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)

B. Carrier-Supplied Oxygen

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.