Traveling by Air With Service Animals, 6448-6476 [2020-01546]

Download as PDF 6448 Proposed Rules Federal Register Vol. 85, No. 24 Wednesday, February 5, 2020 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF TRANSPORTATION Office of the Secretary 14 CFR Part 382 [Docket No. DOT–OST–2018–0068] RIN No. 2105–AE63 Traveling by Air With Service Animals Office of the Secretary (OST), U.S. Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). AGENCY: The U.S. Department of Transportation (Department or DOT) is seeking comment in this Notice of Proposed Rulemaking (NPRM) on proposed amendments to the Department’s Air Carrier Access Act (ACAA) regulation on the transportation of service animals by air. The proposed amendments are intended to ensure that our air transportation system is safe for the traveling public and accessible to individuals with disabilities. DATES: Comments should be filed by April 6, 2020. Late-filed comments will be considered to the extent practicable. ADDRESSES: You may file comments identified by the docket number DOT– OST–2018–0068 by any of the following methods: • Federal eRulemaking Portal: Go to 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 jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 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:// www.transportation.gov/privacy. 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), maegan.johnson@dot.gov (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), blane.workie@dot.gov. SUPPLEMENTARY INFORMATION: Executive Summary The Department proposes to define a service animal, under its ACAA regulations in 14 CFR part 382, as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.1 Furthermore, this NPRM proposes to allow airlines to recognize emotional support animals as pets rather than service animals. The NPRM also proposes to allow airlines to require 1 The Department’s proposed definition of a service animal in this rulemaking is similar to the definition of a service animal in the Department of Justice (DOJ) regulations implementing the Americans with Disabilities Act (ADA), 28 CFR 35.104 and 28 CFR 36.104. However, the Department proposes a number of service animal provisions in this proposed rulemaking that differ from DOJ’s ADA service animal requirements. PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 all passengers with a disability traveling with a service animal to complete and submit to the airline forms developed by DOT attesting to the animal’s training and good behavior, certifying the animal’s good health, and attesting that the animal has the ability either not to relieve itself on a long flight or to relieve itself in a sanitary manner. In addition, this NPRM would clarify existing prohibitions on airlines’ imposing breed restrictions on service animals and would allow airlines to set policies to limit the number of service animals that one passenger can bring onboard an aircraft. This NPRM would also generally require service to be harnessed, leashed, or otherwise tethered. This NPRM also proposes requirements that would address the safe transport of large service animals in the aircraft cabin and would clarify when the user of a service animal may be charged for damage caused by the service animal. Finally, this NPRM addresses the responsibilities of codeshare partners, among other provisions. 1. Statutory Authority The Air Carrier Access Act (ACAA), 49 U.S.C. 1705, prohibits discrimination in airline service on the basis of disability. When enacted in 1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR–21) amended the ACAA to include foreign carriers. The ACAA, while representing a watershed mandate of nondiscrimination in air transportation for passengers with disabilities, does not specify how U.S. and foreign air carriers must act to avoid such discrimination. The statute similarly does not specify how the Department should regulate with respect to these issues. In addition to the ACAA, the Department’s authority to regulate nondiscrimination in airline service on the basis of disability is based in the Department’s rulemaking authority under 49 U.S.C. 40113, which states that the Department may take action that it considers necessary to carry out this part, including prescribing regulations. The Department issued its first ACAA regulation in 1990 following a lengthy rulemaking process that included a regulatory negotiation involving representatives of the airline industry and representatives from disability E:\FR\FM\05FEP1.SGM 05FEP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules communities. Since then, the Department’s disability regulations have been amended approximately 15 times to enhance access. The ACAA regulations define the rights of qualified individuals with disabilities 2 and the obligations of airlines. The regulations also specify that airlines may refuse to provide transportation to any passenger on the basis of safety or to any passenger whose carriage would violate Federal Aviation Administration (FAA) or Transportation Security Administration requirements or applicable requirements of a foreign government.3 For example, the FAA, which is charged with promoting safe flight of aircraft,4 has long prohibited conduct aboard flights that interferes with crewmember duties. FAA regulations state that ‘‘no person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.’’ 5 The ACAA regulations are intended to help ensure that individuals with disabilities enjoy equal access to the air transportation system. The Americans with Disabilities Act (ADA), which was enacted in 1990, does not cover discrimination against a person with a disability in air transportation but prohibits discrimination against individuals with disabilities in most other areas of public life, including employment, State and local government activities, public transportation services, and public accommodations such as restaurants and retail stores. The ADA requires that the Department of Justice (DOJ) issue regulations for implementing Title II, which applies to State and local government entities, and Title III, which applies to public accommodations and commercial facilities. DOJ first issued such regulations in 1991 and published revised regulations in 2010, which took effect in March 2011. In those regulations, DOJ defines a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or mental disability.6 DOJ’s ADA definition of a service animal differs from DOT’s current ACAA definition of a service animal as DOJ does not recognize emotional support animals as service animals because they are not 2 DOT defines the term Qualified individual with a disability in 14 CFR 382.3. 3 14 CFR 382.19(c). 4 See 49 U.S.C. 44701. 5 14 CFR 91.11, 121.580, and 135.120. 6 See DOJ’s ADA definition of a service animal in 28 CFR 35.104 and 28 CFR 36.104. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 individually trained to do work or perform tasks for the benefit of an individual with a disability 7 and DOJ’s ADA regulations limit service animals to dogs.8 The current rulemaking presents questions about how the ACAA is reasonably interpreted and applied to require airlines to accommodate the needs of individual passengers whose physical or mental disability necessitates the assistance of a service animal in air transportation. In approaching these questions, the Department recognizes that the ACAA’s nondiscrimination mandate is not absolute. The statute requires airlines to provide accommodations that are reasonable in light of the realities and limitations of air service and the onboard environment of commercial airplanes. DOJ, in interpreting the ADA, similarly allows public accommodations to consider the characteristics of miniature horses, including the implications of their presence on the safe operation of a given facility, when determining whether they may be accommodated within a facility.9 The cabins of most aircraft are highly confined spaces, with many passengers seated in close quarters and very limited opportunities to separate passengers from nearby disturbances. Animals on aircraft may pose a risk to the safety, health, and well-being of passengers and crew and may disturb the safe and efficient operation of the aircraft. Any requirement for the accommodation of passengers traveling with service animals onboard aircraft necessarily must be balanced against the health, safety, and mental and physical wellbeing of the other passengers and crew and must not interfere with the safe and efficient operation of the aircraft. 2. Need for a Rulemaking The Department has identified the following compelling factors that justify the issuance of a revision to the Department’s regulations on traveling by 7 DOJ explains that it did not classify emotional support animals as service animals because the provision of emotional support, well-being, comfort and companionship does not constitute work or tasks. See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 FR 56236, 56269 (Sept. 15, 2010). 8 DOJ, while not recognizing miniature horses as service animals, requires entities covered by the ADA to make reasonable modifications in their policies, practices, or procedures to permit an individual with a disability to use a miniature horse that has been individually trained to do work or perform tasks for the benefit of the individual with a disability. See 28 CFR 35.136(i); 28 CFR 36.302(c)(9). 9 See 28 CFR 36.302(c)(9) and see also 28 CFR 35.136. PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 6449 air with service animals in 14 CFR part 382: Service Animal Complaints Service animal-related complaints are increasingly a more significant portion of the disability-related complaints that the Department’s Aviation Consumer Protection Division and airlines receive. Given the year-over-year increase in the number of service animal complaints received by the Department against airlines, it is clear that the provision of assistance to passengers traveling with service animals is an area of increasing concern for passengers with disabilities. The Department received 115 service animal complaints against airlines in 2018, 70 complaints in 2017, 110 complaints in 2016, and 100 complaints in 2015, compared with 48 such in 2014 and 45 complaints in 2013. The increase in the number of service animal complaints is also representative of the complaints airlines received directly from passengers. U.S. and foreign airlines reported receiving 3,065 service animal complaints directly from passengers in 2018, 2,473 complaints in 2017, 2,433 in 2016, and 1,629 in 2015, compared with 1,010 such complaints in 2014 and 719 in 2013. Inconsistent Federal Definition of Service Animal At the same time, concerns have been raised by airlines, airports, and disability advocates about inconsistencies between the definition of a service animal under our rules for U.S. and foreign air carrier services versus in the airport context. As explained above, DOJ’s ADA regulations, which apply to public and commercial airports and airport facilities operated by businesses like restaurants and stores, define a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or mental disability.10 DOJ does not recognize emotional support animals as service animals because they are not individually trained to do work or perform tasks for the benefit of an individual with a disability.11 While DOJ’s ADA regulations limit service animals to dogs, entities covered by the ADA are required to assess whether they must permit individuals with disabilities to be accompanied by miniature horses as a reasonable 10 See 28 CFR 35.104 and 28 CFR 36.104. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 FR 56236, 56269 (Sept. 15, 2010). 11 See E:\FR\FM\05FEP1.SGM 05FEP1 6450 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules modification.12 DOT’s current ACAA regulations, which apply to airlines and their facilities and services, require airlines to recognize service animals regardless of species with exceptions for certain unusual species of service animals such as snakes, other reptiles, ferrets, rodents, and spiders. DOT’s current ACAA regulations also require airlines to recognize emotional support animals as service animals.13 Consequently, a restaurant in an airport could, without violating DOJ rules, deny entry to an emotional support animal that an airline, under the ACAA, would have to accept. These inconsistencies between DOT’s ACAA and DOJ’s ADA definition of a service animal present practical challenges for airlines and airports, and are a source of confusion for individuals with disabilities and the traveling public. Unusual Species of Animals Passengers have attempted to fly with many different unusual species of animals, such as a peacock, ducks, turkeys, pigs, iguanas, and various other types of animals as emotional support or service animals, causing confusion for airline employees and additional scrutiny for service animal users. Disability advocates have voiced concerns that the use of these unusual service animals on aircraft erodes the public’s trust and confidence in service animals. Airlines, meanwhile, have expressed concern about the heightened attention these animals have received and the resources airlines expend each time an unusual or untrained animal is presented for transport on an aircraft. jbell on DSKJLSW7X2PROD with PROPOSALS Pets on Aircraft Passengers wishing to travel with their pets may be falsely claiming that their pets are service animals so they can take their pet in the aircraft cabin or avoid paying pet fees charged by most airlines since airlines cannot charge service animal users a fee to transport service animals. Airlines have 12 See 28 CFR 35.136(i); 28 CFR 36.302(c)(9). DOJ, while not recognizing miniature horses as service animals, requires entities covered by the ADA to make reasonable modifications in their policies, practices, or procedures to permit an individual with a disability to use a miniature horse that has been individually trained to do work or perform tasks for the benefit of the individual with a disability, based on an assessment of factors, including the type, size, and weight of the miniature horse and whether the facility can accommodate these features; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation. 13 See 14 CFR 382.117 and Guidance Concerning Service Animals, 73 FR 27614, 27659 (May 13, 2008). VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 reported increases in the number of service animals on aircraft and expressed concern that the significant increase in the number of service animals traveling on aircraft may be the result of an increase in emotional support animals and/or passengers falsely claiming that their pets are emotional support animals.14 Furthermore, according to airlines, passengers are increasingly bringing untrained service animals onboard aircraft and putting the safety of crewmembers, other passengers, and other service animals at risk. There have also been reports of some online entities that may, for a fee, provide individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that the animal is an emotional support animal or psychiatric service animal, when in fact it is not. While the Department’s current service animal regulation permits airlines to require documentation from a licensed mental health professional for the carriage of emotional support animals, the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals. Misbehavior by Service Animals The Department’s service animal guidance provides that all service animals should be trained to behave 14 See Comment of Delta Air Lines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4141. In 2017, Delta Air Lines carried nearly 250,000 service and support animals, or almost 700 per day. The volume of service and support animals transported increased about 50 percent from 2016 to 2017 (along with an additional 240,000 pets), but the growth was not uniform over all categories of animals. ESAs led this growth with an increase of approximately 63 percent, while other service animal transport grew by only approximately 30 percent. And comment from Airlines for America, Regional Airline Association, and International Air Transport Association, https:// www.regulations.gov/document?D=DOT-OST-20180068-4288. From 2016 to 2017, the number of service animals (excluding ESAs) that U.S. airlines accommodated in cabin rose by nearly 24%—a rate of increase that far exceeds that of the number of passengers U.S. airlines transported over the same period. This rate of increase is modest, however, when compared to an explosion in the number of passengers seeking to travel with ESAs, which increased by 56% in just one year (from 2016 to 2017). As DOT noted, one U.S. airline experienced a 75% increase from 2016 to 2017. One [Airlines for America] member airline has experienced a more than eightfold increase in the number of ESAs since 2012. In 2017, we estimate that U.S. airlines accommodated more than 750,000 ESAs in cabin, which constituted 73% of all estimated service animals transported. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 properly in public to be treated as a service animal.15 Despite this guidance, some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and, therefore, are less likely to have received adequate behavioral training.16 Airlines have reported increases in the number of behavior-related service animal incidents on aircraft, including urinating, defecating, and biting. In 2018 and 2019, some airlines issued new service animal policies that require passengers traveling with a service animal to provide behavior/training attestations and animal health information as a condition of transportation.17 These policies are mostly applicable to emotional support and psychiatric service animals and were created to address perceived or actual increased incidents of animal misbehavior on aircraft. In response, disability rights advocates expressed concern about the increased burdens that these polices have placed on legitimate service animal users. Disability advocates are also concerned about the increased stigma and negative perception of all service animals traveling on aircraft. Request for Rulemaking The Department has heard from the transportation industry, as well as individuals with disabilities, that the current ACAA regulation could be improved to ensure nondiscriminatory access for individuals with disabilities, while simultaneously preventing instances of fraud and ensuring consistency with other Federal regulations. The Psychiatric Service Dog Society (PSDS), an advocacy group representing users of psychiatric service dogs, petitioned the Department in 2009 to eliminate a provision in the Department’s ACAA regulations permitting airlines to require documentation and 48 hours’ advance notice for users of psychiatric service animals. PSDS asserted that the Department’s current regulation treats individuals with mental and emotional disabilities unfairly because individuals traveling with psychiatric service 15 Guidance Concerning Service Animals, 73 FR 27614, 27659 (May 13, 2008). 