U.S. Department ofTransportation
Office ofthe Secretary of Transportation GENERALCOUNSEL Apri115,2009 1200 New JerseyAvenue, SE Washington, DC 20590

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EddieRedfern HeadofRegulatory Affairs (Aviation) TUI Travel PLC TUI Travel House CrawleyBusiness Quarter FlemingWay Crawley West Sussex RHlO 9QL United Kingdom

DearMr. Redfern: Re: ConflictofLaw Waiver and Equivalent Alternative Determination Request Concerning Provisions in SubpartGof14 CFR Part382

This letter concerns TUI Travel PLC's (TUI Travel) September 10, 2008, request for a conflict oflaw waiver and equivalent alternative 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. TUI Travel's request for a conflict oflaw waiver and equivalent alternative determination concerning various otherprovisions of 14 CFRPart 382 (Part 382) is still underreview bythe Department.

TUITravel asserts aconflict oflawbetween sections 382.95, 382.101, 382.103, and 382.105 and Articles 7.1, 7.5, 7.6 and 8.1 ofEC1107/2006, the European Union regulation on service to passengers with disabilities. The cited provisions ofEC 1107 require the airport managingbody (airport operator) to provide assistance to aperson with reduced mobility (PRM) in boarding and deplaning a flight, as well as transitingthe airport. Under sections 382.95,382.101,382.103 and 382.105, carriers, not airport operators, are responsible for providing or ensuring boarding, deplaning, and connecting assistance.

We note that Part 382 does not prohibit TUI Travel from relying on the relevant services provided by an airport operator, so long as those services meet the requirements in Subpart G of Part 382. When those services do not meet the requirements ofSubpart G, however, section 382.105 ofourrule requires TUI Travel to provide supplemental services to ensurethat thesePage 2
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 provideorensureprompt enplaning and deplaning assistance, including to apassengerwho does not provide advance notice and requests assistance to make a connection to another flight). Article 9.4 ofEC 1107 explicitly permits agreements between carriers and airport operators in which the airport operator will provide a higher standard ofservice or supplemental services to the carrier's passengers at that airport. Moreover, we are not aware ofany provision in EC 1107 thatbars a carrierfrom directlysupplementingservices. ·

In the Section-by-Section Analysis ofthe conflict oflaws provision in the preamble to the 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 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 ofEC 1107 and the requirements of sections 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 of both 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 ofPart 382, a carrier would necessarily have to make an airport-byairport showing that it was precluded from providing supplementary services. TUI Travel 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 of law, the Department must deny TUI Travel's conflict oflawwaiverrequest for sections 382.95, 382.101, 382.103, and 382.105.

TUITravel also assertsthat theDepartment should recognize that compliance with EC 1107/2006, particularlytheprovision for airlines to give airportmanagers advance noticethat

a passenger with a disability will need assistance, "should provide an alternative means of compliancethatmeets orexceeds that availableunderthe U.S. rule."

1 Thepreamble to 14 CFR Part 382 provides furtherclarification ofthe 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 acc.essibility 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 tor 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 aconflictoflawswaiver. U.S. Department ofTransportation, Nondiscriminationon the Basis ofDisability in AirTravel, 73 Fed. Reg. 27614, 27619 (May 13, 2008).Page 3

However, the fact that a foreign regulation addresses the same general subject as Part 382 does not mean the foreign regulation is an equivalent alternative and in this case TUI Travel has provided no evidence ofequivalency. TheDepartment'sACAA regulation also explains that the Department will not entertain an equivalent alternative request relating to an entire regulatory scheme. See 73 Fed. Reg. at 27617. Therefore, TUI Travel's request for an equivalent alternative determination from sections 382.95, 382.101, 382.103, and 382.105 must also be denied.

Ifyou have any questions about this matter, please contact Blane Workie, ofmy staff, orme at (202) 366-9342. Youmay also reach us byfax at (202) 366-7152.
Sincerely,

# '~~ Assistant General Counsel for

Aviation Enforcement and Proceedings