·Via Email - Read Receipt Requested

.... ; ..;

Mr. Scott D. Cunningham

Counsel for Qantas Airways Limited

Condon and Forsyth, L.L.P.

190 1 Avenue ofthe Stars

Los Angeles, CA 90067

Dear Mr. Cunningham:

Re: Qantas - Conflict of Laws

Waiver Request: 14 CFR 382.111(e) and

14 CFR 125

This letter concerns the September 10, 2008, request of Qantas Airways Limited (Qantas) 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 382.1 Qantas seeks relief from the requirement in

section 382.111(e) pertaining to assistance in stowing and retrieving carry-on items, including

mobility aids and other assistive devices stowed in the cabin. Qantas also seeks relief from the

requirement in section 382.125 pertaining to stowage of wheelchairs, mobility aids, and other

assistive devices in the cargo compartment of the aircraft. We are continuing to review Qantas'

waiver requests concerning various other provisions of Part 382.

In the section on Conflict of Laws Waivers and Equivalent Alternative Determinations in the

preamble to the final rule (73 FR 27616), and in the Section-by-Section Analysis discussion of

section 382.9 (73 FR 27646-27647), we stated that a foreign law that requires a foreign carrier to

do something prohibited by Part 382, or that prohibits a foreign carrier from doing something

required by Part 382, is an appropriate subject for a conflict of laws waiver. For the reasons

discussed below, we deny Qantas' request for conflict of laws waivers from section 382.111(e)

and section 382.125 on flights covered by section 382.7?

Section 382.111(e)

Qantas asserts a conflict between section 382.1 11(e) and Australia's Work Health and Safety

(WHS) rules. Section 382.111(e) requires carriers to assist passengers with disabilities "in

stowing and retrieving carry-on items, including mobility aids and other assistive devices stowed

in the cabin." Qantas contends that this requirement may conflict with WHS rules, which require

employers such as Qantas to identify and eliminate or control risks to employees, including the

I On December 16, 2013, in an email to the Department. Qantas supplemented its request with updated legal

citations and a more detailed explanation of its position. We refer to the updated citations in this decision.

2 Section 382.7 states that 14 CFR Part 382 applies to foreign carriers "with respect to flights [that foreign carriers]

operate that begin or end at a U.S. airport and to aircraft used for those flights."
II

2

risk of injury involved with manual handling of items onboard an aircraft. Qantas explains that

while Australia's WHS rules may vary slightly among jurisdictions.' they all generally require

employers to ensure, as far as reasonably practicable," the health and safety of Australian

workers. See Section 19 of the WHS Act of New South Wales (NSW), where Qantas is based.

Qantas further states that WHS regulations require employers to take control measures to

minimize the risk of "hazardous manual handling," such as lifting baggage and assistive devices.

See NSW WHS Regulations, Part 3.1 and Part 4.2, clause 60. Qantas argues that a crew member

may refuse to undertake the work if he or she believes that the risk of harm cannot be lowered to

an acceptable level after applying control measures' Qantas contends that if it refuses to support

the crew member's safety decision, it may be subject to monetary penalties. See NSW WHS

Act, sections 30-34. In its original request, Qantas concluded that as a result ofWHS regulations

such as these, "Qantas Group Cabin Crew are generally only able to lift and assist with in-cabin

baggage that weighs up to 7 kilograms." Qantas requests that its obligation under section

382.111(e) to assist with carry-on items, mobility aids, and assistive devices be limited to

handling items within such a weight limit.

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. 6 Qantas argues that assisting passengers with disabilities in stowing and

retrieving carry-on items, mobility aids, and other assistive devices in the cabin as required by

section 382.111(e) may incur risk of injury to employees. To comply with the NSW WHS

provision requiring employers to reduce the risk of injury to employees performing manual

handling tasks, Qantas has adopted a policy limiting the weight of carry-on items for all

passengers to a maximum of seven kilograms. We recognize that section 382.111(e) may require

Qantas employees to assist with the stowage and retrieval of mobility aids and assistive devices

exceeding seven kilograms. However, there are a number of methods Qantas could use to help

passengers with disabilities stow and retrieve assistive devices exceeding seven kilograms but

still minimize risks to its employees of lifting heavy items. Such methods may include team

lifting, training employees in proper lifting techniques, and employing the assistance of others.

