Guidance on Nondiscrimination on the Basis of Disability in Air Travel, 43480-43487 [2019-17482]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 84, Number 162 (Wednesday, August 21, 2019)]
[Rules and Regulations]
[Pages 43480-43487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17482]



[[Page 43480]]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2018-0067]
RIN 2105-ZA05


Guidance on Nondiscrimination on the Basis of Disability in Air 
Travel

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

ACTION: Final statement of enforcement priorities regarding service 
animals.

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SUMMARY: The U.S. Department of Transportation (DOT or the Department) 
is issuing a final statement of enforcement priorities to apprise the 
public of its enforcement focus with respect to the 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 regulations.

DATES: This final statement is effective August 21, 2019.

ADDRESSES: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov and 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

    On May 23, 2018, the Department published two documents relating to 
transportation of service animals. The first document was an advance 
notice of proposed rulemaking (ANPRM) seeking comment on amending the 
Department's Air Carrier Access Act (ACAA) regulation, 14 CFR part 382 
(Part 382), with respect to the transportation of service animals. The 
Department published the ANPRM in response to concerns expressed by 
individuals with disabilities, airlines, flight attendants, and other 
stakeholders about the need for a change in the Department's service 
animal requirements. The ANPRM solicited comments on ways to ensure and 
improve access to air transportation for individuals with disabilities, 
while also deterring the fraudulent use of animals not qualified as 
service animals and ensuring that animals that are not trained to 
behave properly in public are not accepted for transport. The ANPRM 
comment period closed on July 9, 2018, with the Department receiving 
approximately 4,500 comments (Docket DOT-OST-2018-0068). The Department 
intends to issue a Notice of Proposed Rulemaking (NPRM) on the 
transportation of service animals by air after reviewing and 
considering the comments to the ANPRM.
    Recognizing that the rulemaking process can be lengthy, on May 23, 
2018, the Department's Office of Aviation Enforcement and Proceedings 
(Enforcement Office) also issued an Interim Statement of Enforcement 
Priorities (Interim Statement) to apprise the public of its intended 
enforcement focus with respect to transportation of service animals in 
the cabin. The Interim Statement addressed various topics regarding the 
transportation of service animals under the existing disability 
regulation, including: (1) Types of species accepted for transport; (2) 
number of service animals that a single passenger may transport; (3) 
advance notice of travel with a service animal; (4) evidence that an 
animal is a service animal; (5) check-in for passengers traveling with 
service animals; (6) documentation for passengers traveling with a 
service animal; and (7) leashing or containing a service animal while 
in the aircraft cabin. It was important for the Department to address 
these issues given confusion regarding current regulatory requirements 
on the transportation of service animals in the cabin of aircraft, 
considering new service animal policies that airlines instituted, and 
in light of disability rights advocates' view that some of these 
polices are unlawful.

Interim Statement

    In the Interim Statement, we noted that our enforcement efforts 
would be focused ``on clear violations of the current rule that have 
the potential to adversely impact the largest number of persons.'' 83 
FR 23805-23806. With respect to animal species, we indicated that we 
would focus our enforcement efforts on ensuring that the most commonly 
used service animals (dogs, cats, and miniature horses) are accepted 
for transport as service animals. With respect to the number of service 
animals that an airline must allow a passenger to carry onboard the 
aircraft, we stated that as a matter of enforcement discretion, we did 
not intend to take enforcement action if an airline limits a passenger 
to transporting one emotional support animal (ESA), and two non-ESA 
service animals, for a total of three service animals, as the 
Department's service animal regulation does not indicate whether 
airlines must allow passengers to travel with more than one service 
animal. With respect to advance notice, we stated that airlines may 
require passengers traveling with ESAs or psychiatric service animals 
(PSAs) to provide advance notice, but not passengers traveling with 
other types of service animals, as DOT's disability regulation 
prohibits advance notice prior to travel unless specifically permitted 
in the regulation, as is the case with passengers traveling with PSAs 
or ESAs. As for proof that an animal is a service animal, we stated 
that if a passenger's status as an individual with a disability is not 
clear, then an airline may ask about the passenger's need for a service 
animal and need not rely solely on paraphernalia such as an 
identification card, a harness, or a tag. With respect to check-in 
requirements, we stated that we intended to take enforcement action if 
airlines require passengers with service animals to check in at the 
lobby to process service animal documentation. We reasoned that DOT's 
disability regulation prohibits airlines from denying an individual 
with a disability the benefit of transportation or related services 
that are available to other persons, and airlines allow other 
passengers to check in electronically before arriving at the airport to 
avoid the inconvenience of checking in at the lobby. With respect to 
documentation, we stated that we generally did not intend to take 
enforcement action if airlines require ESA or PSA users to provide 
veterinary immunization records, health forms, and/or behavioral 
attestations since DOT's disability regulation permits airlines to ask 
for advance notice for passengers traveling with ESAs and PSAs, and 
allows airlines to deny boarding to an animal that poses a direct 
threat to the health or safety of others. Finally, with respect to 
containment, we indicated that we did not intend to take enforcement 
action if an airline imposed reasonable and appropriate measures to 
control the movement of ESAs in the cabin since DOT's disability 
regulation does not clearly specify whether or how airlines may 
restrict the movement of service animals in the cabin, and because we 
recognized the possibility that ESAs may pose greater in-cabin safety 
risks than other service animals.

