U.S. Department of Transportation Office ofthe Secretary of Transportation GENERAL COUNSEL April 15, 2009 1200 NewJersey Avenue, SE Washington, DC 20590 CertifiedMail- Return Receipt Requested Paul V. Mifsud Vice President Government & Legal Affairs- U.S.A. KLM Royal Dutch Airlines 2501 M Street, NW Suite612 Washington, DC 20037

DearMr. Mifsud: .::::)

Re: Conflict ofLawWaiverRequest ConcerningProvisions in Subpart G of 14 CPRPart 382 This letter concerns KLM Royal Dutch Airlines' (KLM) September 9, 2008, request for a conflict oflaw waiver concerning theboarding, deplaning, and connecting assistance requirements containedin Subpart G of14 CPRPart 382 (14 CPR 382.91 -14CPR 382.105) of the Department'sAirCarrierAccessAct (ACAA) regulation. KLM'srequest for aconflict of law waiver concerning various otherprovisions of14 CPRPart 382 (Part 382) is still under reviewbythe Department. KLM asserts a conflict oflawbetween sections 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 managingbody (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 ofPart 382. When those services do not meet therequirements ofSubpart G, however, section 382.105 ofour rule requires KLM to provide supplemental services to ensurethat these requirements are met. 1

The preamble to 14 CFRPart 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 operatorsprovide 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, 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 thePage2 In other words, to ensure compliance with Part 382, the service must be supplemented when necessary to the extent required bythe 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 ofEC 1107 explicitlypermits agreements between carriers and airport operators in which the airport operator will provide a higher standard ofservice or supplemental services to the carrier's passengers at that airport. Moreover, we are not aware ofany provision in EC 1107 that bars a carrier from directly supplementing services. In the Section-by-Section Analysis 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 carrier from 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 382.101, 382.103, and 382.105. The relevant provisions ofboth Part 382 and EC 1107 complement one another and allow for ample flexibility to achieve simultaneous compliance with the requirements ofboth regulations. Absent a showing ofa generally applicable legal bar in EC 1107 to providing supplementary services as needed to meet the requirements in Subpart G ofPart 382, a carrier wouldnecessarilyhave to make an airport-by-airport showing that it was precluded from providing supplementary services. KLM does not provide any information demonstratingthat itis precluded from providing supplementary services at anyparticular airport or airports from which it conducts operations covered by Part 382. Therefore, having found no conflict oflaw, the Department must deny KLM's conflict oflaw waiver request for sections 382.101,382.103, and 382.105. Ifyou have anyquestions aboutthis matter, please contact Kathleen BlankRiether, ofmy staff, orme at (202) 366-9342. Youmay also reachus byfax 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 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 seeka conflict oflawswaiver. U.S. Department ofTransportation, Nondiscrimination onthe Basis ofDisability in AirTravel, 73 Fed. Reg. 27614,27619 (May 13, 2008).Form DOT F 1320.65 Supersedes prev1ous ed1ilon OFFICIAL FILE COPY CONCURRENCES RTG SYMBOL INITIALSISIG DATE

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