U.S. Department GENERAL COUNSEL 1200 New Jersey Avenue. SE 

of Transportation Washington. DC 20590 

Office of the Secretary 

of Transportation 

October 20, 2009 

Certified Mail - Return Receipt Requested 

Mr. Douglas K. Mullen 

Senior Attorney 

Air Transport Association of America, Inc. 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Dear Mr. Mullen: 

Re: Conflict of Law Waiver Determination 

Request Concerning Provisions of 

14 CFR Part 382, Section 382.117 

and Section 382.27 

This letter concerns the Air Transport Association's (A TA) September 10, 2008, request on 

behalf of its members' for a conflict of law waiver under section 382.9 of the Department of 

Transportation's (Department) Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. 

The provisions of Part 382 for which relief is requested pertain to the accommodation of service 

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 of law waiver and equivalent alternative determination concerning the boarding, 

deplaning, and connecting assistance requirements contained in Subpart G (14 CFR 382.91-

382.105) of the regulation, and is continuing to review ATA's remaining requests concerning 

other provisions of Part 382. At this time, we are denying AT A's conflict of law waiver request 

from sections 382.117 and section 382.27 for the reasons described below. 

Section 382.9 allows a carrier association on behalf of its member carriers to request a conflict of 

law waiver from the Department if the association's members believe that a provision of the law 

of a foreign nation precludes its members from complying with a provision of Part 382. ATA 

asserts a conflict of law between section 382.117 of Part 382 and Article 7 of EC 1107/2006, the 

European Union regulation on service to passengers with disabilities. Under Article 7, paragraph 

2, airport operators must accommodate a recognised assistance dog, where its use is required, 

"provided that notification of the same is made to the air carrier or its agent or the tour operator 

, ATA airline members are ABX Air, AirTran Airways, Alaska Airlines, American Airlines, ASTAR Air Cargo, 

Atlas Air, Continental Airlines, Delta Air Lines, Evergreen International Airlines, Federal Express Corporation, 

Hawaiian Airlines, JetBIue Airways, Midwest Airlines, Northwest Airlines, Southwest Airlines, United Airlines, 

UPS Airlines, and US Airways. AT A associate members are Air Canada, Air Jamaica and Mexicana. 
2 

in accordance with applicable national rules covering the carriage of assistance 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, some of which may not define "assistance 

dog" to include emotional support animals. AT A foresees potential conflicts arising from 

differences in the definition of assistance 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 if a 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 assistance dogs" in the aircraft 

cabin when notification is provided in accordance with applicable national rules, neither Article 

7 nor any other provision of EC 1107 appears to restrict carriers from transporting assistance 

dogs of any type in the cabin. It appears, therefore, that there is no conflict between EC 1107 

and section 382.117 with respect to the type of service dogs carriers may transport. 

The Department acknowledges that a conflict of law may arise when an Ee Member State's 

regulation defines "service dog" differently than section 382.117; however, the foreign law cited 

by AT A does not pose such a conflict, nor has AT A 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 of a 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 of law 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 of the conflict, 

thus minimizing the carrier's risk of enforcement 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' 

ability to 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 or able to assist the passenger, or shown by documentation 

to be necessary for the emotional (including psychiatric) well-being of the passenger, and that is trained to behave 

appropriately in a public setting. 

3 The preamble to Part 382 provides clarification of the Department's intent: 

Where a U.S. carrier believes a foreign law conflicts with a service-related provision of this 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 behalf of 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 of why it would be impossible to achieve the objective. If granted, the responsibility of the 

U.S. carrier with respect to code-share flights operated by its foreign partner(s) will be limited in 

accordance with the terms of the waiver. (See U.S. Department of Transportation, Nondiscrimination on 

the Basis of Disability in Air Travel 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 or 
3 

1107 conflicts with section 382.27 with respect to advance notice requirements. 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. AT A has not, however, 

identified any Member State's national rule that poses such a conflict. 

Finally, AT A states that "in cases where a country only pennits the carriage of assistance dogs, 

as Article 7 contemplates, a foreign carrier may have to violate quarantine restrictions to pennit 

carriage of service animals in the cabin." Here there appears to be a misunderstanding about the 

intent of Part 382, which does not under any circumstances require a carrier to 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 or bars carriers from transporting service dogs 

into a country and lacks any provision to allow carriers to transport such dogs legally, carriers 

obliged to comply with the foreign law would not be in violation of Part 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 of laws 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 of law, 

the Department must deny ATA's conflict of law waiver request on behalf of its 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 carrier between two foreign points, the U.S. carrier is responsible to 

ensure that such passengers 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 or entry to the destination country. However, if the U.S. carrier tickets a 

passenger on a flight between two foreign points operated by a foreign carrier under an interline 

agreement, the flight would not be covered by our rule. 

psychiatric service dog. Section 382.27(c)(9) pennits carriers to require passengers to provide up to 48 hours' 

advance notice and check-in one hour before check-in for the general public when traveling with a service animal on 

a flight segment scheduled to take 8 hours or more. 

5 Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614,27646-27647 (May 13,2008) 

(amending 14 CFR Part 382). 
4 

If you have any questions about this matter, please contact Kathleen Blank Riether, of my staff, 

or me at (202) 366-9342. You may also reach us by fax at (202) 366-7152. 

Sincerely, 

=======- ~ --=:::.,. , Samuel Podberesky 

Assistant General Counsel for 

Aviation Enforcement and Proceedings