Nondiscrimination on the Basis of Disability in Air Travel, 47902-47906 [E9-21351]
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Federal Register / Vol. 74, No. 180 / Friday, September 18, 2009 / Proposed Rules
products identified in this rulemaking
action.
Boeing Alert Service Bulletin MD11–28A140,
dated November 6, 2008.
Regulatory Findings
We have determined that this
proposed AD would not have federalism
implications under Executive Order
13132. This proposed AD would not
have a substantial direct effect on the
States, on the relationship between the
national Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.
For the reasons discussed above, I
certify that the proposed regulation:
1. Is not a ‘‘significant regulatory
action’’ under Executive Order 12866;
2. Is not a ‘‘significant rule’’ under the
DOT Regulatory Policies and Procedures
(44 FR 11034, February 26, 1979); and
3. Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
We prepared a regulatory evaluation
of the estimated costs to comply with
this proposed AD and placed it in the
AD docket. See the ADDRESSES section
for a location to examine the regulatory
evaluation.
Subject
(d) Air Transport Association (ATA) of
America Code 28: Fuel.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
The Proposed Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA proposes to amend 14 CFR part
39 as follows:
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13
[Amended]
2. The FAA amends § 39.13 by
removing amendment 39–11457 (64 FR
69389, December 13, 1999) and adding
the following new AD:
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McDonnell Douglas: Docket No. FAA–2009–
0866; Directorate Identifier 2009–NM–
074–AD.
Comments Due Date
(a) The FAA must receive comments on
this AD action by November 2, 2009.
Applicability
(c) This AD applies to McDonnell Douglas
Model MD–11 and MD–11F airplanes,
certificated in any category, as identified in
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Jkt 217001
Compliance
(f) You are responsible for having the
actions required by this AD performed within
the compliance times specified, unless the
actions have already been done.
Restatement of Requirements of AD 99–25–
14 With No Changes
Inspection and Corrective Actions
(g) Within 30 days after January 18, 2000
(the effective date of AD 99–25–14), perform
a one-time visual inspection of the wire
harnesses of the tail tank fuel transfer pumps
to determine if metallic transitions are
installed, and to determine if damaged wires
are present, in accordance with McDonnell
Douglas Alert Service Bulletin MD11–
28A101, dated August 24, 1998 (‘‘the service
bulletin’’).
(1) If all metallic transitions are installed,
no further action is required by paragraph (g)
of this AD.
(2) If metallic transitions are not installed,
accomplish the following:
(i) Prior to further flight, accomplish the
temporary repair in accordance with
condition 2 of the service bulletin;
(ii) Repeat the visual inspection thereafter
at intervals not to exceed 2 years; and
(iii) Within 5 years after January 18, 2000,
permanently modify the wire harnesses in
accordance with McDonnell Douglas Service
Bulletin MD11–28–102, Revision 01, dated
June 23, 1999. Accomplishment of this
modification constitutes terminating action
for the repetitive inspection requirements of
this AD.
Note 1: Modification of the wire harnesses
accomplished prior to January 18, 2000 (the
effective date of AD 99–25–14), in
accordance with McDonnell Douglas Service
Bulletin MD11–28–102, dated January 29,
1999, is considered acceptable for
compliance with the modification required
by paragraph (g)(2)(iii) of this AD.
New Requirements of This AD
Affected ADs
(b) This AD supersedes AD 99–25–14.
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Unsafe Condition
(e) This AD results from reports that the
wire assembly for the alternate fuel pump is
missing a case ground wire, and the lightning
protection wire braid for wire assemblies
located in the empennage and number 2
engine inlet are grounded improperly. The
Federal Aviation Administration is issuing
this AD to prevent insufficient grounding of
the fuel pump, which in combination with an
electrical failure within the fuel pump and a
compromised electrical bond could cause a
fuel tank ignition, resulting in consequent
fire or explosion.
Modification
(h) Within 72 months after the effective
date of this AD, modify the case grounding
for the alternate fuel pump of the tail tank,
the leak detection thermal switch grounding
for the number 2 engine, and wire braid
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grounding in the empennage and number 2
engine inlet, in accordance with the
Accomplishment Instructions of Boeing Alert
Service Bulletin MD11–28A140, dated
November 6, 2008.
Alternative Methods of Compliance
(AMOCs)
(i)(1) The Manager, Los Angeles Aircraft
Certification Office (ACO), FAA, has the
authority to approve AMOCs for this AD, if
requested using the procedures found in 14
CFR 39.19. Send information to ATTN:
Samuel Lee, Aerospace Engineer, Propulsion
Branch, ANM–140L, FAA, Los Angeles ACO,
3960 Paramount Boulevard, Lakewood,
California 90712–4137; telephone (562) 627–
5262; fax (562) 627–5210.
(2) To request a different method of
compliance or a different compliance time
for this AD, follow the procedures in 14 CFR
39.19. Before using any approved AMOC on
any airplane to which the AMOC applies,
notify your principal maintenance inspector
(PMI) or principal avionics inspector (PAI),
as appropriate, or lacking a principal
inspector, your local Flight Standards District
Office. The AMOC approval letter must
specifically reference this AD.
Issued in Renton, Washington, on
September 11, 2009.
Stephen P. Boyd,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. E9–22580 Filed 9–17–09; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. OST–2009–0093]
Nondiscrimination on the Basis of
Disability in Air Travel
AGENCY:
Office of the Secretary (OST),
DOT.
ACTION: Request for comments on
petition for rulemaking.
SUMMARY: An advocacy group
representing users of psychiatric service
dogs has petitioned the Department to
eliminate a provision of the Department
of Transportation’s Air Carrier Access
regulation. The provision in question
permits air carriers to require
documentation and 48 hours’ advance
notice for users of psychiatric service
animals. In this document, the
Department is seeking comment on the
group’s petition and related questions.
This document is not a notice of
proposed rulemaking. The Department
has not decided whether to grant the
petition by initiating rulemaking action
or to deny the petition and retain the
provisions without change. The
Department will publish a document in
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Federal Register / Vol. 74, No. 180 / Friday, September 18, 2009 / Proposed Rules
the Federal Register regarding the
determination of the petition.
DATES: Comments in response to this
request must be received by
December 17, 2009.
ADDRESSES: You may submit comments
(identified by the agency name and DOT
Docket ID Number OST–2009–0093) by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the online instructions for submitting
comments.
• Mail: Docket Management Facility:
U.S. Department of Transportation, 1200
New Jersey Avenue, 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 Avenue, SE., between
9 a.m. and 5 p.m. ET, Monday through
Friday, except Federal holidays.
