14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.9 What may foreign carriers do if they believe a provision of a foreign nation’s law prohibits compliance with a provision of this Part? This provision creates a conflict of laws waiver mechanism to give appropriate consideration to requirements of foreign law applicable to foreign carriers. It is important to note that this mechanism is intended to apply only to genuine conflicts with legally binding foreign legal mandates. A foreign law that requires a foreign carrier to do something prohibited by this rule, or that prohibits a foreign carrier from doing something required by this rule, is an appropriate subject for a conflict of laws waiver. A foreign carrier’s or foreign government’s policy, authorized practice, recommendation, or preference is not. However, if a foreign government officially informs a carrier that it plans to take enforcement action (e.g., impose a civil penalty) against a carrier for failing to implement a provision of a government policy, guidance document, or recommendation, the Department would view the enforcement action as creating a legal mandate that could be addressed under this section.

If, as a legal matter, the foreign carrier has no choice but to act contrary to this rule, the Department would grant a waiver. If the foreign carrier, as a matter of law, has any discretion in the matter, it must exercise that discretion by complying with this rule, even if contrary to the carrier’s policy or the recommendation of a foreign government, and the Department would not grant a waiver. A waiver request would have to include the carrier’s proposal for an alternative means of achieving the rule’s objectives with respect to any provision that is waived.

The Department wants to ensure that waiver requests are submitted and granted or denied in a timely manner, avoiding the dilemma for foreign carriers of having to choose between compliance with this rule and with conflicting foreign laws when the rule goes into effect a year after its publication. We encourage foreign carriers to make any waiver requests within 120 days of the rule’s publication. The Department commits to deciding requests made in this time period before the rule goes into effect. If we are late, then the foreign carrier may continue to carry out the policy or practice involved until we do respond, and if the request is denied the Department would not take any enforcement action against the carrier with respect to activities that took place prior to the denial. Even with respect to waiver requests submitted after the 120-day period, the Department will do its best to respond before the effective date of the rule. Again, the carrier can choose to continue to follow the policy or practice that is the subject of the request until the Department does respond. However, if such a request is denied, the carrier risks enforcement action with respect to the period between the effective date of the rule and the date of the Department’s response. The Department has established this two-stage waiver consideration process to help avoid a situation in which a foreign carrier would delay submission of a waiver request until shortly before the effective date of the rule, in an attempt to delay compliance with the rule while the Department considered its late-filed request.

We also recognize that new foreign legal mandates can arise. If a new mandate is created after the initial 120-day period following publication of the rule (not an existing legal mandate that is subsequently discovered or goes into effect subsequently), then a foreign carrier may submit a waiver request and continue to implement the policy or practice involved until the Department responds. In this case, the carrier would not be subject to enforcement action for the period prior to the Department’s response.

This section also notes that if a foreign carrier submits a frivolous or dilatory waiver request, has not submitted a waiver request with respect to a particular policy or practice, or continues to follow a policy or practice concerning which a waiver request has been denied, the carrier could be subject to DOT enforcement action. For example, if the Department initiates enforcement action because we believe a foreign carrier’s practice is contrary to the rule, the carrier could not defend against the enforcement by claiming a conflict with an existing foreign legal mandate if the carrier had not previously submitted a waiver request concerning the practice, or the request had been denied.

Finally, the Department recognizes that a U.S. carrier may wish to file a waiver request on behalf of a foreign carrier. This may occur, for example, in the case of U.S. carriers who must ensure compliance with the service-related provisions of this Part on code share flights between two foreign points operated by their foreign code share partners on behalf of passengers traveling under the U.S. carriers’ codes. Where a U.S. carrier believes a foreign law conflicts with a service-related provision of this Part and bars compliance on a code-share flight operated by its foreign code share partner, the U.S. carrier may file a waiver request on behalf of its foreign code-share partner(s) subject to that law. The waiver request should include a proposal for an alternative means of compliance with the Part 382 provision or a justification of why it would be impossible to achieve the objective. If granted, the responsibility of the U.S. carrier with respect to code-share flights operated by its foreign partner(s) will be limited in accordance with the terms of the waiver.