[Federal Register Volume 85, Number 24 (Wednesday, February 5, 2020)]
[Proposed Rules]
[Pages 6448-6476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01546]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 /
Proposed Rules
[[Page 6448]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. DOT-OST-2018-0068]
RIN No. 2105-AE63
Traveling by Air With Service Animals
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Transportation (Department or DOT) is
seeking comment in this Notice of Proposed Rulemaking (NPRM) on
proposed amendments to the Department's Air Carrier Access Act (ACAA)
regulation on the transportation of service animals by air. The
proposed amendments are intended to ensure that our air transportation
system is safe for the traveling public and accessible to individuals
with disabilities.
DATES: Comments should be filed by April 6, 2020. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2018-0068 by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2018-0068 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to http://www.regulations.gov, including any
personal information provided.
Privacy Act: Anyone can search the electronic form of all comments
received in any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Maegan Johnson, Senior Trial Attorney,
Office of Aviation Enforcement and Proceedings, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-
9342, 202-366-7152 (fax), [email protected] (email). You may also
contact Blane Workie, Assistant General Counsel, Office of Aviation
Enforcement and Proceedings, Department of Transportation, 1200 New
Jersey Ave. SE, Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),
[email protected].
SUPPLEMENTARY INFORMATION:
Executive Summary
The Department proposes to define a service animal, under its ACAA
regulations in 14 CFR part 382, as a dog that is individually trained
to do work or perform tasks for the benefit of a qualified individual
with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability.\1\ Furthermore, this NPRM
proposes to allow airlines to recognize emotional support animals as
pets rather than service animals. The NPRM also proposes to allow
airlines to require all passengers with a disability traveling with a
service animal to complete and submit to the airline forms developed by
DOT attesting to the animal's training and good behavior, certifying
the animal's good health, and attesting that the animal has the ability
either not to relieve itself on a long flight or to relieve itself in a
sanitary manner. In addition, this NPRM would clarify existing
prohibitions on airlines' imposing breed restrictions on service
animals and would allow airlines to set policies to limit the number of
service animals that one passenger can bring onboard an aircraft. This
NPRM would also generally require service to be harnessed, leashed, or
otherwise tethered. This NPRM also proposes requirements that would
address the safe transport of large service animals in the aircraft
cabin and would clarify when the user of a service animal may be
charged for damage caused by the service animal. Finally, this NPRM
addresses the responsibilities of code-share partners, among other
provisions.
---------------------------------------------------------------------------
\1\ The Department's proposed definition of a service animal in
this rulemaking is similar to the definition of a service animal in
the Department of Justice (DOJ) regulations implementing the
Americans with Disabilities Act (ADA), 28 CFR 35.104 and 28 CFR
36.104. However, the Department proposes a number of service animal
provisions in this proposed rulemaking that differ from DOJ's ADA
service animal requirements.
---------------------------------------------------------------------------
1. Statutory Authority
The Air Carrier Access Act (ACAA), 49 U.S.C. 1705, prohibits
discrimination in airline service on the basis of disability. When
enacted in 1986, the ACAA applied only to U.S. air carriers. On April
5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR-21) amended the ACAA to include foreign carriers.
The ACAA, while representing a watershed mandate of
nondiscrimination in air transportation for passengers with
disabilities, does not specify how U.S. and foreign air carriers must
act to avoid such discrimination. The statute similarly does not
specify how the Department should regulate with respect to these
issues. In addition to the ACAA, the Department's authority to regulate
nondiscrimination in airline service on the basis of disability is
based in the Department's rulemaking authority under 49 U.S.C. 40113,
which states that the Department may take action that it considers
necessary to carry out this part, including prescribing regulations.
The Department issued its first ACAA regulation in 1990 following a
lengthy rulemaking process that included a regulatory negotiation
involving representatives of the airline industry and representatives
from disability
[[Page 6449]]
communities. Since then, the Department's disability regulations have
been amended approximately 15 times to enhance access. The ACAA
regulations define the rights of qualified individuals with
disabilities \2\ and the obligations of airlines. The regulations also
specify that airlines may refuse to provide transportation to any
passenger on the basis of safety or to any passenger whose carriage
would violate Federal Aviation Administration (FAA) or Transportation
Security Administration requirements or applicable requirements of a
foreign government.\3\ For example, the FAA, which is charged with
promoting safe flight of aircraft,\4\ has long prohibited conduct
aboard flights that interferes with crewmember duties. FAA regulations
state that ``no person may assault, threaten, intimidate, or interfere
with a crewmember in the performance of the crewmember's duties aboard
an aircraft being operated.'' \5\ The ACAA regulations are intended to
help ensure that individuals with disabilities enjoy equal access to
the air transportation system.
---------------------------------------------------------------------------
\2\ DOT defines the term Qualified individual with a disability
in 14 CFR 382.3.
\3\ 14 CFR 382.19(c).
\4\ See 49 U.S.C. 44701.
\5\ 14 CFR 91.11, 121.580, and 135.120.
---------------------------------------------------------------------------
The Americans with Disabilities Act (ADA), which was enacted in
1990, does not cover discrimination against a person with a disability
in air transportation but prohibits discrimination against individuals
with disabilities in most other areas of public life, including
employment, State and local government activities, public
transportation services, and public accommodations such as restaurants
and retail stores. The ADA requires that the Department of Justice
(DOJ) issue regulations for implementing Title II, which applies to
State and local government entities, and Title III, which applies to
public accommodations and commercial facilities. DOJ first issued such
regulations in 1991 and published revised regulations in 2010, which
took effect in March 2011. In those regulations, DOJ defines a service
animal as any dog that is individually trained to do work or perform
tasks for the benefit of an individual with a disability, including a
physical, sensory, psychiatric, intellectual, or mental disability.\6\
DOJ's ADA definition of a service animal differs from DOT's current
ACAA definition of a service animal as DOJ does not recognize emotional
support animals as service animals because they are not individually
trained to do work or perform tasks for the benefit of an individual
with a disability \7\ and DOJ's ADA regulations limit service animals
to dogs.\8\
---------------------------------------------------------------------------
\6\ See DOJ's ADA definition of a service animal in 28 CFR
35.104 and 28 CFR 36.104.
\7\ DOJ explains that it did not classify emotional support
animals as service animals because the provision of emotional
support, well-being, comfort and companionship does not constitute
work or tasks. See Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities, 75 FR 56236,
56269 (Sept. 15, 2010).
\8\ DOJ, while not recognizing miniature horses as service
animals, requires entities covered by the ADA to make reasonable
modifications in their policies, practices, or procedures to permit
an individual with a disability to use a miniature horse that has
been individually trained to do work or perform tasks for the
benefit of the individual with a disability. See 28 CFR 35.136(i);
28 CFR 36.302(c)(9).
---------------------------------------------------------------------------
The current rulemaking presents questions about how the ACAA is
reasonably interpreted and applied to require airlines to accommodate
the needs of individual passengers whose physical or mental disability
necessitates the assistance of a service animal in air transportation.
In approaching these questions, the Department recognizes that the
ACAA's nondiscrimination mandate is not absolute. The statute requires
airlines to provide accommodations that are reasonable in light of the
realities and limitations of air service and the onboard environment of
commercial airplanes. DOJ, in interpreting the ADA, similarly allows
public accommodations to consider the characteristics of miniature
horses, including the implications of their presence on the safe
operation of a given facility, when determining whether they may be
accommodated within a facility.\9\ The cabins of most aircraft are
highly confined spaces, with many passengers seated in close quarters
and very limited opportunities to separate passengers from nearby
disturbances. Animals on aircraft may pose a risk to the safety,
health, and well-being of passengers and crew and may disturb the safe
and efficient operation of the aircraft. Any requirement for the
accommodation of passengers traveling with service animals onboard
aircraft necessarily must be balanced against the health, safety, and
mental and physical well-being of the other passengers and crew and
must not interfere with the safe and efficient operation of the
aircraft.
---------------------------------------------------------------------------
\9\ See 28 CFR 36.302(c)(9) and see also 28 CFR 35.136.
---------------------------------------------------------------------------
2. Need for a Rulemaking
The Department has identified the following compelling factors that
justify the issuance of a revision to the Department's regulations on
traveling by air with service animals in 14 CFR part 382:
Service Animal Complaints
Service animal-related complaints are increasingly a more
significant portion of the disability-related complaints that the
Department's Aviation Consumer Protection Division and airlines
receive. Given the year-over-year increase in the number of service
animal complaints received by the Department against airlines, it is
clear that the provision of assistance to passengers traveling with
service animals is an area of increasing concern for passengers with
disabilities. The Department received 115 service animal complaints
against airlines in 2018, 70 complaints in 2017, 110 complaints in
2016, and 100 complaints in 2015, compared with 48 such in 2014 and 45
complaints in 2013.
The increase in the number of service animal complaints is also
representative of the complaints airlines received directly from
passengers. U.S. and foreign airlines reported receiving 3,065 service
animal complaints directly from passengers in 2018, 2,473 complaints in
2017, 2,433 in 2016, and 1,629 in 2015, compared with 1,010 such
complaints in 2014 and 719 in 2013.
Inconsistent Federal Definition of Service Animal
At the same time, concerns have been raised by airlines, airports,
and disability advocates about inconsistencies between the definition
of a service animal under our rules for U.S. and foreign air carrier
services versus in the airport context. As explained above, DOJ's ADA
regulations, which apply to public and commercial airports and airport
facilities operated by businesses like restaurants and stores, define a
service animal as any dog that is individually trained to do work or
perform tasks for the benefit of an individual with a disability,
including a physical, sensory, psychiatric, intellectual, or mental
disability.\10\ DOJ does not recognize emotional support animals as
service animals because they are not individually trained to do work or
perform tasks for the benefit of an individual with a disability.\11\
While DOJ's ADA regulations limit service animals to dogs, entities
covered by the ADA are required to assess whether they must permit
individuals with disabilities to be accompanied by miniature horses as
a reasonable
[[Page 6450]]
modification.\12\ DOT's current ACAA regulations, which apply to
airlines and their facilities and services, require airlines to
recognize service animals regardless of species with exceptions for
certain unusual species of service animals such as snakes, other
reptiles, ferrets, rodents, and spiders. DOT's current ACAA regulations
also require airlines to recognize emotional support animals as service
animals.\13\ Consequently, a restaurant in an airport could, without
violating DOJ rules, deny entry to an emotional support animal that an
airline, under the ACAA, would have to accept. These inconsistencies
between DOT's ACAA and DOJ's ADA definition of a service animal present
practical challenges for airlines and airports, and are a source of
confusion for individuals with disabilities and the traveling public.
---------------------------------------------------------------------------
\10\ See 28 CFR 35.104 and 28 CFR 36.104.
\11\ See Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 75 FR 56236, 56269
(Sept. 15, 2010).
\12\ See 28 CFR 35.136(i); 28 CFR 36.302(c)(9). DOJ, while not
recognizing miniature horses as service animals, requires entities
covered by the ADA to make reasonable modifications in their
policies, practices, or procedures to permit an individual with a
disability to use a miniature horse that has been individually
trained to do work or perform tasks for the benefit of the
individual with a disability, based on an assessment of factors,
including the type, size, and weight of the miniature horse and
whether the facility can accommodate these features; whether the
handler has sufficient control of the miniature horse; whether the
miniature horse is housebroken; and whether the miniature horse's
presence in a specific facility compromises legitimate safety
requirements that are necessary for safe operation.
\13\ See 14 CFR 382.117 and Guidance Concerning Service Animals,
73 FR 27614, 27659 (May 13, 2008).
---------------------------------------------------------------------------
Unusual Species of Animals
Passengers have attempted to fly with many different unusual
species of animals, such as a peacock, ducks, turkeys, pigs, iguanas,
and various other types of animals as emotional support or service
animals, causing confusion for airline employees and additional
scrutiny for service animal users. Disability advocates have voiced
concerns that the use of these unusual service animals on aircraft
erodes the public's trust and confidence in service animals. Airlines,
meanwhile, have expressed concern about the heightened attention these
animals have received and the resources airlines expend each time an
unusual or untrained animal is presented for transport on an aircraft.
Pets on Aircraft
Passengers wishing to travel with their pets may be falsely
claiming that their pets are service animals so they can take their pet
in the aircraft cabin or avoid paying pet fees charged by most airlines
since airlines cannot charge service animal users a fee to transport
service animals. Airlines have reported increases in the number of
service animals on aircraft and expressed concern that the significant
increase in the number of service animals traveling on aircraft may be
the result of an increase in emotional support animals and/or
passengers falsely claiming that their pets are emotional support
animals.\14\ Furthermore, according to airlines, passengers are
increasingly bringing untrained service animals onboard aircraft and
putting the safety of crewmembers, other passengers, and other service
animals at risk.
---------------------------------------------------------------------------
\14\ See Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141. In 2017,
Delta Air Lines carried nearly 250,000 service and support animals,
or almost 700 per day. The volume of service and support animals
transported increased about 50 percent from 2016 to 2017 (along with
an additional 240,000 pets), but the growth was not uniform over all
categories of animals. ESAs led this growth with an increase of
approximately 63 percent, while other service animal transport grew
by only approximately 30 percent.
And comment from Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
From 2016 to 2017, the number of service animals (excluding
ESAs) that U.S. airlines accommodated in cabin rose by nearly 24%--a
rate of increase that far exceeds that of the number of passengers
U.S. airlines transported over the same period. This rate of
increase is modest, however, when compared to an explosion in the
number of passengers seeking to travel with ESAs, which increased by
56% in just one year (from 2016 to 2017). As DOT noted, one U.S.
airline experienced a 75% increase from 2016 to 2017. One [Airlines
for America] member airline has experienced a more than eightfold
increase in the number of ESAs since 2012. In 2017, we estimate that
U.S. airlines accommodated more than 750,000 ESAs in cabin, which
constituted 73% of all estimated service animals transported.
---------------------------------------------------------------------------
There have also been reports of some online entities that may, for
a fee, provide individuals with pets a letter stating that the
individual is a person with a mental or emotional disability and that
the animal is an emotional support animal or psychiatric service
animal, when in fact it is not. While the Department's current service
animal regulation permits airlines to require documentation from a
licensed mental health professional for the carriage of emotional
support animals, the advent of online entities that may be guaranteeing
the required documentation for a fee has made it difficult for airlines
to determine whether passengers traveling with animals are traveling
with their pets or with legitimate emotional support animals.
Misbehavior by Service Animals
The Department's service animal guidance provides that all service
animals should be trained to behave properly in public to be treated as
a service animal.\15\ Despite this guidance, some believe that
emotional support animals pose a greater safety risk because they have
not been trained to mitigate a disability and, therefore, are less
likely to have received adequate behavioral training.\16\ Airlines have
reported increases in the number of behavior-related service animal
incidents on aircraft, including urinating, defecating, and biting. In
2018 and 2019, some airlines issued new service animal policies that
require passengers traveling with a service animal to provide behavior/
training attestations and animal health information as a condition of
transportation.\17\ These policies are mostly applicable to emotional
support and psychiatric service animals and were created to address
perceived or actual increased incidents of animal misbehavior on
aircraft. In response, disability rights advocates expressed concern
about the increased burdens that these polices have placed on
legitimate service animal users. Disability advocates are also
concerned about the increased stigma and negative perception of all
service animals traveling on aircraft.
---------------------------------------------------------------------------
\15\ Guidance Concerning Service Animals, 73 FR 27614, 27659
(May 13, 2008).
\16\ See Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409; ``Because
ESAs are not required to have any training, any documentation of a
passenger's need for an ESA fails to address the issue that causes
problems in air travel, the ESA's training and behavior.''
\17\ See discussion on airline service animal policies the
Department's Final Statement of Enforcement Priorities Regarding
Service Animals, 84 FR 43480 (August 21, 2019).
---------------------------------------------------------------------------
Request for Rulemaking
The Department has heard from the transportation industry, as well
as individuals with disabilities, that the current ACAA regulation
could be improved to ensure nondiscriminatory access for individuals
with disabilities, while simultaneously preventing instances of fraud
and ensuring consistency with other Federal regulations. The
Psychiatric Service Dog Society (PSDS), an advocacy group representing
users of psychiatric service dogs, petitioned the Department in 2009 to
eliminate a provision in the Department's ACAA regulations permitting
airlines to require documentation and 48 hours' advance notice for
users of psychiatric service animals. PSDS asserted that the
Department's current regulation treats individuals with mental and
emotional disabilities unfairly because individuals traveling with
psychiatric service
[[Page 6451]]
animals, animals which are trained to do work or perform a task to
assist individuals with disabilities, are subject to more burdensome
requirements than passengers traveling with other trained service
animals.\18\
---------------------------------------------------------------------------
\18\ See Psychiatric Service Dog Society, DOT-OST-2009-0093-
0001, 1-2, at https://www.regulations.gov/document?D=DOT-OST-2009-0093-0001 (April 21, 2009).
