## u . s. D e pa rtm e nt of Transport atio n O ffi c e of t he Secretary o f T r a n spo rt a t ion GENERAL COUNSEL May l ~ 2014 1 200 New Je rs e y Avenue. SE W a s hin g ton . D C 2 0 5 9 0

Ms. Evelyn S ahr C ounsel for Cathay Paci f ic Airli ne s E ckert Seamans Cherin & Mellott , LL C 1717 Pennsylvania Avenue, NW 12th Floor Washington , DC 20006
Re : Conf lict of Laws Waiver Request Concerning 14 C FR 382.17 and 382
. 1 9 ( a)

Dear M s . Sahr : This l etter concerns the September 10 , 2008 , request o f C athay Pac i f ic Airway s Limite d ( C athay Pac i fic ) for a conflict oflaws waiver concerning the Department o f Transportati on ' s Air C arri er Access Act ( A C AA ) regulation 14 CFR 382
. 17 , whi ch prohibits c arriers f rom limiting th e number of passengers with a di sability on a flight , and 14 C FR 3 82.19(a) , which prohib it s carri er s f

rom re f using to provide transportation to indi v idual s with a di sabili ty on the bas is of disability . For the reasons discussed below , we are granting C athay Paci f ic ' s request f

or a conflict of laws wai v er from section 382
. 1 7 and denying the carrier ' s reques t f or a c o nf

li c t of laws waiver from s ection 382
. 19(a) on f light s covered by Part 3 82
. Request for Conflict of Laws Waiver C athay Pac ifi c ass ert s that a confli ct exists between secti ons 382
. 17 and 3 82.19 ( a) o f Part 3 8 2 and the Civil Aviation Department ' s (CAD) 2008 Flight Operations N otice (F ON 04 / 2008 )
. Section 382.17 prohib i t s c arriers f rom setting limits on the number o f pa s sengers with disabi litie s that may travel on a flight Furthermore , section 3 82
. 19( a) prohibits carriers f rom re f u s ing to provide transportation to i ndiv idu al s with a disability on the basis of di sability. C athay P ac i fic argues that a conflict exists between these provisions and FON 04 / 2008, paragraph 4 , which states " operators are to ensure that the maximum number o f passengers w ith reduced mobili ty ' boarde d i n the aircraft must not exceed the total number of floor level emergenc y exit s fitted in

1 Se e C ivil Av i atio n Department Fl i ght O peratio ns N otic e 04 / 2008
. fn. I, de f

i ni n g " P a ssen ger w i th reduc ed mobility " a s " any per s o n whose mob i lity when us i ng air transport is reduced due to any phy s i c al disabi lity (sens ory or loco mo tor , permanent or temporary ) , i ntelle ctu al di s ability or impairment , or any o ther c au s e s of di s abili ty , or age , and who s e s i tuati on ne e ds appropri ate attention and the adaptation to hi s or her particu lar need s o f th e servi ce m ade av ail abl e to all pas sen g er s . "


### 1the 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 f loor-lev e l emergency exits located in the passenger zone of the aircraft
. Cathay Pacific further argues that enforcing this limitation creates a conflict between F ON 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-leve l 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 indi v idual 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 04 1 2008 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 C FR 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 04 1 2008 , 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 C ivil Aviation Department Flight Operations Notice 04 / 2008, Handling of Pass e ng e r s w ith Dis a b ili ti es, p ara . 4. ) Emphasis adde d.
2If you have any questions about this matter , please contact Maegan Johnson at (202) 366-9283 or

Kathleen Blank 

### Rietherat ( 202) 366-9353
. Sincerely ,



# . 6fo 1/ / J~ ~ Blane Workie Acti ng Ass i stant General Counse l for Aviation Enforcement and Proceedings



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