### u.s. Department of Transportation Office of the Secretary of Transportation GENERAL COUNSEL October20, 2009 1200 New Jersey Avenue, SE Washington, DC 20590

CertifiedMail

- Return ReceiptRequested

Mr. GeorgeU. Carneal Counsel for AirJamaicaLimited Hogan & Hartson LLP Columbia Square 555 Thirteenth Street, N.W., Suite 100 Washington, D.C. 20004

DearMr. Carneal: Re: Conflict ofLaw WaiverDetermination Request ConcerningProvisions in 14 CFR 382.117

This letter concerns Air Jamaica Limited's (Air Jamaica) May 7, 2009, request for a conflict of law waiver under section 382.9 ofthe Department ofTransportation's (Department) Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. Theprovisions ofPart 382 for which reliefis requested are section 382.117 and "any other section ofPart 382 requiring the transportation of service dogs" accompanying passengers with disabilities. The carrier limits its request for a conflict of law waiver from these sections only to flights from the United States (U.S.) into Jamaica and Barbados. Although Air Jamaica specifically cites a conflict with section 382.117, it appears that this waiverrequest pertains to sections 382.117(a) through 382.117(f)\, but not to

\ The following is asummary ofthe key provisions ofthe Part 382 sections involved with this request:
Section 382.ll7(a)generallyrequires carriers to pennit a service animal to accompanyaperson with a disability.
Section 382.117(b) requires carriers to permit a service animal to accompany a passenger with a disability in any seat in which the passenger sits unless the animal obstructs an aisle or other area used to facilitate an emergency evacuation.
Section 382.ll7(c)requires carriers, ifa service animal cannotbe accommodated at the seat location ofa passenger with a disability using the animal, to offer the passenger an opportunity to move with the animal to another seat location, ifpresenton the aircraft, where the animal canbe accommodated.
Section 382.117(d) requires carriers to accept identification cards, other written documentation, presence of harnesses, tags, orthe credible verbal assurances ofaqualified individual with a disabilityusing the animal.

Section 382.ll7(e) permits a carrier to refuse transportation to an emotional support or psychiatric service animal unless the passenger provides current documentation from a licensed mental health professional caring for the passenger. The letter should indicate the issue date and jurisdiction of the professional'S license and that the passenger has a recognized mental or emotional disability and that the passenger needs the animal as an accommodation for airtravel and/or for activity at the passenger's destination.2

sections 382.117(g), 382.117(h), and 382.117(i).2 Other requirements of Part 382 addressing service animals (e.g., the advance notice provisions in sections 382.27(c)(8) and 382.27(c)(9» pertainto themannerin which service animals and theirowners are to be accommodated and are not applicable in the context of Air Jamaica's request for country-specific waivers from the general obligation to transport service animals. We are granting Air Jamaica's conflict oflaw waiverrequest from sections 382.117(a) through 382.117(f) with respect to flights from the U.S. to Jamaica and Barbados for thereasons describedbelow.
Section 382.9 states that a foreign air carrier may request a conflict of law waiver from the Department ifthe carrier believes that a provision ofthe law ofa foreign nation precludes the carrier from complying with a provision of Part 382. Air Jamaica asserts a conflict of law between section 382.117 and Regulation 10 ofJamaica's Animal Diseases (Importation) Control Regulations, 1948, which states "[n]o dog or cat shall be imported into the Island unless such dog or cat is imported directly from one of the countries specified in Part I of the First Schedule." Part Iofthe First Schedule lists Great Britain, Northern Ireland and Eire. The carrier notes that there are no exceptions for anykind ofservice dogs. The carrier also asserts a conflict between section 382.117 and Regulation 11 ofBarbados' Animals (Diseases and Importation Control) Regulations, 1961, which states "[n]o dogorcat shall beimported into the Island except directly from countries specified inthe Third Scheduleto theseregulations." Although Barbados
now permits direct importation ofanimals from a number ofcountries in addition to those listed in the Third Schedule, the United States is not among the countries from which the importation of dogs and cats is permitted. Again the carrier notes that, like the Jamaican regulation, the Barbadian regulation has no exceptions for any kind ofservice dogs. Air Jamaica stresses that the cited regulations ofboth countries are legallybinding mandates applicable to all carriers and passengers traveling to Jamaica and Barbados. The carrier further contends that there is no action it can takepursuantto JamaicanorBarbadianlaws that would enable it to legallytransport service dogs from theU.S. to aJamaican orBarbadianairport.

Aside from flights into Jamaica and Barbados from the U.S., Air Jamaica indicates its intention to otherwise comply with the requirements ofsection 382.117 to the maximum extent possible, including the transportation ofservice dogs on flights to the U.S. from Jamaica and Barbados and between the U.S. and countries that do not impose "prohibitive animal importation or quarantinerules." Withrespect to service animals not accepted for transportation on flights from the U.S. to Jamaica and to Barbados, the carrier acknowledges its obligation and intent to provide a written explanation of such denials to the passenger in accordance with section 382.117(g).

2 Section 382.1 17(g) requires a carrier, whenever it decides not to accept a service animal, to explainthe reason to the passenger, document it in writing, andprovide a copyto thepassengerwithin 10 calendardays ofthe incident.

Section 382.117(h) requires carriers to promptly take all steps necessaryto comply with foreign regulations needed to legallytransport service animals on flights from the U.S. into a foreign airport.

Section 382.117(i) states that guidance on the transport ofservice animals is found in the preambleto the rule and guidance onthe legal transport ofservice animals into the U.K. is found in 72 FR 8268-8277, (February26,2007).3

For purposes of this conflict of laws analysis, the Department assumes that the term "importation" as used in both the Jamaican and Barbadian regulations essentially means "transportation". The Department finds that the cited regulations of Jamaica and Barbados directly conflict with the requirements ofsections 382.117(a) through (f) in thatboth excludethe United States from the schedules ofdesignated countries from which the transportation ofdogs into Jamaica and Barbados is permitted. Furthermore, neither set of regulations appears to provide any mechanism whereby Air Jamaica could obtain permission to legally transport dogs from the U.S. into Jamaica or Barbados. Therefore, we are granting Air Jamaica's request for a waiver from sections 382.1 17(a) through 382.1 17(f) for flights from the U.S. to Jamaica or to Barbados only. Flights from Jamaica and Barbados to the U.S., as well as flights between the U.S. and countries other than Jamaica and Barbados, remain subject to those rules. We note, however, in the event that eitherthe Jamaican orBarbadian governmentrevises its regulations to permit the legal transportation ofservice dogs into their countries from the United States, this waiverwill no longerbevalid withrespect to the countryinvolved.

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

# ~ Samuel Podberesky Assistant General Counsel for

Aviation Enforcement and Proceedings