U.S. Department of Transportation
Office of the Secretary of Transportation

Ms. AnitaM. Mosner Ms. SophyChen Attorneys forAir Canada Holland & Knight LLP GENERAL COUNSEL October20, 2009

CertifiedMail

- Return ReceiptRequested

2099 PennsylvaniaAvenue, N.W., Suite 100 Washington, D.C. 20006-6801 1200 New Jersey Avenue, SE Washington, DC 20590

Re: Conflict ofLaw Waiver Detennination Request ConcerningProvisions of 14 CFR 382.117 DearMs. Mosner and Ms. Chen:

This letter concerns Air Canada's September 9,2008, request for a conflict oflaw waiver under section 382.9 of the Department of Transportation's (Department) Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. The provisions ofPart 382 for which reliefis requested pertain to the acceptability of service animals accompanying passengers with disabilities in sections 382.117(a), 382.117(d), and 382.117(e)(l)-(2). We are denyingAirCanada's conflict of law waiverrequest from thoseprovisions 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 Canada asserts a conflict between sections 382.117(a), 382.117(d), and 382.117(e)(1)-(2) ofPart 382 and Canadian Air Transport Regulation (ATR) Section 149 adopted pursuant to the Canadian Transportation Act. Section 382.117(a) requires carriers to pennita service animal to accompany apersonwith adisabilityin the cabin of the aircraft. Section 382.117(d) requires carriers to accept as evidence that an animal is a service animal, identification cards, other written documentation, presence of harnesses, tags, orthe credible verbal assurances ofa qualified individual with a disabilityusing the animal. Under this section, carriers must not require documentation as evidence that the animal is a service animal unless the verbal assurances ofthe accompanying passenger with a disability are not credible. Section 382.117(e)(1)-(2) pennits carriers to require, as a condition for transporting an emotional support orpsychiatric service animal, current documentation from

a licensed mental health professional indicating that the passenger has a recognized mental or emotional disability and that the passenger needs the animal as an accommodation for air travel and/orfor activity at the passenger's destination. ATR § 149(1) states that a carrier shall accept

a service animal without charge ifthe animal is: (a) required by a person for assistance; and (b)2

certified, in writing, as having been trained to assist a person by a professional service animal institution. ATR § 149(2) states that when a carrier accepts a service animal for carriage pursuant to subsection (1), it shall permit the animal, ifproperly harnessed in accordance with standards established by a professional service animal institution, to accompany the person onboard. Air Canada argues that while Part 382 requires the carrier to accept a passenger's credible verbal assurances concerning a service animal's training and, in the case ofemotional support and psychiatric service animals, documentation on the letterhead ofa licensed mental health professional concerning the passenger's disability and need for the service animal, under ATR § 149(1 )(b), the carrier may not accept a service animal unless the passenger provides a written certification that the animal has been trained by a professional service animal institution
to assist the passenger with a disability. The carrier further asserts that it may not rely on credible verbal assurances, the presence ofharnesses, or any other ofthe indicia called out in section 382.117(d) withoutviolatingthe requirements ofATR § 149.

The Department finds unpersuasive the arguments set forth byAirCanada. WhileATR § 149(1) mandates that carriers accept without charge a service animal that is certified as having been trained by a professional service animal institution to assist a person, the plain language ofthe regulation does not prohibit carriers from transporting without charge an emotional support, psychiatric service, or other service animal that lacks written training certification. Neitherdoes ATR § 149(1) preclude a carrier from relying on methods, such as those in section 382.1l7(d), for determining that an animal is needed to assist a person with a disability and is appropriately trained. Likewise, while ATR § 149(2) requires a carrier that has accepted an animal for transport pursuant to ATR § 149(1) to permit the animal to accompany the person onboard the aircraft ifit is properlyharnessed in accordance with established standards, it does notprohibit a carrier from permitting a service animal from accompanying a passenger onboard the aircraft without a harness. Therefore, we find that while ATR § 149 mandates the circumstances under which a carriermust accept a service animal, it does notbarAirCanadafrom accepting a service animal for transport in accordance with the provisions ofsections 382.117(a), 382.1 17(d), and 382.117(e)(1)-(2). The carrier can comply with both sets ofrequirements simultaneously, as compliance with one does not bar compliance with the other. Having found no conflicts oflaw, the Department must deny Air Canada's request for conflict of law waivers from sections 382.117(a), 382.117(d), and 382.1 17(e)(1)-(2).

Ifyou have any questions about this matter, please contact James Fisher, ofmy staff, or me at (202) 366-9342. Youmayalso reachus byfax at (202) 366-7152.

Sincerely,

# -i£;e~ Assistant General Counsel for

AviationEnforcement and Proceedings