16 See Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOTOST-2018-0068-4409; ‘‘Because ESAs are not required to have any training, any documentation of a passenger’s need for an ESA fails to address the issue that causes problems in air travel, the ESA’s training and behavior.’’ 17 See discussion on airline service animal policies the Department’s Final Statement of Enforcement Priorities Regarding Service Animals, 84 FR 43480 (August 21, 2019). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules animals, animals which are trained to do work or perform a task to assist individuals with disabilities, are subject to more burdensome requirements than passengers traveling with other trained service animals.18 The Department also received comments from airlines and airline associations regarding the need to revise the Department’s ACAA service animal regulations after the Department published a Notice of Regulatory Review in the Federal Register on October 2, 2017, inviting public comment on existing rules and other actions that are good candidates for repeal, replacement, suspension, or modification.19 Airlines generally asked that DOT harmonize its ACAA definition of a service animal with the service animal definition in DOJ’s ADA regulations.20 Further, in 2018, ten disability advocacy organizations urged the Department to stop the proliferation of a patchwork of service animal access requirements in airlines’ service animal policies.21 Congressional Mandate jbell on DSKJLSW7X2PROD with PROPOSALS The FAA Extension, Safety, and Security Act of 2016 requires that the Department issue a supplemental notice of proposed rulemaking on various access issues referenced in the Secretary’s June 15, 2015, Report on Significant Rulemakings, including traveling by air with service animals.22 Further, the FAA Reauthorization Act of 2018 (The FAA Act) requires the Department to conduct a rulemaking proceeding on the definition of the term service animal and to develop minimum 18 See Psychiatric Service Dog Society, DOT– OST–2009–0093–0001, 1–2, at https:// www.regulations.gov/document?D=DOT-OST-20090093-0001 (April 21, 2009). 19 82 FR 45750 (Oct. 2, 2017). 20 See, e.g., Comment from Airlines for America at https://www.regulations.gov/document?D=DOTOST-2017-0069-2751 (December 4, 2017); Comment from International Air Transport Association at https://www.regulations.gov/document?D=DOTOST-2017-0069-269 (December 1, 2017); Comment from Kuwait Airways at https:// www.regulations.gov/document?D=DOT-OST-20170069-2679 (December 1, 2017); and Comment from National Air Carrier Association at https:// www.regulations.gov/document?D=DOT-OST-20170069-2771 (December 4, 2017). 21 Letter to Secretary Chao from American Association of People with Disabilities, Bazelon Center for Mental Health Law, Christopher and Dana Reeve Foundation, Disability Rights Education and Defense Fund, National Association of the Deaf, National Disability Rights Network, Paralyzed Veterans of America, The Arc of the United States, The National Council on Independent Living, and United Spinal Association (February 6, 2018) at https://www.regulations.gov/ document?D=DOT-OST-2015-0246-0315. 22 The FAA Extension, Safety, and Security Act of 2016, Public Law 114–190, Sec. 2108 (July 15, 2016). VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 standards for what is required for service and emotional support animals.23 Congress also required the Department to consider whether it should align DOT’s ACAA definition of a service animal with the service animal definition established by DOJ in its rule implementing the ADA.24 In addition, Congress directed the Department to consider the following measures to ensure that pets are not claimed as service animals: (1) Photo identification for service animals, (2) training documentation, (3) medical documentation indicating the tasks the animal performs to assist its user, and (4) whether more than one service animal should be permitted to accompany a passenger.25 Moreover, the FAA Act requires the Department to consider the following to ensure the health and safety of passengers onboard aircraft: (1) Whether to require health and vaccination records for service animals, (2) whether to require thirdparty proof of behavior training for service animals. Finally, DOT must consider the impact of additional requirements on passengers with disabilities traveling with service animals and ways to eliminate or mitigate those impacts. The Department is considering each of these measures as part of the present rulemaking. The FAA Act directs the Department to issue a final rule on service animals no later than March 22, 2020. ACCESS Advisory Committee In April 2016, the Department established an Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee) to negotiate and develop a proposed rule concerning accommodations for individuals with disabilities traveling by air with service animals.26 The Committee members and other interested parties discussed the following issues: (1) Distinguishing between emotional support animals and other service animals; (2) limiting the species of service animals that airlines are required to transport; (3) limiting the number of service animals that a single individual should be permitted to transport; and (4) requiring attestation from all service animal users that their animal has been trained to behave in a public setting. However, despite good faith efforts, the ACCESS Advisory Committee was not able to reach consensus on how the service animals regulations should be revised. 23 The FAA Reauthorization Act of 2018, Public Law 115–254, Sec. 437 (October 5, 2018). 24 Id. 25 Id. 26 81 FR 20265 (Apr. 7, 2016). PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 6451 Nevertheless, the Department gathered useful information during this process from disability rights advocates, the airline industry, an association representing flight attendants, and other interested parties. 3. The ANPRM On May 23, 2018, the Department published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) titled ‘‘Traveling by Air with Service Animals.’’ 27 In the ANPRM, the Department sought comment on how to amend the Department’s ACAA regulations to address the problems that exist with the rule, while also ensuring nondiscriminatory access for individuals with disabilities in air transportation. In the ANPRM, the Department sought comment on the following: (1) Whether psychiatric service animals should be treated similarly to other service animals; (2) whether there should be a distinction between emotional support animals and other service animals; (3) whether emotional support animals, if allowed onboard a flight, should be required to travel in pet carriers for the duration of the flight; (4) whether the species of service animals and emotional support animals that carriers are required to transport should be limited (for example, limited to dogs only); (5) whether the number of service animals/emotional support animals should be limited per passenger; (6) whether an attestation should be required from all service animal and emotional support animal users that their animals have been trained to behave in a public setting; (7) whether service animals and emotional support animals should be harnessed, leashed, or otherwise tethered; (8) whether there are safety concerns with transporting large service animals and if so, how to address them; (9) whether airlines should be prohibited from requiring a veterinary health form or immunization record from service animal users without an individualized assessment that the animal would pose a direct threat to the health or safety of others or would cause a significant disruption in the aircraft cabin; and (10) whether U.S. airlines should continue to be held responsible if a passenger traveling under the U.S. carrier’s code faces additional restrictions on travel with a service animal on a flight operated by 27 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832 (May 23, 2018). E:\FR\FM\05FEP1.SGM 05FEP1 6452 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules the U.S. carrier’s foreign codeshare partner.28 The Department received approximately 4,500 comments over the 45-day comment period from disability advocacy organizations, airlines, human and animal health organizations, consumer groups, and other interested parties; the vast majority of these comments were from individual members of the public.29 The provide for the safety and well-being of all passengers and crewmember and the safe and efficient operation of the aircraft. The Department’s responses to the comments are set forth below, immediately following a summary of regulatory provisions and a summary of the regulatory impact analysis. 4. Summary of Proposed Regulatory and Deregulatory Provisions Subject Proposal Definition of Service Animal ............ A service animal would be defined as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Carriers would not be required to recognize emotional support animals as service animals and may treat them as pets. Psychiatric service animals would be treated the same as other service animals that are individually trained to do work or perform a task for the benefit of a qualified individual with a disability. Carriers would be permitted to limit service animals to dogs. Carriers would be permitted to require passengers to remit a completed U.S. Department of Transportation Service Animal Air Transportation Health Form as a condition of transportation. Carriers would be permitted to require passengers to remit a completed U.S. Department of Transportation Service Animal Air Transportation Behavior and Training Attestation Form as a condition of transportation. Carriers would be permitted to require individuals traveling with a service animal on flights eight hours or longer to complete a U.S. Department of Transportation Service Animal Relief Attestation as a condition of transportation. Carriers would be permitted to limit the number of service animals traveling with a single passenger with a disability to two service animals, and would be permitted to require that both service animals fit on their handler’s lap and/or within their handler’s foot space on the aircraft. Carriers would be permitted to require a service animal to fit within its handler’s foot space on the aircraft. Carriers would be permitted to require that a service animal be harnessed, leashed, tethered, or otherwise under the control of its handler. Carriers would be prohibited from refusing to transport a service animal based solely on breed or generalized physical type, as distinct from an individualized assessment of the animal’s behavior and health. Carriers that require a passenger with a disability to check-in at the airport prior to the travel time required for the general public would be required to make an employee available promptly to assist the passenger with the check-in process. Emotional Support Animals ............ Treatment of Psychiatric Service Animals. Species ........................................... Health Form .................................... Behavior and Training Attestation .. Relief Attestation ............................. Number of Service Animals per Passenger. Large Service Animals .................... Control of Service Animals ............. Service Animal Breed or Type ........ Check-In Requirements .................. jbell on DSKJLSW7X2PROD with PROPOSALS Department has carefully reviewed and considered the comments received and is proposing a rulemaking that is designed to ensure that airlines provide nondiscriminatory access to passengers with disabilities who require the assistance of service animals while incorporating modifications to these requirements reasonably designed to ensure that airlines remain able to 5. Summary of Regulatory Impact Analysis The Department has prepared a preliminary regulatory evaluation in support of the NPRM to amend the ACAA service animal regulations. DOT proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. DOT’s proposed service animal definition also explains that emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for purposes of this rule. In addition, DOT proposes to treat psychiatric service animals (animals that assist individuals with mental health related disabilities) like other service animals. Under the proposed 28 Id. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 rule, airlines would be allowed to require passengers traveling with a service animal to complete forms attesting that the passenger’s service animal has been individually trained to do work or perform tasks for the benefit of the passenger with a disability, the animal has been trained to behave in public, the animal is in good health, and the animal has the ability either not to relieve itself on a long flight or to relieve itself in a sanitary manner. Under the proposed rulemaking, carriers would no longer be required to recognize emotional support animals as service animals. Passengers currently have an incentive to claim pets as emotional support animals as existing regulations require carriers to transport all emotional support animals at no cost to the passenger. The primary economic impact of this proposed rulemaking is that it eliminates a market inefficiency. The current policy amounts to a price restriction, which requires carriers to forgo a potential revenue source. In addition, the current policy, which effectively sets the price at zero, requires carriers to use resources to provide an accommodation for emotional support animals. There is one quantified cost element: A potential burden on passengers traveling with service animals who may be required to submit up to three DOT forms to carriers. For Paperwork Reduction Act (PRA) purposes, we estimate that the forms could create 144,000 burden hours and $3.0 million in costs per year. In some cases, however, carriers already ask passengers to complete equivalent nongovernmental forms. Thus, the PRA numbers likely overestimate the burden that would result from this rulemaking. 29 See Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, https:// www.regulations.gov/docket?D=DOT-OST-20180068. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules 6453 TABLE ES–1—SUMMARY OF IMPACTS DUE TO PROPOSED RULEMAKING [Millions of 2018 dollars] Impact Annual value Paperwork burden for passengers traveling with service animals ............................................................................................. Discomfort to passengers who no longer will travel with ESAs ................................................................................................. Eliminated deadweight loss; transfer of surplus from consumers to producers (increased fees paid by passengers travelling with ESAs). Reduction in negative externalities caused by ESAs ................................................................................................................. Secondary market impacts due to reduced demand for ESA documentation Service .............................................................. Public or non-use values or negative externalities in ESA travel could affect the efficiency consequences of this proposed rule. The preliminary regulatory evaluation describes the potential impacts of non-use values and negative externalities in detail but does not quantify them due to a lack of data. The Department requests information and data to quantify and evaluate the extent of these impacts. 1. Service Animal Species Current Requirements The Department’s current service animal rule does not include a species restriction with the exception of certain unusual species, such as snakes, other reptiles, ferrets, rodents, and spiders. The ANPRM In the ANPRM, the Department sought comment on what, if any, species limitations should be placed on service animals.30 In light of suggestions made by certain disability advocacy organizations, the Department also sought specific comment on whether capuchin monkeys should be recognized as service animals.31 Finally, the Department requested comment on whether it should recognize miniature horses under its definition of a service animal, as some individuals with disabilities prefer miniature horses instead of dogs as service animals for religious reasons, because of their long life spans, and/or because of allergies.32 jbell on DSKJLSW7X2PROD with PROPOSALS Comments Received Individual commenters, disability advocates, airlines, and other commenters all support dogs as service animals. This result is not surprising as the Department has been consistently informed that the clear majority, approximately 90 percent or more, of service animals that travel on aircraft are dogs. Some commenters note that dogs are the preferred species for service 30 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23839. 31 Id. at 23840. 32 Id. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 animals because they can be more easily trained to mitigate a passenger’s disability than other animals. In a joint comment filed by Airlines for America (A4A), the Regional Airline Association (RAA), and International Air Transport Association (IATA), these associations commented that dogs in particular can hold their elimination functions for extended amounts of time, have the correct temperament to serve as service animals, and can be trained to behave appropriately in public and around large groups of people.33 Assistance Dogs International (ADI) notes specifically that dogs have been assisting individuals with disabilities for over 100 years.34 A smaller majority of disability advocate organizations and airports support both dogs and miniature horses as service animals. Disability advocates argue that miniature horses should be recognized subject to aircraft space restraints for those individuals with disabilities who rely on these animals, while airports argue for their inclusion to promote greater predictably for passengers with disabilities and airport operators. Although miniature horses do not fall under DOJ’s definition of a service animal, DOJ requires covered entities such as airports to permit individuals with disabilities to use miniature horses, where reasonable, if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.35 Some disability organizations, however, argue against miniature horses as service animals, reasoning that horses are not commonly used as service animals and that excluding them from the rule will not impact many individuals with disabilities. Some airline commenters acknowledged that they receive very few requests to 33 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. 