comments as to whether it should allow 
carriers to require users of electronic respiratory devices to carry a 
certain number of batteries in instances where electrical outlets are 
not available on an aircraft. Should the Department also allow carriers 
to require users of electronic respiratory devices to carry a certain 
number of batteries even in instances where an aircraft has an 
electrical outlet available as a way of protecting against unexpected

[[Page 53113]]

occurrences (e.g., the aircraft electrical system is inoperative or 
otherwise unusable or an aircraft without outlets is suddenly 
substituted for an aircraft with outlets)? The Department recognizes 
that the FAA final rule on use of certain portable oxygen concentrator 
devices onboard aircraft issued on July 12, 2005, states that the user 
of a portable oxygen concentrator must carry on the flight a sufficient 
number of batteries to power the device for the duration of the oxygen 
use specified in the user's physician statement, including a 
conservative estimate of any unanticipated delays. DOT seeks comment 
regarding what action it should authorize the carrier to take if a 
passenger does not have available to carry on a flight a sufficient 
number of batteries to power an electronic respiratory assistive 
device.
    The Department further seeks comment and information as to whether 
manufacturers place labels on all ventilators, respirators, CPAP 
machines, and/or Air Sep Lifestyle and Inogen One portable oxygen 
concentrators which would provide carriers assurance that the batteries 
to be used for these devices are approved for air travel. If such a 
label is not present on a device, DOT seeks comment on whether carriers 
should be permitted to prohibit a passenger with a disability from 
carrying the device or using it during flight. The Department requests 
comments regarding the benefit or determinant of such an approach. DOT 
also seeks comment regarding what action it should authorize the 
carrier to take or what action to require the carrier to take if a 
passenger does not ensure that the electronic device batteries carried 
are packaged in a manner that protect them from physical damage as 
required by the FAA.

Section 382.135 What Are the Requirements Concerning the Provision of 
Medical Oxygen for Passengers With Disabilities?

    In this section, the Department is proposing to require carriers to 
provide in-flight medical oxygen to passengers with disabilities who 
request and require it on commercial flights in accordance with 
applicable safety rules.

Applicability to Carriers

    As proposed, section 382.135 would apply to U.S. carriers that 
conduct passenger-carrying service with at least one aircraft having a 
designed seating capacity of more than 60 passengers and foreign air 
carriers operating to and from the United States that conduct 
passenger-carrying service with at least one aircraft having a designed 
seating capacity of more than 60 passengers. It is worth noting that 
under this NPRM if a U.S. carrier operates both large aircraft 
(aircraft with more than 60 seats) and small aircraft, then all flights 
of that airline are covered regardless of the size of the aircraft used 
on a particular flight. If a foreign airline operates both large and 
small airplanes to and from the United States, the flights on the small 
airplanes would be covered because the airline holds authority to fly 
large airplanes. We request comment about the feasibility and/or 
difficulties inherent in providing in-flight medical oxygen in small 
aircraft. Should the scope of this section be limited to large aircraft 
(aircraft with more than 60 seats)? What would be the harm or benefit 
of such a limitation? The kinds of foreign air carriers that we propose 
to cover under this NPRM in terms of scheduled carriers flying large 
aircraft are as similar as possible to the U.S. air carriers that we 
propose to cover considering the different legal authority applicable 
to foreign operators.

