U.S. Department of Transportation Office ofthe Secretary ofTransportation GENERAL COUNSEL DECEMBER 3. 2010 1200 NewJersey Avenue, SE Washington, DC 20590



### CertifiedMail-ReturnReceiptRequested

Ms. Susan Gotbetter CounselforAirNewZealand Fulbright & Jaworski L.L.P. 666Fifth Avenue, 31 slFloor New York, New York 10103

DearMs. Gotbetter: Re: Equivalent Alternative Determination RequestConcerning 14 CFR382.61

This letterconcerns Air New Zealand Limited's (AirNew Zealand) March 4, 2010, request for an equivalent alternative determination concerning the movable aisle armrest requirement contained in 14 CFR 382.61 of the Department's Air Carrier Access Act (ACAA) regulation for thepremiumeconomy andbusiness premier seats in its Boeing777- 300 and 777-200 aircraft. We are granting Air New Zealand's equivalent alternative determination request for the premium economy and business premier seats in its Boeing 777-300 and 777-200 aircraft subjectto the conditions discussedbelow.

Section 382.61(a) requires carriers to ensure that "aircraft with 30 ormore passenger seats'
on whichpassengeraisle seats have armrests are equipped with movable aisle armrests on at least one-halfofthe aisle seats in rows in which passengers with mobility impairments are permitted to sit under FAA or applicable foreign government safety rules." Section 382.61(c) notes that movable aisle armrests must be "provided proportionately in all classes of service in the cabin.,,2 Furthermore, the Enforcement Office has interpreted movable aisle armrest as meaning an armrest on an aisle seat that completely moves or folds out of the way while the seatback remains in an upright position to permit a passenger with a mobility impairment to safely make an unobstructed transfer (with assistance from carrier

I The Department's Office ofAviation Enforcement and Proceedings ("Enforcement Office") has long held that the passenger seatingcapacityofan aircraft is the manufacturer's maximum designed seatingcapacityofa given aircraft type. Therefore, a carrier may not avoid compliance with the aircraft accessibility requirement of Part 382 by reducing the number of seats on an aircraft or ordering an aircraft with fewer seats than its designed seating capacity. For example, ifa manufacturer designs an aircraft type to hold a maximum of 110 passenger seats, theEnforcement Office would treat the aircraft as an aircraft with a passenger seating capacity of 110even ifa carrier stipulates that the aircraft is to be delivered with 99 seats or takes delivery ofan aircraft

. with 110 seats and then removes II seats.

2 For example, if 80 percent ofthe aisle seats in which passengers with mobility impairments may sit are in coach, and 20percent are in first class, then 80percentofthe movable aisle armrests must be incoach, with 20 percent in first class.personnel if the passenger's physical ability necessitates such assistance) from an aisle wheelchairto his orher aircraft seat.

TheDepartmenthas reviewedthe seat and aircraftdimensions providedbyAirNewZealand for both its Boeing 777-300 and 777-200 aircraft, as well as the videos submitted by Air New Zealand for the premium economy and business premier seats on its Boeing 777-300 and 777-200 aircraft, which demonstrateboth acarrier-assisted and a self-assistedhorizontal transfer ofaperson with a mobility impairment from an aisle orboarding wheelchair to Air New Zealand's seats. These videos show that the passenger does not have to be lifted over the aisle armrest. Based on the information provided for the premium economy and business premier seats in its Boeing 777-300 and 777-200 aircraft, the Department is granting Air New Zealand's equivalent alternative determination request for section 382.61 withthe following conditions:

(1) This approval is limitedtoAirNew Zealand's Boeing777-300 and 777-200aircraft;
(2) This approval is limited to Air New Zealand's premium economy and business premier seats in its Boeing 777-300 and 777-200 aircraft with the configuration and dimensions provided in its March 4, 2010, equivalent alternative determination request. Air New Zealand must obtain the Department's prior approval for any seat configuration changes and/or seat dimension changes to be made on any aircraft subject to this approval. IfAir New Zealand implements seat configuration and/or seat dimension changes without prior approval ofthe Department, it risks being in violation ofsection 382.61;
(3) Air New Zealand mustprovide, or ensure the provision of, specialized training to its employees and contractors, as well as the employees and contractors of any other entity that will be transferring persons with a mobility impairment to and from the premium economy and business premier seats in its Boeing 777-300 and 777-200 aircraft before the aircraft enters service for Air New Zealand or, ifthe aircraft has already entered servicefor AirNew Zealand, within 30 days ofthe date ofthis letter, whichever occurs later. The specialized training must ensure training to proficiency in how to properly transfer a passenger to and from Air New Zealand's premium economy and business premier seats. Such training must also cover, at a minimum: (A) the proper use of all items needed to transfer a passenger to and from the premium economy and business premier seats (e.g., transfer board); (B) the number ofpersons needed to perform the transfer; (C) how to properly operate the premium economy and business premier seats (e.g., location and use ofcontrol buttons); and (D) how to transfer a passenger to and from the premium economy and business premier seats in asafe anddignified manner; and
(4) Air New Zealand must also: (A) provide, or ensure the prOVISIOn of, annual refresher training for employees and contractors who will be assisting passengers with mobility impairments with transfers to and from the premium economy and business premier seats in its Boeing 777-300 and 777-200 aircraft; (B) retain for three years individuals' training records demonstrating that all persons required to

2receive initial and refresher training have done so; and (C) within'30 days after each calendar quarter, for a period of three years, provide the Enforcement Office with copies of all complaints, if any, regarding passenger transfers to and from its premium economy and business premier seats in the covered aircraft. The first calendar quarter report which should cover complaints received from the date ofthis letterto March 31, 2011, will bedueonApril 30, 2011.

Ifyou have any questions about this matter, please contactJames Fisher, ofmy staff, or me at (202) 366-9342. You may alsoreach us byFAXat (202) 366-7152.
Sincerely,



# -**~y**

AssistantGeneral Counsel for

AviationEnforcement andProceedings

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