Federal regulators need to start over before trying to force U.S. carriers to provide oxygen service to their passengers, opponents of the requirement say.

In response to a proposed U.S. Department of Transportation (DOT) rule, the Regional Airline Association (RAA), the Air Transport Association (ATA), and individual domestic and international airlines have logged their qualified opposition.

At least one manufacturer of portable oxygen concentrators tried to take the middle ground, noting that if the airlines' biggest objections could be answered, then accommodating oxygen-toting passengers should not be a problem.

DOT held open the comment period for the proposed rule for at least six months. By the Jan. 30 deadline, more than 460 comments were filed with DOT, including many multi- signature petitions from passengers "seeking reasonable and safe accommodations."

The proposed rules would spell out when a passenger could bring aboard a plane one of four types of respiratory devices. The devices include ventilators, respirators, portable oxygen concentrators and continuous positive airway pressure machines. At the moment, many U.S. carriers do not permit passengers to bring onboard their own oxygen devices. In some cases, the airlines will sell oxygen to those travelers who need it.

In the solicitation for comments issued last July, DOT listed some 40 questions it wanted advice or comments on how best to implement its goal of not discriminating against the disabled who need oxygen during a flight.

In its response, the RAA said DOT needs to get the answers to its questions and then revise the proposed rule based on this additional information. The regional airlines cannot properly respond to the proposed rules until DOT provides definitive information in response to its questions, RAA President Deborah McElroy said in the group's Jan. 30 filing.

Furthermore, the Federal Aviation Administration (FAA) has indicated that it will be creating a generic standard for all portable oxygen concentrators. The RAA asked that DOT wait for the FAA guidelines and then determine if it still needs to go forward with its own rules.

The proposed rule places the burden of testing some 61 different devices on the airlines instead of the government or the medical-device industry. As proposed by DOT, each individual carrier must test these oxygen devices for each of its aircraft types and certify that the electronics would not interfere with the aircraft's avionics. The tests would be performed when a potential passenger asks about a specific device. There is no requirement that the passenger hold a ticket on the carrier.

Based on estimates provided by RAA members, McElroy said it would cost from $1,200 to $2,000 to test each device per aircraft type.

DOT estimates that it would collectively cost domestic carriers $18.6 million to $39.1 million to implement. The Battelle Institute studied the issue before DOT issued its solicitation. Battelle calculated that the first-year costs could range from $55.7 million to $69 million.

Instead of each carrier being compelled to test each device, the RAA advocates that the Radio Technical Commission for Aeronautics (RTCA) test each device in conjunction with the aircraft manufacturers. RAA and ATA, along with other industry groups, have requested that the RTCA get involved to eliminate duplicative air carrier testing.

Inogen, a manufacturer of portable oxygen concentrators, supports third-party testing of all devices based on broad standards crafted by the FAA and the air carriers. "When a third-party test agency determines compliance, devices may be labeled and no further airline or aircraft manufacturer testing or review will be required," Inogen said in its Jan. 30 filing.

If the DOT is going to move forward with the new rules, RAA asked that they apply only to those aircraft with more than 60 seats. DOT in other cases has used the 60-seat plane as the threshold for requiring carriers to provide a higher level of service to passengers with disabilities. McElroy noted that it is impractical to require a carrier to permit oxygen generators or mandate the carriers to provide oxygen service on smaller planes. Aircraft with fewer than 20 seats don't have flight attendants and those carrying 20 to 50 passengers have only one attendant. "Requiring the single flight attendant to monitor even one passenger with a portable electronic respiration device during flight poses customer service, safety and security concerns," McElroy wrote.

If DOT ignores RAA's request that the smaller planes be exempt from the requirements, then the group asked DOT to compel charter aircraft and on-demand taxis to comply with the proposed rules. "These companies continue to expand their operations and should be required to meet the same standards as regional airlines," the RAA noted.

In a filing from the American Thoracic Society, the group asked that all planes be included since many trips are on small regional aircraft and not on mid-size regional jets.

According to Medicare data, Inogen noted that nearly 1 million people are home oxygen users and about 93 percent now use an oxygen concentrator, including portable oxygen concentrators.

>>DOT Docket: OST-2005-22298.<<