The US Department of Transportation (DOT) final rule implementing amendments to the Air Carrier Access Act (ACAA) becomes effective May 13, 2009. The ACAA, which prohibits discrimination in airline service on the basis of disability, has been reorganized and expanded to cover foreign air carriers.

In some cases, compliance with the final rule may lead to conflicts between the DOT final rule and foreign laws, rules, requirements, regulations or policies. In that case, foreign carriers can apply to the DOT for a conflict of laws waiver. If the DOT agrees that there is a conflict between the final rule and a legally binding foreign mandate, then the foreign air carrier can continue to follow the foreign legal requirement rather than the conflicting provision of the DOT rule without risk of enforcement action by the DOT.

For purposes of the waiver provision, a conflict with foreign law means a legally binding mandate that imposes a nondiscretionary obligation on the foreign carrier to take, or refrain from taking, a certain action. Guidance policies, recommendations, codes of best practice, policies of air carriers or carrier organizations, and other nonmandatory policies cannot give rise to a conflict for purposes of this rule and will not be considered the basis for a waiver. Only a foreign mandate that legally requires something that the DOT rule prohibits, or prohibits something that the DOT rule requires, creates a conflict. Additionally, if a foreign government officially informs a carrier that it intends to take action (e.g., by imposing a civil penalty) against a carrier for failing to implement a provision of a government policy, guidance document or recommendation that conflicts with the DOT rule, the DOT will view this as creating a legal mandate under the conflict of laws waiver provision.

To apply for a conflict of laws waiver, air carriers must send requests to the DOT within 120 days of publication of the final rule. Because the final rule was published May 13, 2008 waiver requests must be postmarked by September 10, 2008. If the DOT receives a waiver request by that deadline, it will, to the extent possible, respond to the request before the rule's effective date, May 13, 2009. If the DOT cannot respond by that date, the air carrier can continue to implement the policy or practice that is the subject of the request until the DOT does respond. If air carriers submit waiver requests after September 10, 2008, the DOT may take enforcement action against the carrier for implementing policies inconsistent with the final rule.