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) u.s. Department of Transportation Office of the Secretary of Transportation GENERAL COUNSEL 

### April15,2009 1200 NewJerseyAvenue, SE Washing ton, DC 20590 CertifiedMaii·RetumReceipt Requested Eckert Seamans Cherin & Mellott, LLC Attn: Evelyn D. Sahr and Jennifer L. Andrews Counsel for AirTahiti Nui 1747 Pennsylvania Avenue, NW Suite 1200 Washington, D.C. 20006

Dear Mses.SahrandAndrews: Re: Conflict of Law Waiver Request Concerning Provisions in Subpart G of 14 CFR Part 382

This letter concerns Air Tahiti Nui's (Air Tahiti) 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) ofthe Department's Air Carrier Access Act (ACAA) regulation. Air Tahiti's request for a conflict oflaw waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still under review by the Department. Air Tahiti asserts a conflict of law between sections 382.91. 382.95, 382.101, 382.103, and 382.105 of Part 382 and Articles 7.1, 7.5, 7.6, 8. 1. Annex I, and Annex 

# n of EC 1107/2006,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 weU as transiting the airport. Under sections 382.91, 382.95, 382.101, 382.103, and 382.105, carriers, not airport operators. are responsible for providing or ensuring boarding, deplaning, and connecting assistance. Air Tahiti maintains that Annex I requires the airport operator to provide boarding, deplaning, and connecting assistance, not the air carrier. Air Tahiti further asserts that Annex II, which list carriers' responsibilities for accommodating passengers with disabilities, does not pennit carriers to provide or supplement the boarding, deplaning, and connecting assistance the airport operators are required to provide. We note that Part 382 does not prohibit Air Tahiti 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,

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0 however, section 382.105 ofourrule requires Air Tahiti 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 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 ofany provision in EC 1107 that bars a carrierfrom directly supplementing services. In the Section-by-SectionAnalysis 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 carrierfrom 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 382.91, 382.95, 382.101, 382. 103, and 382.105. The relevant provisions ofbothPart 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. Air Tahiti 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 Air Tahiti's conflict of law waiver request for sections 382.91, 382.95, 382.101, 382.103, and 382.105.

1The preamble to 14 CFR Part 382provides further clarification ofthe DepartmenCs 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, 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 providecoMecting service between gates for wheelchair users who arechanging 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 a contlict of laws waiver. U.S. Department of Transportation. Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 27614, 27619 (May 13, 2008).

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# 0 Ifyou have any questions about this matter, please contact Mike Spollen. of my staff, or me at (202) 366-9342. You may also reach us by FAX at (202) 366-7152. Sincerely,



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# resky**~** Assistant General Counsel for

Aviation Enforcement and Proceedings
cc: Erin K. Sweeney