U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

Apri115, 2009 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

•.. , .. \ 

",I 

Registered Mail- Return Receipt Requested :._} ··;· ·- ,· 

Eddie Redfern 

Head of Regulatory Affairs (Aviation) 

TUI Travel PLC 

TUI Travel House 

Crawley Business Quarter 

Fleming Way 

Crawley 

West Sussex RHlO 9QL 

United Kingdom 

Dear Mr. Redfern: 

Re: Conflict of Law Waiver and Equivalent 

Alternative Determination Request Concerning 

Provisions in Subpart G of 14 CFR Part 382 

This letter concerns TUI Travel PLC's (TUI Travel) September 10, 2008, request for a conflict 

of law 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 of law waiver and equivalent alternative determination concerning 

various other provisions of 14 CFR Part 382 (Part 382) is still under review by the Department. 

TUI Travel asserts a conflict oflaw between sections 382.95, 382.101, 382.103, and 382.105 and 

Articles 7.1, 7.5, 7.6 and 8.1 of EC1107/2006, the European Union regulation on service to 

passengers with disabilities. The cited provisions of EC 1107 require the airport managing body 

(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 382.95,382.101,382.103 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 of Subpart G, however, section 

382.105 of our rule requires TUI Travel to provide supplemental services to ensure that these 
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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 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 of any provision in EC 1107 

that bars a carrier from directly supplementing services. · 

In the Section-by-Section Analysis of the conflict of laws 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 of laws waiver. 

This is not the case with respect to the cited provisions of EC 1107 and the requirements of 

sections 382.95, 382.101, 382.103, and 382.105. The relevant provisions of both Part 382 and 

EC 11 07 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 of Part 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 oflaw waiver request for sections 382.95, 382.101, 382.103, and 382.105. 

TUI Travel also asserts that the Department should recognize that compliance with 

EC 1107/2006, particularly the provision for airlines to give airport managers advance notice that 

a passenger with a disability will need assistance, "should provide an alternative means of 

compliance that meets or exceeds that available under the U.S. rule." 

1 The preamble to 14 CFR Part 382 provides further clarification of the 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 of this Part. What happens, though, if the 

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 

itself or hiring a contractor to do so. If the 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. Department of Transportation, Nondiscrimination on the 

Basis of Disability in Air Travel, 73 Fed. Reg. 27614, 27619 (May 13, 2008). 
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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 of equivalency. The Department's ACAA 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. 

If you have any questions about this matter, please contact Blane Workie, of my staff, or me at 

(202) 366-9342. You may also reach us by fax at (202) 366-7152. 

Sincerely, 

'~~ Assistant General Counsel for 

Aviation Enforcement and Proceedings