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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS~, 1-.

WASHINGTON, DC

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 (the Petitioners) operating

under European Union regulations for a conflict of laws 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 provision of Part 382 for which relief is requested concerns the prohibition against refusing to

provide air transportation to a passenger with a disability on the basis of his or her disability contained in

14 CFR 382.19. For the reasons discussed below, we are denying the Petitioners' request for a conflict of

laws waiver from section 382.19.

Request for Conflict of Laws Waiver

On May 13, 2008, the Department of Transportation (Department) issued a final rule amending the Air

Carrier Access Act (ACAA) regulation, 14 CFR Part 382, to cover foreign carriers. The Department

included a conflict of laws waiver provision, 14 CFR 382.9, as part of its 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 a foreign air carrier may request a conflict of laws waiver from the Department if the

carrier believes that a provision of the law of a foreign nation precludes the carrier from complying with a

provision of Part 382. For purposes of section 382.9, foreign law means a legally binding mandate (e.g., a

statute, regulation, or a safety rule equivalent to a Federal Aviation Administration (FAA) regulation) that

imposes a nondiscretionary obligation on the foreign carrier to take, or refrain from taking, a certain

action.! Foreign carriers must comply with all legally binding foreign safety and security regulations;2 for

these regulations, no conflict of laws waiver is necessary.

The Petitioners assert a conflict between section 382.19 and Article 4(1) of Regulation (EC) No.

110712006 (EC 1107), the European Union regulation on service to passengers with disabilities. Section

382.19(a) generally prohibits carriers from refusing to provide transportation to a passenger with a

disability on the basis of his or her disability. However, section 382.19(c) permits a carrier to refuse to

provide transportation to any passenger on the basis of safety, as provided in 49 U.S.C. ~ 44902 or

14 CFR 121.533, or to any passenger whose carriage would violate Federal Aviation Administration or

Transportation Security Administration requirements or applicable requirements of a foreign government.

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 a carrier cannot give rise to a conflict between Part 382

and foreign law for purposes of this Part, even if they are published or endorsed by a foreign government. See

"Nondiscrimination on the Basis of Disability in Air Travel," 73 FR 27614,27616 (May 13,2008).

2 14 CFR 382.7(g).
Article 4(1) of EC 1107 allows carriers to refuse to accept a reservation from or to embark a disabled

person or a person with reduced mobility, (I) in order to meet applicable safety requirements established

by international, Community or national law or in order to meet safety requirements established by the

authority that issued the air operator's certificate to the air carrier concerned, or (2) if the size of the

aircraft or its doors make the embarkation or carriage of that disabled person or person with reduced

mobility physically impossible.

In the preamble to Part 382, the Department 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." 73 FR 27646-47. This is not the case with

respect to the cited provision ofEC 1107 and the requirements of section 382.19. Like article 4(1) ofEC

1107, section 382.19(c) defers to the mandates in applicable government requirements. Furthermore, to

the extent that any of these petitions is based on a belief that section 382.19(a) would require the airline to

carry a passenger for which the size of the aircraft or its doors would make the embarkation or carriage of

the passenger physically impossible, that belief is based on an incorrect understanding of the

Department's rule. An airline can legitimately decline to transport a passenger on a particular aircraft if

the size of the aircraft or its doors makes the embarkation or carriage of the passenger physically

impossible. Palt 382 does not require the physically impossible. For example, 14 CFR 382.97, the

section on providing boarding and deplaning assistance through the use of a lift, states that a carrier does

not need to provide lift assistance to a passenger with a disability "if internal barriers are present in the

aircraft that would preclude passengers who use a boarding or aisle chair from reaching a non-exit row

seat." In these types of situations, we would encourage the carrier to assist the passenger in identifying an

alternative flight operated by that carrier where the passenger may be accommodated and to assist with

rebooking the passenger, unless it would be physically impossible for the passenger to be accommodated

on any flight offered by the carrier. Therefore, in our view EC 1107 does not prohibit the Petitioners

from complying with section 382.19.

