Eckert Seamans Chenn

..& Mellott. LLC 1747 Pennsylvanta Avenue. NW · · Su1te1200 · ·· ._. Wash1ngton, D.C. 20006

--:..• 

### November 17, 2009 VIA FEDERAL EXPRESS U.S. Department ofTransportation Office ofthe Secretary ofTransportation 1200 New Jersey Avenue, SE Washington, DC 20590 Attention: Robert Ashby rEL 202 659 6600

- ·. EAX 202 659 6699**Ev~lyn** D. Sahr
·. Direct dial: 202.659.6622

Email: eshar@eckertseamans.com
'**~** " ; "

.**"··~**

c::::;, 

### ,., ---j ·.,.1

l

......,

.. I**~- c~-i** 

:·..

j**(~)**

_ ..::_


### Re: AirPacific Limited Request for Conflict ofLaw Waiver Determination DearMr. Ashby, On behalfofAirPacific Limited ("Air Pacific"), we are writing in response to the Department's October 20, 2009 letter (see Exhibit 1)regarding Air Pacific's September 11, 2008 request for a conflict oflaw waiver under section 382.9 ofthe Department's Air Carrier Access Act regulation, 14 CFR Part 382. (See Exhibit 2.) Pursuant to a telephone conference with Kathleen Blank Reither, Senior Attorney, an extension oftime until November 20, 2009 to provide the documents requested in the Department's October 20, 2009 was granted. (See Exhibit 3.) Accordingly, this response is timely filed. The Department's October 20, 2009 letter requested a copy ofthe Civil Aviation Authority of Fiji Islands ("CAAFI") regulations which conflict with 14 CFR Part 382 as well a copies ofthe sections ofAirPacific's Airport Handling Manual and Air Operator's Certificate implementing the conflicting CAAFI regulations. The sections ofAir Pacific's Airport Handling Manual implementing the conflicting CAAFI regulations were previously submitted with the September 11, 2008 request for conflict oflaw waiver. (See Exhibit 2.) While paragraph B19 ofAir Pacific's Air Operator's Certificate was previously submitted with the September 11, 2008 request for conflict oflaw waiver, paragraphs A4 and A5 ofthe Air Operator's Certificate, which are discussed below, were not previously submitted. (Paragraphs A4 and A5 are attached hereto as Exhibit 4.) Regulation 34 ofthe CAAFI regulations is attached hereto for the. first time. (See Exhibit 5 attached.) Regulation 34 specifically states that upon issuance ofthe Air Operator's Certificate ofCompetency, "the certificate may be granted subject to such conditions as the Authority [CAAFI] thinks fit.

..." (See Regulation 34(2) at Exhibit 5.) Furthermore, "the operator shall comply with Air Operator's Certificate ofCompetency standards notified by the Authority [CAAFI]

...." (See Regulation 34(5) at Exhibit 5, emphasis added.) Therefore, Air Pacific is required by law to comply with the conditions contained in its Air Operator's Certificate of Competency.

\if;\) rj 1r·j r, r u "J. o c r 1 r r sou ,1**,-~d.** ,., •\ H ,\ H R 1 ')**;~** 1; ii. (i. ;) .1 :"'· r-1 I 1. \or:_ 1 P'. r 1 .•.**~·** \ ; ,J s r 0 "I.**~-~** ,\ :J 1 1 ..•.

,., 1n .:; r u**~~** 0 E**"·li)R··-~::..:1 r()'N:~.**  \f·JIJ ';()I) i llPr)J;J: C r...,·\ tV I! I j l PI :11iJS. 'J (

### AirPacificLimited November 17, 2009

Paragraph B19 ofAir Pacific's Air Operator's Certificate ofCompetency specifically discusses the procedures Air Pacific must follow in transporting service animal in the aircraft cabin. (See Exhibit 2.) AirPacific is required by law to comply with these procedures. Subparagraph 1 of Paragraph B19 ofthe Air Operator's Certificate ofCompetency states, "[t]he animal mustbe carried in accordance with the documented company procedures." (See Exhibit 2,'emphasis added.) Thus, theprovisions ofAir Pacific's Airport Handling Manual regarding the transportation ofservice animals must be followed as a matter oflaw. Any deviation from the procedures and requirements in the Airport Handling Manual would constitute a legal breach of Air Pacific's Air Operator's Certificate. Air Pacific's Air Operator's Certificate also requires that Air Pacific "shall furnish the Controller Air Safety ofthe Civil Aviation Authority ofthe Fiji Islands a copy ofevery operations manual, training manual and ofall other written instructions to his operating staff, for the timebeing in effect concerning the operation ofthe aircraft under this certification." (See Exhibit 5; paragraph A4.) Furthermore,"[e]very flight underthis certificate shall be conducted in accordance with the relevant provisions ofthe aforesaid operations manual, training manual, and instructions." (See Exhibit 5; paragraph A5.) Accordingly, AirPacific must follow its Airport Handling Manual, including the provisions in Section 1 0.2.6 regarding seatingfor passengers with disabilities, Section 10.2.2.3 regarding advance notice from passengers with disabilities, and Section 1 0.2.2.5 regarding indemnity clearance for passengers with disabilities. Theseprovisions were discussed in detail in Air Pacific's September 11, 2008 request for a conflict oflaw waiver. (See Exhibit 2.) In conclusion, the CAAFI regulations legally require Air Pacific to comply with the conditions ofits Air Operators Certificate and its Airport Handling Manual. Non-compliance will result in Air Pacific's Air Operators Certificate being suspended or revoked. Accordingly, Air Pacific appreciates your careful consideration ofits September 11, 2008 conflict oflaws waiver request. Should you have any further questions regarding Air Pacific's operations, please do not hesitate to contact us.

Enclosures Respectfully submitted,

# ~~Z./.fMc~ Evelyn D. Sahr Jennifer L. Andrews Counsel for Air Pacific Limited