Nondiscrimination on the Basis of Disability in Air Travel, 23804-23807 [2018-10814]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Rules and Regulations]
[Pages 23804-23807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10814]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2018-0067]


Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Interim statement of enforcement priorities.

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SUMMARY: The U.S. Department of Transportation (DOT or the Department) 
is issuing a statement of enforcement priorities to apprise the public 
of its intended enforcement focus with respect to transportation of 
service animals in the cabin of aircraft. The Department regulates the 
transportation of service animals under the Air Carrier Access Act 
(ACAA) and its implementing regulation. The Department seeks comment on 
this interim statement, and intends to issue a final statement after 
the close of the comment period.

DATES: The interim statement of enforcement proprieties is applicable 
May 23, 2018. Comments should be filed by June 7, 2018. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2018-0067 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 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-2018-0067 at the beginning of your comment. All comments 
received will be posted without change to https://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 and 
comments received, go to https://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Robert Gorman, Senior Trial Attorney, 
or Blane A. Workie, Assistant General Counsel, 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] or [email protected] (email).

SUPPLEMENTARY INFORMATION: 

Background

    The Air Carrier Access Act (ACAA) prohibits discrimination in 
airline service on the basis of disability. 49 U.S.C. 41705. DOT's rule 
implementing the ACAA generally requires that airlines permit an 
individual with a disability to travel with his or her service animal 
in the cabin at no additional charge. 14 CFR 382.31(a). Service animals 
play a vital role in the lives of many individuals with disabilities. 
For example, service animals serve as guides for persons with visual 
impairments, notify persons who are deaf or hard of hearing of public 
announcements and/or possible hazards, warn persons with post-traumatic 
stress disorder or other mental or emotional disabilities at the onset 
of an emotional crisis, and retrieve items for passengers with mobility 
impairments. At the same time, the Department recognizes that airlines 
have a responsibility to ensure the health, safety, and welfare of all 
of its passengers and employees. In enforcing the requirements of 
Federal law, the Department is committed to ensuring that our air 
transportation system is safe and accessible for everyone.
    DOT requires airlines to allow a wide variety of service animals in 
the cabin of aircraft flying to, from, and within the United States. 
Under the ACAA, the Department considers a service animal to be any 
animal that is individually trained to assist a person with a 
disability, or an animal that is necessary for the emotional well-being 
of a passenger. 14 CFR 382.117(e) and Guidance Concerning Service 
Animals in Air Transportation, 73 FR 27614, 27658 (May 13, 2008). 
However, airlines are never required to accept snakes, reptiles, 
ferrets, rodents, sugar gliders, and spiders. Airlines may also exclude 
animals that are too large or heavy to be accommodated in the cabin, 
pose a direct threat to the health or safety of others, cause a 
significant disruption of cabin service, or are prohibited from 
entering a foreign country. 14 CFR 382.117(f). In addition, airlines 
may deny transport to a service animal that is not well-behaved, 
suggesting a lack of proper training. 14 CFR 382.117(i) and Guidance 
Concerning Service Animals in Air Transportation, 73 FR 27614, 27659 
(May 13, 2008). Foreign air carriers are required to only transport 
dogs. 14 CFR 382.117(f).
    Under DOT rules, airlines determine whether an animal is a service 
animal or pet by the credible verbal assurance of an individual with a 
disability using the animal, or by looking for physical indicators such 
as the presence of a harness or tags. 14 CFR 382.117(d). If the animal 
is a psychiatric service animal (PSA) or an emotional support animal 
(ESA), airlines may also require documentation by a licensed mental 
health professional stating that the passenger has a mental or 
emotional disability recognized in the Diagnostic and Statistical 
Manual of Mental Disorders IV (DSM-IV) and that the passenger needs the 
animal for air travel or activity at the passenger's destination. 14 
CFR 382.117(e). Airlines may also require 48 hours' advance notice and 
check-in one hour before the check-in time for the general public as a 
condition for travel with an ESA or

[[Page 23805]]

