U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

April 15, 2009 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Certified Mail- Return Receipt Requested 

Paul V. Mifsud 

Vice President 

Government & Legal Affairs- U.S.A. 

KLM Royal Dutch Airlines 

2501 M Street, NW 

Suite 612 

Washington, DC 20037 

Dear Mr. Mifsud: 

.::::) 

Re: Conflict of Law Waiver Request 

Concerning Provisions in Subpart G of 

14 CPR Part 382 

This letter concerns KLM Royal Dutch Airlines' (KLM) September 9, 2008, request for a 

conflict of law waiver concerning the boarding, deplaning, and connecting assistance 

requirements contained in Subpart G of 14 CPR Part 382 (14 CPR 382.91 -14 CPR 382.105) of 

the Department's Air Carrier Access Act (ACAA) regulation. KLM' s request for a conflict of 

law waiver concerning various other provisions of 14 CPR Part 382 (Part 382) is still under 

review by the Department. 

KLM asserts a conflict oflaw between sections 382.101,382.103, and 382.105 of Part 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 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 382.101, 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 KLM from relying on the relevant services provided by 

an airport operator, so long as those services meet the requirements in Subpart G of Part 382. 

When those services do not meet the requirements of Subpart G, however, section 382.105 of our 

rule requires KLM to provide supplemental services to ensure that these requirements are met. 1 

The preamble to 14 CFR Part 382 provides further clarification of the 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 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 
Page2 

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 of any provision in EC 1107 that bars a carrier from 

directly supplementing services. 

In the Section-by-Section Analysis of the conflict of laws 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 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 382.101, 382.103, and 382.105. The relevant provisions of both 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. KLM 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 KLM's conflict of law waiver request for sections 

382.101,382.103, and 382.105. 

If you have any questions about this matter, please contact Kathleen Blank Riether, of my staff, 

or me at (202) 366-9342. You may also reach us by fax at (202) 366-7152. 

Sincerely, 

~2:::= Samuel Podberesky 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

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 

itself or hiring a contractor to do so. If the 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 conflict oflaws waiver. U.S. Department of Transportation, Nondiscrimination on the 

Basis of Disability in Air Travel, 73 Fed. Reg. 27614,27619 (May 13, 2008). 
Form DOT F 1320.65 

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