---------------------------------------------------------------------------
The Department also received comments from airlines and airline
associations regarding the need to revise the Department's ACAA service
animal regulations after the Department published a Notice of
Regulatory Review in the Federal Register on October 2, 2017, inviting
public comment on existing rules and other actions that are good
candidates for repeal, replacement, suspension, or modification.\19\
Airlines generally asked that DOT harmonize its ACAA definition of a
service animal with the service animal definition in DOJ's ADA
regulations.\20\ Further, in 2018, ten disability advocacy
organizations urged the Department to stop the proliferation of a
patchwork of service animal access requirements in airlines' service
animal policies.\21\
---------------------------------------------------------------------------
\19\ 82 FR 45750 (Oct. 2, 2017).
\20\ See, e.g., Comment from Airlines for America at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751 (December 4,
2017); Comment from International Air Transport Association at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-269
(December 1, 2017); Comment from Kuwait Airways at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2679 (December 1,
2017); and Comment from National Air Carrier Association at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2771 (December 4,
2017).
\21\ Letter to Secretary Chao from American Association of
People with Disabilities, Bazelon Center for Mental Health Law,
Christopher and Dana Reeve Foundation, Disability Rights Education
and Defense Fund, National Association of the Deaf, National
Disability Rights Network, Paralyzed Veterans of America, The Arc of
the United States, The National Council on Independent Living, and
United Spinal Association (February 6, 2018) at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0315.
---------------------------------------------------------------------------
Congressional Mandate
The FAA Extension, Safety, and Security Act of 2016 requires that
the Department issue a supplemental notice of proposed rulemaking on
various access issues referenced in the Secretary's June 15, 2015,
Report on Significant Rulemakings, including traveling by air with
service animals.\22\ Further, the FAA Reauthorization Act of 2018 (The
FAA Act) requires the Department to conduct a rulemaking proceeding on
the definition of the term service animal and to develop minimum
standards for what is required for service and emotional support
animals.\23\ Congress also required the Department to consider whether
it should align DOT's ACAA definition of a service animal with the
service animal definition established by DOJ in its rule implementing
the ADA.\24\
---------------------------------------------------------------------------
\22\ The FAA Extension, Safety, and Security Act of 2016, Public
Law 114-190, Sec. 2108 (July 15, 2016).
\23\ The FAA Reauthorization Act of 2018, Public Law 115-254,
Sec. 437 (October 5, 2018).
\24\ Id.
---------------------------------------------------------------------------
In addition, Congress directed the Department to consider the
following measures to ensure that pets are not claimed as service
animals: (1) Photo identification for service animals, (2) training
documentation, (3) medical documentation indicating the tasks the
animal performs to assist its user, and (4) whether more than one
service animal should be permitted to accompany a passenger.\25\
Moreover, the FAA Act requires the Department to consider the following
to ensure the health and safety of passengers onboard aircraft: (1)
Whether to require health and vaccination records for service animals,
(2) whether to require third-party proof of behavior training for
service animals. Finally, DOT must consider the impact of additional
requirements on passengers with disabilities traveling with service
animals and ways to eliminate or mitigate those impacts. The Department
is considering each of these measures as part of the present
rulemaking. The FAA Act directs the Department to issue a final rule on
service animals no later than March 22, 2020.
---------------------------------------------------------------------------
\25\ Id.
---------------------------------------------------------------------------
ACCESS Advisory Committee
In April 2016, the Department established an Advisory Committee on
Accessible Air Transportation (ACCESS Advisory Committee) to negotiate
and develop a proposed rule concerning accommodations for individuals
with disabilities traveling by air with service animals.\26\ The
Committee members and other interested parties discussed the following
issues: (1) Distinguishing between emotional support animals and other
service animals; (2) limiting the species of service animals that
airlines are required to transport; (3) limiting the number of service
animals that a single individual should be permitted to transport; and
(4) requiring attestation from all service animal users that their
animal has been trained to behave in a public setting. However, despite
good faith efforts, the ACCESS Advisory Committee was not able to reach
consensus on how the service animals regulations should be revised.
Nevertheless, the Department gathered useful information during this
process from disability rights advocates, the airline industry, an
association representing flight attendants, and other interested
parties.
---------------------------------------------------------------------------
\26\ 81 FR 20265 (Apr. 7, 2016).
---------------------------------------------------------------------------
3. The ANPRM
On May 23, 2018, the Department published in the Federal Register
an Advance Notice of Proposed Rulemaking (ANPRM) titled ``Traveling by
Air with Service Animals.'' \27\ In the ANPRM, the Department sought
comment on how to amend the Department's ACAA regulations to address
the problems that exist with the rule, while also ensuring
nondiscriminatory access for individuals with disabilities in air
transportation.
---------------------------------------------------------------------------
\27\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832 (May 23, 2018).
---------------------------------------------------------------------------
In the ANPRM, the Department sought comment on the following: (1)
Whether psychiatric service animals should be treated similarly to
other service animals; (2) whether there should be a distinction
between emotional support animals and other service animals; (3)
whether emotional support animals, if allowed onboard a flight, should
be required to travel in pet carriers for the duration of the flight;
(4) whether the species of service animals and emotional support
animals that carriers are required to transport should be limited (for
example, limited to dogs only); (5) whether the number of service
animals/emotional support animals should be limited per passenger; (6)
whether an attestation should be required from all service animal and
emotional support animal users that their animals have been trained to
behave in a public setting; (7) whether service animals and emotional
support animals should be harnessed, leashed, or otherwise tethered;
(8) whether there are safety concerns with transporting large service
animals and if so, how to address them; (9) whether airlines should be
prohibited from requiring a veterinary health form or immunization
record from service animal users without an individualized assessment
that the animal would pose a direct threat to the health or safety of
others or would cause a significant disruption in the aircraft cabin;
and (10) whether U.S. airlines should continue to be held responsible
if a passenger traveling under the U.S. carrier's code faces additional
restrictions on travel with a service animal on a flight operated by
[[Page 6452]]
the U.S. carrier's foreign codeshare partner.\28\
---------------------------------------------------------------------------
\28\ Id.
---------------------------------------------------------------------------
The Department received approximately 4,500 comments over the 45-
day comment period from disability advocacy organizations, airlines,
human and animal health organizations, consumer groups, and other
interested parties; the vast majority of these comments were from
individual members of the public.\29\ The Department has carefully
reviewed and considered the comments received and is proposing a
rulemaking that is designed to ensure that airlines provide
nondiscriminatory access to passengers with disabilities who require
the assistance of service animals while incorporating modifications to
these requirements reasonably designed to ensure that airlines remain
able to provide for the safety and well-being of all passengers and
crewmember and the safe and efficient operation of the aircraft. The
Department's responses to the comments are set forth below, immediately
following a summary of regulatory provisions and a summary of the
regulatory impact analysis.
---------------------------------------------------------------------------
\29\ See Traveling by Air with Service Animals, Advance Notice
of Proposed Rulemaking, https://www.regulations.gov/docket?D=DOT-OST-2018-0068.
---------------------------------------------------------------------------
4. Summary of Proposed Regulatory and Deregulatory Provisions
------------------------------------------------------------------------
Subject Proposal
------------------------------------------------------------------------
Definition of Service Animal...... A service animal would be defined as
a dog that is individually trained
to do work or perform tasks for the
benefit of a qualified individual
with a disability, including a
physical, sensory, psychiatric,
intellectual, or other mental
disability.
Emotional Support Animals......... Carriers would not be required to
recognize emotional support animals
as service animals and may treat
them as pets.
Treatment of Psychiatric Service Psychiatric service animals would be
Animals. treated the same as other service
animals that are individually
trained to do work or perform a
task for the benefit of a qualified
individual with a disability.
Species........................... Carriers would be permitted to limit
service animals to dogs.
Health Form....................... Carriers would be permitted to
require passengers to remit a
completed U.S. Department of
Transportation Service Animal Air
Transportation Health Form as a
condition of transportation.
Behavior and Training Attestation. Carriers would be permitted to
require passengers to remit a
completed U.S. Department of
Transportation Service Animal Air
Transportation Behavior and
Training Attestation Form as a
condition of transportation.
Relief Attestation................ Carriers would be permitted to
require individuals traveling with
a service animal on flights eight
hours or longer to complete a U.S.
Department of Transportation
Service Animal Relief Attestation
as a condition of transportation.
Number of Service Animals per Carriers would be permitted to limit
Passenger. the number of service animals
traveling with a single passenger
with a disability to two service
animals, and would be permitted to
require that both service animals
fit on their handler's lap and/or
within their handler's foot space
on the aircraft.
Large Service Animals............. Carriers would be permitted to
require a service animal to fit
within its handler's foot space on
the aircraft.
Control of Service Animals........ Carriers would be permitted to
require that a service animal be
harnessed, leashed, tethered, or
otherwise under the control of its
handler.
Service Animal Breed or Type...... Carriers would be prohibited from
refusing to transport a service
animal based solely on breed or
generalized physical type, as
distinct from an individualized
assessment of the animal's behavior
and health.
Check-In Requirements............. Carriers that require a passenger
with a disability to check-in at
the airport prior to the travel
time required for the general
public would be required to make an
employee available promptly to
assist the passenger with the check-
in process.
------------------------------------------------------------------------
5. Summary of Regulatory Impact Analysis
The Department has prepared a preliminary regulatory evaluation in
support of the NPRM to amend the ACAA service animal regulations. DOT
proposes to define a service animal as a dog that is individually
trained to do work or perform tasks for the benefit of a qualified
individual with a disability, including a physical, sensory,
psychiatric, intellectual, or other mental disability. DOT's proposed
service animal definition also explains that emotional support animals,
comfort animals, companionship animals, and service animals in training
are not service animals for purposes of this rule. In addition, DOT
proposes to treat psychiatric service animals (animals that assist
individuals with mental health related disabilities) like other service
animals. Under the proposed rule, airlines would be allowed to require
passengers traveling with a service animal to complete forms attesting
that the passenger's service animal has been individually trained to do
work or perform tasks for the benefit of the passenger with a
disability, the animal has been trained to behave in public, the animal
is in good health, and the animal has the ability either not to relieve
itself on a long flight or to relieve itself in a sanitary manner.
Under the proposed rulemaking, carriers would no longer be required
to recognize emotional support animals as service animals. Passengers
currently have an incentive to claim pets as emotional support animals
as existing regulations require carriers to transport all emotional
support animals at no cost to the passenger.
The primary economic impact of this proposed rulemaking is that it
eliminates a market inefficiency. The current policy amounts to a price
restriction, which requires carriers to forgo a potential revenue
source. In addition, the current policy, which effectively sets the
price at zero, requires carriers to use resources to provide an
accommodation for emotional support animals.
There is one quantified cost element: A potential burden on
passengers traveling with service animals who may be required to submit
up to three DOT forms to carriers. For Paperwork Reduction Act (PRA)
purposes, we estimate that the forms could create 144,000 burden hours
and $3.0 million in costs per year. In some cases, however, carriers
already ask passengers to complete equivalent non-governmental forms.
Thus, the PRA numbers likely overestimate the burden that would result
from this rulemaking.
[[Page 6453]]
Table ES-1--Summary of Impacts Due to Proposed Rulemaking
[Millions of 2018 dollars]
------------------------------------------------------------------------
Impact Annual value
------------------------------------------------------------------------
Paperwork burden for passengers -$3.0.
traveling with service animals.
Discomfort to passengers who no Not quantified.
longer will travel with ESAs.
Eliminated deadweight loss; transfer $75.1 (total).
of surplus from consumers to
producers (increased fees paid by
passengers travelling with ESAs).
Reduction in negative externalities Not quantified.
caused by ESAs.
Secondary market impacts due to Not quantified.
reduced demand for ESA documentation
Service.
------------------------------------------------------------------------
Public or non-use values or negative externalities in ESA travel
could affect the efficiency consequences of this proposed rule. The
preliminary regulatory evaluation describes the potential impacts of
non-use values and negative externalities in detail but does not
quantify them due to a lack of data. The Department requests
information and data to quantify and evaluate the extent of these
impacts.
1. Service Animal Species
Current Requirements
The Department's current service animal rule does not include a
species restriction with the exception of certain unusual species, such
as snakes, other reptiles, ferrets, rodents, and spiders.
The ANPRM
In the ANPRM, the Department sought comment on what, if any,
species limitations should be placed on service animals.\30\ In light
of suggestions made by certain disability advocacy organizations, the
Department also sought specific comment on whether capuchin monkeys
should be recognized as service animals.\31\ Finally, the Department
requested comment on whether it should recognize miniature horses under
its definition of a service animal, as some individuals with
disabilities prefer miniature horses instead of dogs as service animals
for religious reasons, because of their long life spans, and/or because
of allergies.\32\
---------------------------------------------------------------------------
\30\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23839.
\31\ Id. at 23840.
\32\ Id.
---------------------------------------------------------------------------
Comments Received
Individual commenters, disability advocates, airlines, and other
commenters all support dogs as service animals. This result is not
surprising as the Department has been consistently informed that the
clear majority, approximately 90 percent or more, of service animals
that travel on aircraft are dogs. Some commenters note that dogs are
the preferred species for service animals because they can be more
easily trained to mitigate a passenger's disability than other animals.
In a joint comment filed by Airlines for America (A4A), the Regional
Airline Association (RAA), and International Air Transport Association
(IATA), these associations commented that dogs in particular can hold
their elimination functions for extended amounts of time, have the
correct temperament to serve as service animals, and can be trained to
behave appropriately in public and around large groups of people.\33\
Assistance Dogs International (ADI) notes specifically that dogs have
been assisting individuals with disabilities for over 100 years.\34\
---------------------------------------------------------------------------
\33\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
\34\ Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409.
---------------------------------------------------------------------------
A smaller majority of disability advocate organizations and
airports support both dogs and miniature horses as service animals.
Disability advocates argue that miniature horses should be recognized
subject to aircraft space restraints for those individuals with
disabilities who rely on these animals, while airports argue for their
inclusion to promote greater predictably for passengers with
disabilities and airport operators. Although miniature horses do not
fall under DOJ's definition of a service animal, DOJ requires covered
entities such as airports to permit individuals with disabilities to
use miniature horses, where reasonable, if the miniature horse has been
individually trained to do work or perform tasks for the benefit of the
individual with a disability.\35\
---------------------------------------------------------------------------
\35\ See 28 CFR 36.302(c)(9) and 28 CFR 35.136.
---------------------------------------------------------------------------
Some disability organizations, however, argue against miniature
horses as service animals, reasoning that horses are not commonly used
as service animals and that excluding them from the rule will not
impact many individuals with disabilities. Some airline commenters
acknowledged that they receive very few requests to accommodate
miniature horses each year and further oppose the inclusion of
miniature horses as service animals because they are too large and
inflexible to be safely accommodated on an aircraft and to fit within a
passenger's foot space.
A small number of disability advocacy organizations support
capuchin monkeys as service animals because of their ability to assist
individuals with limited mobility with in-home services; however, these
groups recognize that capuchin monkeys must be contained in a carrier
in the airport and on the aircraft because of the potential danger they
pose. Other disability advocacy organizations, airlines, and animal
health associations strongly oppose recognizing capuchin monkeys as
service animals. These groups argue that capuchin monkeys, while
trained to do work or perform tasks for individuals with disabilities,
are not domesticated animals and can be prone to increased aggression.
Other groups oppose capuchin monkeys and other non-human primates as
service animals, citing DOJ's position that these animals have the
potential for disease transmission and that they exhibit unpredictable
aggressive behavior.\25\
While Paralyzed Veterans of America (PVA) supports some limitations
on the type of species that may be used as service animals or emotional
support animals, the organization argues that access should be provided
for all species and sizes of dogs, cats, rabbits, miniature horses,
capuchin monkeys and other species that can be trained to behave
appropriately and be safely brought on airplanes.\36\ Finally, while
the Association of Flight Attendants (AFA) commented that service
animals and ESAs should be limited by species, it recognized that it
was not in a position to make specific recommendations about the type
of species airlines should be required to
[[Page 6454]]
transport.\37\ However, AFA recognized that it is appropriate for the
Department under the ACAA to consider the characteristics of the animal
that may be carried in the cabin, the size of the animal, and the
aircraft's ability to accommodate the animal.
