U.S. Department of Transportation GENERAL COUNSEL June 6, 2012 1200 New Jersey Avenue, SE**w1m£gt~~c2~90** 

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Office of the Secretary of Transportation



### Certified Mail-Return Receipt Requested

Mr. David M. Endersbee Mr. Richard D. Mathias Counsel for Avianca Zuckert, Scoutt & Rasenberger, L.L.P. 888 17th St., N.W. Washington, D.C. 20006

Dear Messrs. Endersbee and Mathias: Re: Equivalent Alternative Determination Requests Concerning 14 CPR 382.67 and 14 CFR 382.123

This letterconcerns Aerovias Del Continente Americano S.A.'s (Avianca) August 18, 2011, request for an indefinite extension ofits equivalent alternative determination for its Airbus A319 and A320 aircraftconcerning 14 CFR 382.67 and 14 CPR 382.123 ofthe Department's Air Carrier Access (ACAA) regulation, which require in-cabin priority stowage space for a passenger's folding, collapsible, or break-down manual wheelchair (manual folding wheelchair). This letter also responds toAvianca's February 23, 2012, request to extendthe wheelchair stowage approval to an alternate stowage location in its Airbus A319 aircraft.

On August 27, 2010, the Department granted Avianca's request to use its designated wheelchair cargo stowage space to comply with the requirement to stow passengers' manual folding wheelchairs for a one-yeartrial basis subject to certain conditions.' A condition of that equivalent alternative determination is that Avianca must obtain prior approval from the Department 

### ifit deviates from the wheelchair stowage method described in the original April9, 2010, request. Avianca is now requesting that the Department extend the wheelchair stowage approval to an alternate stowage location in its Airbus A319 aircraft. Specifically, Avianca would like to move the stowage space from the right ofthe aft cargo hold in its Airbus A319 aircraft to the center ofthe aftcargo hold in its Airbus A319 aircraft.

1Among other things, Avianca was required to provide to the Department copies ofall complaints, ifany, regarding the stowage ofa passenger's wheelchair in the designated wheelchair cargo stowage space.Thewheelchair stowage location on its Airbus A320 will remain in the same location. Furthermore, Avianca is requesting an indefinite extension ofits wheelchair stowage equivalent alternative determination approving its use ofdesignated wheelchair cargo stowage space to stow two passengers' manual folding wheelchairs as an alternative to incabin priority stowage space on its Airbus A319 and A320 aircraft. We are granting Avianca's equivalent alternative determination requests to move the wheelchair stowage location in its Airbus A319 aircraft and Avianca'srequestfor an extensionofits wheelchair stowage equivalent alternative determination for its Airbus A319 and A320 aircraft for an indefinite period oftime subject to certain conditions, as discussed below.

Section 382.67 requires carriers to ensure "thatthere is a priority space in the cabin of sufficient size to stow at least one typical adult-sized folding, collapsible, orbreak-down manual passenger wheelchair." Section 382.123 sets fo1th further requirements concerning this priority cabin stowage space for wheelchairs and other assistive devices.

Avianca currently utilizes a portion ofthe bulk cargo hold ofits Airbus A319 aircraft as a designated space for the stowage ofup to two passenger folding wheelchairs, in lieuof having a stowage space in the cabin for one passenger's folding wheelchair. In its February 23, 2012, equivalent alternative determination request, Avianca proposes to move the wheelchair stowage space from the right ofthe aft cargo hold to the centerportion ofthe aft cargo hold ofits Airbus A319 aircraft. This new designated space continues to haveroom for the stowage ofup to two passengerfolding wheelchairs and will have in place similar safeguards to prevent wheelchair damage. Avianca states that the new designated spaceon the Airbus A319 is comprised ofa three-sided box/stowage area created by nylon webbing attached to tie-downpoints onthe floor and ceiling ofthe hold to protect each passenger's wheelchair. Avianca notes that this stowage location will.be closed after the hold is loaded, wheelchairs stowed, and another cargo net is secured around the aft cargo door. Avianca further states that in the new wheelchair stowage location thewheelchair will be stowed directly in front ofthe aft cabin door which will result in the airline personnel removing the wheelchairs prior to unloadingbaggage from the cargo and will facilitate the timely delivery ofthe passenger's wheelchair.

In regard to Avianca's request for an indefinite extension ofits equivalent alternative determination, Avianca states that it has not received anycomplaints concerning its wheelchair stowage procedure and maintains that the procedureprovides substantially equivalent accessibility to passengers with disabilities as compared to the requirements in sections 382.67 and 382.123.