• Fax: 202–493–2251
Instructions: You must include the
agency name (Office of the Secretary,
DOT) and Docket number (OST–2009–
0093) for this notice at the beginning of
your comments. You should submit two
copies of your comments if you submit
them by mail or courier. Note that all
comments received will be posted
without change to https://
www.regulations.gov including any
personal information provided and will
be available to internet users. You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477) or you may visit https://
www.DocketsInfo.dot.gov.
Docket: For internet access to the
docket to read background documents
and comments received, go to https://
www.regulations.gov. Background
documents and comments received may
also be viewed at the U.S. Department
of Transportation, 1200 New Jersey
Ave., SE., Docket Operations, M–30,
West Building Ground Floor, Room
W12–140, Washington, DC 20590–0001,
between 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and
Enforcement, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001, Room W94–302, 202–366–9310,
bob.ashby@dot.gov.
SUPPLEMENTARY INFORMATION:
The Current Rule
On May 13, 2008, the Department of
Transportation (the Department; DOT)
issued a revision to its Air Carrier
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Access Act (ACAA) regulation (14 CFR
Part 382). The regulation went into
effect on May 13, 2009, replacing the
previous version of Part 382 on that
date.
Section 382.117(e) of the revised Part
382, concerning service animals, states:
If a passenger seeks to travel with an
animal that is used as an emotional
support or psychiatric service animal,
the airline is not required to accept the
animal for transportation in the cabin
unless the passenger provides the
airline current documentation (i.e., no
older than one year from the date of the
passenger’s scheduled initial flight) on
the letterhead of a licensed mental
health professional (e.g., psychiatrist,
psychologist, licensed clinical social
worker, including a medical doctor
specifically treating the passenger’s
mental or emotional disability). The
documentation must state the following:
(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. In
addition, section 382.27(c)(8) provides
that airlines may require a passenger
using a PSA or ESA to give up to 48
hours’ advance notice and check in one
hour before the check-in time for the
general public, in order to permit the
carrier to review and verify the
documentation.
The entire purpose of the ACAA, and
the Department’s rules implementing it,
are to ensure nondiscriminatory air
travel opportunities are available to
people with disabilities. The service
animal sections of the rule were drafted
to carry out that purpose. In the
preamble to the rule, the Department
discussed issues concerning ESAs and
PSAs two places. In the general
discussion of service animal issues, the
Department made the following
statements:
Another important issue that a number of
commenters raised concerned ‘‘emotional
support animals.’’ Unlike other service
animals, emotional support animals are often
not trained to perform a specific active
function, such as path finding, picking up
objects, carrying things, providing additional
stability, responding to sounds, etc. This has
led some service animal advocacy groups to
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question their status as service animals and
has led to concerns by carriers that
permitting emotional support animals to
travel in the cabin would open the door to
abuse by passengers wanting to travel with
their pets. The Department believes that there
can be some circumstances in which a
passenger may legitimately travel with an
emotional support animal. However, we have
added safeguards to reduce the likelihood of
abuse. The final rule limits use of emotional
support animals to persons with a diagnosed
mental or emotional disorder, and the rule
permits carriers to insist on recent
documentation from a licensed mental health
professional to support the passenger’s desire
to travel with such an animal. In order to
permit the assessment of the passenger’s
documentation, the rule permits carriers to
require 48 hours’ advance notice of a
passenger’s wish to travel with an emotional
support animal. Of course, like any service
animal that a passenger wishes to bring into
the cabin, an emotional support animal must
be trained to behave properly in a public
setting. (73 FR 27614; May 13, 2008)
In the preamble’s discussion of
section 382.117, the Department added
the following:
There are new, more detailed procedures
for the carriage of emotional support and
psychiatric service animals. The carrier may
require the passenger to provide current
documentation from a mental health
professional (e.g., a medical doctor that is
treating the passenger’s mental or emotional
disability or a licensed clinical social worker)
caring for the passenger that the passenger
has a specific, recognized mental or
emotional disability and that the passenger
needs to be accompanied by the specific
emotional support or psychiatric service
animal in question, either on the flight or at
the passenger’s destination * * * [C]arriers
can properly apply the same policies to
‘‘psychiatric service animals’’ as they do for
emotional support animals. This is because
carriers and the Department have
encountered instances of attempted abuse of
service animal transportation policies by
persons traveling with animals in both
categories [e.g., in communications among
carriers, passengers, and the Department’s
aviation consumer protection staff]. Should
the Department encounter a pattern of abuse
concerning service animals in other
categories, we can consider additional
safeguards with respect to those categories as
well. (Id. at 27655)
The ACAA final rule also included a
guidance document concerning service
animals, which made the following
statements concerning emotional
support animals (ESAs) and psychiatric
support animals (PSAs):
With respect to an animal used for
emotional support (which need not have
specific training for that function but must be
trained to behave appropriately in a public
setting), airline personnel may require
current documentation (i.e., not more than
one year old) on letterhead from a licensed
mental health professional, including a
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medical doctor that is treating the passenger’s
mental or emotional disability or a licensed
clinical social worker, stating (1) that the
passenger has a mental health-related
disability listed in the Diagnostic and
Statistical Manual of Mental Disorders (DSM
IV); (2) that having the animal accompany the
passenger is necessary to the passenger’s
mental health or treatment; (3) that the
individual providing the assessment of the
passenger 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. Airline personnel may
require this documentation as a condition of
permitting the animal to accompany the
passenger in the cabin. The purpose of this
provision is to prevent abuse by passengers
that do not have a medical need for an
emotional support animal and to ensure that
passengers who have a legitimate need for
emotional support animals are permitted to
travel with their service animals on the
aircraft. Airlines are not permitted to require
the documentation to specify the type of
mental health disability, e.g., panic attacks.
There is a separate category of service
animals generally known as ‘‘psychiatric
service animals.’’ These animals may be
trained by their owners, sometimes with the
assistance of a professional trainer, to
perform tasks such as fetching medications,
reminding the user to take medications,
helping people with balance problems
caused by medications or an underlying
condition, bringing a phone to the user in an
emergency or activating a specially equipped
emergency phone, or acting as a buffer
against other people crowding too close). As
with emotional support animals, it is
possible for this category of animals to be a
source of abuse by persons attempting to
circumvent carrier rules concerning
transportation of pets. Consequently, it is
appropriate for airlines to apply the same
advance notice and documentation
requirements to psychiatric service animals
as they do to emotional support animals. (Id.
at 27659).
