## .... 

# .

# 0



# 0 U.S. Department of Transportation Office ofthe Secretary of Transportation GENERAL COUNSEL 

### April15, 2009 1200 New Jersey Avenue

. SE Washington, DC 20590



### Certified Maii-RetumReceiptRequested Mr. Sami Sarelius FinnairOYJ 228 East4STh Street •8Th floor New York, New York 10017



### Dear Mr. Sarelius: Re: Conflict of Law Waiver Request Concerning Provisions 

### in Subpart G of 14 CFR Part 382

This letterconcerns FinnairOYJ's (Finnair) 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.lOS) ofthe Department's AirCarrierAccess Act (ACAA) regulation. Finnair's requestfor a conflict oflaw waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still under review by

### the Department. Finnair asserts a conflictoflaw between sections 382.9S. 382

. 101, 382.103, and 382.10S of Part 382 and Articles 7.1, 

### 1.S, 1.6 , and 8.1 of EC 1107/2006. the European Union regulation on service to passengers with disabilities. The cited provisions ofEC 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 382.9S, 382.101. 382

.103, and 382.10S, carriers

. not airport operators, are responsible for providing orensuring boarding. deplaning. and connecting assistance. Finnair maintains that under EU 1107, air carriers have no contractual relationship with the managing body of the airport and, thus, no way of ensuring compliance on the part ofthe airport operator
. We note that Part 382 does not prohibit Finnair 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, however, section 382.10S ofourrule requires Finnair to provide supplemental services to ensure that these requirements are met. 1 

### In other words, toensure compliance with Part

1 Thepreamble to 14 CFR Part 382 provi des further clarification ofthe Department's intent

# 0

0

) 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 orsupplemental services to the carrier's passengers at that airport. Moreover, we are not aware of any provision in EC 1107 that bars a carrierfrom directly supplementing services. In

### the Section-by-SectionAnalysis ofthe conflict oflaws provisioninthepreamble 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 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 of Part 382, a carrier would necessarily have to make an airport-by-airport showing that it was precluded from providing supplementary services. Finnair 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 oflaw, the Department must deny Finnair's conflict oflaw waiver request for sections 382.95,382.101,382.103, and 382.105

.

[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 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 itselforhiring a contractor to do so. Ifthe carrier caMot legally do so (e.g., the airline is legally prohibited frorri supplementing the airport's services to passengers with disabilities). the carrier could seek a conflict of laws waiver. U

.S

. Department of Transportation, Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 27614, 27619 (May 13, 2008).

# . J 

# )



# 0

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

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

cc: Anita M. Mosner SophyChen Sincerely,



# .--**~~2 ~Assistant**  General Counsel for AviationEnforcement and Proceedings