U.S. Department ofTransportation Office ofthe Secretary ofTransportation



### Mr. Enrique Bretos GENERAL COUNSEL 

### April15,2009

RegisteredMail-ReturnReceiptRequested 1200 NewJerseyAvenue, SE Washington. DC 20590

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..**~** '



### AccountableManagerofPullmanturAir c/Mahonia 0

### 12 Madrid, 28043 Spain (.J1 \

..



### Re: Conflict of Law Waiver Request Concerning Provisions in Subpart G of 14 CFR Part 382

DearMr. Bretos:

This letter concerns Pullmantur Air's (Pullmantur) September 

### 5, 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 CarrierAccess Act (ACAA) regulation. Pullmantur's request for a conflict of law waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still underreviewby the Department.

Pullmantur asserts a conflict of law between sections 382.95, 382.101, 382.103, and 382.105 ofPart 382 and Articles 7.1, 7.5, 7.6, 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 382.95, 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 Pullmantur 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 of our rule**~quires** 

### Pullmantur to provide supplemental services to ensure that these requirements are met. 1 

### In otherwords, to ensure compliance

1Thepreamble to 14CFRPart 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 accessibility services or accessible facilities, foreign carriers may relywith Part 382,the service mustbe supplemented whennecessaryto the extentrequired 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 carrierfromdirectly supplementing services.

In the Section-by-SectionAnalysis ofthe conflict oflaws provision inthe preambletothe 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 somethingrequired bythis rule, is an appropriate subject for a conflict of laws waiver. This is not the case with respect to the cited provisions ofEC 1107 and the requirements of sections 382.95, 382.101, 382.103, and 382.105. The relevant provisions ofbothPart 382 andEC 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. Pullmantur does not provide any information demonstrating that it is precluded from providing supplementary services at anyparticular airport or airports from which it conducts operations coveredby Part 382. Therefore, having found no conflict of law, the Department must deny Pullmantur's conflictoflawwaiverrequestfor sections 382.95, 382.101, 382.103, and 382.105.

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 notprovideconnecting service between gates for wheelchairusers 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 airportoperator, by providing the supplemental services itselforhiring 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**~ould** seek a conflict of laws waiver. U.S. Department of Transportation. Nondiscrimination on the Basis ofDisability in AirTravel, 73 Fed. Reg. 27614. 27619 (May 13, 2008).If you have any questions about this matter, please contactJames Fisher, of my staff, or
me at (202) 366-9342. You may also reach us byFAXat (202) 366-7152.
Sincerely.

# ~:;:::--~

amuel Podberesky Assistant General Counsel for

AviationEnforcement andProceedings