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General Comments Received

    The comment period on the Interim Statement closed on June 7, 2018; 
we received a total of 94 comments.\1\ Disability advocates (including 
Paralyzed Veterans of America (PVA), the National Disability Rights 
Network (NDRN), the Bazelon Center for Mental Health Law/National 
Alliance on Mental Illness (Bazelon/NAMI), and the National Council on 
Disability (NCD)) expressed significant concern with the Interim 
Statement.\2\ Many advocates took the view that the Enforcement Office 
was improperly announcing in advance that it would not enforce certain 
ACAA violations, and was therefore abdicating its statutory duty to 
investigate all disability complaints. We note, however, that the 
Enforcement Office investigates every formal and informal disability 
complaint, and we will continue to do so in accordance with our 
statutory obligation.
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    \1\ Most of the comments from individuals were germane to the 
ANPRM, rather than the Interim Statement, because they typically 
suggested ways in which the service animal regulation should be 
amended. The comment of the National Council on Disability was 
received after the close of the comment period, but was considered.
    \2\ The following disability advocates provided comments to the 
Interim Statement: PVA; NDRN; Bazelon/NAMI; NCD; Psychiatric Service 
Dog Partners + Guide Dog Federation; Guide Dogs for the Blind; Guide 
Dogs of Texas; Operation Freedom Paws; American Association of 
People with Disabilities; Autistic Self-Advocacy Network; Disability 
Rights Education and Defense Fund; and The Arc of the United States.
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    Advocates also expressed the view that abandoning enforcement of 
certain claims was arbitrary, capricious, and constitutes an abuse of 
discretion, which is subject to judicial review under the 
Administrative Procedure Act (APA). Again, we emphasize that the 
Enforcement Office is not refusing to enforce certain ACAA violations. 
We will continue to investigate all complaints alleging violations of 
the ACAA and Part 382 as it is currently written. We will also continue 
to determine, within the traditional parameters of agency discretion, 
how best to use the Enforcement Office's limited resources to pursue 
enforcement action. The factors affecting the exercise of that 
discretion include, among other things, the nature and extent of the 
violations, the number of individuals harmed by the violations, the 
extent of the harm, and whether the conduct at issue clearly violates 
the regulatory text.\3\
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    \3\ In the Interim Statement, we indicated that ``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.'' 83 FR 23805-23806. Similarly, to the extent that this 
Final Statement conflicts with prior service animal guidance, the 
Final Statement will control.
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    A flight attendants' union (the Association of Flight Attendants-
CWA) generally supported the Interim Statement but expressed concern 
about safety issues arising from increased use of ESAs. The Association 
of Flight Attendants-CWA reasoned that ESA issues should be addressed 
in the airport lobby, as far from the cabin of the aircraft as 
possible, to reduce the risk of injury to passengers and flight crew 
onboard the aircraft.
    Individual airlines and Airlines for America (A4A) generally 
supported the Interim Statement. They expressed the view that the 
Interim Statement provided them the flexibility to address growing 
fraud and safety concerns with untrained service animals, particularly 
untrained ESAs. Airlines expressed considerable concern, however, with 
the Enforcement Office's expressed intention to use its resources to 
pursue action against airlines that require service animal users to 
check in at the lobby of the airport. We will discuss these comments, 
as well as the specific comments of stakeholders relating to other 
discrete issues, in greater detail below.

Comments and Responses on Topics Addressed in the Interim Statement

1. Species Restrictions
    In the Interim Statement, we stated that ``[t]he 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.'' 83 FR 23806. We indicated that the public interest would 
be better served by this exercise of our enforcement discretion because 
dogs, cats, and miniature horses are the most commonly used service 
animals. We stated that while we will focus on ensuring the transport 
of dogs, cats and miniature horses, we may take enforcement action 
against carriers for failing to transport other service animals on a 
case-by-case basis. We also stated that airlines are expected to 
continue to comply with the existing service animal regulation, which 
allows airlines to categorically deny transport only to certain unusual 
species of service animals such as snakes, other reptiles, ferrets, 
rodents, and spiders.\4\
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    \4\ 14 CFR 382.117(f).
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    Disability rights advocates generally expressed no specific 
objection to our position on species. Airlines have asked us to declare 
that a wide variety of species (e.g., birds, hedgehogs, insects, and 
animals with hooves or horns) constitute ``unusual service animals'' 
that may be categorically banned. They also contend that we have the 
authority to define ``service animals'' within this Final Statement, 
because ``service animal'' is not defined within Part 382 itself. We 
recognize that the existing service animal regulation is not clear with 
respect to the species of animals that may be categorically banned as 
``unusual service animals.'' Nevertheless, these matters are more 
appropriately reserved to the rulemaking process that has begun with 
the Service Animal ANPRM.
    In this Final Statement, after reviewing the comments on this 
issue, we believe that it would be in the public interest and within 
our discretionary authority to prioritize ensuring that the most 
commonly recognized service animals (i.e., dogs,\5\ cats,\6\ and 
miniature horses \7\) are accepted for transport. In accordance with 
section 382.117(f), airlines will not be subject to enforcement action 
if they continue to deny transport to snakes, other reptiles, ferrets, 
rodents, and spiders; however, airlines will remain subject to 
potential enforcement action if they categorically refuse to transport 
other animals or species of animals. Airline policies that 
categorically refuse transport to all service animals that are not 
dogs, cats, or miniature horses violate the current disability 
regulation. The extent of enforcement action against these airlines 
will be determined on a case-by case basis, bearing in mind factors 
such as consumer complaints describing the harm to consumers from such 
policies. We also note that, consistent with existing law, an airline 
may refuse transport to an individual animal regardless of species if 
the airline determines that specific factors preclude the animal from 
being transported as a service animal. These factors include a 
determination that the animal is too large or too heavy, poses a direct 
threat to the health or safety of others, or would cause a significant 
disruption in cabin service. 14 CFR 382.117(f).
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    \5\ Service animals are limited to dogs under the Americans with 
Disabilities Act. See 28 CFR 36.104.
    \6\ Cats join dogs in being one of the two most common species 
that are used as ESAs. Service Animal Advocates Position and 
Reasoning, p. 8 at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0208 (September 15, 2016).
    \7\ Entities covered by the Americans with Disabilities Act are 
also required to modify their policies to permit trained miniature 
horses where reasonable. See 28 CFR 36.302.

