# SQ!JIRE SANDERS LEGAL COUNSEL WORLDWIDE

September 10, 2008 VIAELECTRONIC SUBMISSION SamuelPodberesky Assistant General Counsel for

AviationEnforcement and Proceedings, C-70 U.S. DepartmentofTransportation 1200NewJerseyAvenue, S.E.-RoomW96-322 Washington, D.C. 20590 SQUIRE, SANDERS & DEMPSEYL.L.P. Suite500 1201 PennsylvaniaAvenue, N.W. Washington, D.C. 20004-2401 Office: +1.202.626.6600 Fax: +1.202.626.6780 DirectDial: +1.202.626.6840 cdonley@ssd.com

Re: DocketDOT-OST-2008-0272: Requestfor conflictoflawwaivers under 14 C.F.R. 382.9 DearMr. Podberesky: In accordance with 14 C.F.R. 382.9, I am writing on behalfofTrans American Airlines, S.A. d/b/a TACA Peru ("TACA Peru"), LAN Peru S.A. ("LAN Peru"), TACA International Airlines, S.A. ("TACA"), and Lineas Aereas Costarricenses S.A. ("LACSA") (together, the "Joint Applicants") to notify the Department ofTransportation ("Department") ofconflicts between certain portions ofPart 382 and the regulations of the Republic of Peru, and to request waivers of Part 382 to the extent necessaryto permitthe JointApplicants to continue to complywith Peruvianregulations. 1 Under 14 C.F.R. 382.117, the Departmenthas establishedrequirements regarding the carriage of service animals aboard flights operated by foreign air carriers serving a United States point. Peruvian regulationspertaining to the transportation ofanimals, however, include certainmandatoryrequirements that conflict with Section 382.117. In accordance with Section 382.9, the Joint Applicants therefore respectfully request waivers permitting them to continue to comply with Peruvian regulations related to the transportation of live animals, including service animals, aboard their aircraft. The specific information required bySection 382.9 is set forth below.

I Although TACA and LACSA are not domiciled in Peru, they occasionallyoperate single flight number services between the United States and Peru, via their homelands. In the absence of a waiver, these flights would be covered by Part 382 pursuant to 14 C.F.R. 382.7. TACA and LACSA therefore request waivers with respect topassengers travelingbetweenthe United States and Peru. ClxcJ:-.:NATJ • CI.EVEUND •**Coa:~mes** • HocsToO\i • Los Ax<:l'I.E'> • ivlJAMl • NFw YoRK·**P.~w** At.T< >• PHOF.!\IX • SA>: FRANnsco • TALI.AHASSFF ·TAMPA· TYS<l"ls O>RNEH WASI·I!N<;TuN DC· \NEsT PAL\1 BrACH ;**C~RACAS** • R1<J DE JANEIRo· SANTO DoMJ:o.:<;o ! BRXINAV:\ • BRUSSFLS • BL'!.>APEST • FRA>IKFURT • L, >C:DON ·Moscow PRA<:UE ·WARSAW i BElJlM; • HoN<; KnN« • SHANCHA! • T<lKYo I**Assun~TED** O!'Fln.s: l:lt:<:J-L·\Rbl' BuENosAmF.S • DU!\I.IN • KYlV • S,\NTLA<:oSQUIRE, SANDERS & DEMPSEYL.L.P. SamuelPodberesky September 10, 2008 Page 2