---------------------------------------------------------------------------
\36\ Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4187.
\37\ Comment of the Association of Flight Attendants, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4207.
---------------------------------------------------------------------------
DOT Response
DOT proposes to define a service animal as a dog that is
individually trained to do work or perform tasks for the benefit of a
qualified individual with a disability, including a physical, sensory,
psychiatric, intellectual, or other mental disability. DOT's proposed
service animal definition also explains that emotional support animals,
comfort animals, companionship animals, and service animals in training
are not service animals. Consistent with this definition, the
Department proposes to limit the species of service animals to dogs.
Under the Department's proposal, airlines could choose to transport
other species of animals that assist individuals with disabilities in
the cabin for free pursuant to an established airline policy, but would
only be required under Federal law to recognize dogs as service
animals. The Department considered the fact that dogs are the most
common animal species used by individuals to mitigate disabilities both
on and off aircraft as noted by many commenters. Dogs also have both
the temperament and ability to do work and perform tasks while behaving
appropriately in a public setting and while being surrounded by a large
group of people.
The Department considered, but decided against, a proposal that
would include other species as service animals, including capuchin
monkeys and miniature horses. Although trained capuchin monkeys can
assist persons with limited mobility with their daily tasks, we are not
proposing to recognize capuchin monkeys as service animals because they
may present a safety risk to other passengers as they have the
potential to transmit diseases and may exhibit ``unpredictable
aggressive behavior.'' \38\ Further, according to information the
Department received from Helping Hands: Monkey Helpers,\39\ it is
often, if not always, qualified trainers rather than individuals with
disabilities, who travel by air with capuchin monkeys, as the trainer
delivers the monkeys. However, neither the existing regulation nor the
proposed rule would require airlines to transport service animals when
they are not accompanied by the service animal user. Because
individuals with disabilities may have significantly more difficulty
obtaining the assistance of capuchin monkeys if they are not allowed to
travel by air with their trainer, the Department seeks comment on
whether to require airlines to allow the transport of closed-colony
capuchin monkeys \40\ in a carrier (capuchin monkeys weigh
approximately 6-10 lbs.) and when traveling with a qualified
trainer.\41\
---------------------------------------------------------------------------
\38\ Nondiscrimination on the Basis of Disability in State and
Local Government Services, 75 FR 56164, 56194 (Sept. 5, 2010).
\39\ Helping Hands monkeys are New World monkeys, native to
Central and South America. New World monkeys do not carry the
zoonotic diseases often associated with Old World monkeys (from
Africa) such as Herpes B, Monkey Pox, or Simian Immunodeficiency
Virus (SIV). However, according to the CDC, New World monkeys do
carry and potentially transmit tuberculosis, measles, enteric
diseases (salmonella, shigella, cryptosporidium, and giardia).
\40\ According to Helping Hands: Monkey Helpers, its capuchin
monkeys were bred from an existing colony first obtained within the
United States in 1979 and continue to be housed in a closed colony,
which means that the organization knows exactly where the monkeys
come from, including their parentage, and have complete medical
histories on every monkey in the program. However, according to CDC,
most of the zoonotic diseases associated with New World NHPs can be
acquired from humans. A ``closed colony'' does not ensure that these
animals are or will remain free of zoonotic diseases of concern. TB,
in particular, is always acquired from humans. The comment does not
mention routine, regular TB testing, which is a necessary component
of a ``closed colony.'' More information is available at https://www.monkeyhelpers.org.
\41\ The Department notes that under 42 CFR 71.53, the
importation of any non-human primate into the United States is
prohibited unless the importer is registered with the CDC and the
purpose of the import is limited to science, education, or
exhibition.
---------------------------------------------------------------------------
In addition, the Department did not propose to include miniature
horses in its definition of a service animal given size limitations on
aircraft. The Department seeks comment on its proposal to limit service
animals to dogs.
2. Breed or Type Restrictions
Current Requirements
While the Department's disability regulations allow airlines to
deny transportation to an animal if, among other things, it poses a
direct threat to the health or safety of others, the Department has
taken the position that restrictions on specific dog breeds or types
are inconsistent with its current service animal regulation.\42\
---------------------------------------------------------------------------
\42\ See Final Statement of Enforcement Priorities Regarding
Service Animals, 84 FR 43480 (August 21, 2019).).
---------------------------------------------------------------------------
ANPRM
Although the Department did not specifically seek comment on
whether airlines should be permitted to refuse transportation to
certain breeds or types of service dogs, the Department received a
number of comments on airline breed restrictions.
Comments Received
The Department received hundreds of comments from individual
commenters on whether airlines should be permitted to restrict service
dogs based on breed or type. Delta Air Lines, Inc. (Delta Air Lines)
commented that carriers should be permitted to impose such restrictions
to ensure the safety of passengers on aircraft if the Department does
not establish a clear means to demonstrate that an animal can behave
properly.\43\ No other airline and no disability rights organization
addressed this issue as the ANPRM did not specifically call for comment
on this subject.
---------------------------------------------------------------------------
\43\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
---------------------------------------------------------------------------
Most individual commenters did not support allowing airlines to
impose breed restrictions on service animals. These commenters stated
that pit-bull bans are discriminatory and that their pit-bull-type
dogs, like other dogs, can be trained to perform tasks to mitigate a
user's disabilities and can be well behaved. These commenters also
questioned an airline's ability to determine whether a dog is a ``pit
bull'' simply by looking at the animal's features. Conversely,
approximately 22 percent of commenters supported a breed or type
restriction on dogs such as pit bulls (typically taken to include
American pit bull terriers, Staffordshire bull terriers, and American
Staffordshire bull terriers), as well as other types of dogs that
commenters believe are commonly known to be aggressive.
DOT Response
The Department is proposing that airlines should continue to be
prohibited from restricting service animals based solely on the breed
or generalized type of dog. The Department's policy has been to require
airlines to conduct individualized assessments of particular service
animals based on the animal's evident behavior or health, rather than
applying generalized assumptions about how a breed or type of dog would
be expected to behave. Under this policy, the Department allows
airlines to refuse transportation to dogs that exhibit aggressive
behavior and that pose a direct threat to the health or safety of
others regardless of breed, and we propose to retain that policy in our
new service animal rule. We note that DOJ
[[Page 6455]]
also rejects an outright ban on service animals because of their breed
in implementing its regulations under the ADA. DOJ has advised
municipalities that prohibit specific breeds of dogs that they must
make an exception for a service animal of a prohibited breed, unless
the dog poses a direct threat to the health or safety of others, a
determination that must be made on a case-by-case basis.\44\
---------------------------------------------------------------------------
\44\ See Frequently Asked Questions about Service Animals and
the ADA, Questions 22-24, available at https://www.ada.gov/regs2010/service_animal_qa.html (July 20, 2015): [I]f an individual uses a
breed of dog that is perceived to be aggressive because of breed
reputation, stereotype, or the history or experience the observer
may have with other dogs, but the dog is under the control of the
individual with a disability and does not exhibit aggressive
behavior, the public accommodation cannot exclude the individual or
the animal from the place of public accommodation. The animal can
only be removed if it engages in the behaviors mentioned in Sec.
36.302(c) (as revised in the final rule) or if the presence of the
animal constitutes a fundamental alteration to the nature of the
goods, services, facilities, and activities of the place of public
accommodation.
See also 75 FR 56236, 52266-56267 (September 15, 2010): [I]f an
individual uses a breed of dog that is perceived to be aggressive
because of breed reputation, stereotype, or the history or
experience the observer may have with other dogs, but the dog is
under the control of the individual with a disability and does not
exhibit aggressive behavior, the public accommodation cannot exclude
the individual or the animal from the place of public accommodation.
The animal can only be removed if it engages in the behaviors
mentioned in Sec. 36.302(c) (as revised in the final rule) or if
the presence of the animal constitutes a fundamental alteration to
the nature of the goods, services, facilities, and activities of the
place of public accommodation.
---------------------------------------------------------------------------
However, the Department understands the concerns raised about pit
bulls and certain other breeds or types of dogs that have a reputation
of attacking people and inflicting severe and sometimes fatal injuries.
The Department also understands that there may be concerns that certain
dogs may be dangerous because of their muscular bodies, large and
powerful jaws and neck muscles, and ferocity when provoked to attack.
The Department seeks comment on whether these concerns are valid. In
particular, the Department seeks comment on whether, notwithstanding
the DOJ rules under the ADA, the unique environment of a crowded
airplane cabin in flight justifies permitting airlines to prohibit pit
bulls and any other particular breeds or types of dogs from traveling
on their flights under the ACAA even when those dogs have been
individually trained to perform as service animals to assist a
passenger with a disability. The Department will consider this question
in light of the full rulemaking record when finalizing this rule. The
Department also seeks comment on whether its proposal to allow airlines
to conduct an individualized assessment of a service animal's behavior
to determine whether the service animal poses a direct threat to the
health or safety of others is an adequate measure to ensure that
aggressive animals are not transported on aircraft, rather than banning
an entire breed or type of service animal.
3. Emotional Support Animals
Current Requirements
For purposes of air transportation, under our existing rules, DOT
considers a service animal to be any animal that is individually
trained or able to provide assistance to a qualified person with a
disability; or any animal shown by documentation to be necessary for
the emotional well-being of a passenger.\45\ However, while the
Department currently requires airlines to recognize emotional support
animals as service animals, it allows airlines to require that
emotional support animal users provide a letter from a licensed mental
health professional of the passenger's need for the animal. Currently,
the Department's ACAA rules allow airlines to require emotional support
animal users to provide current documentation (no older than one year
from the date of the passenger's scheduled initial flight) on the
letterhead of a licensed mental health professional stating the
following:
---------------------------------------------------------------------------
\45\ See 14 CFR 382.117; Guidance Concerning Service Animals, 73
FR 27614, 27663 (May 13, 2008).
---------------------------------------------------------------------------
(1) The passenger has a mental or emotional disability recognized
in the Diagnostic and Statistical Manual of Mental Disorders--Fourth
Edition (DSM IV);
(2) The passenger needs the emotional support or psychiatric
service animal as an accommodation for air travel and/or for activity
at the passenger's destination;
(3) The individual providing the assessment is a licensed mental
health professional, and the passenger is under his or her professional
care; and
(4) The date and type of the mental health professional's license
and the state or other jurisdiction in which it was issued.\46\
---------------------------------------------------------------------------
\46\ 14 CFR 382.117(e)(1)-(4).
---------------------------------------------------------------------------
Furthermore, to enable airlines sufficient time to assess the
passenger's documentation, DOT permits airlines to require 48 hours'
advance notice of a passenger's wish to travel with an emotional
support animal so that airlines can verify the documentation. Airlines
are also permitted to require that passengers traveling with emotional
support animals check-in one hour before the check-in time for the
general public.\47\
---------------------------------------------------------------------------
\47\ 14 CFR 382.27(c)(8).
---------------------------------------------------------------------------
The ANPRM
In the ANPRM, the Department described the concerns raised by
airlines, disability advocates, flight attendants, and the traveling
public that emotional support animals may pose a safety risk to other
service animals, passengers, and airline personnel and could create a
disturbance or disruption that would interfere with the safe and
efficient operation of the aircraft. The Department sought comment on
whether it should continue to include emotional support animals in the
definition of a service animal in its ACAA regulation, or adopt a
definition of service animal similar to the definition in DOJ's ADA
regulation where emotional support animals are not recognized as
service animals.\48\
---------------------------------------------------------------------------
\48\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23838.
---------------------------------------------------------------------------
In the event that the Department decided to continue to recognize
emotional support animals as service animals, the Department sought
comment on whether it should continue to allow airlines to require
emotional support animal users to provide documentation.\49\ The
Department also sought comment on alternative approaches to
documentation that can be used to verify an emotional support animal's
status.\50\ Further, the Department sought comment on whether emotional
support animals should be regulated separately and distinctly from
service animals, and if airlines are required to transport emotional
support animals, whether airlines should be allowed to require that
emotional support animals be contained.\51\
---------------------------------------------------------------------------
\49\ Id.
\50\ Id
\51\ Id
---------------------------------------------------------------------------
Comments Received
Should the Department continue to include emotional support animals in
the Department's ACAA definition of a service animal?
Most organization commenters urged the Department to align its
definition of a service animal with DOJ's definition of a service
animal, which does not recognize emotional support animals and limits
service animals to dogs individually trained to do work or perform a
task for an individual with a disability. As part of this NPRM, the
Department seeks comment on reasons
[[Page 6456]]
the regulation of service animals on aircraft should or should not
differ from DOJ's regulation of service animals under its rules
implementing the ADA. Airline organizations commented that the
Department should follow DOJ's lead and exclude emotional support
animals from the definition of a service animal in the air
transportation context because DOJ's definition is ``better suited to
the particular challenges associated with accommodating animals in the
aircraft cabin environment, which involves allowing animals to travel
in a confined, noisy, moving space at high altitude . . . and in close
proximity to crew, passenger, and other animals and no opportunity to
remove the animal during flight.'' \52\ Similarly, disability advocates
have commented that the Department's current rule, which classifies
emotional support animals as service animals, causes significant
confusion in the disability community.
---------------------------------------------------------------------------
\52\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------
However, while disability advocates, airlines, and the majority of
commenters agree that emotional support animals should be removed from
the definition of a service animal, they disagree on whether the
Department should recognize emotional support animals as an
accommodation for individuals with disabilities that would be regulated
separately and distinctly from service animals. Most advocacy
organizations support a definition of service animal focused on animals
trained to do work or perform tasks for the benefit of individuals with
disabilities, similar to DOJ's definition. Those advocacy
organizations, however, support the Department's continued recognition
of emotional support animals, so long as emotional support animals are
regulated separately and distinctly from service animals.
The National Federation of the Blind (NFB) \53\ commented that
emotional support animals, which are untrained to mitigate a
disability, should be permitted as an accommodation subject to
``specific and more restrictive conditions'' of carriage. In addition,
Psychiatric Service Dog Partners (PSDP) \54\ commented that regulating
emotional support animals differently from other service animals is
warranted given that emotional support animals have not been trained to
perform a specific task for a passenger with a disability, and
emotional support animal users are likely not aware of DOT's behavior
expectations or the required public access training protocols.
---------------------------------------------------------------------------
\53\ Comment of the National Federation of the Blind, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3261.
\54\ Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3117.
---------------------------------------------------------------------------
Similarly, in a joint comment filed by A4A, RAA, and IATA, these
associations commented that should the Department continue to recognize
emotional support animals, a decision opposed by the associations,
emotional support animals should be regulated separately and distinctly
from service animals and subject to more stringent requirements than
service animals, such as documentation from a licensed mental health
professional who has examined and diagnosed the emotional support
animal user in person.\55\
---------------------------------------------------------------------------
\55\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------
The majority of individual commenters provided general statements
of support for the Department's continued recognition of emotional
support animals, and did not opine on whether emotional support animals
should be regulated separately from service animals. Generally, these
individuals, along with those disability advocates in support of the
continued recognition of emotional support animals, argue that the
Department should continue to recognize the vital role that emotional
support animals play in mitigating mental and emotional disabilities
during air transportation and at a passenger's destination.
Specifically, PVA insists that passengers with disabilities have access
to their emotional support animals as the mere presence of these
animals accommodates a person's disability and may be crucial to
allowing a person with a disability to travel by air.\56\ Similarly,
the American Council of the Blind (ACB) recognizes that emotional
support animals can perform a vital role for individuals who are
incapable of moving freely through society.\57\
---------------------------------------------------------------------------
\56\ Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4187.
\57\ Comment of American Council of the Blind, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4133.
---------------------------------------------------------------------------
Autism Speaks commented that the Department should afford
individuals with disabilities who rely on emotional support and
psychiatric service animals ``with the same legal protections as people
who use other service animals.'' \58\ Autism Speaks acknowledges that
``people may not see the services psychiatric service animals and
emotional support animals provide because sometimes these services may
not be obvious; autism itself may be an invisible disability,'' but
``the needs of many people with autism for emotional support, however,
are very real.''
---------------------------------------------------------------------------
\58\ Comment of Autism Speaks, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4268.
---------------------------------------------------------------------------
Airlines have indicated that fraud and safety are the primary
reasons they oppose the Department's continued recognition of emotional
support animals. In a joint comment filed by A4A, RAA, and IATA, these
associations commented that ``incidents involving animals that
allegedly are [emotional support animals] [have] become an unacceptable
threat to the health and safety of airline staff and the traveling
public, including qualified individuals with a disability who travel
with a trained service animal and those trained service animals
themselves.'' \59\
---------------------------------------------------------------------------
\59\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------
With respect to fraud, airlines commented that individuals
traveling with purported emotional support animals may not actually be
individuals with disabilities, and the surge in the transport of
emotional support animals on aircraft is fueled by ``cheap and easy
availability of fraudulent credentials.'' American Airlines, Inc.