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2. Number Limits
    The Department's service animal regulation is not clear as to 
whether airlines must allow passengers to travel with more than one 
service animal. Section 382.117(a) states that an airline ``must permit 
a service animal to accompany a passenger with a disability'' (emphasis 
added). While this language could be read as suggesting that an airline 
is only required to transport one service animal per passenger, it 
could also be read as requiring airlines to transport any service 
animal needed by a particular passenger, even if that passenger needs 
the assistance of more than one such service animal. Section 382.117(i) 
references guidance concerning carriage of service animals, which does 
not have independent mandatory effect, but rather describes how the 
Department understands the requirements of section 382.117. That 
guidance states, ``A single passenger legitimately may have two or more 
service animals.'' See 73 FR 27614, 27661 (May 13, 2008).
    As noted in the Interim Statement, the Enforcement Office has 
stated in the past that it would not subject airlines to enforcement 
action if airlines limit a passenger to transporting three service 
animals. See 83 FR 23806. In the Interim Statement, we noted that 
certain passengers may need the assistance of more than one task-
trained service animal, as well as an ESA. We indicated that as a 
matter of enforcement discretion, our focus would be on ensuring that 
an airline allows a passenger to transport one ESA, and a total of 
three service animals if needed.
    Disability rights organizations generally did not comment on this 
position; the two brief comments that we did receive were favorable. 
Airlines urged the Enforcement Office to ensure that it would not take 
enforcement action if the airline restricts a passenger to carrying one 
ESA and one task-trained service animal. Airlines also urged the 
Enforcement Office to authorize additional restrictions, such as 
allowing airlines to limit the total number of ESAs on any individual 
flight.
    After reviewing the comments on this topic, we have decided that 
our enforcement efforts should continue to focus on ensuring that 
airlines are not restricting passengers from traveling with one ESA and 
a total of three service animals if needed. We share the view of the 
commenters that a single ESA would ordinarily be sufficient to provide 
emotional support on a given flight. However, we disagree with airline 
comments suggesting that the Enforcement Office should not take action 
against airlines that limit the total number of ESAs on a flight. While 
Part 382 may not be clear on the number of service animals each 
passenger may bring in the cabin, our view is that Part 382 plainly 
does not allow airlines to deny transport to a service animal 
accompanying a passenger with a disability because of a limit on the 
total number of service animals that can be on any flight. Also, under 
the existing rule, an ESA is considered a service animal. As such, if 
ten qualified individuals with a disability each need to bring an ESA, 
then under Part 382 the airline must accept all ten ESAs, so long as 
the ESAs are sufficiently trained to behave in a public setting. 
Section 382.117(a) requires airlines to permit a service animal to 
accompany a passenger with a disability, with no stated limitation 
based on the number of other passengers with service animals. We also 
note that section 382.17 prohibits airlines from limiting the number of 
passengers with a disability on a flight. For enforcement purposes, we 
will continue to address each complaint that we receive alleging a 
violation of the Department's current service animal rules on a case-
by-case basis, bearing in mind the specific circumstances of the 
matter, including the passenger's genuine need for multiple service 
animals, particularly those that are task-trained.\8\
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    \8\ Outside of the ESA context, complaints to the Enforcement 
Office involving multiple service animals are rare.
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3. Advance Notice
    In the Interim Statement, we explained our view that the plain 
language of Part 382 prohibits carriers from requiring advance notice 
for passengers traveling with service animals other than ESAs or PSAs, 
unless the flight segment is 8 hours or more. Requiring advance notice 
of a passenger's intention to travel with a service animal outside of 
these specific circumstances violates the Department's regulation. 14 
CFR 382.27(a). We received only three comments on this specific topic. 
All three comments addressed the wisdom of the rule itself, as opposed 
to our interpretation or enforcement of that rule.\9\ In this Final 
Statement, we see no basis for deviating from the Interim Statement, 
because it represents a straightforward recitation of established law. 
The Enforcement Office intends to focus its resources on ensuring that 
airlines do not require advance notice for passengers traveling with 
service animals other than ESAs or PSAs, unless the flight segment is 8 
hours or more, because advance notice 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.
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    \9\ PSDP contended that the current rule discriminates against 
passengers with psychiatric disabilities, but noted that in light of 
the fact that new rules will be proposed, it is not ``pushing for 
any alteration in DOT's proposed interim enforcement plan when it 
comes to advance notice.'' Comment of PDSP at 7.
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4. Proof That an Animal Is a Service Animal
    In the Interim Statement, we addressed airlines' concerns that 
passengers may be attempting to pass off their pets as service animals 
by purchasing easily obtained paraphernalia such as harnesses, vests, 
and tags. We explained our view that under the existing rule, airlines 
may continue to seek credible verbal assurance that the passenger is an 
individual with a disability and that the animal is a service animal. 
Specifically, ``[i]f 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?'' 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.'' 
83 FR 23806. Stakeholders did not express disagreement with this 
position. In this Final Statement, we see no reason to deviate from the 
analysis of the Interim Statement because it represents a well-
established interpretation of existing law.
5. Check-in Requirements
    In the Interim Statement, we noted that certain airlines now 
require passengers with service animals to appear in person at the 
lobby \10\ of the airport before the flight to verify that the animal 
can be transported as a service animal. We also noted that airlines 
generally allow electronic check-in, a process that typically permits 
passengers to skip the lobby and proceed directly to the gate if they 
do not have checked bags. We reasoned that requiring passengers with 
service animals to check in at the lobby would deny such passengers a 
benefit of electronic check-in that is available to