Applicable Safety Regulations

    This NPRM is designed to create greater access to air travel for 
persons who use medical oxygen by proposing a system within the 
existing aviation safety regulatory structure concerning oxygen. U.S. 
and foreign air carriers are subject to 14 CFR 121.574 and 135.91. 
Sections 121.574 and 135.91 specifically apply to U.S. carriers. 
Although these two sections do not specifically apply to foreign 
carriers, foreign carriers are nonetheless required to follow 14 CFR 
121.574 and 135.91 when providing medical oxygen because of the U.S. 
regulations regarding the carriage of hazardous materials. 
Specifically, 49 CFR 175.10(a) (7) requires foreign carriers to follow 
the standards set forth in 14 CFR 121.574 or 135.91 when providing 
medical oxygen on commercial flights in U.S. airspace.
    Sections 121.574 and 135.91 set forth a number of safety 
requirements for carriers to follow when providing medical oxygen. Some 
of these requirements include: (1) The medical oxygen device used by 
the passenger must be provided by the carrier, (2) a passenger who uses 
a carrier-supplied medical oxygen device must demonstrate to the 
carrier that he or she has a medical need for such device by providing 
a medical statement signed by a licensed physician which specifies the 
maximum quantity of oxygen needed each hour and the maximum flow rate 
needed for the pressure altitude corresponding to the pressure in the 
cabin of the aircraft, and (3) no person, other than carrier personnel, 
may connect or disconnect a passenger to and from a gaseous oxygen 
cylinder while any other passenger is aboard the aircraft.
    This section also proposes to require that U.S. and foreign air 
carriers adhere to any applicable Transportation Security 
Administration (TSA), FAA, PHMSA, and foreign safety regulations when 
providing medical oxygen service. The Department recognizes that in 
some situations more restrictive foreign aviation regulations rather 
than FAA, TSA, or PHMSA rules may govern the actions of foreign 
carriers with respect to the carriage and use of medical oxygen aboard 
aircraft.

Type of Carrier-Supplied Oxygen Devices

    Section 382.135 proposes a system where carriers would be required 
to provide oxygen devices covered by 14 CFR 121.574 or 135.91, such as 
compressed oxygen canisters. The Department understands that compressed 
medical oxygen dispensed from canisters can provide a purity of oxygen 
and flow rate that are required by most if not all individuals 
dependent on medical oxygen. The Department recognizes that devices 
such as the Air Sep AirLife oxygen concentrator unit, \6\ Air Sep 
Lifestyle portable oxygen concentrator unit, and Inogen One portable 
oxygen concentrator unit did not exist when 14 CFR 121.574 or 135.91 
were initially adopted by the FAA. However, it appears from the 
manufacturers' materials that oxygen concentrators can deliver a 
comparable purity of oxygen and flow rate to that of a canister. The 
Department would be willing to consider a carrier that provides a 
concentrator in lieu of a compressed oxygen canister to be in 
compliance with this proposed requirement if the concentrator provided 
the same medical oxygen service as a compressed oxygen canister. 
Therefore, the Department seeks comment from the medical professional 
community, manufacturers of oxygen devices, persons dependent on 
medical oxygen, air carriers, and all other interested parties to 
address the following questions: Do oxygen concentrators provide 
medical oxygen at a purity level and flow rate required by most 
individuals dependent on medical oxygen? What other devices dispense 
medical oxygen with the same or comparable purity and flow rate as 
compressed oxygen delivered from a

[[Page 53114]]

canister? What medical reasons would prevent a person who requires 
medical oxygen from using a large (e.g. the Air Life concentrator) or 
portable oxygen concentrator?
---------------------------------------------------------------------------

    \6\ This is a large concentrator unit designed to fit underneath 
the seat of an aircraft and is apparently used by some foreign air 
carriers to provide medical oxygen to passengers with disabilities.
---------------------------------------------------------------------------

Extent of the Medical Oxygen Service

    Proposed section 382.135 would require that U.S. and foreign 
carriers provide only in-flight medical oxygen service. This means that 
under this proposal, carriers are only required to provide a medical 
oxygen device to a requesting passenger with a disability for use on 
board the aircraft. Passengers who require medical oxygen in canisters 
in the airport must arrange with oxygen suppliers for separate airport 
service for several reasons.\7\ First, FAA safety rules contemplate 
that carrier-supplied oxygen will only be provided on the aircraft 
itself and not in the airports. Second, the cost to provide medical 
oxygen service from a passenger's arrival at the curb for departing 
flight to the curb upon arrival of a passenger's flight would be 
prohibitively expensive because a carrier would have to train and 
assign personnel to stay with the oxygen device while in the airport in 
order to maintain control of the device as required by FAA rules.
---------------------------------------------------------------------------

    \7\ Passengers may also use their own oxygen concentrator units 
in airports.
---------------------------------------------------------------------------

Advance Notice Requirements

    This section would not amend the current requirement that carriers 
that provide medical oxygen to passengers with disabilities may require 
up to 48 hours' advance notice from the passenger for the service. 
Should the Department require a longer period of time for advance 
notice for international flights?

