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u.s. Department of Transportation Office of the Secretary of Transportation GENERAL COUNSEL August 8. 2013

Certified Mail Return Receipt Requested 1200 New Jersey Avenue, Sf: Washington, DC 20590

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Mr.Andreas Lobert Manager, Regulatory Affairs British Midland Airways Limited Donington Hall Castle Donington, Derby East Midlands DE74 2SB United Kingdcm Ul

Re: Conflict 

### (.1'Laws Waiver Request

Conccrniag 14CFR 382.25

Dear Mr. Lobert:
This letter concerns the September 10,2008, request ofBritish Midland Airways Limitcd (8MI) for a conflict of laws waivcr under section 382.9 of thc Departmcnt of Transportation's Air Carrier Acccss Act (ACAA) regulation. 14CFR Part 382. The provision ofPart 382 for which relief isrequestcd concerns theadvance noticc provisions insection 382.25. The Department has already responded to BMl's request for a conflict of laws waiver or an equivalent alternative determination concerning the boarding, deplaning, and connecting assistance rcquirements contained in Subpart G (14 CFR 382.91-382.105), and the training and complaint resolution provisions contained in Subpart J (14.CFR 382.141, 151. 153 and 155), and is continuing to review the carrier's requests concerning various other provisions of Part 382. For the reasons discussed below, we are denying 8MI's request toraconflict oflaws waiver from section 382.25
on flights covered by section 382.7.

. Request for Conflict ofLaws Waiver
8M! asserts acontlict between section 382.25 ofPart 382 andArticles 6.1 and 6.2 ofRegulation (ECl 1107/2006 (EU Regulation). Section 382.25 prohibits a carrier from requiring a passenger with a disability to provide advance notice of the fact that he or she is traveling on a flight. Article 6.1 (lfthe EURegulation requires that carriers take reccipt ofnotitications ofrequests for assistance made bypassengers with disabilities andArticle 6.2 requires that once anotification is received atleast 48 hours inadvance offlight departure, thecarrier must transmit the infornlation to managing bodies ofairports and tothe operating carrier. 

### BMIasserts that the Ell Regulation conflicts with section 382.25 and, as a result, the carrier may not be able to comply with both section 382.25 and applicable provisions intheEU regulations.We do not agree with BMI that section 382.25 conflicts with Articles 6.1 and 6.2 of the Ell

Regulation. In the section on Conflict of Law Waivcrs and Equivalent Alternative Determinations in the preamble to the final rule (73 Fed. Reg. at27616). and in the Scetion-bySection Analysis discussion of section 382.<)(73 Fed. Reg. at 27646-27(47). we state that a foreign law that requires a forcign carrier to do something prohibited by Part 382. or that prohihits a !()reign carrier from doing something required by Part 382, is ,mappropriate subject /()ra eonniet of laws waiver. 'rhe provisions of Articles 

### 6.1 and 6.2 merely obligate carriers to receive requests for disahility assistance and to transmit requests received at least 48 hours before departme of a passenger's Ilight to the managing bodies of airports and the operating carrier. Articles 7 and 10ofthe EURegulation actually obligate airport operators and carriers to provide certain assistance topassengers who have given notice oftheir assistance needs at least 48 homs in advance. However. Article 7

.. '"oftbe EU Regulation obliges the managing body of theairport tomake "all reasonable efJ(Jrls"toprovide assistance to passengers with disahi lilies in the abscnce of any advance notice. Even though Article 10 ofthe EU Regulation docs pennit carriers to require 48 hours advance no/icc to transport an electric wheelchair. J()rexample. in accordance with Annex Ill. BMI docs not cite nor are we aware of any provision in the EI.J Regulation that would require carriers to mandate that passengers with a disability provide advancc notice that they aretraveling on aIlightinorder toreceive assistance 01' prohibit carriers from providing services if advance notice is not providcd. Furthermore. the Ell Regulation contains no pr6hibilion on carriers sppplemcnting the service provided by airport managing bodies.c Therefore. the EU Regulation docs not preclude BMI !i'om complying with section 382.25 which generally prohibits carriers from imposing such arequirement. Inour view. sincc BMI can comply both section 382.25 and with the EU regulations cited above. there is no conflict oflaws.

BMI has nor demonstrated that any proVISionof section 382.25 conmets with the intent of Regulation (Ee) II07i2006. Therefore. having ftllll1dno eoniliet of laws. the Department must deny BMl"s request for a conflict of laws waiver !i'om section 382.25 on llights covered by section 382.7.

Anne;..; II lists thl.:' types of assistancetlir cmriers arc required to provide under Article 10. including transpor! of upto two pieces of mobility equipment perdisabled personor person with reduced mobility. including elct:tric whcelchuirs. 5ubjc{.'ttomivanl.:c noticeof4X hoursandotherconditiofls.

To till;: ~.\:tcntan individual uirport has regulations prohibiting carriers frolll supplementing the service provided by the airpon 'managing hody. f3Ml should submit documentation of the prohihitions and propOS{;' all alternative arrangement toensurethm it remains in compliance with Purl 382.



### 2Ifyou have any queslions about this malter. please contact Amna Arshad or Kathleen BlankRicther. ofmy stafC at(202) 366-9179 or(202) 366-9353. respectively. Sincerely.

~ .Samuel Podbereskv 

# 7.~ Assistant General Counsel for AviatillnEnforcement and Proceedings

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