53108 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

Authority for This Rulemaking 

Title 49 of the United States Code 

specifies the FAA’s authority to issue 

rules on aviation safety. 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. 

We are issuing this rulemaking under 

the authority described in subtitle VII, 

part A, subpart III, section 44701, 

‘‘General requirements.’’ Under that 

section, Congress charges the FAA with 

promoting safe flight of civil aircraft in 

air commerce by prescribing regulations 

for practices, methods, and procedures 

the Administrator finds necessary for 

safety in air commerce. This regulation 

is within the scope of that authority 

because it addresses an unsafe condition 

that is likely to exist or develop on 

products identified in this rulemaking 

action. 

Regulatory Findings 

We have determined that this 

proposed AD would not have federalism 

implications under Executive Order 

13132. This proposed AD would not 

have a substantial direct effect on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

For the reasons discussed above, I 

certify that the proposed regulation: 

1. Is not a ‘‘significant regulatory 

action’’ under Executive Order 12866; 

2. Is not a ‘‘significant rule’’ under the 

DOT Regulatory Policies and Procedures 

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

3. Will not have a significant 

economic impact, positive or negative, 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

We prepared a regulatory evaluation 

of the estimated costs to comply with 

this proposed AD. See the ADDRESSES

section for a location to examine the 

regulatory evaluation. 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Safety. 

The Proposed Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA proposes to amend 14 CFR part 

39 as follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

2. The Federal Aviation 

Administration (FAA) amends § 39.13 

by adding the following new 

airworthiness directive (AD): 

Boeing: Docket No. FAA–2005–22321; 

Directorate Identifier 2005–NM–123–AD. 

Comments Due Date 

(a) The FAA must receive comments on 

this AD action by October 24, 2005. 

Affected ADs 

(b) None. 

Applicability 

(c) This AD applies to certain Boeing 

Model 767–200 and –300 series airplanes, as 

identified in Boeing Special Attention 

Service Bulletin 767–25–0336, Revision 2, 

dated August 11, 2005; certificated in any 

category. 

Unsafe Condition 

(d) This AD results from test data 

indicating that outboard overhead stowage 

bins are unable to withstand the 4.5g download standard intended to protect passengers 

during flight turbulence or a hard landing. 

We are issuing this AD to prevent the 

stowage bins from opening during flight 

turbulence or a hard landing, which could 

result in the contents of the stowage bins 

falling onto the passenger seats below and 

injuring passengers, or blocking the aisles, 

impeding the evacuation of passengers in an 

emergency. 

Compliance 

(e) You are responsible for having the 

actions required by this AD performed within 

the compliance times specified, unless the 

actions have already been done. 

Replacement of Placards and Installation of 

Partial Divider Panels and Life Raft Straps 

(f) Within 60 months after the effective 

date of this AD: Replace the placards on 

certain stowage bins with new placards, 

install partial dividers in certain other 

stowage bins, and install straps on stowage 

bins containing life rafts, in accordance with 

the Accomplishment Instructions of Boeing 

Special Attention Service Bulletin 767–25–

0336, Revision 2, dated August 11, 2005. 

Actions Required To Be Accomplished Prior 

to or Concurrently With Paragraph (f) of 

This AD 

(g) For Group 1 airplanes as identified in 

Boeing Special Attention Service Bulletin 

767–25–0336, Revision 2, dated August 11, 

2005: Prior to or concurrently with the 

accomplishment of paragraph (f) of this AD, 

replace the door latches, strikes, and 

thresholds on the outboard overhead stowage 

compartments with new latches, strikes, and 

thresholds. Do the replacement in accordance 

with the Accomplishment Instructions of 

Boeing Service Bulletin 767–25–0211, 

Revision 1, dated July 14, 1994. 

Actions Accomplished Previously 

(h) Accomplishment of the stowage bin 

modifications required by paragraph (f) of 

this AD before the effective date of this AD 

in accordance with Boeing Special Attention 

Service Bulletin 767–25–0336, dated May 15, 

2003; or Revision 1, dated October 21, 2004; 

is considered acceptable for compliance with 

the corresponding modifications specified in 

this AD. 

