· , 

U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

March 23, 2010 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Certified Mail - Return Receipt Requested 

Ms. Anita M. Mosner 

Ms. Sophy Chen 

Attorneys for South African Airways 

Holland & Knight LLP 

2099 Pennsylvania Avenue, N.W., Suite 100 

Washington, D.C. 20006-6801 

Dear Ms. Mosner and Ms. Chen: 

Re: Conflict of Law Waiver Determination -

Request Concerning Provisions of 

14 CFR 382.117 

We have received your letter of November 9, 2009, on behalf of South African Airways (SAA), 

responding to our request of October 20, 2009, for additional information pertaining to SAA's 

conflict of law waiver request from provisions of 14 CFR Part 382 (Part 382) relating to the 

carriage of service dogs. We are granting SAA a temporary conflict of law waiver from section 

382.117(a) with respect to flights covered by Part 382 for the reasons described below. 

SAA asserts a conflict between section 382.117(a) and South African Regulation 918 (R. 918), 

section 100), which is implemented in the carrier's Operations Manual. I Section 382.117(a) 

generally requires a carrier to permit a service animal, including an emotional support or 

psychiatric service animal, to accompany a passenger with a disability. Section 100) of R. 918 

states that "the person in charge of the food premises shall ensure that ... " "no animal, ... , is kept or 

permitted in any ... area where food is handled, except that (i) a guide dog accompanying a blind 

person may be permitted in the sales or serving area of the food premises.":! SAA asserts that that 

this regulation applies to the carrier in that its aircraft are considered "food premises" and that the 

carrier itself is considered "a person in charge of a food premises". The carrier points out that 

while it indicated that it was prohibited from carrying animals in the cabin other than guide dogs 

for the blind or deaf passengers in its September 10, 2008, request for a conflict of law waiver 

I SAA provides the following excerpt from its Operations Manual, section 9.2.2.7.4: "Live animals (other than guide 

dogs) are not permitted to be carried in the Cabin or Flight Deck on any SAA revenue tl\ght, due to health and safety 

regulations. " 

2 R. 918 defines "food premises" as a "building, structure. stall ..... and includes a ... vehicle ... in connection with the 

handling of food." The regulation further defines "vehicle" to mean "a train, trolley, .... ship or aeroplane, and 

includes any other craft, vehicle or conveyance used in the handling or transport of food." 
2 

from section 382.117(a), the law actually only contains an exception for guide dogs accompanying 

a blind person. The Department concurs that this provision is mandatory and binding on SAA. 

At the same time, we note that under the provisions of section 15 (1) of R. 918 a person in charge 

of a food premises may apply for an exemption to the local authority concerned. It appears that 

under this section, SAA may request an exemption from the provisions of section 1 D(i) to extend 

the exception in section lO(i)(i) to include other types of assistance dogs, thus enabling the carrier 

to legally accommodate all passengers with disabilities who require the assistance of a service dog 

in the aircraft cabin without regard to the nature of their disabilities. Such an exemption also 

appears to be in keeping with the overall intent of section 15, which is to ensure that food is 

handled in sanitary surroundings while allowing exemptions from provisions that impose 

"unreasonable requirements" in particular circumstances. 3 In this case, section lO(i)(i) requires 

SAA to restrict all service dogs other than guide dogs accompanying persons who are blind from 

any area where food is handled (which includes aircraft). We view the result of this provision, 

(i.e., barring service dogs assisting persons with disabilities other than blindness from any area 

where food is handled), as an unreasonable restriction on accessibility for such passengers from 

which SAA may properly request an exemption under section 15(2). 

In light of the existing restriction and the availability of a procedure to seek an exemption from 

this restriction, we are granting SAA a one-year temporary conflict of law waiver subject to the 

conditions that follow. We ask that SAA begin within 20 days of the date of this letter the process 

of petitioning the relevant local authority for an exemption to extend the guide dog exception in 

section lO(i)(i) of R. 918 to include service dogs, including but not limited to hearing, seizure 

alert, psychiatric service, and emotional support dogs, trained to behave appropriately in a public 

setting that are assisting passengers with disabilities in an aircraft cabin on flights covered by Part 

382. We further request that SAA submit to the Office of Aviation Enforcement and Proceedings 

(Enforcement Office) within 30 days of the date of this letter copies of all documents submitted to 

the local authority in connection with the exemption petition. We further ask that the carrier 

notify us within 7 days of its notification that the exemption has been approved or denied, and if 

approved, begin implementing the exemption by accepting service dogs on flights covered by Part 

382 within 30 days after approval. 

In the event the petition is approved, we encourage the carrier to modify its operations manuals as 

needed to conform to the exemption as approved. If SAA fails to provide documents within 30 

days of the date of this letter indicating action taken to pursue an exemption, we will consider 

SAA to be out of compliance with Part 382 and the carrier may be subject to enforcement action 

by our office. Likewise, if the petition is approved and SAA takes no action to modify its 

operations manuals if required and/or to implement the exemption, the carrier cannot later use the 

conflicting provisions of its operating manuals as a defense for non-compliance with section 

382.117(a). If the exemption is denied or required agency approval of changes to the operations 

manual is not granted, we ask that SAA provide a copy of the deniaIJdisapproval to our office 

within 7 days after it is received so that an extension of the temporary waiver may be considered. 

3 Section 15(2) permits the local authorities to grant an exemption subject to the inspector submitting a report 

indicating that "he or she is satisfied that (a) the provision from which the exemption is requested imposes 

unreasonable requirements in the case in question: and (b) the granting of such exemption does not or will not result in 

conditions that constitute a health hazard." 
3 

If you have any questions about this matter, please contact Blane Workie, of my staff, or me at 

(202) 366-9342. You may also reach us by fax at (202) 366-7152. 

Sincerely, 

__ ~~_.r::~ 

-. Samuel Podberesky 

Assistant General Counsel for 

A viation Enforcement and Proceedings