Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2351 

amending the Class E airspace at 

Alamosa, CO. Additional controlled 

airspace is necessary to accommodate 

IFR aircraft executing a new RNAV 

(GPS) approach procedure at San Luis 

Valley Regional Airport/Bergman Field, 

Alamosa, CO. 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

The FAAs authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106 discusses 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 I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it establishes 

additional controlled airspace at San 

Luis Valley Regional Airport/Bergman 

Field, Alamosa, CO. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9S, Airspace 

Designations and Reporting Points, 

signed October 3, 2008, and effective 

October 31, 2008 is amended as follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ANM CO E5 Alamosa, CO [Modified] 

San Luis Valley Regional Airport/Bergman 

Field, CO 

(Lat. 37°26′06′′ N., long. 105°52′00′′ W.) 

Alamosa VORTAC 

(Lat. 37°20′57′′ N., long. 105°48′56′′ W.) 

That airspace extending upward from 700 

feet above the surface within 8.7 miles 

northeast and 10.5 miles southwest of the 

Alamosa VORTAC 335° and 155° radials 

extending from 20.1 miles northwest to 10.5 

miles southeast of the VORTAC, and within 

1.8 miles northwest and 5.3 miles southeast 

of the Alamosa VORTAC 200° radial 

extending from the VORTAC to 14 miles 

southwest of the VORTAC; that airspace 

extending upward from 1,200 feet above the 

surface within an area bounded by a point 

beginning at lat. 37°37′00′′ N., long. 

106°14′00′′ W.; to lat. 37°44′00′′ N., long. 

105°55′00′′ W.; to lat. 37°52′00′′ N., long. 

105°43′00′′ W.; to lat. 37°49′00′′ N., long. 

105°31′00′′ W.; to lat. 37°20′30′′ N., long. 

105°18′00′′ W.; to lat. 37°03′30′′ N., long. 

105°18′00′′ W.; to lat. 37°01′30′′ N., long. 

105°46′00′′ W.; to lat. 36°48′00′′ N., long. 

105°48′00′′ W.; to lat. 36°58′00′′ N., long. 

106°17′00′′ W.; to lat. 37°09′00′′ N., long. 

106°19′00′′ W.; to lat. 37°17′00′′ N., long. 

106°21′00′′ W.; thence to the point of 

beginning. 

* * * * * 

Issued in Seattle, Washington, on 

December 29, 2008. 

Harry S. Karnes, 

Acting Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. E9–325 Filed 1–14–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 121 

[Docket No. FAA–2008–1227; SFAR 106] 

RIN 2120–AJ40 

Use of Additional Portable Oxygen 

Concentrator Devices On Board 

Aircraft 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends Special 

Federal Aviation Regulation 106 (SFAR 

106), Use of Certain Portable Oxygen 

Concentrator Devices On Board Aircraft, 

to allow for the use of the Delphi 

Medical Systems’ RS–00400 and 

Invacare Corporation’s XPO2 portable 

oxygen concentrator (POC) devices on 

board aircraft, provided certain 

conditions in the SFAR are met. SFAR 

106 was previously amended to add 

three additional POC devices to the 

original SFAR. Today’s action is 

necessary to allow all POC devices 

deemed acceptable by the FAA to be 

available for use in air commerce to the 

traveling public in need of oxygen 

therapy. With this Final Rule, there will 

be a total of seven different POC devices 

the FAA finds acceptable for use on 

board aircraft, and passengers will be 

able to carry these devices on board the 

aircraft and use them with the approval 

of the aircraft operator. 

DATES: This final rule amending SFAR 

106 will become effective on January 15, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

David Catey, Air Transportation 

Division, Flight Standards Service, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591. Telephone: 

(202) 267–8166. 

SUPPLEMENTARY INFORMATION: 

Availability of Rulemaking Documents 

You can get an electronic copy using 

the Internet by: 

(1) Searching the Federal 

eRulemaking Portal at http:// 

www.regulations.gov; 

(2) Visiting the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies/; or 

(3) Accessing the Government 

Printing Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.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 amendment number or 

docket number of this rulemaking. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires 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 

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2352 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

more about SBREFA on the Internet at 

our site, http://www.faa.gov/ 

regulations_policies/rulemaking/ 

sbre_act/. 