PSA. 14 CFR 382.27(c)(8). Airlines are prohibited from imposing such a 
requirement for travel with other types of service animals, except for 
travel with a service animal on a flight segment scheduled to take 8 
hours or more. 14 CFR 382.27(a); 382.27(c)(9).
    In 2016, the Department attempted to change its service animal 
requirements through a negotiated rulemaking because of widespread 
dissatisfaction with the current rule. Some disability rights advocates 
asserted that the Department's service animal requirements discriminate 
against passengers with mental and emotional disabilities by allowing 
airlines to require them to give advance notice and documentation that 
other individuals with disabilities are not required to give. There was 
also concern that a growing number of passengers are presenting 
untrained animals that are essentially just pets, and demanding the 
right to bring them onboard as service animals. Airlines reported to 
the Department a proliferation of websites offering certificates of 
psychological need for essentially any applicant who pays a small fee. 
The use of unusual species such as turkeys and pigs as service animals 
also caused unease not only with airlines but also with advocates. Some 
advocates worried that the use of unusual service animals would create 
distrust by flight crew and other passengers that could affect their 
ability to bring legitimate service animals onboard. Unfortunately, 
while the negotiated rulemaking process was highly informative and 
productive, the Department's efforts to find full consensus on these 
issues was not successful.
    Since that time, the need for the Department to address these 
issues has only grown. Airlines have become increasingly concerned that 
untrained service animals pose a risk to the health and safety of its 
crewmembers and passengers. Carriers have reported increased incidents 
of misbehavior including urination, defecation, and biting. A few have 
established policies that they deem appropriate given their belief that 
there has been a significant increase in passengers bringing animals 
onboard that have not been properly trained as service animals. For 
example, one airline declared its intention to require, effective March 
1, 2018, that all passengers traveling with service animals provide 
immunization records and/or veterinary health forms for their animal 
signed by a veterinarian at least 48 hours before the flight's 
scheduled departure time.\1\ In addition, this airline specified that 
PSA and ESA users must also submit documentation that their animal has 
been trained to behave in a public setting as a condition for travel, 
and required that all passengers with service animals must check-in at 
the airport counter. The airline further states that it will evaluate 
on a case-by-case basis whether it will accept any animal that is not a 
dog or a cat for travel. Another airline has indicated that, effective 
March 1, 2018, it will require passengers who use PSAs or ESAs to 
provide, no later than 48 hours prior to travel, two separate forms in 
addition to the medical form already permitted under section 
382.117(e). First, under the airline policy, the passenger must attest 
that he or she is not aware of any reason that the animal would pose a 
direct threat to the health or safety of others, and that the passenger 
accepts full legal responsibility for any misbehavior by the animal. 
Second, the passenger must provide a form, signed by a licensed 
veterinarian, providing information about the medical history of the 
animal.\2\ Other airlines have informally expressed to the Department 
an interest in similarly amending their service animal policies.
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    \1\ On February 22, 2018, that airline changed its policy so it 
no longer required all service animal users to provide immunization 
records/and or veterinary health forms.
    \2\ Among other data, the veterinarian form must include the 
type/breed/weight of the animal, the date of the animal's last 
rabies vaccine, and a statement that at the time of the animal's 
last physical examination, the animal appeared to be free of 
infectious or contagious diseases that would endanger other animals 
or public health. The veterinarian must also relay information from 
the animal's owner regarding whether the animal has injured or 
attacked any person.
    An earlier version of this airline's policy would have required 
the veterinarian to directly attest that the animal's behavior would 
not pose a direct threat onboard the aircraft. The American 
Veterinary Medical Association (AVMA) has raised concerns with the 
Department about airlines' service animal forms, to the extent that 
they would require veterinarians to predict or certify that an 
animal will behave appropriately onboard an aircraft. The AVMA noted 
that veterinarians generally rely on reports from the animal's owner 
and on their direct observations of the animal during a physical 
examination. The AVMA explained to the Department, however, that 
veterinarians cannot guarantee the behavior of an animal, 
particularly in a new environment like an aircraft. The AVMA 
emphasized to the Department that expanding the scope of the 
veterinary form beyond the health status of the animal and 
behavioral information of the animal based on owner reports or the 
veterinarian's observations could lead to refusals by veterinarians 
to fill out these forms, which would result in more service animals 
being denied air transportation.
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    Many disability advocates oppose these new policies for various 
reasons. They broadly contend that the Department should not tolerate 
these restrictions because they impose burdens that go beyond what the 
Department has indicated airlines may impose on passengers with 
disabilities. More specifically, they contend that the inconvenience 
and expense of providing veterinary forms outweigh their limited value. 
They note that whether an animal poses a direct threat to the health or 
safety of others should be assessed on an individualized, real-time 
basis, rather than through a general requirement that applies to all 
service animals. Advocates have also pointed out to the Department that 
a 48 hours' advance notice requirement prevents passengers from 
traveling in the event of an emergency. In addition, advocates assert 
that requiring passengers to check-in at the ticket counter is 
burdensome, particularly in an era where many passengers skip the 
ticket counter and proceed directly to the gate because they have 
checked in online. PSA users further contend that it is discriminatory 
to apply greater restrictions to PSAs than are applied to other service 
animals. More generally, advocates have expressed a concern that 
passengers with disabilities may be subject to a shifting patchwork of 
carrier policies.

