U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

April 15, 2009 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Certified Mail-Return Reeeipt Requested 

Ms. Lorraine B. Halloway 

Crowell & Moring LLP 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Dear Ms. Halloway: 

Re: Conflict of Law Waiver and Equivalent 

Alternative Detennination Request 

Concerning Provisions in Subpart G of 

14 CFR Pan 382 

This letter concerns Aer Lingus Limited's (Aer Lingus) 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) of the 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 under review by the Department. 

Aer Lingus asserts a conflict of law 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 person with reduced mobility (PRM) in boarding and deplaning 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 of airport operators to provide the services required by Subpart 

G of Part 382 since it is the airports that have direct responsibility for providing boarding, 

deplaning, and coMecting assistance. 

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 of Part 382. When those services do not meet the requirements of Subpart G, 

however, section 382.1 OS of our rule requires Aer Lingus · to provide supplemental 
services to ensure that these requirements are met. 1 In other words, to ensure compliance 

with Part 382, the service must be supplemented when necessary to the extent required 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 of any provision in EC 1107 that 

bars a carrier from directly supplementing services. 

In the Section-by-Section Analysis of the conflict of laws provision in the preamble to the 

final rule (73 Fed. Reg. at 27646). and in section 382.9, we stated that 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. This is not the case with respect to the cited provisions of EC . 

1107 and the requirements of sections 382.91, 382.95, 382.101, 382.103, and 382.105. 

The relevant provisions of both Part 382 and EC 1107 complement one another and allow 

for ample flexibility to achieve simultaneous compliance with the requirements of both 

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. Aer Lingus 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 

1 The preamble to 14 CFR Part 382 provides further clarification of the 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 of this Part. What happens, though, if the 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 not provide connecting service between gates for wheelchair users who are changing 

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 itself or hiring a contractor to do so. If the carrier cannot 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 of Disability 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 subject as Part 382 does not mean the 

foreign regulation is an equivalent alternative and in this case Aer Lingus has 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 determination from sections 382.91, 382.95, 382.101, 382.103. and 

382.105 must also be denied. 

If you have any questions about this matter, please contact Mike Spollen, of my staff, or 

me at (202) 366-9342. You may also reach us by FAX at (202) 366-7152. 

Sincerely, 

~~ Samuel Podberesky 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

cc: Laurence Gourley