Parts Installation 

(i) As of the effective date of this AD, no 

person may install on any airplane a stowage 

bin having a part number identified in Table 

2 of Figure 1 of Boeing Special Attention 

Service Bulletin 767–25–0336, Revision 2, 

dated August 11, 2005, unless it has been 

modified by performing the applicable 

actions in paragraph (f) of this AD. 

Alternative Methods of Compliance 

(AMOCs) 

(j) The Manager, Seattle Aircraft 

Certification Office, FAA, has the authority to 

approve AMOCs for this AD, if requested in 

accordance with the procedures found in 14 

CFR 39.19. 

Issued in Renton, Washington, on August 

24, 2005. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 05–17670 Filed 9–6–05; 8:45 am] 

BILLING CODE 4910–13–P 

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). 

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. 

Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 53109 

1The 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. 

2Under 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. 

3The 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). 

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 datestamp 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 

(http://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. 

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. 

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 safetysealed 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. 

53110 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

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-andanswer 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-andanswer 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 ondemand 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 passengercarrying 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, 

Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 53111 

4Foreign 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. 

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 onetime 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. 

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 

53112 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

5The Transportation Security Administration has 

developed standard operating procedures to screen 

respiratory devices for security purposes. 

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: 

(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 

Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 53113 

6This 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. 

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 

53114 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

7Passengers may also use their own oxygen 

concentrator units in airports. 

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? 

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. 

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 CarrierSupplied 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 FAAmandated 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 tamperproof 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 oxygendelivery 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. 

Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 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 disabilityrelated 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 inflight 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. 

53116 Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 

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 § 382.3, add the definition of 

‘‘PHMSA’’ in alphabetical order. 

§ 382.3 What do the terms in this part 

mean? 

* * * * * 

PHMSA means the Pipeline and 

Hazardous Materials Safety 

Administration. 

* * * * * 

3. Revise § 382.5 to read as follows: 

§ 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 

§§ 382.133, 382.135, and 382.137, to 

read as follows: 

§ 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. 

§ 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. 

§ 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 § 382.133 and to provide medical 

oxygen under § 382.135 may not charge 

a passenger for transportation, testing, 

inspection, maintenance or provision of 

a device described in § 382.133 or 

§ 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 

Federal Register / Vol. 70, No. 172 / Wednesday, September 7, 2005 / Proposed Rules 53117 

1H.R. 6, Title XII, Subtitle A, 109th Cong. (2005). 

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 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 38 

[Docket No. RM05–30–000] 

Rules Concerning Certification of the 

Electric Reliability Organization; and 

Procedures for the Establishment, 

Approval, and Enforcement of Electric 

Reliability Standards 

September 1, 2005. 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Pursuant to Subtitle A 

(Reliability Standards) of the Electricity 

Modernization Act of 2005, which 

added a new section 215 to the Federal 

Power Act (FPA), the Commission is 

proposing to amend its regulations to 

incorporate: 

(1) Criteria that an entity must satisfy 

in order to qualify to be the Electric 

Reliability Organization (ERO) that will 

propose and enforce Reliability 

Standards for the Bulk-Power System in 

the United States, subject to 

Commission approval; 

(2) Procedures governing enforcement 

actions by the ERO and the 

Commission; 

(3) Criteria under which the ERO may 

enter into an agreement to delegate 

authority to a Regional Entity for the 

purpose of proposing Reliability 

Standards to the ERO and enforcing 

Reliability Standards; 

(4) Procedures for the establishment 

of Regional Advisory Bodies that may 

provide advice to the Commission, the 

ERO or a Regional Entity on matters of 

governance, applicable Reliability 

Standards, the reasonableness of 

proposed fees within a region, and any 

other responsibilities requested by the 

Commission; 

(5) Regulations governing the issuance 

of periodic reliability reports by the 

ERO that assess the reliability and 

adequacy of the Bulk-Power System in 

North America; and 

(6) Regulations pertaining to the 

funding of the ERO. 

DATES: Comments are due October 7, 

2005. 