(American Airlines) commented that it experienced a 48-percent increase
in the number of emotional support animals carried in 2017 compared to
2016 (105,155 in 2016 and 155,790 in 2017).\60\ American Airlines also
commented that it experienced a 17-percent decline in the number of
requests to transport pets for a fee in 2017 in comparison to 2016.
Spirit Airlines, Inc. (Spirit Airlines) commented on the loss of
millions of dollars in pet carriage fees from passengers fraudulently
claiming their ``house pets are service or support animals'' and on
instances of emotional support animal misbehavior as justification for
why the Department should not recognize emotional support animals.\61\
Delta Air Lines recognizes that some passengers with disabilities
``have a legitimate need'' for emotional support animals; however, the
carrier opposes the Department's continued recognition of emotional
support animals and urged the Department to adopt the DOJ definition of
a trained service animal. Delta believes that passengers who currently
have a
[[Page 6457]]
legitimate need for an emotional support animal could still be
accommodated on aircraft under the DOJ definition of a service animal,
if these passengers trained their animals to become psychiatric service
animals, which are recognized as service animals by DOJ.\62\ However,
Spirit Airlines contends that the Department should eliminate the
category of emotional support animals in its regulations because
emotional support animals generally receive ``absolutely no training,
neither obedience nor specific to their owner's disability'' (emphasis
in original).\63\ Most U.S. carriers believe that most of the fraud and
safety issues on which the Department sought comment in the ANPRM would
be mitigated if DOT adopted a definition of service animal that
excluded emotional support animals.
---------------------------------------------------------------------------
\60\ Comment of American Airlines, Comment of American Airlines,
Inc. https://www.regulations.gov/document?D=DOT-OST-2018-0068-3507.
\61\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
\62\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
\63\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
---------------------------------------------------------------------------
While U.S. airlines oppose the Department's continued recognition
of emotional support animals, foreign carriers are split on this issue.
Those foreign carriers in support of emotional support animals urge the
Department to define emotional support animals separately from service
animals and subject them to a more stringent regulatory standard.
Health and safety concerns continue to be the primary justification
provided by foreign carriers in support of eliminating emotional
support animals or subjecting them to stricter regulation.
Should the Department continue to allow airlines to require emotional
support animal users to provide medical documentation and advance
notice?
While most disability advocates oppose allowing airlines to require
documentation from service animal users, including emotional support
animal users, some advocacy organizations are in favor of documentation
exclusively for emotional support animals. Some advocacy organizations
support documentation for all service animal users in the form of a
decision-tree, which is a series of questions designed to educate the
public on traveling with service animals and reduce the instances of
individuals fraudulently representing their pets as service animals.
Some advocates and airlines expressed support for behavior
attestations, another form of documentation first suggested during a
2016 negotiated rulemaking as a potential measure to be proposed by the
Department in a future rulemaking.\64\ Since the negotiated rulemaking,
several carriers have created their own behavioral attestations as one
of many service animal policy changes that carriers put into place in
2018 and 2019. Finally, some disability advocacy organizations that
oppose documentation for service animals, including emotional support
animals, commented that the Department should only permit airlines to
make the same inquiries that DOJ permits under its regulation
implementing the ADA: (1) Is the animal required because of a
disability? and (2) What work or task has the animal been trained to
perform? \65\
---------------------------------------------------------------------------
\64\ Service Animal--Vote Tally Sheet--3rd Party Documentation,
Mandatory Attestation (Oct. 26, 2016), https://www.regulations.gov/document?D=DOT-OST-2015-0246-0281.
\65\ See 28 CFR 35.136(f); 28 CFR 36.302(c)(6). DOJ's ADA
regulations do not generally permit a covered entity to make these
two inquiries when it is readily apparent that an animal is trained
to do work or perform tasks for an individual with a disability,
(e.g., the dog is observed guiding an individual who is blind or has
low vision, pulling a person's wheelchair, or providing assistance
with stability or balance to an individual with an observable
mobility disability).
---------------------------------------------------------------------------
While all commenting U.S. airline opposed the Department's
continued recognition of emotional support animals, airlines have
commented that if the Department continues to require airlines to
transport emotional support animals as an accommodation for individuals
with disabilities, airlines should be permitted to require those
passengers to provide documentation from a medical professional that
confirms the passenger's need for the animal. Airlines also commented
that airlines should be able to impose more restrictive requirements--
for example, that the passenger's diagnosis be based on an in-person
visit and that the documentation state that the passenger has a mental
impairment as defined in the Department's ACAA regulations, as opposed
to stating only that the passenger has a disorder recognized under the
Diagnostic and Statistical Manual of Mental Disorders.
Both U.S. and foreign carriers believe that allowing airlines to
require documentation to prove the passenger's need for an emotional
support animal is essential if the Department continues to recognize
emotional support animals. Airlines commented that there is a
significant problem with fraud under the Department's current
requirements and that fraud would only become more prevalent should the
Department dispense with a documentation requirement for emotional
support animal users. The Association of Flight Attendants (AFA) also
favors a documentation requirement for emotional support animal users
and noted that while some emotional support animal users may be
discouraged from flying if required to produce documentation, the
correlation between a documentation requirement and fraud reduction
justifies the requirement. That association also noted that while a
documentation requirement may not eliminate fraud entirely, fraud
reduction, to any degree, benefits the traveling public, individuals
with disabilities, and airlines.
Should the Department allow airlines to require emotional support
animals to be contained in pet carriers?
Disability advocates are largely split on the issue of whether
emotional support animals should be contained in pet carriers. Some
advocates support requiring the containment of emotional support
animals but comment that they should be allowed to be removed from the
carrier to mitigate a disability. Other disability advocates only
support the containment of emotional support animals when the animal is
behaving badly. Some disability advocates oppose a containment
requirement altogether fearing that large emotional support animals
that do not fit in pet carriers would not be permitted access on
airplanes. Finally, some advocates recommend that emotional support
animals merely be leashed, harnessed, or tethered, rather than
contained.
The majority of airlines commented that if the Department chooses
to recognize emotional support animals, emotional support animals
should be contained for the duration of the flight. If the animal is
too large to fit in a container, one airline suggests that the airline
be permitted to treat the animal as a pet and offer the passenger the
option for the animal to fly in the cargo compartment. Conversely Delta
Air Lines, which generally opposes the Department's recognition of
emotional support animals, does not support containing emotional
support animals for the duration of the flight.\66\ That carrier
explained that if the Department were to decide to continue to
recognize emotional support animals, emotional support animals would be
unable to mitigate a passenger's disability if contained in a carrier.
The carrier further stated that a containment requirement for emotional
support animals, if allowed, would be
[[Page 6458]]
inconsistent with the spirit of the ADA and the ACAA. The carrier does,
however, support that airlines be granted the authority to restrain
emotional support animals by harness, leash, or other restraint
mechanisms.
---------------------------------------------------------------------------
\66\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
---------------------------------------------------------------------------
Airport commenters support a requirement that emotional support
animals be contained if they continue to be recognized, especially
while traversing through the airport. Airports argue that airport
operators have the right to require any animal that is not a service
animal under the ADA to be contained and a containment requirement
promotes consistency between the ADA and ACAA regulations.
What species should be accepted as emotional support animals?
Disability advocacy organizations and the public are generally
split on what species of emotional support animals the Department
should recognize if it continues to recognize emotional support
animals. Some public commenters and disability advocacy organizations
favor the Department's current species requirement for emotional
support animals, which does not limit species except with respect to
unusual species such as snakes, other reptiles, fetters, rodents, and
spiders.\67\ Conversely, other individual commenters and disability
advocates urge the Department to recognize only dogs and miniature
horses as emotional support animals.
---------------------------------------------------------------------------
\67\ 14 CFR 382.117(f).
---------------------------------------------------------------------------
The majority of disability advocacy organizations and public
commenters, however, are split between favoring a requirement that dogs
and cats be recognized as emotional support animals and favoring a
requirement that dogs, cats, and rabbits be recognized as emotional
support animals because, as noted by these organizations, dogs, cats
and rabbits are the most commonly used species of emotional support
animal. A small contingent of disability advocacy organizations
encourage the Department to allow airlines to limit emotional support
animals to animals that have been trained to behave properly in public,
rather than specifying a species in the rule. Finally, one advocacy
organization argues that all trained or domesticated emotional support
animals should be permitted to be recognized as a service animal under
DOT's ACAA rule.
Most airlines commented that they should only be required to carry
dogs as emotional support animals if the Department continues to
recognize emotional support animals, although some also support
permitting miniature horses, subject to airline pre-approval. One
airline suggests that cats be allowed as emotional support animals if
the Department continues to recognize emotional support animals.
DOT Response
Definition of a Service Animal
The Department proposes in this NPRM to define a service animal as
a dog that is individually trained to do work or perform tasks for the
benefit of a qualified individual with a disability. This definition is
similar to DOJ's definition of a service animal under Title II and
Title III of the ADA.\68\ DOJ's Title II rules for State and local
governments govern airports owned by a public entity and DOJ's Title
III rules for public accommodations and commercial facilities govern
privately owned airports and airport facilities. Under DOT's proposed
service animal definition, like DOJ's service animal definition in its
ADA rules, emotional support animals would not be recognized as service
animals as they are not trained to do work or perform a task for the
benefit of an individual with a disability. The Department's proposal
is intended to align DOT's ACAA definition of a service animal with the
service animal definition established by DOJ in its rules implementing
the ADA and thereby decrease confusion for individuals with
disabilities, airline personnel, and airports. While the Department
proposes to allow airlines to treat emotional support animals as pets
rather than service animals, airlines could choose to continue to
recognize emotional support animals and transport them for free
pursuant to an airline's established policy. The Department seeks
comment on its proposed service animal definition, which does not
recognize emotional support animals and limits the species that qualify
as service animals to dogs.
---------------------------------------------------------------------------
\68\ See 28 CFR 35.104 and 28 CFR 36.104.
---------------------------------------------------------------------------
Although the NPRM proposes not to treat emotional support animals
as service animals, the Department seeks further comment on whether the
Department should recognize emotional support animals as an
accommodation for individuals with disabilities that would be regulated
separately and distinctly from service animals. The Department
recognizes that we have already received considerable feedback on this
topic during the comment period to the ANPRM; individuals and
organizations need not re-submit those same comments during the comment
period to this NPRM. The NPRM solicits comment on whether, and to what
extent, the proposal not to recognize emotional support animals would
impact the ability of individuals with disabilities who rely on
emotional support animals to travel via aircraft. The Department seeks
comment on whether individuals with disabilities who use emotional
support animals to mitigate their disabilities would be less likely to
travel by air if they are no longer permitted to travel with their
emotional support animal. Furthermore, since airlines would be
permitted to treat emotional support animals as pets, the Department
requests information from airlines on whether individuals would be able
to transport emotional support cats or other small animals as pets in
the cabin for a fee and whether there are limits on the number of pets
an airline would allow per flight which could impact their transport.
Some commenters have noted that emotional support animal users who
have a mental health disability may train their dogs to do work or
perform a task to assist them with their disability, thereby
transforming the animal from an emotional support animal to a
psychiatric service animal. The Department requests comment as to
whether the Department should recognize this option and, if so, whether
the availability of this option would mitigate any negative impact of
this proposal on users of emotional support dogs.
Alternatively, if the Department decides not to adopt the
definition of service animal as proposed (and instead adopts a final
rule that continues to recognize emotional support animals), the
Department requests comment on whether emotional support animals are
more likely to misbehave in comparison to traditional service animals
because they have not been trained to mitigate a disability. While one
solution suggested by commenters is to permit airlines to require
stricter documentation for emotional support animal users (e.g., forms
completed and signed by a medical practitioner such as a doctor or
nurse practitioner, verification of in-person treatment by a medical
practitioner, and verification that the patient has or will receive
ongoing treatment from the medical practitioner), others expressed
concern that these stricter measures may impose unnecessary burdens on
passengers with disabilities. The Department requests comment on
whether stricter documentation for emotional support animal users would
be effective in decreasing the likelihood of fraud by businesses
seeking to profit by guaranteeing emotional support animal
[[Page 6459]]
documentation to individuals traveling with pets.
The Department also seeks comment on how limiting emotional support
animals to dogs and cats might impact individuals with disabilities who
rely on other species of animals to accommodate their disability. It is
the Department's understanding that dogs currently represent the
majority (approximately 90 percent) of service animals transported on
aircraft (including emotional support animals) and cats are the second
largest species used as emotional support animals. As such, the
Department seeks comment on how individuals who rely on emotional
support cats would be impacted should the Department decide not to
recognize emotional support animals or only recognize emotional support
dogs.
Finally, if the Department decides not to adopt the definition of
service animal as proposed (and instead adopts a final rule that
continues to recognize emotional support animals), the Department seeks
comment on whether airlines should be allowed to require that emotional
support animals be contained in an FAA-approved in-cabin pet carrier in
the airport and on the aircraft and whether providing passengers the
ability to open the carrier and touch the animal is sufficient
disability mitigation, even if the animal is required to remain in its
carrier for the duration of a flight. The Department also seeks comment
on whether to allow airlines to accept only those emotional support
animals that fit in in-cabin pet carriers that are consistent with
applicable FAA regulations and, if so, the impact of limiting the size
of emotional support animals. Finally, the Department seeks comment on
whether limiting emotional support animals to one per passenger would
sufficiently mitigate a passenger's disability on a flight or at the
passenger's destination.
4. Psychiatric Service Animals
Current Requirements
The Department's current ACAA regulation allows airlines to treat
psychiatric service animals and emotional support animals differently
from other animals that assist individuals with disabilities.\69\
Similar to emotional support animals, airlines are permitted to require
psychiatric service animal users to provide medical documentation to
prove the passenger's need for the psychiatric service animal, to
provide 48--hours advance notice prior to travel, and check-in one hour
before the check-in time for the general public.\70\
---------------------------------------------------------------------------
\69\ See 14 CFR 382.117(e).
\70\ 14 CFR 382.27(c)(8).
---------------------------------------------------------------------------
The ANPRM
In the ANPRM, the Department solicited comment on whether it should
amend its service animal regulation to ensure individuals traveling
with psychiatric service animals are not subject to more burdensome
requirements than passengers traveling with other service animals that
do work or perform a task to mitigate a disability. More specifically,
the Department sought comment in the ANPRM on whether it should amend
its service animal regulations no longer to permit airlines to require
medical documentation, 48--hours advance notice of travel, or check-in
in one hour before the general public for psychiatric service animal
users.\71\
---------------------------------------------------------------------------
\71\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23838).
---------------------------------------------------------------------------
The Department also requested comment on whether there may be a
valid basis for allowing airlines to treat individuals traveling with
psychiatric service animals differently from individuals traveling with
traditional service animals.\72\ The Department inquired about the
practical implications of no longer permitting airlines to require
medical documentation from psychiatric service animal users if the ACAA
rule were to treat psychiatric service animals like other service
animals.\73\ The Department sought comment in the ANPRM on whether
airline personnel would be able to distinguish between a psychiatric
service animal and an emotional support animal should the Department
amend its regulation to treat psychiatric service animals like other
service animals that do work or perform tasks.\74\ Further, to gauge
whether the problem of individuals' falsely claiming to have a mental-
health-related condition is greater than the problem of individuals'
falsely claiming other hidden disabilities, such as a seizure disorder,
to avoid paying airline pet fees, the Department sought comment on
what, if any, experience airlines have had with passengers' claiming to
have a seizure disorder, diabetes, or non-mental-health-related
condition, and fraudulently attempting to travel with their pets as
service animals.\75\ In addition, the Department sought feedback on
alternatives to a medical documentation requirement that would prove
the passenger's need for a psychiatric service animal.\76\
---------------------------------------------------------------------------
\72\ Id.
\73\ Id.
\74\ Id.
\75\ Id.
\76\ Id.
---------------------------------------------------------------------------
Comments Received
Most commenters support an ACAA definition of a service animal that
treats psychiatric service animals the same as other service animals
that do work or perform a task. The National Disability Rights Network
commented that treating psychiatric service animals the same as other
tasked-trained service animals is fair because treating them
differently perpetuates the myth that psychiatric service animals are
inferior to service animals used to mitigate other types of
disabilities.\77\ Similarly, American Airlines commented that
psychiatric service animals should be treated the same as other service
animals trained to do work or perform a task because psychiatric
service animals are professional working dogs.\78\ American Airlines
also commented that treating psychiatric service animals the same as
other task-trained service animals would provide consistency between
the DOT's ACAA regulation and DOJ's ADA regulations.
