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)

Conflict of Law Waivers and Equivalent Alternative Determinations

One of the most frequent comments made by foreign carriers and their organizations was that implementation of the proposed rules would lead to conflicts between Part 382 and foreign laws, rules, voluntary codes of practice, and carrier policies. These conflicts, commenters said, would lead to confusion and reduce efficiency in service to passengers with disabilities. Many commenters advocated that the Department should defer to foreign laws, rules, and guidance, or accept them as equivalent for purposes of compliance with Part 382.

In anticipation of this concern, and in keeping with the Department’s obligation and commitment to giving due consideration to foreign law where it applies, the Foreign Carriers NPRM proposed a conflict of laws waiver mechanism. Under the proposal, a foreign carrier would be required to comply with Part 382, but could apply to DOT for a waiver if a foreign legal requirement conflicted with a given provision of the rule. If DOT agreed that there was a conflict, then the carrier could continue to follow the binding foreign legal requirement, rather than the conflicting provision of Part 382. Foreign carriers commented that this provision was unfair, because it would force them to begin complying with a Part 382 requirement allegedly in conflict with a foreign legal requirement while the application for a waiver was pending. Some commenters also objected to DOT making a determination concerning whether there really was a conflict between DOT regulations and a provision of foreign law.

In order to determine whether a foreign carrier should be excused from complying with an otherwise applicable provision of Part 382, the Department has no reasonable alternative to deciding whether a conflict with a foreign legal requirement exists. The Department cannot rely solely on an assertion by a foreign carrier that such a conflict exists.

Comments from a number of foreign carriers asked the Department to broaden the concept of the proposed waiver, by allowing foreign carriers to comply with recommendations, voluntary codes of practice, etc. We do not believe such a broadening is necessary to comply with the Department’s legal obligations. Nor would it be advisable from a policy point of view, as it would not provide the consistency that passengers with disabilities should expect, regardless of the identity or nationality of the carrier they choose.

We therefore want to make clear, for purposes of this waiver provision, what we mean by a conflict with a provision of foreign law. By foreign law, we mean a legally binding mandate (e.g., a statute, regulation, a safety rule equivalent to an FAA regulation) that imposes a nondiscretionary obligation on the foreign carrier to take, or refrain from taking, a certain action. Binding mandates frequently can subject a carrier to penalties imposed by a government in the event of noncompliance. Guidance, recommendations, codes of best practice, policies of carriers or carrier organizations, and other materials that do not have mandatory, binding legal effect on a carrier cannot give rise to a conflict between Part 382 and foreign law for purposes of this Part, even if they are published or endorsed by a foreign government. In order to create a conflict, the foreign legal mandate must require legally something that Part 382 prohibits, or prohibit something that Part 382 requires. A foreign law or regulation that merely authorizes carriers to adopt a certain policy, or gives carriers discretion in a certain area that Part 382 addresses, does not create a conflict cognizable under the conflict of laws waiver provision.

For example, Part 382 says that carriers are prohibited from imposing number limits on passengers with disabilities. Suppose that Country S has a statute, or the equivalent of an FAA regulation, mandating that no more than three wheelchair users can, under any circumstances, travel on an S Airlines flight. S Airlines would have no discretion in the matter, since it was subject to a legal mandate of its government. This would create a conflict between Part 382 and the laws of Country S that could be the subject of a conflict of laws waiver. However, suppose that the government of Country S publishes a guidance document that says limiting wheelchair users on a flight to three is a good idea, has a regulation authorizing S Airlines to impose a number limit if it chooses, or approves an S Airlines safety program that includes a number limit. In these cases, the conflict of laws waiver would not apply, since in each case there is not a binding government requirement for a number limit, and S Airlines has the discretion whether or not to adopt one.

We note one exception to this point. If a foreign government officially informs a carrier that it intends 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 that conflicts with a portion of the Department’s rules, the Department would view the government action as creating a legal mandate cognizable under this section.

While retaining the substance of the conflict of laws provision of the NPRM, the Department has, in response to comments, modified the process for considering waiver requests.. We agree with commenters that it would be unfair to insist that carriers comply with a Part 382 provision that allegedly conflicts with foreign law while a waiver request is pending. Consequently, we have established an effective date for the rule of one year after its publication date. We strongly encourage carriers, even where a provision of Part 382 itself explicitly allows an exception in order to comply with a foreign law (i.e., section 382.87(a)), to consider filing a conflict of law waiver request as outlined in section 382.9(a) whenever a carrier believes itself bound by a legal mandate that requires something Part 382 prohibits or prohibits something Part 382 requires. If a carrier sends in a waiver request within 120 days of the publication date of the final rule, the Department will, to the maximum extent feasible, respond before the effective date of the rule. If we are unable to do so, the carrier can keep implementing the policy or practice that is the subject of the request until we do respond, without becoming subject to enforcement action by the Department. The purpose of the 120-day provision is to provide an incentive to foreign carriers to conduct a due diligence review of foreign legal requirements that may conflict with Part 382 and make any waiver requests to DOT promptly, so that the Department can resolve the issues before the rule takes effect.

