Traveling by Air With Service Animals, 23832-23842 [2018-10815]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Proposed Rules]
[Pages 23832-23842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10815]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2018-0068]
RIN 2105-AE63


Traveling by Air With Service Animals

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

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Transportation (DOT or Department) is 
seeking comment on amending its Air Carrier Access Act (ACAA) 
regulation on transportation of service animals. The Department has 
heard from the transportation industry, as well as individuals with 
disabilities, that the current ACAA regulation could be improved to 
ensure nondiscriminatory access for individuals with disabilities, 
while simultaneously preventing instances of fraud and ensuring 
consistency with other Federal regulations. The Department recognizes 
the integral role that service animals play in the lives of many 
individuals with disabilities and wants to ensure that individuals with 
disabilities can continue using their service animals while also 
helping to ensure that the fraudulent use of other animals not 
qualified as service animals is deterred and animals that are not 
trained to behave properly in the public are not accepted for transport 
as service animals.

[[Page 23833]]


DATES: Comments should be filed by July 9, 2018. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2018-0068 by any of the following methods:
     Federal eRulemaking Portal: Go to 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-2018-0068 or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to 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://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
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: Maegan Johnson, Senior Trial Attorney, 
Office of Aviation Enforcement and Proceedings, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-
9342, 202-366-7152 (fax), [email protected] (email). You may also 
contact Blane Workie, Assistant General Counsel, Office of Aviation 
Enforcement and Proceedings, Department of Transportation, 1200 New 
Jersey Ave. SE, Washington, DC 20590, 202-366-9342, 202-366-7152 (fax), 
[email protected].

SUPPLEMENTARY INFORMATION:

Current Service Animal Requirements

    DOT considers a service animal to be any animal that is 
individually trained to assist to a qualified person with a disability 
or any animal necessary for the emotional well-being of a passenger.\1\ 
U.S. airlines must transport all service animals regardless of species 
with a few narrow exceptions.\2\ U.S. airlines are not required to 
accommodate certain unusual service animals, such as snakes, reptiles, 
ferrets, rodents, and spiders.\3\ Under DOT's current rule, airlines 
may also refuse to carry other animals if the airline determines: (1) 
There are factors precluding the animal from traveling in the cabin of 
the aircraft, such as the size or weight of the animal; (2) the animal 
would pose a direct threat to the health or safety of others; (3) it 
would cause a significant disruption of cabin service; or (4) the law 
of a foreign country that is the destination of the flight would 
prohibit entry of the animal.\4\ DOT requires foreign air carriers to 
transport only service dogs.\5\ However, under DOT rules, a U.S. 
carrier is held responsible if a passenger traveling under the U.S. 
carrier's code is not allowed to travel with another type of service 
animal (e.g., cat) on a flight operated by its foreign code share 
partner.\6\
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    \1\ See 14 CFR 382.117(i) and Guidance Concerning Service 
Animals, 73 FR 27614, 27659 (May 13, 2008).
    \2\ 14 CFR 382.117(a).
    \3\ 14 CFR 382.117(f).
    \4\ Id.
    \5\ Id.
    \6\ See 14 CFR 382.7(c). As a matter of prosecutorial 
discretion, the Department's Office of Aviation Enforcement and 
Proceedings has chosen not pursue actions against U.S. airlines when 
it has found these types of violations.
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    Regarding emotional support animals (ESA) and psychiatric service 
animals (PSA), DOT requires airlines to recognize these animals as 
service animals, but allows airlines to require that ESA and PSA users 
provide a letter from a licensed mental health professional of the 
passenger's need for the animal.\7\ To enable airlines sufficient time 
to assess the passenger's documentation, DOT permits airlines to 
require 48 hours' advance notice of a passenger's wish to travel with 
an ESA or PSA.\8\ ESAs and PSAs differ from one another in that PSAs, 
like other traditional service animals, are trained to perform a 
specific task for a passenger with a disability. In contrast, ESAs 
provide emotional support for a passenger with a mental/emotional 
disability but are not trained to perform specific tasks. However, DOT 
expects that all service animals are trained to behave properly in a 
public setting.
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    \7\ 14 CFR 382.117(e).
    \8\ 14 CFR 382.27(c)(8).
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    Under the existing service animal regulations, it is generally not 
permissible to insist on written credentials or documentation for an 
animal as a condition for treating it as a service animal, except for 
an ESA or PSA. DOT requires airlines to accept animals as service 
animals based on the ``credible verbal assurances'' of the 
passengers.\9\ Airlines may also not charge for the transport of 
service animals.\10\
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    \9\ 14 CFR 382.117(d).
    \10\ 14 CFR 382.31(a).
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    The Department's disability rule permits airlines not to transport 
service animals that pose a direct threat to the health or safety of 
others or would cause a significant disruption of cabin service. In 
guidance referenced in the Department's service animal rule, DOT has 
advised airlines to observe the behavior of the service animal to 
determine if it is a properly trained animal as such an animal will 
calmly remain by its owner.\11\ The animal should not run freely, bark 
or growl at other persons, urinate or defecate in the gate area, or 
bite.\12\ Observing the behavior of the animal assists airline 
personnel in making a case-by-case determination as to whether the 
animal may pose a direct threat to the health or safety of others or 
may create a significant disruption in cabin service. Airlines are not 
required to accept for transport animals that do not behave properly in 
public, even if the animal performs an assistive function for a 
passenger with a disability or is necessary for the passenger's 
emotional well-being, as the animal could pose a direct threat to the 
health or safety of others and/or cause a significant disruption of 
cabin service.\13\
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    \11\
    \12\ See Guidance Concerning Service Animals, 73 FR 27614, 27659 
(May 13, 2008).
    \13\ Id. at 27658.
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    The Department's current service animal regulation does not contain 
a limitation on the number of service animals that may accompany an 
individual with a disability. The regulation references guidance that 
states that a single passenger legitimately may have two or more 
service animals.\14\ As a matter of enforcement discretion, the 
Department's Office of Aviation Enforcement and Proceedings has not 
taken action against airlines when airlines declined requests to 
transport more than three service animals for a

[[Page 23834]]

single passenger.\15\ DOT's service animal rule also does not contain 
any leash, tether, muzzle, or containment requirements. Prior DOT 
guidance explained that a requirement for a service animal to be 
muzzled or harnessed would be appropriate only as a means of mitigating 
a direct threat to the health or safety of others, such as muzzling a 
dog that barks frequently.\16\ As for transporting a service animal in 
a carrier, an order from the Federal Aviation Administration explained 
that a service animal may safely sit in the lap of its owner for all 
phases of flight, including ground movement, take-off, and landing if 
the service animal is no larger than a lap-held child (a child who has 
not reached his or her second birthday).\17\
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    \14\ Id. at 27661.
    \15\ DOT, Revised Service Animal Matrix, at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0150 (July 6, 
2016).
    \16\ See Guidance Concerning Service Animals in Air 
Transportation, 68 FR 24874, 24875 (May 9, 2003).
    \17\ Flight Standards Information Bulletin for Air 
Transportation (FSAT 04-01A), Order 8400.10 (July 23, 2004).
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Need for a Rulemaking

