U.S. Department ofTransportation Office of the Secretary ofTransportation GENERAL COUNSEL 1200NewJersey Avenue. SE Washington, DC 20590



### Certified Mail- Return Receipt Requested

Lester M. Bridgeman Attorney for Monarch Airlines, Ltd. Alford, Clausen 

### & McDonald, LLC One St. Louis Center, Suite 5000 Mobile, Alabama 36602

Dear Mr. Bridgeman: Re: Conflict ofLaw Waiver Request Concerning Provisions in Subpart G of 14 CFR Part 382

This letter concerns Monarch Airlines Limited's (Monarch) 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 Canier Access Act (ACAA) regulation. Monarch's request for a conflict oflaw waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still under review bythe Department.

Monarch asserts a conflict of law between section 382.101, 382.103, and 382.105 ofPart 382 and Articles 7.1, 7.5, 7.6, and. 8.1 ofEC 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 382.101, 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 Monarch 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 382.105 ofour rulerequires Monarch to provide supplemental services to ensure that these requirements are met. 1 

### In other words, to ensure compliance with Part 382, the service must be supplemented

The preamble to 14 CFR Part 382 provides further clarification 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 accessibilityPage2

when necessary to the extent required bythe rule (e.g., a carrieris bound to provide orensure prompt enplaning and deplaning assistance, includingto a passenger who doesnot provide advance notice andrequests assistance to make a connection to another flight). Article 

### 9.4 of 

### EC 1107 explicitlypermits agreements between carriers and airport operators in which the airport operatorwill provide a higher standard ofservice or supplemental services to the carrier's passengers at that airport. Moreover, we are not aware ofanyprovision in 

### EC 1107thatbars a carrier from directly supplementing services.

In the Section-by-Section Analysis oftheconflict oflawsprovision inthepreamble to the final rule (73 Fed. Reg. 

### at 27646), and in section 382.9, we stated that a foreign law that requires a foreign carrierto do somethingprohibited bythis rule, orthat prohibits a foreign carrier from doing somethingrequired bythis rule, is an appropriate subjectfor a conflict oflaws waiver. This is not the case with respect to the cited provisions ofEC 

### 1107 and the requirements of sections 382.101,382.103, and 382.105. Therelevant provisions ofboth Part 382 and EC 1107 complement one another and allow for ampleflexibility to achieve simultaneous compliance with therequirements ofboth regulations. Absent a showing ofa generally applicable legal bar in EC 

### 1107 to providing supplementaryservices as needed to meetthe requirements in Subpart G ofPart**382~** a carrierwould necessarilyhaveto make an airport-by-airport showing that it was precluded from providing supplementaryservices. Monarch does notprovide anyinformation demonstrating that 

### it is precluded from providing supplementary services

### at anyparticularairport

orairports from which 

### it conducts operations covered by Part 382. Therefore, having found no conflict oflawt the Departmentmust deny Monarch's conflict

### oflaw waiverrequest for sections 382.101, 382.103, and 382.105.

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 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 coru1ecting 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 caru1ot legally do so (e.g., the airline is legally prohibited from supplementing the airport's services to passengers with disabilities), the carrier could seeka conflict oflawswaiver. U.S. DepartmentofTransportation, Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 27614, 27619 (May 13, 2008).

### Page3

Ifyou have any questions about this matter, please contact Blane Workie, ofmy staff, orme at 

### (202) 366-9342. You may also reach us byfax at 

### (202) 36()..7152.

cc: William Barton GeoffAtkinson Sincerely,

# s;z~ Samuel Podberesky Assistant General Counsel for

Aviation Enforcement and Proceedings