BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Transcription

1 )cpi. Or r-- i,rjuimivj.) BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. In the Matter of NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR TRAVEL FINAL RULE Docket No. OST C.F.R. Part382 SOCIETE AIR FRANCE'S REQUEST FOR CONFLICT OF LAW WAIVER AND EQUIVALENT ALTERNATIVE DETERMINATIONS Communications with respect to this document should be addressed to: Jean-Michel Barth616my, Vice President European and International Affairs Soci^te Air France 45, rue de Paris F Roissy CDG Cedex Paris, FRANCE Joan Gabel U.S. Counsel Soci6t6 Air France 125 West 55* Street New York, NY U.S.A. Dated: July 10, 2008

2 10 September 2008 Assistant General Counsel for Aviation Enforcement and Proceedings, C-70 U.S. Department of Transportation 1200 New Jersey Avenue, S.E., Room W Washington, D.C Re: Societe Air France 14 CFR Part 382 Final Rule; Nondiscrimination on the Basis of Disability in Air Travel; Conflict of Laws Waiver Request, or, in the alternative, Determination of Equivalent Alternative Dear Sir or Madam: In accordance with 14 CFR Part 382.9, Societe Air France ("Air France") hereby respectfully submits to the Department of Transportation (the "Department") a request for a waiver from strict compliance, based on conflict of laws, with respect to certain provisions of the amended Air Carrier Access Act as set forth in 14 CFR Part 382 ("Part 382"), issued on May 13, In the alternative, and to the extent that the Department does not agree with arguments set forth in support of the request for a conflict of laws waiver. Air France respectfully requests that the present submission be granted a favourable determination, in accordance with the provisions of 14 CFR Part , that Air France is implementing and providing an equivalent alternative to its passengers with disabilities, in accordance with the provisions of 14 CFR Part As a preliminary statement. Air France wishes to confirm its long-standing commitment to providing safe and accessible transportation to all its passengers, regardless of disability, and to express its support for the Department's initiative. As a French air carrier based in Paris and serving points between France and the United States, Air France is mindful of its obligations to comply with laws and regulations promulgated by the European Union, by France and by the French civil aviation authority, and with U.S. laws and regulations, and particularly with Part 382. The Department is aware of Regulation (EC) No. 1107/2006 of the European Parliament and the Council of July 2006 concerning the rights of disabled persons with reduced mobility when travelling by air (hereinafter "EU Regulation 1107"). EU Regulation 1107 has full legal effect within France, and imposes separate and distinct obligations on air carriers and airport managing bodies. For purposes of this request for a waiver based on conflict of laws, or, in the alternative, a determination of an alternative equivalent for passengers with disabilities, the following documents (in English) are attached hereto: 1. EU Regulation 1107/2006, including Armex I and Annex II (English language version attached hereto as Appendix 1); 125 West 55th Street, New York, NY Telephone: (212) Fax: (212)

3 2. Extracts from Regulation (EC) N 1899/2006 of the European Parliament and of the Council of 12 December 2006 amending Council Regulation (EEC) N 3922/91 on the harmonization of technical requirements and administrative procedures in the field of civil aviation, in particular Subparts D, P, and R (hereinafter "EU-OPS") (English language version attached hereto as Appendix 2); 3. Enghsh official translation of articles and of the French Instruction dated June 26, 2008 from the French Ministry of Ecology, Energy, Sustainable Development and Territorial Development (hereinafter "Instruction from MEDAD") attached hereto at Appendix 3. (N.B. The Instruction from MEDAD incorporates provisions of the EU-OPS to be specifically applied to French air transport operators). Whereas 14 CFR Part 382, in its entirety, seeks to extend its regulatory control well beyond its own territory, applying to all passengers and airlines operating between the US and Europe, EU Regulation 1107 applies to all disabled persons and persons with reduced mobility on departure from, on transit through, or on arrival at an airport located in the territory of a European Member State. This implies that airlines flying transatlantic routes are subject to both regulations, which can and will cause legal uncertainty to both passengers and airlines. This is further compounded by the fact that EU Regulation 1107 states, "...any obligations towards disabled persons and persons with reduced mobility pursuant to this Regulation shall not be limited or waived." Air France respectfully requests a waiver from compliance, based on conflict of laws, with the following provisions of 14 CFR Part 382 to the extent that they conflict with EU and French Regulations: 14 CFR Part Do carriers have to make sure that contractors comply with the requirements of this Part? (a) As a carrier, you must make sure that your contractors that provide services to the public (including airports where applicable) meet the requirements of this Part that would apply to you if you provided the services yourself. This provision conflicts with provisions contained in both Articles 7 and 8 of EU Regulation 1107 that make airport authorities responsible for ensuring assistance to disabled passengers at and through airports within the European Union. Air France has no control over any contractors of the airport managing bodies, cannot negotiate the terms of the agreements or services to be provided by those contractors, and cannot impose its own contractors on an airport managing body. Article 7 (Right to assistance at airports) states, in pertinent part: "7.1. When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation, provided that tlie notification of the person's particular needs for such assistance has been made to the air carrier or its agent or the tour operator concerned at least 48 hours before the published time of departure of the flight. This notification shall also cover a return flight, if the outward flight and the return flight have been contracted with the same air carrier."