[[Page 43483]]

other persons who do not have service animals. Accordingly, we 
concluded that ``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.'' 83 FR 23806.
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    \10\ According to A4A and United Airlines, Inc. (United), 
``ticket counter'' is an outdated term, and the more appropriate 
term is the ``lobby.''
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    Disability advocates generally supported this position for many of 
the reasons stated by the Department. Flight attendants (AFA-CWA) 
disagreed, however, stating that airlines should have the authority to 
process oversized and poorly behaved animals in the lobby, rather than 
in the gate area/sterile area. Flight attendants stressed that for the 
safety of passengers and its members, airlines should address these 
issues as soon as possible and as far from the aircraft as possible, 
because available options are reduced as the animal gets closer to 
boarding the aircraft.
    Similarly, airlines expressed substantial concerns with our 
position. They contend that the Interim Statement represents a 
significant and unexpected new regulation, issued without the 
Department first engaging in the full notice and comment procedures 
required by the Administrative Procedure Act. They also argue that the 
Interim Statement is based on the incorrect premise that ``lobby 
verification'' discriminates on the basis of disability. In the 
airlines' view, lobby verification is nondiscriminatory because it is 
based on the presence of an animal, not the presence of a disability. 
They note, for example, that airlines also require passengers with pets 
to appear in the lobby for processing. A4A and the International Air 
Transport Association (IATA) filed a joint comment noting that many 
airlines require lobby check-in for passengers with and without 
disabilities who travel with an animal in the cabin and emphasized that 
only passengers with traditional service animals (such as guide dogs) 
are exempted. Airlines assert that lobby agents, rather than gate 
agents, are in the best position (both logistically and in terms of 
expertise) to process animals for transport in the cabin. Airlines also 
mentioned that certain carriers have already invested in training 
specialized lobby personnel to process passengers with animals, and 
that other carriers are experimenting with systems where agents do not 
appear at gates. Finally, they contend that to minimize the risk of 
injury to airline personnel and other passengers, it is critical to 
verify service animal documentation and other requirements (such as the 
presence of harnesses or leashes, and whether the animal will fit in 
the passenger's foot space) as far from the confines of the aircraft 
cabin itself as possible.
    As noted above, the purpose of the Final Statement is to inform the 
public of the Enforcement Office's priorities, not to announce or make 
new rules or to declare that certain classes of violations will not be 
enforced. After carefully reviewing the comments submitted and taking a 
closer look at Part 382, we have arrived at the view that lobby 
verification is permitted under Part 382 for ESAs and PSAs, because an 
airline is permitted to exclude a person with a disability from a 
benefit that is available to other persons where specifically permitted 
by Part 382. Here, the benefit is the ability to check-in online and 
proceed directly to the gate, but airlines are permitted under Part 382 
to require ESA and PSA users to check in one hour before the check-in 
time for the general public. For that reason, the Enforcement Office 
does not view it to be a violation of Part 382 if airlines require 
lobby check-in for passengers with ESAs or PSAs.
    More specifically, section 382.11(a)(3) states that airlines may 
not exclude an individual with a disability from or deny the person the 
benefit of any air transportation or related services that are 
available to other persons, except where specifically permitted by Part 
382. Section 382.43(c) requires airlines to have an accessible website 
which, among other things, would enable a passenger with a disability 
to check-in for a flight online, similar to other passengers, thereby 
skipping the lobby and proceeding directly to the gate if he/she does 
not have checked bags. However, section 382.27(c)(8) allows airlines to 
require a passenger with a disability to provide up to 48 hours' 
advance notice and check in one hour before the check-in time for the 
general public in order to transport an ESA or PSA in the cabin. In our 
view, at the time that this section was enacted in 2008, the phrase 
``check in'' generally meant presenting oneself in person at the 
airline's ticket counter. As such, we believe that Part 382 as written 
does contemplate that airlines may require passengers travelling with 
ESAs or PSAs to present themselves in person in the lobby before 
proceeding into the secured area. In any event, we do not intend to 
exercise our enforcement discretion to take action against airlines 
that impose such a requirement on passengers travelling with ESAs or 
PSAs. In our view, however, the regulations do not permit airlines to 
require ``check in one hour before the check-in time for the general 
public'' for non-ESA/PSA service animals, or to require that passengers 
with traditional service animal users appear in the lobby for 
processing. The Enforcement Office intends to act should an airline 
require that a passenger with a traditional (non-ESA/PSA) service 
animal check-in at the lobby of an airport.
6. Direct Threat Analysis--Documentation Requests for ESAs and PSAs
    In the Interim Statement, we explained that airlines may refuse 
transportation to any service animal that poses a direct threat to the 
health or safety of others. We observed, however, that our service 
animal regulation does not explain how airlines may (or may not) make 
that assessment. We also noted that airlines may 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. We concluded that ``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.'' 83 FR 23807. We also indicated that we would 
continue to monitor the types of information that airlines require from 
ESA or PSA users to ensure that travel with those animals is not made 
unduly burdensome or effectively impossible. Airlines strongly 
supported this position, on the basis that documentation helps 
personnel to determine whether an ESA or PSA is a direct threat. 
Airlines have expressed concern to the Department that passengers are 
increasingly bringing untrained animals onboard aircraft putting 
passengers and flight crew at risk.
    Survey data of PSA and ESA users provided by the United Service 
Animal Users, Supporters, and Advocates (USAUSA) revealed that almost 
90% of the 919 survey respondents indicated that they were concerned 
about untrained or stressed animals interfering with or harming their 
animal when they fly. However, Psychiatric Service Dog Partners (PSDP) 
emphasized that mandates for third-party documentation do not improve 
safety and serve only to increase burdens to passengers with 
disabilities. As evidence of the burden that documentation requirements 
impose on passengers with disabilities, PSDP points to the USAUSA 
survey, which provides estimates on the cost and time that it would 
take to obtain additional third-party documentation, and the degree to 
which such additional