Consumer Complaints

    The Department continues to receive complaints from individuals 
with service animals. DOT received 110 service animal complaints in 
2016 and 70 service animal complaints in 2017 against airlines. In 
2016, the third highest disability complaint area concerned service 
animals, and in 2017, it was the fifth highest.\18\ U.S. and foreign 
airlines reported receiving 2,443 service animal complaints in 2016 and 
2,499 service animal complaints in 2017. This was the fourth largest 
disability complaint area for airlines during both years. Over 60 
percent of the service animal complaints received by the Department 
concern ESAs and PSAs. Most of the service animal complaints involving 
ESAs or PSAs are from passengers with disabilities who are upset that 
the airline is not accepting their animals for transport.
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    \18\ The four categories of disability service that typically 
receive the highest number of DOT-reported complaints are wheelchair 
assistance/transportation within the airport, delay/damage to 
assistive devices, seating accommodations, and service animals. See, 
e.g., https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/286306/2016-summary-totals-us-air-carriers_0.pdf In conjunction with 
stakeholders, the DOT has recently developed training material on 
all four of these topics for the benefit of both passengers and 
carrier personnel. See https://www.transportation.gov/individuals/aviation-consumer-protection/traveling-disability.
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Unusual Species

    The use of unusual species as service animals has also added 
confusion. Passengers have attempted to fly with peacocks, ducks, 
turkeys, pigs, iguanas, and various other types of animals as emotional 
support or service animals. Airlines have expressed concerns about the 
amount of attention and resources that are expended when having to 
accommodate unusual service animals. Disability rights advocates have 
voiced alarm that these animals may erode the public's trust, which 
could result in reduced access for many individuals with disabilities 
who use traditional service animals. Advocates have also expressed 
concern that these animals lack the ability to be trained to behave 
properly in a public setting.

Pets

    Many airlines also indicated that they believe passengers wishing 
to travel with their pets may be falsely claiming that their pets are 
service animals so they can take their pet in the aircraft cabin or to 
avoid paying a fee for their pets. The increase in the number of 
service animals in aircraft cabins has led some to believe that many of 
these animals are really pets but are being passed off as service 
animals. There is also concern that vests, harnesses, and other items, 
which traditionally have been considered to be physical indicators of a 
service animal's status, are easily purchased online by fliers trying 
to misrepresent their pets as service animals. Airlines have also 
reported to the Department that certain entities may, for a fee, be 
providing individuals with pets a letter stating that the individual is 
a person with a mental or emotional disability and that their animal is 
an ESA or PSA, when in fact they are not.

Misbehavior by Service Animals

    Airlines and airline associations have contacted the Department to 
express concerns that passengers are increasingly bringing untrained 
service animals onboard aircraft and putting the safety of crewmembers 
and other passengers at risk. According to one airline, there has been 
an 84 percent spike since 2016 in the number of behavior-related 
service animal problems, including urinating, defecating, or biting. 
Another airline reports that there has been a 75 percent increase in 
the number of emotional support animals that it transports when 
comparing calendar year 2016 to calendar year 2017. This airline 
appears to believe that this has resulted in a significant increase in 
onboard incidents. In addition, there have been a few highly-publicized 
reports of service animals biting passengers. While the current rule 
anticipates that airline personnel will assess service-animal behavior 
in the gate area and weed out misbehaving service animals prior to 
boarding the aircraft, airlines have indicated gate staff are 
oftentimes too busy to observe the behavior of service animals. 
Airlines also note that even if they were to observe an animal prior to 
entering the aircraft, the animal may act differently once exposed to 
the confinement in the cabin or once the aircraft departs.

Airport

    Another concern is the differences, in the airport terminal 
context, between DOT's ACAA regulations that apply to airlines, and 
their facilities and services, contrasted with the Department of 
Justice's (DOJ) Americans with Disabilities Act (ADA) regulations that 
apply to airports, and their facilities and services. DOJ's Title II 
rules for State and local governments govern airports owned by a public 
entity; DOJ's Title III rules for public accommodations and commercial 
facilities govern privately owned airports and airport facilities 
operated by businesses like restaurants and stores. DOJ defines 
``service animal'' as any dog that is individually trained to do work 
or perform tasks for the benefit of an individual with a disability, 
including a physical, sensory, psychiatric, intellectual, or other 
mental disability.\19\ Emotional support animals are not recognized as 
service animals under Title II and Title III of the ADA.\20\

[[Page 23835]]

However, under the ACAA, a service animal is any animal that is 
individually trained to provide assistance to a qualified person with a 
disability or any animal that assist persons with disabilities by 
providing emotional support.\21\ Consequently, a restaurant or store in 
an airport could, without violating DOJ rules, deny entry to a properly 
documented emotional support animal or service cat that an airline, 
under the ACAA, would have to accept. Further, some airports are 
exercising their authority under the ADA to require that emotional 
support animals be contained in a pet carrier when traversing through 
areas of the airport not owned, leased, or controlled by airlines.
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    \19\ See 28 CFR 36.104. Service animal means any dog that is 
individually trained to do work or perform tasks for the benefit of 
an individual with a disability, including a physical, sensory, 
psychiatric, intellectual, or other mental disability. Other species 
of animals, whether wild or domestic, trained or untrained, are not 
service animals for the purposes of this definition. The work or 
tasks performed by a service animal must be directly related to the 
individual's disability. Examples of work or tasks include, but are 
not limited to, assisting individuals who are blind or have low 
vision with navigation and other tasks, alerting individuals who are 
deaf or hard of hearing to the presence of people or sounds, 
providing non-violent protection or rescue work, pulling a 
wheelchair, assisting an individual during a seizure, alerting 
individuals to the presence of allergens, retrieving items such as 
medicine or the telephone, providing physical support and assistance 
with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and 
the provision of emotional support, well-being, comfort, or 
companionship do not constitute work or tasks for the purposes of 
this definition.
    \20\ See Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities, 75 FR 56236, 56269 
(September 15, 2010). ``In the final rule, the Department [of 
Justice] has retained its position on the exclusion of emotional 
support animals from the definition of ``service animal.''
    \21\ See Guidance Concerning Service Animals, 73 FR 27614, 27658 
(May 13, 2008).
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Request for Rulemaking

