U.S. Department of Transportation Office ofthe Secretary ofTransportation GENERAL COUNSEL

March 28, 2013 1200 NewJerseyAvenue, SE Washington, DC 20590



### Certified Mail-Return Receipt Requested**\.,.,.~}**
William Karas Steptoe & Johnson, LLP 1330 ConnecticutAvenue,N.W. Washington, DC 20036-1795

DearMr. Karas: Re: ConflictofWaiverRequest Concerning 14 CFR382.1 and 382.7 \< ·" ••• .:

This letter concerns IberiaLineas Aereas de Espafia, S.A.'s (Iberia) September 10,2008,request for a conflict of laws waiver under section 382.9 ofthe Department of Transportation's Air Carrier Access Act (ACAA) regulation, 14 CFR Part 382. The provisions ofPart 382 for which reliefis requested are sections 382.1 and 382.7, which concern the purpose and applicability of Part 382. The Departmenthas alreadyresponded to Iberia'srequests for conflict oflawswaivers and equivalent alternative determinations concerning the boarding, deplaning, and connecting assistance requirements contained in Subpart G (14 CFR 382.91-382.105), as well as the contractor compliance, training, and complaint resolutionprovisions in sections 382.15, 382.141, 382.151, 382.153, and 382.155. We are continuing to review the carrier's requests concerning various other provisions ofPart 382. For the reasons discussed below, we are denying Iberia's requestfor a conflictoflawswaiverfrom sections 382.1 and 382.7. 

### Requestfor ConflictofLawsWaiver

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. Ifa carrier believes that a provision ofa foreign law conflicts with a requirement ofPart 382, it can submit a waiver request. The Department states in the preamble to the 2008 comprehensive amendmentto Part 382, both in the Section-by-Section Analysis ofsection 382.9 (73 Fed. Reg. at 27646-27647) and in the discussion on Conflict ofLaw Waivers and Equivalent Alternative Determinations (73 Fed. Reg. at 27616) that a foreign lawthat requires a foreign carrier to do something prohibited by Part 382, or that prohibits a foreign carrier from doing something requiredbyPart 382, is an appropriate subjectfor a conflict oflawswaiver.

Iberia asserts that the purpose and applicability provisions ofPart 382 (sections 382.1 and 382.7 respectively) conflictwith Article 1ofthe Chicago Convention and Articles 1.1, 1.2, 1.3, and 16 ofEC 1107/2006,theEuropean Union (EU) regulation on service to passengers with disabilities. ··\2

Article 1 of the Chicago Convention provides that "every State has complete and exclusive sovereignty over the airspace above its territory." 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 that they receive assistance." 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 ofa Member State to which the Treaty applies." Article 1.3 ofEC 1107/2006 states, "Articles 3, 4 and 10 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 carrier is a Community air carrier.''1 Article 16 ofEC 1107/2006 states, "The Member States shall lay down rules on penalties applicable to infringements ofthis Regulation and shall take all the measures necessary to ensure that those rules are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those. provisions to the Commission and shall notify itwithoutdelay ofany subsequent amendment affecting them."

Pursuantto 14 CFR 382.1, thepurposes ofPart 382 are to prohibitU.S. and foreign carriers from discriminating against passengers on the basis ofdisability, to require carriers to make aircraft, other facilities, and services accessible, and to require carriers to take steps to accommodate passengers with a disability. Section 382.7 states that with respect to foreign carriers, only flights that begin or end at a U.S. airport, and aircraft used in those operations, are coveredunder Part 382. Section 382.7 defmes a "flight" as a continuousjourney ofa 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 intheU.S.

Iberia claims that Part 382 contravenes Article 1 of the Chicago Convention by extending application of Part 382 beyond a U.S. territory. Iberia also argues that a transatlantic route would be subject to both the U.S. and the EU regimes, which the carrier asserts can and will

· cause legal uncertainty to bothpassengers and airlines.

Decision

I. Waiverfrom 14 CFR 382.1

The Department finds that section 382.1 neither conflicts with, nor is in any way inconsistent with, the Chicago Convention and EC 1107/2006. In fact, both Part 382 and.EC 1107/2006 seek to prohibit carriers from discriminating against passengers on the basis of disability, and to

1 Article 3 ofEC I 107/2006 prohibits carriers and tour operators from refusing, on the grounds ofdisability or reduced mobility, to accept a reservation from a passenger on a flight to or from an airport covered by the Regulation orto enplane a passengerat such airports. Article4 contains provisions addressing special conditions in which carriers may refuseto accept areservation orto enplane apassenger with a disability orreduced mobility and the rights ofpassengers in such circumstances, when a safety assistantmayberequired, and informationthat carriers and agents must provide to passengers. Article 10 mandates the assistance that carriers must provide to passengers with a disability orreduced mobility at no additional charge.3

ensure that passengers with a disability receive reasonable accommodations. Iberia has not demonstrated that any provisions ofArticles 1.1, 1.2 1.3, or 16 ofEC 1107/2006 conflictwith, or are in any way inconsistent with, the intent of 14 CFR 382.1. Therefore, having found no conflict oflaws, the Department must deny Iberia's conflict oflaws waiver request for section 382.1.

II. Waiverfrom 14 CFR 382.7

The Department also finds that section 382.7 neither conflicts with, nor is in any way inconsistent with, the Chicago Convention and EC 1107/2006. In regards to the Chicago Convention, the Department stated in the preamble to the 2008 comprehensive amendment to Part 382that itbelieves Article 1ofthe Chicago Convention is fully consistentwiththe adoption ofrequirements that affect flights to and from the U.S. (73 Fed. Reg. at 27618). In response to foreign carriers' concern regarding codeshare flights between two foreign points, section 382.7(c) states that foreign carriers are not responsible to the Department for compliance with Part 382 for flights between tyvo non-U.S. points. See also section 382.7(b), Example 4, concerning passengers traveling on a segment between two foreign points ona direct flight that originates or terminates in the U.S. The Department explained that ifthere is a service-related violation of Part 382 on a flight between two non-U.S. points operated by a foreign carrier, affecting a passenger traveling under a U.S. carrier's code, the violation would be attributed to the U.S. carrier, and any enforcement action taken by the Department would be against the U.S. carrier. With respect to the assertion that section 382.7 conflicts with EC 1107/2006, we acknowledgethat transatlantic flights between anEU Member State andthe United States would be·subjectto both regulations, and that conflicts may arise that could cause confusion. We note that Iberia has taken advantage ofthe conflict oflaws provision, section 382.9, and requested conflict oflaws waivers and equivalent alternative determinations from 16 other provisions of Part 382. However, Iberia has not demonstrated that Article 1 ofthe Chicago Convention or Articles 1.1, 1.2, 1.3, and 16 ofEC 1107/2006conflict with, or are inany way inconsistent with, any provision of section 382.7. Therefore, having found no conflict oflaws, the Department mustdeny Iberia's conflictoflaws waiverrequestfor section 382.7.

If you have any questions about this matter, please contact Vinh Nguyen or Kathleen BlankRiether, ofmy staff, at (202) 366-9342.

Sincerely,

## ~ 

# =======**~** Samuel Podberesky Assistant General Counsel for

AviationEnforcementandProceedings