3 According to Qantas, each state and territory of Australia enacts its own WHS rules; similarly, the Commonwealth

of Australia enacts its own WHS rules for federal workers. In general, the law of each jurisdiction is based on a

Model Act, which was designed to harmonize WHS rules throughout Australia.

4 "Reasonably practicable" means to take into account all relevant factors, including the likelihood of the risk, the

degree of harm from the risk, the worker's awareness of the risk, ways of eliminating or minimizing the risk, and the

costs associated with eliminating or minimizing the risk. See NSW WHS Act, Section 18.

5 Section 84 of the NSW WHS Act provides: "A worker may cease, or refuse to carry out, work if the worker has a

reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or

safety, emanating from an immediate or imminent exposure to a hazard."

. 6 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. Final

Rule, "Nondiscrimination on the Basis of Disability in Air Travel" (preamble), 73 FR 27616.
3

Qantas may also wish to consider the use of mechanical aids.' We find that the NSW WHS

regulations allow carriers substantial flexibility in how they carry out their duty to assist

passengers with disabilities in stowing and retrieving carry-ons, including mobility aids and

other assistive devices. In short, it is possible for Qantas to comply with both the NSW WHS

rules and section 382.111(e).

Section 382.125

Conflict with screening requirements

Qantas also asserts a conflict between section 382.125( c) and Australia' s Aviation Transport

Security Regulation 3.20(3)(g). Section 382.l25(c) provides, in relevant part, that carriers must

provide for the timely return of passengers' wheelchairs, other mobility aids, and other assistive

devices as close as possible to the door of the aircraft so that passengers may use their own

equipment to the extent possible, except where the passenger requests the return of the items at

the baggage claim area instead of at the door of the aircraft. Qantas contends that the "timely

return" requirement of section 382.125( c) may conflict with the screening requirement of

Regulation 3.20(3)(g).

Specifically, Qantas explains that when an assistive device is transported from the cargo hold of

an aircraft to the arrival gate of an Australian airport, it must generally pass through an Arrivals

Hall and into a sterile area. Qantas contends that pursuant to Regulation 3.20(3)(g), the assistive

device must be screened in the sterile area, even though the device was already screened before it

was originally placed in the cargo hold. Qantas argues that this extra screening requirement,

along with the delays inherent in transporting an assistive device long distances through an

airport, may preclude Qantas from timely returning the device to the passenger as required by

section 382.125(c).

We see no conflict between section 382.125(c) and the screening requirement of Regulation

3.20(3)(g). As noted above, section 382.125(c) states that generally, assistive devices must be

timely returned to passengers as close as possible to the door of the aircraft. The Department

applies the "timely return" requirement flexibly, taking into account factors such as the size,

layout, and flight volume of airports. In our view, the rule takes into account the impact of

security requirements, such that delays resulting from the additional security screening required

by Regulation 3.20(3)(g) would not be considered a violation of the rule. We further note that

under section 382.125( c)(2), passengers may request that their assistive devices be returned at

the baggage claim area. Qantas, to its credit, states that it proactively offers its passengers this

option in light of the additional screening delays caused by Regulation 3.20(3)(g). In short, there

is no conflict of laws because Regulation 3.20(3)(g) does not prohibit Qantas from complying

with section 382.125( c).