4 wmm "7.5. When a disabled person or person with reduced mobility transits through an airport to which this Regulation applies, or is transferred by an air carrier or a tour operator from the flight for which he or she holds a reservation to another flight, the managing body shall be responsible for ensuring the provision of the assistance specified in Aimex I in such a way that the person is able to take the flight for which he or she holds a reservation". "7.6. On the arrival by air of a disabled person or person with reduced mobility at an airport to which this Regulation applies, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to reach his or her point of departure from the airport as referred to in Article 5". "7.7. The assistance provided shall, as far as possible, be appropriate to the particular needs of the individual passenger". Article 8.1 (Responsibility for assistance at airports) of EU Regulation 1107 states, in pertinent part: "8.1. The managing body of an airport shall be responsible for ensuring the provision of the assistance specified in Annex I without additional charge to disabled persons and persons with reduced mobility." Air France has comprehensive agreements with airport managing bodies and has incorporated the services outlined in Annex I to EU Regulation 1107 as services that are expected to be provided to Air France passengers by the managing airport body, or its selected contractors. Pursuant to these agreements. Air France reserves the right to audit compliance with all services provided by the airport authorities to Air France's disabled passengers and passengers with reduced mobility. The services detailed in Annex I are exhaustive in scope, and Air France undertakes to ensure that the managing airport authority complies with all its obligations to provide the services it is responsible for. 14 CFR Part May carriers limit the number of passengers with a disability on a flight? As a carrier, you must not limit the number of passengers with a disability who travel on a flight. This provision conflicts with Subpart D, Art of EU-OPS, applicable as from July 16, 2008, which provides in pertinent part: "Carriage of persons with reduced mobility. (a) An operator shall establish procedures for the carriage of Persons with Reduced Mobility (PRMs). (b) An operator shall ensure that PRMs are not allocated, nor occupy, seats where their presence could: (1) Impede the crew in their duties; (2) Obstruct access to emergency equipment; or (3) Impede the emergency evacuation of the airplane".

5 14 CFR Part also conflicts with provisions of Article 4 (Derogations, special conditions and information) of EU Regulation 1107, which provides in pertinent part: "4.1 Notwithstanding the provisions of Article 3, an air carrier or its agent or a tour operator may refuse, on the grounds of disability or of reduced mobility, to accept a reservation from or to embark a disabled person or a person with reduced mobility: (a) in order to meet applicable safety requirements established by international. Community or national law or in order to meet safety requirements established by the authority that issued the air operator's certificate to the air carrier concerned" Furthermore, consistent with provisions of EU-OPS, the French Ministry of Ecology, Energy, Sustainable Development and Territorial Development, charged with oversight of air transportation (the "MEDAD"), published, on June 26, 2008, in its official bulletin, its instructions relating to the technical rules and administrative procedures applicable to commercial transport by airplane, which establish the following: "I OPS Transport of passengers with reduced mobility 1. The term "passenger with reduced mobility" (PRM) means a person whose mobility is reduced due to physical disability of a sensory or motor nature, mental deficiency, age, illness or any handicap when using a means of transport and if their situation requires special attention and the adaptation of the service provided to all passengers for their specific needs. 2. Under normal circumstances, passengers with reduced mobility should not be seated near emergency exits. 3. In the case the number of passengers with reduced mobility accounting for a high proportion of the total number of passengers transported on board: a. the niunber of passengers with reduced mobility should not exceed the number of able-bodied persons who can assist them in the event of emergency evacuation; b. and the directives provided in paragraph 2 above should be complied with as much as possible." The above instructions issued by the MEDAD have the same legal weight and authority as any rule or directive issued by the Department, any of its agencies, or any other U.S. federal authority. The Department must, therefore, recognize that Air France is under a legal obligation and within its right, under French and European regulations, to responsibly limit the number of passengers with disabilities on board of a given flight in accordance with the above-mentioned mandatory framework, and in a non-discriminatory manner. In furtherance of its obligation to comply with the relevant provisions of I OPS cited above, Air France has developed procedures limited in scope to the transportation of passengers denoted as "WCHC". This designation refers to a passenger who is unable cannot move within or around the cabin unassisted. Depending on the type of aircraft, the number of seats and the number of cabin crewmembers assigned, Air France may resort to limiting the number of WCHC passengers on a particular flight. And, in the event of a group of passengers designated WCHC are travelling on a particular flight. Air France may require one self-sufficient able-bodied passenger for each WCHC passenger for purposes of ensuring adequate assistance in case of emergency evacuation. However, with prior notice to Air France, and after review by the Special Needs Transport Department, these limitations may be

