U.S. Department ofTransportation Office ofthe Secretary of Transportation GENERALCOUNSEL April 15, 2009 1200 New Jersey Avenue, SE Washington, DC 20590

CertifiedMail-Return Reeeipt Requested

Ms. Lorraine B. Halloway Crowell & MoringLLP 1001 PennsylvaniaAvenue, N.W. Washington,D.C. 

### 20004

DearMs. Halloway: Re: Conflict ofLaw WaiverandEquivalent Alternative Detennination Request Concerning Provisions 

### in Subpart G of 14CFR Pan 382

This letter concerns Aer Lingus Limited's (AerLingus) September 10, 2008, request for

a conflict of law waiver and equivalent alternative determination concerning the boarding, deplaning, and connecting assistance requirements contained in Subpart G of 14 CFR Part 382 (14 CFR 382.91- 14 CFR 382.105) ofthe Department's Air Canier Access Act (ACAA) regulation. Aer Lingus' request for a conflict of law waiver and equivalent alternative detennination concerning various other provisions of 14 CFR Part 382 (Part 382) is still underreviewbytheDepartment.

Aer Lingus asserts a conflictoflaw between sections 382.91, 382.95, 382.101, 382.103, and 382.105 of Pan 382 and Articles 7.1, 7.5, 7.6, and 8.1 of EC 1107/2006, the European Union regulation on service to passengers with disabilities. The cited provisions of EC 1107 require the airport managing body (airport operator) to provide assistance to a personwith reduced mobility (PRM) 

### in boarding anddeplaning a flight, as weJI as transiting the airport. Under sections 382.91, 382.95, 382.101, 382.103, and 382.105, carriers, not airport operators, are responsible for providing or ensuring boarding, deplaning, and connecting assistance. Aer Lingus maintains that it should not be held liable for failures ofairport operators to provide the services required by Subpart G ofPart382 since

### it is the airports thathavedirectresponsibility for providingboarding, deplaning, andcoMectingassistance.

We note that Part 382 does not prohibit Aer Lingus from relying on the relevant services provided by an airport operator, so long as those services meet the requirements in Subpart G ofPart 382. When those services do not meet the requirements ofSubpart G, however, section 382.1OS of our rule requires Aer Lingus·to provide supplemental

### services to ensure that these requirements are met. 1 

### In otherwords, to ensure compliance with Part 382, the service mustbe supplemented when necessaryto the extentrequired by the rule (e.g., a carrier is bound to provide or ensure prompt enplaning and deplaning assistance, including to a passenger who does not provide advance notice and requests assistance to make a connection to another flight). 

### Article 9.4 of EC 1107 explicitly permits agreements between carriers and airport operators in which the airport operator will provide a higher standard of service or supplemental services to the carrier's passengers at that airport. Moreover, we are not aware ofany provision in EC 1107 that bars acarrierfrom directly supplementing services.



### Inthe Section-by-SectionAnalysis ofthe conflictoflaws provisioninthe preamble tothe final rule (73 Fed. Reg. at 27646). and in section 382.9, we stated that aforeign law that requires a foreign carrier to do something prohibited by this rule, or that prohibits a foreign carrierfrom doing something required by this rule. is an appropriate subject for a conflict oflaws waiver. This is not the case with respect to the cited provisions ofEC

. 1107 and the requirements of sections 382.91, 382.95, 382.101, 382.103, and 382.105. The relevantprovisions ofbothPart 382 and

### EC 1107 complementone anotherand allow for ample flexibility to achieve simultaneous compliance with the requirements ofboth 

### regulations. Absent a showing of a generally applicable legal bar in EC 1107 to providing supplementary services as needed to meet the requirements in Subpart 0 of Part 382, a carrier would necessarily have to make an airport-by-airport showing that it

was precluded from providing supplementary services. AerLingus does not provide any information demonstrating that it is precluded from providing supplementary services at any particular airport or airports from which it 

### conducts operations covered by Part 382. Therefore, having found no conflict of law, the Department must deny Aer Lingus• conflict of law waiver request for sections 382.91, 382.95, 382.101, 382.103, and 382.105.

Aer Lingos also asserts that the Department should recognize that compliance by airport operators with EU regulatory requirements constitutes substantial compliance with 

### sections 382.91, 382.95, 382.101, 382.103, and 382.105 and, therefore, they should be

1The preamble to 14CFRPart 382provides further clarificationofthe Department's intent: [T)he final rule should not be understood to require carriers to duplicate the accommodations made by airport operators at foreign**airports~** Where foreign airport operators provide accessibility services or accessible facilities, foreign carriers may rely

on the airport operators' efforts, to the extent that those efforts fully meet the requirements ofthis Part. What happens, though, ifthe foreign airport operators' efforts do not fully provide the accessibility that this rule requires (e.g., the airport operator is responsible for providing wheelchair assistance to passengers within the terminal, but does notprovideconnecting service between gates for wheelchairusers who arechanging planes on flights covered by the rule)? In such a case, this rule requires air carriers to supplement the services provided by the airport operator, by providing the supplemental services itselfor hiring 

### acontractor to do so. Ifthe carriercannot legally do 

### so (e.g., the airline is legally prohibited from supplementing the airport's services to passengers with disabilities), the carrier could seek a conflict of Jaws waiver. U.S. Department of Transportation, Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 27614, 27619 (May 13, 2008).

### granted an equivalent alternative determination from these sections. However, the fact that a foreign regulation addresses the same general subjectas Part 382 does notmeanthe foreign regulation is an equivalent alternative and in this case AerLingushas provided no evidence of equivalency. The Department's ACAA regulation also explains that the Department will not entertain an equivalent alternative request relating to an entire regulatory scheme. See 73 Fed. Reg. at 27617. Therefore, Aer Lingus' request for an equivalent alternative determinationfrom sections 382.91, 382.95, 382.101, 382.103. and 382.105 mustalso bedenied.

Ifyou have any questions about this matter, please contact Mike Spollen, ofmy staff, or
me at (202) 366-9342. Youmay also reach us byFAX at (202) 366-7152.

Sincerely,

# ~~ Samuel Podberesky AssistantGeneral Counsel for

Aviation Enforcement and Proceedings

cc: LaurenceGourley