[[Page 43484]]

burdens affect users' willingness to fly. PSDP also stressed that each 
additional documentation creates an incremental additional burden for 
passengers seeking to fly with a service animal.
    Similarly, other disability rights organizations contended that 
additional documentation is unduly burdensome and represents a 
deterrent to travel without providing real benefits to airlines. 
Operation Freedom Paws expressed the view that obtaining a behavioral 
attestation from a veterinarian would be unduly burdensome, because 
such documentation is difficult to obtain within 48 hours of travel. 
The International Association of Canine Professionals and the American 
Veterinary Association expressed the view that any attestations about 
an animal's behavior should come from the passenger and not from the 
professional, because professionals are not able to make such 
attestations.
    Some disability advocates, such as Bazelon/NAMI, also believe that 
the Department would be acting arbitrarily and capriciously if it 
allowed airlines to require additional service animal documentation 
beyond what is explicitly permitted in Part 382. Similarly, the 
National Council on Disability asserts that ``the additional proof 
insisted upon by airlines is not legal under the ACAA regulation'' 
because Part 382 does not clearly authorize that additional proof.\11\
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    \11\ Comment of NCD at 1, available at https://www.regulations.gov/document?D=DOT-OST-2018-0067-0097.
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    In this Final Statement, we continue to focus our enforcement 
efforts ``on clear violations of the current rule that have the 
potential to adversely impact the largest number of persons.'' 83 FR 
23805-23806. In general, it is not clear whether airlines are violating 
Part 382 if they require additional documentation to determine whether 
a service animal poses a direct threat. Part 382 permits airlines to 
determine, in advance of flight, whether any service animal poses a 
direct threat. However, that section is not clear about how airlines 
would determine whether an animal poses a direct threat to the health 
or safety of others.
    While section 382.117 clearly sets forth the type of medical 
documentation that airlines may request from ESA and PSA users to 
reduce likelihood of abuse by passengers wishing to travel with their 
pets, the regulation does not explicitly permit or prohibit the use of 
additional documentation related to a service animal's vaccination, 
training, or behavior. Accordingly, we do not intend to take action 
against an airline for asking service animal users to present 
documentation related to a service animal's vaccination, training, or 
behavior, so long as it is reasonable to believe that the documentation 
would assist the airline in determining whether an animal poses a 
direct threat to the health or safety of others.
    As noted above, Part 382 clearly allows airlines to require 48 
hours' advance notice to receive the requested accommodation of 
transporting ESAs and PSAs.\12\ Therefore, we do not intend to take 
action against an airline asking an ESA/PSA service animal user to 
present such documentation up to 48 hours before his or her flight. We 
will monitor airlines' policies that require service animal users to 
provide documentation to ensure the documentation is not being used to 
prevent passengers with disabilities from traveling with their service 
animals (e.g., an airline requiring a form from a veterinarian 
guaranteeing how an animal would behave on an aircraft, documentation 
which virtually all veterinarians would be unwilling to sign).
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    \12\ The preamble to the 2008 final rule on ``Nondiscrimination 
on the Basis of Disability in Air Travel'' clarifies that ``advance 
notice'' refers to notice provided in advance of the scheduled 
departure time of the flight. See 73 FR 27614, 27649 (May 13, 2008).
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7. Containing Service Animals in the Cabin
    In the Interim Statement, we observed that Part 382 does not 
clearly specify whether or how airlines may restrict the movement of 
service animals in the cabin. We noted 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, we 
stated that we would 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. We stated that 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. 
83 FR 23807 (May 23, 2018).
    Comments were mixed concerning this issue. Airlines contend that 
movement, harness, and leash restrictions are generally consistent with 
the Americans with Disabilities Act (ADA). A4A also asked the 
Department to clarify that they may refuse transportation to an animal 
in the cabin unless the passenger demonstrates that the animal does not 
exceed relevant weight limits and will safely fit in the passenger's 
lap or foot space. American Airlines contended that it is particularly 
important for cats to be held in a carrier because of allergy concerns 
and hygiene issues. A4A also asked the Department to make clear that 
flight attendants are not required to ask other passengers to trade 
seats or give up their foot space to accommodate large service animals.
    Disability rights advocates took a range of positions. For example, 
Bazelon/NAMI contended that allowing airlines to require containment 
solely for passengers traveling with an ESA is ``prohibited under the 
ACAA.'' Comment of Bazelon/NAMI at 3. PSDP supported requirements that 
service animals be tethered, ``if not contained in a pet carrier and 
with reasonable exceptions, such as those that are disability-based.'' 
Comment of PSDP at 16. Many commenters, including PSDP and American 
Airlines, noted the challenging issues surrounding service animals that 
are required to be transported in the cabin, but are too large to be 
contained in a pet carrier.
    In this Final Statement, we again observe that Part 382 contains no 
explicit requirements or prohibitions with respect to containment of 
ESAs (or other service animals) in the cabin. As with other issues 
discussed above, we decline to declare that the Enforcement Office will 
not take enforcement action with respect to containment of service 
animals in all cases. Rather, we will consider containment issues for 
all service animals on a case-by-case basis, with a focus on 
reasonableness. For example, in general, tethering and similar means of 
controlling an animal that are permitted in the ADA context would 
appear to be reasonable in the context of controlling service animals 
in the aircraft cabin. Other factors bearing on reasonableness include, 
but are not limited to, the size and species of the animal, the right 
of other passengers to enjoy their own foot space,\13\ and the