6 waived (as was recently done for transportation of the French athletes to the 2008 Beijing Paralympics). 14 CFR Part May carriers refuse to provide transportation on the basis of disability? As a carrier, you must not refuse to provide transportation to a passenger with a disability on the basis of his or her disability, except as specifically permitted by this Part. The above provision conflicts with Article 4.1 of EU Regulation 1107, which provides in pertinent part: "4.1 Notwithstanding the provisions of Article 3, an air carrier or its agent or a tour operator may refuse, on the grounds of disability or of reduced mobility, to accept a reservation from or to embark a disabled person or a person with reduced mobility: (b) if the size of the aircraft or its doors makes the embarkation or carriage of that disabled person or person with reduced mobility physically impossible." The EU Regulation 1107 permits, in limited and defined circumstances, the right of an air carrier to refuse transportation to a passenger with a disability. Nevertheless, in such a circumstance, Air France undertakes to propose alternative, suitable transportation to the disabled passenger, either on another flight or another aircraft that will be able to accommodate the passenger. Should Air France be unable to find a suitable alternative means of transportation, die passenger may request a full refund. 14 CFR Part May a carrier require a passenger with a disability to provide advance notice that he or she is travelling on a flight? As a carrier, you must not require a passenger with a disability to provide advance notice of the fact that he or she is travelling on a flight. and 14 CFR Part May a carrier require a passenger with a disability to provide advance notice in order to obtain certain specific services in connection with a flight? (a) Except as provided in paragraph (b) of this section and Sections (c)(3) and (d)(3), as a carrier you must not require a passenger with a disability to provide advance notice in order to obtain services or accommodations required by this Part. The above 2 provisions conflict with Articles 6.1, 6.2, 7.1, 7.2, 7.4, 10 and Annex II of EU Regulation 1107, which provide in pertinent part: "6.1. Air carriers, their agents and tour operators shall take all measures necessary for the receipt, at all their points of sale in the territory of the Member States to which the Treaty applies, including sale by telephone and via the Internet, of notifications of the need for assistance made by disabled persons or persons with reduced mobility." "6.2. When an air carrier or its agent or a tour operator receives a notification of the need for assistance at least 48 hours before the published departure time for the flight, it shall transmit the information concerned at least 36 hours before the published departure time for the flight:

7 (a) to the managing bodies of the airports of departure, arrival and transit, and (b) to the operating air carrier, if a reservation was not made with that carrier, unless the identity of the operating air carrier is not known at the time of notification, in which case the information shall be transmitted as soon as practicable." "7.1 When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation, provided that the notification of the person's particular needs for such assistance has been made to the air carrier or its agent or the tour operator concerned at least 48 hours before the published time of departure of the flight. This notification shall also cover a return flight, if the onward flight and the return flight have been contracted with the same carrier." "7.2 Where use of a recognized assistance dog is required, this shall be accommodated provided that notification of the same is made to the air carrier or its agent or the tour operator in accordance with applicable national mles covering the carriage of assistance dogs on board aircraft, where such rules exist." "7.4 The provisions of paragraph 1 shall apply on condition that: (a) the person presents himself or herself for check-in: (i) at the time stipulated in advance and in writing (including by electronic means) by the air carrier or its agent or the tour operator or (ii) if no time is stipulated, not late than one hour before the pubhshed departure time, or (b) the person arrives at a point within the airport boundary designated in accordance with Article 5: (i) at the time stipulated in advance and in writing (including by electronic means) by the air carrier or its agent or the tour operator, or (ii) if no time is stipulated, not later than two hours before the published departure time." "10. An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or person with reduced mobility departing from, arriving at or transiting through an airport to which the regulation applies provided that the person in question fiilfils the conditions set out in Article 7(1), (2) and (4)." The underlying premise of EU Regulation 1107 is that the airport managing body, and by extension, the air carriers, will need advance notice from passengers with disabilities of the assistance or service required or expected in order to ensure that such assistance or service is provided in a timely manner. EU Regulation 1107 neither specifies nor limits what type of service or assistance would be exempt from advance notice. Under EU Regulation 1107, and under French law, it is neither an illegal nor a discriminatory practice to require advance notice from a passenger with disabilities who will require services or assistance at an airport or onboard an aircraft. The advance notice provisions are included in EU Regulation 1107 to ensure that service or assistance expectations of passengers are met, and if they are not, that there is a party who must assume responsibility for the failure. As a general manner. Air France does not and would not require a passenger with a disability requiring neither a service nor assistance at the airport or during a flight to provide any advance notice. However, in order for Air France to properly fulfil its obligations to its passengers with