    The Psychiatric Service Dog Society (PSDS), an advocacy group 
representing users of psychiatric service dogs, petitioned the 
Department in 2009 to eliminate a provision in the Department's Air 
Carrier Access Act regulation that permitted airlines to require 
documentation and 48 hours' advance notice for users of psychiatric 
service animals.\22\ PSDS emphasized that the Department should not 
equate psychiatric service animals to emotional support animals. It 
noted that PSAs differ significantly from ESAs in that PSAs are trained 
to behave properly in public settings and trained to mitigate the 
effects of a mental health-related disability. PSDS also asserted that 
the Department is discriminating against and stigmatizing individuals 
with mental health-related disabilities who use PSAs by imposing 
additional procedural requirements on users of PSAs that are not 
imposed on service animals used by individuals with physical 
disabilities. PSDS further raised practical concerns with the current 
documentation requirement (e.g., financial hardship on PSA users 
without health insurance) and advance notice requirement (e.g., 
difficulty PSA users experience when they need to fly on short notice 
because of a family emergency). The Department subsequently issued a 
notice in the Federal Register seeking comment on the group's petition 
and related questions to assist the Department in determining whether 
to grant the petition by initiating a rulemaking or to deny the 
petition and retain the provision without change.\23\ Interested 
parties can read the entire petition and comments received at DOT-OST-
2009-0093. The Department is granting the petition by issuing this 
advance notice of proposed rulemaking.
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    \22\ See Psychiatric Service Dog Society, DOT-OST-2009-0093-0001 
at https://www.regulations.gov/document?D=DOT-OST-2009-0093-000 
(April 21, 2009).
    \23\ See 74 FR 47902, 47905 (September 18, 2009).
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    A few months ago, the Department also received a request to 
initiate a rulemaking to amend its service animal regulation from 
Airlines for America (A4A). A4A asks that DOT harmonize its service 
animal definition under its Air Carrier Access Act regulation with the 
DOJ's Americans with Disabilities Act regulation. A4A would also like 
the Department to allow airlines to require all service animal users to 
provide a letter from a licensed physician or mental health 
professional stating that the passenger is under his or her care for 
the condition requiring the service animal and specifying that the 
passenger needs the animal for an accommodation in air travel or at the 
passenger's destination. It asks that DOT delete all mentions in DOT's 
ACAA regulations or guidance suggesting that items such as vests, 
harnesses, ID cards, or other potential indicators other than a letter 
described above should be accepted as proof that the animal is 
qualified to be carried. A4A further asks that if DOT allows ESAs and 
PSAs, it limit the types of ESAs and PSAs that airlines are required to 
accommodate.\24\ In a subsequent letter to the Department, A4A stressed 
the need to amend the Department's service animal regulation to protect 
the health and safety of passengers and crew because of an increase in 
passengers bringing animals onboard that have not been properly trained 
as service animals. In that letter, A4A noted that it expects airlines 
will be taking the appropriate steps to ensure the safety and health of 
passengers and crew.\25\ In February 2018, ten disability advocacy 
organizations expressed concern to the Department with the revised 
service animal policies announced by two airlines and urged the 
Department to take action to stop the proliferation of patch work 
service animal access requirements.\26\
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    \24\ Comments of Airlines for America Part II--Proposals for 
Repeal or Amendment of Specific DOT Economic Regulations, DOT, DOT-
OST-2017-0069-2751, 26-32 at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751 (December 1, 2017).
    \25\ Letter from Sharon L. Pinkerton, Airlines for America, to 
James Owens, Deputy General Counsel, Department of Transportation 
(January 31, 2018) at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0314.
    \26\ Letter to Secretary Chao from American Association of 
People with Disabilities, Bazelon Center for Mental Health Law, 
Christopher and Dana Reeve Foundation, Disability Rights Education 
and Defense Fund, National Association of the Deaf, National 
Disability Rights Network, Paralyzed Veterans of America, The Arc of 
the United States, The National Council on Independent Living, and 
United Spinal Association (February 6, 2018) at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0315.
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    In response to the President's direction in Executive Orders (E.O.) 
13771, E.O. 13777, and E.O. 13783, as well as other legal authorities, 
the Department published a Notice of Regulatory Review in the Federal 
Register on October 2, 2017, inviting public comment on existing rules 
and other agency actions that are good candidates for repeal, 
replacement, suspension, or modification. \27\ The Department received 
comments from airlines and airline associations regarding the need to 
revise the Department's ACAA service animal regulations, raising a 
number of issues that will be explored in this rulemaking.\28\
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    \27\ 82 FR 45750 (Oct. 2, 2017).
    \28\ See, e.g., Comment from Airlines for America at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751 (December 4, 
2017); Comment from International Air Transport Association at 
https://www.regulations.gov/document?D=DOT-OST-2017-0069-2697 
(December 1, 2017); Comment from Kuwait Airways at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2679 (December 1, 
2017); and Comment from National Air Carrier Association at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2771 (December 4, 
2017).
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FAA Extension, Safety and Security Act of 2016

    The FAA Extension, Safety, and Security Act of 2016 requires that 
the Department issue a supplemental notice of proposed rulemaking on 
five issues--(1) supplemental medical oxygen; (2) service animals; (3) 
accessible lavatories on single-aisle aircraft; (4) carrier reporting 
of disability service requests; and (5) seating accommodations. With 
respect to service animals, the rulemaking needs to address, at a 
minimum, species limitations and the documentation requirement for 
users of emotional support and psychiatric service animals.\29\
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    \29\ FAA Extension Safety and Security Act of 2016, 114 Public 
Law 190, Section 2108 (July 15, 2016); In-Flight Medical Oxygen and 
other ACAA issues, RIN 2015-AE12, https://cms.dot.gov/regulations/significant-rulemaking-report-archive (June 2016).
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ACCESS Advisory Committee

    In April 2016, DOT established an Advisory Committee on Accessible 
Air Transportation (ACCESS Advisory

[[Page 23836]]

Committee) to negotiate and develop a proposed rule concerning 
accommodations for air travelers with disabilities addressing in-flight 
entertainment/communications, accessible lavatory on new single-aisle 
aircraft, and service animals.\30\ The ACCESS Advisory Committee, 
comprised of 27 members, was tasked with submitting three 
recommendations to the Department--one on each of the three separate 
issues. Because the negotiations address three disparate issues and 
some Committee members did not have a stakeholder and/or expert 
interest with respect to certain issues, each Committee member 
determined for himself or herself whether they would work on one or 
more of the issues. Of the 27 Committee members, 19 had stakeholder 
and/or expert interest with respect to service animals and actively 
worked on service animal issues. These members represented a balanced 
cross-section of significantly affected stakeholder interests.\31\
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    \30\ 81 FR 20265 (Apr. 7, 2016).
    \31\ The 19 ACCESS Advisory Committee members on the service 
animal subcommittee were from the following organizations: United 
Airlines; National Council on Independent Living (NCIL); National 
Disability Rights Network; National Federation of the Blind (NFB); 
National Air Carrier Association; Jet Blue Airlines; Association of 
Flight Attendants-CWA; International Air Transport Association; West 
Jet Airlines; Delta Air Lines; Psychiatric Service Dog Partners 
(PSDP); Lufthansa Airlines; Paralyzed Veterans of America (PVA); 
Frontier Airlines; National Alliance on Mental Illness (NAMI); Guide 
Dog Foundation for the Blind (GDFB); American Council of the Blind 
(ACB); Regional Airline Association; and U.S. Department of 
Transportation. These organizations were selected to represent not 
only the interest of that individual's own organization but rather 
the collective stakeholder interests of organizations in the same 
stakeholder category.
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    Despite good faith efforts, the ACCESS Advisory Committee was not 
able to reach consensus on how the service animals regulations should 
be revised. Nevertheless, the Department was able to gather useful 
information during this process from disability rights advocates, the 
airline industry, an association representing flight attendants, and 
other interested parties. The Committee members and other interested 
parties spent considerable time discussing the following issues: (1) 
Distinguishing between emotional support animals and other service 
animals; (2) limiting the species of service animals that airlines are 
required to transport; (3) limiting the number of service animals that 
a single individual should be permitted to transport; and (4) requiring 
attestation from all service animal users that their animal has been 
trained to behave in a public setting. Each of these issues are 
discussed in turn.

