UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS i,: ~ . ",'

" ...' .

WASHINGTON, DC (~; Ii t

June 13,2014

THE FOLLOWING LETTER WAS SENT TO THE ATTACHED LIST OF FOREIGN

AIR CARRIERS OPERATING UNDER EUROPEAN UNION REGULATIONS

This letter concerns the requests by or on behalf of certain foreign air carriers operating under

European Union regulations (the Petitioners) for a conflict oflaws waiver under section 382.9 of

the Department of Transportation's Air Carrier Access Act (ACAA) regulation, 14 CFR Part

382, for flights to and from the U.S. The Petitioners seek relief from certain provisions of 14

CFR 382.133, concerning the in-flight use of passenger-supplied electronic respiratory devices.

For the reasons discussed below, we are denying the Petitioners' request for a conflict of laws

waiver from section 382.133.

Request for Conflict of Laws Waiver

On May 13, 2008, the Department of Transportation (Department) issued a final rule amending

the Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382, to cover foreign carriers. The

Department included a conflict of laws waiver provision, 14 CFR 382.9, as part of its obligation

and commitment to give due consideration to foreign law where it applies. Section 382.9, which

became effective on May 13,2009, states that a foreign air carrier may request a conflict of laws

waiver from the Department if the carrier believes that a provision of the law of a foreign nation

precludes the carrier from complying with a provision of Part 382. For purposes of section 382.9,

foreign law means a legally binding mandate (e.g., a statute, regulation, or a safety rule

equivalent to an Federal Aviation Administration (FAA) regulation) that imposes a

nondiscretionary obligation on the foreign carrier to take, or refrain from taking, a certain

action. 1 Foreign carriers must comply with all legally binding foreign safety and security

regulations;2 for these regulations, no conflict oflaws waiver is necessary.

The Petitioners filed their waiver requests in September 2008. They seek a waiver from 14 CFR

382.133(b), which provides, in relevant part, that carriers "must permit any individual with a

disability to use a ventilator, continuous positive airway pressure [CPAP] machine, or portable

1 Guidance, recommendations, codes of best practice. policies of carriers or carrier organizations, and other

materials that do not have mandatory, binding legal effect on a carrier cannot give rise to a conflict between Part 382

and foreign law for purposes of this Part, even if they are published or endorsed by a foreign government. Final

Rule, "Nondiscrimination on the Basis of Disability in Air Travel" (preamble), 73 FR 27616.

2 14 CFR 382.7(g).
2

oxygen concentrator (POC) of a kind equivalent to an FAA-approved POC for U.S. carriers in

the passenger cabin during air transportation to, from, or within the United States.,,3

The Petitioners claim that section 382.133(b) conflicts with EU-OPS, Subpart R, Art.1.1155

(EU-OPS Section 1155), which states: "An operator shall not transport dangerous goods unless

approved to do so by the [relevant European civil aviation authority]." According to the

Petitioners, European civil aviation authorities may determine that the devices described in

section 382.133(b) are unapproved "dangerous goods." The Petitioners seek a waiver to the

extent that such a conflict exists.

Analysis

Petitioners do not identify any specific electronic respiratory device that. is simultaneously

required for carriage by section 382.133(b), and deemed a "dangerous good" by a European

civil aviation authority. As such, Petitioners have not established a direct conflict between

section 382.133 and EU-OPS Section 1155. Further, section 382. 133(b) does not require airlines

to allow individuals to stow or use a ventilator, respirator, CPAP machine, or POC in the

passenger cabin unless such stowage and use is consistent with applicable regulations of the

FAA, Transportation Security Administration (TSA), and the Pipeline and Hazardous Materials

Safety Administration (PHMSA), and the safety or security regulations of the foreign carrier's

government.

As an additional matter, effective October 28,2014, the EU-OPS will be replaced by Regulation

(EU) No. 965/2012 on Air Operations.4 This regulation sets forth revised technical requirements

and administrative procedures related to air operations. A subsection of Regulation (EU) No.