What a foreign carrier obtains by filing all its conflict of laws waiver requests within the first 120 days is, in effect, a commitment from DOT not to take enforcement action related to implementing the foreign law in question pending DOT’s response to the waiver request. For example, if S Airlines filed a waiver request with respect to an alleged requirement of a Country S law requiring number limits for disabled passengers within 120 days of the rule’s publication, then the Department would not commence an enforcement action relating to an alleged violation of Part 382’s prohibition of number limits that occurred during the interval between the effective date of Part 382 and the date on which DOT responds to S Airline’s waiver request. This would be true even if the Department later denies the request.

However, if S Airlines did not file its request until 180 or 210 days after the rule is published, DOT could begin enforcement action against the carrier for implementing number limits inconsistent with Part 382 during the period between the effective date of the rule and the Department’s response to the waiver request. If the Department granted the waiver request, any enforcement action relating to the carrier’s actions during that interval would probably be dismissed. However, if the waiver request were denied, the enforcement action would proceed. S Airlines thus would have put itself at somewhat greater risk by failing to submit its waiver request on a timely basis.

We also recognize that laws change. Consequently, if a new provision of foreign law comes into effect after the 120-day period, a carrier may file a waiver request with the Department. The carrier may keep the policy or practice that is the subject of the request in effect pending the Department’s response, which we will try to provide within 180 days. Again, the carrier would not be at risk of a DOT enforcement action relating to the period during which the Department was considering the waiver request concerning the new foreign law.

Carriers should not file frivolous waiver requests, the stated basis for which is clearly lacking in merit or which are filed with the apparent intent of delaying implementation of a provision of Part 382 or abusing the waiver process. In such cases, the Department may pursue enforcement action even if the frivolous waiver request has been filed within 120 days. As a general matter, a carrier that does not file a request for a waiver, or whose request is denied, cannot then raise the alleged existence of a conflict with foreign law as a defense to a DOT enforcement action.

Many foreign carriers and their organizations also said that a conflict of laws waiver, standing alone, was insufficient. They said that their policies and approaches to assisting passengers with disabilities, or laws or policies relating to disability access of foreign carriers’ countries (either single-country laws or those of, for example, the European Union) should be recognized as equivalent to DOT’s rules. Compliance with equivalent foreign laws and carrier policies, they said, should be sufficient to comply with Part 382.

U.S. disability law includes a concept – equivalent facilitation -- that can address these comments to a reasonable degree. This concept, which is embodied in such sources as the Department’s Americans with Disabilities Act (ADA) regulations and the Americans with Disabilities Act Accessibility Guidelines (ADAAG), states that a transportation or other service provider can use a different accommodation in place of one required by regulation if the different accommodation provides substantially equivalent accessibility. The final rule permits U.S. and foreign carriers to apply to the Department for a determination of what the final rule will call an “equivalent alternative.” (We use this term is used in place of “equivalent facilitation” to avoid any possible confusion with the use of “equivalent facilitation” in other contexts.). If, with respect to a specific accommodation, the carrier demonstrates that what it wants to do will provide substantially equivalent accessibility to passengers with disabilities than literal compliance with a particular provision of the rule, the Department will determine that the carrier can comply with the rule using its alternative accommodation. This provision applies to equipment, policies, procedures, or any other method of complying with Part 382.

It should be emphasized that equivalent alternative determinations concern alternatives only to specific requirements of Part 382. The Department will not entertain an equivalent alternative request relating to an entire regulatory scheme (e.g., an application asserting that compliance with European Union regulations on services to passengers with disabilities was equivalent to Part 382 as a whole). It should be emphasized that the fact that a carrier policy or foreign regulation addresses the same subject as a provision of Part 382 does not mean the carrier policy or foreign regulation is an equivalent alternative. For example, both Part 382 and various carrier policies address the transportation of service animals. A policy or regulation that was more restrictive than Part 382 would not be viewed as an equivalent alternative, since it provided less, rather than substantially equivalent, accessibility for passengers who use service animals.

As with the conflict of laws waiver, if a carrier submits a request for an equivalent alternative determination within 120 days of the publication of this Part, the Department will endeavor to have a response to the carrier by the effective date of the rule. If the Department has not responded by that time, the carrier can implement its proposed equivalent alternative until and unless the Department disapproves it. However, with respect to a request filed subsequent to that date, carriers must begin complying with the Part 382 provision when it becomes effective, and could not use their proposed equivalent alternative until and unless the Department approved it.