Emotional Support Animals--Species Limitation and Containment

    Airlines uniformly opposed the continued recognition of ESAs in the 
ACAA context, as they are not recognized under the ADA.\32\ Carriers 
urged DOT to harmonize its definition of service animal under the ACAA 
with the DOJ definition of service animal under the ADA by eliminating 
ESAs and limiting service animals to dogs and where reasonable 
miniature horses.\33\ Carriers also proposed eliminating access for 
emotional support animals as they consider these animals to cause most 
in-flight disruptions.
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    \32\ Carrier Response to Revised Service Animal Proposal, August 
31,2016 (Revised September 8, 2016), at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0209. (September 8, 2016).
    \33\ DOJ, while not recognizing miniature horses as service 
animals, requires that entities covered by the ADA permit 
individuals with disabilities to use miniature horses where 
reasonable if the miniature horse has been individually trained to 
do work or perform tasks for the benefit of the individual with a 
disability. See 28 CFR 36.302.
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    Advocates were united in supporting access for emotional support 
animals under the ACAA and wanted a legal classification for ESAs 
separate from service animals in recognition of the fact that emotional 
support animals are not trained to perform work or tasks to mitigate 
disability.\34\ However, they disagreed about which species should be 
allowed access as emotional support animals and what type of access 
they should have.
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    \34\ Service Animal Advocates Position and Reasoning at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0208 (September 15, 
2016).
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    Two disability organizations--International Association of Canine 
Professionals and Assistance Dogs International--proposed limiting ESAs 
to cats and dogs and requiring that they be in approved pet carriers 
for the duration of a passenger's flight unless needed for disability 
mitigation. These two organizations stated that they do not support 
including rabbits as ESAs because rabbits may excrete out of the 
carrier.\35\ Five disability organizations--Psychiatric Service Dog 
Partners, Guide Dog Foundation for the Blind, Open Doors Organization, 
National Multiple Sclerosis Society, Guide Dog Users, Inc.--proposed 
limiting ESAs to dogs, cats, and rabbits and requiring that they be 
contained in approved pet carriers, except when needed for disability 
mitigation. They stated that cats and dogs are common emotional support 
animals, and rabbits should also be included as they can have soothing 
tendencies beyond those of cats and dogs. They were opposed to 
extending ESA status to other animals as they believe employee training 
and expertise on service animals have limits and are concerned that the 
proliferation of nontraditional species as service animals would erode 
public trust toward service animal users generally.\36\
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    \35\ Id. at 15.
    \36\ Id. at 7.
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    Six other disability organizations--Paralyzed Veterans of America, 
National Alliance on Mental Illness, National Federation of the Blind, 
Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, 
Easterseals--wanted household birds to also be recognized as ESAs and 
were in favor of containment for cats, rabbits, and birds, except when 
needed for disability mitigation.\37\ They asserted that emotional 
support dogs that are trained to behave in public, but not trained to 
provide disability mitigation,\38\ do not require a pet carrier. The 
advocates all stated that when the emotional support animal is 
providing disability mitigation, the animal should be tethered to the 
handler and under control of the handler.\39\
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    \37\ Id. at 12.
    \38\ The ACCESS Committee discussions brought to light the 
distinction between disability mitigation training, which is 
training designed to teach service animals how to assist an 
individual with his or her disability, and public access training, 
which is training designed to teach a service animal how to behave 
properly in a public setting. For instance, an animal that has 
received disability mitigation training knows how to guide a 
passenger with a vision impairment, retrieve an item for a passenger 
with a mobility impairment, or perform a task or function to assist 
an individual with a disability with his or her needs. Service 
animals that have received proper public access training would not 
attack or bite people or animals, urinate or defecate in the gate 
area or on the aircraft, growl or lunge at people or other animals, 
or exhibit other signs of misbehavior.
    \39\ Id. at 4 and 12.
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    Airlines and the flight attendant association urged the Department 
to allow airlines to require that ESAs that fit in pet carriers be kept 
there for the duration of the flight, if airlines are required to 
continue carrying ESAs. The airlines and flight attendant association 
stated that it would be difficult to enforce a rule that allowed ESAs 
to be out of the carrier when providing disability mitigation as it 
would necessitate a subjective assessment by flight attendants as to 
the reason the ESA is not in the carrier. They also expressed concern 
about the ability of airline personnel to distinguish between ESAs and 
PSAs as airline personnel have not been trained to recognize the 
difference between these animals.

Service Animals--Species Limitation

    There was a consensus among ACCESS Committee members that the

[[Page 23837]]

Department should limit the types of species recognized as service 
animals (including PSAs) and that this limit would provide greater 
predictability and added assurance of access for individuals with 
disabilities with legitimate service animals. The discussion about the 
type of animal that should be recognized as a service animal focused on 
dogs, miniature horses, capuchin monkeys, and cats. While there was no 
agreement on whether all the animals should be recognized as service 
animals, there was agreement that other animals should not be allowed 
as service animals.
1. Dogs
    Representatives of airlines and certain disability organizations 
(Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind & 
America's VetDogs, International Association of Canine Professionals 
(IACP), Open Doors Organization, National Federation of the Blind, 
Assistance Dogs International, and Guide Dog Users, Inc.) supported 
limiting coverage of service animals to dogs.\40\
---------------------------------------------------------------------------

    \40\ Service Animal Advocates Position and Reasoning, p. 1 and 2 
at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0208 
(September 15, 2016).
---------------------------------------------------------------------------

2. Capuchin Monkeys
    Disability groups supported recognizing capuchin monkeys as service 
animals,\41\ with a requirement that they must be kept in a pet carrier 
due to their unpredictable aggressive behavior. Capuchin monkeys 
provide in-home services to individuals with paraplegia and 
quadriplegia and are used by individuals with disabilities primarily or 
exclusively in their homes. Those who support recognizing capuchin 
monkeys as service animals pointed out that they can perform manually 
dexterous work or tasks that dogs and miniature horses cannot. It was 
also pointed out that air travel for these monkeys as service animals 
could be limited to when individuals with disabilities have to leave 
home due to an emergency or for the initial delivery of the monkey to 
the individual with a disability.
---------------------------------------------------------------------------

    \41\ Id. at 1, 4 and 6. See Service Animal -Helping Hands Monkey 
Helper Presentation at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0182 (August 26, 2016). See also Carrier Response to 
Revised Service Animal Proposal 31 August Revised 8 September, p.2 
at (https://www.regulations.gov/document?D=DOT-OST-2015-0246-0209) 
(September 8, 2016).
---------------------------------------------------------------------------

3. Miniature Horses
    There was also general support among disability rights advocates to 
provide, on a case-by-case basis, access to miniature horses trained to 
provide disability mitigation.\42\ Miniature horses have specific 
features that make them a better choice for some persons with 
disabilities--longer working life, allergen avoidance, religious 
conformance, and soundness of structure for mobility work.
---------------------------------------------------------------------------

    \42\ Service Animal Advocates Position and Reasoning, p. 1, 3, 
4, 5 and 6 at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0208 (September 15, 2016).
---------------------------------------------------------------------------

4. Cats
    Some disability rights organizations (Paralyzed Veterans of 
America, National Alliance on Mental Illness, Autistic Self Advocacy 
Network, Bazelon Center for Mental Health Law, Easterseals, National 
Multiple Sclerosis Society) supported recognizing cats as service 
animals as there was a suggestion that cats provide disability 
mitigation related to seizure alert.
    Airlines and certain other disability rights organizations 
(Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind & 
America's VetDogs, International Association of Canine Professionals 
(IACP), Open Doors Organization, National Federation of the Blind, 
Assistance Dogs International, Guide Dog Users, Inc.) opposed 
recognizing cats as service animals as they are not recognized as 
service animals under the ADA and the information about cats' ability 
to alert individuals of seizures was limited.\43\ There was also 
concern expressed that the popularity of cats as pets would open the 
door for fraud if they are an allowed species.
---------------------------------------------------------------------------

    \43\ Id. at 2. See also Carrier Response to Revised Service 
Animal Proposal 31 August Revised 8 September, p.2 at (https://www.regulations.gov/document?D=DOT-OST-2015-0246-0209), (September 
8, 2016).
---------------------------------------------------------------------------

Number of Service Animals Per Passenger

    During the negotiations, the advocates and airlines both appeared 
to agree that reasonable restrictions should be imposed on the number 
of service animals that one passenger should be permitted to carry. On 
balance, the advocates and airlines also appeared to agree that certain 
passengers may have a legitimate need to travel with more than one 
service animal. Both the airlines and advocates appear to support a 
requirement that a passenger seeking to travel with more than one 
service animal may be required to provide reasonable justification to 
the airline as to the passenger's need to do so. However, there did not 
appear to be agreement on what would constitute reasonable 
justification. The airlines also supported a limit of two service 
animals for any single passenger.\44\ There did not appear to be 
agreement from the advocates on the number of service animals that a 
single passenger should be allowed to carry.
---------------------------------------------------------------------------