34 Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOTOST-2018-0068-4409. 35 See 28 CFR 36.302(c)(9) and 28 CFR 35.136. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 ¥$3.0. Not quantified. $75.1 (total). Not quantified. Not quantified. accommodate miniature horses each year and further oppose the inclusion of miniature horses as service animals because they are too large and inflexible to be safely accommodated on an aircraft and to fit within a passenger’s foot space. A small number of disability advocacy organizations support capuchin monkeys as service animals because of their ability to assist individuals with limited mobility with in-home services; however, these groups recognize that capuchin monkeys must be contained in a carrier in the airport and on the aircraft because of the potential danger they pose. Other disability advocacy organizations, airlines, and animal health associations strongly oppose recognizing capuchin monkeys as service animals. These groups argue that capuchin monkeys, while trained to do work or perform tasks for individuals with disabilities, are not domesticated animals and can be prone to increased aggression. Other groups oppose capuchin monkeys and other non-human primates as service animals, citing DOJ’s position that these animals have the potential for disease transmission and that they exhibit unpredictable aggressive behavior.25 While Paralyzed Veterans of America (PVA) supports some limitations on the type of species that may be used as service animals or emotional support animals, the organization argues that access should be provided for all species and sizes of dogs, cats, rabbits, miniature horses, capuchin monkeys and other species that can be trained to behave appropriately and be safely brought on airplanes.36 Finally, while the Association of Flight Attendants (AFA) commented that service animals and ESAs should be limited by species, it recognized that it was not in a position to make specific recommendations about the type of species airlines should be required to 36 Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOTOST-2018-0068-4187. E:\FR\FM\05FEP1.SGM 05FEP1 6454 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules transport.37 However, AFA recognized that it is appropriate for the Department under the ACAA to consider the characteristics of the animal that may be carried in the cabin, the size of the animal, and the aircraft’s ability to accommodate the animal. jbell on DSKJLSW7X2PROD with PROPOSALS DOT Response DOT proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. DOT’s proposed service animal definition also explains that emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals. Consistent with this definition, the Department proposes to limit the species of service animals to dogs. Under the Department’s proposal, airlines could choose to transport other species of animals that assist individuals with disabilities in the cabin for free pursuant to an established airline policy, but would only be required under Federal law to recognize dogs as service animals. The Department considered the fact that dogs are the most common animal species used by individuals to mitigate disabilities both on and off aircraft as noted by many commenters. Dogs also have both the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people. The Department considered, but decided against, a proposal that would include other species as service animals, including capuchin monkeys and miniature horses. Although trained capuchin monkeys can assist persons with limited mobility with their daily tasks, we are not proposing to recognize capuchin monkeys as service animals because they may present a safety risk to other passengers as they have the potential to transmit diseases and may exhibit ‘‘unpredictable aggressive behavior.’’ 38 Further, according to information the Department received from Helping Hands: Monkey Helpers,39 37 Comment of the Association of Flight Attendants, https://www.regulations.gov/document? D=DOT-OST-2018-0068-4207. 38 Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 FR 56164, 56194 (Sept. 5, 2010). 39 Helping Hands monkeys are New World monkeys, native to Central and South America. New World monkeys do not carry the zoonotic diseases often associated with Old World monkeys (from Africa) such as Herpes B, Monkey Pox, or Simian Immunodeficiency Virus (SIV). However, according to the CDC, New World monkeys do carry VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 it is often, if not always, qualified trainers rather than individuals with disabilities, who travel by air with capuchin monkeys, as the trainer delivers the monkeys. However, neither the existing regulation nor the proposed rule would require airlines to transport service animals when they are not accompanied by the service animal user. Because individuals with disabilities may have significantly more difficulty obtaining the assistance of capuchin monkeys if they are not allowed to travel by air with their trainer, the Department seeks comment on whether to require airlines to allow the transport of closed-colony capuchin monkeys 40 in a carrier (capuchin monkeys weigh approximately 6–10 lbs.) and when traveling with a qualified trainer.41 In addition, the Department did not propose to include miniature horses in its definition of a service animal given size limitations on aircraft. The Department seeks comment on its proposal to limit service animals to dogs. 2. Breed or Type Restrictions Current Requirements While the Department’s disability regulations allow airlines to deny transportation to an animal if, among other things, it poses a direct threat to the health or safety of others, the Department has taken the position that restrictions on specific dog breeds or types are inconsistent with its current service animal regulation.42 ANPRM Although the Department did not specifically seek comment on whether and potentially transmit tuberculosis, measles, enteric diseases (salmonella, shigella, cryptosporidium, and giardia). 40 According to Helping Hands: Monkey Helpers, its capuchin monkeys were bred from an existing colony first obtained within the United States in 1979 and continue to be housed in a closed colony, which means that the organization knows exactly where the monkeys come from, including their parentage, and have complete medical histories on every monkey in the program. However, according to CDC, most of the zoonotic diseases associated with New World NHPs can be acquired from humans. A ‘‘closed colony’’ does not ensure that these animals are or will remain free of zoonotic diseases of concern. TB, in particular, is always acquired from humans. The comment does not mention routine, regular TB testing, which is a necessary component of a ‘‘closed colony.’’ More information is available at https:// www.monkeyhelpers.org. 41 The Department notes that under 42 CFR 71.53, the importation of any non-human primate into the United States is prohibited unless the importer is registered with the CDC and the purpose of the import is limited to science, education, or exhibition. 42 See Final Statement of Enforcement Priorities Regarding Service Animals, 84 FR 43480 (August 21, 2019).). PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 airlines should be permitted to refuse transportation to certain breeds or types of service dogs, the Department received a number of comments on airline breed restrictions. Comments Received The Department received hundreds of comments from individual commenters on whether airlines should be permitted to restrict service dogs based on breed or type. Delta Air Lines, Inc. (Delta Air Lines) commented that carriers should be permitted to impose such restrictions to ensure the safety of passengers on aircraft if the Department does not establish a clear means to demonstrate that an animal can behave properly.43 No other airline and no disability rights organization addressed this issue as the ANPRM did not specifically call for comment on this subject. Most individual commenters did not support allowing airlines to impose breed restrictions on service animals. These commenters stated that pit-bull bans are discriminatory and that their pit-bull-type dogs, like other dogs, can be trained to perform tasks to mitigate a user’s disabilities and can be well behaved. These commenters also questioned an airline’s ability to determine whether a dog is a ‘‘pit bull’’ simply by looking at the animal’s features. Conversely, approximately 22 percent of commenters supported a breed or type restriction on dogs such as pit bulls (typically taken to include American pit bull terriers, Staffordshire bull terriers, and American Staffordshire bull terriers), as well as other types of dogs that commenters believe are commonly known to be aggressive. DOT Response The Department is proposing that airlines should continue to be prohibited from restricting service animals based solely on the breed or generalized type of dog. The Department’s policy has been to require airlines to conduct individualized assessments of particular service animals based on the animal’s evident behavior or health, rather than applying generalized assumptions about how a breed or type of dog would be expected to behave. Under this policy, the Department allows airlines to refuse transportation to dogs that exhibit aggressive behavior and that pose a direct threat to the health or safety of others regardless of breed, and we propose to retain that policy in our new service animal rule. We note that DOJ 43 Comment of Delta Air Lines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4141. E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS also rejects an outright ban on service animals because of their breed in implementing its regulations under the ADA. DOJ has advised municipalities that prohibit specific breeds of dogs that they must make an exception for a service animal of a prohibited breed, unless the dog poses a direct threat to the health or safety of others, a determination that must be made on a case-by-case basis.44 However, the Department understands the concerns raised about pit bulls and certain other breeds or types of dogs that have a reputation of attacking people and inflicting severe and sometimes fatal injuries. The Department also understands that there may be concerns that certain dogs may be dangerous because of their muscular bodies, large and powerful jaws and neck muscles, and ferocity when provoked to attack. The Department seeks comment on whether these concerns are valid. In particular, the Department seeks comment on whether, notwithstanding the DOJ rules under the ADA, the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bulls and any other particular breeds or types of dogs from traveling on their flights under the ACAA even when those dogs have been individually trained to perform as service animals to assist a passenger with a disability. The Department will consider this question in light of the full rulemaking record when finalizing this rule. The Department also seeks comment on 44 See Frequently Asked Questions about Service Animals and the ADA, Questions 22–24, available at https://www.ada.gov/regs2010/service_animal_ qa.html (July 20, 2015): [I]f an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation cannot exclude the individual or the animal from the place of public accommodation. The animal can only be removed if it engages in the behaviors mentioned in § 36.302(c) (as revised in the final rule) or if the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation. See also 75 FR 56236, 52266–56267 (September 15, 2010): [I]f an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation cannot exclude the individual or the animal from the place of public accommodation. The animal can only be removed if it engages in the behaviors mentioned in § 36.302(c) (as revised in the final rule) or if the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 whether its proposal to allow airlines to conduct an individualized assessment of a service animal’s behavior to determine whether the service animal poses a direct threat to the health or safety of others is an adequate measure to ensure that aggressive animals are not transported on aircraft, rather than banning an entire breed or type of service animal. 3. Emotional Support Animals Current Requirements For purposes of air transportation, under our existing rules, DOT considers a service animal to be any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well-being of a passenger.45 However, while the Department currently requires airlines to recognize emotional support animals as service animals, it allows airlines to require that emotional support animal users provide a letter from a licensed mental health professional of the passenger’s need for the animal. Currently, the Department’s ACAA rules allow airlines to require emotional support animal users to provide current documentation (no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional stating the following: (1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV); (2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination; (3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and (4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.46 Furthermore, to enable airlines sufficient time to assess the passenger’s documentation, DOT permits airlines to require 48 hours’ advance notice of a passenger’s wish to travel with an emotional support animal so that airlines can verify the documentation. Airlines are also permitted to require that passengers traveling with emotional 45 See 14 CFR 382.117; Guidance Concerning Service Animals, 73 FR 27614, 27663 (May 13, 2008). 46 14 CFR 382.117(e)(1)–(4). PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 6455 support animals check-in one hour before the check-in time for the general public.47 The ANPRM In the ANPRM, the Department described the concerns raised by airlines, disability advocates, flight attendants, and the traveling public that emotional support animals may pose a safety risk to other service animals, passengers, and airline personnel and could create a disturbance or disruption that would interfere with the safe and efficient operation of the aircraft. The Department sought comment on whether it should continue to include emotional support animals in the definition of a service animal in its ACAA regulation, or adopt a definition of service animal similar to the definition in DOJ’s ADA regulation where emotional support animals are not recognized as service animals.48 In the event that the Department decided to continue to recognize emotional support animals as service animals, the Department sought comment on whether it should continue to allow airlines to require emotional support animal users to provide documentation.49 The Department also sought comment on alternative approaches to documentation that can be used to verify an emotional support animal’s status.50 Further, the Department sought comment on whether emotional support animals should be regulated separately and distinctly from service animals, and if airlines are required to transport emotional support animals, whether airlines should be allowed to require that emotional support animals be contained.51 Comments Received Should the Department continue to include emotional support animals in the Department’s ACAA definition of a service animal? Most organization commenters urged the Department to align its definition of a service animal with DOJ’s definition of a service animal, which does not recognize emotional support animals and limits service animals to dogs individually trained to do work or perform a task for an individual with a disability. As part of this NPRM, the Department seeks comment on reasons 47 14 CFR 382.27(c)(8). by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23838. 49 Id. 50 Id 51 Id 48 Traveling E:\FR\FM\05FEP1.SGM 05FEP1 6456 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules the regulation of service animals on aircraft should or should not differ from DOJ’s regulation of service animals under its rules implementing the ADA. Airline organizations commented that the Department should follow DOJ’s lead and exclude emotional support animals from the definition of a service animal in the air transportation context because DOJ’s definition is ‘‘better suited to the particular challenges associated with accommodating animals in the aircraft cabin environment, which involves allowing animals to travel in a confined, noisy, moving space at high altitude . . . and in close proximity to crew, passenger, and other animals and no opportunity to remove the animal during flight.’’ 52 Similarly, disability advocates have commented that the Department’s current rule, which classifies emotional support animals as service animals, causes significant confusion in the disability community. However, while disability advocates, airlines, and the majority of commenters agree that emotional support animals should be removed from the definition of a service animal, they disagree on whether the Department should recognize emotional support animals as an accommodation for individuals with disabilities that would be regulated separately and distinctly from service animals. Most advocacy organizations support a definition of service animal focused on animals trained to do work or perform tasks for the benefit of individuals with disabilities, similar to DOJ’s definition. Those advocacy organizations, however, support the Department’s continued recognition of emotional support animals, so long as emotional support animals are regulated separately and distinctly from service animals. The National Federation of the Blind (NFB) 53 commented that emotional support animals, which are untrained to mitigate a disability, should be permitted as an accommodation subject to ‘‘specific and more restrictive conditions’’ of carriage. In addition, Psychiatric Service Dog Partners (PSDP) 54 commented that regulating emotional support animals differently from other service animals is warranted given that emotional support animals have not been trained to perform a jbell on DSKJLSW7X2PROD with PROPOSALS 52 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. 