The PSDS Petition
The Psychiatric Service Dog Society
(PSDS) is an Arlington, Virginia, based
organization that describes itself as a
service and advocacy organization
focused exclusively on the use of
psychiatric service dogs by persons
living with mental health disabilities. At
the Department’s June 3, 2008,
consumer forum concerning the revised
ACAA rule, a PSDS representative
expressed the organization’s objections
to section 382.117(e). DOT staff
responded that the organization could
file a petition for rulemaking concerning
the section, and the PSDS representative
indicated that the organization would
do so.
Under the Department’s regulatory
procedures, any person may file a
petition to issue, amend, or repeal a rule
(49 CFR 5.11(a)). The PSDS petition,
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dated April 13, 2009, has now been
received by the Department. Interested
persons can read the entire petition at
DOT–OST–2009–0093. It consists of a
three-page letter from PSDS and 32
pages of letters or e-mails from
constituents or supporters of the
organization. In its petition, which
meets the procedural requirements of
section 5.11, PSDS requests that section
382.117(e) be repealed. While the
petition does not specifically refer to
section 382.27(c)(8), we understand the
petition to seek its repeal as well.
The Department can take one of two
actions with respect to the petition: It
can grant the petition by initiating
rulemaking action (e.g., publishing a
notice of proposed rulemaking to repeal
or modify the provisions in question) or
it can deny the petition and retain the
provisions without change. When the
Department denies a petition, we send
a denial letter to the petitioner
explaining our reasons for the decision.
In order to assist the Department in
deciding which course to follow, we are,
in this document, seeking comment on
the issues PSDS raises in its petition.
We note that taking action at this time
to change the regulatory provisions in
question would constitute a substantive
amendment requiring us to issue a
notice of proposed rulemaking for
public comment. Because PSDS waited
as long as it did to file its petition, the
Department did not have time to take
action before the May 13, 2009 effective
date for the revised Part 382. Nor does
the Department believe that immediate
action to change the final rule would be
prudent prior to an opportunity to
review comments on issues concerning
which a wide variety of parties may
have an interest in.
The main arguments that PSDS and
its supporters cite as a basis for the
repeal of section 382.117(e) are the
following:
• In terms of applicable procedures,
the Department’s final rule does not
draw distinctions between the two
categories of animal. The PSDS petition
appears to support drawing a sharp
distinction between PSAs and ESAs.
The former must be trained for public
access and have basic obedience
training as well as handler-specific
behaviors to ameliorate or mitigate the
effects of a mental health-related
disability. The latter are rarely more
than pets, requiring little or no training.
Therefore, it is improper for the rule to
apply the same procedural provisions to
both categories of assistance animal.
• By imposing additional procedural
requirements on users of PSAs, which
are not imposed on service animals used
by individuals with other disabilities,
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the rule discriminates against and
stigmatizes individuals with mental
health-related disabilities who use
PSAs. If DOT thinks it appropriate to
impose these requirements on PSA
users, then DOT should be amenable to
imposing similar requirements on
people with other disabilities who use
service animals.
• It would be easy for someone with
a PSA to cheat, simply by claiming that
his or her dog was a service animal for
another disability, such as epilepsy,
heart disease, diabetes, dementia etc.
• Many people with mental healthrelated disabilities use general
practitioners rather than specialists in
mental health matters, and the
Department’s rule appears not to allow
for letters from general practitioners.
• The rule violates the medical
privacy of PSA users by requiring
confidential medical information to be
provided to airline personnel. Moreover,
the rule makes no provision for the
confidential treatment of this
information once it gets into the
airline’s hands, and fails to answer
questions concerning the security,
storage, or use of the information. PSDS
expresses the concern that the
Transportation Security Administration
could gain access to the information and
require additional security measures
(e.g., secondary screening) for persons
identified as having mental healthrelated disabilities.
• It may be difficult or impossible for
persons who do not have medical
insurance or otherwise lack access to
affordable medical care to obtain the
medical documentation the rule allows
airlines to require. In addition, the
requirement that the documentation be
no more than a year old could work an
additional financial hardship on PSA
users, because they would have to pay
annually for the required
documentation. This could result in the
denial of air transportation to people in
this situation.
• The 48 hours’ advance notice
provision would make it very difficult
for PSA users to fly in the case of shortterm situation (e.g., a family or medical
emergency) that did not permit them to
provide 48 hours’ advance notice.
• DOT does not have adequate
evidence that there is a problem with
people trying to sneak pets aboard
aircraft, so as to justify imposing the
procedural requirements on PSA users.
• Under the Americans with
Disabilities Act (ADA) and other laws
concerning nondiscrimination on the
basis of disability, users of service
animals (including PSAs) do not have to
comply with requirements like those in
section 382.117(e).
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• Some letters from supporters of the
PSDS petition suggested that other
provisions of Part 382, such as those
concerning ‘‘direct threat,’’
‘‘fundamental alteration,’’ and general
language concerning identification of
service animals would be sufficient with
respect to PSAs and ESAs, without
including language like that of section
382.117(e).
Information and Questions Concerning
the PSDS Petition
To help highlight issues raised by the
petition for commenters, the
Department presents the following
information and questions:
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Differences Between PSAs and ESAs
The letters of support for PSDS’
petition mention that PSAs are trained
for public access and obedience (which
a number of letters assume or say is not
true of ESAs). In fact, are ESAs trained
to behave properly in public settings?
Note that, under the ACAA rules,
airlines are never required to carry in
the cabin an animal—even one that is
assisting a person with a disability—that
is not behaving appropriately in a
public setting.
The letters of support for PSDS’
petition state that PSAs are trained to
provide medically necessary,
therapeutic, or other services for their
users. However, the letters do not
specify what any of these services are.
What are these services, and how, if at
all, are they relevant to the use of a PSA
during the user’s air travel or activities
at the user’s destination? With respect to
travel on an aircraft, how do these
services differ from those that would be
provided by an ESA during a flight or
at the passenger’s destination? How, if
at all, would any such differences justify
treating ESAs and their users differently
from PSAs and their owners in the
context of air transportation? What, if
any, distinctions have airlines drawn or
attempted to draw between the two
categories of animals, and what is the
basis for any such distinctions?
It appears from some material in the
supporting letters that PSAs do, in fact,
provide services related to emotional
support. For example, one letter from a
PSA user related the following about her
dog:
* * * [H]e gives me unconditional love no
matter what I look or feel like that day. He
is there right by my side even when I don’t
ask him to, lying at my feet because he knows
that helps me. He helps me when no nothing
or no one else will. He is very reliable. I
never have to worry if he is going to be
‘‘busy’’ that night like I would friends or
family. He is never angry if I talk too much
or pet him too much * * *. He gives me
better hugs than my husband * * *.