    \44\ Id. at 3.
---------------------------------------------------------------------------

Documentation/Attestation

    Various disability rights advocates have stated that a top goal is 
the elimination of the current DOT requirement to provide medical 
documentation as a condition of access for users of PSAs and ESAs. As a 
possible alternative to the documentation requirements for ESAs and 
PSAs in the current rule, the advocates on the committee proposed the 
use of a ``Decision Tree'' model. Under this model, all individuals 
with a disability who wished to travel with a service animal would fill 
out an online questionnaire, wherein they would provide answers to 
questions targeted toward assisting the airline to determine specifics 
about the service animal/emotional support animal in question (e.g., 
species of animal, whether the animal is a service animal or an 
emotional support animal, and number of animals). During this process, 
information would also be provided to the passenger regarding his or 
her responsibilities when traveling with a service animal (e.g., how a 
service animal should behave and the consequences for fraudulently 
representing a pet as a service animal).\45\
---------------------------------------------------------------------------

    \45\ Service Animal Advocates Position and Reasoning, p. 16 at 
https://www.regulations.gov/document?D=DOT-OST-2015-0246-0208 
(September 15, 2016).
---------------------------------------------------------------------------

    The majority of the U.S. airlines appeared to be receptive to the 
idea of the decision tree, but would only accept that option as an 
alternative to the current documentation requirements if it were made 
mandatory for all individuals with a disability traveling with a 
service animal to complete as a condition of travel, and if it included 
strong language designed to dissuade individuals from committing fraud 
by plainly stating the consequences that would follow should an 
individual attempt to falsely claim that their pet is a service 
animal.\46\ The advocates were mostly opposed to making the decision 
tree mandatory because they believed that making it mandatory would 
increase the burden for service animal users who, under the current 
rule, are not required to provide documentation

[[Page 23838]]

or advance notice when traveling with a service animal. The foreign 
airlines appeared not to support the decision tree model even if 
mandatory.
---------------------------------------------------------------------------

    \46\ See Carrier Response to Revised Service Animal Proposal 31 
August Revised 8 September, p.1 at (https://www.regulations.gov/document?D=DOT-OST-2015-0246-0209), (September 8, 2016).
---------------------------------------------------------------------------

    Various suggestions were made as possible compromises, including a 
mandatory attestation statement that all individuals traveling with a 
service animal would certify in lieu of the proposed decision tree or 
existing documentation requirement for PSAs and ESAs. Under this 
alternative, individuals with disabilities traveling with a service 
animal would certify that their animal is a service animal on a one-
page online certification form. The attestation language would serve 
the dual purpose of: (1) Educating individuals on what a service animal 
is and who is permitted to bring a service animal on board; and (2) 
dissuading individuals from trying to falsely claim that their pet is a 
service animal. It was also suggested that the attestation be saved in 
a traveler's profile so that a passenger would not be subject to the 
certification process repeatedly.
    The advocates and the airlines appeared to support the attestation 
model as a deterrent to individuals who might seek to falsely claim 
that their pets are service animals.\47\ However, the airlines also 
sought an additional requirement that individuals attest to having been 
diagnosed by a third party as having a disability. The advocates were 
not in favor of adding this requirement, arguing that that the term 
``disability'' is a legal term and that all individuals with 
disabilities may not have necessarily received such a diagnosis, e.g., 
a blind person does not typically receive a diagnosis that he or she is 
blind. Discussions eventually reached a stalemate on this point and the 
ACCESS Committee members voted to discontinue discussions on the 
service animal issue.
---------------------------------------------------------------------------

    \47\ Service Animal-Vote Tally Sheet-3rd Party Documentation, 
Mandatory Attestation, at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0281.
---------------------------------------------------------------------------

Request for Data and Comments

    In this ANPRM, the Department solicits comment on the following 
issues: (1) Whether psychiatric service animals should be treated 
similar to other service animals; (2) whether there should be a 
distinction between emotional support animals and other service 
animals; (3) whether emotional support animals should be required to 
travel in pet carriers for the duration of the flight; (4) whether the 
species of service animals and emotional support animals that airlines 
are required to transport should be limited; (5) whether the number of 
service animals/emotional support animals should be limited per 
passenger; (6) whether an attestation should be required from all 
service animal and emotional support animal users that their animal has 
been trained to behave in a public setting; (7) whether service animals 
and emotional support animals should be harnessed, leashed, or 
otherwise tethered; (8) whether there are safety concerns with 
transporting large service animals and if so, how to address them; (9) 
whether airlines should be prohibited from requiring a veterinary 
health form or immunization record from service animal users without an 
individualized assessment that the animal would pose a direct threat to 
the health or safety of others or would cause a significant disruption 
in the aircraft cabin; and (10) whether U.S. airlines should continue 
to be held responsible if a passenger traveling under the U.S. 
carrier's code is only allowed to travel with a service dog on a flight 
operated by its foreign code share partner.
    The Department is committed to ensuring access for service animal 
users on aircraft but also recognizes that airlines have a 
responsibility to ensure the health, safety, and welfare of passengers 
and employees. The Department requests data on the number of service 
animals that travel by air annually and the number of behavior-related 
service animal problems that occur annually. The Department also 
requests this data separately for emotional support animals if 
available. The Department is taking this action to ensure that the air 
transportation system is safe and accessible for everyone.

1. Psychiatric Service Animals

    Should the DOT amend its service animal regulation so psychiatric 
service animals are treated the same as other service animals? DOT's 
current service animal regulation allows airlines to require a user of 
a psychiatric service animal or emotional support animal to provide 
airlines with medical documentation and up to 48 hours' advance notice 
prior to travel. This provision was adopted to address the problem of 
passengers attempting to pass their pets as ESAs or PSAs so they can 
travel for free in the aircraft cabin. We seek comments from airlines 
and other interested persons about their experiences with passengers 
attempting to pass off pets as service animals, especially as it may 
relate to PSAs.
    Many PSA users feel that the DOT requirement stigmatizes and 
discriminates against people with mental health-related disabilities 
because individuals with physical disabilities or hidden medical 
disabilities who use service animals do not have to provide the same 
documentation as a service animal user with a mental health disability. 
What, if any, experience do airlines have with people attempting to 
bring pets on board aircraft based on claims that the animals are 
service animals for disabilities that are not readily apparent other 
than mental health-related conditions, such as seizure disorders or 
diabetes?
    Also, PSAs are recognized as a service animal under DOJ's ADA 
regulation. Under the ADA regulations, the regulated entities may not 
require documentation as a condition for entry for service animals 
including PSAs. Should DOT harmonize its service animal regulation 
under the ACAA with DOJ's ADA service animal regulation and prohibit 
airlines from requiring PSA users to provide a letter from a licensed 
mental health professional as a condition for travel? If airlines are 
no longer allowed to require medical documentation from PSA users, what 
effective alternative methods are there to prevent fraud? For example, 
if there is no medical documentation requirement for PSAs but such a 
requirement remains for ESAs, what would prevent individuals from 
asserting that their ESA is a PSA? How would airline personnel be able 
to distinguish between a PSA and an ESA? We invite the public, 
particularly service animal users, to propose methods of detecting and 
preventing fraud that they believe are feasible alternatives to the 
current medical documentation requirements for PSAs. The Department 
notes that the ACAA is a specialized statute that applies to an 
environment where many people are confined within a limited space for 
what may be a prolonged time. Is that sufficient reason for DOT's 
treatment of PSAs under its ACAA regulation to differ from that of DOJ 
under its ADA regulation? What are the practical implications of no 
longer allowing airlines to require medical documentation from PSA 
users?
    Psychiatric Service Dog Partners, Guide Dog Foundation for the 
Blind and America's VetDogs (United Service Animal Users) have provided 
the Department a report regarding the burden on PSA users of the 
current system's focus on third-party documentation. According to the 
report submitted by the United Service Animal Users, the average cost 
to a service animal user to obtain medial documentation is $156.77 and 
it takes an average of 31 days to obtain such a documentation. United 
Service Animal Users states that more than 75% of

