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 ofLaws Waiver Request

Concerning 14CFR 382.25

Dear Ms. Halloway:

.
This letter concerns the September 10, Z008, requcst ofAer Linglls Limited (Aer Lingus) for a conflict of laws waiver under section 382.9 ofthe Department of Transportation's Air Carrier Access Act (ACAA) regulation, 14CFR Part 382. The provision of Part 382 for which relief is requested concerns the advancc notice provisions insection 382.25. The Departmcnt has already responded to Aer Lingus's request for a con11ictof 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), andtheprohibition against refusing to provide air transportation to apassenger with adisability on the basis ofhis or her disability in 14CFR 382.19, and is continuing to review the carrier's requests-concerning various other provisions of Part 382. For the reasons discussed below, wearedenying Aer Lingus's request for aconflict of laws waiver from section 382.25 on flights covered bysection 382.7.

Request for Conflict ofLaws Waiver

Aer Lingus asserts aconflict 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 ofthc fact that he or she is traveling on a flight. Article 6.1 ofthe EU Regulation requires that carriers take receipt ofnorifications ofrequests 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.forthintheregulation forpassengers who provide notice oftheir particular assistance needs atleast48 hours in advance. Section 5 ofthe Irish Regulationimposes anne ofup to5.000 Euros ifacarrier 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 orrisk 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 inthe EUand Irish regulations.

We do not agree with Aer Lingus that section 382.25 contlicts with Articles 6.1. 6.2. and 7ofthe 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 ofArticles 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 7and] 0ofthe Ell Regulation actually obligate airpol1 operators and cmTiers to provide certain assistance to passengers who have given notice oftheir assistance needs at least 48 hours in advance. However. Article 7.3 ofthe EU Regulation obliges the managing body of the airport tomake "all reasonable efforts" toprovide assistance 10passengers with disabilities in the absence of any advance notice. Even though Article 10 ofthe 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 ona !light inorder toreceive 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'01l1 imposing such arequirement,

We also disagrc(~with Acr Linguss assel1ionthat Scction 5ofthe 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(\wingthe C(\ll1mission's determination that the carrier has tailed to eomply with tht: requirements ofthe FU Regulatioll or beliahle on summary conviction to atine of up to 5.00() Euros. Under section 6 ofthe Irish Regulatioll. such directions are issued to a carrier when the Commission makes adetermination either inresponse toaspecific complaint by

a person with a disability/reduced ll10bility or upon the Commission's own initiative when a carrier lails to comply wilh aprovision ofthe ElJ Regulation. Inour view. Aer Lingus has not

Annex II liSIS the types or assistanceair carriers are required to provide under Article 10. including transpoJ1of upto two pi~cesof mobility equipment perdisabled personor person with reduced mobility. including electric whccklmirs. subject toadvance llotic~of4& hoursand othert:onditivns.

To the c:\tent all individual tlirpon hasregulations prohihiting carriers from supplementing Ihe service provided bytheairport managing body. ,AcrLingl.lsshould submit documentation o1'tl1(' prohibitions and pmpose an alternative arrangement toensurethatit remains incompliance with Pan 382.



### 2demnnstrated thm the Irish Regulation contains any provision that conllicts with the specific

provisions of section 382.25. FU11hcnnore.thc provisio.ns ofthe 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 if48 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.fRegulatio.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 aconflict of laws waiver Ii'olllsection 382.15 Oilnights covered by section 381.7.

Ifyou 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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