---------------------------------------------------------------------------
\77\ Comment of National Disability Rights Network, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4307.
\78\ Comment of American Airlines, Inc. https://www.regulations.gov/document?D=DOT-OST-2018-0068-3507.
---------------------------------------------------------------------------
A4A urged the Department to treat psychiatric service animals the
same as other task-trained service animals and no longer to recognize
emotional support animals.\79\ But A4A encourages the Department to
dispense with the medical documentation and advance notice allowance
for psychiatric service animal users for only a one-year review period.
A4A reasoned that removing the documentation and advance notice
allowance for psychiatric service animals may encourage pet owners, who
once claimed that their pets were emotional support animals, to pivot
to claiming that their pets are psychiatric service animals to avoid
airline pet fees and to travel with their pets in the cabin. A4A
suggests allowing airlines to collect data during the one-year review
period and if enough evidence exists to suggest that some pet owners
are falsely representing their pets as psychiatric service animals
after the one-year period, airlines should be allowed to request
medical documentation, and proof of training and/or vaccination from
psychiatric service animal users.
---------------------------------------------------------------------------
\79\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------
Some U.S. carriers disagree with treating psychiatric service
animals the
[[Page 6460]]
same as traditional service animals and encourage the Department to
continue to allow airlines to require documentation and advance notice
from psychiatric service animal users. United Airlines states that the
Department should ``retain (and consider strengthening) documentation
provisions for [psychiatric service animals] in the event that it
becomes apparent that individuals without disabilities are attempting
to assert that their untrained pets are [psychiatric service
animals].'' \80\ Spirit Airlines commented that psychiatric service
animals do not receive the same level of training as ``true'' service
animals, which are subjected to training to attend to their 'handlers'
needs, specifically in the area of obedience training.\81\ Spirit
Airlines also expressed concerns that dispensing with the documentation
requirement for psychiatric service animals would result in more
animals being transported for free as airlines would only be able to
rely on a passenger's verbal assurances that the animal was a service
animal and not a pet.
---------------------------------------------------------------------------
\80\ Comment of United Airlines, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4283.
\81\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
---------------------------------------------------------------------------
DOT Response
As discussed above, the Department proposes to define a service
animal as a dog that is individually trained to do work or perform
tasks for the benefit of a qualified individual with a disability.
Because psychiatric service animals are trained to do work or perform
tasks for an individual with a disability, the Department proposes to
treat psychiatric service animals the same as other service animals
trained to do work or perform tasks. The Department proposes this
change not only to harmonize DOT's ACAA service animal definition with
DOJ's ADA service animal definition, which, as noted above, defines a
service animal as one that is individually trained to do work or
perform tasks for the benefit of an individual with a disability, but
also because the rationale for having a different regulatory
requirement for users of psychiatric service animals is weak. The
current medical documentation, 48 hours' advance notice, and check-in
requirements for psychiatric service animal users were adopted in the
Department's 2008 amendment to the ACAA rule to address concerns raised
about passengers falsely claiming to have a mental health condition in
order to pass off their pets as service animals. While the Department
is aware of concerns about passengers who falsely claim to have a
mental health condition that may require the use of a service animal,
unscrupulous passengers may also falsely claim to have other hidden
disabilities such as seizure disorder or diabetes to pass off their
pets as service animals and avoid paying airline pet fees. Thus, we
believe that the justification for treating service animal users with
mental or emotional disabilities different from service animal users
with other hidden disabilities is currently lacking.
If the rule is adopted as proposed, the Department would monitor
the experience of airlines in accommodating the use of service animals
for those passengers with mental-health needs who depend upon such
service animals. We would consider revisiting whether it is reasonable
and appropriate to allow additional requirements for the use of such
animals if there is a demonstrated need--for example, if there is a
notable increase in instances of passengers falsely representing pets
as mental-health-related service animals.
5. Large Service Animals
Current Requirements
The Department's current regulation allows airlines to determine
whether factors preclude a given service animal from being transported
in the cabin, including whether the animal is too large or too heavy to
be accommodated in the cabin. Under this rule, an animal may be
excluded from the cabin if it is too large or too heavy to be
accommodated in the specific aircraft at issue.
However, the Department's guidance on the issue of a service
animal's encroaching on the foot space of a passenger is not clear. DOT
has previously stated that service animals may be ``placed at the feet
of a person with a disability at any bulkhead seat or in any other seat
as long as when the animal is seated/placed/curled up on the floor, no
part of the animal extends into the main aisle(s) of the aircraft, the
service animal is not at an emergency exit seat, and the service animal
does not extend into the foot space of another passenger seated nearby
who does not wish to share foot space with the service animal.'' \82\
DOT has also stated that a service animal may need to use a reasonable
portion of an adjacent seat's foot space that does not deny another
passenger effective use of the space for his or her feet by taking all
or most of the passenger's foot space.\83\ The Department advised
airlines to seek out and seat the individual with a disability next to
a passenger willing to share foot space with the animal. The Department
also advised airlines to reseat passengers traveling with a service
animal in a location on the aircraft where the service animal can be
accommodated--e.g., next to an empty seat. Finally, DOT advised
airlines that if there are no alternatives available to enable the
passenger to travel with the service animal in the cabin on that
flight, the carrier should offer the passenger the option of either
transporting the service animal in the cargo hold or on a later flight
with more room.\84\
---------------------------------------------------------------------------
\82\ See FAA Order 8900.1, Vol. 3, Ch. 33, Section 6 at ] 3-3576
(March 5, 2019), http://fsims.faa.gov/wdocs/8900.1/v03%20tech%20admin/chapter%2033/s_03_033_006.pdf and FAA Guidance,
What Airline Employees, Airline Contractors, and Air Travelers with
Disabilities Need to Know About Access to Air Travel for Persons
with Disabilities, A Guide to the Air Carrier Access Act (ACAA) and
its implementing regulations, 14 CFR part 382 (part 382), https://www.transportation.gov/sites/dot.gov/files/docs/TAM-07-15-05_0.pdf.
\83\ See 73 FR 27614, 27634, ``The fact that a service animal
may need to use a reasonable portion of an adjacent seat's foot
space--that does not deny another passenger effective use of the
space for his or her feet--is not, however, an adequate reason for
the carrier to refuse to permit the animal to accompany its user at
his or her seat.''
\84\ See 73 FR 27614, 27661.
---------------------------------------------------------------------------
The ANPRM
In the ANPRM, the Department sought comment on whether to allow
airlines to limit the size of service animals that travel in the cabin,
and the implications of such a decision.\85\ Airlines had previously
indicated to the Department that some passengers have felt coerced when
asked by the airline, in front of other passengers on aircraft, to
share their space with a service animal and they may have agreed to
share space even if they did not wish to so. As such, the Department
sought comment on whether passengers find it burdensome to share foot
space on the aircraft with service animals.
---------------------------------------------------------------------------
\85\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23841.
---------------------------------------------------------------------------
Comments Received
The comments received by disability advocates uniformly discourage
the Department from adopting a rule that would allow airlines to limit
the size of service animals on an aircraft. Disability advocates argue
that aircraft seat sizes have shrunk, and continue to shrink, and that
the Department should adopt a rule that prohibits airlines from
decreasing seat size rather than allowing airlines to limit the size of
service
[[Page 6461]]
animals. Furthermore, disability advocates argue that there is little
evidence to show that large service animals pose a greater safety risk
than small service animals on aircraft and that limiting the size of
service animals would be disproportionately unfair to individuals with
mobility impairments who use larger animals to mitigate their
disability.
Airlines, however, argue that it is unfair to paying passengers to
be forced to share their limited space on the aircraft with a large
service animal. Airlines also believe that limiting the size of service
animals would decrease burdens on flight attendants, as flight
attendants must spend time rearranging passengers to accommodate large
animals and flight crew frequently suffer the ire of passengers unhappy
with having to move or being asked to share their foot space with an
animal.
Airlines also argue that the carriage of large animals in the cabin
violates FAA safety requirements, which require that aisles and other
passageways be free of obstructions to allow all passengers egress in
the case of an emergency. A4A, RAA, and IATA commented that allowing
large untrained emotional support animals in the cabin threatens the
safety and health of other passengers on aircraft.\86\ Finally, AFA
commented that airlines should be allowed to limit the size of service
animals on aircraft, but the limitation should be based on the aircraft
type and the available space in the cabin.\87\
---------------------------------------------------------------------------
\86\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
\87\ Comment of the Association of Flight Attendants, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4207.
---------------------------------------------------------------------------
DOT Response
The Department proposes to allow airlines to place size limitations
on service animals to the extent that the animal must fit within the
passenger's foot space on the aircraft or can be placed on the
passenger's lap. While the Department is sensitive to the fact that
many large service animals, such as German Shepherds, Golden
Retrievers, and Labrador Retrievers, tend to accompany individuals with
disabilities, particularly individuals with mobility impairments, these
animals are often trained to fit into small spaces. The Department
seeks comment on its proposal to limit the size of service animals
based on whether the animal can fit into the foot space afforded to the
passenger on that particular aircraft type, or on whether the service
animal is no larger than a lap-held child and can be placed on the
passenger's lap.
In instances where an animal is too large to fit in the passenger's
foot space or be placed on the passenger's lap, the Department proposes
to require airlines to seat the passenger traveling with a service
animal next to an empty seat within the same class of service where the
animal can be accommodated, if such a seat is available. If there are
no empty seats available to allow a passenger to travel with the
service animal in the cabin on the passenger's scheduled flight, the
Department proposes to require airlines to provide passengers the
option to transport the animal in the cargo hold for free, or to
transport the passenger on a later flight with more room if available.
The Department seeks comment on these proposals.
6. Number of Service Animals per Passenger
Current Requirements
Under the Department's current service animal regulation, it is not
clear how many service animals may accompany a single passenger on an
aircraft. Section 382.117(a) states that an airline ``must permit a
service animal to accompany a passenger with a disability'' (emphases
added). While this language could be read as suggesting that an airline
is only required to transport one service animal per passenger, section
382.117(i) references guidance concerning carriage of service animals,
which does not have independent mandatory effect, but rather describes
how the Department understands the requirements of section 382.117.
That guidance states, ``A single passenger legitimately may have two or
more service animals.'' See 73 FR 27614, 27661 (May 13, 2008). In its
Final Statement of Enforcement Priorities Regarding Service Animals,
the Department's Enforcement Office stated that it would focus its
enforcement efforts on ensuring that airlines are not restricting a
single passenger from traveling with a total of three service animals
if needed.\88\ While the Department's disability regulation does not
specify how many service animals may travel with a passenger with a
disability, it does not allow airlines to deny transport to a service
animal accompanying a passenger with a disability because of a limit on
the total number of service animals that can be on a flight.\89\
---------------------------------------------------------------------------
\88\ Final Statement of Enforcement Priorities Regarding Service
Animals, 84 FR 43480 (August 21, 2019).
\89\ For example, if Ms. Smith needs to travel with a service
dog, an airline cannot deny transport to that service dog because
the airline believes that there are already too many service dogs on
the aircraft. Section 382.117(a) requires airlines to permit a
service animal to accompany a passenger with a disability. Section
382.17 prohibits airlines from limiting the number of passengers
with a disability on a flight.
---------------------------------------------------------------------------
The ANPRM
In the ANPRM, the Department sought comment on whether to limit the
number of service animals that a single passenger with a disability may
carry onboard a flight and how many service animals should be permitted
to accompany a single passenger with a disability. DOT also sought
comment on whether airlines should allow passengers to justify the need
for more than a single animal, and what the parameters of such a
justification should be.\90\
---------------------------------------------------------------------------
\90\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23840.
---------------------------------------------------------------------------
Comments Received
Most disability advocates commented that airlines should be
required to allow at least two service animals to travel with a single
passenger if needed. Advocates reason that some individuals have
multiple disabilities and that while some animals have been trained to
perform multiple tasks, some individuals with disabilities may need
animals that are focused on mitigating a specific disability for the
mitigation to be effective. Airlines, however, commented that they
should be permitted to limit the number of service animals traveling
with a passenger to one service animal. Airlines argue that allowing
one service animal per passenger helps support safety and would help to
avoid disruptions in the cabin. Airlines also argue that given the
space afforded to individual passengers on aircraft, transporting more
than one service animal could be problematic.
DOT Response
The Department proposes to limit the number of service animals
traveling with a single passenger with a disability to no more than two
service animals. The Department acknowledges comments from disability
rights advocates that certain individuals with disabilities require
more than one service animal, and while a single service animal may be
trained to perform more than one mitigating function, more than one
service animal may be needed to assist an individual on the aircraft or
at the passenger's
[[Page 6462]]
destination if the passenger uses the animals for lengthy periods of
time (e.g., if one animal may need a break from work). Furthermore,
disability advocate commenters noted that while a service animal may be
trained to assist an individual with multiple disabilities, a
passenger's animal may need to focus on mitigating one disability at a
time for the mitigation to be effective so multiple animals may be
needed at once. For those passengers who seek accommodation for two
service animals, the airline would be permitted to require the
passenger to complete two separate attestation forms, one for each
animal, to verify that each qualifies for appropriate accommodation as
a service animal to accompany the passenger on the flight.
In response to the carriers' argument regarding the lack of space
in the cabin to accommodate a passenger traveling with two service
animals, the Department notes that this NPRM does not propose that an
airline be required to provide an individual with two service animals
with additional space but would require the airline to allow the
individual to use all his or her allotted space without encroaching
into the space of another passenger. Airlines may refuse transportation
to the animals in the cabin if the animals would not safely fit in the
passenger's lap or foot space. The Department seeks comment on its
proposal to limit the number of service animals traveling with a single
individual with a disability to two animals, specifically including
whether there are compelling safety-related reasons to limit each
qualifying passenger to no more than one service animal.
7. Service Animal Restraints
Current Requirements
The Department's current rule does not clearly specify whether or
how airlines may restrict the movement of service animals in the cabin.
However, the Department has issued guidance that service animal users
are expected under the Department's current ACAA service animal rule to
maintain control of their animals both in the airport and on aircraft.
In the Final Statement of Enforcement Priorities Regarding Service
Animals, the Department's Enforcement Office also noted that, in
general, tethering and similar means of controlling an animal that are
permitted in the ADA context would appear to be reasonable in the
context of controlling service animals in the aircraft cabin.
The ANPRM
Because of the potential safety risks associated with transporting
unrestrained animals, including both the risks to the well-being of
other passengers and crew as well as the risks of interfering with the
safe and efficient operation of the aircraft, DOT sought comment on
whether its service animal rule should explicitly state that service
animals must be harnessed, leashed, tethered, or otherwise under the
control of its handler or whether it is reasonable for airlines to make
this requirement a condition of providing air transportation.\91\ DOT
also sought comment on whether a leash, tether, harness or other
restraint device would increase safety on aircraft.\92\ Finally, the
Department sought general feedback on the advantages and disadvantages
of adopting such a requirement.\93\
---------------------------------------------------------------------------
\91\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23840.
\92\ Id.
\93\ Id.
---------------------------------------------------------------------------
Comments Received
Airlines, disability advocates, organizations, and individual
commenters were unified in their support that the Department adopt a
requirement that requires service animals to be harnessed, leashed,
tethered, or otherwise under the control of the service animal user.
A4A, RAA, and IATA, commented that if harnessing, leashing, and
tethering is appropriate for trained animals under the ADA, a similar
requirement is appropriate for service animals on aircraft.\94\ A
number of commenters also recognized that a control requirement is
especially crucial in the airport/aircraft environment given the high-
stakes nature of air transportation.
---------------------------------------------------------------------------
\94\ Comment of Airlines for America, Regional Airline
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------
Some airlines recommended muzzling as a form of control, although
some advocates discouraged muzzling as an acceptable restraint measure
because it may limit a service animal's ability to breathe properly.
But even those advocacy groups that opposed muzzling supported a
requirement that service animals be under the control of an individual
with a disability at all times. Some disability advocates also
recommend that DOT, similar to DOJ, should permit service animal
handlers to exercise voice command over service animals as a means of
control if a service animal needs to be free from a restraint device to
mitigate a passenger's disability.
