# 0

U.S. Depariment ofTransportation
Office ofthe Secretary ofTransportation GENERAL COUNSEL April IS,2009 1200New JerseyAvenue, SE Washington, DC 20590



### CertifiedMail-Return Receipt Requested

Mr. Lawrence Mullins, Esq. Counsel for Deutsche Lufthansa 

### AG 

### 1640 HempsteadTurnpike 

### East Meadow, N.Y. 11554

DearMr. Mullins: Re: \,.... )



## . 

# . " :**)\~~:~** Conflact of Law Wa!Ver**!8-equ~.t:,.-** Conceming Provisions 

### in ;$,1,1bpart; G of 14CFR Part 382

This letter concerns Deutsche Lufthansa AG's (Lufthansa) September 10, 2008, request for a conflict of law waiver determination concerning the boarding, deplaning, and connecting assistance requirements contained in Subpart G of 14 CFR Part 382 (14 CFR 382.91

- 14 CFR 382.105) of the Department's Air Carrier Access Act (ACAA) regulation. Lufthansa's request for a conflict of law waiver and equivalent alternative detennination concerning various other provisions of 14 CFR Part 382 (Part 382) is still underreview bythe Department.

Lufthansa asserts a conflict oflaw between sections 382.91, 382.95, 382.101, 382.103, 

### and 382.105 ofPart 382 and Articles 7. 8, Annex l, 

### and Annex II ofEC 1107/2006, the European Union**regul~tion** on service to passengers with disabilities. The cited provisions ofEC 1107 require the airport managing body (airport operator) to provide assistance to a person withreduced mobility (PRM) inboarding and deplaning aflight, as well as transiting the airport. Under sections 382.91, 382.95, 382.101, 382.103, and 382.105, carriers, not airport operators, are responsible for providing or ensuring boarding, deplaning, and connecting assistance. Lufthansa maintains that Annex II ofEC 1107 does not pennit 

### air carriers to provide or supplement the boarding, deplaning, and connecting assistance that airport operators are required to provide. Also, Lufthansa
asserts 

### that the services airport operators must provide under Annex I are exhaustive and that the Department should recognize that compliance with the requirements set forth in Annex I by airport operators constitutes substantial compliance by Lufthansa with sections 382.91, 382.95, 382.101,382.103, and 382.105.

We note that Part 382 does not prohibit Lufthansa from relying on the relevant services provided by an airport operator, so long as those services meet the requirements in Subpart G ofPart 382. When those services do not meet 

### the requirements ofSubpart G,I l· however, section 382.105 ofourrule requires Lufthansatoprovide supplemental services
to ensure that these requirements are met. 1 

### In other words, to ensure compliance with Part 382, the service must be supplemented when necessary to the extent requiredbythe rule (e.g.. a carrier is bound to provide or ensure prompt enplaning and deplaning assistance, including to a passenger who does not provide advance notice and requests assistance to make a connection to another flight). Article 9.4 of EC 1107 explicitly permits agreements between carriers and airport operators in which the airport operator 

### will provide a higher standard of service or supplemental services to the carrier's passengers at that airport. Moreover, we are not aware ofany provision inEC 1107 that bars acarrierfrom directly supplementing services.

In the Section-by-SectionAnalysis ofthe conflictoflaws provision inthe preamble tothe final rule (73 Fed. Reg. at 27646), and in section 382.9, we stated that a foreign law that requires a foreign carrier to do something prohibited by this rule. or that prohibits a foreign carrierfrom doing something required bythis rule. is an appropriate subject for a conflict oflaws waiver. This is not the case with respect to the cited provisions ofEC 1107 and the requirements of sections 382.91, 382.95, 382.101, 382.103, and 382.105. Therelevantprovisions ofbothPart382and EC 1107complementone anotherand allow for ample flexibility to achieve simultaneous compliance with the requirements ofboth regulations. · Absent a showing of a generally applicable legal bar in EC 1107 to providing supplementary services as needed to meet the requirements in Subpart G of Part 382, a carrier would necessarily have to make an airport-by-airport showing that it

was precluded from providing supplementary services. Lufthansa does not provide any information demonstrating that it is precluded from providing supplementary services at any particular airport or airports from which it conducts operations covered byPart 382. Therefore, having found no conflict of law. the Department must deny Lufthansa•s conflict of law waiver request for sections 382.91, 382.95, 382.101. 382.103, and 382.105.

1Thepreambleto 14CFRPart382providesfurtherclariftcationofthe Department's intent: [T]he final rule should not be understood to require carriers to duplicate the accommodations made by airport operators at foreign airports. Where foreign airport operators provide accessibility services or accessible facilities. foreign carriers may rely

on the airport operators' efforts, to the extent that those efforts fully meet the requirements ofthis Part. What happens, though. ifthe foreign airport operators' efforts do not fully provide the accessibility that this rule requires (e.g•• the airport operator is responsible for providing wheelchair assistance to passengers within the terminal, but does not provide connecting servicebetween gates for wheelchair users who are changing planes on flights covered by the rule)? In such a case. this rule requires air carriers to supplement the services provided by the airport operator, by providing the supplementaJ services itselfor hiring acontractor to do so. Ifthe carriercannot legally do so (e.g., tbe airline is legally prohibited from supplementing the airport's services to passengers with disabilities), the carrier could seek: a 1.:-onflict of laws waiver. U.S. Department of Transportation, Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 27614.27619(May 13,2008).

### Ifyou have any questions about this matter, please contact Mike Spollen, ofmy staff, or
me at(202) 366-9342. You may also reach us by

### FAX at (202) 366-7152.
Sincerely,

# ·~~ AssistantGeneral Counsel for

AviationEnforcementand Proceedings