382.9(c)(l) A copy, in theEnglish language, of the foreign law involved. Included with this letter is a an English-language copy of Complementary Technical Rule ("CTR") NTC: AVSEC-002-2008 ("Rule"), issued by the Pemvian DGAC and currently in effect. Section 2 ofthe Rule extends its applicabilityto all air carriers, not simplyPcmviancarriers: The present CTR is applicable to every air carrier.. .intending to transport live animals byairin theRepublic ofPem. (emphasis added) Section 3 states e; plicitlythatcompliancewiththeRule is mandatory: Thi< CTRshall be effective commencing on its date ofpublic2 ion and it is ofmandatory nature. (emphasis added) Additionally, S::;t:tion 4.1(s) ofthe Rule states that carriers must comply ,vith the Rule in transporting animals both as cargo and inthe passengercabin: Air carriers are responsible to perform the transport of live animals according to the provisions containedin the present CTR, whetherthey're beingtransported as cargo or in the passenger cabin. (emphasis added) The Rule clearly establishes mandatory requirements applicable to the carriage ofall types of animals--whether such animal are considered service animals, pets, or commercial cargo--with which the Joint Applicants mustcomply. 382.9(c)(2) A description of how theforeign law applies andhow itprecludes compliance with aprovision of this Part. The Rule conflicts with Sections 382.87(a), 382.117(a), 382.117(a)(l), 382.117(b), 382.117(d), 382.117(e), and 382.117(f) of the Department's regulations. To the extent necessary, the Joint Applicants request a waiver from each ofthese sections, and any other sections necessary, to permit them to complywith the Rule. A section-by-section discussion ofPart 382, how the Rule conflicts with each section, and possible alternative means ofcompliance are set forth below. 382.117(a) and 382.117(t) Section 382.117(a) states that carriers must permit a "service animal" to accompany apassenger with a disability. Section 382.117(f) states that foreign carriers are required to carry canine "service animals". The Department's guidance with respect to service animals makes clear that such animalsSQUIRE,SANDERS & DEMPSEYL.L.P. Samuel Podberesky September 1 0, 2008 Page 3

include those which provide passengers with emotional and psychiatric support and that serve as hearing, signal or seizure alert animals, as well as those serving as guide or seeingeye dogs. The Rule does not permitthe carriage ofservice animals otherthan seeing eye dogs, andrequires that such dogs wear a muzzle throughout the flight. Owners are required to provide the carrier with a certificate confirming that the dog has**be~n** suitablytrained, as well as with ahealth certificate. Section 4.1(d) states: Ifthe authorizations given to the air carrier allow it, seeing eye dogs may travel in the passenger cabin using a muzzle throughout the flight and accompanied by its owner. Acceptance ofthese anima).;; requires a training certificate confirming they are seeing eye animals, in additionto ther.-'spectivehealth certificate. (emphasis added) Section 4.1(g) of the Rule makes clear that seeing eye dogs (and small, crated pets allowed under Section 4. 1(e)) are the onlyanimals allo-v. edto becarriedin the cabin: Except for theprovisions ofparagraphs (d) [regarding seeing eye dogs] and (e) [regarding cratedpets] ofSection4.1, no othertype ofanimals maytravel. (emphasis added) The combined effect ofSections 4.1(d) and 4.1(g) is that the Joint Applicants can carry in the passenger cabin only seeing eye dogs, and only when the owner has provided a health certificate as well as a certificate confirming that the dog has in fact been trained as a seeing eye dog. The Joint Applicants cannot carryin the passenger cabin canine "service animals" otherthan certified seeing eye dogs, which prevents the Joint Applicants from accepting emotional or psychiatric support dogs, hearing dogs, seizure alert dogs, signal dogs, or any othernon-seeing eye dog. The Joint Applicants submit there is no alternative means they can use to carry in the cabin animals other than duly trained and certificated seeing eye dogs. The Rule states unequivocally that only such animals may be carried, and that they may be carried only when muzzled and the passenger has providedtraining and health certificates.2 382.117(a)(l) Section 381.117(a)(l) states that carriers may not deny transportation to a service animal based on the fact that the animal might offend or annoy carrier employees or passengers. However, Rule Section 4.1(f) states clearlythat Peruvian carriers cannot transport animals that disturb the crew orother passengers as aresult ofamalodorous condition, noisiness, orothercondition orbehavior:

2 The Joint Applicants are not aware of a specific requirement ofthe Department that would require seeing eye dogs to be transported without muzzles. To the extent there is such a requirement, the Joint Applicants request a waiver to allow them to transport seeing eye dogs in the cabin only when properly muzzled in accordance with the Rule.SQUIRE, SANDERS & DEMPSEYL.L.P. SamuelPodberesky September 10, 2008 Page4

Animals which by their special characteristics such as bad odor, noises and others that maybe disturbing for the rest ofpassengers and crew may not be admitted. (emphasis added) The prohibition set forth in Section 4.1(£) is directly contrary to the Department's requirement that the Joint Applicants carry animals without regard to whether they annoy or offend other passengers and crew in everycircumstance. This restriction does not applyonlyto exotic or unusual animals--it applies equall)'to service animals, including seeing eye dogs. TheJointApplicants recognize there is likelyto be an ele nent ofsubjectivityinwhat constitutes a "dis .Jrbance". As an alternative means ofcompliance, theyw 