Timeframe To Implement a Carrier-Supplied Medical Oxygen System

    Carriers would have up to six months from the date the rule becomes 
final to establish a system to provide medical oxygen to passengers 
with disabilities upon request. The Department seeks comment on what a 
reasonable amount of time would be to establish a system to provide 
medical oxygen to passengers with disabilities.

Other Issues

    The Department seriously considered proposing that U.S. and foreign 
air carriers be required to implement a system that would allow 
passengers before their trips to submit their own canisters of 
compressed oxygen to carriers for testing. The Department considered a 
system in which a passenger would have been permitted to submit his or 
her own canisters of compressed oxygen to a carrier at least five days 
prior to his or her flight for carrier inspection and maintenance of 
the canisters in accordance with applicable safety regulations. The 
carrier would then have been required to furnish the devices to the 
passenger for use during the passenger's flight if the canisters were 
deemed safe. If the canisters were not deemed safe, the Department 
considered proposing that the carrier be required to return the oxygen 
canisters to the passenger with a written explanation as to why the 
passenger's device was not acceptable no later than 24 hours prior to 
the passenger's flight and refund any unused portion of the passenger's 
ticket.
    However, after further review, it became apparent that the above 
approach, if proposed, would create several problematic issues for both 
passengers and air carriers. First, the system would have deprived 
oxygen users of their oxygen canisters for at least 5 days in order to 
allow enough time for the carriers to conduct FAA-mandated testing, 
inspection, and maintenance of the canisters. This would have created a 
burden on passengers who would have had to order additional canisters 
from suppliers in order to be assured they had enough canisters to 
cover the 5 days the carrier had control of their devices.
    This system also would have created a complicated procedure 
requiring coordination between passengers, air carriers, and oxygen 
suppliers. For example, a carrier would have had to create a place to 
accept and stow the devices, communicate clearly to the passenger where 
to deliver the devices and train employees to appropriately accept the 
devices in order to obtain the necessary information about the 
canisters. The carrier would then have had to either create an in-house 
system to inspect and test the canisters or create a system in which it 
transported the oxygen canisters to approved medical oxygen suppliers 
to conduct the testing. All carriers would also have had to arrange for 
the oxygen canisters to be delivered to the passenger's point of 
departure. This coordination would have had to have been accomplished 
at least 36 hours prior to the passenger's flight in order to provide 
the carrier with enough time to inform the passenger if the canister 
failed the required tests.
    Most importantly, under current FAA regulations, an air carrier can 
only provide oxygen canisters to passengers for use during flight that 
the carrier has purchased new or those on which the carrier has 
performed its last hydrostatic safety test. In order to conduct a 
hydrostatic test on the canister, the canister must be purged of its 
compressed oxygen. Therefore, because of current FAA safety 
regulations, carriers would still be required to fill empty canisters 
after their testing and inspection by the carriers. Moreover, oxygen 
tanks can be subjected to hydrostatic testing only a limited number of 
times for safety reasons. For all of the reasons discussed above, the 
Department has concluded that an effective system in which a passenger 
submits his or her own compressed oxygen canister system for carrier 
inspection and maintenance cannot be created at this time. Therefore, 
the Department will address the use of medical oxygen tanks by 
proposing to require a system in which carriers' supply their own 
medical oxygen tanks to the passengers.
    The Department has also received a letter from a coalition of 
medical professionals and users of supplemental oxygen asking the 
Department to consider creating a system for the provision of medical 
oxygen by using pre-approved oxygen delivery kits. The coalition asked 
if the Department would consider whether passengers could rent or 
purchase oxygen kits from an oxygen vendor approved by DOT, FAA or the 
Department of Homeland Security. A passenger would pick up his or her 
device from a pre-approved vendor and carry the device in its tamper 
proof container to the airport for check-in on the day of the flight. 
The passenger would present the unopened tamper-proof oxygen kit to the 
airline staff. The airline staff would be responsible for ensuring that 
the oxygen kit (1) has not been tampered with and (2) is an approved 
oxygen system. As a preliminary response, the Department notes that the 
provision of any oxygen delivery device that contains hazardous 
material or has not been the subject of a rulemaking or an exemption 
from FAA rules must comply with the requirements set forth in 14 CFR 
121.574 or 135.91. Chief among these is the requirement that the 
carriers maintain and furnish any oxygen-delivery system. The 
Department seeks comments and information on how such a pre-approved 
delivery kit proposal could be implemented consistent with FAA and 
foreign government safety regulations.