DOT Response
The Department proposes to allow airlines to require service
animals to be harnessed, leashed, or tethered unless the device
interferes with the service animal's work or the passenger's disability
prevents use of these devices. In that case, the carrier must permit
the passenger to use voice, signal, or other effective means to
maintain control of the service animal. This proposal is similar to the
requirement in DOJ's rule implementing the ADA, which requires service
animals to be harnessed, leashed or tethered while in public places
unless the device interferes with the animal's work.\95\
---------------------------------------------------------------------------
\95\ See 28 CFR 35.136(d); 28 CFR 36.302(c)(4).
---------------------------------------------------------------------------
While the Department always anticipated that a service animal would
be under the constant control of its handler during air transportation,
the Department was persuaded to propose that the rule include a
provision on service animal restraints given the increased concern of
animal misbehavior on aircraft. Specifically, the Department is
proposing to allow airlines to determine that an animal is not a
service animal if it is not under the control of its handler. The
Department's proposal to allow airlines to determine that an animal is
not a service animal if it is not under the control of its handler
differs from DOJ's approach. DOJ's regulations do not allow covered
entities to determine that such animal is ``not a service animal.''
DOJ's ADA regulations do, however, allow covered entities to exclude a
service animal if the animal is out of control and the animal's handler
does not take effective action to control it.\96\
---------------------------------------------------------------------------
\96\ See 28 CFR 35.136(b)(1); 28 CFR 36.302(c)(2)(i).
---------------------------------------------------------------------------
In addition, the DOT Air Transportation Service Animal Behavior and
Attestation Form, which airlines may require of passengers with
disabilities seeking to travel with a service animal on aircraft,
includes a statement that the passenger understands that the animal
must be harnessed, leashed, or tethered, unless the passenger is unable
because of a disability to use a harness, leash or other tether, or the
use of a harness, leash, or other tether would interfere with the
service animal's safe, effective performance of work or tasks. In such
cases, the animal must otherwise be under the handler's control through
voice, signals, or other effective means.
The Department proposes to define a service animal handler as a
qualified individual with a disability who receives assistance from a
service animal(s) that does work or performs
[[Page 6463]]
tasks that are directly related to the individual's disability, or a
safety assistant, as described in section 382.29(b),\97\ who
accompanies an individual with a disability traveling with a service
animal(s). The service animal handler is responsible for keeping the
service animal under control at all times, and caring for and
supervising the service animal, which includes toileting and feeding.
The DOT proposed definition of a service animal handler differs from
DOJ's technical assistance, which states that a service animal handler
can be either an individual with a disability or a third party who
accompanies the individual with a disability.\98\ The Department
proposes to limit service animal handlers to individuals with
disabilities and their safety assistants, which are required to travel
with those individuals with a disability who are unable to assist in
their own evacuation from the aircraft, in order to make clear that
service animal trainers traveling with trained service animals not
serving as a safety assistant for a passenger with a disability, and
other passengers traveling with an individual with a disability on
aircraft, would not be considered service animal handlers under the
ACAA rules. The Department recognizes that there may be occasions where
an individual with a disability who does not require a safety assistant
must rely on a third party to control their service animal during air
travel, e.g., a small child who uses a service animal or a passenger
with a disability capable of assisting with their own evacuation, but
incapable of controlling or caring for their service animal. The
Department seeks comment generally on its decision to define the term
``service animal handler'' and seeks comments on its proposed
definition. The Department also seeks comment on what impact, if any,
its exclusion of third parties as service animal handlers might have on
individuals with disabilities traveling on aircraft with a service
animal.
---------------------------------------------------------------------------
\97\ The term ``safety assistant'' is used in the Department's
disability regulation. See 14 CFR 382.29(b).
\98\ See Frequently Asked Questions about Service Animals and
the ADA, Questions 27, available at https://www.ada.gov/regs2010/service_animal_qa.html, (July 20, 2015), ``The ADA requires that
service animals be under the control of the handler at all times. In
most instances, the handler will be the individual with a disability
or a third party who accompanies the individual with a disability.''
https://www.ada.gov/regs2010/service_animal_qa.html.
---------------------------------------------------------------------------
The Department seeks comment on its proposal to allow airlines to
require that service animals be under the service animal user's
constant control, via restraint devices or, if the restraint device
interferes with the animal's work or the handler is unable because of a
disability to use the restraint device, by voice command, signals, or
other effective means. The Department also seeks comment on whether in-
cabin pet carriers that are consistent with applicable FAA regulations
should be included in the rule as an optional service-animal restraint
device if the final rule recognizes emotional support animals.
8. Service Animal Documentation
Current Requirements
While the Department's current rule sets forth the type of medical
documentation that airlines may request from emotional support and
psychiatric service animal users to reduce likelihood of abuse by
passengers wishing to travel with their pets, the regulation does not
explicitly permit or prohibit the use of additional documentation
related to a service animal's vaccination, training, or behavior.
Moreover, while Part 382 permits airlines to determine, in advance of
flight, whether any service animal poses a direct threat, the rule does
not clearly indicate how airlines must make that assessment--for
example, behavioral assessments or information from a service animal
user's veterinarian.
The ANPRM
Airlines have asserted that the risk to passenger safety is
increasing. In the ANPRM, the Department sought data on the number of
service animal-related incidents of misbehavior on aircraft and what
amount of increase in animal misbehavior was sufficient to warrant a
requirement for animal health records and behavior forms.\99\ The
Department also sought comment on whether it should amend its service
animal regulation to allow airlines to require that service animal
users attest that their animal can behave properly in a public setting,
whether airlines should be permitted to require the attestation in
advance, the impacts that a behavior attestation requirement would have
on individuals with disabilities, and alternatives to a behavioral
attestation that would allow airlines to assess an animal's
behavior.\100\
---------------------------------------------------------------------------
\99\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23840.
\100\ Id.
---------------------------------------------------------------------------
The Department was interested in knowing whether a behavior
attestation would reduce the safety risk for passengers, crewmember,
and other service animals on aircraft. Furthermore, recognizing that
DOJ's ADA regulation prohibits covered entities from requiring service
animal users to provide documentation, the Department sought comment on
whether DOT should have a different standard from the ADA given the
unique nature of air transportation.\101\
---------------------------------------------------------------------------
\101\ Id.
---------------------------------------------------------------------------
With respect to animal health records, the Department sought
comment on what burdens, if any, would exist should the Department
allow airlines to require individuals with disabilities to submit
veterinary forms and related animal health documentation.\102\ The
Department also sought comment on whether an airline should be
permitted to require animal health forms as a condition of travel, or
whether the airline should be required to conduct an individualized
assessment of the animal's behavior based solely on its observations to
assess whether the animal poses a direct threat to humans, before
requiring these forms.\103\ Finally, the Department sought comment on
whether airlines should be able to require passengers to obtain signed
statements from veterinarians about an animal's behavior.
---------------------------------------------------------------------------
\102\ Id. at 23841.
\103\ Id.
---------------------------------------------------------------------------
Comments Received
Behavior/Training Attestations
The majority of public commenters and disability advocacy
organizations that commented on this issue oppose the use of behavior/
training attestations as a measure of ensuring that a service animal
has been trained to, or will, behave appropriately in public and on the
aircraft. These groups argue that attestation documents are ineffective
and do not provide realistic assurances that an animal will behave
appropriately as passengers can easily lie that their animal has been
trained to behave properly in public. Others who oppose this form argue
that filling out behavior/training attestations is burdensome as each
airline has its own unique form, and it is difficult to follow each
airline's individual policy. Furthermore, some groups note that some
airline websites make it difficult to submit these forms to the airline
prior to travel. These groups also oppose behavior/training
attestations on the basis that these practices are inconsistent with
the ADA and that service animal users do not have to provide
attestations to travel by train or other modes of transportation.
Some disability advocates are in favor of behavior/training
attestations, but
[[Page 6464]]
only for emotional support animals arguing that emotional support
animals, which are not trained to do work or perform a task, have
likely received less, if any, public-access training. Further, a few
disability advocates oppose the behavior/training attestations that
some airlines currently have in place, but they support a ``decision
tree'' approach, which is a sequence of questions that service animal
users would be prompted to complete as a condition of travel. As
explained in a comment filed by PSDP, the decision-tree approach is
designed to confirm that service animals have been trained to behave
properly on aircraft and to ensure that users are educated on the
requirements for traveling with service animals on aircraft.\104\
Finally, Autism Speaks is in favor of behavior/training attestations
for all service animal users but urges the Department to develop
unified attestation requirements to decrease confusion for service
animal users.\105\
---------------------------------------------------------------------------
\104\ Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3117.
\105\ Comment of Autism Speaks, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4268.
---------------------------------------------------------------------------
Some airlines broadly support behavior and training attestations
for service animal users, or support attestations for only emotional
support and psychiatric service animal users. These airlines argue that
behavior/training attestations eliminate the need for airline personnel
to observe and evaluate a service animal's behavior in the airport, a
task that airline personnel are often not qualified to perform and that
is burdensome given their primary responsibilities. Furthermore, these
airlines argue that the Department's service animal guidance currently
requires that service animals be trained to behave appropriately in
public, and behavior/training attestations are a means of ensuring that
service animal users are aware of this requirement and aware that if
their animal is not trained, the animal may be removed from the
aircraft or treated like a pet. Some airlines, however, only support
behavior/training attestations in the event that the Department
continues to recognize emotional support animals.
Animal Health Records
The majority of disability advocates who commented oppose a
requirement that allows airlines to require service animal users to
produce animal health information as a condition of transportation.
These groups argue that requiring service animal users to produce
animal health information, which must be completed by a third party, is
costly and would pose unnecessary burdens on individuals with
disabilities, especially on those service animal users who are not
currently required to produce any documentation when traveling on
aircraft. Furthermore, these groups argue that animal health
information is not helpful in determining if an animal poses a direct
threat. Finally, these groups argue that requiring animal health
information is excessive, as airlines have provided no evidence that
passengers on aircraft have contracted rabies or other diseases from
service animals or that service animal users have refused to provide
animal health information in cases where a service animal has bitten or
injured someone on an aircraft.
Some disability rights advocates are also concerned that if service
animal users are required to provide airlines with animal health
records, users will be unable to check-in for travel online or travel
seamlessly through the airport to their gate. While there are a few
advocacy organizations that support an animal health form requirement
for service animal users, this support is limited to information
regarding the animal's rabies vaccinations.
Conversely, many airlines, an animal health organization, a flight
attendant association and most individual commenters who commented on
this issue support a requirement that would allow airlines to require
animal health information from service animal users. Similar to the
rationale used by airlines in support of behavior/training
attestations, airlines argue that animal health information is a
reasonable means to determine if an animal presents a direct threat to
the health and safety of individuals on aircraft. Airlines also argue
that in the event a service animal bites an individual on an aircraft,
proof of up-to-date vaccinations will prevent the need for the injured
passenger to undergo unnecessary and painful treatments for certain
diseases, e.g., rabies, although according to the Center for Disease
Control and Prevention (CDC), any dog that bites an individual should
be assessed and monitored by a local or state health department over a
10-day period irrespective of whether there is proof that the animal
has been vaccinated. Airlines also argue that providing animal health
information is not burdensome as most, if not all, States and
localities already require that animals be vaccinated.
In a joint comment filed by Avianca, Avianca Costa Rica, Aviateca,
TACA, and TACA Peru, these carriers note that many ``foreign carriers,
currently have a general requirement for veterinary certification as a
condition of transport.'' These carriers further state that ``[m]any
foreign countries require veterinary certification for all animals
entering the country, including all service animals'' and that ``DOT
should clarify in any rulemaking that carriers may require veterinary
certification for all service animals as a condition for entry into all
countries that require such certification.'' \106\
---------------------------------------------------------------------------
\106\ Comment of Avianca Carriers, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4289.
---------------------------------------------------------------------------
One animal health organization supports allowing airlines to
require proof of rabies vaccinations arguing that these vaccinations
are necessary to protect both animal and public health.\107\
Furthermore, certain airline organizations support an animal health
record allowance if the Department decides to recognize emotional
support animals. These organizations reason that emotional support
animal users should provide information on their animal's health as a
matter of public safety and public health as these untrained animals
are in close proximity to passengers, airline crewmember, other staff,
and, sometimes, other animals. While the American Association of
Airport Executives (AAAE) is in favor of allowing airlines to verify
that an animal has been vaccinated, this organization believes that if
the Department chose not to recognize emotional support animals,
allowing airlines to require proof may not be necessary as the risk to
passengers would automatically decrease.\108\
---------------------------------------------------------------------------
\107\ Comment of American Veterinarian Medical Association,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4276.
\108\ Comment of the American Association of Airport Executives,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4138.
---------------------------------------------------------------------------
DOT Response
After carefully reviewing the comments received, the Department is
proposing to allow airlines to require individuals traveling with a
service animal to provide to the airlines standardized documentation of
the service animal's behavior, training, and health. Also, if the
service animal would be on a flight segment that is longer than 8
hours, the Department is proposing to allow a standard form attesting
that the animal will not need to relieve itself or can relieve itself
in a way that does not create a health or sanitation risk. The
Department proposes that these forms be the only forms of documentation
that an airline can require of a passenger traveling with a service
animal. In other words, under this proposed rule, an
[[Page 6465]]
airline would not be required to ask a passenger traveling with a
service animal for any documentation but, if they choose to do so, the
airline must use the forms established by the Department. The
Department seeks comment on whether airlines should be allowed to
create their own forms or if uniformity would be more helpful. Are
there other existing forms that could be utilized such that the
establishment of departmental forms would be unnecessarily duplicative?
First, the Department proposes to allow airlines to require
passengers seeking to travel with service animals to submit to the
airline, as a condition of accepting the animal as a service animal for
travel, a DOT Air Transportation Service Animal Behavior and Training
Attestation Form, which is a form to be completed by the passenger.
This form would provide assurance that the service animal traveling on
the aircraft has been individually trained to do work or perform tasks
for the benefit of the passenger with a disability and has been trained
to behave properly in public, and that the user is aware that the
service animal must be under his or her control at all times. The
Department agrees with comments from airlines that airline personnel
are often unable to observe service animals sufficiently prior to a
flight in the fast-paced airport environment to determine whether the
service animal would be a direct threat to the health or safety of
others. Further, the Department believes that the form would serve as a
deterrent for individuals who might otherwise seek to claim falsely
that their pets are service animals, as those individuals may be less
likely to falsify a Federal form. The Department seeks comment on its
proposal to allow airlines to require all service animal users to
provide this form to airlines and on whether this form would be
effective in ensuring that service animals have been properly trained
and in deterring individuals from misrepresenting their pets as service
animals on aircraft.
The Department understands that this form would impose a burden on
those individuals traveling with traditional service animals who are
not currently required to provide documentation. The Department seeks
comment from the public on ways to reduce the burden that the
Department's behavior and training form would have on passengers with
disabilities. Should airlines be allowed to require the form each time
a service animal user travels, even for round-trip flights? What medium
should airlines use, e.g., hardcopy, electronic, email, to provide and
collect this form from passengers with disabilities? Also, are there
privacy concerns that airlines should consider? Furthermore, the
Department seeks comment on whether the questions in this form would
help an airline determine whether an animal has been adequately and
properly trained, and whether the form adequately educates passengers
on how a service animal is expected to behave, the consequences of a
misbehaving service animal, and the seriousness of falsifying the DOT
form. The Department seeks comment on whether it should allow airlines
to require only emotional support animal users to complete such an
attestation form, in the event the Department were to continue to
require airlines to transport emotional support animals. Finally, the
Department seeks comment on the general content and layout of the form,
which is provided below.
BILLING CODE 4910-9X-P
[[Page 6466]]
[GRAPHIC] [TIFF OMITTED] TP05FE20.000
[[Page 6467]]
Second, the Department proposes to allow airlines to require
passengers to submit to the airline a DOT Service Animal Health Form,
which is a form to be completed by the passenger's veterinarian.\109\
In completing the form, the veterinarian would describe the animal,
indicate whether the service animal's = rabies vaccinations are up to
date and whether the animal has any known diseases or infestations, and
state whether the veterinarian is aware of any aggressive behavior by
the animal. The Department proposes that the form be valid for 1 year
from the date of issuance. The Department seeks comment on whether 1
year is too long or too short for the vaccination form to be valid, and
the reasons for this belief.
---------------------------------------------------------------------------
\109\ We note that the CDC requires that all dogs imported into
the United States, including service dogs, be vaccinated for rabies
if coming from a high-risk rabies country. A current list of high
risk rabies countries may be found at: https://www.cdc.gov/importation/bringing-an-animal-into-the-united-states/rabies-vaccine.html. See 42 CFR 71.51(e).