53 Comment of the National Federation of the Blind, https://www.regulations.gov/document? D=DOT-OST-2018-0068-3261. 54 Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOTOST-2018-0068-3117. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 specific task for a passenger with a disability, and emotional support animal users are likely not aware of DOT’s behavior expectations or the required public access training protocols. Similarly, in a joint comment filed by A4A, RAA, and IATA, these associations commented that should the Department continue to recognize emotional support animals, a decision opposed by the associations, emotional support animals should be regulated separately and distinctly from service animals and subject to more stringent requirements than service animals, such as documentation from a licensed mental health professional who has examined and diagnosed the emotional support animal user in person.55 The majority of individual commenters provided general statements of support for the Department’s continued recognition of emotional support animals, and did not opine on whether emotional support animals should be regulated separately from service animals. Generally, these individuals, along with those disability advocates in support of the continued recognition of emotional support animals, argue that the Department should continue to recognize the vital role that emotional support animals play in mitigating mental and emotional disabilities during air transportation and at a passenger’s destination. Specifically, PVA insists that passengers with disabilities have access to their emotional support animals as the mere presence of these animals accommodates a person’s disability and may be crucial to allowing a person with a disability to travel by air.56 Similarly, the American Council of the Blind (ACB) recognizes that emotional support animals can perform a vital role for individuals who are incapable of moving freely through society.57 Autism Speaks commented that the Department should afford individuals with disabilities who rely on emotional support and psychiatric service animals ‘‘with the same legal protections as people who use other service animals.’’ 58 Autism Speaks acknowledges that ‘‘people may not see 55 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. 56 Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOTOST-2018-0068-4187. 57 Comment of American Council of the Blind, https://www.regulations.gov/document?D=DOTOST-2018-0068-4133. 58 Comment of Autism Speaks, https:// www.regulations.gov/document?D=DOT-OST-20180068-4268. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 the services psychiatric service animals and emotional support animals provide because sometimes these services may not be obvious; autism itself may be an invisible disability,’’ but ‘‘the needs of many people with autism for emotional support, however, are very real.’’ Airlines have indicated that fraud and safety are the primary reasons they oppose the Department’s continued recognition of emotional support animals. In a joint comment filed by A4A, RAA, and IATA, these associations commented that ‘‘incidents involving animals that allegedly are [emotional support animals] [have] become an unacceptable threat to the health and safety of airline staff and the traveling public, including qualified individuals with a disability who travel with a trained service animal and those trained service animals themselves.’’ 59 With respect to fraud, airlines commented that individuals traveling with purported emotional support animals may not actually be individuals with disabilities, and the surge in the transport of emotional support animals on aircraft is fueled by ‘‘cheap and easy availability of fraudulent credentials.’’ American Airlines, Inc. (American Airlines) commented that it experienced a 48-percent increase in the number of emotional support animals carried in 2017 compared to 2016 (105,155 in 2016 and 155,790 in 2017).60 American Airlines also commented that it experienced a 17-percent decline in the number of requests to transport pets for a fee in 2017 in comparison to 2016. Spirit Airlines, Inc. (Spirit Airlines) commented on the loss of millions of dollars in pet carriage fees from passengers fraudulently claiming their ‘‘house pets are service or support animals’’ and on instances of emotional support animal misbehavior as justification for why the Department should not recognize emotional support animals.61 Delta Air Lines recognizes that some passengers with disabilities ‘‘have a legitimate need’’ for emotional support animals; however, the carrier opposes the Department’s continued recognition of emotional support animals and urged the Department to adopt the DOJ definition of a trained service animal. Delta believes that passengers who currently have a 59 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. 60 Comment of American Airlines, Comment of American Airlines, Inc. https:// www.regulations.gov/document?D=DOT-OST-20180068-3507. 61 Comment of Spirit Airlines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4226. E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS legitimate need for an emotional support animal could still be accommodated on aircraft under the DOJ definition of a service animal, if these passengers trained their animals to become psychiatric service animals, which are recognized as service animals by DOJ.62 However, Spirit Airlines contends that the Department should eliminate the category of emotional support animals in its regulations because emotional support animals generally receive ‘‘absolutely no training, neither obedience nor specific to their owner’s disability’’ (emphasis in original).63 Most U.S. carriers believe that most of the fraud and safety issues on which the Department sought comment in the ANPRM would be mitigated if DOT adopted a definition of service animal that excluded emotional support animals. While U.S. airlines oppose the Department’s continued recognition of emotional support animals, foreign carriers are split on this issue. Those foreign carriers in support of emotional support animals urge the Department to define emotional support animals separately from service animals and subject them to a more stringent regulatory standard. Health and safety concerns continue to be the primary justification provided by foreign carriers in support of eliminating emotional support animals or subjecting them to stricter regulation. Should the Department continue to allow airlines to require emotional support animal users to provide medical documentation and advance notice? While most disability advocates oppose allowing airlines to require documentation from service animal users, including emotional support animal users, some advocacy organizations are in favor of documentation exclusively for emotional support animals. Some advocacy organizations support documentation for all service animal users in the form of a decision-tree, which is a series of questions designed to educate the public on traveling with service animals and reduce the instances of individuals fraudulently representing their pets as service animals. Some advocates and airlines expressed support for behavior attestations, another form of documentation first suggested during a 2016 negotiated rulemaking as a 62 Comment of Delta Air Lines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4141. 63 Comment of Spirit Airlines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4226. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 potential measure to be proposed by the Department in a future rulemaking.64 Since the negotiated rulemaking, several carriers have created their own behavioral attestations as one of many service animal policy changes that carriers put into place in 2018 and 2019. Finally, some disability advocacy organizations that oppose documentation for service animals, including emotional support animals, commented that the Department should only permit airlines to make the same inquiries that DOJ permits under its regulation implementing the ADA: (1) Is the animal required because of a disability? and (2) What work or task has the animal been trained to perform? 65 While all commenting U.S. airline opposed the Department’s continued recognition of emotional support animals, airlines have commented that if the Department continues to require airlines to transport emotional support animals as an accommodation for individuals with disabilities, airlines should be permitted to require those passengers to provide documentation from a medical professional that confirms the passenger’s need for the animal. Airlines also commented that airlines should be able to impose more restrictive requirements—for example, that the passenger’s diagnosis be based on an in-person visit and that the documentation state that the passenger has a mental impairment as defined in the Department’s ACAA regulations, as opposed to stating only that the passenger has a disorder recognized under the Diagnostic and Statistical Manual of Mental Disorders. Both U.S. and foreign carriers believe that allowing airlines to require documentation to prove the passenger’s need for an emotional support animal is essential if the Department continues to recognize emotional support animals. Airlines commented that there is a significant problem with fraud under the Department’s current requirements and that fraud would only become more prevalent should the Department dispense with a documentation requirement for emotional support 64 Service Animal—Vote Tally Sheet—3rd Party Documentation, Mandatory Attestation (Oct. 26, 2016), https://www.regulations.gov/document? D=DOT-OST-2015-0246-0281. 65 See 28 CFR 35.136(f); 28 CFR 36.302(c)(6). DOJ’s ADA regulations do not generally permit a covered entity to make these two inquiries when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability, (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability). PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 6457 animal users. The Association of Flight Attendants (AFA) also favors a documentation requirement for emotional support animal users and noted that while some emotional support animal users may be discouraged from flying if required to produce documentation, the correlation between a documentation requirement and fraud reduction justifies the requirement. That association also noted that while a documentation requirement may not eliminate fraud entirely, fraud reduction, to any degree, benefits the traveling public, individuals with disabilities, and airlines. Should the Department allow airlines to require emotional support animals to be contained in pet carriers? Disability advocates are largely split on the issue of whether emotional support animals should be contained in pet carriers. Some advocates support requiring the containment of emotional support animals but comment that they should be allowed to be removed from the carrier to mitigate a disability. Other disability advocates only support the containment of emotional support animals when the animal is behaving badly. Some disability advocates oppose a containment requirement altogether fearing that large emotional support animals that do not fit in pet carriers would not be permitted access on airplanes. Finally, some advocates recommend that emotional support animals merely be leashed, harnessed, or tethered, rather than contained. The majority of airlines commented that if the Department chooses to recognize emotional support animals, emotional support animals should be contained for the duration of the flight. If the animal is too large to fit in a container, one airline suggests that the airline be permitted to treat the animal as a pet and offer the passenger the option for the animal to fly in the cargo compartment. Conversely Delta Air Lines, which generally opposes the Department’s recognition of emotional support animals, does not support containing emotional support animals for the duration of the flight.66 That carrier explained that if the Department were to decide to continue to recognize emotional support animals, emotional support animals would be unable to mitigate a passenger’s disability if contained in a carrier. The carrier further stated that a containment requirement for emotional support animals, if allowed, would be 66 Comment of Delta Air Lines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4141. E:\FR\FM\05FEP1.SGM 05FEP1 6458 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS inconsistent with the spirit of the ADA and the ACAA. The carrier does, however, support that airlines be granted the authority to restrain emotional support animals by harness, leash, or other restraint mechanisms. Airport commenters support a requirement that emotional support animals be contained if they continue to be recognized, especially while traversing through the airport. Airports argue that airport operators have the right to require any animal that is not a service animal under the ADA to be contained and a containment requirement promotes consistency between the ADA and ACAA regulations. What species should be accepted as emotional support animals? Disability advocacy organizations and the public are generally split on what species of emotional support animals the Department should recognize if it continues to recognize emotional support animals. Some public commenters and disability advocacy organizations favor the Department’s current species requirement for emotional support animals, which does not limit species except with respect to unusual species such as snakes, other reptiles, fetters, rodents, and spiders.67 Conversely, other individual commenters and disability advocates urge the Department to recognize only dogs and miniature horses as emotional support animals. The majority of disability advocacy organizations and public commenters, however, are split between favoring a requirement that dogs and cats be recognized as emotional support animals and favoring a requirement that dogs, cats, and rabbits be recognized as emotional support animals because, as noted by these organizations, dogs, cats and rabbits are the most commonly used species of emotional support animal. A small contingent of disability advocacy organizations encourage the Department to allow airlines to limit emotional support animals to animals that have been trained to behave properly in public, rather than specifying a species in the rule. Finally, one advocacy organization argues that all trained or domesticated emotional support animals should be permitted to be recognized as a service animal under DOT’s ACAA rule. Most airlines commented that they should only be required to carry dogs as emotional support animals if the Department continues to recognize emotional support animals, although 67 14 CFR 382.117(f). VerDate Sep<11>2014 17:09 Feb 04, 2020 some also support permitting miniature horses, subject to airline pre-approval. One airline suggests that cats be allowed as emotional support animals if the Department continues to recognize emotional support animals. DOT Response Definition of a Service Animal The Department proposes in this NPRM to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. This definition is similar to DOJ’s definition of a service animal under Title II and Title III of the ADA.68 DOJ’s Title II rules for State and local governments govern airports owned by a public entity and DOJ’s Title III rules for public accommodations and commercial facilities govern privately owned airports and airport facilities. Under DOT’s proposed service animal definition, like DOJ’s service animal definition in its ADA rules, emotional support animals would not be recognized as service animals as they are not trained to do work or perform a task for the benefit of an individual with a disability. The Department’s proposal is intended to align DOT’s ACAA definition of a service animal with the service animal definition established by DOJ in its rules implementing the ADA and thereby decrease confusion for individuals with disabilities, airline personnel, and airports. While the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy. The Department seeks comment on its proposed service animal definition, which does not recognize emotional support animals and limits the species that qualify as service animals to dogs. Although the NPRM proposes not to treat emotional support animals as service animals, the Department seeks further comment on whether the Department should recognize emotional support animals as an accommodation for individuals with disabilities that would be regulated separately and distinctly from service animals. The Department recognizes that we have already received considerable feedback on this topic during the comment period to the ANPRM; individuals and organizations need not re-submit those same comments during the comment period to this NPRM. The NPRM solicits 68 See Jkt 250001 PO 00000 28 CFR 35.104 and 28 CFR 36.104. Frm 00011 Fmt 4702 Sfmt 4702 comment on whether, and to what extent, the proposal not to recognize emotional support animals would impact the ability of individuals with disabilities who rely on emotional support animals to travel via aircraft. The Department seeks comment on whether individuals with disabilities who use emotional support animals to mitigate their disabilities would be less likely to travel by air if they are no longer permitted to travel with their emotional support animal. Furthermore, since airlines would be permitted to treat emotional support animals as pets, the Department requests information from airlines on whether individuals would be able to transport emotional support cats or other small animals as pets in the cabin for a fee and whether there are limits on the number of pets an airline