965/2012, CAT.GEN.MPA.200,5 will govern the transport of dangerous goods. This section

3 In general, foreign carriers are excused from this requirement if the device: (1) does not meet applicable

requirements set by the foreign carrier's government; (2) does not meet FAA requirements, where the foreign

carrier's government has not set its own standards and where the carrier elects to adopt FAA requirements; or (3)

cannot be stowed and used in the passenger cabin consistent with applicable regulations of TSA, FAA, PHMSA, and

the foreign carrier's government. See 14 CFR 382.133(b)(1)-(3).

4 Regulation (EU) No. 96512012 became effective on October 28, 2012, but EU Member States elected to defer its

application until October 28, 2014. See Regulation (EU) No 965/2012, Article 10, paragraph 2;

http://easa.europa.eu/approvals-and-standardisation/docs/opt-outs-tables/Opt -outs%20to%20965-

2012%200PS.xlsx.

5 Regulation (EU) No. 965/2012, Annex IV, Subpart A, Section I provides:

CA T.GEN.MPA.200 Transport of dangerous goods

(a) Unless otherwise permitted by this Annex, the transport of dangerous goods by air shaJJ be conducted in

accordance with Annex 18 to the Chicago Convention as last amended and amplified by the 'Technical instructions

for the safe transport of dangerous goods by air' (ICAO Doc 9284-AN/905), including its supplements and any other

addenda or corrigenda.

(b) Dangerous goods shaJJ only be transported by an operator approved in accordance with Annex V (part-SPA),

Subpart G, except when:

(1) they are not subject to the technical instructions in accordance with Part I of those instructions; or
3

states that the transport of dangerous goods by air shall be conducted in accordance with the

"Technical Instructions for the Safe Transport of Dangerous Goods by Air" (lCAD Doc. 9284-

AN/90S) (Technical Instructions) and the regular updates thereto. The Technical Instructions

defme "dangerous goods" and regulate their storage and use on aircraft.6The Petitioners have

not alleged that the portable electronic respiratory devices described in section 382.133(b) are

"dangerous goods" as defmed by the Technical Instructions, or the safety or security regulations

of their government. '

In fact, the Technical Instructions permit such devices. Specifically, "portable medical

electronic devices (Automated External Defibrillators (AED); Nebulizer, Continuous Positive

Airway Pressure (CP AP), etc.) containing lithium metal or lithium ion cells or batteries" may be

placed in carryon baggage and held by the passenger, so long as: (I) the device is for medical

use; (2) the operator approves the device; and (3) certain battery restrictions are observed.

Technical Instructions (2013-2014 ed.) Part 8, sec. 1.1.2; see also Table 8-1, p. 8-1-5. As long as

these conditions are met with respect to the electronic respiratory devices described in section

382.133, they fall within this permitted category.

Finally, we note that the Technical Instructions permit individual Member States to impose

additional restrictions on portable medical electronic devices in the interest of aviation security.

Technical Instructions Part 8, sec. 1.1.2. The Petitioners have not alleged that any such

restrictions apply.7

Decision

Section 382.l33(b) requires carriers to permit certain passenger-supplied portable respiratory

devices in the cabin, consistent with safety and security requirements. European Commission

regulations do not prohibit those devices from being carried in the cabin, and the Petitioners have

not shown that any other foreign laws conflict with section 382.133(b) with respect to the

carriage of those devices. Therefore, the Department concludes that section 382.l33(b) neither

conflicts with, nor is in any way inconsistent with, EU-DPS Section 1155, CAT.GEN.MPA.200,

or the Technical Instructions.

(2) they are carried by passengers or crew members, or are in baggage, in accordance with Part 8 of the technical

instructions.

