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)
Accommodations for Passengers Who Use Oxygen Devices
1. Covered Entities
In the Oxygen NPRM, we proposed that the requirements concerning the evaluation and use of passenger-owned electronic devices that assist passengers with respiration apply to all operations worldwide of U.S. air carriers that conduct passenger carrying service other than on-demand air taxi operators. The Oxygen NPRM proposed to cover foreign carriers operating flights to and from the United States in as similar a fashion as possible to U.S. air carriers. We also specifically requested comment as to whether the Department should limit coverage of this section to carriers operating larger than 60-seat aircraft and whether flights operated by commuter carriers should be covered.
Consumers argued against an exception for aircraft with 60 or fewer seats and favored a regulation of general applicability because many carriers that operate “hub and spoke” service as well as many carriers that service smaller cities and less frequently traveled routes use small aircraft. Consumers also asserted that it would frustrate the purpose of the regulation to exempt flights operated by commuter carriers as many individuals who use medical oxygen fly on commuter carriers from small regional airports to larger airports to connect to a flight to their ultimate destination. However, small carriers supported an exception for aircraft with 60 or fewer seats because of the costs associated with the regulation, particularly the cost of testing to determine if the electronic respiratory assistive devices interfere with the navigation or communication systems of each model of aircraft operated by the carrier. These carriers explained that testing would be more costly for small carriers because they do not have the technical knowledge or personnel necessary for testing, necessitating the hiring of subcontractors for compliance testing. Small carriers also indicated concern with the onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices on an aircraft since there is no flight attendant on aircraft with fewer than 20 seats and only one flight attendant on aircraft with 20 to 50 seats Further, small carriers asserted that allowing a passenger to use an electronic respiratory device such as a portable oxygen concentrator (POC) onboard small aircraft is of limited benefit because they contend that many regional flights are one hour in length and carriers can prohibit the use of electronic devices during take-off and landing which can take a total of approximately forty minutes, leaving the passenger with only twenty minutes to use his/her device.
After fully considering the comments received regarding the applicability of section 382.133 to carriers, the Department believes that it is reasonable to apply the requirements of this section to U.S. and foreign carriers that conduct passenger carrying service other than on-demand air taxis and not to exempt carriers that only operate aircraft with 60 or fewer seats. The contention of small carriers that the costs associated with the requirements in this section would be unduly burdensome to them no longer carries the same weight, since this final rule shifts the responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices from the carriers as proposed in the Oxygen NPRM to the manufacturers of these devices, as the manufacturers have a market incentive to test such devices. (See the discussion of industry comments on this issue in the section below entitled “Testing and Labeling of Electronic Respiratory Assistive Devices.”) The Department is also not persuaded that there are onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices that require the assistance of a flight attendant. We also find unpersuasive the argument that electronic respiratory devices such as POCs are of limited use onboard small aircraft because they tend to operate shorter flights during which passengers could only use their devices for a small portion of the total flight time as it presumes that the devices cannot be used during ascent and descent. A device’s use during a particular phase of a flight (e.g., ascent and descent) should be prohibited only if the device cannot be safely used during that phase (e.g., interferes with navigation or communications equipment). Absent evidence of such interference gained from the required testing, this rule requires carriers to allow passengers to use their electronic respiratory assistive devices, including POCs approved by the Federal Aviation Administration (FAA), during all phases of flight if safe.
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.
3. Testing and Labeling of Electronic Respiratory Assistive Devices
In the Oxygen NPRM, we proposed that a U.S. carrier that conducts passenger-carrying service other than an on-demand air taxi operator perform the necessary evaluation and testing of a ventilator, respirator, CPAP machine or FAA-approved POC to determine if the device causes interference with the navigation or communication systems of each model of aircraft the U.S. carrier operates. We also proposed requiring a foreign carrier that conducts passenger-carrying service other than an on-demand air taxi operator to perform the necessary evaluation and testing of these devices to ascertain whether such device can be used safely by passengers during a flight on each aircraft that the foreign carrier operates on flights to and from the U.S.
Industry commenters as well as some consumers said that the burden of testing should be shifted away from the carriers. The Air Transport Association and other industry commenters proposed that carriers only be required to permit the use of an electronic respiratory assistive device that has been tested and marked as approved by RTCA, Inc. (formerly the Radio Technical Commission for Aeronautics). These commenters argued that if carriers have the option of refusing to carry any device that is not tested and marked as approved by the RTCA then the device manufacturers would have an incentive to test their devices and produce safety testing results for the carriers to review. Other commenters suggested that the device manufacturers and the aircraft manufacturers should be required to conduct the testing and then label the device as approved for use aboard aircraft, as manufacturers have the greatest incentive to test devices. Industry commenters also requested that the FAA create a generic safety standard for testing respiratory devices as well as a uniform labeling system for all approved devices to cut down on confusion by carriers and passengers.