Advance Notice of Proposed Rulemaking

    Today, the Department issued an advance notice of proposed 
rulemaking (ANPRM) in response to concerns expressed by the 
stakeholders about the need for a change in the Department's service 
animal requirements. The ANPRM solicits comments on ways to ensure that 
individuals with disabilities can continue using their service animals 
while deterring the fraudulent use of other animals not qualified as 
service animals and ensuring that animals that are not trained to 
behave properly in the public are not accepted for transport. Because 
the rulemaking process can be lengthy, the Department's Office of 
Aviation Enforcement and Proceedings (Enforcement Office), within the 
Office of the General Counsel, is issuing this statement to apprise the 
public of its intended enforcement focus with respect to transportation 
of service animals in the cabin until the service animal requirements 
are revised.

Interim Statement of Enforcement Office Priorities

    The Enforcement Office has the authority to pursue or not to pursue 
enforcement action against airlines for not complying with the ACAA and 
the Department's implementing regulation. Given that the service animal 
issue is currently the subject of an open rulemaking, the Enforcement 
Office will

[[Page 23806]]

focus its enforcement on clear violations of the current rule that have 
the potential to adversely impact the largest number of persons.\3\
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    \3\ To the extent that this interim statement of enforcement 
priorities conflicts with the Enforcement Office's 2009 Frequently 
Asked Questions guidance document (https://www.transportation.gov/airconsumer/frequently-asked-questions-may-13-2009), this more 
recent document will control.
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Service Animals--Species and Number

    The Enforcement Office intends to exercise its enforcement 
discretion by focusing its resources on ensuring that U.S. carriers 
continue to accept the most commonly used service animals (i.e., dogs, 
cats, and miniature horses) for travel. While the Enforcement Office 
will focus on ensuring the transport of commonly used service animals 
such as dogs, cats and miniature horses by U.S. carriers, it may take 
enforcement action against U.S. carriers for failing to transport other 
service animals on a case-by-case basis. Airlines are expected to 
continue to comply with the existing service animal requirement which 
allows U.S. airlines to deny transport only to certain unusual service 
animals such as snakes, other reptiles, ferrets, rodents and spiders. 
The Enforcement Office believes that the public interest will be better 
served by this exercise of its enforcement discretion because dogs, 
cats, and miniature horses are the most commonly used service animals.
    The Department's service animal regulation does not indicate 
whether airlines must allow passengers to travel with more than one 
service animal. In the past, the Enforcement Office has informed 
airlines that they will not be subject to enforcement action if they 
limit passengers to transporting three service animals. The Enforcement 
Office continues to recognize that a passenger may require more than 
one task trained service animal. Multiple task trained service animals 
may be needed to the extent that they are trained to perform different 
tasks, or in cases where an individual trained service animal must rest 
and cannot perform tasks for the passenger for extended periods. On the 
other hand, it is less clear that passengers require more than one ESA 
for travel or at the passenger's destination. Accordingly, as a matter 
of discretion, the Enforcement Office does not intend to take action if 
airlines limit passengers to transporting one ESA. Additionally, the 
Enforcement Office does not intend to take action if airlines limit 
passengers to transporting a total of three service animals.

