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## September 11, 2008

Assistant General Counsel Aviation Enforcement and Proceedings C-70 U.S. Department ofTransportation 1200 New Jersey Avenue, SE Room W96-322 Washington, DC 20590 Re: Conflict ofLaws Waiver Request Dear Sirs:
Pursuant to 14 C.F.R. §382.9 (2008), AirPacific Limited ("AirPacific") respectfully submits this request for a conflict oflaws waiver from various provisions ofPart 382, Nondiscrimination onthe Basis ofDisability in Air Travel (hereinafterreferred to as Part 382). Air Pacific is Fiji's international airline and is governed by the Civil Aviation Authority ofthe Fiji Islands ("CAAFI"). Fiji is a member ofthe International Civil Aviation Organization ("ICAO"), and as such is required to adhere to Standards and Recommended Practices ("SARPs") established by ICAO: In particular, Air Pacific, as a carrierofFiji, is required to comply with the Annex 9: Facilitationto the Convention on International Civil Aviation (Chicago, 1944). (Attached hereto as ExhibitA.) 

## In compliance with Annex 9, AirPacific has implemented its Airport Handling Manual. (Relevantportions attached hereto asExhibit 

## Bwhich is clearly marked and should be treated as Confidential Business Information.) Air Pacific takes seriously its obligation to provide access to air travel to passengers with disabilities under Part 382, however, Air Pacific is legally obligated to comply with the CAAFI safety standards and requirements it has implemented in its 

## Airport Handling Manual as well as its CAAPI-issued Air Operators Certificate ("AOC") (Relevant Portions attached hereto as Exhibit 

## C which is clearly marked and should be treated as Confidential Business Information) which at times conflict with certain provisions ofPart 382. Therefore, AirPacific respectfully requests your careful consideration of the conflicts oflaws identified herein.


## 1) 14 C.F.R. §382.117: Must carriers permitpassengers with a disabilityto travel with service animals? Generally, under I 4 C.F.R. §3

## 82.117, Air Pacific is required to permit service dogs in the passenger cabin without advanced notice or documentation as to the training orhealth ofthe dog orthe passenger's disability. These requirements conflict with the CAAPI policy and requirements onthe transportation ofservice animals in the aircraft passenger cabin. AirPacific

WASHINGTOtv, DC PITTSBURGH, PA HARRISBURG, PA PHILADELPHIA. PA BOSTON, MA WILMINGTON, DE MORGANTOWN, WV SOUTHPtiNTE, PA WHITE PLAINS, NY ;_ : . ':**~)-** -·.**~**

## requires thatpassengers travelling with a service dog provide at least seven (7) days advanced notice and provide the following documentation, so that CAAFI gives blanket approval ofthe transport ofthe service dog in the passenger cabin: 

## 1. Quarantine Permit(s) permitting/authorising the Service Animals/Dogs entry into the countries intended where travel is onboard Air Pacific. It

## is the responsibility ofthe ownerto obtain relevant Quarantine Permit(s) and any other certification as required directly with the appropriate Authorities. 2. Vet Certification and Immunisation records as required by countries ofentry. 3. Certificates from bona-fide State or Dog/Animal Training Association confirming that the Service Animals/Dogs is appropriately trained and qualified

.... 5. Doctor's report on customer's disability condition. Application for travel is on the basis that Service Animals/Dogs is accompanied by the person with disability and the ultimate authority rests with CAAFI as per the conditions ofAir Pacific's Fiji AOC. (See Paragraph BI9 ofAOC at Exhibit 