Authority for This Rulemaking 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code (49 

U.S.C.). 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. 

The FAA is authorized to issue this 

final rule pursuant to 49 U.S.C. 44701. 

Under that section, the FAA is 

authorized to establish regulations and 

minimum standards for other practices, 

methods, and procedures the 

Administrator finds necessary for air 

commerce and national security. 

Background 

On July 12, 2005, the FAA published 

Special Federal Aviation Regulation 106 

(SFAR 106) entitled, ‘‘Use of Certain 

Portable Oxygen Concentrator Devices 

On Board Aircraft’’ (70 FR 40156). SFAR 

106 is the result of a notice of proposed 

rulemaking (NPRM) the FAA published 

in July 2004 (69 FR 42324) to address 

the needs of passengers who must travel 

with medical oxygen. Prior to 

publication of SFAR 106, passengers in 

need of medical oxygen during air 

transportation faced many obstacles 

when requesting service. Many aircraft 

operators did not provide medical 

oxygen service aboard flights, and those 

that did often provided service at a price 

that travelers could not afford. 

Coordinating service between operators 

and suppliers at airports was also 

difficult, and passengers frequently 

chose not to fly because of these 

difficulties. 

New medical oxygen technologies 

approved by the Food and Drug 

Administration (FDA) reduce the risks 

typically associated with compressed 

oxygen and provide a safe alternative for 

passengers who need oxygen therapy. 

Several manufacturers have developed 

small portable oxygen concentrator 

(POC) devices that work by separating 

oxygen from nitrogen and other gases 

contained in ambient air and dispensing 

it in concentrated form to the user with 

an oxygen concentration of about 90%. 

The POC devices operate using either 

rechargeable batteries or, if the aircraft 

operator obtains approval from the FAA, 

aircraft electrical power. 

In addition, the Pipeline and 

Hazardous Materials Safety 

Administration (PHMSA) has 

determined that the POC devices 

covered by this amendment are not 

hazardous materials. Thus, they do not 

require the same level of special 

handling as compressed oxygen, and are 

safe for use on board aircraft, provided 

certain conditions for their use are met. 

SFAR 106 permits passengers to carry 

on and use certain POC devices on 

board aircraft if the aircraft operator 

ensures that the conditions specified in 

the SFAR for their use are met. The 

devices initially determined acceptable 

for use in SFAR 106, published July 12, 

2005, were the AirSep Corporation’s 

LifeStyle and the Inogen, Inc.’s Inogen 

One POCs. SFAR 106 was amended on 

September 12, 2006 (71 FR 53954) to 

add three additional POC devices, 

AirSep Corporation’s FreeStyle, SeQual 

Technologies’ Eclipse, and Repironics 

Inc.’s EverGo, to the original SFAR. This 

final rule adds two additional POC 

devices, Delphi Medical Systems’ RS– 

00400 and Invacare Corporation’s 

XPO2, that may be carried on and used 

by a passenger on board an aircraft. 

Aircraft operators can now offer 

medical oxygen service as they did 

before SFAR 106 was enacted, or they 

can meet certain conditions and allow 

passengers to carry on and use one of 

the POC devices covered in SFAR 106. 

SFAR 106 is an enabling rule, which 

means that no aircraft operator is 

required to allow passengers to operate 

these POC devices on board its aircraft, 

but it may allow them to be operated on 

board. If the aircraft operator allows one 

of these devices to be carried on board, 

the conditions in the SFAR must be met. 

When SFAR 106 was originally 

published, the FAA committed to 

establishing a single standard for all 

POC devices so that regulations would 

not apply to specific manufacturers and 

models of devices. Whenever possible, 

the FAA tries to regulate by creating 

performance-based standards rather 

than approving specific devices by 

manufacturer. In the case of SFAR 106, 

the quickest and easiest way to serve 

both the passenger and the aircraft 

operator was to allow the use of the 

devices determined to be acceptable by 

the FAA in SFAR 106 in a special, 

temporary regulation. As we stated in 

the preamble discussion of the final rule 

that established SFAR 106, ‘‘while we 

are committed to developing a 

performance-based standard for all 

future POC devices, we do not want to 

prematurely develop standards that 

have the effect of stifling new 

technology of which we are unaware.’’ 