Having considered all of these comments, the Department is persuaded that responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices covered in the Oxygen NPRM should be borne by the manufacturers of such devices rather than the carriers. However, this regulation does not mandate manufacturer testing. The FAA is considering whether to issue an NPRM in which the agency would propose to require manufacturers that want to market their ventilators, respirators, CPAP machines, and FAA-approved POCs for passenger use on aircraft to test those devices against FAA-prescribed performance standards and affix a label to each device stating that it meets the applicable standards prescribed in the federal aviation regulations. If the FAA decides to issue such an NPRM, the NPRM would clarify that those manufacturers that do not intend to market their devices for use on aircraft would be under no obligation to conduct any testing and would not be permitted to affix a label indicating FAA approval. The manufacturers that want to market such devices for use on aircraft but whose devices fail to meet the performance standards would also not be permitted to affix a label indicating FAA approval. Moreover, the FAA will consider whether to include other proposals in that NPRM, including specifying how a carrier would "verify" whether the aforementioned electronic respiratory assistive devices meet FAA performance standards.
In this rulemaking, we are strongly encouraging manufacturers that market their electronic respiratory assistive devices for use by passengers on aircraft to test their devices to determine whether they meet FAA electromagnetic and radio frequency interference emission standards set forth in FAA Advisory Circular No. 91.21-1B, and if they do so, to label the devices as FAA-compliant. The label should indicate that the device is approved for air travel (i.e., the device can be used safely during all phases of travel). The FAA generally prohibits the operation of portable electronic devices aboard U.S. registered civil aircraft while operating under instrument flight rules. See 14 CFR 91.21. However, the FAA through its Advisory Circular No. 91.21-1B allows U.S. carriers to permit passengers to use onboard the aircraft specified portable electronic devices (including the four types of respiratory devices addressed in this rulemaking) that have been tested by the manufacturer and found to not exceed the maximum level of radiated radio frequency interference as described in section 21, Category M of RTCA Document (DO)-160 while in all modes of operation, without any further testing by the carrier to establish compliance with this performance standard. It is worth noting that the FAA does not have a prohibition on the operation of portable electronic devices aboard civil aircraft registered in a country other than the United States.
This rule requires U.S. carriers to permit individuals to use electronic respiratory assistive devices in the passenger cabin so long as the devices have been tested and labeled by their manufacturer(s) as meeting the applicable FAA requirements for medical portable electronic devices as described in FAA Advisory Circular No. 91.21-1B (the FAA-approved POCs would also be subject to the requirements of Special Federal Aviation Regulation 106) and the device can be stowed consistent with FAA cabin safety requirements. At present, a label indicating that the device complies with RTCA standards meets FAA requirements and need not specifically state that the device is FAA approved.
The final rule also requires foreign carriers to permit individuals to use electronic respiratory assistive devices in the passenger cabin if certain conditions are met. First, the device must have been tested and labeled by its manufacturer as meeting the requirements for medical portable electronic devices set by the foreign carrier’s government. If the foreign carrier’s government does not have applicable requirements, then the carrier may elect to apply requirements for medical portable electronic devices set by the FAA for U.S. carriers. It would be a violation of our rules for a foreign carrier to prohibit a passenger from using his/her ventilator, respirator, CPAP machine, or POC in the passenger cabin because its government has not issued applicable rules on the testing or labeling of electronic respiratory assistive devices. We encourage foreign carriers to apply FAA requirements for medical portable electronics where the foreign carriers’ government has not issued applicable rules. Otherwise, it is not clear how the foreign carrier can be assured that the electronic respiratory assistive device that it is accepting for use in the cabin is safe. Also, the electronic respiratory assistive device must be stowed and used in the passenger cabin consistent with any applicable U.S. regulations and the regulations of the carrier’s government.
We expect that both U.S. and foreign carriers will inspect the device label at the departure gate to ensure that it is labeled by the manufacturer in accordance with the applicable regulations. U.S. carriers’ internal procedures must ensure that approved devices bearing labels indicating that they meet the FAA requirements are accepted. For foreign carriers, devices containing labels indicating that the device meets requirements set by the foreign carrier’s government or, if no such requirement exists, the requirements for medical portable electronics set by the FAA for U.S. carriers, should be accepted.