8 disabilities travelling from airports within the EU, it must be able to comply with the prior notice provisions of the airport managing bodies to ensure timely ground assistance. It should be noted that, and in order to fully satisfy the needs of the passengers, such an advance notice is also required for special meal requests, other special services and when unaccompanied minors travelling by air. Annex II of EU Regulation 1107 sets out the specific obligations of air carriers to provide certain types of assistance to passengers with disabilities. Consistent with the overall premise of EU Regulation 1107, the rendering of specific services may be conditioned on providing the air carrier with sufficient prior notice so as to ensure that services offered and expected will be provided in a timely and appropriate manner. The air carrier is fully responsible in the event of failure to render the services when the requisite prior notice has been given. Nowhere is it stated that assistance at an airport or on board an aircraft can be categorically refused or denied. However, EU Regulation 1107 and its Annexes recognize that for the airport managing body or an air carrier to fully assiune their respective responsibilities to provide assistance or services to disabled passengers or passengers with reduced mobility, prior notice may be the condition on which the passenger will have the right to expect the service or assistance in a timely manner. Notwithstanding the above, in the event that a passenger with a disability has not provided any advance notice to Air France of services he or she may require at an airport covered by either EU Regulation 1107 or 14 CFR Part 382, Air France undertakes to use its best efforts to ensure that assistance at airports is provided to its passengers within a reasonable time and in such a way as to not unreasonably disrupt its schedule. If Air France is unable to ensure that such services are provided to permit the passenger to travel on the flight for which the passenger holds a reservation, Air France shall undertake to find alternative means of transport, or, if impossible, to provide a refund to the passenger. 14 CFR Part May a carrier require a passenger with a disability to travel with a safety assistant? (a) Except as provided in paragraph (b) of this section you must not require that a passenger with a disability travel with another person as a condition of providing air transportation. The above provision conflicts with Article 4 (1) (a) and 4 (2) of EU Regulation 1107, which provide in pertinent part: "4.1. Notwithstanding the provisions of Article 3, an air carrier or its agent or a tour operator may refuse, on the grounds of disability or of reduced mobility, to accept a reservation from or to embark a disabled person or a person with reduced mobility: (a) in order to meet applicable safety requirements established by international. Community or national law or in order to meet safety requirements established by the authority that issued the air operator's certificate to the air carrier concemed;" "4.2 Under the same conditions referred to in paragraph 1, first subparagraph, point (a), an air carrier or its agent or a tour operator may require that a disabled person or person with reduced mobility be accompanied by another person who is capable of providing the assistance required by that person."

9 14 CFR Part (b)(1), (b)(2), (b)(3), (b)(4) and (c)(2)(i) and (ii) set out specific criteria when an air carrier may legitimately require that a passenger with a disability travel with a safety assistant and not be subject to enforcement action by the Department. 14 CFR Part (c)(1) provides, in essence, that when a passenger with a disability selfassesses that he or she can travel independently and without a safety assistant, the air carrier may not charge for the transportation of a safety assistant but is not responsible for finding or providing such safety assistant. The above provisions conflict with Article 4 (l)(a) and 4(2) of EU Regulation 1107 that are broadly drafted and without specific limitations. And nothing in the EU Regulation 1107 precludes or forbids an air carrier from charging for the transportation of a person accompanying another person with a disability or reduced mobility. For safety reasons. Air France may require that a passenger with a disability or with reduced mobility travel with another person. These safety criteria generally include the ability of the passenger to independentiy use the seat belt and oxygen mask, self-administer medication, understand and communicate with the cabin crew for purposes of safety instructions, and be able to physically assist in his or her evacuation in the event of an emergency. However, Air France is committed to ensure that no passenger with a disability or with reduced mobility is refused transportation without an individual evaluation or assessment, but with safety conditions remaining a priority. As part of that assessment, Air France may refer questions or concerns about a passenger's ability to travel alone to its medical department for expert and qualified determination. Air France's medical service is staffed with highly trained and experienced professionals, capable of assessing situations and communicating with airport station personnel and, if necessary with a passenger's personal physician. 14 CFR Part What are the requirements for moveable aisle armrests? Air France hereby requests a favourable determination of an alternative equivalent with respect to the application of subparagraph (c) requiring that movable aisle armrests be provided proportionately in all classes of service in the cabin of aircraft with 30 or more passenger seats and on which passenger aisle seats have moveable arm rests. Air France will be compliant with the proportionality provisions of paragraph (c) with respect to economy class seats aircraft covered by this section in that at least fifty percent (50%) of the aisle seats in the economy class cabins, with the exception of bulkhead aisle seats and aisle seats in the exit rows, will have movable armrests permitting access by persons with disabilities or with reduced mobility. These seats will be readily identified in documentation available to With respect to seats in the business class and first class sections of the covered aircraft, the specific rigid-shell design of the seats, together with the built-in amenities does not permit movable armrests on the aisle seats. However, the pitch of the seats in these premium classes of services ranges from 61 inches in business class to 79 inches in first class so as to easily accommodate seating by passengers with disabilities or reduced mobility, including passengers using an on-board wheelchair.

