Eckert Seamans Cherin & Mellott, LLC 

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Washington, D.C. 20006 

September 11, 2008 

Assistant General Counsel 

Aviation Enforcement and Proceedings 

C-70 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Room W96-322 

Washington, DC 20590 

Re: Conflict of Laws Waiver Request 

Dear Sirs: 

Pursuant to 14 C.F.R. §382.9 (2008), Air Pacific Limited ("Air Pacific") respectfully submits 

this request for a conflict oflaws waiver from various provisions of Part 382, Nondiscrimination 

on the Basis of Disability in Air Travel (hereinafter referred to as Part 382). Air Pacific is Fiji's 

international airline and is governed by the Civil Aviation Authority of the Fiji Islands 

("CAAFI"). Fiji is a member of the 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 carrier of Fiji, is required to comply with the Annex 9: 

Facilitation to the Convention on International Civil Aviation (Chicago, 1944). (Attached hereto 

as Exhibit A.) In compliance with Annex 9, Air Pacific has implemented its Airport Handling 

Manual. (Relevant portions attached hereto as Exhibit B which 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 of Part 382. Therefore, Air Pacific respectfully requests your careful consideration of 

the conflicts of laws identified herein. 

1) 14 C.F.R. §382.117: Must carriers permit passengers with a disability to 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 or health of the dog 

or the passenger's disability. These requirements conflict with the CAAPI policy and 

requirements on the transportation of service animals in the aircraft passenger cabin. Air Pacific 

WASHINGTOtv, DC PITTSBURGH, PA HARRISBURG, PA PHILADELPHIA. PA BOSTON, MA WILMINGTON, DE 

MORGANTOWN, WV SOUTHPtiNTE, PA WHITE PLAINS, NY 

;_ : . ': ~)-

-·. ~ 
requires that passengers travelling with a service dog provide at least seven (7) days advanced 

notice and provide the following documentation, so that CAAFI gives blanket approval of the 

transport of the 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 of the owner to 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 of entry. 

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 of Air Pacific's Fiji AOC. (See Paragraph BI9 of AOC at Exhibit 

C) 

(See Section 9.1 0.2 of Airport Handling Manual at Exhibit B. Note that paragraph 4 of Section 

9.1 0.2 is being deleted from the Airport Handling Manual, and therefore, Air Pacific respectfully 

requests that DOT not consider the provisions therein.) Accordingly, Air Pacific is obligated by 

CAAFI to require passengers to provide documentation regarding their disability condition, the 

health and training of the service animal in order to verify that the animal is a service animal 

rather than a pet. To the extent these requirements conflict with Part 3 82, Air Pacific 

respectfully requests a conflicts of laws 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 last row of the business and economy 

class cabins (Air Pacific does not have first class cabins) are allocated to the service animals, so 

it can occupy the floor space of the allocated seat. The adjacent seat shall be occupied by the 

person with the disability. Additionally, CAAFI and Air Pacific require the following measures: 

Service Animals/Dogs must be seated on a moisture absorbent mat, muzzled, 

harnessed and restrained by tying the leash to an aircraft fixture e.g. leg of aircraft 

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 staff must 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 of the above or CAAFI's condition are not met. 

(See Section 9.10.3 of Airport 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 passenger and the 

service dog. Additionally, due to the long haul nature of Air Pacific's flights from Fiji to the 

U.S., Air Pacific requires that service dogs are properly and safely secured and sit on a moisture 

absorbent mat, so that they do not relieve themselves on the aircraft carpeting or fabric. To the 

extent these requirements conflict with Part 382, Air Pacific respectfully requests a conflicts of 

laws waiver. 

2) 14 C.F.R. §382.87: What other requirements pertain to seating for passengers with 

a disability? 

14 C.F.R. §382.87 prohibits Air Pacific from excluding any passenger with a disability from any 

seat or requiring that a passenger with a disability sit in any particular seat, on the basis of 

disability, except to comply with applicable government safety requirements. Air Pacific's 

policy on seating passengers with disabilities is focused on safety: 

Seating of passengers with disabilities will not be restricted only to seats with 

Lifl-up Arm Rests unless otherwise stated. 