### ;1 use theirbest efforts to resolve cases ofdis urbance in favor ofcarrying the animal (provided it mee•s the other requirements ofthe Rule). However, where a conflict over a disturbance under Section 4.1(f) cannot be resolved, the Joint AppE ;antsmustcomplywithPeruvianrequirements. 382.87(a) and 382.117Cb) Section 382.87(a) states that carriers may not exclude disabled passengers from any seat or require that a disabled passenger sit in any particular seat, except to comply with safety requirements. Section 382.117(b) requires that carriers permit the service animal to accompany the passenger at any seat in which thepassenger sits. However, Section 4.1(1) prohibits animals (including service animals) from beinglocatednearfood to lessen therisk ofcontamination: Animals must not be placed near food embarking in any stage of the transport due to contaminationrisks. The Joint Applicants anticipate there will be few occasions on which they will be required to exclude from particular seats disabled passengers with seeing eye dogs. However, to comply with Section 4.1(1), it is possible that the Joint Applicants might have to restrict access to seats immediately adjacent to the aircraft galley to meet Section 4.1(l)'s requirements in cases where food is to be brought aboard the aircraft. This is contrary to the Department's requirement that seats be available to disabled passengers subject onlyto safetyrequirements. The Joint Applicants do not believe there is an alternative means of compliance that would permit them to locate animals near food. However, the Joint Applicants do not believe this will occur frequently and, ifit does occur, theywill minimizethe numberofseats affected to the extentpossible. 382.117Cd) Section382.117(d)requires thatcarriers accept identification cards, otherwritten documentation, the presence ofharnesses, tags, or the credible verbal assurances ofthe disabled passenger with respectSamuel Podberesky September 10, 2008 Page 5 SQUIRE, SANDERS & DEMPSEYL.L.P.

to the animal's status as a service animal. Section 4.l(d) requires that service animals (which includes only seeing eye dogs) mustbe accompaniedbyatraining certificate as well as ahealth certificate: Ifthe authorizations given to the air carrier allow it, seeing eye dogs may travel in the passenger cabin using a muzzle throughout the flight and accompanied by its owner. Acceptance ofthese animals requires a training certificate confirming they are seeing eye animals,in additionto therespectivehealth certificate. (emphasis added) The Rule does not pennit the Joint Applicants to accept or rely on identification cards, harnesses, tags, or verbal assurances; the Joint Applicants can accept only a written training certificafon. The Joint Applicants are also required l·y Section 4.l(d) to obtain a health certificate from the oPnerbefore the animal canbe transported. · In addition to Section4.1(d), the JointApplicants arerequiredto complywith Sections 4.1(t) and 4.2 ofthe Rule. Section4.1(l: delineates the additional identifying documentationthat L required for incabin animals as well as animals transported as cargo: Foreverycasethere mustbe documents that:

1. Identifythe animals

11. Identifythe owner

111. Specifytheplace oforigin

IV. Indicate the time anddate oftransport commencement

v. In case ofwild animals, theymusthave the documentation issuedbyINRENA

VI. Veterinarianhealthcertificate issued bythe relevant authority (Senasa) (emphasis added) Section4.2 requires that all animalsbe accompaniedbya validhealthcertificate: Everyimport and export oflive animals mustbe accompanied by avalid health certificate from the state oforigin. (emphasis added) As a result, under Sections 4.1(d), 4.l(t), and 4.2, before the Joint Applicants can transport a seeing eye dog in the passenger cabin the passenger must provide (i) a certificate confirming the dog isSamuel Podberesky September 10, 2008 Page 6 SQUIRE, SANDERS & DEMPSEYL.L.P.