10 mfi 14 CFR Part What other requirements pertain to seating for passengers with a disability? (a) As a carrier, you must not exclude any passenger with a disability from any seat or require that a passenger with a disability sit in any particular seat, on the basis of disability, except to comply with FAA or applicable foreign government safety requirements. The above provision conflicts with EU-OPS, Subpart D, Article 1.280, which provides in pertinent part: "Passenger seating An operator shall establish procedures to ensure that passengers are seated where, in the event that an emergency evacuation is required they may best assist and not hinder evacuation from the aeroplane." In discussing the above provision, we also refer to 14 CFR Part (a) through (d) setting forth a methodology to provide seating accommodations for passengers who have selfidentified to the carrier as having a particular disability specified in the section and when the type of seating accommodation requested exists on the aircraft. Air France has adopted policies and procedures, in compliance with the provisions of the Instruction of the MEDAD dated June 26, 2008, to provide non-discriminatory seating assignment accommodations to passengers with disabilities, which provides in pertinent part: "I OPS Passenger seat assignment 1. The operator should set up procedures to ensure that: a. passengers assigned seats with direct access to emergency exits appear to be able-bodied and capable of assisting with prompt evacuation after appropriate crew briefing in the event of emergency; b. In every case, passengers who might, in the event of evacuation, hinder other passengers or prevent the crew from fulfilling their duties, should not be assigned seats with direct access to emergency exits. If the operator is not able to set up procedures applicable during passenger check-in, an alternative procedure approved by the Authorities should be implemented to ensure that proper seat assignment is carried out in a timely manner. 2. The following categories of passenger are included in those which should not be assigned seats with direct access to emergency exits: a. passengers who are mentally or physically handicapped to the extent that they would find it hard to move quickly if requested to do so; b. passengers with impaired vision or hearing to the extent that they could not promptly understand written or verbal instructions; c. passengers who due to age or illness are of such weak constitution that they would find it hard to move fast; d. passengers who are so obese that tiiey would find it hard to move fast or reach and go out of the neaihy emergency exit; e. children who are not accompanied by an adult and babies;

11 f persons under arrest or deported; g. passengers with animals. Note: "Direct access" means a seat from which the emergency exit can be directly accessed without going along the aisle or negotiating any obstacle." In compliance with the above European and French regulations. Air France has adopted a procedure to accommodate a WCHC passenger travelling alone. For safety reasons and because Air France cabin crew members are trained to be responsible for evacuating these passengers in an emergency, WCHC passengers travelling alone on a flight may be assigned pre-determined seats so as to permit easy and rapid identification by crew members, if necessary. This responsibility for emergency evacuation by crewmembers cannot be waived. The Department should note that Air France's operational and safety manuals must be filed with the French civil aviation authorities, together with updates and revisions, as required by comply with applicable French and European laws and regulations. In particular, and as directed under Subpart P of EU-OPS (Manuals, Logs and Records) Air France must ensures that its operations manual contains all the instructions necessary for operations personnel to perform their duties. Paragraph b) subpart P of the of EU-OPS Regulation states the following: "(b) An operator shall ensure that the contents of the operations manual, including all amendments or revisions, do not contravene the conditions contained in the air operator certificate (AOC) or any applicable regulations and are acceptable to, or where applicable approved by, the Authority." Furthermore, Paragraph (g) of the above mentioned article states that the "...operator shall ensure that the operations manual is amended or revised so that the instructions and information contained therein are kept up to date. The operator shall ensure that all operations personnel are made aware of such changes that are relevant to their duties." Therefore, the French Civil Aviation authority in charge of the oversight of the operations of Air France is aware of the procedures applied by Air France, and has neither rejected them nor required changes. 14 CFR Part What assistance must carriers provide to passengers with a disability moving within the airport? As a carrier, you must provide or ensure the provision of assistance requested by or on behalf of a passenger with a disability, or offered by carrier or airport operator personnel and accepted by a passenger with a disability, in transportation between gates to make a connection to another flight. The above provision conflicts with Article 7 of EU Regulation 1107, which provides in pertinent part: "7.1. When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation, provided that the notification of the person's particular needs for such assistance has been made to the air carrier or its agent or the tour operator concerned at least 48 hours before the published time of departure of the flight. This 10