We developed and published SFAR 106 

so that passengers who otherwise could 

not fly could do so with an affordable 

alternative to what existed before SFAR 

106 was published. 

We continue to pursue the 

performance-based standard for all POC 

devices. This process is time-consuming 

and we intend to publish a notice in the 

Federal Register and offer the public a 

chance to comment on the proposal 

when it is complete. In the meantime, 

manufacturers continue to create new 

and better POC devices, and several 

have requested that their product also 

be included as an acceptable device in 

SFAR 106. These new manufacturers 

include Delphi Medical Systems and 

Invacare Corporation. Each of these 

companies has formally petitioned the 

FAA for inclusion in SFAR 106 by 

submitting documentation of the 

devices to the Federal Docket 

Management System. That 

documentation is available at http:// 

www.regulations.gov under the 

following docket numbers: 

1. Delphi Medical Systems—FAA– 

2008–0261; and 

2. Invacare Corporation—FAA–2008– 

0278. 

As stated in Section 2 of SFAR 106, 

no covered device may contain 

hazardous materials as determined by 

PHMSA (written documentation 

necessary), and each device must also 

be regulated by the FDA. Each petitioner 

included technical specifications for the 

devices in their request for approval, 

along with the required documentation 

from PHMSA and the FDA. The 

petitioners provided the FAA with the 

required documentation for the 

following POC devices: 

1. Delphi Medical Systems’, Model 

RS–00400; and 

2. Invacare Corporation’s, Model 

XPO2. 

The Rule 

This amendment to SFAR 106 will 

include the Delphi Medical Systems’ 

RS–00400 and Invacare Corporation’s 

XPO2 devices in the list of POC devices 

authorized for use in air commerce. The 

FAA has reviewed each individual 

device and accepted the documentation 

provided by the two manufacturers. 

That documentation includes letters 

provided to the manufacturer by 

PHMSA and the FDA affirming the 

status of each device as it pertains to the 

requisites stated in SFAR 106. 

After reviewing the applicable FDA 

safety standards and the PHMSA 

findings, these two devices were 

determined by the FAA to be acceptable 

for use in air commerce. 

Good Cause for Adoption of This Final 

Rule Without Notice and Comment 

As stated above, SFAR 106 was 

published on July 12, 2005. We stated 

in the preamble of that final rule that 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2353 

the AirSep LifeStyle and Inogen One 

POC devices were the only known 

acceptable devices when the rule was 

published. We also stated in that final 

rule that ‘‘we cannot predict how future 

products may be developed and work.’’ 

We initiated a notice and comment 

period for the use of POC devices on 

board aircraft on July 14, 2004 (69 FR 

42324) and responded to the comments 

received in response to that NPRM in 

the final rule published in 2005. 

Therefore, it is unnecessary to publish 

a notice to request comments on this 

amendment because all issues related to 

the use of POC devices on board an 

aircraft have already been discussed. 

Further notice and comment would also 

delay the acceptance of the Delphi 

Medical Systems’ RS–00400 and 

Invacare Corporation’s XPO2 POC 

devices as authorized for use on board 

aircraft, which would delay their 

availability for passengers in need of 

oxygen therapy. 

Therefore, I find that notice and 

public comment under 5 U.S.C. 553(b) 

is unnecessary and contrary to the 

public interest. Further, I find that good 

cause exists for making this rule 

effective immediately upon publication. 

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 

determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these regulations. I 

find that this action is fully consistent 

with my obligations under 49 U.S.C. 

40105(b)(1)(A) to ensure that I exercise 

my duties consistently with the 

obligations of the United States under 

international agreements. 

Paperwork Reduction Act 

As required by the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), the FAA submitted a copy of 

the new information collection 

requirements in SFAR 106 to the Office 

of Management and Budget for its 

review. OMB approved the collection of 

this information and assigned OMB 

Control Number 2120–0702. 

This final rule requires that if a 

passenger carries a POC device on board 

the aircraft with the intent to use it 

during the flight, he or she must inform 

the pilot in command of that flight. 

Additionally, the passenger who plans 

to use the device must provide a written 

statement signed by a licensed 

physician that verifies the passenger’s 

ability to operate the device, respond to 

any alarms, the extent to which the 

passenger must use the POC (all or a 

portion of the flight), and prescribes the 

maximum oxygen flow rate. 