4. Passenger Information
We explained in the Oxygen NPRM that carriers would be required to inform passengers, on request, about any restrictions on using their personal respiratory assistive devices aboard the carrier’s flights (e.g., device can only be used after takeoff and before landing, availability of electrical outlets). In this regard, we indicated that we thought carriers would need to maintain some type of list of approved or disapproved devices and sought comments as to what extent carriers should be required to provide information to disabled air travelers. We also asked about the issues that are raised if carriers are required to provide information on the limitation of the carriers’ codeshare partners to accommodate the use of respiratory devices.
The Department received a number of comments from consumers strongly urging that a centralized list of approved and disapproved devices be provided by carriers, airports and/or the government. Industry comments varied, with some carriers indicating a willingness to provide this information, while others believed a list of approved and disapproved devices would be difficult to maintain and would open the airline up to liability. Many carriers suggested that the Department provide a list of approved devices through its website and by phone. Carriers also expressed concern about any requirement to provide information on the limitation of its codeshare partners to accommodate the use of respiratory devices. According to these carriers, some carriers have up to ten codeshare partners and the burden of knowing the limitation of its codeshare partners’ ability to provide accommodations would be substantial.
Because this final rule shifts the responsibility for testing the electronic respiratory assistive devices from the carriers to the manufacturers of such devices and requires carriers to permit passengers to use these devices aboard aircraft only if appropriately labeled, we do not see a need for carriers or any other entity to produce a central list of approved or disapproved devices. A passenger can simply look to see if the label on his/her electronic respiratory assistive device indicates that the device has been approved for air travel (i.e., no restriction on the device’s use during any phase of travel).
However, we do see a need for carriers, during the reservation process, to inform passengers who express a desire to use a respirator, ventilator, CPAP machine, or FAA- approved POC aboard an aircraft of the conditions that must be met before these devices can be approved for such use. For instance, this final rule requires carriers through their reservation agents to inform passengers of the maximum weight and dimensions of a device that can be accommodated in the aircraft cabin, the requirement that an electronic respiratory assistive device be labeled appropriately, any requirement for advance check-in, any requirement for the individual to contact the carrier before the scheduled departure to learn the expected maximum duration of his/her flight, the requirement to bring an adequate number of fully charged batteries (i.e., battery is charged to full capacity) to power the electronic respiratory device and to ensure that extra batteries are packaged properly, and the requirement that an individual who wishes to use a POC provide a physician’s statement. While a carrier can require a physician’s statement (i.e., medical certificate) from an individual who wishes to use a POC during flight, we note that it normally would not be appropriate for a carrier to ask for such a certificate from someone wishing to use a ventilator, respirator or CPAP machine aboard a flight. Consistent with section 382.23, a medical certificate should be required of an individual who uses a ventilator, respirator or CPAP machine only if the individual’s medical condition is such that there is reasonable doubt that the individual can complete the flight safely, without requiring extraordinary medical assistance during the flight.
The Department understands the concerns expressed by carriers regarding the difficulty and the costs associated with providing information to passengers about the limitation on the ability of its codeshare partners to accommodate users of respiratory devices. The Department also believes that it is imperative that users of electronic respiratory assistive devices receive, in advance, accurate information concerning any limitation on the ability of the carrier to accommodate their need to use such a device in the cabin of the aircraft. The Department has tried to balance these somewhat conflicting concerns/needs. The final rule requires that, in a codeshare situation, the carrier whose code is used on the flight must either advise an individual who inquires about using his/her electronic respiratory assistive device onboard an aircraft to contact the carrier operating the flight for information about its requirements for use of such a device in the cabin, or provide such information on behalf of the codeshare carrier operating the flight. For example, consider a passenger who buys a codeshare ticket from carrier A for a connecting itinerary from New York to Cairo through London ,where carrier A operates the New York to London leg and carrier B operates the London to Cairo leg under carrier A’s designator code. In this example, carrier A must upon inquiry from the passenger: (1) inform the passenger about carrier A’s requirements for the use in the cabin of a ventilator, respirator, CPAP machine or POC and (2) inform the passenger about carrier B’s requirements for the use in the cabin of the aforementioned devices or tell the passenger to contact carrier B directly to obtain this information.