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Another letter, from a therapist, said
that an assistance animal enabled her
clients to ‘‘get out of the house and go
places without the fear and panic they
had before. It is so helpful for them to
have their dog with them in all
environments to reduce dissociation,
panic, and anxiety.’’ Do these obviously
significant functions that dogs called
PSAs perform for their owners differ
from those that would be performed for
their owners by dogs called ESAs in a
way that would support different
treatment for the two groups in airline
travel? We note that over the years,
many individuals who travel with ESAs
have stated that their service animals, in
addition to being trained to behave
properly in public settings and
providing needed emotional/mental
health support without which they
cannot travel, do in fact perform specific
physical tasks related, for example,
helping lessen anxiety in stressful
situations.
Need for Procedural Requirements
We seek comments from airlines and
other interested persons about their
experience with passengers attempting
to pass off pets as service animals,
especially as it may relate to ESAs and
PSAs. Are there problems that air
carriers have encountered in
distinguishing pets from animals that
provide services to passengers with
disabilities? What procedures do
airlines use to draw this distinction, and
how well do these procedures work?
How pervasive are any such problems?
What, if any, experience do airlines
have with people attempting to bring
pets on board on the basis of claims that
the animals are service animals for
disabilities that are not readily apparent
other than mental health-related
conditions, such as seizure disorders,
heart conditions, diabetes, etc? What, if
any, problems are created for airlines
when people have attempted to bring or
have succeeded in bringing pets into the
cabin under the guise of being service
animals? Do airlines have any statistics
or compilations of experience with
people attempting to pass off their pets
as service animals that they could share
with the Department?
Do the procedural provisions of
section 382.117(e)—and the previous
provisions of DOT guidance concerning
ESAs—help airlines distinguish
between service animals and pets? If, as
the petition requests, paragraph (e) were
deleted, would airlines have sufficient
other, arguably less burdensome, means
of making these determinations? What
would be the effect, if any, on the ability
of airlines to make reasonable
determinations in these matters if the
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47905
provisions of paragraph (e) remained in
effect for users of ESAs but not users of
PSAs? Are there problems that airlines
have encountered in the past with
passengers initially claiming that their
animal is an ESA and later
characterizing that same animal as a
PSA? If so, please describe such
problems. The Department’s rule is now
in effect: Have passengers or airlines
encountered any actual problems
concerning the implementation of the
provisions in question in this context?
The Department, the service animal
community (e.g., handlers,
organizations), and the airlines all share
the goal of stopping the abuse of service
animal access rights by passengers who
fraudulently assert that their pets are
service animals. The Department is
interested in identifying effective
alternative methods to prevent such
fraud. We, therefore, invite members of
the public, and in particular members of
the service animal community, to
propose methods for preventing/
detecting fraud that they believe are
feasible alternatives to the current
medical documentation requirements.
Medical Privacy
With respect to the medical
information provided to airlines under
paragraph (e) and other provisions of
Part 382 concerning medical
documentation, the Department has
issued the following guidance:
Q. What should carriers do to safeguard the
personal medical information (e.g.,
physician’s statements, medical certificates
and documentation from licensed mental
health professionals for emotional support
and psychiatric service animals) that they
require of passengers in order to provide
certain accommodations?
A. When a carrier requires a passenger to
provide personal medical information as a
condition for obtaining disability
accommodations, we recommend that the
carrier take steps to safeguard this
information, such as maintaining it in a
separate confidential file for the same period
of time it retains that passenger’s reservation
record for the flights involved.
Does this guidance sufficiently address
medical privacy concerns arising from
the operation of paragraph (e)? If not,
should the Department amend its
regulations to provide additional
protections? If so, what should such
amendments provide? Should there be
additional language concerning such
matters as how confidentiality is
maintained, who has access to records
and for how long, how are records
disposed of, or whether a particular
record retention period should be stated
in the rule or guidance?
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Federal Register / Vol. 74, No. 180 / Friday, September 18, 2009 / Proposed Rules
Family and Medical Emergencies
Part 382 provides that, when a
passenger does not provide advance
notice for accommodations to which a
carrier may apply an advance notice
requirement, the carrier must provide
the accommodation if it can do so by
making reasonable efforts, without
delaying the flights (see section
382.27(g)). The Department’s rule is
now in effect: Have passengers or
airlines encountered any actual
problems concerning the
implementation of the provisions in
question in this context?
The Department has issued the
following FAQ discussing this principle
in the context of the procedural steps of
section 382.117(e):
Q. When must a carrier accommodate a
passenger accompanied by an emotional
support or psychiatric service animal who
has not provided 48 hours’ advance notice?
A. Carriers must accommodate a passenger
accompanied by an emotional support or
psychiatric service animal who has not
provided 48 hours’ advance notice if the
carrier can do so by making reasonable
efforts, without delaying a flight. The carrier,
at its discretion, may waive its 48 hours’
advance notice requirement in order to
expedite the emergency air travel of a
passenger accompanied by an emotional
support or psychiatric service animal.
erowe on DSK5CLS3C1PROD with PROPOSALS-1
Does this guidance adequately handle
the situation of ESA or PSA users with
a family or medical emergency requiring
short-notice travel? Should air carriers
be able to require documentation of the
emergency from someone seeking to
travel with a PSA or ESA who cannot
provide 48 hours’ notice? Are there
additional regulatory or guidance
statements the Department should make
on this matter, such as criteria for when
and on what basis the 48 hours’ advance
notice period should be waived?
Lack of Medical Insurance or a Mental
Health Care Provider
In the absence of recent
documentation from a mental health
professional, how is an air carrier to
determine whether a passenger has a
current need for an ESA or PSA? Would
anyone using a PSA or ESA have had a
medical recommendation for the use of
such an animal at some time in the past
that could be documented? If not, what
information could establish a basis for
the individual’s claim that he or she
needs a service animal? The Department
has issued the following FAQ
discussing this principle in the context
of the procedural steps of section
382.117(e):
Q. May a carrier accept documentation
from a licensed mental health professional
concerning his or her need for a psychiatric
VerDate Nov<24>2008
15:09 Sep 17, 2009
Jkt 217001
or emotional support animal if the
documentation is more than one year old?
A. Carriers may, at their discretion, accept
from the passenger documentation from his
or her licensed mental health professional
that is more than one year old. We encourage
carriers to consider accepting ‘‘outdated’’
documentation in situations where a
passenger with a disability provides a letter
or notice of cancellation or other written
communication indicating the cessation of
health insurance coverage, and his/her
inability to afford treatment for his or her
mental or emotional disability.