# C) (See Section 9.10.2 ofAirport Handling Manual at ExhibitB. Note that paragraph 4 ofSection 9.1 0.2 is being deleted from the Airport Handling Manual, and therefore, Air Pacific respectfully requests that DOT not considerthe provisions therein.) Accordingly, Air Pacific is obligated by CAAFI to require passengers to provide documentationregarding their disability condition, the healthandtraining ofthe service animal in orderto verify that the animal is a service animal rather than a pet. To the extent these requirements conflict with Part 382, Air Pacific respectfully requests a conflicts oflaws waiver. Air Pacific must also comply with CAAFI requirements on seating passenger and his/her service animal. On Air Pacific flights, the window seat in the lastrow ofthe business and economy class cabins (Air Pacific does not have first class cabins) are allocated to the service animals, so it canoccupy the floor space ofthe allocated seat. The adjacent seat shall be occupied bythe personwith the disability. Additionally, CAAFI and Air Pacific require the following measures: Service Animals/Dogs must be seatedon a moisture absorbent mat, muzzled, harnessed and restrained by tying the leash to an aircraft fixture e.g. leg ofaircraft seat. The customer will provide on absorbent mat for each flown sector.

. CAAFI may have other specific requirements and these must be complied with and adhered to prior to acceptance for uplift. Airport ground staffmust ensure all relevant certification documents are sighted and in order during the check-in process.

WASHiNGTON, DC PITTSBURGH, PA HARRISBURG, PA PHILADELPHiA, PA BOSTON, MA WILMINGTON, DE MORGANTOWN, WV 50UTHP21NTE. PA WHITE PLAINS, NY

## Uplift shall be denied should any ofthe above or CAAFI's condition are not met. (See Section 9.10.3 ofAirport Handling Manual at Exhibit B.) Thus, to provide maximum space for a passenger travelling with a service dog, Air Pacific reserves a seat for the passengerand the service dog. Additionally, due to the long haul nature ofAirPacific's flights from Fiji to the U.S., AirPacific requires that service dogs are properly and safely secured and sit on a moisture absorbent mat, so that they do not relieve themselves onthe aircraft carpeting or fabric. To the extentthese requirements conflict with Part 382, AirPacific respectfully requests a conflicts of laws waiver. 

## 2) 14 C.F.R. §382.87: Whatotherrequirements pertain to seatingfor passengerswith a disability? 14 C.F.R. §382.87prohibits Air Pacific from excluding any passengerwith a disability from any seat orrequiringthat a passenger with a disability sit in any particular seat, on the basis of disability, exceptto comply with applicable government safety requirements. AirPacific's policy on seatingpassengers with disabilities is focused on safety: Seating ofpassengers with disabilities will not be restricted only to seats with Lifl-upArmRests unless otherwise stated. Passengers with disabilities will not be permitted seats indesignated emergency exit rows on any aircraft oronthe upper-deck ofthe B747 aircraft. It 

## is recommendedthat passengers with disabilities sit on forward seats as possiblebehind bassinet rows. Where space allows, seats beside passengers [shall] be blocked offforuse so [an] empty seatis available for use by crewwhen liasing/handlingpassenger. Where multiple passengers are travelling, it is recommended that they are seated together when possible

.... Passenger with vision and/orhearing impairment travelling with a reader/attendantmay be seated on any seat except on emergency exit rows. (See Section 10.2.6 ofAirport Handling Manual at ExhibitB.) Thus, for safety reasons, passengers with disabilities are not permitted to sit in exit rows oron upper-decks ofaircraft. Air Pacit!c respectfully submits that the above legal mandates are similarto the FAA requirement that United States carriers must follow requiring the carrierto reasonably determine 

## ifa passenger with a disability has the physical and mental capabilities to sit in a particular seat, specifically in an exitrow seat. Accordingly, Air Pacific respectfully requests a waiver from the provisions of 14 C.F.R. §382.87. 

