u.s. Department

of Transportation

Office of the Secretary

of Transportation

GENERAL COUNSEL

May l~ 2014

1200 New Jersey Avenue. SE

Washington. DC 20590

Ms. Evelyn Sahr

Counsel for Cathay Pacific Airlines

Eckert Seamans Cherin & Mellott, LLC

1717 Pennsylvania Avenue, NW

12th Floor

Washington, DC 20006

Re: Conflict of Laws Waiver Request

Concerning 14 CFR 382.17 and 382. 19(a)

Dear Ms. Sahr:

This letter concerns the September 10, 2008, request of Cathay Pacific Airways Limited (Cathay

Pacific) for a conflict oflaws waiver concerning the Department of Transportation's Air Carrier

Access Act (ACAA) regulation 14 CFR 382.17, which prohibits carriers from limiting the

number of passengers with a disability on a flight, and 14 CFR 382.19(a), which prohibits

carriers from refusing to provide transportation to individuals with a disability on the basis of

disability. For the reasons discussed below, we are granting Cathay Pacific's request for a

conflict of laws waiver from section 382.17 and denying the carrier's request for a conflict of

laws waiver from section 382.19(a) on flights covered by Part 382.

Request for Conflict of Laws Waiver

Cathay Pacific asserts that a conflict exists between sections 382.17 and 382.19(a) of Part 382

and the Civil Aviation Department's (CAD) 2008 Flight Operations Notice (FON 04/2008).

Section 382.17 prohibits carriers from setting limits on the number of passengers with disabilities

that may travel on a flight Furthermore, section 382.19( a) prohibits carriers from refusing to

provide transportation to individuals with a disability on the basis of disability. Cathay Pacific

argues that a conflict exists between these provisions and FON 04/2008, paragraph 4, which

states "operators are to ensure that the maximum number of passengers with reduced mobility'

boarded in the aircraft must not exceed the total number of floor level emergency exits fitted in

1 See Civil Aviation Department Flight Operations Notice 04/2008. fn. I, defining "Passenger with reduced

mobility" as "any person whose mobility when using air transport is reduced due to any physical disability (sensory

or locomotor, permanent or temporary), intellectual disability or impairment, or any other causes of disability, or

age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service

made available to all passengers."

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the aircraft, and furthermore only one such passenger shall be allocated to each floor level

emergency exit located in the passenger zone."

In its conflicts of law waiver request, Cathay Pacific notes that it operates both Boeing and

Airbus aircraft, which have a limited number of floor-level exits. Cathay Pacific argues that it is

unable to comply with section 382.17 because FON 04/2008 requires the carrier to limit the

number of passengers with disabilities on a flight to the total number of floor-level emergency

exits located in the passenger zone of the aircraft. Cathay Pacific further argues that enforcing

this limitation creates a conflict between FON 04/2008 and 382.19(a) as the carrier may be

required to refuse transportation to individuals with a disability on the basis of disability if the

number of passengers with a disability on a given flight exceeds the number of floor-level

emergency exits in the aircraft.

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

preamble to the final lUle (73 Fed. Reg. at 27616), and in the Section-by-Section Analysis

discussion of section 382.9 (73 Fed. Reg. at 27646-27647), the Department states 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. Because FON 04/2008 contains express language that limits the number of

passengers with a disability on a particular flight, the Department recognizes the existence of a

conflict. As such. the Department is granting Cathay Pacific's request for a conflict of laws

waiver from section 382.17.

With respect to Cathay Pacific's request for a conflict of laws waiver from section 382.19(a), the

Department has determined that a conflict does not exist. In Cathay Pacific's request, the carrier

argues that a conflict exists because it may be required, based on the language in FON 04/2008,

to refuse transportation to an individual with a disability should the number of individuals with a

disability exceed the total number of floor-level emergency exits on an aircraft. It appears that

Cathay Pacific incorrectly assumes that section 382.19(a) prevents the carrier from following the

requirement in FON 0412008 with respect to limiting the number of individuals with a disability

on an aircraft. 'While section 382. 19(a) generally prohibits a carrier from refusing transportation

to a passenger with a disability on the basis of his or her disability, section 382.19(c) states that a

carrier may "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 FAA

or TSA requirements or applicable requirements of a foreign govemmenr.t" Because Cathay

Pacific has demonstrated that FON 04/2008 is a foreign government requirement as it has legally

binding effect on Hong Kong carriers, Cathay Pacific would not be in violation of section

382.19(a) if the carrier refused to provide transportation to an individual with a disability in

reliance on this requirement. Notwithstanding this conclusion, if Cathay Pacific refuses to

provide transportation to an individual with a disability pursuant to FON 0412008, Cathay Pacific

would still be required to provide passengers to whom transportation was denied with a written

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

refusal of transportation.

2 Civil Aviation Department Flight Operations Notice 04/2008, Handling of Passengers with Disabilities, para. 4.

) Emphasis added.

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If you have any questions about this matter, please contact Maegan Johnson at (202) 366-9283 or

Kathleen Blank Rietherat (202) 366-9353.

Sincerely,

.6fo1//J~~

Blane Workie

Acting Assistant General Counsel for

Aviation Enforcement and Proceedings

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