U.S. Department GENERAL COUNSEL 1200 New JerseyAvenue. SE Washington. DC 20590 of Transportation Office ofthe Secretary ofTransportation October20, 2009



### CertifiedMail

- Return ReceiptRequested



### Mr. Douglas K. Mullen SeniorAttorney AirTransportAssociation ofAmerica, Inc. 1301 PennsylvaniaAvenue, N.W. Washington, D.C. 20004

DearMr. Mullen: Re: Conflict ofLaw Waiver Determination Request ConcerningProvisions of 14 CFR Part 382, Section 382.117 and Section 382.27

This letter concerns the Air Transport Association's (ATA) September 10, 2008, request on behalfofits members' for a conflict oflaw waiver under section 382.9 ofthe Department of Transportation's (Department) Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. Theprovisions ofPart 382 for which reliefis requested pertain to the accommodation ofservice animals accompanying passengers with disabilities in sections 382.117 and related advance notice requirements in section 382.27. The Department has already responded to ATA's request for a conflict oflaw waiver and equivalent alternative determination concerning the boarding, deplaning, and connecting assistance requirements contained in Subpart G (14 CFR 382.91- 382.105) ofthe regulation, and is continuing to review ATA's remaining requests concerning other provisions ofPart 382. At this time, we are denying ATA's conflict oflaw waiverrequest from sections 382.117 and section 382.27 for the reasons described below.

Section 382.9 allows acarrier association on behalfofits member carriers to request a conflict of law waiver from the Department ifthe association's members believe that a provision ofthe law ofa foreign nation precludes its members from complying with a provision ofPart 382. ATA asserts a conflict oflaw between section 382.117 ofPart 382 and Article 7 ofEC 1107/2006, 

### the European Union regulation on service to passengers with disabilities. UnderArticle 7, paragraph 2, airport operators must accommodate a recognised assistance dog, where its use is required, "provided that notification ofthe same is made to the air carrier or its agent orthe tour operator

, ATAairline members are ABX Air, AirTranAirways, AlaskaAirlines, American Airlines, ASTAR Air Cargo, Atlas Air, Continental Airlines, Delta Air Lines, Evergreen International Airlines, Federal Express Corporation, Hawaiian Airlines, JetBIue Airways, Midwest Airlines, NorthwestAirlines, Southwest Airlines, United Airlines, UPS Airlines, and US Airways. ATA associate members are AirCanada, AirJamaica and Mexicana.2

in accordance with applicable national rules covering the carriage ofassistance dogs on board aircraft, where such rules exist." ATA argues that EC 1107 only pennits the carriage of assistance dogs, and that the definition of and authority to carry assistance dogs is left to individual European Community(EC) Member States, someofwhichmaynot define "assistance dog" to include emotional support animals. ATA foresees potential conflicts arising from differences in the definition ofassistance dog under Member State regulations that only permit carriers to transport service dogs as defined by those regulations and under section 382.117 (which includes all service dogs).2 In such instances, ATA asserts that U.S. carriers will face enforcement action ifa foreign code-share partner declines to accept a service dog that does not meet an applicable foreign regulatory definition on a code-share flight between two foreign points. While EC 1107 requires carriers to transport "recognised assistancedogs" in the aircraft cabin when notification is provided in accordance with applicable national rules, neither Article 7 nor any other provision ofEC 1107 appears to restrict carriers from transporting assistance dogs ofany type in the cabin. It appears, therefore, that there is no conflict between EC 1107 and section 382.117 with respect to thetype ofservice dogs carriers maytransport.
The Department acknowledges that a conflict oflaw may arise when an Ee Member State's regulation defines "service dog" differently than section 382.117; however, the foreign law cited byATA does not pose such a conflict, norhas ATA identified any Member State's national rule that does. Where a conflicting national rule exists and a foreign code-share partner declines to transport the service dog ofa passenger traveling under a U.S. carrier's code on a code-share flight between two foreign points, the U.S. carrier may file a conflict oflaw waiver request, as ATA has done, on behalf of its foreign code-share partner. Doing so will ensure that the Department has the opportunity to review and concur with the carrier's analysis ofthe conflict, thus minimizingthe carrier'srisk ofenforcement action.3

AT A also asserts a conflict between the advance notice requirements for service animals in Article 7, which it contends "requires pre-notification when traveling with an assistance dog, according to a [M]ember [S]tate's national rules", and section 382.27, which limits a carriers' abilityto require advance notice for travel with service dogs.4 Again, it does not appear that EC

2 Under section 382. I 17, carriers generally must pennit any service dog to accompany a qualified person with a disability in the aircraft cabin that is individually trained orable to assist the passenger, or shown bydocumentation to be necessary for the emotional (including psychiatric) well-being ofthe passenger, and that is trained to behave appropriately in apublic setting.

