14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

2. Types of Electronic Respiratory Assistive Devices

We proposed in the Oxygen NPRM to address the carriage of four types of portable electronic respiratory assistive devices excepted from coverage under applicable FAA regulations, e.g., 14 CFR 121.306, 135.144, 121.574, 135.91 and Special Federal Aviation Regulation No. 106 – ventilators, respirators, continuous positive airway pressure (CPAP) machines and portable oxygen concentrators. We sought information from foreign governments, foreign carriers and other interested parties regarding any foreign safety restrictions affecting the carriage and use of these electronic respiratory assistive devices. While commenters did not conclusively identify any particular device as being specifically prohibited by foreign safety rules, there was a suggestion that certain governments may view all POCs as containing hazardous materials and may not permit their carriage or use onboard aircraft. Commenters also identified a number of foreign carriers that prohibit the use of electronic devices (including the aforementioned electronic assistive devices) during take-off and landing. The commenters noted that most of these foreign carriers are required to submit their aircraft passenger policies to a government agency for approval and expressed concern that the Department may not consider a foreign carrier’s prohibition on use of electronic devices during ascent and descent which has been approved by its government to be a foreign government safety requirement.

The Department recognizes that foreign carriers operate under a variety of laws and regulations. We have revised section 382.133 to clarify that foreign carriers need to permit the carriage and use of a ventilator, respirator, CPAP machine and POC only if among other things, the device can be stowed and used in the passenger cabin consistent with applicable TSA, FAA, and PHMSA regulations and the safety or security regulations of its government.. In addition, section 382.9 allows a foreign carrier to petition the Department for a waiver of compliance with any provision in Part 382, including section 382.133, if an applicable foreign law or regulation precludes a foreign carrier from complying with that provision. As noted earlier in this document, the Department employs a narrow definition of the phrases “the safety or security regulations of its government” and “foreign law or regulation.” A carrier’s policy, even if approved by its government, would not be considered a foreign nation’s law and would not exempt the carrier from compliance with Part 382.