U.S. Department

of Transportation

Office of the Secretory

of Transportation

GENERAL COUNSEL.

May 1, 2014

1200 New Jersey Avenue, SE

Washington, DC 20590

Anita M. Mesner

Counsel to South African Airways

Holland & Knight LLP

2099 Pennsylvania Avenue, N.W.

Suite 100

Washington, D.C. 20006-6801

Re: Conflict of Laws 'Waiver Request

Concerning 14 CFR 382.29(a)

Dear Ms. Mesner:

This letter concerns the September 10, 2008, request of South African Airways (SAA) for a

conflict of laws waiver concerning the prohibition against requiring a passenger with a disability

to travel with another person as a condition of being provided air transportation contained in

14 CFR 38229(a) of the Department of Transportation's Air Carrier Access Act (ACAA)

regulation. For the reasons discussed below. we are granting SAA a one-year temporary conflict

of laws waiver from section 382.29(a) on flights covered by Part ~82 subject to the conditions

discussed herein.

Request for Conflict of Laws Waiver

SAA asserts a conflict between section 382.29(a) of Part 382, which prohibits carriers from

requiring a passenger with a disability to travel with another person as a condition of being

provided air transportation except in the limited circumstances described in section 382.29(b)(l)-

(4), and Article 121.07.35(2)-(3)1 of the South African Civil Aviation Regulations (SACAR).

SAA asserts that a conflict exists that prohibits the carrier from complying with both section

382.29(a) and SACAR 121.07.35(2)-(3) because SACAR 121.07.35(2)-(3) requires that

individuals with disabilities travel with safety assistants beyond those circumstances specified in

section 382.29(b). SACAR 121.07.35(2)-(3), states, "(2) [a]t least one able-bodied assistant shall

be carried for every group of five passengers with a disability or unaccompanied minors, or a

part or combination thereof. and such assistant shall be assigned with the responsibility of the

I At the time SAA submitted the carrier's conflict of law request to our office, this section was Article 12 J .07.16(2)-

(3) of the South African Civil Aviation Regulation (SACAR). The SACAR was revised in 201 I and this section was

re-numbered as Article 121.0735(1). Based on information provided to our office by SAA, no substantive changes

were made to this section of the law.
safety of such passengers or minors: Provided that the passengers with a disability can assist

themselves. (3) In addition to the provisions of sub-regulation (2), for each one passenger with a

disability who cannot assist himself or herself, an able bodied assistant shall be assigned to solely

assist such passenger." We also note the pertinent language of SACAR 121.07.35(4), although

not cited as part of 8AA's conflict oflaw request, which states, "(4) [t]he operator may establish

procedures in lieu of the provisions of snbregulations(2) and (3) for the carriage of children and

passengers with a disability: Provided that such procedures- (a) do not jeopardise aviation

safety; and (b) prior written approval is obtained from the Director."

In the section on Conflict of Law Waivers and Equivalent Alternative Determinations in the

preamble to the final rule (73 Fed. Reg. at 27616), and in the Section-by-Section Analysis

discussion of section 382.9 (73 Fed. Reg. at 27646-27647), the Department states 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

of laws waiver. Section 382.29(a) specifically mandates "[ejxcept as provided in [382.29(b)(1)-

(4)], you must not require that a passenger with a disability travel with another person as a

condition of being provided air transportation." Because SACAR 121.07.35(2)-(3)requires SAA

to transport one assistant to travel for every group of five passengers with a disability or

unaccompanied minors, or a part or combination thereof regardless of circumstance, the

Department recognizes that a conflict exists between section 382.29(a) and 121.07.35(2)-(3), as

this provision requires SAA to do something prohibited by Part 382. However, the provisions of

121.07.35(4) provide SAA with a means by which it may establish an alternative procedure to

those detailed in SACAR 121.07.35(2)-(3)so long as the alternative does not jeopardize aviation

safety and prior written approval is gained from the appropriate authority. In light of the

language in 121.07.35(4). which provides SAA with the ability to propose an alternative to

SACAR 121.07.35(2)-(3), we will grant SAA a one-year temporary conflict of law waiver with

respect to SACAR 121.07.35(2)-(3)subject to the conditionsthat follow.

We ask SAA to begin, within 30 days of the date of this letter. the process of petitioning the

relevant local authority for permission to disregard the requirements in SACAR 121.07.35(2)-(3)

and limit the circumstances under which a passenger with a disability may be required to travel

with a safety assistant to the four scenarios detailed in section 382.29(b)(1)-(4)? We further

2 Section 382.29(b) states as follows:

(b) You may require a passenger with a disability in one of the following categories to travel with a safety

assistant as a condition of being provided air transportation, if you determine that a safety assistant is

essential for safety:

(1) A passenger traveling in a stretcher or incubator. The safety assistant for such a person must be capable

of attending to the passenger's in-flight medical needs;

(2) A passenger who, because of a mental disability, is unable to comprehend or respond appropriately to

safety instructions from carrier personnel, including the safety briefing required by 14 CFR 121.571(a)(3)

and (a)(4) or 14 CFR 135.1l7(b) or the safety regulations of a foreign carrier's government, as applicable;

(3) A passenger with a mobility impairment so severe that the person is unable to physically assist in his or

her own. evacuation of the aircraft;

(4) A passenger who has both severe hearing and severe vision impairments, if the passenger cannot

establish some means of communication with carrier personnel that is adequate both to permit transmission

of the safety briefing required by 14 CFR 121.57(a)(3) and (a)(4), 14 CFR 135,117(b) or the safety

regulations of a foreign carrier's government. as applicable, and to enable the passenger to assist in his or

her own evacuation of the aircraft in the event of an emergency. You may require a passenger with severe

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request that SAA submit to the Office of Aviation Enforcement and Proceedings (Enforcement

Office) within 60 days of the date of this letter copies of all documents submitted to the local

authority in connection with the petition. If SAA fails to provide documentation within 60 days

of the date of this letter indicating action taken to pursue an exemption, SAA's one-year

temporary conflict oflaw waiver will be rescinded.

In the event that the petition is approved, we ask SAA to modify its operations manual as needed

to conform to the newly established procedures for limiting the instances in which individuals

with disabilities may be required to travel with a safety assistant to the circumstances described

in section 382.29(b)(1 )-(4). lf the petition is denied, or required agency approval of changes to

the operations manual is not granted, we ask that SAA provide a copy of the denial/disapproval

to our office within 7 days after it is received so that an extension of the temporary waiver may

be considered.

If you have any questions about this matter, please contact Maegan Johnson or Kathleen BlankRiether, of my staff, at (202) 366-9283.

Sincerely,

~~t/U /J /t/~

Blane Workie

Acting Assistant General Counsel for

Aviation Enforcement and Proceedings

hearing and vision impairment who wishes to travel without a safety assistant to notify you at least 48

hours in advance to provide this explanation. If the passenger fails to meet this notice requirement,

however, you must still accommodate him or her to the extent practicable.

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