Advance Notice

    The Enforcement Office plans to use its resources to ensure that 
airlines are not improperly requiring passengers with service animals 
to provide advance notice prior to travel. Under existing DOT rules, 
carriers generally may not require advance notice for passengers with 
disabilities, unless the rule specifically permits advance notice. 14 
CFR 382.27(a). Carriers may require advance notice for passengers 
traveling with PSAs or ESAs, or for any service animal where the flight 
segment is scheduled to take 8 hours or more, but only with regard to 
the animal's need to relieve itself during the flight. 14 CFR 
382.27(c). Thus, under existing rules, carriers may not otherwise 
require advance notice for passengers traveling with service animals 
(e.g., seeing eye dogs) other than ESAs or PSAs unless the flight 
segment is 8 hours or more. Requiring advance notice for service 
animals outside of these specific circumstances violates the 
Department's regulation and may significantly harm passengers with 
disabilities as it prevents them from making last minute travel plans 
that may be necessary for work or family emergencies.

Proof That an Animal is a Service Animal

    The Department's service animal regulation requires airlines to 
accept the following as proof of a service animal's status: 
Identification cards, other written documentation, presence of 
harnesses, tags, or the credible verbal assurances of a qualified 
individual with a disability using the animal. 14 CFR 382.117(d). 
Airlines have pointed out to the Department that accepting 
identification cards, harnesses, or tags as the sole evidence that an 
animal is a service animal is problematic because service animal 
paraphernalia are sold online and may be obtained by unscrupulous 
individuals so their pets can fly in the aircraft cabin as service 
animals. However, the Department's disability regulation makes clear 
that these protections are for individuals with disabilities. See 14 
CFR 382.1 and 382.3. When deciding to accept an animal as a service 
animal, airlines must determine both that the passenger is an 
individual with a disability and that the animal is a service animal. 
See 73 FR 27614, 27658. If a passenger's status as an individual with a 
disability is unclear (for example, if the disability is not clearly 
visible), then the airline personnel may ask questions about the 
passenger's need for a service animal. For example, airlines may ask 
``how does your animal assist you with your disability?'' See 73 FR 
27614, 27660. A credible response to this question would establish both 
that the passenger is an individual with a disability and that the 
animal is a service animal. While airlines are required to accept items 
such as vests and harnesses as evidence of a service animal's status, 
it would be reasonable for airlines to also request the passenger's 
credible verbal assurance to ensure the passenger is an individual with 
a disability who has a need for that service animal.

Check-In Requirements

    Airlines generally allow passengers to check-in electronically 
before arriving at the airport. DOT prohibits airlines from denying an 
individual with a disability the benefit of any air transportation or 
related services that are available to other persons. 14 CFR 382.11. 
Among the many benefits of electronic check-in is the ability to skip 
the ticket counter and proceed directly to the gate. One of the reasons 
that the Department requires airlines to make its websites accessible 
is to enable individuals with disabilities to check-in electronically 
like other travelers. See 14 CFR 382.43. For these reasons, and 
considering the prohibition against discrimination in the ACAA, the 
Enforcement Office intends to act should an airline require that a 
passenger with a service animal check-in at the ticket counter, thereby 
denying those passengers the same benefits that are available to other 
passengers.

Documentation

    As noted above, carriers may refuse transportation to any service 
animal that displays behavior evidencing a lack of training in a public 
space. For example, an untrained animal may bark or growl at other 
persons on the aircraft, bite or jump on people, or urinate or defecate 
in the cabin. The Department's disability rule does not clearly 
indicate how carriers determine whether a service animal poses a direct 
threat to the health or safety of others. The provision in the current 
regulation that allows airlines to deny boarding to an animal that 
poses a direct threat to the health or safety of others will be further 
clarified through the rulemaking process. As described previously, 
certain carriers have indicated that they need veterinary forms or 
behavioral attestations to determine whether a service animal, 
particularly a PSA and/or an ESA poses a direct threat. At the same 
time, we understand the disability advocates' view that these policies 
violate the Department's disability regulation because they impose new 
requirements on passengers with disabilities.

