o

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

c •.

.;;.::,"

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 14 CFR 382.25

Dear Mr. Lobert:

This letter concerns the September 10, 2008, request of British 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. 14 CFR Part 382. The provision of Part 382 for which

relief is requestcd concerns the advance noticc provisions in section 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 tor a conflict oflaws waiver from section 382.25

on flights covered by section 382.7. .

Request for Conflict of Laws Waiver

8M! asserts a contlict between section 382.25 of Part 382 and Articles 6.1 and 6.2 of Regulation

(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 EU Regulation requires that carriers take reccipt ofnotitications 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 infornlation

to managing bodies of airports and to the operating carrier. BMI asserts 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 in the EU 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. at 27616). 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 ,m appropriate subject

/()r a 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 10 of the EU Regulation actually obligate airport operators and carriers to

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

48 homs in advance. However. Article 7..'" oftbe EU Regulation obliges the managing body of

the airport to make "all reasonable efJ(Jrls" to provide assistance to passengers with disahi lilies in

the abscnce of any advance notice. Even though Article 10 of the EU Regulation docs pennit

carriers to require 48 hours advance no/icc to transport an electric wheelchair. J()r example. 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 are traveling on a Ilight in order to receive 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 a requirement. In our view. sincc

BMI can comply both section 382.25 and with the EU regulations cited above. there is no

conflict of laws.

BMI has nor demonstrated that any proVISion of section 382.25 conmets with the intent of

Regulation (Ee) II 07i2006. 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 assistance tlir cmriers arc required to provide under Article 10. including

transpor! of up to two pieces of mobility equipment per disabled person or person with reduced mobility. including

elct:tric whcelchuirs. 5ubjc{.'tto mivanl.:c notice of4X hours and other conditiofls.

To till;: ~.\:tcnt an 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 to ensure thm it remains in compliance with Purl 382.

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If you have any queslions about this malter. please contact Amna Arshad or Kathleen BlankRicther. of my stafC at (202) 366-9179 or (202) 366-9353. respectively.

Sincerely.

~ .Samuel Podbereskv

7.~Assistant General Counsel for

Aviatilln Enforcement and Proceedings

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