# I i U.S.Departmentof Transportation OffiCe

### ottheSecretary o11loosport01ien GENERAlCOUNSEL



### AprillS,2009 1200 NewJersey Avenue, SE Woshinglon, DC 20590

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### Certified Mail- Return Receipt Requested**~** !"··

..) Evelyn D. Sahrand Jennifer 

### L. Andrews Counsel for Olympic Airlines SA Eckert SeamansCherin & Mellott, LLC 

### 1747 PennsylvaniaAvenue, 

### N.W. Suite 1200 Washington, D.C. 20006



### DearMs. Sahrand Ms. Andrews: Re: ConflictofLawWaiverRequest ConcerningProvisions in SubpartG of14 CFR Part382

This letterconcerns Olympic Airlines SA's {Olympic) September 10, 2008,request for a conflict of law waiver 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. Olympic's request for a conflict of law waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still under reviewbytheDepartment.
Olympic asserts a conflict of law between sections 382.91, 382.95, 382.101, 382.103, and, 382.105 and Articles 7.1, 7.5, 7.6 and 8.1, as well as Annex I & II of EC 1107/2006, the European Unionregulation on serviceto passengers withdisabilities. Thecited provisions ofEC 1107 require the airport managingbody {airport operator) to provide assistance to a person with reduced mobility (PRM) in boarding and deplaning a flight, 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 forprovidingorensuring boarding, deplaning, andconnecting assistance.

We note that Part 382 does not prohibit Olympic from relying on the relevant services provided by an airport operator, so long as those services meet the requirements in SubpartG ofPart 382. When those services do not meet the requirements ofSubpart G, however, section 382.105 ofour rule requires Olympic to providesupplemental servicesto ensurethat these requirements are

### met. 1 

### In other words, to ensure compliance with Part 382, the service must be supplemented when necessary to the extent required by the 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 ofEC I 107 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 in EC 1107 that bars a carrierfrom directly supplementing services.

In the Section-by-Section Analysis ofthe conflict oflaws provision in the preamble to the final rule (73 Fed. Reg. at 27646), and at 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 carrier from doing something required by this rule, is an appropriate subject for a conflict oflaws waiver. This is not the case with respect to the cited provisions of EC 1107 and the requirements of sections 382.91, 382.95, 382.101, 382.103, and 382.105. The relevant provisions ofboth Part 382 and EC 1107 complement one another and allow for ample flexibility to achieve simultaneous compliance with the requirements ofboth regulations. Absent a showing of a generally applicable legal bar inEC 1107 to providing supplementary services as needed to meet the requirements in Subpart G ofPart 382, a carrier would necessarily have to make an airportby-airport showing that 

### it was precluded from providing supplementary services. Olympic 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 by Part 382. Therefore, having found no conflict oflaw, the Department must deny Olympic's conflict oflaw waiverrequest for sections 382.91, 382.95, 382.101, 382.103, and 382.105.

1 Thepreamble to 14 CFRPart382 provides further clarification ofthe Department's intent: (T]he final rule should not be understood to require carriers to duplicate the acconunodations made byairport 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 service between 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 supplemental services itselfor hiring a contractor to do so. Ifthe carrier cannot legally do so (e.g., the airline is legally prohibited from supplementing the airport's services to passengers with disabilities), the carrier could seek a conflict oflaws waiver. U.S. DepartmentofTransportation, Nondiscrimination on the Basis ofDisability in AirTravel, 73 Fed. Reg. 27614,27619 (May 13, 2008).Ifyou have any questions about this matter, please contact Blane Workie, ofmy staff, or me at (202) 366-9342. Youmay also reach us byfax at (202) 366-7152.
Sincerely.

# ~~~ Assistant General Counsel for

AviationEnforcementand Proceedings