Does this guidance successfully address
the situation of persons with mental
health-related disabilities who may
currently lack medical insurance? What
is the experience of airlines and
passengers with the existing rule and
guidance, which are now in effect?
Should the guidance or underlying
regulatory provisions be changed (e.g.,
to eliminate the requirement, change the
period of one year to something else,
require airlines to include alternate
documentation in some cases)?
Use of General Practitioners
The Department has clarified in the
regulatory text of section 382.117(e),
quoted above under ‘‘The Current
Regulation,’’ that among the individuals
authorized to provide documentation
concerning the need for ESAs or PSAs
include medical doctors who are
specifically treating a passenger’s
mental or emotional disability. Does this
clarification successfully address the
concern about the types of doctors who
can provide the documentation that the
rule now requires? If not, what
additional provisions would
commenters recommend?
Americans With Disabilities Act (ADA)
Analogy
The Department notes that the ACAA
is a separate statute from the ADA. The
ACAA is a specialized statute dealing
only with transportation by air, in an
environment in which a large number of
people are confined within a limited
space for what may be a prolonged
period of time. The Department has long
taken the position that accommodations
for persons with disabilities, and DOT
requirements for them, may justifiably
differ between the air travel context and
other contexts, such as places of public
accommodation regulated by the
Department of Justice under its ADA
regulations. We seek comment on the
application of this principle in the
matter of PSAs and ESAs.
Alternatives for Consideration
After reviewing comments on this
notice, the Department could make a
number of different decisions with
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
respect to the issues involved. The
following are examples of actions the
Department could take:
1. Leave the rule unchanged.
2. Leave the basic provisions of the
rule (i.e., concerning documentation
and advance notice) unchanged, but add
provisions relating to specific concerns
about the implementation of these
provisions (e.g., with respect to medical
privacy or other matters now addressed
by FAQs).
3. Eliminate documentation and
advance notice provisions for all types
of animals assisting passengers with
disabilities.
4. Eliminate the documentation and
advance notice provisions for PSAs, but
leave the provisions in effect for ESAs.
5. Leave the existing documentation
and advance notice provisions for
passengers with disabilities who wish to
bring service animals on board an
aircraft but whose types of disabilities
are not readily apparent.
6. Leave the existing documentation
and advance notice provisions in effect
for ESAs and PSAs, but add parallel
provisions for all passengers with
disabilities who wish to bring service
animals on board an aircraft.
7. Substitute an alternative method of
preventing ‘‘cheating’’ that would allow
airlines to distinguish service animals
from pets but that did not involve the
current documentation and/or advance
notice provisions.
The fact that an idea is on this list
does not mean that the Department
necessarily supports it or believes that
it would be good policy; the list merely
sets out a range of possible approaches
to the issues raised by the PSDS
petition. Nor is the list exhaustive; the
Department solicits other ideas for
addressing these issues as well.
Issued this 27th day of August 2009, at
Washington, DC.
Christa Fornarotto,
Acting Assistant Secretary for Aviation and
International Affairs.
[FR Doc. E9–21351 Filed 9–17–09; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 110
[Docket No. USCG 2008–1082]
RIN 1625–AA01
Anchorage Regulations; Port of New
York
AGENCY:
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Coast Guard, DHS.
18SEP1
Agencies
[Federal Register Volume 74, Number 180 (Friday, September 18, 2009)]
[Proposed Rules]
[Pages 47902-47906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21351]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 382
[Docket No. OST-2009-0093]
Nondiscrimination on the Basis of Disability in Air Travel
AGENCY: Office of the Secretary (OST), DOT.
ACTION: Request for comments on petition for rulemaking.
-----------------------------------------------------------------------
SUMMARY: An advocacy group representing users of psychiatric service
dogs has petitioned the Department to eliminate a provision of the
Department of Transportation's Air Carrier Access regulation. The
provision in question permits air carriers to require documentation and
48 hours' advance notice for users of psychiatric service animals. In
this document, the Department is seeking comment on the group's
petition and related questions. This document is not a notice of
proposed rulemaking. The Department has not decided whether to grant
the petition by initiating rulemaking action or to deny the petition
and retain the provisions without change. The Department will publish a
document in
[[Page 47903]]
the Federal Register regarding the determination of the petition.
DATES: Comments in response to this request must be received by
December 17, 2009.
ADDRESSES: You may submit comments (identified by the agency name and
DOT Docket ID Number OST-2009-0093) by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, 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 Avenue, SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251
Instructions: You must include the agency name (Office of the
Secretary, DOT) and Docket number (OST-2009-0093) for this notice at
the beginning of your comments. You should submit two copies of your
comments if you submit them by mail or courier. Note that all comments
received will be posted without change to https://www.regulations.gov
including any personal information provided and will be available to
internet users. You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit https://www.DocketsInfo.dot.gov.
Docket: For internet access to the docket to read background
documents and comments received, go to https://www.regulations.gov.
Background documents and comments received may also be viewed at the
U.S. Department of Transportation, 1200 New Jersey Ave., SE., Docket
Operations, M-30, West Building Ground Floor, Room W12-140, Washington,
DC 20590-0001, between 9:00 a.m. and 5:00 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
Room W94-302, 202-366-9310, bob.ashby@dot.gov.
SUPPLEMENTARY INFORMATION:
The Current Rule
On May 13, 2008, the Department of Transportation (the Department;
DOT) issued a revision to its Air Carrier Access Act (ACAA) regulation
(14 CFR Part 382). The regulation went into effect on May 13, 2009,
replacing the previous version of Part 382 on that date.
Section 382.117(e) of the revised Part 382, concerning service
animals, states: If a passenger seeks to travel with an animal that is
used as an emotional support or psychiatric service animal, the airline
is not required to accept the animal for transportation in the cabin
unless the passenger provides the airline current documentation (i.e.,
no older than one year from the date of the passenger's scheduled
initial flight) on the letterhead of a licensed mental health
professional (e.g., psychiatrist, psychologist, licensed clinical
social worker, including a medical doctor specifically treating the
passenger's mental or emotional disability). The documentation must
state the following: (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. In
addition, section 382.27(c)(8) provides that airlines may require a
passenger using a PSA or ESA to give up to 48 hours' advance notice and
check in one hour before the check-in time for the general public, in
order to permit the carrier to review and verify the documentation.