Please note that an agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

The Paperwork Reduction Act 

paragraph in the final rule that 

established SFAR 106 still applies to 

this amendment. The availability of two 

new POC devices will likely increase 

the availability and options for a 

passenger in need of oxygen therapy, 

but the paperwork burden discussed in 

the original final rule is unchanged. 

Therefore, the OMB Control Number 

associated with this collection remains 

2120–0702. 

Regulatory Analyses 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, the Trade 

Agreements Act requires agencies to 

consider international standards and, 

where appropriate, that they be the basis 

of U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) 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 with base year of 1995). 

This portion of the preamble 

summarizes the FAA’s analysis of the 

economic impacts of this final rule. 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If the 

expected cost impact is so minimal that 

a proposed or final rule does not 

warrant a full evaluation, this order 

permits that a statement to that effect 

and the basis for it to be included in the 

preamble if a full regulatory evaluation 

of the cost and benefits is not prepared. 

Such a determination has been made for 

this final rule. The reasoning for this 

determination follows: 

This action amends Special Federal 

Aviation Regulation 106 (SFAR 106), 

Use of Certain Portable Oxygen 

Concentrator Devices On Board Aircraft, 

to allow for the use of the Delphi 

Medical Systems’ RS–00400 and 

Invacare Corporation’s XPO2 portable 

oxygen concentrator (POC) devices on 

board aircraft, provided certain 

conditions in the SFAR are met. This 

action is necessary to allow additional 

POC devices deemed acceptable by the 

FAA to be available to the traveling 

public in need of oxygen therapy, for 

use in air commerce. When this rule 

becomes effective, there will be a total 

of seven different POC devices the FAA 

finds acceptable for use on board 

aircraft, and passengers will be able to 

carry these devices on board the aircraft 

and use them with the approval of the 

aircraft operator. 

The FAA has determined that this 

final rule is not a ‘‘significant regulatory 

action’’ as defined in section 3(f) of 

Executive Order 12866, and is not 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide-range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a 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 

RFA. 

However, if an agency determines that 

a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

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2354 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

This final rule adds Delphi Medical 

Systems’ RS–00400 and Invacare 

Corporation’s XPO2 to the list of 

authorized POC devices in SFAR 106. 

Its economic impact is minimal. 

Therefore, as the Acting FAA 

Administrator, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

International Trade Analysis 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing any standards or 

engaging in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards are not 

considered unnecessary obstacles to the 

foreign commerce of the United States, 

so long as the standards have a 

legitimate domestic objective, such the 

protection of safety, and do not operate 

in a manner that excludes imports that 

meet this objective. The statute also 

requires consideration of international 

standards and, where appropriate, that 

they be the basis for U.S. standards. The 

FAA notes the purpose is to ensure the 

safety of the American public, and has 

assessed the effects of this rule to ensure 

that it does not exclude imports that 

meet this objective. As a result, this rule 

is not considered as creating an 

unnecessary obstacle to foreign 

commerce. 

In accordance with the above statute 

and policy, the FAA has assessed the 

potential effect of this final rule and has 

determined that it will impose the same 

minimal impact on domestic and 

international entities and thus has a 

neutral trade impact. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (the Act), enacted as Public Law 

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) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector; such a mandate 

is deemed to be a ‘‘significant regulatory 

action.’’ The FAA currently uses an 

inflation-adjusted value of $136.1 

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. 

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 

have determined that this final rule does 

not have federalism implications. 

Plain Language 

In response to the June 1, 1998 

Presidential Memorandum regarding the 

use of plain language, the FAA reexamined the writing style currently 

used in the development of regulations. 

The memorandum requires federal 

agencies to communicate clearly with 

the public. We are interested in your 

comments on whether the style of this 

document is clear, and in any other 

suggestions you might have to improve 

the clarity of FAA communications that 

affect you. You can get more 

information about the Presidential 

memorandum and the plain language 

initiative at 

http//:www.plainlanguage.gov. 