[[Page 53115]]

Section 382.137 May a Carrier Charge a Passenger for Costs Related to 
the Use of Passenger-Owned Respiration Assistive Devices or the 
Provision of Carrier-Supplied Medical Oxygen Devices?

    This section proposes that respiratory assistive devices and oxygen 
delivery systems be accorded the same treatment as other assistive 
devices and disability-related services required under part 382 such 
that a passenger would not be charged a fee for carrier-supplied 
medical oxygen, excess baggage fees for a passenger's respiratory 
assistive device, or fees for the cost associated with inspecting or 
testing a passenger's respiratory assistive device.
    The Department recognizes that this proposal would end the ability 
of air carriers to charge for the provision of medical oxygen, as they 
currently do. The Department also wishes to carefully evaluate the 
impact that the costs of such a required system would have on the 
airline industry. The regulatory evaluation prepared in conjunction 
with this NPRM found that the provision of a medical oxygen service at 
no cost to the disabled passengers would be a cost beneficial system. 
However, the Department is well aware that because of the unique 
characteristics of medical oxygen, the provision of medical oxygen can 
be costly. For example, medical oxygen is more costly than other type 
of compressed oxygen because it's required to be highly pure oxygen.
    Generally, carriers may not charge passengers for disability-
related services that provide equal access to air transportation 
because such charges would have a discriminatory effect. However, the 
Department seeks comment on whether the law would permit carriers to 
charge for the provision of medical oxygen? Specifically, the provision 
of medical oxygen may be distinguishable from other disability-related 
services because it requires a physician's prescription in order to 
obtain the service from the air carrier. In addition, the Department 
seeks comment on whether the Department has the authority to regulate 
the reasonableness of such charges under the ACAA or limit the charges 
to the carrier's costs if the law would permit carriers to charge for 
the provision of medical oxygen?
    The Department also wishes to clarify that under this proposal 
carriers cannot charge passengers for an additional seat if the oxygen 
canisters or other dispensing equipment is stowed under the passenger's 
seat or beneath the seat in front of the passenger using the medical 
oxygen. However, if the passenger who requires medical oxygen must in 
fact use more than one passenger seat because the equipment takes the 
space of two seats, then that passenger can be charged for an 
additional seat. On lengthy flights, carriers would have to stow oxygen 
tanks not in use in other stowage space on a priority basis.

Regulatory Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The Department has determined that this proposed rule is 
nonsignificant for purposes of both Executive Order 12866 and the 
Department of Transportation Regulatory Policies and Procedures. 
Because this NPRM will impose new requirements on U.S. and foreign 
carriers, however, the Department has produced a regulatory evaluation. 
The evaluation has determined that the proposals as set out in this 
NPRM are cost beneficial.
    Specifically, the regulatory evaluation estimates that for all U.S. 
carriers covered by these proposals, the average annual costs 
associated with this NPRM for U.S. carriers, when discounted to present 
value, would range from $18.6 million to $39.1 million. The analysis 
determined that for U.S. carriers the total annual benefits, also 
discounted to present value, would range from $40.2 million to $100.6 
million. For foreign carriers, the regulatory evaluation estimated that 
the average annual total costs associated with this NPRM would range 
from $4 million to $6.87 million and the total benefits would range 
between $18.52 million and $59.6 million. The Department seeks comment 
on the regulatory evaluation, its approach, and the accuracy of its 
estimates of costs and benefits.

Executive Order 13132 (Federalism)

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
notice of proposed rulemaking would not (1) have a substantial direct 
effect 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; (2) impose substantial direct 
compliance costs on state and local governments; or (3) preempt State 
law. Therefore, the consultation and funding requirements of Executive 
Order 13132 do not apply.

