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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 LETTERWAS SENTTO THEATTACHED LIST OFFOREIGN AIR CARRIERS OPERATINGUNDEREUROPEANUNION 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 nothave mandatory, binding legaleffecton acarriercannotgiveriseto a conflictbetween Part 382 and foreign law for purposes of this Part, even if they are published or endorsed by a foreign government. See "Nondiscrimination ontheBasis ofDisability inAirTravel," 73 FR27614,27616 (May 13,2008).

2 14CFR 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 aperson with reduced mobility, (I) in orderto meet applicable safetyrequirements 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.

Inthe preamble to Part 382,the Department statedthat aforeign lawthatrequires a "foreign carrier to do something prohibitedbythisrule, orthatprohibits aforeigncarrierfrom doing somethingrequired by this rule, is an appropriate subjectfor a conflict oflawswaiver." 73 FR 27646-47. This is not the case with respectto the citedprovision ofEC 1107andthe requirements ofsection382.19. Like article 4(1) ofEC 1107, section 382.19(c) defers to the mandates in applicable governmentrequirements. Furthermore, to the extentthat any ofthesepetitions isbased onabeliefthat section382.19(a)wouldrequire the airline to carry apassenger forwhichthe sizeofthe aircraftoritsdoors wouldmakethe embarkation orcarriage 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 apassenger on aparticular 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 onproviding boarding and deplaning assistancethroughthe use ofa 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." Inthese types ofsituations,wewould encouragethe carrierto assistthe passenger inidentifying an alternative flight operated by that carrier where the passenger may be accommodated and to assist with rebooking the passenger, unless itwouldbephysically impossibleforthe passengerto be accommodated
on any flight offered by the carrier. Therefore, in our view EC 1107 does not prohibit the Petitioners from complying with section382.19. Notwithstanding this conclusion, ifanEU carrierrefusesto providetransportationto 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 appliesnotonlyto thePetitionersthat submittedaconflict oflaws waiver in September of2008, but to all carriers operating flights coveredunder section 382.7 (i.e., flights operated by foreign carriers thatbegin orend at aU.S. airportand aircraftused forthese flights) that are subjectto the provisions of EC 1107 cited in this letter. As a general matter, we encourage carriers to submit conflict of laws waiver requests ifthey 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 andunequivocaldecisionasto whetherorto what extentthey are obligedto abideby aparticular section ofPart382.

2In 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

3Aer 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

4Association 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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