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 312f 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. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends SFAR No. 106 to Chapter II of 

Title 14, Code of Federal Regulations, as 

follows: 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

■ 1. The authority citation for part 121 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 1153, 40101, 

40102, 40103, 40113, 41721, 44105, 44106, 

44111, 44701–44717, 44722, 44901, 44903, 

44904, 44906, 44912, 44914, 44936, 44938, 

46103, 46105. 

■ 2. Amend SFAR 106 by revising 

sections 2 and 3(a) introductory text to 

read as follows: 

Special Federal Aviation Regulation 

106—Rules for Use of Portable Oxygen 

Concentrator Systems On Board 

Aircraft 

* * * * * 

Section 2. Definitions—For the 

purposes of this SFAR the following 

definitions apply: Portable Oxygen 

Concentrator: means the AirSep 

FreeStyle, AirSep LifeStyle, Delphi RS– 

00400, Inogen One, Invacare XPO2, 

Respironics EverGo, and SeQual Eclipse 

Portable Oxygen Concentrator medical 

devices as long as those medical 

devices: (1) Do not contain hazardous 

materials as determined by the Pipeline 

and Hazardous Materials Safety 

Administration; (2) are also regulated by 

the Food and Drug Administration; and 

(3) assist a user of medical oxygen under 

a doctor’s care. These units perform by 

separating oxygen from nitrogen and 

other gases contained in ambient air and 

dispensing it in concentrated form to 

the user. 

Section 3. Operating Requirements— 

(a) No person may use and no aircraft 

operator may allow the use of any 

portable oxygen concentrator device, 

except the AirSep FreeStyle, AirSep 

LifeStyle, Delphi RS–00400, Inogen One, 

Invacare XPO2, Respironics EverGo, or 

SeQual Eclipse Portable Oxygen 

Concentrator devices. These devices 

may be carried on and used by a 

passenger on board an aircraft provided 

the aircraft operator ensures that the 

following conditions are satisfied: 

* * * * * 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2355 

Issued in Washington, DC on January 7, 

2009. 

Robert Sturgell, 

Acting Administrator. 

[FR Doc. E9–790 Filed 1–14–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 742, 744 and 746 

[Docket No. 0811241505–81513–01] 

RIN 0694–AE50 

License Requirements Policy for Iran 

and for Certain Weapons of Mass 

Destruction Proliferators 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Interim final rule. 

SUMMARY: This rule revises and clarifies 

the Export Administration Regulations 

(EAR) provisions that apply specifically 

to Iran in order to promote consistency, 

reduce redundancy and clarify the role 

of the Bureau of Industry and Security 

(BIS) in connection with the 

implementation of United States export 

control policy towards Iran. It 

establishes a new license requirement 

for reexports of items classified under 

ten Export Control Classification 

Numbers (ECCNs) that previously did 

not require a license for reexport to Iran 

under the EAR. This rule also imposes 

license requirements on parties who 

have been listed as proliferators of 

weapons of mass destruction or as 

supporters of such proliferators 

pursuant to Executive Order 13382. BIS 

is making these changes to provide 

greater clarity and consistency with 

respect to policies towards Iran and to 

harmonize BIS license requirements 

with Department of the Treasury license 

requirements regarding proliferators of 

weapons of mass destruction. 

DATES: This rule is effective January 15, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

William Arvin, Regulatory Policy 

Division, warvin@bis.doc.gov, 202 482 

2440 or Anthony Christino, Foreign 

Policy Division, tchristi@bis.doc.gov 202 

482 3241. 

SUPPLEMENTARY INFORMATION: 

Background 

The EAR imposes license 

requirements on certain exports and 

reexports to Iran. These license 

requirements apply in addition to any 

requirements for authorization to export 

or reexport to Iran that are imposed by 

the Department of the Treasury, Office 

of Foreign Assets Control (OFAC), 

which maintains a comprehensive 

embargo against Iran, as described in the 

Iranian Transactions Regulations (31 

CFR part 560). The EAR license 

requirements and licensing policy that 

apply specifically and expressly to Iran 

are in parts 742 and 746 of the EAR. 