## 3) 14 C.F.R. §382.25: May a carrierrequire a passengerwith a disability to provide advance notice thathe orshe is traveling on a flight? 14 C.P.R. §382.25 prohibits AirPacific, except in those limited circumstances listed in 14 C.F.R §382.27, from requiring advance notice from passengers with a disability. However, due to the

WASHINGTON, DC PITTSBURGH, PA HARRISBURG, PA PHILADELPHIA, PA BOSTON. MA WILMINGTON. DE MORGANTOWN, WV SOUTHP31NTE, PA WHITE PLAINS, NY

## long-haul nature ofAir Pacific's flights from Fiji to the U.S., AirPacific requires passengers with disabilities provide a minimum of48 hours advance notice andto check-in one hour in 

## advance ofthe check-in time for the general public. This advance notice and early check-in time, providethe Air Pacific staffwith valuable time to prepare to address the needs ofa passenger with a disability. Thus, AirPacific respectfully requests a conflict oflawswaiver from 14 C.P.R. §382.25. 

## 4) 14 C.F.R. §382.35: May carriers require passengers with a disability to sign waivers orreleases? Generally, 14 C.F.R. §382.35 prohibits Air Pacific from requiring passengers with disabilities to sign a release orwaiver in order to receive transportation orto receive services or accommodations for a disability. This prohibition conflicts with Air Pacific's medical safety measures in which it may request "an indemnity clearance iftravel involves any human, hazard ') )_I_) 

### ;0**I~** •

_·l 

## or safety risk to the person or otherpersons (includingpregnantpassengers)." (See 

## Section ;(: J. 

## 10.2.2.5 ofAirport Handling Manual at ExhibitB.) Due to the long haul nature ofAirPacific's flight from Fiji to the U.S., and the extremely limited number ofopportunities for diversion as the routes are entirely overthe Pacific Ocean, Air Pacific staffmustcarefully evaluate a passenger's health condition. Ifa passenger's condition is severe enough to cause Air Pacific staffconcern overthe passenger's health despite the presentation ofa medical certificate, Air Pacific respectfully requests that it be able to continue to exercise its discretion inrequiring passengers to sign an indemnity clearance. Accordingly, Air Pacific respectfully requests a waiver from theprovisions of 14 C.F.R. §382.35.

Conclusion As discussed above, the provisions ofPart 382 and the CAAFI mandated safety requirements implemented inthe Airport Handling Manual apply conflicting requirements to the same flights. As a carrier certified by the CAAFI, AirPacific is legally required to comply with CAAPI's safety regulations or

## it will face non-compliance, which may negatively impact its AOC. Accordingly, AirPacific appreciates yourcareful consideration ofthe above requests for conflicts oflawswaivers. Should you have any questions regarding Air Pacific's operations, Air Pacific will gladly provide clarification.
Respectfully submitted, 

# fbrttnif"'-£,.**11~** Evelyn D. Sahr Jennifer 

## L. Andrews Counsel for Air Pacific Limited

WASHINGTON. DC PITTSBURGH, PA HARRISBURG. PA PHILADELPHIA, PA BOSTON. MA WILMINGTON, DE M 0 R G ANT 0 W N, W V S0 U T H P41 NT E, PA WHITE PLAINS. NY