5. Advance Notice
We sought comments in the Oxygen NPRM about 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 POC, a respirator or a ventilator aboard a flight. We also asked whether carriers should be permitted to require a passenger to provide advance notice of his or her intention to use the aircraft electrical system as well as what would be a reasonable amount of advance notice.
Industry commenters provided a number of operational reasons why they said there should be advance notice requirements for individuals who wish to use electronic respiratory assistive devices aboard a flight. These commenters explained that advance notice is needed to: (1) ensure the device is approved for use onboard the aircraft; (2) ensure that a passenger brings an adequate battery supply to power his/her device; (3) ensure that the respiratory device is medically necessary; (4) ensure the pilot in command is apprised when a passenger is using a POC; and (5) ensure that the passenger has talked with his/her physician regarding fitness to fly with the respiratory assistive device. Many consumers also indicated that they were comfortable with an advance notice requirement for individuals who wish to use a battery-operated CPAP machine, an approved POC, a respirator or a ventilator aboard a flight. There was, however, disagreement as to what would constitute a reasonable amount of advance notice. While most consumer and industry comments indicated that 48 hours is a reasonable amount of advance notice, some industry comments asked for 96 hours advance notice for international flights and a few consumers stated that 24 hours is sufficient notification.
With respect to electrical outlets, industry comments strongly urged that electrical outlets not be relied upon by respiratory device users. According to these commenters, electronic device users cannot depend on the presence of an outlet, as most aircraft do not have electrical outlets; the electrical outlets that are available on aircraft may not be compatible with the passenger’s device, as most respiratory assistive devices require more wattage; electrical outlets may be turned off during takeoff and landing; and the carrier may switch aircraft and use aircraft with no outlets at the last minute.
Based on the comments received and the Department’s belief that providing 48 hours’ advance notice would not be burdensome for consumers, this final rule permits carriers to require up to 48 hours’ advance notice from individuals who wish to use electronic respiratory assistive devices aboard a domestic or international flight. The Department believes that a 48 hour advance notice is reasonable as that time period provides sufficient time for carriers to prepare for the accommodation. Further, in other sections of this Part where a carrier has been permitted to require a qualified individual with a disability to provide advance notice of his or her need for certain accommodations or of his or her disability as a condition of receiving the requested accommodation, that advance notice has been limited to 48 hours. The Department also believes, as comments provided by the industry representatives contend, that electrical outlets are generally not reliable sources of power for electronic respiratory assistive devices. Of course, if a carrier is confident that the electrical outlet on the aircraft is reliable (e.g., uninterrupted service), nothing in this rule prohibits the carrier from permitting a passengers to plug his/her electronic respiratory assistive device into such an outlet, consistent with applicable FAA safety rules.
6. Advance Check-in Time
The proposed rule asked questions about operational reasons, if any, for requiring passengers who request to use their respiratory assistive devices to comply with an advance check-in deadline. It also asked about issues passengers who use respiratory assistive devices would face if carriers were permitted to require an advance check-in deadline, as well as what would be a reasonable length of time for the advance check-in.
Comments provided by the industry to justify the need for advance check-in are similar to the justifications provided for advance notice (e.g., to ensure the device is safe for use on board, to ensure proper packaging of batteries, ensure an adequate supply of batteries). Consumers questioned whether advance check-in is necessary if a passenger provides advance notice of his/her intention to bring and use the electronic respiratory assistive devices. The consumers noted that they have other obligations and restrictions on their time and that advance check-in places significant burdens on their time. If advance check-in is required, consumer commenters favored a one hour advance check-in requirement. Industry comments supported one hour advance check-in for all domestic flights but two hour advance check-in for international flights. Carrier comments also sought the authority to deny boarding if a passenger has failed to comply with the carrier’s procedural instructions on using electronic devices onboard.