would allow per flight which could impact their transport. Some commenters have noted that emotional support animal users who have a mental health disability may train their dogs to do work or perform a task to assist them with their disability, thereby transforming the animal from an emotional support animal to a psychiatric service animal. The Department requests comment as to whether the Department should recognize this option and, if so, whether the availability of this option would mitigate any negative impact of this proposal on users of emotional support dogs. Alternatively, if the Department decides not to adopt the definition of service animal as proposed (and instead adopts a final rule that continues to recognize emotional support animals), the Department requests comment on whether emotional support animals are more likely to misbehave in comparison to traditional service animals because they have not been trained to mitigate a disability. While one solution suggested by commenters is to permit airlines to require stricter documentation for emotional support animal users (e.g., forms completed and signed by a medical practitioner such as a doctor or nurse practitioner, verification of in-person treatment by a medical practitioner, and verification that the patient has or will receive ongoing treatment from the medical practitioner), others expressed concern that these stricter measures may impose unnecessary burdens on passengers with disabilities. The Department requests comment on whether stricter documentation for emotional support animal users would be effective in decreasing the likelihood of fraud by businesses seeking to profit by guaranteeing emotional support animal E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules documentation to individuals traveling with pets. The Department also seeks comment on how limiting emotional support animals to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. It is the Department’s understanding that dogs currently represent the majority (approximately 90 percent) of service animals transported on aircraft (including emotional support animals) and cats are the second largest species used as emotional support animals. As such, the Department seeks comment on how individuals who rely on emotional support cats would be impacted should the Department decide not to recognize emotional support animals or only recognize emotional support dogs. Finally, if the Department decides not to adopt the definition of service animal as proposed (and instead adopts a final rule that continues to recognize emotional support animals), the Department seeks comment on whether airlines should be allowed to require that emotional support animals be contained in an FAA-approved in-cabin pet carrier in the airport and on the aircraft and whether providing passengers the ability to open the carrier and touch the animal is sufficient disability mitigation, even if the animal is required to remain in its carrier for the duration of a flight. The Department also seeks comment on whether to allow airlines to accept only those emotional support animals that fit in in-cabin pet carriers that are consistent with applicable FAA regulations and, if so, the impact of limiting the size of emotional support animals. Finally, the Department seeks comment on whether limiting emotional support animals to one per passenger would sufficiently mitigate a passenger’s disability on a flight or at the passenger’s destination. 4. Psychiatric Service Animals jbell on DSKJLSW7X2PROD with PROPOSALS Current Requirements The Department’s current ACAA regulation allows airlines to treat psychiatric service animals and emotional support animals differently from other animals that assist individuals with disabilities.69 Similar to emotional support animals, airlines are permitted to require psychiatric service animal users to provide medical documentation to prove the passenger’s need for the psychiatric service animal, to provide 48—hours advance notice prior to travel, and check-in one hour 69 See 14 CFR 382.117(e). VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 6459 before the check-in time for the general public.70 prove the passenger’s need for a psychiatric service animal.76 The ANPRM In the ANPRM, the Department solicited comment on whether it should amend its service animal regulation to ensure individuals traveling with psychiatric service animals are not subject to more burdensome requirements than passengers traveling with other service animals that do work or perform a task to mitigate a disability. More specifically, the Department sought comment in the ANPRM on whether it should amend its service animal regulations no longer to permit airlines to require medical documentation, 48—hours advance notice of travel, or check-in in one hour before the general public for psychiatric service animal users.71 The Department also requested comment on whether there may be a valid basis for allowing airlines to treat individuals traveling with psychiatric service animals differently from individuals traveling with traditional service animals.72 The Department inquired about the practical implications of no longer permitting airlines to require medical documentation from psychiatric service animal users if the ACAA rule were to treat psychiatric service animals like other service animals.73 The Department sought comment in the ANPRM on whether airline personnel would be able to distinguish between a psychiatric service animal and an emotional support animal should the Department amend its regulation to treat psychiatric service animals like other service animals that do work or perform tasks.74 Further, to gauge whether the problem of individuals’ falsely claiming to have a mental-health-related condition is greater than the problem of individuals’ falsely claiming other hidden disabilities, such as a seizure disorder, to avoid paying airline pet fees, the Department sought comment on what, if any, experience airlines have had with passengers’ claiming to have a seizure disorder, diabetes, or non-mentalhealth-related condition, and fraudulently attempting to travel with their pets as service animals.75 In addition, the Department sought feedback on alternatives to a medical documentation requirement that would Comments Received Most commenters support an ACAA definition of a service animal that treats psychiatric service animals the same as other service animals that do work or perform a task. The National Disability Rights Network commented that treating psychiatric service animals the same as other tasked-trained service animals is fair because treating them differently perpetuates the myth that psychiatric service animals are inferior to service animals used to mitigate other types of disabilities.77 Similarly, American Airlines commented that psychiatric service animals should be treated the same as other service animals trained to do work or perform a task because psychiatric service animals are professional working dogs.78 American Airlines also commented that treating psychiatric service animals the same as other task-trained service animals would provide consistency between the DOT’s ACAA regulation and DOJ’s ADA regulations. A4A urged the Department to treat psychiatric service animals the same as other task-trained service animals and no longer to recognize emotional support animals.79 But A4A encourages the Department to dispense with the medical documentation and advance notice allowance for psychiatric service animal users for only a one-year review period. A4A reasoned that removing the documentation and advance notice allowance for psychiatric service animals may encourage pet owners, who once claimed that their pets were emotional support animals, to pivot to claiming that their pets are psychiatric service animals to avoid airline pet fees and to travel with their pets in the cabin. A4A suggests allowing airlines to collect data during the one-year review period and if enough evidence exists to suggest that some pet owners are falsely representing their pets as psychiatric service animals after the one-year period, airlines should be allowed to request medical documentation, and proof of training and/or vaccination from psychiatric service animal users. Some U.S. carriers disagree with treating psychiatric service animals the 70 14 CFR 382.27(c)(8). 71 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23838). 72 Id. 73 Id. 74 Id. 75 Id. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 76 Id. 77 Comment of National Disability Rights Network, https://www.regulations.gov/document? D=DOT-OST-2018-0068-4307. 78 Comment of American Airlines, Inc. https:// www.regulations.gov/document?D=DOT-OST-20180068-3507. 79 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. E:\FR\FM\05FEP1.SGM 05FEP1 6460 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS same as traditional service animals and encourage the Department to continue to allow airlines to require documentation and advance notice from psychiatric service animal users. United Airlines states that the Department should ‘‘retain (and consider strengthening) documentation provisions for [psychiatric service animals] in the event that it becomes apparent that individuals without disabilities are attempting to assert that their untrained pets are [psychiatric service animals].’’ 80 Spirit Airlines commented that psychiatric service animals do not receive the same level of training as ‘‘true’’ service animals, which are subjected to training to attend to their ’handlers’ needs, specifically in the area of obedience training.81 Spirit Airlines also expressed concerns that dispensing with the documentation requirement for psychiatric service animals would result in more animals being transported for free as airlines would only be able to rely on a passenger’s verbal assurances that the animal was a service animal and not a pet. DOT Response As discussed above, the Department proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. Because psychiatric service animals are trained to do work or perform tasks for an individual with a disability, the Department proposes to treat psychiatric service animals the same as other service animals trained to do work or perform tasks. The Department proposes this change not only to harmonize DOT’s ACAA service animal definition with DOJ’s ADA service animal definition, which, as noted above, defines a service animal as one that is individually trained to do work or perform tasks for the benefit of an individual with a disability, but also because the rationale for having a different regulatory requirement for users of psychiatric service animals is weak. The current medical documentation, 48 hours’ advance notice, and check-in requirements for psychiatric service animal users were adopted in the Department’s 2008 amendment to the ACAA rule to address concerns raised about passengers falsely claiming to have a mental health condition in order to pass off their pets 80 Comment of United Airlines, https:// www.regulations.gov/document?D=DOT-OST-20180068-4283. 81 Comment of Spirit Airlines, Inc., https:// www.regulations.gov/document?D=DOT-OST-20180068-4226. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 as service animals. While the Department is aware of concerns about passengers who falsely claim to have a mental health condition that may require the use of a service animal, unscrupulous passengers may also falsely claim to have other hidden disabilities such as seizure disorder or diabetes to pass off their pets as service animals and avoid paying airline pet fees. Thus, we believe that the justification for treating service animal users with mental or emotional disabilities different from service animal users with other hidden disabilities is currently lacking. If the rule is adopted as proposed, the Department would monitor the experience of airlines in accommodating the use of service animals for those passengers with mental-health needs who depend upon such service animals. We would consider revisiting whether it is reasonable and appropriate to allow additional requirements for the use of such animals if there is a demonstrated need—for example, if there is a notable increase in instances of passengers falsely representing pets as mentalhealth-related service animals. 5. Large Service Animals Current Requirements The Department’s current regulation allows airlines to determine whether factors preclude a given service animal from being transported in the cabin, including whether the animal is too large or too heavy to be accommodated in the cabin. Under this rule, an animal may be excluded from the cabin if it is too large or too heavy to be accommodated in the specific aircraft at issue. However, the Department’s guidance on the issue of a service animal’s encroaching on the foot space of a passenger is not clear. DOT has previously stated that service animals may be ‘‘placed at the feet of a person with a disability at any bulkhead seat or in any other seat as long as when the animal is seated/placed/curled up on the floor, no part of the animal extends into the main aisle(s) of the aircraft, the service animal is not at an emergency exit seat, and the service animal does not extend into the foot space of another passenger seated nearby who does not wish to share foot space with the service animal.’’ 82 DOT has also stated that a 82 See FAA Order 8900.1, Vol. 3, Ch. 33, Section 6 at ¶ 3–3576 (March 5, 2019), https://fsims.faa.gov/ wdocs/8900.1/v03%20tech%20admin/ chapter%2033/s_03_033_006.pdf and FAA Guidance, What Airline Employees, Airline Contractors, and Air Travelers with Disabilities Need to Know About Access to Air Travel for Persons with Disabilities, A Guide to the Air Carrier PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 service animal may need to use a reasonable portion of an adjacent seat’s foot space that does not deny another passenger effective use of the space for his or her feet by taking all or most of the passenger’s foot space.83 The Department advised airlines to seek out and seat the individual with a disability next to a passenger willing to share foot space with the animal. The Department also advised airlines to reseat passengers traveling with a service animal in a location on the aircraft where the service animal can be accommodated—e.g., next to an empty seat. Finally, DOT advised airlines that if there are no alternatives available to enable the passenger to travel with the service animal in the cabin on that flight, the carrier should offer the passenger the option of either transporting the service animal in the cargo hold or on a later flight with more room.84 The ANPRM In the ANPRM, the Department sought comment on whether to allow airlines to limit the size of service animals that travel in the cabin, and the implications of such a decision.85 Airlines had previously indicated to the Department that some passengers have felt coerced when asked by the airline, in front of other passengers on aircraft, to share their space with a service animal and they may have agreed to share space even if they did not wish to so. As such, the Department sought comment on whether passengers find it burdensome to share foot space on the aircraft with service animals. Comments Received The comments received by disability advocates uniformly discourage the Department from adopting a rule that would allow airlines to limit the size of service animals on an aircraft. Disability advocates argue that aircraft seat sizes have shrunk, and continue to shrink, and that the Department should adopt a rule that prohibits airlines from decreasing seat size rather than allowing airlines to limit the size of service Access Act (ACAA) and its implementing regulations, 14 CFR part 382 (part 382), https:// www.transportation.gov/sites/dot.gov/files/docs/ TAM-07-15-05_0.pdf. 83 See 73 FR 27614, 27634, ‘‘The fact that a service animal may need to use a reasonable portion of an adjacent seat’s foot space—that does not deny another passenger effective use of the space for his or her feet—is not, however, an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat.’’ 84 See 73 FR 27614, 27661. 85 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23841. E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS animals. Furthermore, disability advocates argue that there is little evidence to show that large service animals pose a greater safety risk than small service animals on aircraft and that limiting the size of service animals would be disproportionately unfair to individuals with mobility impairments who use larger animals to mitigate their disability. Airlines, however, argue that it is unfair to paying passengers to be forced to share their limited space on the aircraft with a large service animal. Airlines also believe that limiting the size of service animals would decrease burdens on flight attendants, as flight attendants must spend time rearranging passengers to accommodate large animals and flight crew frequently suffer the ire of passengers unhappy with having to move or being asked to share their foot space with an animal. Airlines also argue that the carriage of large animals in the cabin violates FAA safety requirements, which require that aisles and other passageways be free of obstructions to allow all passengers egress in the case of an emergency. A4A, RAA, and IATA commented that allowing large untrained emotional support animals in the cabin threatens the safety and health of other passengers on aircraft.86 Finally, AFA commented that airlines should be allowed to limit the size of service animals on aircraft, but the limitation should be based on the aircraft type and the available space in the cabin.87 DOT Response The Department proposes to allow airlines to place size limitations on service animals to the extent that the animal must fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap. While the Department is sensitive to the fact that many large service animals, such as German Shepherds, Golden Retrievers, and Labrador Retrievers, tend to accompany individuals with disabilities, particularly individuals with mobility impairments, these animals are often trained to fit into small spaces. The Department seeks comment on its proposal to limit the size of service animals based on whether the animal can fit into the foot space afforded to the passenger on that particular aircraft type, or on whether the service animal is no larger than a 86 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. 