12 notification shall also cover a retum flight, if the outward flight and the return flight have been contracted with the same air carrier." "7.5. When a disabled person or person with reduced mobility transits through an airport to which this Regulation applies, or is transferred by an air carrier or a tour operator from the flight for which he or she holds a reservation to another flight, the managing body shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation." "7.6. On the arrival by air of a disabled person or person with reduced mobility at an airport to which this Regulation applies, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to reach his or her point of departure from the airport as referred to in Article 5." "7.7. The assistance provided shall, as far as possible, be appropriate to the particular needs of the individual passenger." Furthermore, the above same provision also conflicts with Article 8 of EU Regulation 1107, which provides in pertinent part: "8.1. The managing body of an airport shall be responsible for ensuring the provision of the assistance specified in Annex I without additional charge to disabled persons and persons with reduced mobility." Air France has agreements with airport managing bodies and has incorporated the services ouflined in Annex I to EU Regulation 1107 as services that will be provided to Air France passengers. These services are exhaustive and the Department should recognize that compliance with the requirements of Annex I by the airport managing bodies constitutes substantial compliance by Air France as it provides for an altemative means of compliance with the provisions of Part 382 that address ground services to provided at airport facilities. In the event that a passenger with a disability has not provided any advance notice to Air France of services he or she may require at an airport covered by either EU Regulation 1107 or 14 CFR Part 382, Air France nevertheless undertakes to use its best efforts to ensure that assistance at airports is provided to its passengers within a reasonable time and in such a way as to not unreasonably disrupt its schedule. If Air France is unable to ensure that such services are provided to permit the passenger to travel on the flight for which the passenger holds a reservation. Air France shall undertake to find altemative means of transport, or, if impossible, to provide a refund to the passenger. 14 CFR Part What are carriers' general obligations with respect to boarding and deplaning assistance? As a carrier, you must promptly provide or ensure the provision of assistance requested by or on behalf of passengers with a disability, or offered by carrier or airport operator personnel and accepted by passengers with a disability, in enplaning and deplaning. The above provision conflicts with provisions of Article 7 and Article 8 of EU Regulation 1107 as set forth and explained in the reference to 14 CFR Part , above. 11

13 14 CRF Part What other boarding and deplaning assistance must carriers provide?? When level-entry boarding and deplaning assistance is not required to be provided under this subpart, you must, as a carrier, provide or ensure the provision of boarding and deplaning assistance. The above provision conflicts with provisions of Article 7 and Article 8 of EU Regulation 1107 as set forth and explained in the reference to 14 CFR Part , above. 14 CFR Part May a carrier leave a passenger unattended in a wheelchair or other device? As a carrier, you must not leave a passenger who has requested assistance required by this subpart unattended by the personnel responsible for enplaning, deplaning, or connecting assistance in a ground wheelchair, boarding wheelchair, or other device, in which the passenger is not independentiy mobile, for more than 30 minutes. This requirement applies even if another person (e.g., family member, personal care attendant) is accompanying the passenger, unless the passenger explicitly waives the obligation. The above provision conflicts with provisions of Article 7 and Article 8 of EU Regulation 1107 as set forth and explained in the reference to 14 CFR Part , above. 14 CFR Part What is the responsibility of carriers at foreign airports at which airport operators have responsibility for enplaning and deplaning, and connecting passengers? At a foreign airport at which enplaning, deplaning, or connecting assistance is provided by the airport operator, rather than by carriers, as a carrier you may rely on the services provided by the airport operator to meet the requirements of this subpart. If the services provided by the airport operator are not sufficient to meet the requirements of this subpart, you must supplement the airport operator's services to ensure that these requirements are met. If you believe you are precluded by law from supplementing the airport operator's services, you may apply for a conflict of laws waiver under of this Part. The above provision conflicts with Article 7 of EU Regulation 1107, as set forth and explained in the reference to 14 CFR Part , above. 14 CFR Part What are the requirements concerning the evaluation and use of passenger-supplied electronic devices that assist passengers with respiration in the cabin during the flight? (b) Except for foreign carriers conducting operations of a nature equivalent to ondemand air taxi operations by a U.S. carrier, as a foreign carrier conducting passenger service you must permit any individual with a disability to use a ventilator, respirator, continuous positive airway pressure machine, or portable oxygen concentrator (PQC) of a kind equivalent to an FAA-approved POC for U.S. carriers in the passenger cabin during air transportation to, from or within the United States, on all aircraft originally designed to have a maximum passenger capacity of more than 19 seats unless:..." 12

