· ,

U.S. Department of Transportation Office ofthe Secretary ofTransportation GENERAL COUNSEL March 23, 2010 1200 NewJerseyAvenue, SE Washington, DC 20590

CertifiedMail - Return Receipt Requested
Ms. AnitaM. Mosner Ms. SophyChen Attorneys for SouthAfricanAirways Holland & Knight LLP 2099 PennsylvaniaAvenue, N.W., Suite 100 Washington, D.C. 20006-6801

DearMs. MosnerandMs. Chen: Re: Conflict ofLaw Waiver Determination

- Request ConcerningProvisions of 14 CFR 382.117
We have received your letter ofNovember 9, 2009, on behalfof 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 oflaw waiver from section 382.117(a) withrespect to flights coveredby Part 382for 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 "theperson in charge ofthe food premises shall ensure that
..." "noanimal,
...,is kept or permitted in any...area where food is handled, except that (i) a guide dog accompanying a blind person maybepermitted in the sales or serving area ofthe food premises.":! SAA asserts that that this regulation applies to the carrierin that its aircraft are considered "foodpremises" 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 deafpassengers 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 othercraft, vehicle orconveyance used in the handling or transport offood."2 from section 382.117(a), the law actually onlycontains an exceptionfor guide dogs accompanying ablind person. TheDepartmentconcurs that this provisionis mandatory andbindingon SAA. At the same time, we note that underthe provisions ofsection 15 (1) ofR. 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 ofsection 1 D(i) to extend the exception in section lO(i)(i) to include other types ofassistance dogs, thus enabling the carrier to legally accommodate all passengers with disabilities who require the assistance ofa 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 SAAmayproperlyrequest an exemptionunder section 15(2). In light ofthe existing restriction and the availability of a procedure to seek an exemption from this restriction, we are granting SAA a one-year temporary conflict oflaw waiver subject to the conditions that follow. We ask that SAAbegin within 20days ofthe date ofthis letterthe process ofpetitioning 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 aircraftcabin on flights coveredby Part 382. We further request that SAA submit to the Office ofAviation Enforcement and Proceedings (Enforcement Office) within 30 days ofthe date ofthis lettercopies ofall documents submittedto the local authority in connection with the exemption petition. We further ask that the carrier notify us within 7 days ofits notification that the exemption has been approved or denied, and if approved, begin implementing the exemption by accepting service dogs on flights coveredby Part 382 within 30days after approval. In the event the petition is approved, we encourage the carrier to modifyits operations manuals as needed to conform to the exemption as approved. IfSAA 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 ofcompliance 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 ifrequired 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). Ifthe exemption is denied or required agency approval ofchanges to the operations manual is not granted, we ask that SAA provide a copy of the deniaIJdisapproval to our office within 7days afterit is received so that an extension ofthe temporary waivermay 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 ofsuch exemptiondoes not orwill 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 byfax at (202) 366-7152. Sincerely,



### __**~~_.r::~**

-. SamuelPodberesky Assistant General Counsel for

AviationEnforcementandProceedings