[[Page 43485]]

continued ability of the animal to provide emotional support or perform 
its task while being restrained or kept in a pet carrier.
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    \13\ We recognize that guidance on the issue of a service animal 
encroaching on the foot space of a passenger is not clear. DOT has 
previously stated that service animals may be placed at the feet of 
a passenger with a disability so long the animal does not extend 
into the foot space of a passenger who does not wish to share that 
space with the animal. See FAA Order 8400.10, Bulletin FSAT 0401A 
and https://www.transportation.gov/sites/dot.gov/files/docs/TAM-07-15-05_0.pdf . Later, DOT has stated that a service animal may need 
to use a reasonable portion of an adjacent seat's foot space that 
does not deny another passenger effective use of the space for his 
or her feet by taking all or most of the passenger's foot space. 
https://www.transportation.gov/sites/dot.gov/files/docs/Part%20382-2008_1.pdf. https://www.transportation.gov/sites/dot.gov/files/docs/FAQ_5_13_09_2.pdf (Question 37). This matter is best addressed in 
notice and comment rulemaking.
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    We will apply this enforcement approach to containment of all 
service animals, rather than only ESAs, because we have reconsidered 
our position from the Interim Statement that would have drawn a 
distinction between movement restrictions for ESAs and movement 
restrictions for other types of service animals. As Bazelon/NAMI noted 
in their comments, all service animals (including ESAs) are expected to 
behave in public. We also note that an animal's status as a task-
trained service animal does not preclude the animal from misbehaving. 
Accordingly, we agree with Bazelon/NAMI about the inappropriateness of 
making a distinction between ESAs and non-ESA service animals with 
respect to the importance of the owner controlling and restricting the 
movement of the animal.

New Topics

    After the comment period closed, airlines continued to announce new 
restrictions on the transportation of service animals. Some of those 
policies were variations on prior policies, while others raised new 
issues such as restrictions concerning the breed, age, or weight of the 
animal. Our responses to these new policies are set forth below.
1. Breed Restrictions
    After the comment period for the Interim Statement closed, certain 
airlines instituted new policies banning ``pit bull type dogs'' as 
service animals on their flights. The Department's disability 
regulation allows airlines to deny transport to an animal if, among 
other things, it poses a direct threat to the health or safety of 
others. However, the Department is not aware of and has not been 
presented with evidence supporting the assertion that an animal poses a 
direct threat simply because of its breed. On June 22, 2018, the 
Enforcement Office issued a public statement indicating its view that 
``a limitation based exclusively on breed of the service animal is not 
allowed under the Air Carrier Access Act.'' \14\ The Enforcement Office 
continues to take the view that restrictions on specific dog breeds are 
inconsistent with the current regulation. As stated earlier, the 
Enforcement Office intends to use available resources to ensure that 
dogs as a species are accepted for transport. Consistent with existing 
law, airlines are permitted to find that any specific animal, 
regardless of breed, poses a direct threat based on behavior. 14 CFR 
382.117(f).
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    \14\ In full, the statement reads: ``Under DOT's current rules 
implementing the Air Carrier Access Act, airlines are required to 
accommodate passengers with disabilities who depend on the 
assistance of service animals within limits. Airlines are not 
required to accommodate unusual service animals, such as snakes, 
reptiles, ferrets, rodents, and spiders. Recently, the Department 
issued a Statement of Enforcement Priorities on Service Animals to 
inform airlines and the public that its Aviation Enforcement Office 
intends to exercise its enforcement discretion by focusing its 
limited resources on ensuring that U.S. airlines continue to accept 
the most commonly used service animals such as dogs for travel. A 
limitation based exclusively on breed of the service animal is not 
allowed under the Department's Air Carrier Access Act regulation. 
However, an airline may refuse to carry service animals if the 
airline determines there are factors precluding the animal from 
traveling in the cabin of the aircraft, such as the size or weight 
of the animal, whether the animal would pose a direct threat to the 
health or safety of others, whether it would cause a significant 
disruption of cabin service, or whether the law of a foreign country 
that is the destination of the flight would prohibit entry of the 
animal. The Department's Office of Aviation Enforcement and 
Proceedings investigates every disability complaint that it receives 
involving airline service, including investigating complaints from 
passengers alleging an airline denied them travel by air with a 
service dog. At the conclusion of an investigation, a determination 
is made as to whether the law was violated. In enforcing the 
requirements of Federal law, the Department is committed to ensuring 
that our air transportation system is safe and accessible for 
everyone.''
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2. Age Restrictions
    After the comment period to the Interim Statement closed, certain 
airlines announced that they would not accept service animals of any 
type that are younger than four months old. Part 382 does not address 
the minimum age of a service animal. However, all service animals 
(including ESAs) are expected to be sufficiently trained to behave in 
public.\15\ We do not expect service animals to have completed public 
access training by the age of four months.\16\ Accordingly, as a 
general matter, we do not envision that it would be a violation of Part 
382 to prohibit the transport of service animals younger than four 
months, as those animals would not be trained to behave properly in a 
public setting, and we in any event do not anticipate exercising our 
enforcement discretion to take action against airlines that implement 
such prohibitions.
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    \15\ The preamble of the Department's 2008 final rule on 
``Nondiscrimination on the Basis of Disability in Air Travel'' 
states that ESAs ``must be trained to behave appropriately in a 
public setting.'' See 73 FR 27614, 27659 (May 13, 2008).
    \16\ According to the International Association of Assistance 
Dog Partners, an assistance dog should be given 120 hours of public 
access training over a period of six months or more. See https://www.iaadp.org/iaadp-minimum-training-standards-for-public-access.html.
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3. Weight Restrictions
    After the comment period to the Interim Statement closed, at least 
one airline announced that it would not accept ESAs or PSAs over 65 
pounds.\17\ Section 382.117(f) allows airlines to determine whether 
factors preclude a given service animal from being transported in the 
cabin. These factors include ``whether the animal is too large or too 
heavy to be accommodated in the cabin, whether the animal would pose a 
direct threat to the health or safety of others, whether it would cause 
a significant disruption of cabin service, [or] whether it would be 
prohibited from entering a foreign country that is the flight's 
destination.'' Importantly, the rule further provides that ``if no such 
factors preclude the animal from traveling in the cabin, you must 
permit it to do so.'' 14 CFR 382.117(f). Under this rule, an animal may 
be excluded from the cabin if it is too large or too heavy to be 
accommodated in the specific aircraft at issue. However, in our view, a 
categorical ban on animals over a certain weight limit, regardless of 
the type of aircraft for the flight, is inconsistent with section 
382.117. We also note that the FAA's guidance pertaining to the 
location and placement of service animals on aircraft (FAA Order 
8900.1, Vol. 3, Ch. 33, Section 6 at ] 3-3546) does not indicate that 
animals over a certain size must be categorically prohibited from the 
cabin on the basis of safety. We will continue to monitor this issue 
and to take enforcement action as appropriate.
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    \17\ It is unclear why the airline imposed the 65-pound limit 
only on ESAs and PSAs, and did not include other service animals, 
aside from an apparent view that large ESAs and PSAs pose greater 
safety threats than other types of large service animals. As we 
indicate in the section on containment, however, airlines have other 
means of ensuring safety for large animals aside from banning them 
outright.
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4. Flight-Length Restrictions
    After the comment period to the Interim Statement closed, at least 
one airline announced that it would not accept ESAs on flights lasting 
eight hours or more. In our view, Part 382 as written clearly prohibits 
such policies. Specifically, section 382.117(a)(2) provides that, as a 
condition of permitting any service animal to travel in the cabin on 
flights scheduled to take eight hours or more, airlines may require the 
passenger using the service animal to provide documentation that the 
animal will not need to relieve itself on the flight or that it can do 
so in a way that does not create a health or