Executive Order 13084

    This notice of proposed rulemaking has been analyzed in accordance 
with the principles and criteria contained in Executive Order 13084 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this NPRM does not significantly or uniquely affect the 
communities of the Indian tribal governments and does not impose 
substantial direct compliance costs, the funding and consultation 
requirements of Executive Order 13084 do not apply.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 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 economic impact on a substantial number of small entities. 
I hereby certify that the rule proposed in this notice of proposed 
rulemaking will not have a significant economic impact on a substantial 
number of small entities. A direct air carrier or a foreign air carrier 
is a small entity if it provides air transportation only with small 
aircraft (i.e., aircraft designed to have a maximum passenger capacity 
of not more than 60 seats or a maximum payload capacity of not more 
than 18,000 pounds). See 14 CFR 399.73. This NPRM reduces costs to 
small carriers by proposing not to apply to them the more costly 
provision which would require a carrier to provide in-flight medical 
oxygen upon request. Taking into account the flexibility of the NPRM 
and the low overall costs, we conclude that the cost of compliance with 
this rule for small businesses will not have a significant impact on 
small businesses. Therefore, this rule will not have a significant 
economic impact on a substantial number of small businesses.

Paperwork Reduction Act

    The proposed rule does not contain information collection 
requirements that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 2507 et 
seq.).

Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this 
rulemaking.

List of Subjects in 14 CFR Part 382

    Air carriers, Civil rights, Individuals with disabilities, 
Reporting and recordkeeping requirements.


[[Page 53116]]


    Issued this 17th day of August, 2005, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
    For the reasons set forth in the preamble, the Department of 
Transportation is further proposing to amend the proposed rule 
published at 69 FR 64364, November 4, 2004, as follows:

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR 
TRAVEL

    1. The authority citation for part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 41702, 41310, 41705, and 41712.

    2. In Sec.  382.3, add the definition of ``PHMSA'' in alphabetical 
order.


Sec.  382.3  What do the terms in this part mean?

* * * * *
    PHMSA means the Pipeline and Hazardous Materials Safety 
Administration.
* * * * *
    3. Revise Sec.  382.5 to read as follows:


Sec.  382.5  To whom do the provisions of this part apply?

    (a) If you are a U.S. air carrier, this part applies to you with 
respect to all your operations and aircraft, regardless of where your 
operations take place, except as otherwise indicated within this Part.
    (b) If you are a foreign air carrier, this part applies to you with 
respect to flights that begin or end at a U.S. airport and to aircraft 
used for these flights, except as otherwise indicated within this Part. 
For purposes of this part, a ``flight'' means a continuous journey in 
the same aircraft or with one flight number that begins or ends at a 
U.S. airport. The following are some examples of the application of 
this term:

    Example 1. A passenger books a nonstop flight from Paris to 
Chicago. This is a ``flight'' for purposes of this part.
    Example 2. A passenger books a journey on a foreign carrier from 
Washington, DC, to Berlin. The foreign carrier flies nonstop to 
Frankfurt. The passenger gets off the plane in Frankfurt and boards 
a connecting flight, on the same or a different foreign carrier that 
goes to Berlin. The Washington-Frankfurt leg of the journey is a 
``flight'' for purposes of this part; the Frankfurt-Berlin leg is 
not (unless it is a code-shared flight with a U.S. carrier; see 
paragraph (c) of this section).
    Example 3. A passenger books a journey on a foreign carrier from 
New York to Cairo. The plane stops for refueling and a crew change 
in London. The passengers reboard the aircraft (or a different 
aircraft, assuming the flight number remains the same) and continue 
to Cairo. Both legs are parts of a covered ``flight'' for purposes 
of this part, with respect to passengers who board the flight in New 
York.
    Example 4. In Example 3, the carrier is not required to provide 
services under this part to a passenger who boards the aircraft in 
London and goes to Cairo. Likewise, on the return trip, the foreign 
carrier is not required to provide services under this part to a 
passenger who boards the aircraft in Cairo and whose journey ends in 
London.

