U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

March 28, 2013 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Certified Mail-Return Receipt Requested \.,.,.~} 

William Karas 

Steptoe & Johnson, LLP 

1330 Connecticut Avenue, N.W. 

Washington, DC 20036-1795 

Dear Mr. Karas: 

Re: Conflict of Waiver Request Concerning 

14 CFR 382.1 and 382.7 

\< ·" ••• .: 

This letter concerns Iberia Lineas Aereas de Espafia, S.A.'s (Iberia) September 10,2008, request 

for a conflict of laws waiver under section 382.9 of the Department of Transportation's Air 

Carrier Access Act (ACAA) regulation, 14 CFR Part 382. The provisions of Part 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 Iberia's requests for conflict oflaws waivers 

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 resolution provisions 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 of Part 382. For the reasons discussed below, we are denying Iberia's 

request for a conflict oflaws waiver from sections 382.1 and 382.7. 

Request for Conflict ofLaws 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 of laws waiver mechanism. If a 

carrier believes that a provision of a 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 in the Section-by-Section Analysis of section 382.9 (73 Fed. Reg. 

at 27646-27647) and in the discussion on Conflict of Law Waivers and Equivalent Alternative 

Determinations (73 Fed. Reg. at 27616) that a foreign law that requires a foreign carrier to do 

something prohibited by Part 382, or that prohibits a foreign carrier from doing something 

required by Part 382, is an appropriate subject for a conflict oflaws waiver. 

Iberia asserts that the purpose and applicability provisions ofPart 382 (sections 382.1 and 382.7 

respectively) conflict with Article 1 of the Chicago Convention and Articles 1.1, 1.2, 1.3, and 16 

of EC 11 07/2006, the European 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 of EC 1107/2006 states, "This 

Regulation establishes rules for the protection of and provision of assistance 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 of EC 1107/2006 states, "The provisions 

of this 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 of EC 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 of a Member State to which the Treaty applies, if the operating carrier is a Community 

air carrier.''1 Article 16 of EC 1107/2006 states, "The Member States shall lay down rules on 

penalties applicable to infringements of this 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 it without delay of any subsequent amendment affecting them." 

Pursuant to 14 CFR 382.1, the purposes of Part 382 are to prohibit U.S. and foreign carriers from 

discriminating against passengers on the basis of disability, 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 covered under 

Part 382. Section 382.7 defmes a "flight" as a continuous journey of a passenger in the same 

aircraft or using the same flight number, and provides several examples of what 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. 

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 both passengers and airlines. 

Decision 

I. Waiver from 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 of EC I 107/2006 prohibits carriers and tour operators from refusing, on the grounds of disability or 

reduced mobility, to accept a reservation from a passenger on a flight to or from an airport covered by the 

Regulation or to enplane a passenger at such airports. Article 4 contains provisions addressing special conditions in 

which carriers may refuse to accept a reservation or to enplane a passenger with a disability or reduced mobility and 

the rights of passengers in such circumstances, when a safety assistant may be required, and information that carriers 

and agents must provide to passengers. Article 10 mandates the assistance that carriers must provide to passengers 

with a disability or reduced mobility at no additional charge. 
3 

ensure that passengers with a disability receive reasonable accommodations. Iberia has not 

demonstrated that any provisions of Articles 1.1, 1.2 1.3, or 16 ofEC 1107/2006 conflict with, or 

are in any way inconsistent with, the intent of 14 CFR 382.1. Therefore, having found no 

conflict of laws, the Department must deny Iberia's conflict of laws waiver request for section 

382.1. 

II. Waiver from 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 382 that it believes Article 1 of the Chicago Convention is fully consistent with the adoption 

of requirements 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 on a direct flight that 

originates or terminates in the U.S. The Department explained that if there 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 

acknowledge that transatlantic flights between an EU Member State and the United States would 

be· subject to both regulations, and that conflicts may arise that could cause confusion. We note 

that Iberia has taken advantage of the conflict of laws provision, section 382.9, and requested 

conflict of laws waivers and equivalent alternative determinations from 16 other provisions of 

Part 382. However, Iberia has not demonstrated that Article 1 of the Chicago Convention or 

Articles 1.1, 1.2, 1.3, and 16 of EC 1107/2006 conflict with, or are in any way inconsistent with, 

any provision of section 382.7. Therefore, having found no conflict of laws, the Department 

must deny Iberia's conflict of laws waiver request for section 382.7. 

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

Sincerely, 

~ ~ ======= 

Samuel Podberesky 

Assistant General Counsel for 

Aviation Enforcement and Proceedings