[[Page 43486]]

sanitation issue on the flight. Pursuant to section 382.27(a)(9), 
airlines may require 48 hours' advance notice and check-in one hour 
before the check-in time for the general public in order to accommodate 
any service animal on a flight scheduled to last eight hours or more. 
Thus, in our view, while Part 382 permits airlines to ask for 
documentation, advance notice, and early check-in to transport service 
animals on flights scheduled to last eight hours or more, the rule does 
not permit airlines to prohibit service animals outright on such 
flights. The Enforcement Office intends to use its available resources 
to ensure that airlines comply with existing regulations with respect 
to this issue.
5. Letter or Form From a Mental Health Professional for an ESA or PSA 
User
    After the comment period on the Interim Statement closed, several 
airlines announced that they would restrict the types of medical forms 
that they would accept from users of ESAs and PSAs. Specifically, these 
airlines indicated that they would not accept documentation on the 
letterhead of a licensed mental health professional treating the 
passenger's mental or emotional disability; instead, they would only 
accept the medical forms found on the airlines' own websites. In our 
view, Part 382 clearly prohibits this practice. Section 382.117(e) 
states that an airline is not required to accept an ESA or PSA for 
transportation in the cabin unless the passenger provides medical 
documentation that meets the specific criteria of section 
382.117(e).\18\ A document can meet the specific criteria of section 
382.117(e) without being a form created by an airline. In other words, 
while an airline may ask or encourage a passenger to request that the 
licensed mental health professional treating the passenger fills out 
the airline's own proprietary medical form, airlines may not reject a 
medical form or letter that meets the criteria found in the rule. The 
Enforcement Office intends to use its available resources to ensure 
that airlines comply with the existing regulation with respect to this 
issue.
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    \18\ Section 382.117(e) states that airlines may refuse 
transportation of an ESA or PSA in the cabin unless the passenger 
provides documentation, no older than one year from the date of the 
passenger's scheduled initial flight, on the letterhead of a 
licensed mental health professional, stating that: (1) The passenger 
has a mental or emotional disability recognized in the Diagnostic 
and Statistical Manual of Mental Disorders--Fourth Edition; (2) the 
passenger needs the ESA or PSA as an accommodation for air travel 
and/or for activity at the passenger's destination; (3) the 
individual providing the assessment is a licensed medical health 
professional, and the passenger is under his or her professional 
care; and (4) the date and type of the mental health professional's 
license and the state or other jurisdiction in which it was issued.
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6. Direct Threat Analysis--Documentation Requests for Traditional 
Service Animals
    After the comment period on the Interim Statement closed, at least 
one airline indicated that it would ask, but not require, passengers 
with all types of service animals (including traditional service 
animals such as guide dogs) to carry veterinary forms, to be presented 
to airline personnel on request.
    As we explained in the documentation section above, Part 382 
permits airlines to determine, in advance of flight, whether any 
service animal poses a direct threat, but the rule does not clearly 
indicate how airlines must make that assessment. Accordingly, we do not 
intend to take action against an airline for asking users of any type 
of service animal to present documentation related to the service 
animal's vaccination, training, or behavior, so long as it is 
reasonable to believe that the documentation would assist the airline 
in making a determination as to whether an animal poses a direct threat 
to the health or safety of others.
    However, Part 382 draws relevant distinctions between ESA/PSAs and 
other types of service animals relating to advance notice. Section 
382.27(a) provides that, subject to certain exceptions (including 
travel with an ESA or PSA), airlines may not require passengers with 
disabilities to provide advance notice in order to obtain services or 
accommodations required by law. Therefore, if an airline requires a 
non-ESA/PSA service animal user to present documentation related to a 
service animal's vaccination, training, or behavior before the check-in 
time for the general public, such action in our view clearly violates 
the advance notice provisions of section 382.27 and we will take 
enforcement action appropriately.

