U.S. Department GENERAL COUNSEL 1200 NewJerseyAvenue, SE WashingtQn, OC 20590 

### ot Transportation Office ofthe Secretory ofTransportation April 15,2009

CertifiedMail-Return ReceiptRequested

Eckert Seamans Cherin & Mellott, LLC Attn: EvelynD. Sahr andJenniferL. Andrews Counsel to Swiss International Airlines Ltd. 1747Pennsylvania Avenue, NW, Suite 1200 Washington, D.C. 20006

DearMses. SahrandAndrews; ·,,)

Re: Conflict of Law Waiver Request Concerning Provisions in Subpart Gof 14 CFRPart 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 SubpartG of 14 CFR Part 382 (14 CFR 382.91- 14 CFR 382.105} ofthe 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 underreviewbythe 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 regulationonservice 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. Swiss maintains that Annex I requires the airport operator to provide boarding, deplaning, andconnecting 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 ofPart 382. When those services do not meet the requirements ofSubpartG,however, section 382.105 ofourrule requires Swiss toprovide 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 necessaryto the extent required by the rule (e.g., a carrier is bound to provide orensure 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 ofservice 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 carrierfrom directly supplementingservices.

In the Section-by-SectionAnalysis ofthe conflictoflaws provisioninthe preamble tothe 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 something requiredby this rule, is an appropriate subjectfor 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. Therelevantprovisions ofbothPart382 and EC 1107 complementone anotherand 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 particularairport or airports from which it conducts operations covered byPart 382. Therefore, having found noconflict oflaw, the Department must deny Swiss' conflictof law waiverrequest forsections 382.91, 382.95, 382.101, 382.103, and 382.105.

1 The preamble to 14CFRPart382 provides furtherclarificationofthe 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 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 not provide connecting service between gates for wheelchairusers whoare 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 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 contlict of laws waiver. U.S. Department of Transportation. Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed. Reg. 276£4,27619 (May 13, 2008).Ifyou have any questions about this matter. please contact James Fisher, ofmy staff, or
me at (202) 366-9342. You may also reach us byFAXat (202) 366-7152.

Sincerely.

SamuelPodberesky AssistantGeneral Counselfor

AviationEnforcement andProceedings

cc: Erin K. Sweeney