The Department believes that it is necessary to permit carriers to require advance check-in to enable the carrier personnel to inspect the label on the electronic respiratory assistive device to ensure that it was labeled by the manufacturer in accordance with the applicable regulations and to ensure that a passenger is carrying an adequate number of properly packaged batteries to power his/her assistive device. The Department generally believes that one hour advance check-in is reasonable for both domestic and international flights, especially since “advance check-in” as used in this rule means checking in one hour before the carrier’s normal check-in time for the general public. Thus, for example, if a carrier’s normal check-in deadline for all passengers for an international flight is one hour before scheduled departure time, the carrier is free to require passengers who wish to use electronic respiratory assistive devices to check in two hours before scheduled departure time. That having been said, it would not be reasonable for a carrier to require one hour advance check-in in situations where a passenger is not able to check-in one hour in advance because the passenger’s connecting flight arrived late. Consider the example, of a codeshare connecting itinerary from Washington, D.C. to Johannesburg through Rome, where carrier A operates the segment from Washington, D.C. to Rome and carrier B operates the segment from Rome to Johannesburg. If carrier B has a one hour advance check-in requirement and the passenger checks in for the flight to Johannesburg less than an hour before departure due to carrier A’s late arrival in Rome, the passenger must be accepted on the flight to Johannesburg up until carrier B’s general check-in deadline for all passengers on that flight. The Department is not persuaded by consumer comments that one hour advance check-in would be a significant burden on them, particularly since this rule would not permit carriers to require a one hour advance check-in for a passenger who is not able to meet that requirement due to his/her connecting flight arriving late. The Department is also not persuaded by industry comments that a two hour advance check-in is needed for international flights, in part because the information that the carrier personnel will be verifying at the departure gate does not change based on whether the flight is a domestic flight or an international flight.
7. Seating Accommodations
In the Oxygen NPRM, we asked whether a passenger who uses a ventilator, respirator, CPAP machine or an FAA-approved POC should be given priority over users of other types of electronic equipment that are not assistive devices (e.g., laptops) with respect to obtaining power for the device from the aircraft’s electrical outlets. Virtually all of the consumer comments stated that upon request airlines should be required to seat a passenger who self identifies as using an electronic respiratory assistive device next to an electrical outlet, if one is available on the aircraft. Industry comments on this issue varied. Some carriers supported providing priority seating while other industry commenters opposed this proposal. The industry commenters that opposed providing priority seating asserted that access to seats with electrical outlets is an aircraft amenity based on other considerations (e.g., frequent flier status) and explained that the cost of ensuring access to electric outlets is burdensome. Some of the costs attributed to implementing the proposed seating accommodation include the cost to a carrier of updating its seating maps to indicate the presence of electric outlets, updating its reservation system to allow blocking of seats near outlets for qualified disabled passengers, and training flight attendants and others regarding the location of each aircraft’s electrical outlets. Also, as noted above, many industry comments emphasized that not all aircraft have outlets and the unreliability of electrical outlets on aircraft that do have them (e.g., outlets turned off during take off and landing, outlets often don’t have sufficient wattage to power respiratory devices).
The Department is not convinced by the industry arguments opposing priority seating on the basis of costs associated with such a seating accommodation but is convinced that, for safety reasons, it would not be good policy to have any requirements concerning the use of electrical outlets when electrical outlets are not available on a number of aircraft and are generally not reliable sources of power for electronic respiratory assistive devices. Therefore, this rule does not mandate that carriers allow users of respiratory assistive devices to plug their devices into the aircraft’s power supply or to provide priority seating near such outlets. The Department does encourage carriers to permit passengers to hook up the four types of respiratory assistive devices to the aircraft electrical power supply in circumstances where the carrier is confident that the electrical outlet on the aircraft is reliable (e.g., uninterrupted service).
The Oxygen NPRM sought information about whether the rule should allow carriers to require users of electronic respiratory devices to carry a certain number of batteries. It also solicited comments about what action the Department should authorize the carrier to take if a passenger does not bring a sufficient number of batteries to power an electronic respiratory assistive device or a passenger does not ensure that the batteries for the device are packaged in a manner to allow them to be transported safely in the cabin.
Consumers generally agreed that it would be appropriate to require users of electronic respiratory assistive devices to carry a sufficient number of batteries to power the device for 1.5 times the length of the flight. Some carriers suggested that users of electronic respiratory assistive devices should carry enough batteries to power the device for the length of the flight plus an additional two hours. Other comments suggested enough batteries to power the device for 1.5 times the length of the flight plus one additional battery. There were also comments recommending that the passenger’s physician should indicate the appropriate number of batteries in the prescription that indicates the passenger’s medical need for the device. A number of carriers asked for the authority to refuse to carry a passenger who does not have an adequate number of batteries. A few carriers asked to be able to charge the passenger who does not carry a sufficient number of batteries for the cost of any resulting emergency action that may be required. Many industry comments also suggested that PHMSA and FAA should be involved in the discussion of the appropriate number of batteries to carry in the cabin to ensure that an excessive number of batteries is not carried onboard.