14 The above provision conflicts with EU-OPS, Subpart R, Art , which provides in pertinent part: "An operator shall not transport dangerous goods unless approved to do so by the Authority." Before the issue of an approval for the transport of dangerous goods, the operator shall satisfy the Authority that adequate training has been given, that all relevant documents (e.g. for ground handling, aeroplane handling, training) contain information and instructions on dangerous goods, and that there are procedures in place to ensure the safe handling of dangerous goods at all stages of air transport. EU-OPS are regulations that have full legal force and effect and govern the technical operations of Air France. Air France is prescribed from transporting equipment listed in Part absent specific approvals and recognition by the French, European or other recognized governmental authorities responsible for oversight of civil aviation. To the extent that any of the above-listed equipment is not approved by either or both the French and European civil aviation authorities, or any recognized governmental authorities responsible for the oversight of civil aviation. Air France will be unable to accept said equipment. The Department may note however that Air France accepts passengers with respiratory insufficiency to use the therapeutic oxygen provided by Air France. According to the oxygen capacity requiring and how long last the flight, Air France may provide mobile or fixed kit of oxygen. Furthermore, the transport in the hold of oxygen bottles is forbidden but it is permitted in the cabin with a previous approval. However, the use is forbidden unless approved by the authorities responsible for the oversight of civil aviation. 14 CFR Part What training are carriers required to provide for their personnel? (a) As a carrier that operates aircraft with 19 or more passenger seats, you must provide training, meeting the requirements of this paragraph, for all personnel who deal with the travelling public, as appropriate to the duties of each employee. This provision conflicts with Article 11 of EU Regulation 1107 in that Air France does not have control over any employees of the airport managing bodies. Article 11 provides, in pertinent part: "Air carriers and airport managing bodies shall: (a) ensure that all their personnel, including those employed by any sub-contractor, providing direct assistance to disabled persons and persons with reduced mobility have knowledge of how to meet the needs of persons having various disabiuties or mobility impairments; (b) provide disability-equality and disability-awareness training to all their personnel working at the airport who deal directly with the travelling public; (c) ensure that, upon recruitment, all new employees attend disability-related training and that personnel receive refresher training courses when appropriate." To comply with the above provisions of EU Regulation 1107, Air France created a special training course for crewmembers. Cabin crew members can participate in a full day of training for heightened awareness of the needs of passengers with reduced mobility; the different needs according to the disability in terms of accommodation and communication at the airport, on board and during the operations of embarking and disembarking; and, the types 13

15 of assistance the air carrier is able to provide. After completion of the training course, these cabin crewmembers become a "reference" and are charged with the training other crewmembers while on duty. Air France has already trained over 600 cabin crewmembers in this manner. The aim is to achieve a high level of service that complies with applicable safety requirements and balances comfort expectations for all passengers. Among other things, cabin crewmembers are trained to maneuver wheel chairs, handle high stress situations, communicate appropriately, guide blind persons, better organize the environment to provide optimum comfort to passengers, anticipate needs of passengers with disabilities. This special training is in addition to the regular and recurrent training of all crewmembers required by French and European regulations. In accordance with the principles stated on the newly adopted European regulation, ground staff also receives a specific mandatory training: they are made aware of the specific help required by disabled passengers for themselves and their equipment. Each station, along with its airports partners, constantly endeavors to provide assistance guaranteeing the safety and comfort of the passengers on departure as on arrival. 14 CFR Part What are the requirements for providing Complaints Resolution Officials? As a carrier providing scheduled service, or a carrier providing non-scheduled service using aircraft with 19 or more passenger seats, you must designate one or more CRQs." The above provision conflicts with Article 15 of EU Regulation 1107, which provides in pertinent part: "15.1. A disabled person or person with reduced mobility who considers that this Regulation has been infringed may bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concemed, as the case may be." "15.2. If the disabled person or person with reduced mobility cannot obtain satisfaction in such way, complaints may be made to any body or bodies designated under Article 14(1), or to any other competent body designated by a Member State, about an alleged infringement of this Regulation." "15.3. A body in one Member State which receives a complaint conceming a matter that comes under the responsibility of a designated body of another Member State shall forward the complaint to the body of that other Member State." "15.4. The Member States shall take measures to inform disabled persons and persons with reduced mobility of their rights under this Regulation and of the possibihty of complaint to this designated body or bodies." The Department is willing to note that Air France's procedure requires that station managers are responsible for addressing, assisting and resolving the complains that could be formulated by passengers with disabilities. Internal procedures are constantly revised in order to ensure that all necessary measures are taken to resolve the incident if any (re-routing, travel assistance, meals, beverage, accommodations etc.). 14 CFR Part What actions do CRQs take on complaints? When a complaint is made directly to a CRO for a carrier providing scheduled service, or a carrier providing nonscheduled service using aircraft with 19 or more passenger seats (e.g., orally, by phone, TTY), the CRO must promptly take dispositive action... 14