[[Page 23839]]

individuals surveyed have either not flown or flown less because of 
this requirement.\48\ Do you agree with the data in this report? 
Explain the basis of your agreement or disagreement. Do the costs to 
users of PSAs of providing medical documentation outweigh the benefits 
to airlines of requiring such documentation?
---------------------------------------------------------------------------

    \48\ See ACAA Third Party Documentation Requirements: Survey of 
Psychiatric-Disability-Mitigating Users at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0296.
---------------------------------------------------------------------------

    Regarding the 48 hours' advance notice requirement for PSAs and 
ESAs, the Department put in place that requirement to provide airlines 
sufficient time to review and determine the validity of the medical 
documentation provided by the passenger. If the Department were no 
longer to allow airlines to require medical documentation from a PSA 
user, should the 48 hours' advance notice requirement be eliminated? We 
solicit comment on whether there is any reason to retain the advance 
notice requirement for PSAs if there is no longer a documentation 
requirement for PSAs. Also, what has been the impact of the 48 hours' 
notice requirement on individuals with psychiatric service animals?

2. Emotional Support Animals

    The Department is seeking comment on whether it should continue to 
include ESAs in its definition of a service animal under the ACAA. ESAs 
are not recognized as service animals in regulations implementing the 
ADA. Unlike other service animals, ESAs are not trained to perform a 
specific active function, such as pathfinding, picking up objects, or 
responding to sounds. This has led some service animal advocacy groups 
to question their status as service animals and has led to concerns by 
carriers that permitting ESAs to travel in the cabin has opened the 
door to abuse by passengers wanting to travel with their pets. Airlines 
also assert that DOT should exclude emotional support animals from its 
definition of a service animal under the ACAA to be consistent with the 
definition of service animal under the ADA.
    Others favored keeping emotional support animals as a separate and 
distinct category from service animals that are still entitled to 
protections under the ACAA. For example, the U.S. Department of Housing 
and Urban Development (HUD), which enforces the Fair Housing Act 
regulations, considers animals that provide emotional support to 
persons with disabilities to be assistance animals.\49\ HUD allows 
housing providers to require a letter from a medical doctor or 
therapist to demonstrate that the animal is a legitimate assistance 
animal. The Department seeks comment on whether the amended definition 
of a service animal should include emotional support animals. 
Alternatively, the Department seeks comment on whether emotional 
support animals should be regulated separately and distinctly from 
service animals? If yes, should DOT allow airlines to require ESA users 
to provide a letter from a licensed mental health professional stating 
that the passenger is under his or her care for the condition requiring 
the ESA and specifying that the passenger needs the animal for an 
accommodation in air travel or at the passenger's destination? Would 
such a documentation requirement be stringent enough to prevent 
individuals who do not have disabilities from skirting the rules by 
falsely claiming that their pets are ESAs? Suggestions are welcome on 
approaches to minimize the use of letters from licensed mental health 
professionals that enable passengers without disabilities to evade 
airline policies on pets. Are there other types of documents or proof 
that could be required for carriage of ESAs in the passenger cabin that 
would be just as effective? Is advance notice of a passenger's intent 
to travel with an ESA needed to provide the airline time to review 
documents or other proof? If the documentation needed to fly with an 
ESA is rigid, would ESA users be less likely to fly and choose other 
modes of transportation? The Department seeks comment on the practical 
implications of these options.
---------------------------------------------------------------------------

    \49\ See Service Animals and Assistance Animals for People with 
Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-
2013-01 at https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf, (April 25, 2012).
---------------------------------------------------------------------------

3. Containment of Emotional Support Animals

    If DOT adopts a rule that continues to require that ESAs be 
accepted for transport in the aircraft cabin, should DOT allow airlines 
to require that ESAs be in carriers for the duration of a flight? There 
appears to be a belief among airlines, a flight attendant association, 
and others that the increase in misbehavior by service animals on 
aircraft is largely attributed to the increase in use of emotional 
support animals. DOT requests any available information to confirm or 
dispel this belief. Further, because the ADA does not require airports 
to recognize or allow ESAs as service animals, some airports are 
requiring that emotional support animals be contained in a pet carrier 
when traversing through areas of the airport not owned, leased, or 
controlled by airlines. Considering these concerns, the Department 
seeks comment on when, if at all, should emotional support animals be 
contained in a pet carrier. What should be done if the emotional 
support animal is too large to fit in a pet carrier? Commenters should 
also consider that recent changes to aircraft configuration and 
seating, e.g., economy seating vs. seating with extra leg room, means 
that there may be limitations with respect to containment requirements 
given the availability of passenger foot space.

4. Species Limitations

    The Department seeks comment on what, if any, limitations on 
species should be imposed for service animals/emotional support 
animals. All major stakeholders--disability rights advocates, airlines, 
flight attendant associations--appear to agree that limiting the types 
of species recognized as service animals would provide greater 
predictability and prevent the erosion of the public's trust which 
could reduce access for individuals with disabilities. Some prefer that 
the Department limit coverage of service animals to dogs, which are the 
most common service animals used by individuals with disabilities. This 
is consistent with the DOJ definition of service animals under the ADA 
and the existing ACAA requirement for the type of service animal that 
foreign air carriers are required to transport. It is also our 
understanding that service dogs are by far the dominant type of animals 
used to assist individuals with disabilities. Although accounts of 
unusual service animals receive wide publicity, cases of unusual 
service animals, such as turkeys and pigs, being transported on 
aircraft are not common. As such, would limiting the species of 
recognized service animals to dogs cause harm to individuals with 
disabilities? We request data, if available, about the type of service 
animals that airlines transport year-over-year. The Department also 
seeks comment on whether any safety-related reasons specific to foreign 
carriers may preclude the carriage of service animals other than dogs 
on their flights.
    Others would like for capuchin monkeys and miniature horses to also 
be recognized as service animals or, in the alternative, provided 
access on a case-by-case basis. Some individuals with disabilities 
prefer miniature horses to dogs because of allergies to dogs,

[[Page 23840]]

religious reasons, or because miniature horses live longer, have 
excellent vision, and are better at assisting their owners with balance 
while walking. While DOJ does not recognize miniature horses as service 
animals, entities covered by the ADA are required to modify their 
policies to permit miniature horses where reasonable.\50\ Those who 
advocate for recognizing a capuchin monkey as a service animal 
emphasize how essential the capuchin monkeys are in caring for 
individuals who are paralyzed or otherwise limited in mobility. DOJ, in 
deciding not to recognize capuchin monkeys in its definition of service 
animals for purposes of its regulation implementing the ADA noted 
``their potential for disease transmission and unpredictable aggressive 
behavior.'' 75 FR 56164, 56194 (September 5, 2010). Subject to existing 
applicable health and safety regulations,\51\ should the DOT designate 
capuchin monkeys or miniature horses as service animals under the ACAA? 
Can the health and safety concerns related to capuchin monkeys be 
adequately addressed if there was a requirement that these animal 
travel in pet carriers? The Department also seeks comment on whether 
any amended service animal rule should designate cats or any other 
animal as eligible species to be a service animal.
---------------------------------------------------------------------------