duly trained as a seeing eye dog; (ii) identifying information related to the dog and its owner; (iii) the travel itinerary; and (iv) aveterinaryhealth certificateissuedbythe state oforigin.3 The Joint Applicants do not believe there are alternative means to comply with Section 382.117(d)'s requirement that they accept evidence other than a training certificate in support of a passenger's assertion that his or her dog is a s.;:eing eye dog in view ofthe explicit requirements of Sections 4.1 and 4.2 ofthe Rule. 382.117(e) Section 382.117(e) requires that carriers ;cccept emotional support animals orpsychiatric service animals for transportation in the cabin provided the passenger supplies certain evidence supporting the animal's abilities. Sections 4.1(d) and 4.1(g) of.the Rule, however, prohibit the carriage ofany animal in the cabin unless the animal is a muzzled seeirtg eye dog or a small, crated pet. Section 4.1(g) states that only these types ofanimals may travel in i'w cabin. The Joint Applicants cannot cany emotional support or psychiatric service animals in the passenger cabin, no matter the type of documentation providedbythepassenger. Sections 4.1(d) and 4.1(e) allow the carriage ofseeing eye dogs and small, crated pets in the passengercabin. Section4.l(d) states: If the authorizations given to the air carrier allow it, seeing eye dogs may travel in the passenger cabin using a muzzle throughout the flight and accompanied by its owner. Acceptance of these animals requires a training certificate confirming they are seeing eye animals, in additionto therespectivehealthcertificate. Section 4.1(e) states: Domestic animals (pets) with a maximum weight of six (6) kilograms may travel in their respective crates. Section4.1(g) makes clear, however, that no other animals arepermitted in thecabin: Except for the provisions ofparagraphs (d) and (e) ofSection 4.1, no other type ofanimals may travel. (emphasis added)

3 The Joint Applicants note that the Department's guidance on service animals states "(i]n most cases, airlines may not insist on advance notice or health certificates for service animals under the ACAA regulations." 73 Fed. Reg. 27614, 27661, May 13, 2008. Sections 4.l(t) and 4.2 ofthe Rule clearly require health certificates priorto travel.Samuel Podberesky September 10, 2008 Page 7 SQUIRE, SANDERS & DEMPSEYL.L.P.

The Joint Applicants are therefore prohibited from accepting service animals for carriage in the cabin unless such animals are seeing eye dogs, without regard to the evidence or documentation a passenger mightprovide to support aclaim that the dog is an emotional support orpsychiatric service animal. In view ofthe highlyrestrictivenature ofSections 4.1(d), 4.1(e), and4.1(g), the Joint Applicants do not believe there is an alternative means ofcomplying with Section 382.117(e)'s requirement that they carrynon-seeing eye dogs in the passenger cabin, reg2.rdless ofthe documentation provided bythe passenger. Conclusion TACA Peru, LAN Peru, TACA, and LACSA will continue to monitor the Peruvian hrovemment'sregulations and, shouldtheregulations bear ended to eliminatetherestrictions described in this waiver request, the carriers will revise their practices accordingly to the maximum extent Jossible, consistent with Peruvian law. Until the Rule is modified, however, the Joint Applicants are prohibited from complying with various sections ofPan 382. TACA Peru, LAN Peru, TACA, and LACSA therefore respectfully request waivers from Part 382 to the extent necessary to permit them to complywith Peruvian laws and regulations, as more fully describedherein. Verytrulyyours,

# ~_/~IL Charles F. DonleyII Enclosure

## MTC I DGAC Av. Zorritos No. 1213 Lima 1-Peru 

### COMPLEMENTARY TECHNICAL RULE CTR: NTC:AVSEC-002-2008 DATE: JANUARY/03/08 REVIEW: ORIGINAL ORIGINATED BY: AVSEC/DSA

SUBJECT: TRANSPORT OF LIVE ANIMALS 1. PURPOSE The present CTR describes the safety rules for the transport of live animals in the Republic of Peru. 2. APPLIC;;BILITY The present CTR is applicable to every air carrier, airport operator,**~-md** airport special servce operator, registered agent, crating manufacturer, inch 1ding every company or dispatcher intending to transport live animals by air in the Republic of Peru. It is also addressed to those aspects that must be taken into consideration in order for the animals to be transported without injuries either to them or to the people intervening in their care and the general public. 3. EFFECTIVE DATE This CTR shall be effective commencing on its date of publication and it is of mandatory nature. 4. REGULATION

4.1. General Conditions

a. The animals must be in good health to be transported, sick or wounded animals must not be transported; this does not apply to animals slightly wounded, or to those that although sick will not sufferduring transport. b. Animals that may give birth during transport are not considered fit for transport.

c. Under no circumstances may an animal travel in the cockpit of the flight crew. d. Ifthe authorizations given to the air carrier allow it, seeing eye dogs may travel in the passenger cabin using a muzzle throughout the flight and accompanied by its owner. Acceptance of these animalsrequires a training certificate confirming they are seeing eye animals, in addition to the respective health certificate.

