## u.s. Department ofTransportation
Office ofthe Secretory ofTransportation GENERALCOUNSEL April IS, 2009 1 200 NewJerseyAvenue, SE Washington, DC 20590



### CertifiedMail-Return ReceiptRequested



### Ms. Joan Gabel U.S. Counsel Societe AirFrance 125 

### West 55th

### Street New York, N.Y. 10019



### DearMs. Gabel: Re: ConflictofLaw Waiverand Equivalent Alternative Determination Request Concerning Provisions 

### in Subpart G of 14

### CFRPart 382



### This letter concerns Societe Air France's (Air France) July 10, 2008, 

### request for a conflictoflaw waiver and equivalent alternative determination 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 AirCarrier

### Access Act (ACAA) regulation. Air France's request for a conflict of law waiver and equivalent alternative determination concerning various other provisions of 14 

### CFR Part 382 (Part 382) 

### is still underreview bythe Department.

Air France asserts a conflict oflaw between sections 382.91, 382.95, 382.101, 382.103, 

### and 382.105 

### of Part 382 

### and Articles 7.1. 7.5, 7.6, 7.7, 8.1, 

### and 

### Annex I 

### of EC 1107/2006,

### the 

### European Union regulationon service to passengers withdisabilities. 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 well 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 France maintains that the services airport operators must provide under Annex 

### I are exhaustive and that the Department should recognize that compliance with 

### the requirements set forth in Annex I 

### by airport operators constitutes substantial compliance by Air France with sections 382.91. 382.95, 382.101.382.103,

### and 382.105.

We 

### note that Part 382 

### does not prohibit Air France 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 requires Air France to provide supplemental services to ensure that these requirements are met. 1 Inother words, to ensure compliance with Part 382, the service mustbe 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 acarrierfrom directly supplementing services.

IntheSection-by-SectionAnalysis ofthe conflictoflaws provision inthe preambleto the final rule (73 Fed. Reg. at27646), 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 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 relevantprovisions ofbothPart 382 andEC 1107complement one anotherand allow for ample flexibility to achieve simultaneous compliance with the requirements ofboth 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 Pan 382, a carrier would necessarily have to make an airport-by-airport showing that it

was precluded from providing supplementary services. AirFrance 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 of law, the Department must deny Air France's conflict of law .waiver request for sections 382.91, 382.95, 382.101, 382.103, and 382.105.

AirFrance also asserts that the Department should recognize that compliance by airport operators with EU regulatory requirements constitutes substantial compliance with

1 Thepreamble to 14CFRPart 382 provides further clarificationofthe Departmenfs 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 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 notprovide connecting servicebetween 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 airport operator, by providing the supplemental services itselforhiring acontractor to do so. Ifthe carriercannot 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 conflict of laws waiver. U.S. Department of Transportation, Nondiscrimination on the Basis ofDisability in AirTravel, 73 Fed. Reg. 27614.27619 (May 13, 2008).sections 382.91, 382.95, 382.101, 382.103, and 382.105 and, therefore, they should be granted an equivalent alternative determination from these sections. However, the fact that aforeign regulation addresses the same general subject as Part382 does notmean the foreign regulation is anequivalent alternative and in this case AirFrancehas provided no evidence of equivalency. The Department's ACAA regulation also explains that the Department will not entertain an equivalent alternative request relating to an entire regulatory scheme. See 73 Fed. Reg. at 27617. Therefore, Air France's request for an equivalent alternative determinationfrom sections 382.91, 382.95, 382.101, 382.103, and 382.105 must alsobe denied.



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

Sincerely,

amuel Podberesky Assistant GeneralCounsel for

AviationEnforcementandProceedings

cc: Jean-Michel Barthelemy