UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS 

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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 aconflict 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 ofpassenger-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 ofLaws Waiver
On May 13, 2008, the Department ofTransportation (Department) issued a final rule amending the Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382, to cover foreign carriers. The Department included aconflict oflaws waiver provision, 14 CFR 382.9, aspart ofits 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 aforeign air carrier may request aconflict oflaws waiver from the Department ifthe carrier believes that aprovision ofthe law of aforeign nation precludes the carrier from complying with aprovision ofPart 382. Forpurposes ofsection 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 forthese regulations, no conflict oflaws waiver isnecessary.
The Petitioners filed their waiver requests in September 2008. They seek awaiver from 14CFR 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 acarrier cannot give rise to aconflict between Part 382 and foreign law for purposes of this Part, even ifthey are published or endorsed by a foreign government. Final Rule, "Nondiscrimination onthe Basis ofDisability inAir Travel" (preamble), 73 FR 27616.

2 14CFR 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 airtransportation to, from, orwithin 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 aconflict 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 setsforth 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 inthe passenger cabin consistent with applicable regulations ofTSA, FAA, PHMSA, and the foreign carrier's government. See 14CFR 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.

5Regulation (EU) No. 965/2012, Annex IV, Subpart A, Section I provides: CAT.GEN.MPA.200 Transport ofdangerous goods (a) Unless otherwise permitted by this Annex, the transport of dangerous goods by air shaJJ be conducted in accordance with Annex 18to the Chicago Convention as last amended and amplified by the 'Technical instructions for the safe transport ofdangerous 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 inaccordance with Part I ofthose instructions; or3

states that the transport of dangerous goods by air shall be conducted in accordance with the "Technical Instructions for the Safe Transport ofDangerous 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.6 The 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, orthe safety or security regulations oftheir government. '
In fact, the Technical Instructions permit such devices. Specifically, "portable medical electronic devices (Automated External Defibrillators (AED); Nebulizer, Continuous Positive Airway Pressure (CPAP), etc.) containing lithium metal orlithium ion cells orbatteries" 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 inthe 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,
orthe Technical Instructions.

(2) theyare carriedbypassengers orcrewmembers, orare inbaggage, inaccordance withPart 8 ofthetechnical instructions.

6TheTechnicalInstructions define"dangerous goods" as "articlesorsubstanceswhicharecapableofposingarisk 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.

7QantasnotesthatAustralia's CivilAviationSafetyRegulations(CASR)requirecarriers suchasQantastocomply with ICAO's regulations regarding the transportation of dangerous goods. See CASR (1998 ed.), Part 92, sec. 92.030. Asweexplainabove,however,ICAO's TechnicalInstructionspermitthedevicesatissuehere.

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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 382.78 that 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 orto what extent they are obliged to abide by aparticular section ofPart 382.
Ifyou 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

8Section382.7 statesthat 14 CFR Part382 appliestoforeigncarriers"withrespecttoflights[foreigncarriers] operatethatbeginorendatau.S. airportandtoaircraft usedforthoseflights."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 1200New 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
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