[[Page 23807]]

    The Enforcement Office does not intend to use its limited resources 
to pursue enforcement action against airlines for requiring proof of a 
service animal's vaccination, training, or behavior so long as the 
documentation is not required for passengers seeking to travel with a 
service animal that is not an ESA or PSA. Under section 382.27, 
carriers may not require advance notice to obtain services or 
accommodations, except under circumstances specifically permitted by 
rule. As noted above, however, under DOT's rule, airlines are permitted 
to ask for up to 48 hours' advance notice for passengers using PSAs and 
ESAs. 14 CFR 382.27(c)(8). The Department permits airlines to require 
48 hours' advance notice of a passenger wishing to travel with an ESA 
or PSA in order to provide the carrier the necessary time to assess the 
passenger's documentation.\4\ As such, the Enforcement Office does not 
intend to use its limited resources to pursue enforcement action 
against airlines for requiring proof of a service animal's vaccination, 
training, or behavior for passengers seeking to travel with an ESA or 
PSA. At present, the Enforcement Office is not aware of any airline 
requesting information from ESA or PSA users that would make travel 
with those animals unduly burdensome or effectively impossible (e.g., 
requiring veterinarians to directly guarantee or certify that an animal 
will behave appropriately onboard an aircraft). The Enforcement Office 
will continue to monitor the types of information sought by ESA and PSA 
users, however.
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    \4\ See 73 FR 27614, 27636 (May 13, 2008).
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Containing Emotional Support Animals in the Cabin

    Part 382 does not clearly specify whether or how airlines may 
restrict the movement of service animals in the cabin. The FAA 
determined as a matter of aircraft safety that passengers may carry 
service animals in their lap during all stages of flight, so long as 
the animal does not weigh more than a lap child (i.e., a child that has 
not reached his or her second birthday).\5\ The Enforcement Office then 
interpreted section 382.117 as prohibiting an airline from requiring 
service animals to be harnessed in the cabin, and requiring airlines to 
transport service animals in the cabin free of restraining devices 
while accompanying users at their seats in accordance with applicable 
safety requirements since there appeared to be no safety reason to do 
so.\6\
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    \5\ FAA Order 8400.10, FSAT 04-01A (2004) at https://fsims.faa.gov/WDocs/Bulletins/Information%20Bulletins/Air%20Transportation%20Info%20Bulletins%20(FSAT)/FSAT0401A.htm.
    \6\ See letter dated March 22, 2010 from the Department's Office 
of Aviation Enforcement and Proceedings stating that the office 
``has long interpreted this provision to mean that, in general, 
service animals should be transported in the cabin free of 
restraining devices while accompanying users at their seats in 
accordance with applicable safety requirements, and prohibits 
carriers from otherwise mandating conditions or restrictions not 
stated in section 382.117.'' DOT-OST-2008-0272-0091 at https://www.regulations.gov/document?D=DOT-OST-2008-0272-0091.
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    However, because the regulatory text is not explicitly clear on 
this topic and the FAA order does not address the behavior of service 
animals, the Enforcement Office now intends to exercise its enforcement 
discretion with respect to carriers that restrict the movement of ESAs 
in the cabin. We recognize the possibility that ESAs may pose greater 
in-cabin safety risks because they may not have undergone the same 
level of training as other service animals (including PSAs). 
Accordingly, at this time, the Enforcement Office will not take action 
against carriers that impose reasonable restrictions on the movement of 
ESAs in the cabin so long as the reason for the restriction is concern 
for the safety of other passengers and crew. Such restrictions may 
include requiring, where appropriate for the animal's size, that the 
animal be placed in a pet carrier, the animal stay on the floor at the 
passenger's feet, or requiring the animal to be on a leash or tether.

Request for Comments

    This interim statement of enforcement priorities reflects the 
Department's current view of where to focus its limited resources with 
respect to service animal issues, given airlines recently announced 
service animal policies. In appropriate cases, the Enforcement Office 
may take enforcement action against carriers for violations that are 
not described in this interim statement. The Department solicits 
comment on the effects and implications of adopting these enforcement 
priorities. The comment period will remain open for 15 days after 
publication in the Federal Register. Late-received comments will be 
considered to the extent practicable. After the close of the comment 
period, the Department will issue a final statement of enforcement 
priorities. Comments relating to amending the Department's disability 
regulation should be directed to the ANPRM docket: DOT-OST-2018-0067.

    Issued this 9th day of May, 2018, in Washington, DC.
Blane A. Workie,
Assistant General Counsel for Aviation Enforcement and Proceedings, 
U.S. Department of Transportation.
[FR Doc. 2018-10814 Filed 5-22-18; 8:45 am]
 BILLING CODE 4910-9X-P