---------------------------------------------------------------------------
The Department modeled its DOT Service Animal Health Form after a
number of State certificate of veterinary inspection (CVI) forms and
the United States Department of Agriculture's (USDA) APHIS 7001
form.\110\ The Department's decision to use the content of State CVI
forms and the USDA APHIS 7001 form was based on a recommendation from
the American Veterinary Medical Association (AVMA). The AVMA, some
airlines, and other commenters have requested that the Department
require all service animals to produce proof of vaccinations because of
the potential threat to health and public safety that might result from
the transport of unvaccinated animals on aircraft.\111\ The Department
agrees that requiring proof of rabies vaccinations should be permitted
to help ensure that the animal does not pose a direct threat to the
health and safety of others.
---------------------------------------------------------------------------
\110\ https://www.aphis.usda.gov/library/forms/pdf/APHIS7001.pdf.
\111\ Comment of American Veterinarian Medical Association,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4276.
---------------------------------------------------------------------------
Airlines have expressed concerns that their inability to verify,
pre-incident, that an animal has received the proper vaccinations has
caused individuals bitten by service animals to undergo painful and
expensive rabies treatment. The Department, along with a number of U.S.
airlines, attended a meeting at the AVMA's headquarters on October 29,
2018, to discuss the potential for the airlines to create a standard
form document to use to verify service animal vaccinations. The
Department used information learned at this meeting, such as what
vaccinations should be required to ensure the health and safety of the
traveling public, the duration for which the form should be valid, and
whether animals should be inspected for pests, as guidance for the
content of this form. The Department seeks comment from the public on
its proposal to allow airlines to require that passengers provide this
vaccination form as evidence that a service animal has received the
rabies vaccine and that the animal has not exhibited aggressive
behavior, known to the veterinarian. The Department seeks comment on
its proposal to permit airlines, as a condition of travel, to require
this form and whether airlines should be able to refuse transportation
to a service animal based on the information contained in the form
(e.g., the veterinarian discloses on the form that the animal has a
history of aggressive behavior or has caused serious injury to a person
or animal). The Department also seeks comment on whether the form would
be effective in ensuring that the traveling public would not contract
rabies from service animals should they be bitten.\112\ Furthermore,
the Department seeks comment on the burden on individuals traveling
with service animals of allowing airlines to require the Department's
service animal health form as it is the Department's understanding that
USDA's APHIS 7001 form already includes the type of information
contained on the proposed DOT form. Could passengers traveling with a
service animals have their veterinarians complete the Department's
Service Animal Air Transportation Health Form at the animal's annual
physical? Should the requirement for an animal health form be limited
to emotional support animal users, in the event the Department were to
continue to require airlines to transport emotional support animals?
---------------------------------------------------------------------------
\112\ See the Rabies Compendium available at: www.nsphv.org/documents/NASPHVrabiescompendium.
---------------------------------------------------------------------------
The Department's air transportation animal health form requires
veterinarians to provide a physical description of the service animal.
Should the Department consider allowing airlines to require passengers
traveling with a service animals to provide photo identification of the
service animal as an additional measure to verify a service animal's
identity? Finally, the Department seeks comment on the general content
and layout of the form, which is provided below, and whether airlines
that require the form should accept the form in both a paper and
electronic format.
[[Page 6468]]
[GRAPHIC] [TIFF OMITTED] TP05FE20.001
[[Page 6469]]
Third, while airlines are currently permitted to require
individuals traveling with service animals on a flight segment that is
longer than 8 hours to provide documentation that the animal will not
need to relieve itself or can relieve itself in a way that does not
create a health or sanitation risk, the Department proposes to amend
this rule to allow airlines to require only a DOT Service Animal Relief
Attestation Form be completed by the service animal user to attest that
the animal will not create a health or sanitation risk on long flights.
The Department seeks comment on whether the DOT Service Animal
Relief Attestation Form serves as adequate proof to verify that a
passenger's animal will not need to relieve itself on flight segments
of eight or more hours, or can relieve itself in a way that does not
create a health or sanitation issue. The Department also seeks comment
on the content and layout of the form, which is provided below.
[[Page 6470]]
[GRAPHIC] [TIFF OMITTED] TP05FE20.002
BILLING CODE 4910-9X-C
The Department also asks for comment on its proposal to prohibit
airlines from requiring passengers to provide the proposed DOT health,
behavior and training, and relief forms prior to the passenger's date
of travel, although an airline would not be prohibited from requesting
the forms so long as it was clear that passengers were
[[Page 6471]]
not obligated to remit the forms to the airline in advance of their
travel date.
At the beginning of 2018, several airlines started requiring
individuals traveling with service animals to provide service animal
health forms and attestations that a passenger's service animal had
been trained to behave appropriately in public. In a Final Statement of
Enforcement Priorities, the Department's Office of Aviation Enforcement
and Proceedings (Enforcement Office) indicated that it did not intend
to take action against an airline for asking users of any type of
service animal to present documentation related to the service animal's
vaccination, training, or behavior, so long as it is reasonable to
believe that the documentation would assist the airline in making a
determination as to whether an animal poses a direct threat to the
health or safety of others. The Enforcement Office explained that the
existing rule permits airlines to determine, in advance of flight,
whether any service animal poses a direct threat, but the rule does not
clearly indicate how airlines must make that assessment. While the
Department recognized that airlines may have a valid basis for
requesting certain health and behavior information from individuals
traveling with service animals, commenters stated that it has become
burdensome and confusing for individuals with disabilities to comply
with these documentation requirements because many of the airlines
require different information from passengers traveling with service
animals and have adopted their own unique forms and data collection
methods.
The Department is proposing to require standard departmental forms
to establish a uniform process for collecting data about a service
dog's health as well as behavior and training from passengers traveling
with a service dog. The Department is also proposing to allow airlines
to require passengers with a disability to complete a DOT Service
Animal Relief Attestation Form Service Animal Relief Attestation Form
for flight segments of 8 hours or longer. The Department seeks comment
on whether using standardized U.S. Department of Transportation forms
is the best way for airlines to collect data from passengers traveling
with a service dog.
The Department recognizes that these forms go beyond what DOJ
allows in its ADA service animal regulations, but the Department
believes that air transportation, which involves transporting a large
number of people in a very confined space thousands of feet above the
ground, is unique in comparison to airports, libraries, and other
locations covered by Title II or Title III of the ADA. For this reason,
the Department believes that a proposal allowing airlines to require
all service dog users to provide these forms to assist airlines in
determining whether a service dog poses a direct threat to the health
or safety of others is appropriate.
Under this NPRM, the Department would prohibit airlines from
requiring individuals traveling with a service animals to provide the
DOT-issued forms even a day in advance of the passenger's flight
because advance notice may present significant challenges to passengers
with disabilities wishing to make last minute travel plans that may be
necessary for work or family emergencies. However, the Department is
proposing to allow airlines to require users of a service animals to
check-in at the airport one hour before the check-in time at the
airport for the general public to process service animal documentation
so long as the airline similarly requires advance check-in for
passengers traveling with their pets in the cabin. This rulemaking
would also permit airlines to require that the check-in take place at
any designated airport location including the terminal lobby. One
concern is that service animal users would not be able to check-in
electronically before arriving at the airport like other passengers and
would be unable to avoid the inconvenience of long waits when checking
in. To address this concern, the Department is proposing to require
airlines to make an employee trained to handle disability-related
matters available in-person at the airline's designated airport
location to process service animal documentation promptly. The
Department solicits comment on whether one hour before the general
public check-in is sufficient time for airline personnel to process
service animal documentation. The Department also seeks comment on its
proposal to require airlines to try to accommodate passengers who fail
to meet the one-hour check-in requirement so long as the airline can do
so by making reasonable efforts without delaying the flight. Finally,
the Department would like commenters to identify potential benefits
that service animal users may forgo by not being permitted to check-in
electronically, and steps that can be taken to ensure that these
benefits are provided to them.
9. Codeshare Flights
Current Requirements
Under the Department's current ACAA rule, U.S. carriers that
participate in a code-sharing arrangement with a foreign carrier are
responsible for ensuring that the foreign carrier complies with the
service animal provisions of the rule with respect to passengers
traveling under the U.S. carrier's code on the foreign carrier's
aircraft on flights between two foreign points.\113\ While the
Department's current rule requires foreign carriers to transport only
dogs, the Department could, based on the language in the current rule,
hold a foreign carrier's U.S. codeshare partner responsible for that
foreign carrier's refusal to transport other service animal species
when the passenger is traveling under a U.S. carrier's code.\114\
---------------------------------------------------------------------------
\113\ 14 CFR 382.7(c).
\114\ The Department's Aviation Enforcement Office does not
enforce section 382.7(c) in this way.
---------------------------------------------------------------------------
The ANPRM
The Department sought comment in the ANPRM on whether DOT's service
animal rule should explicitly state that a U.S. carrier would not be
held responsible for its foreign codeshare partner's refusal to
transport service animals other than dogs.\115\
---------------------------------------------------------------------------
\115\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832, 23842.
---------------------------------------------------------------------------
Comments Received
Few individual commenters and disability advocates commented on
whether the Department should explicitly state in its service animal
regulation that U.S. airlines should not be held responsible if a
foreign airline only transports dogs as service animals, but one
advocacy organization states that making this clarification in the rule
would clear up ambiguity caused by the provision in DOT's rules
implementing the ACAA, 14 CFR part 382.
Airlines also agree that the Department's rule should explicitly
state that U.S. carriers would not be held responsible if a foreign
carrier only transports dogs as service animals. These carriers believe
that the Enforcement Office's decision not to pursue action against
U.S. carriers is reasonable and appropriate as it would be
fundamentally unfair to hold a U.S. carrier accountable for the flight
operations and procedures of its foreign codeshare partners, over which
it has no control. Furthermore, these carriers argue that an express
statement of the Department's enforcement position in the rule would
alleviate any confusion that may arise from otherwise ambiguous
provisions in Part 382. One foreign airline also commented that while
the Department has chosen not to take legal action against U.S.
carriers as
[[Page 6472]]
a matter of enforcement discretion, it would be better for the
Department specifically to state its position in a regulation so that
carriers have concrete legal certainty of the Department's position.
DOT Response
The Department's proposed service animal regulation would recognize
only dogs as service animals. If the rule were finalized as proposed,
the species requirements for both U.S. carriers and foreign carriers
would be the same, thereby eliminating situations whereby a U.S.
carrier could be held responsible for a foreign carrier's failure to
transport service animals other than dogs but a foreign carrier could
not. However, if the DOT final rule differs from the proposal and
recognizes other species of service animals and/or emotional support
animals, the Department would consider including language in the rule
to make it clear that U.S. airlines are not responsible for their
foreign carrier codeshare partners' failure to transport animals other
than dogs. The Department seeks comment on this proposed action.
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
This proposed rulemaking has been determined to be significant
under Executive Order 12866 (Regulatory Planning and Review) and the
Department of Transportation's Regulatory Policies and Procedures
because of its considerable interest to the disability community and
the aviation industry. It does not, however, meet the criteria under
Executive Order 12866 for an economically significant rule. It has been
reviewed by the Office of Management and Budget under that Order.
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') require agencies
to regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' DOT proposes to define a service animal as a dog that is
individually trained to do work or perform tasks for the benefit of a
qualified individual with a disability. In addition, DOT proposes to
treat psychiatric service animals like other service animals and to
allow airlines to require passengers traveling with a service animal to
attest to the animal's good behavior and good health. DOT also proposes
that airlines no longer be required to recognize emotional support
animals as service animals.
The primary economic impact of this proposed rulemaking is that it
eliminates a market inefficiency. The current policy amounts to a price
restriction which requires that airlines forgo a potential revenue
source, as airlines are currently prohibited from charging a pet fee
for transporting emotional support animals. A4A estimates that airline
carriers transported 751,000 emotional support animals in 2017, a 56.1
percent increase from 2016. This number nearly equals the 784,000 pets
transported in 2017. Airlines charge as much as $175 to transport pets
on a one-way trip, giving passengers an incentive to claim their pets
as emotional support animals. The proposed rulemaking will eliminate a
pricing restriction currently imposed by government on airlines by
allowing them to set a price on the transport of emotional support
animals other than zero.
Removing the current requirement that carriers must transport
emotional support animals free of charge would allow market forces
(i.e., carriers as producers and passengers as consumers) to set the
price for air transportation of emotional support animals. This
provision would allow carriers to charge passengers traveling with
emotional support animals (dogs and other accepted species on board of
an aircraft) with pet transportation fees. This represents a transfer
of surplus from passengers to airlines, and does not have implications
for the net benefits calculation.
The proposed rulemaking would also allow airlines to require
passengers traveling with service animals to produce three forms of
documentation developed by DOT. This cost element places a potential
burden on passengers traveling with service animals who would need to
submit three DOT forms to airlines. We estimate that, by Paperwork
Reduction Act (PRA) accounting standards, the forms create 144,000
burden hours and $3.0 million in costs per year. In some cases,
however, carriers already ask passengers to complete equivalent
nongovernmental forms. Thus, the PRA accounting overestimates the net
burden created by this rulemaking.
Furthermore, Executive Orders 12866 and 13563 require agencies to
provide a meaningful opportunity for public participation. Accordingly,
we have asked commenters to provide feedback on the proposed change to
the regulation.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
A direct air carrier or foreign air carrier is a small business if it
provides air transportation only with small aircraft (i.e., aircraft
with up to 60 seats/18,000-pound payload capacity).\116\ Relative to
typical airlines' operating costs and revenues, the impact is expected
to be nonsignificant. Accordingly, the Department does not believe that
the NPRM would have a significant impact on a substantial number of
small entities. However, we invite comment on the potential impact of
this rulemaking on small entities.
---------------------------------------------------------------------------
\116\ See 14 CFR 399.73.
---------------------------------------------------------------------------
C. Executive Order 13132 (Federalism)
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
does not include any provision that: (1) Has substantial direct effects
on the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government; (2) imposes substantial direct compliance
costs on State and local governments; or (3) preempts State law. States
are already preempted from regulating in this area by the Airline
Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.
D. Executive Order 13084
This rulemaking has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rulemaking
does not significantly or uniquely affect the communities of the Indian
Tribal governments or impose substantial direct compliance costs on
them, the funding and consultation requirements of Executive Order
13084 do not apply.
E. Paperwork Reduction Act
This NPRM proposes three new collections of information that would
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995
[[Page 6473]]
(Pub. L. 104-13, 49 U.S.C. 3501 et seq.). Under the Paperwork Reduction
Act, before an agency submits a proposed collection of information to
OMB for approval, it must first publish a document in the Federal
Register providing notice of the proposed information collection and a
60-day comment period, and otherwise consult with members of the public
and affected agencies concerning each proposed collection of
information.
The proposed rulemaking would allow airlines to require passengers
traveling with service animals to provide carriers with the following
three forms of documentation developed by the Department:
1. DOT Air Transportation Service Animal Health Form (``Health
Form''): This form would be completed by a veterinarian who would
certify that the service dog has obtained the required vaccinations, is
not showing signs of infectious or communicable diseases, and, to the
veterinarian's knowledge, has not exhibited aggressive behavior or
caused injury to another.
2. DOT Air Transportation Service Animal Behavior and Training
Attestation Form (``Behavior Attestation Form''): This form would be
completed by the passenger with a service animal. This passenger would
certify his/her service animal has been trained to behave properly in
public, is aware of the handler's responsibility to maintain the animal
under control at all times, and understands the consequences of service
animal misbehavior.
3. DOT Service Animal Relief Attestation Form (``Relief Attestation
Form''): This form would be completed by passengers traveling with a
service animal on flight segments scheduled to take 8 hours or more. It
would require the passenger to affirm that the service animal will not
need to relieve itself on the flight or that the service animal can
relieve itself in a way that does not create a health or sanitation
issue.
For each of these information collections, the title, a description
of the respondents, and an estimate of the annual recordkeeping and
periodic reporting burden are set forth below:
1. Requirement To Prepare and Submit to Airlines the DOT Air
Transportation Service Animal Health Form
Respondents: Passengers with disabilities traveling on aircraft
with service animals.
Number of Respondents: Using A4A's estimate of 281,000 \117\
service animals transported in 2017, and assuming one passenger with a
disability travels with a service animal, 281,000 respondents would
have to provide a health form signed by a veterinarian and the
passenger.
---------------------------------------------------------------------------
\117\ A4A used data from five U.S. airlines to extrapolate the
number of all service animals transported on U.S. airlines.
