U.S. Department GENERAL COUNSEL 1200 New Jersey Avenue, SE 

ot Transportation WashingtQn, OC 20590 

Office of the Secretory 

of Transportation 

April 15, 2009 

Certified Mail-Return Receipt Requested 

Eckert Seamans Cherin & Mellott, LLC 

Attn: Evelyn D. Sahr and Jennifer L. Andrews 

Counsel to Swiss International Airlines Ltd. 

1747 Pennsylvania Avenue, NW, Suite 1200 

Washington, D.C. 20006 

Dear Mses. Sahr and Andrews; 

·,,) 

Re: Conflict of Law Waiver Request 

Concerning Provisions in Subpart 

G of 14 CFR Part 382 

This letter concerns Swiss International Airlines Ltd.'s (Swiss) September 9. 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} of the Department's Air Carrier Access Act (ACAA) regulation. Swiss' 

request for a conflict of law waiver concerning various other provisions of 14 CFR Part 

382 (Part 382) is still under review by the Department. 

Swiss 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 II of EC 

t 107/2006, 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 382.91, 382.95,382.101,382.103, 

and 382.105, carriers, not airport operators, are responsible for providing or ensuring 

boarding, deplaning, and connecting assistance. Swiss maintains that Annex I requires 

the airport operator to provide boarding, deplaning, and connecting assistance, not the air 

carrier. Swiss further asserts that Annex II, which list carriers' responsibilities for 

accommodating passengers with disabilities, does not permit 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 Swiss 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 Swiss to provide supplemental services to 

ensure that these requirements are met. t 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 382.91, 382.95, 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. Swiss 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 Swiss' conflict of 

law waiver request for sections 382.91, 382.95, 382.101, 382.103, and 382.105. 

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 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 contlict of laws waiver. U.S. Department of 

Transportation. Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 

276£4,27619 (May 13, 2008). 
If you have any questions about this matter. please contact James Fisher, of my staff, or 

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

Sincerely. 

Samuel Podberesky 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

cc: Erin K. Sweeney