6 The Technical Instructions define "dangerous goods" as "articles or substances which are capable of posing a risk

to health, safety, property or the environment and which are shown in the list of dangerous goods in these

Instructions, or which are classified according to these Instructions." Technical Instructions (2013-2014 ed.) at

1-3-1.

7 Qantas notes that Australia's Civil Aviation Safety Regulations (CASR) require carriers such as Qantas to comply

with ICAO's regulations regarding the transportation of dangerous goods. See CASR (1998 ed.), Part 92, sec.

92.030. As we explain above, however, ICAO's Technical Instructions permit the devices at issue here.
4

This decision applies to the Petitioners that submitted a conflict of laws waiver in September

2008, but is instructive to all carriers operating flights covered under section 382.78that are

subject to the ED regulations cited in this letter. We note, however, that if a carrier believes a

foreign government requirement precludes it from complying with a provision of Part 382, we

encourage that carrier to submit a conflict of laws waiver request. A conflict of laws waiver

determination by the Department provides carriers with a clear and unequivocal decision as to

whether or to what extent they are obliged to abide by a particular section of Part 382.

If you have any questions about this matter, please contact Robert Gorman, senior attorney in my

office, or Livaughn Chapman, Chief, Aviation Civil Rights Compliance Branch, at (202) 366-

9342.

Sincerely,

/s/

Blane A. Workie

Acting Assistant General Counsel for

Aviation Enforcement and Proceedings

Enclosure

8 Section 382.7 statesthat 14 CFR Part 382 appliesto foreigncarriers"with respectto flights[foreigncarriers]

operatethatbeginor endat a u.S. airportandto aircraftusedforthoseflights."
Aer Lingus Limited

Gerald Murphy

Steven Seiden

Crowell and Moring LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

British Airways Pic

Don H. Hainbach

Garofalo Goerlich Hainbach PC

1200 New Hampshire Avenue NW

Washington, DC 20036-6802

Alitalia-Compagnia Aerea ltaliana S.p.A.

Claudio Zinno

Piazza America da Schio

Palazzina RPU

00054 Fiumicino (RM)

Italia

Condor Flugdienst GmbH

Finnair

Pullmanlur Air

Thomas Cook Airlines Ltd.

Anita Mosner

Holland and Knight

800 17th St N.W., Suite 1100 ..

Washington, DC 20006

Societe Air France

KLM Royal Dutch Airlines

Joan Gabel

United States Counsel, Air France

125 East 55th Street

New York, NY 10019

Polskie Linie Lotnicze LOT SA

Anthony Battista and

Chris Christensen

Condon & Forsyth LLP

7 Times Square

New York, NY 10036

5

Lufthansa German Airlines

Austrian Airlines

Lawrence E. Mullins, Esq.

Lufthansa German Airlines

1640 Hempstead Turnpike

East Meadow, NY 11554

Qantas Airways Limited

Scott Cunningham

Condon and Forsyth, L.L.P.

1901 Avenue of the Stars, Suite 850

Los Angeles, CA 90067

Air Berlin PLC & Co. Luftverkehrs KG

Evelyn D. Sahr

Chair, Aviation Practice Group

Eckert Seamans Cherin & Mellott, LLC

1717 Pennsylvania Avenue, NW

12th Floor

Washington, DC 20006

Monarch Airlines

Jennifer S. Holifield

Zieman Speegle Jackson & Hoffman LLC

Five Dauphin Street

Suite 301 - Bayport Building

Post Office Box II

Mobile, AL 36601

TV! Travel PLC

Eddie Redfern

Head of Regulatory Affairs (Aviation)

TUI Travel House

Crawley Business Quarter

Fleming Way, Crawley

West Sussex, UK

RH109QL

Air Transport Association!

Airlines for America (A4A)

Douglas Mullen

1301 Pennsylvania Avenue N.W., Suite 1100

Washington, DC 20004
Association of European Airlines

Mr. Athar Husain Khan

Secretary General

Avenue Louise 350

B-I050 Brussels Belgium

6