3Thepreamble to Part 382provides clarificationofthe Department's intent:

Where a U.S. carrier believes a foreign law conflicts with a service-related provision ofthis Part and bars compliance on a code-share flight operated by its foreign code share partner, the U.S. carrier may file a waiver request on behalfof its foreign code-share partner(s) subject to that law. The waiver request should include a proposal for an alternative means of compliance with the Part 382 provision or a justification ofwhy it would be impossible to achieve the objective. Ifgranted, the responsibility ofthe U.S. carrier with respect to code-share flights operated by its foreign partner(s) will be limited in accordance with the terms ofthe waiver. (See U.S. Department ofTransportation, Nondiscrimination on the Basis ofDisability inAirTravel Correction, 74 Fed. Reg. 11469, 11471 (March 18,2009) (correction to the final rule as published in 73 Fed. Reg. 27614, 27647 (May 13,2008».

4 Section 382.27(c)(8) permits carriers to require passengers with disabilities to provide up to 48 hours' advance notice and check-in one hour before check-in for the general public when traveling with an emotional support or3

1107 conflicts with section 382.27 with respect to advance noticerequirements. While 

### Ee 1107 

### requires carriers to transport assistance dogs in the cabin when notification is provided in accordance with applicable national rules, there appears to be no provision of 

### Ee 1107 that 

### requires carriers to impose advance notice requirements that conflict with section 382.27. The Department acknowledges that a conflict of law may arise when an 

### Ee Member State's regulation concerning advance notice differs from section 382.27. ATA has not, however, identified any Member State'snational rule thatposes such a conflict. Finally, ATA states that "in cases where a country onlypennits the carriage ofassistance dogs,
as Article 7 contemplates, a foreign carriermayhave to violate quarantine restrictions to pennit carriage ofservice animals in the cabin." Here there appears to be a misunderstanding about the intent ofPart 382, which does not under any circumstances require a carrierto violate the law of another country, including quarantine regulations. Section 382.117(h), in fact, requires carriers to take all steps necessary to comply with foreign regulations (e.g., animal health regulations) needed to permit the legal transportation of a passenger's service dog from the U.S. into a foreign airport. Insofar as a foreign law restricts orbars carriers from transporting service dogs into a country and lacks any provision to allow carriers to transport such dogs legally, carriers obligedto complywiththe foreign law would not bein violationofPart 382.

In section 382.9 and as further discussed in the Section-by-Section Analysis, we stated that a foreign law that requires a foreign carrier to do something prohibited by this rule, or that prohibits a foreign carrier from doing something required by this rule, is an appropriate subject for a conflict oflaws waiver.5 This is not the case with respect to the cited provisions of

### Ee 1107 and the requirements of sections 382.117 and 382.27. ATA has not provided any information about foreign laws that may preclude its members or their foreign code-share partners from complying with these requirements. Therefore, having found no conflict oflaw, the Department must deny ATA's conflict oflaw waiver request on behalfofits members for sections 382.117 and 382.27.

We note that with respect to passengers traveling under a U.S. carriers' code on a code share flight operated by a foreign carrierbetween two foreign points, the U.S. carrier is responsible to
ensure that suchpassengers can travel with any service animal (not only service dogs) as long as it behaves appropriately and there is no foreign law that would prohibit the service animal's transport on the aircraft orentryto the destination country. However, ifthe U.S. carriertickets a passenger on a flight between two foreign points operated by a foreign carrierunder an interline agreement, theflight wouldnotbecovered byourrule.

psychiatric service dog. Section 382.27(c)(9) pennits carriers to require passengers to provide up to 48 hours' advance notice and check-inonehourbefore check-in for the general public when traveling with a service animal on a flight segment scheduled to take 8 hours ormore.

5 Nondiscrimination on the Basis ofDisability in AirTravel, 73 Fed. Reg. 27614,27646-27647 (May 13,2008) (amending 14 CFRPart 382).4

Ifyou have any questions about this matter, please contact Kathleen Blank Riether, ofmy staff,
orme at (202) 366-9342. You mayalso reach us byfax at (202) 366-7152. Sincerely,



# =======-**~** --=:::.,.

, SamuelPodberesky Assistant General Counsel for

Aviation Enforcement and Proceedings