87 Comment of the Association of Flight Attendants, https://www.regulations.gov/document? D=DOT-OST-2018-0068-4207. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 lap-held child and can be placed on the passenger’s lap. In instances where an animal is too large to fit in the passenger’s foot space or be placed on the passenger’s lap, the Department proposes to require airlines to seat the passenger traveling with a service animal next to an empty seat within the same class of service where the animal can be accommodated, if such a seat is available. If there are no empty seats available to allow a passenger to travel with the service animal in the cabin on the passenger’s scheduled flight, the Department proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free, or to transport the passenger on a later flight with more room if available. The Department seeks comment on these proposals. 6. Number of Service Animals per Passenger Current Requirements Under the Department’s current service animal regulation, it is not clear how many service animals may accompany a single passenger on an aircraft. Section 382.117(a) states that an airline ‘‘must permit a service animal to accompany a passenger with a disability’’ (emphases added). While this language could be read as suggesting that an airline is only required to transport one service animal per passenger, section 382.117(i) references guidance concerning carriage of service animals, which does not have independent mandatory effect, but rather describes how the Department understands the requirements of section 382.117. That guidance states, ‘‘A single passenger legitimately may have two or more service animals.’’ See 73 FR 27614, 27661 (May 13, 2008). In its Final Statement of Enforcement Priorities Regarding Service Animals, the Department’s Enforcement Office stated that it would focus its enforcement efforts on ensuring that airlines are not restricting a single passenger from traveling with a total of three service animals if needed.88 While the Department’s disability regulation does not specify how many service animals may travel with a passenger with a disability, it does not allow airlines to deny transport to a service animal accompanying a passenger with a disability because of a limit on the 88 Final Statement of Enforcement Priorities Regarding Service Animals, 84 FR 43480 (August 21, 2019). PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 6461 total number of service animals that can be on a flight.89 The ANPRM In the ANPRM, the Department sought comment on whether to limit the number of service animals that a single passenger with a disability may carry onboard a flight and how many service animals should be permitted to accompany a single passenger with a disability. DOT also sought comment on whether airlines should allow passengers to justify the need for more than a single animal, and what the parameters of such a justification should be.90 Comments Received Most disability advocates commented that airlines should be required to allow at least two service animals to travel with a single passenger if needed. Advocates reason that some individuals have multiple disabilities and that while some animals have been trained to perform multiple tasks, some individuals with disabilities may need animals that are focused on mitigating a specific disability for the mitigation to be effective. Airlines, however, commented that they should be permitted to limit the number of service animals traveling with a passenger to one service animal. Airlines argue that allowing one service animal per passenger helps support safety and would help to avoid disruptions in the cabin. Airlines also argue that given the space afforded to individual passengers on aircraft, transporting more than one service animal could be problematic. DOT Response The Department proposes to limit the number of service animals traveling with a single passenger with a disability to no more than two service animals. The Department acknowledges comments from disability rights advocates that certain individuals with disabilities require more than one service animal, and while a single service animal may be trained to perform more than one mitigating function, more than one service animal may be needed to assist an individual on the aircraft or at the passenger’s 89 For example, if Ms. Smith needs to travel with a service dog, an airline cannot deny transport to that service dog because the airline believes that there are already too many service dogs on the aircraft. Section 382.117(a) requires airlines to permit a service animal to accompany a passenger with a disability. Section 382.17 prohibits airlines from limiting the number of passengers with a disability on a flight. 90 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23840. E:\FR\FM\05FEP1.SGM 05FEP1 6462 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules destination if the passenger uses the animals for lengthy periods of time (e.g., if one animal may need a break from work). Furthermore, disability advocate commenters noted that while a service animal may be trained to assist an individual with multiple disabilities, a passenger’s animal may need to focus on mitigating one disability at a time for the mitigation to be effective so multiple animals may be needed at once. For those passengers who seek accommodation for two service animals, the airline would be permitted to require the passenger to complete two separate attestation forms, one for each animal, to verify that each qualifies for appropriate accommodation as a service animal to accompany the passenger on the flight. In response to the carriers’ argument regarding the lack of space in the cabin to accommodate a passenger traveling with two service animals, the Department notes that this NPRM does not propose that an airline be required to provide an individual with two service animals with additional space but would require the airline to allow the individual to use all his or her allotted space without encroaching into the space of another passenger. Airlines may refuse transportation to the animals in the cabin if the animals would not safely fit in the passenger’s lap or foot space. The Department seeks comment on its proposal to limit the number of service animals traveling with a single individual with a disability to two animals, specifically including whether there are compelling safety-related reasons to limit each qualifying passenger to no more than one service animal. 7. Service Animal Restraints jbell on DSKJLSW7X2PROD with PROPOSALS Current Requirements The Department’s current rule does not clearly specify whether or how airlines may restrict the movement of service animals in the cabin. However, the Department has issued guidance that service animal users are expected under the Department’s current ACAA service animal rule to maintain control of their animals both in the airport and on aircraft. In the Final Statement of Enforcement Priorities Regarding Service Animals, the Department’s Enforcement Office also noted that, in general, tethering and similar means of controlling an animal that are permitted in the ADA context would appear to be reasonable in the context of controlling service animals in the aircraft cabin. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 The ANPRM Because of the potential safety risks associated with transporting unrestrained animals, including both the risks to the well-being of other passengers and crew as well as the risks of interfering with the safe and efficient operation of the aircraft, DOT sought comment on whether its service animal rule should explicitly state that service animals must be harnessed, leashed, tethered, or otherwise under the control of its handler or whether it is reasonable for airlines to make this requirement a condition of providing air transportation.91 DOT also sought comment on whether a leash, tether, harness or other restraint device would increase safety on aircraft.92 Finally, the Department sought general feedback on the advantages and disadvantages of adopting such a requirement.93 Comments Received Airlines, disability advocates, organizations, and individual commenters were unified in their support that the Department adopt a requirement that requires service animals to be harnessed, leashed, tethered, or otherwise under the control of the service animal user. A4A, RAA, and IATA, commented that if harnessing, leashing, and tethering is appropriate for trained animals under the ADA, a similar requirement is appropriate for service animals on aircraft.94 A number of commenters also recognized that a control requirement is especially crucial in the airport/aircraft environment given the high-stakes nature of air transportation. Some airlines recommended muzzling as a form of control, although some advocates discouraged muzzling as an acceptable restraint measure because it may limit a service animal’s ability to breathe properly. But even those advocacy groups that opposed muzzling supported a requirement that service animals be under the control of an individual with a disability at all times. Some disability advocates also recommend that DOT, similar to DOJ, should permit service animal handlers to exercise voice command over service animals as a means of control if a service animal needs to be free from a restraint device to mitigate a passenger’s disability. 91 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23840. 92 Id. 93 Id. 94 Comment of Airlines for America, Regional Airline Association, and International Air Transport Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4288. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 DOT Response The Department proposes to allow airlines to require service animals to be harnessed, leashed, or tethered unless the device interferes with the service animal’s work or the passenger’s disability prevents use of these devices. In that case, the carrier must permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. This proposal is similar to the requirement in DOJ’s rule implementing the ADA, which requires service animals to be harnessed, leashed or tethered while in public places unless the device interferes with the animal’s work.95 While the Department always anticipated that a service animal would be under the constant control of its handler during air transportation, the Department was persuaded to propose that the rule include a provision on service animal restraints given the increased concern of animal misbehavior on aircraft. Specifically, the Department is proposing to allow airlines to determine that an animal is not a service animal if it is not under the control of its handler. The Department’s proposal to allow airlines to determine that an animal is not a service animal if it is not under the control of its handler differs from DOJ’s approach. DOJ’s regulations do not allow covered entities to determine that such animal is ‘‘not a service animal.’’ DOJ’s ADA regulations do, however, allow covered entities to exclude a service animal if the animal is out of control and the animal’s handler does not take effective action to control it.96 In addition, the DOT Air Transportation Service Animal Behavior and Attestation Form, which airlines may require of passengers with disabilities seeking to travel with a service animal on aircraft, includes a statement that the passenger understands that the animal must be harnessed, leashed, or tethered, unless the passenger is unable because of a disability to use a harness, leash or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks. In such cases, the animal must otherwise be under the handler’s control through voice, signals, or other effective means. The Department proposes to define a service animal handler as a qualified individual with a disability who receives assistance from a service animal(s) that does work or performs 95 See 96 See E:\FR\FM\05FEP1.SGM 28 CFR 35.136(d); 28 CFR 36.302(c)(4). 28 CFR 35.136(b)(1); 28 CFR 36.302(c)(2)(i). 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS tasks that are directly related to the individual’s disability, or a safety assistant, as described in section 382.29(b),97 who accompanies an individual with a disability traveling with a service animal(s). The service animal handler is responsible for keeping the service animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding. The DOT proposed definition of a service animal handler differs from DOJ’s technical assistance, which states that a service animal handler can be either an individual with a disability or a third party who accompanies the individual with a disability.98 The Department proposes to limit service animal handlers to individuals with disabilities and their safety assistants, which are required to travel with those individuals with a disability who are unable to assist in their own evacuation from the aircraft, in order to make clear that service animal trainers traveling with trained service animals not serving as a safety assistant for a passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, would not be considered service animal handlers under the ACAA rules. The Department recognizes that there may be occasions where an individual with a disability who does not require a safety assistant must rely on a third party to control their service animal during air travel, e.g., a small child who uses a service animal or a passenger with a disability capable of assisting with their own evacuation, but incapable of controlling or caring for their service animal. The Department seeks comment generally on its decision to define the term ‘‘service animal handler’’ and seeks comments on its proposed definition. The Department also seeks comment on what impact, if any, its exclusion of third parties as service animal handlers might have on individuals with disabilities traveling on aircraft with a service animal. The Department seeks comment on its proposal to allow airlines to require that service animals be under the service animal user’s constant control, via 97 The term ‘‘safety assistant’’ is used in the Department’s disability regulation. See 14 CFR 382.29(b). 98 See Frequently Asked Questions about Service Animals and the ADA, Questions 27, available at https://www.ada.gov/regs2010/service_animal_ qa.html, (July 20, 2015), ‘‘The ADA requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability.’’ https://www.ada.gov/regs2010/service_animal_ qa.html. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 restraint devices or, if the restraint device interferes with the animal’s work or the handler is unable because of a disability to use the restraint device, by voice command, signals, or other effective means. The Department also seeks comment on whether in-cabin pet carriers that are consistent with applicable FAA regulations should be included in the rule as an optional service-animal restraint device if the final rule recognizes emotional support animals. 8. Service Animal Documentation Current Requirements While the Department’s current rule sets forth the type of medical documentation that airlines may request from emotional support and psychiatric service animal users to reduce likelihood of abuse by passengers wishing to travel with their pets, the regulation does not explicitly permit or prohibit the use of additional documentation related to a service animal’s vaccination, training, or behavior. Moreover, while Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, the rule does not clearly indicate how airlines must make that assessment—for example, behavioral assessments or information from a service animal user’s veterinarian. The ANPRM Airlines have asserted that the risk to passenger safety is increasing. In the ANPRM, the Department sought data on the number of service animal-related incidents of misbehavior on aircraft and what amount of increase in animal misbehavior was sufficient to warrant a requirement for animal health records and behavior forms.99 The Department also sought comment on whether it should amend its service animal regulation to allow airlines to require that service animal users attest that their animal can behave properly in a public setting, whether airlines should be permitted to require the attestation in advance, the impacts that a behavior attestation requirement would have on individuals with disabilities, and alternatives to a behavioral attestation that would allow airlines to assess an animal’s behavior.100 The Department was interested in knowing whether a behavior attestation would reduce the safety risk for passengers, crewmember, and other 99 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23840. 100 Id. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 6463 service animals on aircraft. Furthermore, recognizing that DOJ’s ADA regulation prohibits covered entities from requiring service animal users to provide documentation, the Department sought comment on whether DOT should have a different standard from the ADA given the unique nature of air transportation.101 With respect to animal health records, the Department sought comment on what burdens, if any, would exist should the Department allow airlines to require individuals with disabilities to submit veterinary forms and related animal health documentation.102 The Department also sought comment on whether an airline should be permitted to require animal health forms as a condition of travel, or whether the airline should be required to conduct an individualized assessment of the animal’s behavior based solely on its observations to assess whether the animal poses a direct threat to humans, before requiring these forms.103 Finally, the Department sought comment on whether airlines should be able to require passengers to obtain signed statements from veterinarians about an animal’s behavior. Comments Received Behavior/Training Attestations The majority of public commenters and disability advocacy organizations that commented on this issue oppose the use of behavior/training attestations as a measure of ensuring that a service animal has been trained to, or will, behave appropriately in public and on the aircraft. These groups argue that attestation documents are ineffective and do not provide realistic assurances that an animal will behave appropriately as passengers can easily lie that their animal has been trained to behave properly in public. Others who oppose this form argue that filling out behavior/training attestations is burdensome as each airline has its own unique form, and it is difficult to follow each airline’s individual policy. Furthermore, some groups note that some airline websites make it difficult to submit these forms to the airline prior to travel. These groups also oppose behavior/training attestations on the basis that these practices are inconsistent with the ADA and that service animal users do not have to provide attestations to travel by train or other modes of transportation. Some disability advocates are in favor of behavior/training attestations, but 101 Id. 102 Id. at 23841. 