7 In its original conflict of law request, Qantas cited to the Occupational Health and Safety (OHS) Act of New

South Wales (2000), and its accompanying regulations. Those regulations listed risk-management measures such as

team lifting, use of mechanical aids, and proper lifting techniques. The OHS Act and its regulations have been

repealed and replaced by the NSW WHS Act (2011) and accompanying regulations. While the new regulations do

not mention these specific risk-management measures, they continue to allow flexible approaches to managing risk.
4

Conflict with "dangerous goods" regulations

Next, Qantas argues that section 382.l25(a) conflicts with international rules governing the

transportation of dangerous goods. Section 382.l25(a) provides that carriers must stow

wheelchairs, other mobility aids, or other assistive devices in the baggage compartment if the

item cannot be stored in the cabin (i.e., if an approved stowage area is not available in the cabin,

or if the item cannot be stowed in the cabin consistent with the requirements of the FAA,

Pipeline and Hazardous Materials Safety Administration, Transportation Security

Administration, or applicable foreign governments concerning security, safety, and hazardous

materials with respect to the stowage of carry-on items). Qantas contends that this stowage

requirement may conflict with the Technical Instructions for the Safe Transport of Dangerous

Goods bl Air (Technical Instructions), issued by the International Civil Aviation Organization

(lCAO). Qantas notes that section 92.030 of Australia's Civil Aviation Safety Regulations

(CASR) requires Australian carriers to comply with the Technical Instructions.

First, Qantas states that "the ICAO Requirements and CASR Requirements require that if a

wheelchair has a wet battery that cannot be stowed in an upright position, the battery must be

removed prior to carriage." We see no conflict with section 382.125(a), because that section

does not address the removal of wet batteries from wheelchairs prior to carriage. Moreover,

section 382.127(c) specifically permits carriers to remove a spillable wet-cell battery if a

wheelchair cannot be loaded, stored, secured, and unloaded in an upright position. This

provision is consistent with the Technical Instructions.9

Next, Qantas also states that "In relation to the carriage of battery powered mobility aids, the

ICAO Requirements and CASR Requirements make express provision for their carriage as

'checked baggage', which arguably implies that such mobility aids may not be carried in the

cabin of the aircraft." (Qantas' Conflict of Law Request at p.l4.) Qantas appears to assert that a

conflict arises because section 382.125(a) requires certain devices to be stored in the cabin, while

the Technical Instructions require those devices to be stored in the baggage compartment. No

such conflict exists. Section 382.l25(a) states, in relevant part, that an assistive device must be

stowed in the baggage compartment if the item cannot be transported in the cabin consistent with

applicable foreign government safety requirements. Thus, if the Technical Instructions require

an assistive device to be stored in the baggage compartment, such a requirement would be fully

consistent with section 382.125(a). Because the Department's regulations in Part 382 regarding

stowage of assistive devices defer to both domestic and foreign safety rules, we find that Qantas

has not identified any circumstance under which section 382.125(a) requires Qantas to transport

an item in a manner that is prohibited by the Technical Instructions. 10

8 The Technical Instructions defme "dangerous goods" as "articles or substances which are capable of posing a risk

to health, safety, property or the environment and which are shown in the list of dangerous goods in these

Instructions, or which are classified according to these Instructions." Technical Instructions (20l3-2014 ed.) at

1-3-1.

9 See Technical Instructions (2013-2014 ed.), Part 8, Chapter 1, Table 8-1, paragraphs (5) and (6).

10 The 20l3-2014 edition of the Technical Instructions includes a new chart describing the types of items which

may be carried onboard aircraft by passengers. See Technical Instructions (2013-2014 ed.), Part 8, Chapter 1, Table
5

Therefore, having found no conflict of laws, the Department must deny Qantas' request for a

conflict of laws waiver from section 382.111 (e) and 382.125 on flights covered by section 382.7.

If you have any questions about this matter, please contact Robert Gorman or Kathleen Blank

Riether, senior attorneys in my office, at (202) 366-9350 or (202) 366-9353, respectively.

Sincerely,

Isl

Blane A. Workie

Acting Assistant General Counsel for

Aviation Enforcement and Proceedings

8-1. FAA rules pertammg to transportation of battery-powered mobility aids are summarized at

http://www.faa.gov/aboutiinitiatives/hazmat_safetyi. Both the FAA and the Technical Instructions prohibit

carrying on mobility devices with spillable or non-spillable wet batteries. The FAA prohibits carrying on noncollapsible mobility devices with installed lithium ion batteries. Finally, both the FAA and the Technical

Instructions permit carrying on collapsible mobility aids with removable lithium ion batteries under certain

circumstances.