04-18645. Use of Certain Portable Oxygen Concentrator Devices Onboard Aircraft; Extension of Comment Period

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM); extension of comment period.

SUMMARY:

This action extends the comment period for an NPRM that was published on July 14, 2004. In that document, the FAA proposed to permit the use of certain portable oxygen devices onboard aircraft. This extension is a result of a request from the Air Transport Association (ATA) to extend the comment period to the proposal.

DATES:

Comments must be received on or before August 30, 2004.

ADDRESSES:

You may send comments to Docket No. FAA-2004-18596 using any of the following methods:

• DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically.
• Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Fax: [phone].
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

Privacy: We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. For more information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section of this document.

Docket: To read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

James Whitlow, Deputy Chief Counsel, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone: [phone], or facsimile [phone].

SUPPLEMENTARY INFORMATION:

Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the Web address in the ADDRESSES section.

Privacy Act: Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

Proprietary or Confidential Business Information

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD ROM, mark the outside of the disk or CD ROM and also identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.

Background

On July 14, 2004, the Federal Aviation Administration (FAA) issued Notice No. 04-10, Use of Certain Portable Oxygen Concentrator Devices Onboard Aircraft (69 FR 42324, 7/14/2004). Comments to that document were to be received on or before August 13, 2004.

In a letter dated August 4, 2004, ATA requested that the FAA extend the comment period for Notice No. 04-10 for 60 days. ATA stated that the NPRM came as a surprise and that they had not completed testing the Airsep Lifestyle portable oxygen concentrator (POC). ATA also feels that the NPRM raises questions of important technical, operational, and legal issues, such as the potential impact of having to train employees on the operation of POC devices. On August 6, 2004, we received a letter from the Regional Airline Association (RAA) supporting ATA's request to extend the comment period for 60 days. RAA specifically cited the uncertainty that the Airsep device would not affect navigation or communication systems onboard regional aircraft.

In response, two separate letters were received on August 5, 2004, objecting to ATA's request to extend the comment period on the NPRM. Gary Ewart, Director of the American Thoracic Society, wrote to inform the FAA that he had personally met with ATA and other concerned parties for over 3 years and that the NPRM was not unexpected in the physician, patient, oxygen device, or airline communities. Phillip Porte, Executive Director of the National Association for Medical Direction of Respiratory Care, and Jon Tiger, President of the National Home Oxygen Patients Association, jointly submitted their opposition to extending the comment period for the NPRM. They believe the 30 day comment period was enough time to develop comments and that any extension would unnecessarily delay promulgation of the final regulation.

We have considered the request for extension presented by ATA and weighed that request against the work done by the Department of Transportation, the opposition referenced above, and the momentum of the rulemaking, and the specific proposal. We agree that it is important for ATA and its members to review and consider this rule, but we feel that a 60-day extension of the comment period would be excessive.

Notice No. 04-10 makes very clear that this is an enabling proposal. No operator will be required to permit passengers to carry a POC device onboard an aircraft. If an operator decides to allow a passenger to use the Airsep (or any future approved device), it would have to determine if the device would interfere with the navigation or communication systems on its own. We also recognize that an operator would have to take several steps to train crewmembers and make appropriate administrative changes, but examining those potential actions is not necessary before our proposal is completed.

We will extend the comment period for Notice No. 04-10 for an additional 15 days only. We believe the total of 45 days is adequate for all interested parties to comment on this proposal. Absent unusual circumstances, the FAA does not anticipate any further extension of the comment period for this rulemaking.

Extension of Comment Period

In accordance with § 11.29(c) of Title 14, Code of Federal Regulations, the FAA has reviewed the petitions made by the Air Transport Association for extension of the comment period to Notice No. 04-10. The petitioner has a substantive interest in the proposed rule and the FAA has determined that a short extension of the comment period is consistent with the public interest.

Accordingly, the comment period for Notice No. 04-10 is extended until August 30, 2004.

Issued in Washington, DC, on August 10, 2004.

James W. Whitlow,

Deputy Chief Counsel.