103 Id. E:\FR\FM\05FEP1.SGM 05FEP1 6464 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS only for emotional support animals arguing that emotional support animals, which are not trained to do work or perform a task, have likely received less, if any, public-access training. Further, a few disability advocates oppose the behavior/training attestations that some airlines currently have in place, but they support a ‘‘decision tree’’ approach, which is a sequence of questions that service animal users would be prompted to complete as a condition of travel. As explained in a comment filed by PSDP, the decision-tree approach is designed to confirm that service animals have been trained to behave properly on aircraft and to ensure that users are educated on the requirements for traveling with service animals on aircraft.104 Finally, Autism Speaks is in favor of behavior/training attestations for all service animal users but urges the Department to develop unified attestation requirements to decrease confusion for service animal users.105 Some airlines broadly support behavior and training attestations for service animal users, or support attestations for only emotional support and psychiatric service animal users. These airlines argue that behavior/ training attestations eliminate the need for airline personnel to observe and evaluate a service animal’s behavior in the airport, a task that airline personnel are often not qualified to perform and that is burdensome given their primary responsibilities. Furthermore, these airlines argue that the Department’s service animal guidance currently requires that service animals be trained to behave appropriately in public, and behavior/training attestations are a means of ensuring that service animal users are aware of this requirement and aware that if their animal is not trained, the animal may be removed from the aircraft or treated like a pet. Some airlines, however, only support behavior/training attestations in the event that the Department continues to recognize emotional support animals. Animal Health Records The majority of disability advocates who commented oppose a requirement that allows airlines to require service animal users to produce animal health information as a condition of transportation. These groups argue that requiring service animal users to produce animal health information, which must be completed by a third 104 Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOTOST-2018-0068-3117. 105 Comment of Autism Speaks, https:// www.regulations.gov/document?D=DOT-OST-20180068-4268. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 party, is costly and would pose unnecessary burdens on individuals with disabilities, especially on those service animal users who are not currently required to produce any documentation when traveling on aircraft. Furthermore, these groups argue that animal health information is not helpful in determining if an animal poses a direct threat. Finally, these groups argue that requiring animal health information is excessive, as airlines have provided no evidence that passengers on aircraft have contracted rabies or other diseases from service animals or that service animal users have refused to provide animal health information in cases where a service animal has bitten or injured someone on an aircraft. Some disability rights advocates are also concerned that if service animal users are required to provide airlines with animal health records, users will be unable to check-in for travel online or travel seamlessly through the airport to their gate. While there are a few advocacy organizations that support an animal health form requirement for service animal users, this support is limited to information regarding the animal’s rabies vaccinations. Conversely, many airlines, an animal health organization, a flight attendant association and most individual commenters who commented on this issue support a requirement that would allow airlines to require animal health information from service animal users. Similar to the rationale used by airlines in support of behavior/training attestations, airlines argue that animal health information is a reasonable means to determine if an animal presents a direct threat to the health and safety of individuals on aircraft. Airlines also argue that in the event a service animal bites an individual on an aircraft, proof of up-to-date vaccinations will prevent the need for the injured passenger to undergo unnecessary and painful treatments for certain diseases, e.g., rabies, although according to the Center for Disease Control and Prevention (CDC), any dog that bites an individual should be assessed and monitored by a local or state health department over a 10-day period irrespective of whether there is proof that the animal has been vaccinated. Airlines also argue that providing animal health information is not burdensome as most, if not all, States and localities already require that animals be vaccinated. In a joint comment filed by Avianca, Avianca Costa Rica, Aviateca, TACA, and TACA Peru, these carriers note that many ‘‘foreign carriers, currently have a PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 general requirement for veterinary certification as a condition of transport.’’ These carriers further state that ‘‘[m]any foreign countries require veterinary certification for all animals entering the country, including all service animals’’ and that ‘‘DOT should clarify in any rulemaking that carriers may require veterinary certification for all service animals as a condition for entry into all countries that require such certification.’’ 106 One animal health organization supports allowing airlines to require proof of rabies vaccinations arguing that these vaccinations are necessary to protect both animal and public health.107 Furthermore, certain airline organizations support an animal health record allowance if the Department decides to recognize emotional support animals. These organizations reason that emotional support animal users should provide information on their animal’s health as a matter of public safety and public health as these untrained animals are in close proximity to passengers, airline crewmember, other staff, and, sometimes, other animals. While the American Association of Airport Executives (AAAE) is in favor of allowing airlines to verify that an animal has been vaccinated, this organization believes that if the Department chose not to recognize emotional support animals, allowing airlines to require proof may not be necessary as the risk to passengers would automatically decrease.108 DOT Response After carefully reviewing the comments received, the Department is proposing to allow airlines to require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health. Also, if the service animal would be on a flight segment that is longer than 8 hours, the Department is proposing to allow a standard form attesting that the animal will not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk. The Department proposes that these forms be the only forms of documentation that an airline can require of a passenger traveling with a service animal. In other words, under this proposed rule, an 106 Comment of Avianca Carriers, https:// www.regulations.gov/document?D=DOT-OST-20180068-4289. 107 Comment of American Veterinarian Medical Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4276. 108 Comment of the American Association of Airport Executives, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4138. E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS airline would not be required to ask a passenger traveling with a service animal for any documentation but, if they choose to do so, the airline must use the forms established by the Department. The Department seeks comment on whether airlines should be allowed to create their own forms or if uniformity would be more helpful. Are there other existing forms that could be utilized such that the establishment of departmental forms would be unnecessarily duplicative? First, the Department proposes to allow airlines to require passengers seeking to travel with service animals to submit to the airline, as a condition of accepting the animal as a service animal for travel, a DOT Air Transportation Service Animal Behavior and Training Attestation Form, which is a form to be completed by the passenger. This form would provide assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability and has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. The Department VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 agrees with comments from airlines that airline personnel are often unable to observe service animals sufficiently prior to a flight in the fast-paced airport environment to determine whether the service animal would be a direct threat to the health or safety of others. Further, the Department believes that the form would serve as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals, as those individuals may be less likely to falsify a Federal form. The Department seeks comment on its proposal to allow airlines to require all service animal users to provide this form to airlines and on whether this form would be effective in ensuring that service animals have been properly trained and in deterring individuals from misrepresenting their pets as service animals on aircraft. The Department understands that this form would impose a burden on those individuals traveling with traditional service animals who are not currently required to provide documentation. The Department seeks comment from the public on ways to reduce the burden that the Department’s behavior and training form would have on passengers PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 6465 with disabilities. Should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights? What medium should airlines use, e.g., hardcopy, electronic, email, to provide and collect this form from passengers with disabilities? Also, are there privacy concerns that airlines should consider? Furthermore, the Department seeks comment on whether the questions in this form would help an airline determine whether an animal has been adequately and properly trained, and whether the form adequately educates passengers on how a service animal is expected to behave, the consequences of a misbehaving service animal, and the seriousness of falsifying the DOT form. The Department seeks comment on whether it should allow airlines to require only emotional support animal users to complete such an attestation form, in the event the Department were to continue to require airlines to transport emotional support animals. Finally, the Department seeks comment on the general content and layout of the form, which is provided below. BILLING CODE 4910–9X–P E:\FR\FM\05FEP1.SGM 05FEP1 VerDate Sep<11>2014 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules 17:09 Feb 04, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4725 E:\FR\FM\05FEP1.SGM 05FEP1 EP05FE20.000</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS 6466 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules Second, the Department proposes to allow airlines to require passengers to submit to the airline a DOT Service Animal Health Form, which is a form to be completed by the passenger’s veterinarian.109 In completing the form, the veterinarian would describe the animal, indicate whether the service animal’s = rabies vaccinations are up to date and whether the animal has any known diseases or infestations, and state whether the veterinarian is aware of any aggressive behavior by the animal. The Department proposes that the form be valid for 1 year from the date of issuance. The Department seeks comment on whether 1 year is too long or too short for the vaccination form to be valid, and the reasons for this belief. The Department modeled its DOT Service Animal Health Form after a number of State certificate of veterinary inspection (CVI) forms and the United States Department of Agriculture’s (USDA) APHIS 7001 form.110 The Department’s decision to use the content of State CVI forms and the USDA APHIS 7001 form was based on a recommendation from the American Veterinary Medical Association (AVMA). The AVMA, some airlines, and other commenters have requested that the Department require all service animals to produce proof of vaccinations because of the potential threat to health and public safety that might result from the transport of jbell on DSKJLSW7X2PROD with PROPOSALS 109 We note that the CDC requires that all dogs imported into the United States, including service dogs, be vaccinated for rabies if coming from a highrisk rabies country. A current list of high risk rabies countries may be found at: https://www.cdc.gov/ importation/bringing-an-animal-into-the-unitedstates/rabies-vaccine.html. See 42 CFR 71.51(e). 110 https://www.aphis.usda.gov/library/forms/ pdf/APHIS7001.pdf. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 6467 unvaccinated animals on aircraft.111 The Department agrees that requiring proof of rabies vaccinations should be permitted to help ensure that the animal does not pose a direct threat to the health and safety of others. Airlines have expressed concerns that their inability to verify, pre-incident, that an animal has received the proper vaccinations has caused individuals bitten by service animals to undergo painful and expensive rabies treatment. The Department, along with a number of U.S. airlines, attended a meeting at the AVMA’s headquarters on October 29, 2018, to discuss the potential for the airlines to create a standard form document to use to verify service animal vaccinations. The Department used information learned at this meeting, such as what vaccinations should be required to ensure the health and safety of the traveling public, the duration for which the form should be valid, and whether animals should be inspected for pests, as guidance for the content of this form. The Department seeks comment from the public on its proposal to allow airlines to require that passengers provide this vaccination form as evidence that a service animal has received the rabies vaccine and that the animal has not exhibited aggressive behavior, known to the veterinarian. The Department seeks comment on its proposal to permit airlines, as a condition of travel, to require this form and whether airlines should be able to refuse transportation to a service animal based on the information contained in the form (e.g., the veterinarian discloses on the form that the animal has a history of aggressive behavior or has caused serious injury to a person or animal). The Department also seeks comment on whether the form would be effective in ensuring that the traveling public would not contract rabies from service animals should they be bitten.112 Furthermore, the Department seeks comment on the burden on individuals traveling with service animals of allowing airlines to require the Department’s service animal health form as it is the Department’s understanding that USDA’s APHIS 7001 form already includes the type of information contained on the proposed DOT form. Could passengers traveling with a service animals have their veterinarians complete the Department’s Service Animal Air Transportation Health Form at the animal’s annual physical? Should the requirement for an animal health form be limited to emotional support animal users, in the event the Department were to continue to require airlines to transport emotional support animals? The Department’s air transportation animal health form requires veterinarians to provide a physical description of the service animal. Should the Department consider allowing airlines to require passengers traveling with a service animals to provide photo identification of the service animal as an additional measure to verify a service animal’s identity? Finally, the Department seeks comment on the general content and layout of the form, which is provided below, and whether airlines that require the form should accept the form in both a paper and electronic format. 111 Comment of American Veterinarian Medical Association, https://www.regulations.gov/ document?D=DOT-OST-2018-0068-4276. 