---------------------------------------------------------------------------
Estimated Annual Burden on Respondents: We estimate that completing
the form would require 15 minutes (.25 hours) per response, per year,
including the time it takes to retrieve an electronic or paper version
of the form from the carrier's or DOT's website, reviewing the
instructions, and completing the questions. Passengers and veterinary
assistants would spend a total of 70,250 hours (0.25 hours x 281,000
passengers) to retrieve an accessible version of the form and provide
it to the veterinarian for completion. To calculate the hourly value of
time spent on the forms, we used median wage data from the Bureau of
Labor Statistics.\118\ For the health form, which veterinary assistants
perform on the job, we assume a fully loaded median wage rate of
$26.48/hour ($13.24/hour x 2). A ``fully loaded'' wage includes
benefits and indirect costs.
---------------------------------------------------------------------------
\118\ Bureau of Labor Statistics (2019). ``May 2018 National
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------
2. Requirement To Prepare and Submit to Airlines the DOT Air
Transportation Service Animal Behavior and Attestation Form
Respondents: Passengers with disabilities traveling on aircraft
with service animals.
Number of Respondents: Using A4A's estimate of 281,000 service
animals transported in 2017, and assuming one passenger with a
disability travels with a service animal, 281,000 respondents would
have to provide a behavior form signed by the passenger.
Estimated Annual Burden on Respondents: We estimate that completing
the form will require 15 minutes (.25 hours) per response, per year,
including the time it takes to retrieve an electronic or paper version
of the form from the carrier's or DOT's website, reviewing the
instructions, and completing the questions. Passengers would spend a
total of 70,250 hours (0.25 hours x 281,000 passengers) to retrieve an
accessible version of the form and complete the form. To calculate the
hourly value of time spent on the forms, we use median wage data from
the Bureau of Labor Statistics.\119\ For the behavior attestation,
which passengers fill out on their own time without pay, we use a post-
tax wage estimate of $15.42 ($18.58 median for all occupations minus a
17% percent estimated tax rate).
---------------------------------------------------------------------------
\119\ Bureau of Labor Statistics (2019). ``May 2018 National
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------
3. Requirement To Prepare and Submit to Airlines the DOT Service Animal
Relief Attestation Form
Respondents: Passengers with disabilities traveling on aircraft
with service animals on flight segments scheduled to take 8 hours or
more.
Number of Respondents: To estimate the paperwork costs associated
with the new forms, we used A4A's estimate of 281,000 service animals
transported in 2017.\120\ We estimate that 5 percent of those
passengers (14,050) would be on flight segments scheduled to take 8
hours or more and would also have to complete the Relief Attestation
Form.
---------------------------------------------------------------------------
\120\ A4A used data from five U.S. airlines to extrapolate the
number of all service animals transported on U.S. airlines.
---------------------------------------------------------------------------
Estimated Annual Burden on Respondents: We estimate that completing
the form will require 15 minutes (.25 hours) per response, per year,
including the time it takes to retrieve an electronic or paper version
of the form from the carrier's or DOT's website, reviewing the
instructions, and completing the questions. Passengers would spend a
total of 3,512.5 hours (0.25 hours x 14,050 passengers) to retrieve an
accessible version of the form and complete the form. To calculate the
hourly value of time spent on the forms, we use median wage data from
the Bureau of Labor Statistics.\121\ For the relief form, which
passengers fill out on their own time without pay, we use a post-tax
wage estimate of $15.42 ($18.58 median for all occupations minus a 17%
percent estimated tax rate).
---------------------------------------------------------------------------
\121\ Bureau of Labor Statistics (2019). ``May 2018 National
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.
[[Page 6474]]
Table 1--Paperwork Cost Estimates for DOT Service Animal Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form Passengers Hours Total hours Hourly time value Subtotal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Health................................................... 281,000 0.25 70,250 $26.48 $1,860,220
Behavior attestation..................................... 281,000 0.25 70,250 15.42 1,083,255
Relief................................................... 14,050 0.25 3,512.5 15.42 54,163
----------------------------------------------------------------------------------------------
Total................................................ ................. ................. 144,012.5 ................. 2,997,638
--------------------------------------------------------------------------------------------------------------------------------------------------------
The estimated burden and costs of these three new DOT forms are
primarily for Paperwork Reduction Act (PRA) accounting purposes. In
some cases, carriers already require passengers traveling with service
animals to complete equivalent forms. Allegiant Air and Delta Air Lines
ask passengers to carry health forms, for example, while American
Airlines and Hawaiian Airlines ask passengers to fill out relief
attestation forms. Thus, the cost estimates above are likely to
overestimate any new burden created by this rulemaking.
The Department invites interested persons to submit comments on any
aspect of each of these three information collections, including the
following: (1) The necessity and utility of the information collection,
(2) the accuracy of the estimate of the burden, (3) ways to enhance the
quality, utility, and clarity of the information to be collected, and
(4) ways to minimize the burden of collection without reducing the
quality of the collected information. Comments submitted in response to
this notice will be summarized or included, or both, in the request for
OMB approval of these information collections.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this
rulemaking.
G. National Environmental Policy Act
The Department has analyzed the environmental impacts of this
proposed action pursuant to the National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is
categorically excluded pursuant to DOT Order 5610.1C, Procedures for
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979).
Categorical exclusions are actions identified in an agency's NEPA
implementing procedures that do not normally have a significant impact
on the environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS).\122\ In
analyzing the applicability of a categorical exclusion, the agency must
also consider whether extraordinary circumstances are present that
would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.6.i of
DOT Order 5610.1C categorically excludes ``[a]ctions relating to
consumer protection, including regulations.'' Because this rulemaking
relates to ensuring both the nondiscriminatory access to air
transportation for consumers with disabilities, as well as the safe
transport of the traveling public, this rulemaking is a consumer
protection rulemaking. The Department does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.
---------------------------------------------------------------------------
\122\ See 40 CFR 1508.4.
---------------------------------------------------------------------------
List of Subjects in 14 CFR Part 382
Air Carriers, Civil rights, Consumer protection, Individuals with
Disabilities, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of
Transportation proposes to amend 14 CFR part 382 to read as follows:
PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR
TRAVEL
0
1. The authority citation for part 382 continues to read as follows:
Authority: 49 U.S.C. 41702, 41705, 41712, and 41310.
0
2. Amend Sec. 382.3 by adding in alphabetical order the definitions of
service animal and service animal handler to read as follows:
Sec. 382.3 What do the terms in this rule mean?
* * * * *
Service animal means a dog that is individually trained to do work
or perform tasks for the benefit of a qualified individual with a
disability, including a physical, sensory, psychiatric, intellectual,
or other mental disability. Emotional support animals, comfort animals,
companionship animals, and service animals in training are not service
animals for the purposes of this Part.
A Service animal handler is a qualified individual with a
disability who receives assistance from a service animal(s) that does
work or performs tasks that are directly related to the individual's
disability, or a safety assistant, as described in section 382.29(b),
who accompanies an individual with a disability traveling with a
service animal(s). The service animal handler is responsible for
keeping the animal under control at all times, and caring for and
supervising the service animal, which includes toileting and feeding.
* * * * *
0
3. Add Sec. 382.28 to read as follows:
Sec. 382.28 What assistance must carriers provide to passengers with
a disability required to check-in before the check-in time for the
general public?
If you require a passenger with a disability to check-in in advance
of the check-in time for the general public, you must make personnel or
other employees trained to proficiency on the requirements of this Part
available promptly to assist the passenger at a designated location in
the airport.
Sec. 382.72 [Amended]
0
4. Amend Sec. 382.27 by removing paragraphs (c)(8) and (c)(9).
0
5. Add Subpart EE, consisting of Sec. Sec. 382.72 through 382.80, to
read as follows:
Subpart EE--Service Animals
Sec.
382.72 Must carriers allow a service animal to accompany a passenger
with a disability?
382.73 How many service animals must a carrier transport in the
cabin of aircraft?
382.74 How do carriers determine if an animal is a service animal?
382.75 May a carrier require documentation from passengers with
disabilities seeking to travel with a service animal?
382.76 May a carrier require a service animal user to check-in at
the airport one hour before the check-in time at the airport for the
general public as a condition of travel to allow time to
[[Page 6475]]
process the service animal documentation?
382.77 May carriers restrict the location and placement of service
animals on aircraft?
382.78 May carriers charge individuals with disabilities for the
damage their service animal causes?
382.79 Under what other circumstances may carriers refuse to provide
transportation to a service animal traveling with a passenger with a
disability?
382.80 May carriers impose additional restrictions on the transport
of service animals?
Sec. 382.72 Must carriers allow a service animal to accompany a
passenger with a disability?
You must allow a service animal to accompany a passenger with a
disability. You must not deny transportation to a service animal on the
basis that its carriage may offend or annoy carrier personnel or
persons traveling on the aircraft.
Sec. 382.73 How many service animals must a carrier transport in the
cabin of aircraft?
You are not required to accept more than two service animals for a
single passenger with a disability.
Sec. 382.74 How do carriers determine if an animal is a service
animal?
(a)You may make two inquiries to determine whether an animal
qualifies as a service animal. You may ask if the animal is required to
accompany the passenger because of a disability and what work or task
the animal has been trained to perform. You must not ask about the
nature or extent of a person's disability or ask that the service
animal demonstrate its work or task.
(b) You may observe the behavior of an animal. A trained service
animal will remain under the control of its handler. It does not run
freely around an aircraft or an airport gate area, bark or growl
repeatedly at other persons or other animals on the aircraft or in the
airport gate area, bite, jump on, or cause injury to people, or urinate
or defecate in the cabin or gate area. An animal that engages in such
disruptive behavior demonstrates that it has not been successfully
trained to behave properly in a public setting and carriers are not
required to treat it as a service animal, even if the animal performs
an assistive function for a passenger with a disability.
(c) You may look for physical indicators on the animal to determine
if the animal is a service animal. A service animal must be under the
control of its owner. A service animal must have a harness, leash, or
other tether unless the owner is unable because of a disability to use
a harness, leash, or other tether, or the use of a harness, leash, or
other tether would interfere with the service animal's safe, effective
performance of work or tasks, in which case the service animal must be
otherwise under the handler's control (e.g., voice control, signals, or
other effective means).
Sec. 382.75 May a carrier require documentation from passengers with
disabilities seeking to travel with a service animal?
(a) If a passenger seeks to travel with a service animal, you may
require the passenger with a disability to provide you, as a condition
of permitting the service animal to travel in the cabin:
(1) A current (i.e., no older than one year from the date of the
passenger's scheduled initial flight) completed copy of the U.S.
Department of Transportation Air Transportation Service Animal Health
Form; and
(2) A completed copy of the U.S. Department of Transportation Air
Transportation Service Animal Behavior and Training Attestation Form.
(b) On a flight segment scheduled to take 8 hours or more, you may,
as a condition of permitting a service animal to travel in the cabin,
require the passenger with a disability traveling with the service
animal to confirm that the animal will not need to relieve itself on
the flight or that the animal can relieve itself in a way that does not
create a health or sanitation issue on the flight by providing a DOT
Service Animal Relief Attestation Form.
(c) You are not permitted to require documentation of passengers
with disabilities traveling with service animals beyond completion of
the forms identified in paragraphs (a) and (b) of this section.
(d) You must keep copies of the forms identified in paragraphs (a)
and (b) at each airport you serve. As a foreign carrier, you must keep
copies of the forms at each airport serving a flight you operate that
begins or ends at a U.S. airport.
(e) If you have a website, you must make the blank forms identified
in paragraphs (a) and (b) available to passengers on your website in an
accessible format.
(f) You must mail copies of the blank forms identified in
paragraphs (a) and (b) to passengers upon request.
Sec. 382.76 May a carrier require a service animal user to check-in
at the airport one hour before the check-in time at the airport for the
general public as a condition of travel to allow time to process the
service animal documentation?
(a) You may require a passenger with a disability to check-in at
the airport one hour before the check-in time at the airport for the
general public as a condition of travel with a service animal to allow
time to process the service animal documentation and observe the animal
so long as:
(1) You designate a specific location at the airport where the
passenger could be promptly checked-in, the passenger's service animal
would be observed, and the passenger's service animal documentation
would be promptly reviewed by personnel trained to proficiency on the
service animal requirements of this Part; and
(2) You have a similar or more stringent check-in requirement for
passengers traveling with their pets in the cabin.
(b) If a passenger does not meet the check-in requirements you
establish consistent with this section, you must still provide the
accommodation if you can do so by making reasonable efforts, without
delaying the flight.
Sec. 382.77 May carriers restrict the location and placement of
service animals on aircraft?
(a) You must permit a service animal to accompany a passenger with
a disability on the passenger's lap or in the foot space immediately in
front of the passenger's seat, unless this location and placement would
be:
(1) Inconsistent with safety requirements set by the FAA or the
foreign carrier's government; or
(2) Encroaches into another passenger's space.
(b) If a service animal cannot be accommodated on the passenger's
lap or in the foot space immediately in front of the passenger's seat
without encroaching into another passenger's space, you must offer the
passenger the opportunity to move with the animal to another seat
location within the same class of service, if available on the
aircraft, where the animal can be accommodated. You are not required to
reseat other passengers to accommodate a service animal except as
required by Subpart F.
(c) If there are no alternatives available to enable the passenger
to travel with the service animal in the cabin of the scheduled flight,
you must offer the passenger the opportunity to transport the service
animal in the cargo hold free of charge or travel on a later flight to
the extent there is space available on a later flight and the transport
is consistent with the safety requirements set by the FAA or a foreign
carrier's government.
[[Page 6476]]
Sec. 382.78 May carriers charge individuals with disabilities for
the damage their service animal causes?
While you cannot charge an individual with a disability for
transporting service animals, or for providing other services that this
rule requires, you may charge a passenger with a disability for damage
caused by his or her service animal so long as you normally charge
individuals without disabilities for similar kinds of damage.
Sec. 382.79 Under what other circumstances may carriers refuse to
provide transportation to a service animal traveling with a passenger
with a disability?
(a) You may deny transport to a service animal under the following
circumstances:
(1) The animal poses a direct threat to the health or safety of
others (see definition in Sec. 382.3);
(2) The animal causes a significant disruption in the cabin or at
an airport gate area, or its behavior on the aircraft or at an airport
gate area indicates that it has not been trained to behave properly in
public (e.g., running freely, barking or growling repeatedly at other
persons on the aircraft, biting or jumping on people, or urinating or
defecating in the cabin or gate area); or
(3) The animal's carriage would violate FAA safety requirements or
applicable safety requirements of a U.S. territory or foreign
government (e.g., the animal is too large or heavy to be accommodated
in the cabin).
(b) In determining whether to deny transport to a service animal on
the basis that the animal poses a direct threat under paragraph (a)(1)
of this section, you must make an individualized assessment based on
reasonable judgment that relies on the best available objective
evidence to ascertain the nature, duration, and severity of the risk;
the probability that the potential injury will actually occur; and
whether reasonable modifications of policies, practices, or procedure
will mitigate the risk.
(c) In determining whether to deny transport to a service animal on
the basis that the animal has misbehaved and/or has caused a
significant disruption in the cabin under paragraph (a)(2), you must
make an individualized assessment based on reasonable judgment that
relies on the best available objective evidence to ascertain the
probability that the misbehavior and/or disruption will continue to
occur; and whether reasonable modifications of policies, practices, or
procedure will mitigate the misbehavior and/or the disruption.
(d) In conducting the analysis required under paragraph (a)(1) and
(a)(2), you must not deny transportation to the service animal if there
are means available short of refusal that would mitigate the problem
(e.g., muzzling a barking service dog or taking other steps to comply
with animal health regulations needed to permit entry of the service
animal into a domestic territory or a foreign country).
(e) If you refuse to provide transportation to a service animal
based on any provision in this Part, you must provide the individual
with a disability accompanied by the service animal a written statement
of the reason for the refusal. This statement must include the specific
basis for the carrier's opinion that the refusal meets the standards of
paragraphs (a) through (c) of this section or is otherwise specifically
permitted by this Part. You must provide this written statement to the
individual with a disability accompanied by the service animal either
at the airport, or within 10 calendar days of the refusal of
transportation.
Sec. 382.80 May carriers impose additional restrictions on the
transport of service animals?
Carriers are not permitted to establish additional restrictions on
the transport of service animals outside of those specifically
permitted by the provisions in this Part, unless required by applicable
FAA, TSA, or other Federal requirements or a foreign carrier's
government.
Sec. 382.117 [Removed]
0
6. Remove Sec. 382.117.
Issued this 21st day of January, 2020, in Washington, DC.
Elaine L. Chao,
Secretary.
[FR Doc. 2020-01546 Filed 2-4-20; 8:45 am]
BILLING CODE 4910-9X-P