After fully considering the comments received and consulting with FAA and PHMSA personnel, the Department has determined that there is no need to place a limit on the number of batteries users of electronic respiratory devices transport in the cabin of an aircraft. The FAA and PHMSA are confident that batteries that are protected against short circuits and wrapped in strong outer packagings can safely be transported in the passenger cabin provided there are sufficient approved stowage locations available. On March 26, 2007, PHMSA published a safety advisory to inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried aboard aircraft. Federal regulations require that electrical storage batteries or battery-powered devices carried aboard passenger aircraft be properly packaged or protected to avoid short-circuiting or overheating. In its safety advisory, PHMSA suggested various practical measures for complying with the regulations and minimizing transportation risks. Recommended practices include keeping batteries installed in electronic devices; packing spare batteries in carry-on baggage; keeping spare batteries in their original retail packaging; separating batteries from other metallic objects such as keys, coins and jewelry by packing individual batteries in a sturdy plastic bag; securely packing battery-powered equipment in a manner to prevent accidental activation; and ensuring batteries are undamaged and purchased from reputable sources.
The Department has decided to allow a carrier to require an individual who uses a ventilator, respirator, CPAP machine or FAA-approved POC to bring an adequate number of fully charged batteries onboard to operate the device for not less than 150% of the expected maximum flight duration. The appropriate number of batteries should be calculated using the manufacturer’s estimate of the hours of battery life while the device is in use and the information provided in the physician’s statement (e.g., flow rate for POCs). The expected maximum flight duration is defined as the carrier’s best estimate of the total duration of the flight from departure gate to arrival gate, including taxi time to and from the terminals, based on the scheduled flight time and factors such as (a) wind and other weather conditions forecast; (b) anticipated traffic delays; (c) one instrument approach and possible missed approach at destination; and (d) any other conditions that may delay arrival of the aircraft at the destination gate. This rule also makes it clear that a carrier may deny boarding, on the basis of safety, to an individual who does not carry the number of fully charged batteries prescribed in the rule or an individual who does not properly package the extra batteries needed to power his/her device. Information for passengers on how to safely travel with batteries is available at safetravel.dot.gov . However, a carrier may not deny boarding due to an inadequate number of batteries unless the carrier can provide information from a reliable source demonstrating that the number of batteries that the passenger has supplied will not provide adequate power for 150% of the expected maximum flight duration based on the battery life indicated in the manufacturer’s specification when the device is operating at the flow rate specified in the physician’s statement. It is also worth noting that the requirement to bring an adequate number of batteries to continuously operate the device for up to 150% of the expected maximum flight duration does not apply in circumstances where the passenger will be using an FAA approved POC while boarding or disembarking from the aircraft and will not be relying on the POC during flight because the passenger has contracted for carrier-supplied oxygen. In instances where the carrier denies boarding to an individual, the carrier must provide the individual a written statement of the reason for the refusal to provide transportation within 10 days of the incident.
The Oxygen NPRM proposed to require certificated U.S. carriers operating aircraft that conduct passenger-carrying service with at least one aircraft having a designed seating capacity of more than 60 passengers and foreign 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 to provide passengers free in-flight medical oxygen in accordance with applicable safety rules. The Department is committed to providing individuals dependent on medical oxygen greater access to air travel, consistent with Federal safety and security requirements. However, in order to obtain additional information about the cost of carrier-supplied in-flight medical oxygen, the Department is deferring final action on this proposal.
Under existing Air Carrier Access Act interpretation and practice, carriers are not required to make modifications that would constitute an undue burden or fundamentally alter the nature of the carriers' service. As a matter of disability law, undue burden implies that there may necessarily be some burden (a “due burden”) in accommodating someone’s disability. Generally, an action is deemed to be an undue burden if it would require significant difficulty or expense on the part of the covered entity when considered in light of factors such as the overall size of the business, the financial resources of the business, the type of operation, and the nature and cost of the accommodation. There is no hard and fast rule about what is or is not an “undue burden.” The portion of the cost of carrier-supplied oxygen that would constitute an undue burden could differ among carriers and could differ from one route to another with the same carrier. We do not currently have sufficient information available to determine if requiring a carrier to provide free in-flight medical oxygen would create an undue burden. The Department will seek additional comment about the cost of carrier-supplied oxygen in a supplemental notice of proposed rulemaking (SNPRM) that it plans to issue. The preamble to the SNPRM will also discuss comments received on the Oxygen NPRM with respect to this issue. In the interim, carriers can continue to charge for in-flight medical oxygen that they choose to provide.