Notwithstanding this conclusion, if an EU carrier refuses to provide transportation to an individual with a

disability in order to adhere to the provisions of EC 1107, the carrier is still required, for flights to and

from the U.S., to provide the passenger who was denied transportation with a written statement that

complies with the requirements set forth in 382.19(d) and that details the reason for the refusal of

transportation. This decision applies not only to the Petitioners that submitted a conflict of laws waiver in

September of 2008, but to all carriers operating flights covered under section 382.7 (i.e., flights operated

by foreign carriers that begin or end at a U.S. airport and aircraft used for these flights) that are subject to

the provisions of EC 1107 cited in this letter. As a general matter, we encourage carriers to submit

conflict of laws waiver requests if they believe a foreign government requirement precludes them from

complying with a provision of Part 382. A conflict of laws waiver determination by the Department

provides carriers with a clear and unequivocal decision as to whether or to what extent they are obliged to

abide by a particular section of Part 382.

2
In summary, we are denying the Petitioners' requests for a conflict oflaws waiver from section 382.19. If

you have any questions about this matter, please contact Daeleen Chesley, senior attorney on my staff, 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

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Aer Lingus Limited

Gerald Murphy

Steven Seiden

Crowell and Moring LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Iberia Lineas Aereas de Espaila, S.A.

Don H. Hainbach

Garofalo Goerlich Hainbach PC

1200 New Hampshire Avenue NW

Washington, DC 20036-6802

Swiss International Airlines Ltd.

Lawrence E. Mullins, Esq.

1640 Hempstead Turnpike

East Meadow, NY 11554

British Airways Pic

Don H. Hainbach

Garofalo Goerlich Hainbach PC

1200 New Hampshire Avenue NW

Washington, DC 20036-6802

Alitalia-Compagnia Aerea Italiana S.p.A.

Claudio Zinno

Piazza America da Schio

Palazzina RPU

00054 Fiumicino (RM)

Italia

Finnair

Anita Mosner

Holland and Knight

800 17th St. N.W., Suite 1100

Washington, D.C. 20006

Condor Flugdienst GmbH

Roland H. Lindner

Silvia Funke

CHIHG

104 South Walnut Street

Itasca, IL 60143

KLM Royal Dutch Airlines

Joan Gabel

United States Counsel, Air France

125 East 55th Street

New York, NY 10019

Polskie Linie Lotnicze LOT SA

Anthony Battista

Chris Christensen

Condon & Forsyth LLP

7 Times Square

New York, NY 10036

Virgin Atlantic Airways

Anita Mosner

Holland and Knight

80017 St. N.W., Suite 1100

Washington, D.C. 20006

Lufthansa German Airlines

Lawrence E. Mullins, Esq.

1640 Hempstead Turnpike

East Meadow, NY 11554

Thomas Cook Airlines Ltd.

Anita Mosner

Holland and Knight

800 17 St. N.W., Suite 1100

Washington, D.C. 20006

Austrian Airlines

Lawrence E. Mullins, Esq.

1640 Hempstead Turnpike

East Meadow, NY 11554

Douglas K. Mullen

Airlines for America

1301 Pennsylvania Avenue, N.W.

Suite 1100

Washington, DC 20004

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Association of European Airlines

Mr. Athar Husain Khan, CEO

Avenue Louise 350

B-I050 Brussels Belgium

Societe Air France

Joan Gabel

United States Counsel, Air France

125 East 55th Street

New York, NY 10019

Pullmantur Air

Anita Mosner

Holland and Knight

800 17th St. N.W., Suite 1100

Washington, D.C. 20006

Monarch Airlines

Jennifer S. Holifield

Zieman Speegle Jackson & Hoffman LLC

Five Dauphin Street

Suite 301 - Bayport Building

Post Office Box 11

Mobile, AL 36601

TUI Travel PLC

Eddie Redfern

Head of Regulatory Affairs (Aviation)

TUI Travel House

Crawley Business Quarter

Fleming Way, Crawley

West Sussex UK RHIO 9QL

Air Tahiti Nui

Evelyn D. Sahr

Eckert Seamans Cherin & Mellott, LLC

1717 Pennsylvania Avenue, NW Suite 1200

Washington, D.C. 20006

Cathay Pacific Airways Limited

Evelyn D. Sahr

Eckert Seamans Cherin & Mellott, LLC

1717 Pennsylvania Avenue, NW

Suite 1200

Washington, D.C. 20006

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