e. Domestic animals (pets) with a maximum weight of six (6) kilograms maytravel in their respective crate. f. Animals which by their special characteristics such as bad odor, noises and others that may be disturbing for the rest of passengers and crew may not be admitted. g. Except for the provisions of paragraphs (d) and (e) of section 4.1, no othertype ofanimals maytravel. h. Animals may be transported only in such aircraft having prepared and acclimatized storage compartments. i. Every air carrier, airpor: special service, registered agent must have a check list for the accFptance of live animals. j. It is prohibited for non authorized personnel to get near or disturb the animals. k. Rules related to the marketing of prohibited species must be well known and complied with. I. Animals must not be placed near food embarking in any stage of the transport dueto contamination risks.

m. Airport precincts or areas occupied by the animals must be disinfected every twenty four (24) hours in case they've been regularly used to accommodate animals.

n. Personnel in charge of the animals must have equipment for personal protection to minimize any health risks, such as gloves, masks, hand washing with germicide soap, etc.

o. Aircraft must be cleaned and disinfected when transporting quantities of live animals. p. Air carriers must have trained personnel and appropriate premises to handle animals being transported by air. q. Air carriers must produce a live animal's transport manual, where the policies and procedures (acceptance, handling, cargo and transport} of such activity must be specified. Such manual must be filed with the DGAC for its approval.

r. The captain of the aircraft shall be notified in the NOTOC special form (box OTHER SPECIAL CARGO) of every living animal being boarded, specifying quantity and location.s. Air carriers are responsible to perform the transport of live animals according to the provisions contained in the present CTR, whether they're being transported as cargo or in the passengercabin. t. For every case there must be documents that: i. Identifythe animals ii. Identifythe owner iii. Specifythe place of origin iv. Indicate the time and date oftransport commencement

v. In case of wild animals, they must have the documentation issued by 'NRENA. vi. Veterinarian health cerficate issued by the relevant authority (Senasa). 4.2. Import and Export of Live animals.

a. Every import and export of live animals must be accompanied by a valid health certificate from the state oforigin. b. In case of wild animals, they must have the documentation issued by INRENA. 4.3. Containers

a. The animals shall be transported only in closed crates or containers; transport in open containers shall be performed with the previous authorityfrom the carrier. b. Every container must be appropriate for the type of animal to be transported.

c. It must be of easy handling for the cargo personnel and have a protection that prevents such personnel from being attacked by the animals (bites, scratches). d. The crates orcontainers must be well built and must be able to: i. Restrain and keep the animal inside during the entire time. ii. Protect the animal from non authorized access. iii. Prevent the accidental or intentional opening of the doors from inside oroutside.iv. Support the load of other cargo that may damage or deform them.

v. Have the necessary stiffness to prevent the animal from escaping through breathing ho!es, joints or separations. 4.4. Labels and Marks

a. The Freight forwarder is responsible for the necessary labeling and marking ofevery live animal container. b. Every label and mark for the domestic transport of live animals must be in Spanish and all exports must also be in English.

c. The marks must contain at least the following information: i. Complete name, address and teler>hone number of the freight forwarder, freight agent orperson r- sponsible for the shipment. ii. Common and scientific name ofthr-· animal. iii. The containers carrying animals that may cause poisonous bites or stings must be marked with the words "VENENOSO" ("POISONOUS"); also animals that may cause wounds through the bars or ventilation holes of the container must be marked with the additional warning "ESTOS ANIMALES MUERDEN" ("THESE ANIMALS BITE"). d. They must have at least the following labels: i. "ANIMALES VIVOS" ("LIVE ANIMALS") label in bright green letters with a light background, with dimensions ofat least 1Ox15 centimeters and 2.5 centimeters height for the letters. ii. "ESTE LADO ARRIBA" ('THIS SIDE UP") bright label or black colorwith a light background, of at least 1Ox15 centimeters. iii. "ANIMALES DE LABORATORIO" ("LABORATORY ANIMALS") label, if applicable, in bright red with a light background of at least 1Ox15 centimeters. 5. MORE INFORMATION CONTACTS For any technical question related to this CTR, please contact the AVSEC Department of DGAC, telephone I fax (511} 315-7800, extension 1653, e mail: avsec@mtc.gob.pe