ADDRESSES: Comments may be filed 

electronically via the eFiling link on the 

Commission’s Web site at http:// 

www.ferc.gov. Commenters unable to 

file comments electronically must send 

an original and fourteen (14) copies of 

their comments to: Federal Energy 

Regulatory Commission, Office of the 

Secretary, 888 First Street, NE., 

Washington, DC 20426. Refer to the 

Comment Procedures section of the 

preamble for additional information on 

how to file comments. 

FOR FURTHER INFORMATION CONTACT: 

William Longenecker (Technical 

Information), Office of Markets, Tariffs 

and Rates, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, (202) 502–8570. 

David Miller (Technical Information), 

Office of Markets, Tariffs and Rates, 

Division of Reliability, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426, 

(202) 502–6473. Jonathan First (Legal 

Information), Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, (202) 502–8529. 

Christy Walsh (Legal Information), 

Office of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426, 

(202) 502–6523. 

SUPPLEMENTARY INFORMATION:

I. Introduction 

1. Pursuant to Subtitle A (Reliability 

Standards) of the Electricity 

Modernization Act of 2005,1 which 

added a new section 215 to the Federal 

Power Act (FPA), the Commission is 

proposing to amend its regulations to 

incorporate: 

(1) Criteria that an entity must satisfy 

in order to qualify to be the Electric 

Reliability Organization (ERO), which 

the Commission will certify as the 

organization that will propose and 

enforce Reliability Standards for the 

Bulk-Power System in the United States, 

subject to Commission approval; 

(2) Procedures under which the ERO 

may propose new or modified 

Reliability Standards and procedures to 

enforce such standards, for Commission 

review; 

(3) Procedures governing enforcement 

actions by the ERO and the 

Commission; 

(4) Criteria under which the ERO may 

enter into an agreement to delegate 

authority to a Regional Entity for the 

purpose of proposing Reliability 

Standards to the ERO and enforcing 

Reliability Standards; 

(5) Procedures for the establishment 

of Regional Advisory Bodies that may 

provide advice to the Commission, the 

ERO or a Regional Entity on matters of 

governance, applicable Reliability 

Standards, the reasonableness of 

proposed fees within a region, and any 

other responsibilities requested by the 

Commission; 

(6) Regulations governing the issuance 

of periodic reliability reports by the 

ERO that assess the reliability and 

adequacy of the Bulk-Power System in 

North America; and 

(7) Regulations pertaining to the 

funding of the ERO. 

II. Background 

A. Commission Reliability Activity Prior 

to the Electricity Modernization Act of 

2005 

2. The Electricity Modernization Act 

of 2005 was enacted into law by 

President George W. Bush on August 8, 

2005. Subtitle A of the Electricity 

Modernization Act amended the FPA by 

adding a new section 215, titled 

‘‘Electric Reliability.’’ Prior to 

enactment of section 215, the 

Commission had acted primarily as an 

economic regulator of wholesale power 

markets and the interstate transmission 

grid. In this regard, the Commission 

acted to promote a more reliable electric 

system by promoting regional 

coordination and planning of the 

interstate grid through regional 

independent system operators (ISOs) 

and regional transmission organizations 

(RTOs), adopting transmission pricing 

policies that provide price signals for 

the most reliable and efficient operation 

and expansion of the grid, and 

providing pricing incentives at the 

wholesale level for investment in grid 

improvements and assuring recovery of 

costs in wholesale transmission rates. 

Section 215 of the FPA buttresses the 

Commission’s efforts to strengthen the 

reliability of the interstate grid through 

the grant of new authority which 

provides for a system of mandatory 

Reliability Standards developed by the 

ERO and reviewed and approved by the 

Commission. The ERO can initiate an 

enforcement action and impose 

penalties for the violation of Reliability 

Standards, subject to Commission 

review; or the Commission can initiate 

its own enforcement action. 

B. Voluntary Reliability Standards 

3. In the aftermath of the 1965 

blackout in the northeast United States, 

the electric industry established the 

North American Electric Reliability 

Council (NERC), a voluntary reliability 

organization. Since its inception, NERC 

has developed Operating Policies and 

Planning Standards that provide