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ICAO Standards& Recommended Practices 15 Sep 2005 15:09:08 Fiji is a memberofthe International Civil Aviation Organisation (!CAO) and as sur.h is required to adhere to Standards and**R~ommended** Practices (SARPs) set up by this world body. These standards apply particularly to international airports but for domestic airports, the States decide the Standards. Annexes to the Chicago Convention Standards and Recommended Practices and Procedures;**T~hnical** Manuals and Gwdance Material Artide 37 ofthe Chicago Convention states that the International Ovil Aviation Organisation (!CAO) shall adopt international standards and recommenaed practices and procedures regarding safety, regularity and efficiency of air navigation. Standards and Recommended Practices (SARPS) are designated as Annexes to the Convention. At present there are 18 Annexes. A Standard is a spedfication recognised as necessary for the safety or regularity of international air nav1gation. Under the Convention, any State finding it impractical to comply in all respects with any Standard must give immediate notification to ICAO of any differences between its national regulations and practices and the Standards In the Annexes. A Recommended Practice is a specification recognised as desirable in the interest ofsafety, uniformity or effidency of international air naVigation. States are invited to notify !CAO of any differences from the Recommended Practices in the Anne){es, when this is important for the safety of air navigation. The Annexes can be divided into five groups covering man, machine, operations, airspaceialr navigation services and aerodrome. Man Annex 1 Personnel licensing**~1achine** Annex 7 A:rcraft nationality and registration marks Annex 8 Airworthiness of aircraft Annex 16 EnVironmental protection Operations Annex 2 Rules of the air Annex 6 Operation of aircraft Annex 18Transport of dangerous goods Airspace/ Annex 3 Mcteoroiog1cal service Air Navigation Annex 4 Aeronautical charges Services Annex 5 Units of measurement Annex 10 Aeronautical telecommunications Annex 11 Air traffic services Annex 12 Search and rescue Annex 15 Aeronautical information service Aerodrome Annex 9 Facihtabon Annex 14 Aerodromes Annex 17 Secunty Toll Free Aviation Safety line: 0800 672 5799

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## http://www.caafi.org.fj/index.cfm?si=main.resources&cmd=forumview&cbegin=1 089&uid... 9/5/2008Chapter 8 circumstances, between civil avialion security and facilitation programmes. To this end, certain members ofFacilitation Commiuees shouldalso be members of Security Committees. 

### 8.21 Recommended Practice.- In establishing and operating National Air Transport and Airport Facilitation Committees, States should use the guidance material outlined in Appendices IJ and 12.



### G. Facilitation ofthe transport of passengers requiring special assistance

I. General 

### 8.22 Recommended Practice.- When travelling, persons with disabilities should be provided with special assistance in order to ensure that they receive services customarily availilble ro the generalpublic. Such assistance includes the a./firing of information and directions in media that can be understood by travellers with cognitive or sensory disabilities. 

### 8.23 Recommended Practice.- Contracting States shouldcooperate with a view to taking the necessary measures to make accessible toper-sons with disabilities all the elements ofthe chain of the person'sjourney,from beginning to end. 

### 8.24 Recommended Practice.- Contracting States should take the necessary steps with aircraft operators, airports andground handlingoperators to establish minimum uniform standards ofaccessibility with respect to transportation services forpersons with disabilities,from arrivalat the airport of departure to leaving the airport of destination. 

### 8.25 Recommended Practice.- Contracting States should take the necessary steps with aircraft operators. airports, ground handling operators and travel agencies to ensure thatpersons with disabilities are given the information they need. and should take the necessarysteps to ensure that airlines. airports, ground handling operators and travel agencies are in aposition to give those passengers the assistance necessaryfor them, depending on their needs. to help them in their travel.



### 8.26 Recommended Practice.- Contracting States should take all necessary steps to secure the cooperation of aircraft operators, airports andground handling operators in order to establish and coordinate training programmes to ensure thai trainedpersonnel are available to assistpersons with disabilities.

II. Access to airports



### 8.27 Contracting States shall take the necessary steps to ensure that airport facilities and services are adapted to the needs ofpersons with disabilities. 

### 8-3 Annex 9- Facilitation 

### 8.28 Recommended Practice.- Contracting States should ensure that lifting systems or any other appropriate devices are made available in order tofacilitate the movement ofelderly and disabled passengers between the aircraft and the terminal on both arrival and departure as required where relescopicpassageways are not used. 

### 8.29 Recommended Practice.- Measures should be taken to ensure that the hearing- and vision-impairedare able to obtainflight information. 

### 8.30 Recommended Practice.- For elderlyanddisabled persons being set down orpicked up at a terminal building, reservedpoints should be lacated as close aspossible to main entrances. Tofocilitate movement to the various areas of the airport. access routes should befree of obstacles. 