The entire purpose of the ACAA, and the Department's rules
implementing it, are to ensure nondiscriminatory air travel
opportunities are available to people with disabilities. The service
animal sections of the rule were drafted to carry out that purpose. In
the preamble to the rule, the Department discussed issues concerning
ESAs and PSAs two places. In the general discussion of service animal
issues, the Department made the following statements:
Another important issue that a number of commenters raised
concerned ``emotional support animals.'' Unlike other service
animals, emotional support animals are often not trained to perform
a specific active function, such as path finding, picking up
objects, carrying things, providing additional stability, responding
to sounds, etc. This has led some service animal advocacy groups to
question their status as service animals and has led to concerns by
carriers that permitting emotional support animals to travel in the
cabin would open the door to abuse by passengers wanting to travel
with their pets. The Department believes that there can be some
circumstances in which a passenger may legitimately travel with an
emotional support animal. However, we have added safeguards to
reduce the likelihood of abuse. The final rule limits use of
emotional support animals to persons with a diagnosed mental or
emotional disorder, and the rule permits carriers to insist on
recent documentation from a licensed mental health professional to
support the passenger's desire to travel with such an animal. In
order to permit the assessment of the passenger's documentation, the
rule permits carriers to require 48 hours' advance notice of a
passenger's wish to travel with an emotional support animal. Of
course, like any service animal that a passenger wishes to bring
into the cabin, an emotional support animal must be trained to
behave properly in a public setting. (73 FR 27614; May 13, 2008)
In the preamble's discussion of section 382.117, the Department
added the following:
There are new, more detailed procedures for the carriage of
emotional support and psychiatric service animals. The carrier may
require the passenger to provide current documentation from a mental
health professional (e.g., a medical doctor that is treating the
passenger's mental or emotional disability or a licensed clinical
social worker) caring for the passenger that the passenger has a
specific, recognized mental or emotional disability and that the
passenger needs to be accompanied by the specific emotional support
or psychiatric service animal in question, either on the flight or
at the passenger's destination * * * [C]arriers can properly apply
the same policies to ``psychiatric service animals'' as they do for
emotional support animals. This is because carriers and the
Department have encountered instances of attempted abuse of service
animal transportation policies by persons traveling with animals in
both categories [e.g., in communications among carriers, passengers,
and the Department's aviation consumer protection staff]. Should the
Department encounter a pattern of abuse concerning service animals
in other categories, we can consider additional safeguards with
respect to those categories as well. (Id. at 27655)
The ACAA final rule also included a guidance document concerning
service animals, which made the following statements concerning
emotional support animals (ESAs) and psychiatric support animals
(PSAs):
With respect to an animal used for emotional support (which need
not have specific training for that function but must be trained to
behave appropriately in a public setting), airline personnel may
require current documentation (i.e., not more than one year old) on
letterhead from a licensed mental health professional, including a
[[Page 47904]]
medical doctor that is treating the passenger's mental or emotional
disability or a licensed clinical social worker, stating (1) that
the passenger has a mental health-related disability listed in the
Diagnostic and Statistical Manual of Mental Disorders (DSM IV); (2)
that having the animal accompany the passenger is necessary to the
passenger's mental health or treatment; (3) that the individual
providing the assessment of the passenger 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. Airline personnel may require this documentation as a
condition of permitting the animal to accompany the passenger in the
cabin. The purpose of this provision is to prevent abuse by
passengers that do not have a medical need for an emotional support
animal and to ensure that passengers who have a legitimate need for
emotional support animals are permitted to travel with their service
animals on the aircraft. Airlines are not permitted to require the
documentation to specify the type of mental health disability, e.g.,
panic attacks.
There is a separate category of service animals generally known
as ``psychiatric service animals.'' These animals may be trained by
their owners, sometimes with the assistance of a professional
trainer, to perform tasks such as fetching medications, reminding
the user to take medications, helping people with balance problems
caused by medications or an underlying condition, bringing a phone
to the user in an emergency or activating a specially equipped
emergency phone, or acting as a buffer against other people crowding
too close). As with emotional support animals, it is possible for
this category of animals to be a source of abuse by persons
attempting to circumvent carrier rules concerning transportation of
pets. Consequently, it is appropriate for airlines to apply the same
advance notice and documentation requirements to psychiatric service
animals as they do to emotional support animals. (Id. at 27659).
The PSDS Petition
The Psychiatric Service Dog Society (PSDS) is an Arlington,
Virginia, based organization that describes itself as a service and
advocacy organization focused exclusively on the use of psychiatric
service dogs by persons living with mental health disabilities. At the
Department's June 3, 2008, consumer forum concerning the revised ACAA
rule, a PSDS representative expressed the organization's objections to
section 382.117(e). DOT staff responded that the organization could
file a petition for rulemaking concerning the section, and the PSDS
representative indicated that the organization would do so.
Under the Department's regulatory procedures, any person may file a
petition to issue, amend, or repeal a rule (49 CFR 5.11(a)). The PSDS
petition, dated April 13, 2009, has now been received by the
Department. Interested persons can read the entire petition at DOT-OST-
2009-0093. It consists of a three-page letter from PSDS and 32 pages of
letters or e-mails from constituents or supporters of the organization.
In its petition, which meets the procedural requirements of section
5.11, PSDS requests that section 382.117(e) be repealed. While the
petition does not specifically refer to section 382.27(c)(8), we
understand the petition to seek its repeal as well.
The Department can take one of two actions with respect to the
petition: It can grant the petition by initiating rulemaking action
(e.g., publishing a notice of proposed rulemaking to repeal or modify
the provisions in question) or it can deny the petition and retain the
provisions without change. When the Department denies a petition, we
send a denial letter to the petitioner explaining our reasons for the
decision.
In order to assist the Department in deciding which course to
follow, we are, in this document, seeking comment on the issues PSDS
raises in its petition. We note that taking action at this time to
change the regulatory provisions in question would constitute a
substantive amendment requiring us to issue a notice of proposed
rulemaking for public comment. Because PSDS waited as long as it did to
file its petition, the Department did not have time to take action
before the May 13, 2009 effective date for the revised Part 382. Nor
does the Department believe that immediate action to change the final
rule would be prudent prior to an opportunity to review comments on
issues concerning which a wide variety of parties may have an interest
in.
The main arguments that PSDS and its supporters cite as a basis for
the repeal of section 382.117(e) are the following:
In terms of applicable procedures, the Department's final
rule does not draw distinctions between the two categories of animal.