Final Statement of Enforcement Priorities

    The purpose of this Final Statement is to provide the public with 
greater transparency with respect to the Enforcement Office's 
interpretation of existing requirements and its exercise of enforcement 
discretion surrounding service animals. Our enforcement efforts will be 
focused on clear violations of the current rule that have the potential 
to impact adversely the largest number of persons. These determinations 
will be made on a case-by-case basis.
    This guidance is not legally binding in its own right and will not 
be relied on by the Department as a separate basis for affirmative 
enforcement or other administrative penalty. Conformity with this 
guidance (as distinct from existing statutes and regulations at Part 
382) is voluntary only, and nonconformity will not affect rights and 
obligations under existing statutes and regulations.
    1. Species and Breed Restrictions. The Enforcement Office intends 
to use available resources to ensure that dogs, cats, and miniature 
horses are accepted for transport. Airline policies that categorically 
refuse transport to all service animals that are not dogs, cats, or 
miniature horses violate the current disability regulation. Categorical 
restrictions on dog breeds are inconsistent with Part 382 and the 
Department's enforcement priorities. Airlines will not be subject to 
enforcement action if they continue to deny transport to snakes, other 
reptiles, ferrets, rodents, and spiders; however, airlines will remain 
subject to potential enforcement action if they categorically refuse to 
transport other animals.
    2. Number Restrictions. We will focus our enforcement efforts on 
ensuring that airlines are not restricting passengers from traveling 
with one ESA and a total of three service animals if needed. Airlines 
may not impose categorical restrictions on the total number of service 
animals to be transported in the aircraft cabin.
    3. Weight Restrictions. Airlines may not impose a categorical 
restriction on service animals over a certain weight, without regard to 
specific factors that would preclude transport of that animal in the 
cabin.
    4. Age Restrictions. We do not anticipate exercising our 
enforcement resources to ensure the transport of service animals that 
are clearly too young to be trained to behave in public.
    5. Flight-Length Restrictions. Airlines may not categorically 
restrict service animals on flights scheduled to last 8 hours or more, 
and would be subject to potential enforcement action if they do so. On 
flights scheduled to last 8 hours or more, airlines may ask for 48 
hours' advance notice, early check-in, and documentation that the 
animal will not need to relieve itself on the flight or that it can do 
so in a way that does not create a health or sanitation issue on the 
flight.
    6. Proof that an Animal is a Service Animal. If a passenger's 
disability is not clear, airlines may ask limited questions to 
determine the passenger's need for the animal even if the animal has 
other indicia of a service animal such as a harness, vest, or tag.
    7. Documentation Requirements. We do not anticipate taking 
enforcement action against an airline for asking users

[[Page 43487]]

of any type of service animal to present documentation related to the 
animal's vaccination, training, or behavior, so long as it is 
reasonable to believe that the documentation would assist the airline 
in determining whether an animal poses a direct threat to the health or 
safety of others. We will monitor airlines' animal documentation 
requirements to ensure that they are not being used to unduly restrict 
passengers with disabilities from traveling with their service animals. 
Airlines may ask or encourage an ESA and PSA user to submit the medical 
form provided on the airline's website, but may not reject 
documentation provided by an ESA or PSA user from a licensed mental 
health professional treating the passenger that meets all of the 
criteria found in the rule itself.
    8. Lobby Verification. We do not anticipate taking enforcement 
action against an airline if it requires passengers with ESAs or PSAs 
to present service animal documentation in the lobby/ticket counter 
area, rather than the gate/sterile area.
    9. Advance Notice/Check-In. Airlines may require ESA/PSA users to 
provide up to 48 hours' advance notice of travel with an ESA/PSA, and 
may require ESA/PSA users to appear in the lobby for processing of 
service animal documentation up to one hour prior to the check-in time 
for the general public. However, airlines may not require non-ESA/PSA 
users to provide advance notice of travel with a service animal, or 
require non-ESA/PSA users to appear in the lobby for processing of 
service animal documentation.
    10. Containment. We will exercise our discretion with respect to 
containment issues for all service animals on a case-by-case basis, 
with a focus on reasonableness. For example, in general, tethering and 
similar means of controlling an animal that are permitted in the ADA 
context would appear to be reasonable in the context of controlling 
service animals in the aircraft cabin. Other factors bearing on 
reasonableness include, but are not limited to, the size and species of 
the animal, the right of other passengers to enjoy their own foot 
space, and the continued ability of the animal to provide emotional 
support or perform its task while being restrained or kept in a pet 
carrier.

Effective Date

    This Final Statement is effective upon publication. Airlines are 
expected to review their policies and revise them, if necessary, to 
comply with the Department's disability regulation. As a matter of 
enforcement discretion, we intend to refrain from taking enforcement 
action with respect to the issues set forth in this Final Statement for 
a period of up to 30 days from the date of publication so long as the 
airline demonstrates that it began the process of compliance as soon as 
this notice was published in the Federal Register. This timeframe 
should provide airlines with adequate time to review and revise their 
policies as needed to comply with the ACAA and the Department's 
disability regulation.

    Issued this 8th day of August, 2019, in Washington, DC.
James C. Owens,
Deputy General Counsel, U.S. Department of Transportation.
[FR Doc. 2019-17482 Filed 8-20-19; 8:45 am]
BILLING CODE 4910-9X-P