### 8.31 Recommended Practice.- Where access topublic services is limited, every effort should be made to provide accessible and reasonably priced ground transportation services by adapting current andplilnnedpublic transit systems orbyprovidingspecial transportservicesforpeople with mobility needs. 

### 8.32 Recommended Practice.- Adequate parking facilities should be providedfor people with mobility needs and appropriate measures taken tofacilitate their movement betweenparking areas and rhe terminal buildings. 

### 8.33 Recommended Practice.- Direct transfer from one aircraft to another of passengers. particularly elderlyand disabled passengers. should be authorized. where necessary and possible, whenever this is warranted by deadlines in making connecting flights or by other circumstances.

Ill. Access to air services 

### 8.34 Contracting States shall take the necessary steps to ensure that persons with disabilities have adequate access to air services. 

### 8.35 Recommended Practice.- Contracting States should introduce provisions by which aircraft coming newly into service or after major refurbishment should coriform to minimum uniform standards ofaccessibility with respect to equipment on board aircraft which would include movable armrests, on-board wheelchairs. lavatories andsuitable lighting andsigns. 

### 8.36 Recommended Practice.- Wheelchairs, special apparatus andequipment required bypersons with disabilities should be carriedfree ofcharge in the cabin where, in the view ofthe aircraft operator. space and safety requirements permit or should be designated as priority baggage. Service animals accompanying passengers with disabilities should also be carriedfree ofcharge in the cabin, subject to the application ofany relevant national or aircraft operator regulations.
24/11105

### Annex 9- Facilitation 8.37 Recommended Practice.- In principle. persons with disabilities should bepermilted to determine whether or not they needan escort and to travel without the requirement for a medical clearance. However, advance notice should be mandatory where assistance or lij/ing is required. Aircraft operators should only bepermilted to requirepassengers with disabilities to obtain a medical clearance in cases of medical condition where it is clear that their safety or weJf-being or that of otherpassengers cannot be guaranteed Furthermore, aircraft operators should only be permilled to require an escort when it is clear that a person with disabilities is not self-reliant and, as such, the safety or well-being ofthat person or that of anotherpassenger**canr~ot** be guaranteed. 8.38 Recommended Practice.- 

### Ifthe presence ofan escort is required, Contracting States should encourage aircraft operators to offer discountsfor the carriage ofthat accompanyingperson.

H. Assistance to aircraft accident victims and their families 8.39 The State ofOccurrence ofan aircraft accident and adjacent States shall make arrangements to facilitate the entry into their territory on a temporary basis offamily members of victims ofan aircraft accident. 8.40 The State of Occurrence and adjacent States shall also make arrangements to facilitate the entry into their territory, on a temporary basis. ofauthorized representatives of**24/1110~** 8-4 Cltapler 8 the operator whose aircraft has met with the accident, or ofthe operator's alliance partner, in order to enable them to provide assistance to survivors and their family members, the family members of the deceased victims of the accident and the relevant authorities in these**S~al.es.**

Note.- Code-sharing and similar alliance agreements sometimes require alliancepartners to actas "first responder" on behalf of

an affected operator in case the alliance partner can getto the location of the accidentquicker than the affected operator.
8.41 Recommended Practice.- In arranging for the entry ofthe persons referred to in 8.39, the Stare ofOccurrence andadjacent States shouldnot require any other travel document than apassport. or an emergency travel document issuedspecifically to suchpersons. to enable them to travel to these States. In cases where the State ofOccurrence ofthe accident or an adjacent State requires entrance visasforpersons referredto in 8.39 and8.40 above, it should expedite the issuance of such visas.
8.42 Contracting States shall make arrangements to issue emergency travel documents, if required. to their nationals who have survived the accident.

8.43 Contracting States shall extend all necessary assistance, such as arranging transport and clearing customs, in the repatriation ofhuman remains to their countries oforigin, on request by family members of the deceased or the operator whose aircraft met with the accident