U.S. Department

of Transportation

Office of the Secretary

of Transportation

GENERAL COUNSEL

August 8, 2013

Certitied Mail Return Receipt Requested

1200 New Jersey Avenue, SE

Washington. DC 20590

.c::..

Ms. Lorraine B. Halloway

Counsel for Aer Lingus 'Limited

Crowell and Moring LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

I

.-J

Re: Contlict of Laws Waiver Request

Concerning 14 CFR 382.25

Dear Ms. Halloway: .

This letter concerns the September 10, Z008, requcst of Aer Linglls Limited (Aer Lingus) for a

conflict of laws waiver under section 382.9 of the Department of Transportation's Air Carrier

Access Act (ACAA) regulation, 14 CFR Part 382. The provision of Part 382 for which relief is

requested concerns the advancc notice provisions in section 382.25. The Departmcnt has already

responded to Aer Lingus's request for a con11ict of laws waiver or an equivalent altemative

determination concerning the boarding, deplaning, and connecting assistancc requirements

contained in Subpart G (14 CFR 382.91-382.105), and the prohibition against refusing to provide

air transportation to a passenger with a disability on the basis of his or her disability in 14 CFR

382.19, and is continuing to review the carrier's requests-concerning various other provisions of

Part 382. For the reasons discussed below, we are denying Aer Lingus's request for a conflict of

laws waiver from section 382.25 on flights covered by section 382.7.

Request for Conflict of Laws Waiver

Aer Lingus asserts a conflict between section 382.25 of Part 382 and Articles 6. L 6.2 and 7 of

Regulation (EC) 1107/2006 (EU Regulation), and Statutory Instruments No. 299 of 2008 (Irish

Regulation). Section 382.25 prohibits a carrier from requiring a passenger with a disability to

provide advance notice of thc fact that he or she is traveling on a flight. Article 6.1 of the EU

Regulation requires that carriers take receipt of norifications of requests for assistance made by

passengers with disabilities, and Article 6.2 requires that once a notification is received at least

48 hours in advance of flight departure, the carrier must transmit the information to managing

bodies of airports and to the operating carrier. Article 7 requires the managing body of the

airport to provide certain assistance set .forth in the regulation for passengers who provide notice

of their particular assistance needs at least 48 hours in advance. Section 5 of the Irish Regulation
imposes a nne of up to 5.000 Euros if a carrier docs not provide the requisite notice in Article 6.2

of the EU Regulation. Aer Lingus states that according to the IOUand Irish regulations. it must

at1innatively seek advance noticc fhHI1passengers with disabilities who requirc assistance or risk

enforcement n'om its homeland authorities. Aer Lingus assel1s that this requirement eonflicts

with section 382.25 and. as a result. the carrier may not be able to comply with both section

382.25 and the applicable provisions in the EU and Irish regulations.

We do not agree with Aer Lingus that section 382.25 contlicts with Articles 6.1. 6.2. and 7 of the

EU Regulation. In the section on Conflict of Law Waivers and Equivalent Alternative

Determinations in the preamble to the linal rule (73 Fed. Reg. at 27(16)." and in the Seetion-bySection Analysis discussion of section 382.9 (73 Fed. Reg. at 27646-27647). we state that a

loreign Jaw that requires a foreign carrier to do somcthing prohibited by Part 382. or that

prohibits a I()reign carrier from doing something required by Patt 382. is an appropriate subject

for a eonlliet of laws waiver. The provisions of Articles 6.1 and 6.2 merely obligate carriers to

receive requests fbr disability assistance and to transmit requests n~cdved at least 48 hours

before departure of a passenger's night to the managing bodies of airports and the operating

carrier. Articles 7 and] 0 of the Ell Regulation actually obligate airpol1 operators and cmTiers to

provide certain assistance to passengers who have given notice of their assistance needs at least

48 hours in advance. However. Article 7.3 of the EU Regulation obliges the managing body of

the airport to make "all reasonable efforts" to provide assistance 10 passengers with disabilities in

the absence of any advance notice. Even though Article 10 of the EU Rt:gulation does permit

eatTiers to require 48 hours advance notice to transpol1 an clew'ic vJheelchair. lor example. in

accordanee with Annex III. Aer Lingus docs not cite nor are we aware of any provision in fhe

EU Regulation tlwt would require carriers to mandate that passengers with a disability provide

advance notiee that they arc traveling on a !light in order to receive assistance or prohibit catTiers

from providing assistance if advance notice is not provided. Furthermore. tlw EU Regulation

contains no prohibition on carriers supplementing the service provided by airport managing

bodies.: Thercl()re, the EU Regulation does not preclude AerLingus fj'01l1complying with

section 382.25 which generally prohibits carriers fi'01l1imposing such a requirement,

We also disagrc(~ with Acr Linguss assel1ion that Scction 5 of the Irish Regulation conflicts with

the advance notice provisions of section 382.25. The apparent intent or scetion 5 is to mandate

Ihat carriers comply with speci.lie directions Ii)!" corrective aetion hom Ireland's Commission of

Aviation Regulation f()i1(\wing the C(\ll1mission's determination that the carrier has tailed to

eomply with tht: requirements of the FU Regulatioll or be liahle on summary conviction to a tine

of up to 5.00() Euros. Under section 6 of the Irish Regulatioll. such directions are issued to a

carrier when the Commission makes a determination either in response to a specific complaint by

a person with a disability/reduced ll10bility or upon the Commission's own initiative when a

carrier lails to comply wilh a provision of the ElJ Regulation. In our view. Aer Lingus has not

Annex II liSIS the types or assistance air carriers are required to provide under Article 10. including

transpoJ1 of up to two pi~cesof mobility equipment per disabled person or person with reduced mobility. including

electric whccklmirs. subject to advance llotic~of4& hours and other t:onditivns.

To the c:\tent all individual tlirpon has regulations prohihiting carriers from supplementing Ihe service

provided by the airport managing body. ,Acr Lingl.ls should submit documentation o1'tl1(' prohibitions and pmpose an

alternative arrangement to ensure that it remains in compliance with Pan 382.

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demnnstrated thm the Irish Regulation contains any provision that conllicts with the specific

provisions of section 382.25. FU11hcnnore. thc provisio.ns of the EU Rcgulatio.n provide ample

flexibility for carriers to ensure that passengers with disabilities/reduced mobility receive the

disability assistance required under the IOU Regulation even if 48 hours advance notice is not

provided in every instanee. Aer Lingus hasno.t demonstrated that any provision of section

382.25 eon11icts with the intcnt o.f Regulatio.n (Ee) 1107/2006 or of section 5 of the Irish

Regulation. Therefore. having li.JUndno connict of laws. the Department must deny Aer

Lingus's request for a conflict of laws waiver Ii'olll section 382.15 Oil nights covered by section

381.7.

If you have any questions about this mailer. please contact Amna Arshad or Kathleen Blank.

Riether, of my stalT. at (202) 366.9179 or (202) 366.9353. respectively.

Sincerely.

~SamePOdbereSk ~ v

Assistant (Jeneral Cnunsel for .

Aviation [,nti.)rCemenland Proeeedings

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