    \50\ See 28 CFR 36.302.
    \51\ The Centers for Disease Control and Prevention's (CDC) 
regulation on the importation of nonhuman primates prohibits the 
importation of a nonhuman primate, which includes capuchin monkeys, 
into the United States unless the person is a registered importer 
with the CDC. See 42 CFR71.53.
---------------------------------------------------------------------------

    If the Department were to adopt a rule that continues to require 
airlines to accept ESAs for transport, what species of animals should 
be accepted as ESAs? During the Department's ACCESS Committee meetings, 
the four species that were mentioned as possibilities are dogs, cats, 
rabbits, and household birds. Should the Department limit the transport 
of ESAs to dogs particularly if a service animal is defined to be a 
dog? What is the impact on passengers with disabilities if an ESA is 
limited to dogs? Are cats, rabbits, and birds common emotional support 
animals? Are there any other emotional support animals that are widely 
used by individuals with disabilities?

5. Number of Service Animals Per Passenger

    The Department's service animal rule does not limit the number of 
service animals that one passenger may bring on an aircraft. A single 
passenger legitimately may have more than one service animal. For 
example, a person who is deaf and has panic attacks may use one service 
animal to alert him or her to sounds and another to calm him or her. A 
person may also need more than one animal for the same task, such as 
assisting with stability when walking. However, the Department's Office 
of Aviation Enforcement and Proceedings, as a matter of prosecutorial 
discretion, has chosen not to pursue action against carriers that 
refuse to accept more than three service animals per person. The 
Department seeks comment on whether to limit the number service 
animals/emotional support animals that a single passenger may carry 
onboard a flight. If so, what should the number limit be? The 
Department also seeks comment on whether justification should be 
required for a single passenger to be allowed to carry more than one 
service animal/emotional support animal. If so, what would the 
parameters of that justification be?

6. Social Behavior Training

    A4A and others have urged the Department to revise its service 
animal regulation to address an increase in passengers bringing animals 
onboard that have not been appropriately trained as service 
animals.\52\ The guidance document referenced in the Department's 
service animal regulation states that an animal that engages in 
disruptive behavior, such as running around freely in the aircraft or 
airport, barking, or growling repeatedly at people, biting, and jumping 
on people, or urinating or defecating in the cabin or gate area, shows 
that it has not been successfully trained to function as a service 
animal in a public setting. Airlines are not required to accept for 
transport animals that do not behave properly in public; on the other 
hand, the regulation does not specify how an airline can be assured 
that a service animal has been trained to behave appropriately in a 
public setting. Airlines also explained of the difficulties their 
employees experience in observing animal behavior prior to a flight 
given the lack of staffing and the hectic and time-sensitive nature of 
air travel. The Department seeks comment on whether it should amend its 
service animal regulation to allow airlines to require that all service 
animal users attest that their animal can behave properly in a public 
setting. The Department also solicits comments on alternatives to a 
documentation requirement to assess the service animal's behavior.
---------------------------------------------------------------------------

    \52\ Comments of Airlines for America Part II--Proposals for 
Repeal or Amendment of Specific DOT Economic Regulations, DOT, DOT-
OST-2017-0069-2751 at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751, (January 31, 2018).
---------------------------------------------------------------------------

    The ADA prohibits covered entities from requiring documentation, 
such as proof that the service animal has been trained to behave 
appropriately as a condition for entry. Is the need for assurance that 
the service animal can behave properly greater in air travel, as air 
travel involves people being in a limited space for a prolonged period 
without the ability to freely leave once onboard the aircraft? Would a 
provision allowing airlines to require service animal users attest that 
their animal has been successfully trained to function as a service 
animal in a public setting reduce the safety risk that passengers, 
airline staff, and other service animals face from untrained service 
animals? What is the impact on individuals with disabilities of 
allowing airlines to require attestation as a condition for permitting 
an individual to travel with his or her service animal? If such a 
provision is allowed, should airlines be able to require the 
attestation in advance of travel? How long in advance of travel? What 
options exist for preventing any advance documentation requirement from 
being a barrier to travel for people with disabilities? What is the 
proper balance between ensuring passengers with disabilities do not 
encounter barriers to air travel and protecting the health and safety 
of passengers and airline crew? If DOT allows airlines to require 
attestation that an animal has received public access training, should 
the attestation be limited to certain types of service animals? Why or 
why not?

7. Control of the Service Animal

    DOT expects that a service animal will be under the control of its 
user, but DOT's service animal regulation does not contain any leash, 
tether, or harness requirement. We seek comment on whether tethering or 
other similar restrictions should be a condition for permitting travel 
with a service animal. The DOJ's service animal regulation requires 
that dogs and miniature horses be harnessed, leashed or tethered unless 
the device interferes with the animal's work or the individual with a 
disability is unable to hold a tether because of his or her disability. 
In such cases, the individual with a disability may control his service 
animal by some other means, such as voice control. Should DOT adopt a 
similar requirement? Would such a requirement further minimize the 
likelihood of unwelcome or injurious behavior by a service animal to 
other passengers or airline staff? What are the

[[Page 23841]]

advantages or disadvantages in adopting this type of requirement?

8. Large Service Animals

    Airlines have also expressed safety concerns about large service 
animals in the cabin, particularly large emotional support animals that 
have not received disability-mitigation training. Some airlines have 
urged the Department to consider instituting size and weight 
restrictions for emotional support animals. The current rule 
contemplates that a service animal would not be permitted to accompany 
its user at his or her seat if the animal blocks a space that, per FAA 
or applicable foreign government safety regulations, must remain 
unobstructed (e.g., an aisle, access to an emergency exit) and the 
passenger and animal cannot be moved to another location where such a 
blockage does not occur. The Department provides guidance in the 
current rule that if the passenger and animal cannot be moved, carriers 
should first talk with other passengers to find a seat location where 
the service animal and its user can be agreeably accommodated (e.g., by 
finding a passenger who is willing to share foot space with the 
animal).\53\
---------------------------------------------------------------------------

    \53\ See Guidance Concerning Service Animals, 73 FR 27614, 27660 
(May 13, 2008).
---------------------------------------------------------------------------

    While the Department previously concluded that a service animal's 
reasonable use of a portion of an adjacent seat's foot space does not 
deny another passenger effective use of the space for his or her feet 
and is not an adequate reason for the carrier to refuse to permit the 
animal to accompany its user at his or her seat, some airlines have 
indicated that passengers feel pressured to agree to such an 
arrangement and have later expressed to airline personnel their 
dissatisfaction at having to share their foot space. The Department 
seeks comment on whether it should allow airlines to limit the size of 
emotional support animals or other service animals that travel in the 
cabin and the implications of such a decision. The Department also 
seeks comment on whether passengers would find it burdensome to share 
foot space with service animals and what concerns passengers might have 
with such an arrangement.