This rule makes changes to those parts 

to promote consistency, reduce 

redundancy and to clarify the role of the 

Bureau of Industry and Security (BIS) in 

connection with the enforcement of 

United States export control policy 

towards Iran. It establishes a license 

requirement for reexports of items 

classified under ten Export Control 

Classification Numbers (ECCNs) that 

previously did not require a license for 

reexport to Iran under the EAR. This 

rule also adds a new § 744.8 to the EAR 

that imposes a license requirement on 

exports and reexports to parties listed 

by OFAC in Appendix A to 31 CFR 

Chapter V with the bracketed suffix 

[NPWMD]. 

Revisions to Part 742—Anti-Terrorism 

(AT) Controls 

Section 742.8 of the EAR describes 

the license requirements and licensing 

policy for items controlled for antiterrorism (AT) reasons to Iran. Prior to 

publication of this rule, reexports of 

items classified under ECCNs 2A994, 

3A992.a, 5A991.g, 5A992, 6A991, 

6A998, 7A994, 8A992.d, .e, .f, and .g, 

9A990.a and .b, 9A991.d and .e, were 

not subject to license requirements 

under the EAR when reexported to Iran. 

In addition, the items controlled under 

these ECCNs were not treated as 

‘‘controlled U.S. content’’ when 

incorporated into foreign made items 

being exported from abroad to Iran for 

purposes of determining whether the 

foreign made item had sufficient 

‘‘controlled U.S. content’’ to be subject 

to the EAR. This rule revises § 742.8 to 

make those items subject to reexport 

license requirements under the EAR and 

to treat them as ‘‘controlled U.S. 

content.’’ 

This rule also adds ECCNs 1C350, 

1C355 and 1C395 to the license 

requirements paragraph in § 742.8. 

These three ECCNs contain license 

requirements that state ‘‘anti-terrorism’’ 

as a reason for control and that apply to 

Iran either by name or as part of Country 

Group E:1. However, prior to 

publication of this rule, these three 

ECCNs were not referenced in 

§ 742.8(a). Adding these three ECCNs 

§ 742.8(a) make that section consistent 

with BIS’s policy of stating all antiterrorism license requirements that 

apply to Iran in that section. 

In addition, this rule moves all 

descriptions of transactions that are 

subject to the requirements of section 

6(j) of the Export Administration Act 

and those that are subject to the 

requirements of section 6(a) of that Act 

from Supplement No. 2 to part 742 into 

§ 742.8(a)(4). Section 6(j) applies when 

the Secretary of State determines that 

the export of an item could make a 

significant contribution to the military 

potential of a country that has 

repeatedly provided support for acts of 

international terrorism, or could 

enhance the ability of such country to 

support acts of international terrorism. 

BIS may not issue a license for 

transactions subject to section 6(j) 

without giving 30 days advance notice 

to certain committees of Congress. 

License applications for items 

controlled to designated terroristsupporting countries under Section 6(a) 

are also reviewed to determine whether 

section 6(j) applies. 

Finally, this rule removes all 

references to ‘‘contract sanctity’’ dates 

applicable to Iran from Supplement No. 

2 to part 742. The ‘‘contract sanctity’’ 

dates refer to the dates on which reports 

that are prerequisites to imposing, 

expanding or extending foreign policy 

controls pursuant to Section 6 of the 

Export Administration Act were 

delivered to Congress. Transactions to 

fulfill contracts entered into prior to 

those dates may be subject to the rules 

that were in effect prior to delivery of 

the report. Removing the dates from 

Supplement No. 2 to Part 742 has no 

effect on the rights of any person to 

assert that a transaction is subject to 

earlier rules. 

Revisions to Part 744—Control Policy: 

End-Use and End-User Based 

This rule adds a new § 744.8, which 

imposes a license requirement on 

certain parties whom the Department of 

the Treasury, Office of Foreign Assets 

Control (OFAC) has listed in Appendix 

A to 31 CFR Chapter V with the 

bracketed suffix [NPWMD]. OFAC also 

provides lists of these parties in a 

variety of data formats at http:// 

www.treas.gov/offices/enforcement/

ofac/sdn/index.shtml. OFAC lists such 

parties pursuant to its authority under 

Executive Order 13382 of June 28, 2005. 

Executive Order 13382 blocks the 

property and interests in property of 

certain parties determined to be 

weapons of mass destruction 

proliferators or their supporters. 

This rule complements OFAC’s 

regulatory authority under Executive 

Order 13382. For transactions requiring 

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