Based on the information submittedbyAvianca, particularly the lack ofany wheelchair damage complaints, the Department is granting Avianca's equivalent alternativerequest for sections 382.67 and 382.123 for an indefinite period oftime so that it can utilize priority stowage space in the cargo compartment ofits Airbus A319 and A320 aircraft and alternative priority stowage space in the cargo compattment ofits Airbus A319 aircraft to



### 2stow two manual folding wheelchairs in lieu bfhaving an in-cabin stowage space for one passenger's manual folding wheelchair, under the following conditions:

1. Avianca's equivalent altemative determination will remain in effect indefinitely. Ifat any time DOTdetermines that Avianca's proposal is not providing the same or greater accessibility to passengers with a disabilities as providedby sections 382.67 and 382.123, DOTreserves the right to terminate this approval. Ifthe approval is terminated, Avianca wouldbeexpected to expeditiouslyretrofit any aircraft ordered after May 13, 2009, ordelivered after May 13, 2010, without a priority space inthe passenger cabin, to include such a priority SNCe as is currently required by section 382.67;

2. This approval is limited to Avianca's Airbus A319 and A320 aircraft in the configurations described to theDepartment in Avianca's April 9, 2010, and February 23, 2012, requests. Avianca must obtain the Department's prior approval for any deviations from the method ofstowing a passenger's manual folding wheelchair set forth in Avianca's requests;

3. Avianca's designated wheelchair cargo stowage space must be capable ofstowing at least two manual folding wheelchairs and each wheelchair mustbeplaced in a protective storage bag/box and secured vertically to prevent unnecessary movement during flight;

4. Avianca must ensurethat up to two passengers with a disability who use a manual folding wheelchair and take advantage ofthe opportunity to preboard the aircraft can stow their manual folding wheelchairs in Avianca's designated wheelchair cargo stowage space with priority over all other items. Fora passenger that does not take advantage ofthe opportunityto preboard the aircraft, Avianca must make a reasonable effortto stow the passenger's manual folding wheelchair in its designated wheelchair cargo stowage space;

5. Avianca must ensure that no other items are stowed in its designated wheelchair cargo stowage space ifa folding wheelchair is being stowed in that designated wheelchair cargo stowage space;

6. Avianca must not limit its liability for a lost or destroyed wheelchair or a wheelchair damaged beyond repair inthe designated wheelchaircargo stowage space to the liability limitprovided in the Montreal Convention, or any other applicable treaty or law. Avianca must calculate the compensation owed to a passenger for a lost or destroyed wheelchair or a wheelchair damaged beyond repair in the designated wheelchair cargo stowage space, as the original purchaseprice ofthe device;

7. In addition to stowing at least two passengers' manual folding wheelchairs in its designated wheelchair cargo stowage space, to the extent permitted by govemment

3safety standards, Avianca must also stow in the passenger cabin, passengers' manual folding wheelchairs in the overhead compartments orother stowage areas if passengers make such requests and the devices can physically be stowed in such space. Ifthe wheelchair exceeds the space while fully assembled but will fit if wheels or othercomponents can be removed without the use oftools, Aviancamust

remove the applicable components and stow the wheelchair in thepassengercabin;

8. Avianca must ensure that a passenger's manual folding wheelchair stowed in the designated wheelchair cargo stowage space is the first item offthe aircraft after landing and is delivered to thepassenger at the doorofthe aircraft as soon as the passengerdeplanes the aircraft, unless the passengerrequests to reclaim the wheelchair at Avianca's baggage claim area;

9. Avianca must allow a passenger to remain in his orherpersonal wheelchairup to the door ofthe aircraft, unless thepassenger agrees to relinquish his orher wheelchair at

a different location; ·

10. Avianca must use its best efforts to prevent weather conditions from negatively impacting onthe condition ofthe wheelchair when it is returned to the passenger (e.g., placing a coveron a wheelchair toprevent exposure to the rain orthe hot sun);

11. Avianca must use its best efforts to promptlyprovide a temporaryreplacement wheelchair ofcomparable kind and quality at no charge to the passenger ifa passenger's wheelchairis delayed, lost, damaged ordestroyed while in Avianca's custody. Avianca must not limit its liability for providing a temporary replacement wheelchairto the liability limitprovided in the Montreal Convention, or any other applicable treaty or law. These efforts must bedocumented, andthe documents must beretained for three years, and bemade available to the Department upon request;

12. Avianca mustprovide, orensure the provision of, specializedtraining to its employees and contractors, as well as the employees and contractors ofany other entity, that will be involved with the stowing ofa passenger's manual folding wheelchair in the designated wheelchair cargo stowage space. The specialized training must ensuretraining to proficiency 

### in how toproperly stow a passenger's manual folding wheelchair inthe designated wheelchaircargo stowage space, predeparture procedures to ensure the passenger's wheelchair is placed onthe aircraft, post-landing procedures to ensure thatthe passenger's wheelchair is the first item removed from the aircraft, properprocedures to follow ifa wheelchair is lost, damaged, ordestroyed, and the proper procedures to obtain a temporary replacement wheelchairfor a passenger; and

13. Avianca must also provide this office with copies ofall complaints, or a cettification thatthere were no complaints. regarding the stowage ofa passenger's wheelchair in the designated wheelchair cargo stowage space every year. Aviancamust submit



### 4this information by the last Monday in January ofeach year for complaints received during the prior calendar year. The first report is due on January 28, 2013, for complaints received from the approval date to December 31, 2012. This submission is separate from the annual disability-related complaints repmt that is to be submitted
at the same time in accordance with section 382.157. Avianca must retain correspondence and records ofactions taken on all complaints related to wheelchair stowage for three years after receipt ofthe complaint or creation ofthe record of action taken and must make these records available at the Department's request.

Ifyou have any questions about this matter, please contact Michael Hallock or Kimberly Graber, ofmystaff, at (202) 366-9342.

Sincerely,

# 7~ Samuel Podberesky Assistant General Counsel for

Aviation Enforcement and Proceedings

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