Passengers with disabilities will not be permitted seats in designated emergency 

exit rows on any aircraft or on the upper-deck of the B747 aircraft. 

It is recommended that passengers with disabilities sit on forward seats as 

possible behind bassinet rows. Where space allows, seats beside passengers 

[shall] be blocked offfor use so [an] empty seat is available for use by crew when 

liasing/handling passenger. Where multiple passengers are travelling, it is 

recommended that they are seated together when possible .... 

Passenger with vision and/or hearing impairment travelling with a 

reader/attendant may be seated on any seat except on emergency exit rows. 

(See Section 10.2.6 of Airport Handling Manual at Exhibit B.) Thus, for safety reasons, 

passengers with disabilities are not permitted to sit in exit rows or on upper-decks of aircraft. Air 

Pacit!c respectfully submits that the above legal mandates are similar to the FAA requirement 

that United States carriers must follow requiring the carrier to reasonably determine if a 

passenger with a disability has the physical and mental capabilities to sit in a particular seat, 

specifically in an exit row 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 carrier require a passenger with a disability to provide 

advance notice that he or she is traveling on a flight? 

14 C.P.R. §382.25 prohibits Air Pacific, 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 of Air Pacific's flights from Fiji to the U.S., Air Pacific requires passengers 

with disabilities provide a minimum of 48 hours advance notice and to check-in one hour in 

advance of the check-in time for the general public. This advance notice and early check-in 

time, provide the Air Pacific staff with valuable time to prepare to address the needs of a 

passenger with a disability. Thus, Air Pacific respectfully requests a conflict oflaws waiver 

from 14 C.P.R. §382.25. 

4) 14 C.F.R. §382.35: May carriers require passengers with a disability to sign waivers 

or releases? 

Generally, 14 C.F.R. §382.35 prohibits Air Pacific from requiring passengers with disabilities to 

sign a release or waiver in order to receive transportation or to 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 if travel involves any human, hazard 

') 

)_I_) 

;0 I~ • 

_·l 

or safety risk to the person or other persons (including pregnant passengers)." (See Section ;(: J. 

10.2.2.5 of Airport Handling Manual at Exhibit B.) Due to the long haul nature of Air Pacific's 

flight from Fiji to the U.S., and the extremely limited number of opportunities for diversion as 

the routes are entirely over the Pacific Ocean, Air Pacific staff must carefully evaluate a 

passenger's health condition. If a passenger's condition is severe enough to cause Air Pacific 

staff concern over the passenger's health despite the presentation of a medical certificate, Air 

Pacific respectfully requests that it be able to continue to exercise its discretion in requiring 

passengers to sign an indemnity clearance. Accordingly, Air Pacific respectfully requests a 

waiver from the provisions of 14 C.F.R. §382.35. 

Conclusion 

As discussed above, the provisions of Part 382 and the CAAFI mandated safety requirements 

implemented in the Airport Handling Manual apply conflicting requirements to the same flights. 

As a carrier certified by the CAAFI, Air Pacific is legally required to comply with CAAPI's 

safety regulations or it will face non-compliance, which may negatively impact its AOC. 

Accordingly, Air Pacific appreciates your careful consideration of the above requests for 

conflicts oflaws waivers. 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 S 0 U T H P41 NT E, PA WHITE PLAINS. NY 
EXHIBIT A 
. Civil' Aviation of the Fiji Islands (CAAFI) 

~ 

/-=~\ Civil Aviation Authority 

ofthe Fiji Islands 

Ni 3tllnil41 

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ICAO Standards & Recommended Practices 

15 Sep 2005 15:09:08 

Fiji is a member of the 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 

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Chapter 8 

circumstances, between civil avialion security and facilitation 

programmes. To this end, certain members of Facilitation 

Commiuees should also 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 I J and 12. 