Subpart I--Stowage of Wheelchairs, Other Mobility Aids, and Other 
Assistive Devices; Oxygen for Passengers

    4. Revise the title of subpart I of part 382 to read as set forth 
above.
    5. In subpart I of part 382, add Sec. Sec.  382.133, 382.135, and 
382.137, to read as follows:


Sec.  382.133  What are the requirements concerning the evaluation and 
use of passenger-owned electronic devices that assist passengers with 
respiration in the cabin during flight and that do not contain 
hazardous materials?

    (a) Upon receiving a request from any manufacturer of a ventilator, 
respirator, continuous positive airway pressure machine, or portable 
oxygen concentrator excepted from coverage under 14 CFR 121.574 or 
135.91, or from an individual who desires to use such a device during a 
flight in air transportation, a U.S. air carrier that conducts 
passenger carrying service, other than an on-demand air taxi operator 
must:
    (1) Make a one time determination as to whether the device is 
subject to 14 CFR 91.21, 121.306 or 135.144; and
    (2) If the device is subject to 14 CFR 91.21, 121.306 or 135.144, 
conduct any necessary evaluation or testing to determine if under 14 
CFR 91.21(b)(5), 121.306(b)(5) or 135.144(b)(5) such device will cause 
interference with the navigation or communication systems of each model 
of its aircraft irrespective of where aircraft is operated.
    (b) Upon receiving a request from any manufacturer of a ventilator, 
respirator, continuous positive airway pressure machine, or portable 
oxygen concentrator whose use during flight is not restricted by a 
foreign government safety requirement, or from an individual who 
desires to use such a device during a flight in air transportation, a 
foreign air carrier that conducts passenger carrying service other than 
an on-demand air taxi operator must conduct any necessary evaluation or 
testing, consistent with applicable foreign safety regulations, to 
ascertain whether such device can be used safely by passengers with 
disabilities during a flight on each model of its aircraft that it 
operates on flights to and from the United States.
    (c) U.S. and foreign air carriers must complete the necessary 
evaluation or testing described in paragraphs (a) and (b) of this 
section, respectively, within 90 days after receiving a request from 
any manufacturer of devices listed in paragraphs (a) or (b) or from an 
individual who desires to use such a device during a flight in air 
transportation.
    (d) Within 30 days after making the determinations described in 
paragraphs (a) through (c) of this section that a device may be 
operated safely during a flight, a carrier as defined in paragraphs (a) 
and (b) of this section must permit use of that model of device by 
passengers with disabilities aboard each aircraft model that it 
operates during those phases of flight in which the carrier has 
determined that the device may be safely used and consistent with 
applicable TSA, FAA, PHMSA, and foreign government safety regulations.


Sec.  382.135  What are the requirements concerning the provision of 
medical oxygen for passengers with disabilities?

    Each U.S. and foreign air carrier operating to, from, and in the 
United States conducting passenger operations with at least one 
aircraft with a designed seating capacity of more than 60 passenger 
seats shall provide in-flight medical oxygen, upon request, to a 
passenger with a disability in accordance with 14 CFR 121.574 or 
135.91, respectively, and consistent with any other applicable TSA, 
FAA, PHMSA and foreign government safety regulations. Carriers covered 
by this section have six months from the date of the issuance of the 
final rule to comply with the requirements of this section.


Sec.  382.137  May a carrier charge a passenger for costs related to 
the use of passenger-owned respiration assistive devices or the 
provision of carrier-supplied medical oxygen devices?

    Carriers required to permit the use of respiratory assistive 
devices described in Sec.  382.133 and to provide medical oxygen under 
Sec.  382.135 may not charge a passenger for transportation, testing, 
inspection, maintenance or provision of a device described in Sec.  
382.133 or Sec.  382.135 and that a passenger intends to use during 
flight. Prohibited charges include, but are not limited to, charges for 
medical oxygen supplied by the carrier, excess baggage charges, and 
charges for any transportation of a

[[Page 53117]]

device to or from a testing, inspection, or maintenance facility.
[FR Doc. 05-17605 Filed 9-6-05; 8:45 am]
BILLING CODE 4910-62-P