9. Veterinary Forms

    Recently, a few airlines have begun requiring service animal users 
to provide information about their animal's health and behavior as a 
condition for travel. These airlines state that there has been a 
significant increase in the number of service animal/emotional support 
animal transportation requests they receive as well as an increase in 
reported animal incidents of misbehavior, including urination, 
defecation, and biting. The airlines assert that the health and 
behavior records of the animals are necessary to protect their 
customers, employees and other service animals on board aircraft should 
they be bitten.\54\ They also contend that producing animal health 
records would not be burdensome for service animal users as most, if 
not all, States require animals to be vaccinated. We ask airlines for 
available data on how many incidents of misbehavior, particularly 
incidents of biting, airlines have experienced, as well as any data 
demonstrating an increase in these incidents. What amount of increase 
in animal misbehavior, if any, is sufficient to warrant a general 
requirement for a veterinary form regarding the health and behavior of 
a service animal without an individualized assessment that a service 
animal or emotional support animal would pose a direct threat to the 
health or safety of others or would cause a significant disruption in 
the aircraft cabin? We ask passengers with disabilities to provide 
information regarding what, if any, burdens may exist should they be 
required to submit veterinary forms related to the health or behavior 
of their service animal.
---------------------------------------------------------------------------

    \54\ An airline may refuse transportation of a service animal if 
the animal would pose a direct threat to the health or safety of 
others. However, the Department's regulation does not clearly 
specify whether airlines must make this direct threat assessment on 
an individualized case-by-case basis. The DOT guidance document 
referenced in the regulation does suggest that the direct threat 
should be individualized as it states that the analysis should be 
based on observable actions
---------------------------------------------------------------------------

    The American Veterinary Medical Association (AVMA) has raised 
concerns with the Department about airlines' service animal forms, 
which require veterinarians to attest to the animal's behavior as well 
as the animal's health. The AVMA explained to the Department that 
veterinarians cannot guarantee the behavior of an animal particularly 
in a new environment like an aircraft but can provide information based 
on their observations of the animal during a physical examination and 
discussions with the animal's owner regarding whether the animal has 
been aggressive in the past. AVMA emphasized to the Department that 
expanding the scope of the veterinary form beyond health information of 
the animal and behavioral information of the animal based on 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.
    Through discussions with representatives of many disability rights 
organizations and a joint letter from ten disability rights 
organizations, the Department is aware of some of the concerns of 
service animal users. Psychiatric Service Dog Partners stated that any 
requirement for health or other forms that applies to PSAs without 
applying to other service animals is discriminatory. The American 
Council of the Blind (ACB), the National Federation of the Blind (NFB), 
and other disability rights organizations pointed out that blind people 
have used guide dogs safely for decades and should not now have 
barriers placed on travel. Other disability organizations, such as 
Paralyzed Veterans of America, emphasized that the airlines should not 
be requiring such forms unless the airline determines that the animal 
would pose a direct threat to the health or safety of others or would 
cause a significant disruption of cabin service based on an 
individualized assessment.
    Disability rights advocates also pointed out that the way airlines 
implement their policies for veterinarian forms may be problematic and 
negatively impact passengers with disabilities. For example, airline 
policies that all or certain service animal users provide a 
veterinarian form related to the health or behavior of their animal 48 
hours in advance of scheduled travel means persons with disabilities 
are unable to fly should there be an emergency. Policies that animals 
be visually verified at airport check-in would prevent the ability of 
passengers with disabilities to check-in online like other passengers. 
Airlines establishing their own policies for travel with a service 
animal could also mean a patchwork of service animal access 
requirements, making it difficult for persons with disabilities to know 
what to expect and how to prepare for travel. The Department seeks 
comment on whether its service animal regulation should explicitly 
prohibit airlines from requiring veterinarian forms as a condition for 
permitting travel with a service animal beyond those specifically 
allowed by the Department in its regulation unless there is 
individualized assessment that such a documentation is necessary. If 
veterinarian forms are not allowed to be required as a condition for 
travel, what about other types of documentation to ensure that the 
animal is not a public health risk to humans? Specifically, the 
Department seeks comment on whether airlines should be allowed to 
require that service animal users provide evidence that the animal

[[Page 23842]]

is current on the rabies vaccine as that vaccine is required by all 50 
states for dogs and by most states for cats. Finally, should airlines 
be permitted to require passengers to obtain signed statements from 
veterinarians regarding the animal's behavior. And if so, what recourse 
should be available for service animal users if the veterinarian 
refuses to fill out the behavior form.

10. Code-Share Flights

    Currently, foreign airlines are only required to transport service 
dogs, including emotional support and psychiatric service dogs, barring 
a conflict with a foreign nation's legal requirements. However, a U.S. 
carrier that code-shares with a foreign carrier could legally be held 
liable for its foreign codes-share partner's failure to transport other 
service animal species on code-share flights. While the Department's 
Office of Aviation Enforcement and Proceedings has not taken action 
against U.S. carriers under these circumstances, the Department seeks 
comment on whether the rule should explicitly state that U.S. carriers 
would not be held responsible for its foreign code-share partner's 
refusal to transport transportation service animals other than dogs.

Regulatory Notices

A. Executive Order 13771, 12866 and 13563 and DOT's Regulatory Policies 
and Procedures

    This action has been determined to be significant under Executive 
Order 12866, as amended by Executive Order 13563, and the Department of 
Transportation's Regulatory Policies and Procedures. It has been 
reviewed by the Office of Management and Budget under that Order. 
Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) require agencies to 
regulate in the ``most cost-effective manner,'' to make a ``reasoned 
determination that the benefits of the intended regulation justify its 
costs,'' and to develop regulations that ``impose the least burden on 
society.'' Additionally, Executive Orders 12866 and 13563 require 
agencies to provide a meaningful opportunity for public participation. 
Accordingly, we have asked commenters to answer a variety of questions 
to elicit practical information about alternative approaches and 
relevant technical data. These comments will help the Department 
evaluate whether a proposed rulemaking is needed and appropriate. This 
action is not subject to the requirements of E.O. 13771 (82 FR 9339, 
February 3, 2017) because it is an advance notice of proposed 
rulemaking.

B. Executive Order 13132 (Federalism)

    This ANPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (Federalism). This document 
does not propose any regulation that (1) has substantial direct effects 
on the States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government, (2) imposes substantial direct compliance 
costs on State and local governments, or (3) preempts State law. States 
are already preempted from regulating in this area by the Airline 
Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply.

C. Executive Order 13084

    This ANPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (Consultation and 
Coordination with Indian Tribal Governments). Because none of the 
topics on which we are seeking comment would significantly or uniquely 
affect the communities of the Indian tribal governments or impose 
substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
A direct air carrier or foreign air carrier is a small business if it 
provides air transportation only with small aircraft (i.e., aircraft 
with up to 60 seats/18,000-pound payload capacity). See 14 CFR 399.73. 
If the Department proposes to adopt the regulatory initiative discussed 
in this ANPRM, it is possible that it may have some impact on some 
small entities but we do not believe that it would have a significant 
economic impact on a substantial number of small entities. We invite 
comment to facilitate our assessment of the potential impact of these 
initiatives on small entities.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), no 
person is required to respond to a collection of information unless it 
displays a valid OMB control number. This ANPRM does not propose any 
new information collection burdens.

F. Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this document.

G. National Environmental Policy Act

    The Department has analyzed the environmental impacts of this ANPRM 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes 
``[a]ctions relating to consumer protection, including regulations.'' 
The purpose of this rulemaking is to seek public comment on the 
Department's service animal regulations. The Department does not 
anticipate any environmental impacts, and there are no extraordinary 
circumstances present in connection with this rulemaking.

    Issued this 9th day of May, 2018, in Washington, DC under 
authority delegated in 49 CFR Part 1.27(n).
James C. Owens,
Deputy General Counsel.
[FR Doc. 2018-10815 Filed 5-22-18; 8:45 am]
 BILLING CODE 4910-9X-P