G. Facilitation of the 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 general public. 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 

should cooperate with a view to taking the necessary measures 

to make accessible to per-sons with disabilities all the elements 

of the chain of the person's journey, from beginning to end. 

8.24 Recommended Practice.- Contracting States 

should take the necessary steps with aircraft operators, 

airports and ground handling operators to establish minimum 

uniform standards of accessibility with respect to transportation services for persons with disabilities, from arrival at 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 that persons with disabilities are given the information 

they need. and should take the necessary steps to ensure that 

airlines. airports, ground handling operators and travel 

agencies are in a position to give those passengers the assistance necessary for 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 and ground handling operators in 

order to establish and coordinate training programmes to 

ensure thai trained personnel are available to assist persons 

with disabilities. 

I I. Access to airports 

8.27 Contracting States shall take the necessary steps to 

ensure that airport facilities and services are adapted to the 

needs of persons 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 to facilitate the movement 

of elderly and disabled passengers between the aircraft and 

the terminal on both arrival and departure as required where 

relescopic passageways are not used. 

8.29 Recommended Practice.- Measures should be 

taken to ensure that the hearing- and vision-impaired are able 

to obtain flight information. 

8.30 Recommended Practice.- For elderly and disabled 

persons being set down or picked up at a terminal building, 

reserved points should be lacated as close as possible to main 

entrances. To focilitate movement to the various areas of the 

airport. access routes should be free of obstacles. 

8.31 Recommended Practice.- Where access to public 

services is limited, every effort should be made to provide 

accessible and reasonably priced ground transportation 

services by adapting current and plilnned public transit systems or by providing special transport services for people with 

mobility needs. 

8.32 Recommended Practice.- Adequate parking 

facilities should be provided for people with mobility needs 

and appropriate measures taken to facilitate their movement 

between parking areas and rhe terminal buildings. 

8.33 Recommended Practice.- Direct transfer from 

one aircraft to another of passengers. particularly elderly and 

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 of accessibility with respect to 

equipment on board aircraft which would include movable 

armrests, on-board wheelchairs. lavatories and suitable lighting and signs. 

8.36 Recommended Practice.- Wheelchairs, special 

apparatus and equipment required by persons with disabilities 

should be carried free of charge in the cabin where, in the 

view of the aircraft operator. space and safety requirements 

permit or should be designated as priority baggage. Service 

animals accompanying passengers with disabilities should 

also be carried free of charge in the cabin, subject to the 

application of any relevant national or aircraft operator 

regulations. 

24/11105 
Annex 9- Facilitation 

8.37 Recommended Practice.- In principle. persons 

with disabilities should be permilted to determine whether or 

not they need an 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 be permilted to require passengers 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 other passengers 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 of that 

person or that of another passenger canr~ot be guaranteed. 

8.38 Recommended Practice.- If the presence of an 

escort is required, Contracting States should encourage 

aircraft operators to offer discounts for the carriage of that 

accompanying person. 

H. Assistance to aircraft accident victims 

and their families 

8.39 The State of Occurrence of an aircraft accident and 

adjacent States shall make arrangements to facilitate the entry 

into their territory on a temporary basis of family members of 

victims of an 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. of authorized representatives of 

24/1110~ 8-4 

Cltapler 8 

the operator whose aircraft has met with the accident, or of the 

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 alliance partners to act as "first responder" 

on behalf of an affected operator in case the alliance partner 

can get to the location of the accident quicker than the affected 

operator. 

8.41 Recommended Practice.- In arranging for the 

entry of the persons referred to in 8.39, the Stare of Occurrence and adjacent States should not require any other travel 

document than a passport. or an emergency travel document 

issued specifically to such persons. to enable them to travel to 

these States. In cases where the State of Occurrence of the 

accident or an adjacent State requires entrance visas for persons referred to in 8.39 and 8.40 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 of human remains to their countries of origin, on 

request by family members of the deceased or the operator 

whose aircraft met with the accident