U.S. Department of Transportation Office of the Secretary o'f Transportation

Claudio Zinno Sede Legale PiazzaAlmerico da Schio Palazzina RPU 00054 Fiumicino (RM) ltalia

Dear Mr. Zinno: GENERAL COUNSEL March 28, 2013

Registered Mail-Return Receipt Requested 1200 NewJersey Avenue, SE Washington, DC 20590

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Re: Conflict ofWaiver Request Concerning 14CFR382.1 and382.7

This letter concerns Alitalia-Compagnia Aerea ltaliana S.p.A.'s (Alitalia) September 10, 2008, request for a conflict oflaws waiver under section 382.9 ofthe Department ofTransportation's Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. The provisions ofPart 382 for which relief is requested are sections 382.1 and 382.7, which concern the purpose and applicability of Part 382. The Department has already responded to Alitalia's requests for an equivalent alternative determination concerning the movable aisle armrestrequirement contained in section 382.61, and conflict of laws waivers from the boarding, deplaning, and connecting assistance requirements contained in Subpart G (14 CFR 382.91-382.105) as well as the training and complaint resolution provisions in 382.141, 382.151, 382.153, and 382.155. We are continuing to review the carrier's requests concerning various otherprovisions ofPart 382. For the reasons discussed below, we are denying Alitalia's request for a conflict oflaw waiver from sections 382.1 and 382.7.
Request for ConflictofLaws Waiver
In keeping with the Department's obligation and commitment: to giving due consideration to foreign law where it applies, 14 CFR 382.9 provides a conflict oflaws waiver mechanism. [fa carrier believes that a provision ofa foreign law conf1icts with a requirement ofPart 382, it can submit a waiver request. The Department states in the preamble to the 2008 comprehensive amendment to Part 382, both in the Section-by-Section Analysis ofsection 382.9 (73 Fed. Reg. at 27646-27647) and in the discussion on Cont1ict ofLaw Waivers and Equivalent Alternative Determinations (73 Fed. Reg. at 27616) that a foreign law that requires a foreign carrier to do2
something prohibited by Part 382, or that prohibits a tbreign carrier from doing something required by Part 382, is an appropriate subjectfor aconflict oflawswaiver.
Alitalia asserts that the purpose and applicability provisions ofPart 382 (sections of382.1 and 382.7 respectively) cont1ict with Articles 1.2 and 1.3 of EC 1107/2006, the European Union (EU) regulation on service to passengers with disabilities. Article 1.2 ofEC 1107/2006 states, ''The provisions ofthis Regulation shall apply to disabled persons and persons with reduced mobility, using or intending to use commercial passenger air services on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State to which the Treaty applies." Article 1.3 ofEC 1107/2006 states, "Articles 3, 4 and 1 0 shall also apply to passengers departing from an airport situated in a third country to an airport situated in the territory ofa Member State to which the Treaty applies, ifthe operating carrieris a Community air carrier." 1

Pursuantto 14 CFR 382.1, thepurposes ofPart 382 are toprohibitU.S. and foreign carriers from discriminating ag;·inst passengers on the basis ofdisability, to require**c~.rriers** to make aircraft, other facilities, a d services accessible, and to require carriers to take steps to accommodate passengers with "' disability. Section 382.7 states that with respect to foreign carriers, only flights that begin orend at aU.S. airport, and aircraft used inthose operations, are covered under Part 382. Sectio.1 382.7 defines a "flight" as a continuousjourney of··passenger in the same aircraft or using the same flight number, and provides several examples ofwhat constitutes a "flight." Section 382.7 provides further that a charter flight on a foreign carrier from a foreign airport to a U.S. airport and back would not be covered if the carrier did not pick up any passengers in the U.S.

Decision
I. Waiverfrom 14 CFR 382.1
The Department finds that section 382.1 neither conflict with, nor is in any way inconsistent with, EC 1107/2006. Both Part 382 and EC 1107/2006 seek to prohibit carriers from discriminating against passengers on the basis ofdisability, and to ensure that passengers with a disabilityreceive reasonable accommodations. In fact, Article 1.1 ofEC 1107/2006 states, "This Regulation establishes rules for the protection ofand provision ofassistance to disabled persons and persons with reduced mobility travelling by air, both to protect them against discrimination and to ensure thatthey receive assistance." Furthermore, Alitalia has not clearly demonstrated that any provisions ofArticles 1.2 and 1.3 ofEC 1107/2006 conflict with, or are in any way inconsistent with, the intent of 14 CFR 382.1. Therefore, having found no conflict oflaw, the Departmentmust deny Alitalita's conflict oflaw waiver request for section 382.1.

Article 3 ofEC II07/2006 prohibits carriers and tour operators from refusing, on the grounds ofdisability
or reduced mobility, to accept 

### areservation from a passenger on a flight to or from an airport covered by the Regulation orto enplane a passenger at such airports. Article 4 contains provisions addressing special conditions in which carriers may refuse to accept a reservation orto enplane a passengerwith a disability orreduced mobility and the rights ofpassengers in such circumstances, when a safety assistantmay berequired, and infonnation that carriers and agents must provide to passengers. Article I0 mandates the assistance that carriers must provide to passengers with a disability orreduced mobility at no additional charge

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II. Waiverfrom 14 CFR 382.7
The Department also tinds that section 382.7 neither conflicts with, nor is in any way inconsistent with, EC 1107/2006. We acknowledge that transatlantic flights would be subject to both regulations, and that conflicts may arise that could cause confusion. fu response to this concern, and in keeping with the Department's obligation and commitment to giving due consideration to foreign law where it applies, 14 CFR382.9 provides a conflict oflaws waiver mechanism. Ifa carrierbelievesthat aprovision ofa foreign law conflicts with a requirement of Part 382, it can submit a waiver request. The Department states in the preamble to the 2008 comprehensive amendment to Part 382, both inthe Section-by-SectionAnalysis ofsection 382.9 (73 Fed. Reg. at 27646-27647) and in the discussion on Conflict ofLaw Waivers andEquivalent Alternative Determinations (73 Fed. Reg. at 276.16), that a foreign law that requires a foreign carrier to do something prohibited by Part 382, or that prohibits a foreign carrier from doing somethingrequired by Part 382, is an appropriate subject for a conflict oflaws waiver. We note that Alitalia has taken advantage of section 382.9 and requested conflict oflaws waivers and equivalent alternative determinations from 14 other provisions of Part 382. Alitalia has not demonstratedthat anyprovision ofsection382.7 conflicts withoris in any wayinconsistentwith the intent ofArticles 1.2 and 1.3 ofEC 1107/2006. Therefore, having found no conflict oflaw, the Departmentmustdeny Alitalita's conflictoflawwaiverrequestfor section 382.7.
Ifyou have any questions about this matter, please contactVinh Nguyen orMaegan Johnson, of my staff, at(202) 366-9342. Sincerely,

# ~ AssistantGeneral Counsel for

Aviation EnforcementandProceedings