The PSDS petition appears to support drawing a sharp distinction
between PSAs and ESAs. The former must be trained for public access and
have basic obedience training as well as handler-specific behaviors to
ameliorate or mitigate the effects of a mental health-related
disability. The latter are rarely more than pets, requiring little or
no training. Therefore, it is improper for the rule to apply the same
procedural provisions to both categories of assistance animal.
By imposing additional procedural requirements on users of
PSAs, which are not imposed on service animals used by individuals with
other disabilities, the rule discriminates against and stigmatizes
individuals with mental health-related disabilities who use PSAs. If
DOT thinks it appropriate to impose these requirements on PSA users,
then DOT should be amenable to imposing similar requirements on people
with other disabilities who use service animals.
It would be easy for someone with a PSA to cheat, simply
by claiming that his or her dog was a service animal for another
disability, such as epilepsy, heart disease, diabetes, dementia etc.
Many people with mental health-related disabilities use
general practitioners rather than specialists in mental health matters,
and the Department's rule appears not to allow for letters from general
practitioners.
The rule violates the medical privacy of PSA users by
requiring confidential medical information to be provided to airline
personnel. Moreover, the rule makes no provision for the confidential
treatment of this information once it gets into the airline's hands,
and fails to answer questions concerning the security, storage, or use
of the information. PSDS expresses the concern that the Transportation
Security Administration could gain access to the information and
require additional security measures (e.g., secondary screening) for
persons identified as having mental health-related disabilities.
It may be difficult or impossible for persons who do not
have medical insurance or otherwise lack access to affordable medical
care to obtain the medical documentation the rule allows airlines to
require. In addition, the requirement that the documentation be no more
than a year old could work an additional financial hardship on PSA
users, because they would have to pay annually for the required
documentation. This could result in the denial of air transportation to
people in this situation.
The 48 hours' advance notice provision would make it very
difficult for PSA users to fly in the case of short-term situation
(e.g., a family or medical emergency) that did not permit them to
provide 48 hours' advance notice.
DOT does not have adequate evidence that there is a
problem with people trying to sneak pets aboard aircraft, so as to
justify imposing the procedural requirements on PSA users.
Under the Americans with Disabilities Act (ADA) and other
laws concerning nondiscrimination on the basis of disability, users of
service animals (including PSAs) do not have to comply with
requirements like those in section 382.117(e).
[[Page 47905]]
Some letters from supporters of the PSDS petition
suggested that other provisions of Part 382, such as those concerning
``direct threat,'' ``fundamental alteration,'' and general language
concerning identification of service animals would be sufficient with
respect to PSAs and ESAs, without including language like that of
section 382.117(e).
Information and Questions Concerning the PSDS Petition
To help highlight issues raised by the petition for commenters, the
Department presents the following information and questions:
Differences Between PSAs and ESAs
The letters of support for PSDS' petition mention that PSAs are
trained for public access and obedience (which a number of letters
assume or say is not true of ESAs). In fact, are ESAs trained to behave
properly in public settings? Note that, under the ACAA rules, airlines
are never required to carry in the cabin an animal--even one that is
assisting a person with a disability--that is not behaving
appropriately in a public setting.
The letters of support for PSDS' petition state that PSAs are
trained to provide medically necessary, therapeutic, or other services
for their users. However, the letters do not specify what any of these
services are. What are these services, and how, if at all, are they
relevant to the use of a PSA during the user's air travel or activities
at the user's destination? With respect to travel on an aircraft, how
do these services differ from those that would be provided by an ESA
during a flight or at the passenger's destination? How, if at all,
would any such differences justify treating ESAs and their users
differently from PSAs and their owners in the context of air
transportation? What, if any, distinctions have airlines drawn or
attempted to draw between the two categories of animals, and what is
the basis for any such distinctions?
It appears from some material in the supporting letters that PSAs
do, in fact, provide services related to emotional support. For
example, one letter from a PSA user related the following about her
dog:
* * * [H]e gives me unconditional love no matter what I look or feel
like that day. He is there right by my side even when I don't ask
him to, lying at my feet because he knows that helps me. He helps me
when no nothing or no one else will. He is very reliable. I never
have to worry if he is going to be ``busy'' that night like I would
friends or family. He is never angry if I talk too much or pet him
too much * * *. He gives me better hugs than my husband * * *.
Another letter, from a therapist, said that an assistance animal
enabled her clients to ``get out of the house and go places without the
fear and panic they had before. It is so helpful for them to have their
dog with them in all environments to reduce dissociation, panic, and
anxiety.'' Do these obviously significant functions that dogs called
PSAs perform for their owners differ from those that would be performed
for their owners by dogs called ESAs in a way that would support
different treatment for the two groups in airline travel? We note that
over the years, many individuals who travel with ESAs have stated that
their service animals, in addition to being trained to behave properly
in public settings and providing needed emotional/mental health support
without which they cannot travel, do in fact perform specific physical
tasks related, for example, helping lessen anxiety in stressful
situations.
Need for Procedural Requirements
We seek comments from airlines and other interested persons about
their experience with passengers attempting to pass off pets as service
animals, especially as it may relate to ESAs and PSAs. Are there
problems that air carriers have encountered in distinguishing pets from
animals that provide services to passengers with disabilities? What
procedures do airlines use to draw this distinction, and how well do
these procedures work? How pervasive are any such problems? What, if
any, experience do airlines have with people attempting to bring pets
on board on the basis of claims that the animals are service animals
for disabilities that are not readily apparent other than mental
health-related conditions, such as seizure disorders, heart conditions,
diabetes, etc? What, if any, problems are created for airlines when
people have attempted to bring or have succeeded in bringing pets into
the cabin under the guise of being service animals? Do airlines have
any statistics or compilations of experience with people attempting to
pass off their pets as service animals that they could share with the
Department?
Do the procedural provisions of section 382.117(e)--and the
previous provisions of DOT guidance concerning ESAs--help airlines
distinguish between service animals and pets? If, as the petition
requests, paragraph (e) were deleted, would airlines have sufficient
other, arguably less burdensome, means of making these determinations?
What would be the effect, if any, on the ability of airlines to make
reasonable determinations in these matters if the provisions of
paragraph (e) remained in effect for users of ESAs but not users of
PSAs? Are there problems that airlines have encountered in the past
with passengers initially claiming that their animal is an ESA and
later characterizing that same animal as a PSA? If so, please describe
such problems. The Department's rule is now in effect: Have passengers
or airlines encountered any actual problems concerning the
implementation of the provisions in question in this context?