16 The above provision conflicts with Article 15 of EU Regulation 1107, which provides in pertinent part 15. "15.1. A disabled person or person with reduced mobility who considers that this Regulation has been infringed may bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concemed, as the case may be." "15.2. If the disabled person or person with reduced mobility cannot obtain satisfaction in such way, complaints may be made to any body or bodies designated under Article 14(1), or to any other competent body designated by a Member State, about an alleged infringement of this Regulation." "15.3. A body in one Member State which receives a complaint conceming a matter that comes under the responsibility of a designated body of anotlier Member State shall forward the complaint to the body of that other Member State." "15.4. The Member States shall take measures to inform disabled persons and persons with reduced mobility of their rights under this Regulation and of the possibility of complaint to this designated body or bodies." Operational incidents that occur at airports or on board aircraft must be immediately reported to various departments within Air France (Marketing, Medical Services, Customer Relations, Central Coordination for handling passengers with reduced mobility, arrival station, etc.), to so necessary actions may be taken to resolve the incident and institute corrective measures, if necessary. 14 CFR Part How must carriers respond to written complaints? As a carrier providing scheduled service, or a carrier providing nonscheduled service using aircraft with 19 or more passenger seats, you must respond to written complaints received by any means (e.g., letter, fax, , electronic instant message) concerning matters covered by this Part. The above provision conflicts with Article 15 of EU Regulation 1107, which provides in pertinent part: "15.1. A disabled person or person with reduced mobihty who considers that this Regulation has been infringed may bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concemed, as the case may be." "15.2. If the disabled person or person with reduced mobility cannot obtain satisfaction in such way, complaints may be made to any body or bodies designated under Article 14(1), or to any other competent body designated by a Member State, about an alleged infringement of this Regulation." 15

17 "15.3. A body in one Member State which receives a complaint conceming a matter that comes under the responsibility of a designated body of another Member State shall forward the complaint to the body of that other Member State." "15.4. The Member States shall take measures to inform disabled persons and persons with reduced mobility of their rights under this Regulation and of the possibility of complaint to this designated body or bodies." In the event of written complaints received directly from passengers or referred to Air France by a competent authority. Air France is committed to addressing the complaint in a timely manner, and resolving the complaint if possible. Air France has customer services offices in France, the United States and throughout the world, based on its markets. Complaints from passengers with disabilities or with reduced mobility are reviewed and addressed on a priority basis. Air France is committed to providing a professional, courteous and timely response to all its passengers in the event of service failures, consistent with the requirements of EU Regulation 1107 and 14 CFR Part 382. In closing, we hereby respectfully request a favourable determination of Air France's request for waiver based on conflicts of law, or in the altemative, for a determination of equivalent altemative to accessibility. Respectfully submitted, SOCIETE AIR FRANCE Jean-Michel Barthelemy Vice President European and International Affairs Joan Gabel U.S. Counsel 16

18 APPENDIX 1

19 EN Official Journal of the European Union L 204/1 (Acls whose publication is obligatory) REGULATION (EC) No 1107/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCll. OF THE EUROPEAN UNION. Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee ('), (?) This Regulation should not affect other rights of passengers established by Community legislation and notably Council Directive 90/314/EEC of 13 )une 1990 on package travel, package holidays and package tours (') and Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights {*). Where the same event would give rise to the same right of reimbursement or rebooking under either of those legislative acts as well as under this Regulation, the person so entitled should be allowed to exercise that right once only, at his or her discretion. Having consulted of the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty (^), Whereas: The single market for air services should benefit citizens in general. Consequently, disabled persons and persons with reduced mobility, whether caused by disability, age or any other factor, should have opportunities for air travel comparable to those of other citizens. Disabled persons and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non-discrimination. This applies to air travel as to other areas of life. (2) Disabled persons and persons with reduced mobility should therefore be accepted for carriage and not refused transport on the grounds of their disability or lack of mobility, except for reasons which are justified on the grounds of safety and prescribed by law. Before accepting reservations from disabled persons or persons with reduced mobility, air carriers, their agents and tour operators should make all reasonable efforts to verify whether there is a reason which is justified on the grounds of safety and which would prevent such persons being accommodated on the flights concerned. (') OJ C , p. 12. (') Opinion of the European Parliament of 15 December 2005 (not yet published in the Official Journal), and Council Decision of 9 June (4) (5) In order to give disabled persons and persons with reduced mobility opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport as well as on board aircraft, by employing the necessary staff and equipment. In the interests of social inclusion, the persons concerned should receive this assistance without additional charge. Assistance given at airports situated in the territory of a Member State to which the Treaty applies should, among other things, enable disabled persons and persons with reduced mobility to proceed from a designated point of arrival at an airport to an aircraft and from the aircraft to a designated point of departure from the airport, including embarking and disembarking. These points should be designated at least at the main entrances to terminal buildings, in areas with check-in counters, in train, light rail, metro and bus stations, at taxi ranks and other drop-off points, and in airport car parks. The assistance should be organised so as to avoid interruption and delay, while ensuring high and equivalent standards throughout the Community and making best use of resources, whatever airport or air carrier is involved. (') OJ L 158, 25,6.1990, p OJ L 46, , p. 1.