# .. 

# 0

0

0 U.S. Department ofTransportation Office of the Secretary ofTransportation GENERAL COUNSEL April 15, 2009 1200 NewJersey Avenue, SE Washington , DC 20590



### Certified MaiiMRetum Receipt Requested 

### Mr. Charles F
. Hughes Area Manager North AmericaMexico CaribbeanRegions Condor Augdienst GmbH 104 SouthWalnut Street Itasca, IL 60143

DearMr
. Hughes: Re: ConflictofLaw Waiver and Equivalent Alternative Determination Request Concerning Provisions 

### in Subpart G of 14 CfRPart 382

This letterconcerns Condor Augdienst GmbH's (Condor) September 8, 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. Condor's request for a conflict oflaw waiver concerning various other provisions of 14 CFR Part 382 (Part 382) is still underreview bythe Department. Condor asserts a conflict oflaw between sections 382.91, 382
.95, 382
. 101, 382
. 103, and 382
. 105 of Part 382 and Articles 7, 8, Annex I, and Annex II 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 382.91, 382.95, 382.101, 382.103, and 382.105, carriers, not airport operators, are responsible for providing or ensuring boarding, deplaning, and connecting assistance. Condor maintains that it is the airports' responsibility to ensure that services required by Part 382 are provided

. Furthermore, Condor asserts that Annex II does not permit air carriers to provide or supplement the enplaning, deplaning, orconnecting assistance providedby airports. We note that Part 382 does not prohibit Condor 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,

# 0

0



# 0 however, section 382.105 ofourrule**re~uires** 

### Condor to provide supplemental services to ensure that these requirements are met. 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 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 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 carrierfrom directly supplementing services. In 

### the Section-by-Section Analysis ofthe conflict oflaws provision inthe preamble to the fmal 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 ofEC 1107 and the requirements of sections 382.91, 382.95, 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 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. Condor 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 oflaw, the Department must deny Condor's conflict oflaw waiver request for sections 382
.91, 382
.95, 382.101 , 382.103, and 382.105.

1The preamble to 14CFR Part382 provides further**cl~ification** oftheDepartment'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 notprovideconnecting service between gates for wheelchairusers 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 seek a conflict of laws waiver. U.S
. Department of Transportation, Nondiscrimination on the Basis ofDisability in Air Travel, 73 Fed

. Reg. 27614, 27619<May 13, 2008).

# 0

0

() If you have any questions about this matter, please contact Bob Ashby, of the Department's staff, at 202-366-9310, or me at 202

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

# ~~ Samuel Podberesky Assistant General CoWlsel for

Aviation Enforcement and Proceedings