The Department, the service animal community (e.g., handlers,
organizations), and the airlines all share the goal of stopping the
abuse of service animal access rights by passengers who fraudulently
assert that their pets are service animals. The Department is
interested in identifying effective alternative methods to prevent such
fraud. We, therefore, invite members of the public, and in particular
members of the service animal community, to propose methods for
preventing/detecting fraud that they believe are feasible alternatives
to the current medical documentation requirements.
Medical Privacy
With respect to the medical information provided to airlines under
paragraph (e) and other provisions of Part 382 concerning medical
documentation, the Department has issued the following guidance:
Q. What should carriers do to safeguard the personal medical
information (e.g., physician's statements, medical certificates and
documentation from licensed mental health professionals for
emotional support and psychiatric service animals) that they require
of passengers in order to provide certain accommodations?
A. When a carrier requires a passenger to provide personal
medical information as a condition for obtaining disability
accommodations, we recommend that the carrier take steps to
safeguard this information, such as maintaining it in a separate
confidential file for the same period of time it retains that
passenger's reservation record for the flights involved.
Does this guidance sufficiently address medical privacy concerns
arising from the operation of paragraph (e)? If not, should the
Department amend its regulations to provide additional protections? If
so, what should such amendments provide? Should there be additional
language concerning such matters as how confidentiality is maintained,
who has access to records and for how long, how are records disposed
of, or whether a particular record retention period should be stated in
the rule or guidance?
[[Page 47906]]
Family and Medical Emergencies
Part 382 provides that, when a passenger does not provide advance
notice for accommodations to which a carrier may apply an advance
notice requirement, the carrier must provide the accommodation if it
can do so by making reasonable efforts, without delaying the flights
(see section 382.27(g)). The Department's rule is now in effect: Have
passengers or airlines encountered any actual problems concerning the
implementation of the provisions in question in this context?
The Department has issued the following FAQ discussing this
principle in the context of the procedural steps of section 382.117(e):
Q. When must a carrier accommodate a passenger accompanied by an
emotional support or psychiatric service animal who has not provided
48 hours' advance notice?
A. Carriers must accommodate a passenger accompanied by an
emotional support or psychiatric service animal who has not provided
48 hours' advance notice if the carrier can do so by making
reasonable efforts, without delaying a flight. The carrier, at its
discretion, may waive its 48 hours' advance notice requirement in
order to expedite the emergency air travel of a passenger
accompanied by an emotional support or psychiatric service animal.
Does this guidance adequately handle the situation of ESA or PSA users
with a family or medical emergency requiring short-notice travel?
Should air carriers be able to require documentation of the emergency
from someone seeking to travel with a PSA or ESA who cannot provide 48
hours' notice? Are there additional regulatory or guidance statements
the Department should make on this matter, such as criteria for when
and on what basis the 48 hours' advance notice period should be waived?
Lack of Medical Insurance or a Mental Health Care Provider
In the absence of recent documentation from a mental health
professional, how is an air carrier to determine whether a passenger
has a current need for an ESA or PSA? Would anyone using a PSA or ESA
have had a medical recommendation for the use of such an animal at some
time in the past that could be documented? If not, what information
could establish a basis for the individual's claim that he or she needs
a service animal? The Department has issued the following FAQ
discussing this principle in the context of the procedural steps of
section 382.117(e):
Q. May a carrier accept documentation from a licensed mental
health professional concerning his or her need for a psychiatric or
emotional support animal if the documentation is more than one year
old?
A. Carriers may, at their discretion, accept from the passenger
documentation from his or her licensed mental health professional
that is more than one year old. We encourage carriers to consider
accepting ``outdated'' documentation in situations where a passenger
with a disability provides a letter or notice of cancellation or
other written communication indicating the cessation of health
insurance coverage, and his/her inability to afford treatment for
his or her mental or emotional disability.
Does this guidance successfully address the situation of persons with
mental health-related disabilities who may currently lack medical
insurance? What is the experience of airlines and passengers with the
existing rule and guidance, which are now in effect? Should the
guidance or underlying regulatory provisions be changed (e.g., to
eliminate the requirement, change the period of one year to something
else, require airlines to include alternate documentation in some
cases)?
Use of General Practitioners
The Department has clarified in the regulatory text of section
382.117(e), quoted above under ``The Current Regulation,'' that among
the individuals authorized to provide documentation concerning the need
for ESAs or PSAs include medical doctors who are specifically treating
a passenger's mental or emotional disability. Does this clarification
successfully address the concern about the types of doctors who can
provide the documentation that the rule now requires? If not, what
additional provisions would commenters recommend?
Americans With Disabilities Act (ADA) Analogy
The Department notes that the ACAA is a separate statute from the
ADA. The ACAA is a specialized statute dealing only with transportation
by air, in an environment in which a large number of people are
confined within a limited space for what may be a prolonged period of
time. The Department has long taken the position that accommodations
for persons with disabilities, and DOT requirements for them, may
justifiably differ between the air travel context and other contexts,
such as places of public accommodation regulated by the Department of
Justice under its ADA regulations. We seek comment on the application
of this principle in the matter of PSAs and ESAs.
Alternatives for Consideration
After reviewing comments on this notice, the Department could make
a number of different decisions with respect to the issues involved.
The following are examples of actions the Department could take:
1. Leave the rule unchanged.
2. Leave the basic provisions of the rule (i.e., concerning
documentation and advance notice) unchanged, but add provisions
relating to specific concerns about the implementation of these
provisions (e.g., with respect to medical privacy or other matters now
addressed by FAQs).
3. Eliminate documentation and advance notice provisions for all
types of animals assisting passengers with disabilities.
4. Eliminate the documentation and advance notice provisions for
PSAs, but leave the provisions in effect for ESAs.
5. Leave the existing documentation and advance notice provisions
for passengers with disabilities who wish to bring service animals on
board an aircraft but whose types of disabilities are not readily
apparent.
6. Leave the existing documentation and advance notice provisions
in effect for ESAs and PSAs, but add parallel provisions for all
passengers with disabilities who wish to bring service animals on board
an aircraft.
7. Substitute an alternative method of preventing ``cheating'' that
would allow airlines to distinguish service animals from pets but that
did not involve the current documentation and/or advance notice
provisions.
The fact that an idea is on this list does not mean that the
Department necessarily supports it or believes that it would be good
policy; the list merely sets out a range of possible approaches to the
issues raised by the PSDS petition. Nor is the list exhaustive; the
Department solicits other ideas for addressing these issues as well.
Issued this 27th day of August 2009, at Washington, DC.
Christa Fornarotto,
Acting Assistant Secretary for Aviation and International Affairs.
[FR Doc. E9-21351 Filed 9-17-09; 8:45 am]
BILLING CODE 4910-9X-P