112 See the Rabies Compendium available at: www.nsphv.org/documents/ NASPHVrabiescompendium. PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\05FEP1.SGM 05FEP1 VerDate Sep<11>2014 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules 17:09 Feb 04, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4725 E:\FR\FM\05FEP1.SGM 05FEP1 EP05FE20.001</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS 6468 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS Third, while airlines are currently permitted to require individuals traveling with service animals on a flight segment that is longer than 8 hours to provide documentation that the animal will not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk, the Department proposes to amend this rule VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 to allow airlines to require only a DOT Service Animal Relief Attestation Form be completed by the service animal user to attest that the animal will not create a health or sanitation risk on long flights. The Department seeks comment on whether the DOT Service Animal Relief Attestation Form serves as adequate PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 6469 proof to verify that a passenger’s animal will not need to relieve itself on flight segments of eight or more hours, or can relieve itself in a way that does not create a health or sanitation issue. The Department also seeks comment on the content and layout of the form, which is provided below. E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules BILLING CODE 4910–9X–C The Department also asks for comment on its proposal to prohibit airlines from requiring passengers to VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 provide the proposed DOT health, behavior and training, and relief forms prior to the passenger’s date of travel, PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 although an airline would not be prohibited from requesting the forms so long as it was clear that passengers were E:\FR\FM\05FEP1.SGM 05FEP1 EP05FE20.002</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS 6470 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules not obligated to remit the forms to the airline in advance of their travel date. At the beginning of 2018, several airlines started requiring individuals traveling with service animals to provide service animal health forms and attestations that a passenger’s service animal had been trained to behave appropriately in public. In a Final Statement of Enforcement Priorities, the Department’s Office of Aviation Enforcement and Proceedings (Enforcement Office) indicated that it did not intend to take action against an airline for asking users of any type of service animal to present documentation related to the service animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation would assist the airline in making a determination as to whether an animal poses a direct threat to the health or safety of others. The Enforcement Office explained that the existing rule permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, but the rule does not clearly indicate how airlines must make that assessment. While the Department recognized that airlines may have a valid basis for requesting certain health and behavior information from individuals traveling with service animals, commenters stated that it has become burdensome and confusing for individuals with disabilities to comply with these documentation requirements because many of the airlines require different information from passengers traveling with service animals and have adopted their own unique forms and data collection methods. The Department is proposing to require standard departmental forms to establish a uniform process for collecting data about a service dog’s health as well as behavior and training from passengers traveling with a service dog. The Department is also proposing to allow airlines to require passengers with a disability to complete a DOT Service Animal Relief Attestation Form Service Animal Relief Attestation Form for flight segments of 8 hours or longer. The Department seeks comment on whether using standardized U.S. Department of Transportation forms is the best way for airlines to collect data from passengers traveling with a service dog. The Department recognizes that these forms go beyond what DOJ allows in its ADA service animal regulations, but the Department believes that air transportation, which involves transporting a large number of people in a very confined space thousands of feet above the ground, is unique in VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 comparison to airports, libraries, and other locations covered by Title II or Title III of the ADA. For this reason, the Department believes that a proposal allowing airlines to require all service dog users to provide these forms to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others is appropriate. Under this NPRM, the Department would prohibit airlines from requiring individuals traveling with a service animals to provide the DOT-issued forms even a day in advance of the passenger’s flight because advance notice may present significant challenges to passengers with disabilities wishing to make last minute travel plans that may be necessary for work or family emergencies. However, the Department is proposing to allow airlines to require users of a service animals to check-in at the airport one hour before the check-in time at the airport for the general public to process service animal documentation so long as the airline similarly requires advance check-in for passengers traveling with their pets in the cabin. This rulemaking would also permit airlines to require that the check-in take place at any designated airport location including the terminal lobby. One concern is that service animal users would not be able to check-in electronically before arriving at the airport like other passengers and would be unable to avoid the inconvenience of long waits when checking in. To address this concern, the Department is proposing to require airlines to make an employee trained to handle disability-related matters available in-person at the airline’s designated airport location to process service animal documentation promptly. The Department solicits comment on whether one hour before the general public check-in is sufficient time for airline personnel to process service animal documentation. The Department also seeks comment on its proposal to require airlines to try to accommodate passengers who fail to meet the one-hour check-in requirement so long as the airline can do so by making reasonable efforts without delaying the flight. Finally, the Department would like commenters to identify potential benefits that service animal users may forgo by not being permitted to check-in electronically, and steps that can be taken to ensure that these benefits are provided to them. Frm 00024 Fmt 4702 The ANPRM The Department sought comment in the ANPRM on whether DOT’s service animal rule should explicitly state that a U.S. carrier would not be held responsible for its foreign codeshare partner’s refusal to transport service animals other than dogs.115 Comments Received Few individual commenters and disability advocates commented on whether the Department should explicitly state in its service animal regulation that U.S. airlines should not be held responsible if a foreign airline only transports dogs as service animals, but one advocacy organization states that making this clarification in the rule would clear up ambiguity caused by the provision in DOT’s rules implementing the ACAA, 14 CFR part 382. Airlines also agree that the Department’s rule should explicitly state that U.S. carriers would not be held responsible if a foreign carrier only transports dogs as service animals. These carriers believe that the Enforcement Office’s decision not to pursue action against U.S. carriers is reasonable and appropriate as it would be fundamentally unfair to hold a U.S. carrier accountable for the flight operations and procedures of its foreign codeshare partners, over which it has no control. Furthermore, these carriers argue that an express statement of the Department’s enforcement position in the rule would alleviate any confusion that may arise from otherwise ambiguous provisions in Part 382. One foreign airline also commented that while the Department has chosen not to take legal action against U.S. carriers as CFR 382.7(c). Department’s Aviation Enforcement Office does not enforce section 382.7(c) in this way. 115 Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832, 23842. 114 The Current Requirements Under the Department’s current ACAA rule, U.S. carriers that participate PO 00000 in a code-sharing arrangement with a foreign carrier are responsible for ensuring that the foreign carrier complies with the service animal provisions of the rule with respect to passengers traveling under the U.S. carrier’s code on the foreign carrier’s aircraft on flights between two foreign points.113 While the Department’s current rule requires foreign carriers to transport only dogs, the Department could, based on the language in the current rule, hold a foreign carrier’s U.S. codeshare partner responsible for that foreign carrier’s refusal to transport other service animal species when the passenger is traveling under a U.S. carrier’s code.114 113 14 9. Codeshare Flights Sfmt 4702 6471 E:\FR\FM\05FEP1.SGM 05FEP1 6472 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules a matter of enforcement discretion, it would be better for the Department specifically to state its position in a regulation so that carriers have concrete legal certainty of the Department’s position. DOT Response The Department’s proposed service animal regulation would recognize only dogs as service animals. If the rule were finalized as proposed, the species requirements for both U.S. carriers and foreign carriers would be the same, thereby eliminating situations whereby a U.S. carrier could be held responsible for a foreign carrier’s failure to transport service animals other than dogs but a foreign carrier could not. However, if the DOT final rule differs from the proposal and recognizes other species of service animals and/or emotional support animals, the Department would consider including language in the rule to make it clear that U.S. airlines are not responsible for their foreign carrier codeshare partners’ failure to transport animals other than dogs. The Department seeks comment on this proposed action. Regulatory Analyses and Notices jbell on DSKJLSW7X2PROD with PROPOSALS A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures This proposed rulemaking has been determined to be significant under Executive Order 12866 (Regulatory Planning and Review) and the Department of Transportation’s Regulatory Policies and Procedures because of its considerable interest to the disability community and the aviation industry. It does not, however, meet the criteria under Executive Order 12866 for an economically significant rule. It has been reviewed by the Office of Management and Budget under that Order. Executive Orders 12866 (‘‘Regulatory Planning and Review’’) and 13563 (‘‘Improving Regulation and Regulatory Review’’) require agencies to regulate in the ‘‘most cost-effective manner,’’ to make a ‘‘reasoned determination that the benefits of the intended regulation justify its costs,’’ and to develop regulations that ‘‘impose the least burden on society.’’ DOT proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. In addition, DOT proposes to treat psychiatric service animals like other service animals and to allow airlines to VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 require passengers traveling with a service animal to attest to the animal’s good behavior and good health. DOT also proposes that airlines no longer be required to recognize emotional support animals as service animals. The primary economic impact of this proposed rulemaking is that it eliminates a market inefficiency. The current policy amounts to a price restriction which requires that airlines forgo a potential revenue source, as airlines are currently prohibited from charging a pet fee for transporting emotional support animals. A4A estimates that airline carriers transported 751,000 emotional support animals in 2017, a 56.1 percent increase from 2016. This number nearly equals the 784,000 pets transported in 2017. Airlines charge as much as $175 to transport pets on a one-way trip, giving passengers an incentive to claim their pets as emotional support animals. The proposed rulemaking will eliminate a pricing restriction currently imposed by government on airlines by allowing them to set a price on the transport of emotional support animals other than zero. Removing the current requirement that carriers must transport emotional support animals free of charge would allow market forces (i.e., carriers as producers and passengers as consumers) to set the price for air transportation of emotional support animals. This provision would allow carriers to charge passengers traveling with emotional support animals (dogs and other accepted species on board of an aircraft) with pet transportation fees. This represents a transfer of surplus from passengers to airlines, and does not have implications for the net benefits calculation. The proposed rulemaking would also allow airlines to require passengers traveling with service animals to produce three forms of documentation developed by DOT. This cost element places a potential burden on passengers traveling with service animals who would need to submit three DOT forms to airlines. We estimate that, by Paperwork Reduction Act (PRA) accounting standards, the forms create 144,000 burden hours and $3.0 million in costs per year. In some cases, however, carriers already ask passengers to complete equivalent nongovernmental forms. Thus, the PRA accounting overestimates the net burden created by this rulemaking. Furthermore, Executive Orders 12866 and 13563 require agencies to provide a meaningful opportunity for public participation. Accordingly, we have asked commenters to provide feedback PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 on the proposed change to the regulation. B. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. A direct air carrier or foreign air carrier is a small business if it provides air transportation only with small aircraft (i.e., aircraft with up to 60 seats/18,000pound payload capacity).116 Relative to typical airlines’ operating costs and revenues, the impact is expected to be nonsignificant. Accordingly, the Department does not believe that the NPRM would have a significant impact on a substantial number of small entities. However, we invite comment on the potential impact of this rulemaking on small entities. C. Executive Order 13132 (Federalism) This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (‘‘Federalism’’). This NPRM does not include any provision that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. D. Executive Order 13084 This rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (‘‘Consultation and Coordination with Indian Tribal Governments’’). Because this rulemaking does not significantly or uniquely affect the communities of the Indian Tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply. E. Paperwork Reduction Act This NPRM proposes three new collections of information that would require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 116 See E:\FR\FM\05FEP1.SGM 14 CFR 399.73. 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules (Pub. L. 104–13, 49 U.S.C. 3501 et seq.). Under the Paperwork Reduction Act, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the Federal Register providing notice of the proposed information collection and a 60-day comment period, and otherwise consult with members of the public and affected agencies concerning each proposed collection of information. The proposed rulemaking would allow airlines to require passengers traveling with service animals to provide carriers with the following three forms of documentation developed by the Department: 1. DOT Air Transportation Service Animal Health Form (‘‘Health Form’’): This form would be completed by a veterinarian who would certify that the service dog has obtained the required vaccinations, is not showing signs of infectious or communicable diseases, and, to the veterinarian’s knowledge, has not exhibited aggressive behavior or caused injury to another. 2. DOT Air Transportation Service Animal Behavior and Training Attestation Form (‘‘Behavior Attestation Form’’): This form would be completed by the passenger with a service animal. This passenger would certify his/her service animal has been trained to behave properly in public, is aware of the handler’s responsibility to maintain the animal under control at all times, and understands the consequences of service animal misbehavior. 3. DOT Service Animal Relief Attestation Form (‘‘Relief Attestation Form’’): This form would be completed by passengers traveling with a service animal on flight segments scheduled to take 8 hours or more. It would require the passenger to affirm that the service animal will not need to relieve itself on the flight or that the service animal can relieve itself in a way that does not create a health or sanitation issue. For each of these information collections, the title, a description of the respondents, and an estimate of the annual recordkeeping and periodic reporting burden are set forth below: jbell on DSKJLSW7X2PROD with PROPOSALS 1. Requirement To Prepare and Submit to Airlines the DOT Air Transportation Service Animal Health Form Respondents: Passengers with disabilities traveling on aircraft with service animals. VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 Number of Respondents: Using A4A’s estimate of 281,000 117 service animals transported in 2017, and assuming one passenger with a disability travels with a service animal, 281,000 respondents would have to provide a health form signed by a veterinarian and the passenger. Estimated Annual Burden on Respondents: We estimate that completing the form would require 15 minutes (.25 hours) per response, per year, including the time it takes to retrieve an electronic or paper version of the form from the carrier’s or DOT’s website, reviewing the instructions, and completing the questions. Passengers and veterinary assistants would spend a total of 70,250 hours (0.25 hours × 281,000 passengers) to retrieve an accessible version of the form and provide it to the veterinarian for completion. To calculate the hourly value of time spent on the forms, we used median wage data from the Bureau of Labor Statistics.118 For the health form, which veterinary assistants perform on the job, we assume a fully loaded median wage rate of $26.48/hour ($13.24/hour × 2). A ‘‘fully loaded’’ wage includes benefits and indirect costs. 2. Requirement To Prepare and Submit to Airlines the DOT Air Transportation Service Animal Behavior and Attestation Form Respondents: Passengers with disabilities traveling on aircraft with service animals. Number of Respondents: Using A4A’s estimate of 281,000 service animals transported in 2017, and assuming one passenger with a disability travels with a service animal, 281,000 respondents would have to provide a behavior form signed by the passenger. Estimated Annual Burden on Respondents: We estimate that completing the form will require 15 minutes (.25 hours) per response, per year, including the time it takes to retrieve an electronic or paper version of the form from the carrier’s or DOT’s website, reviewing the instructions, and completing the questions. Passengers would spend a total of 70,250 hours 117 A4A used data from five U.S. airlines to extrapolate the number of all service animals transported on U.S. airlines. 118 Bureau of Labor Statistics (2019). ‘‘May 2018 National Occupational Employment and Wage Estimates: United States.’’ https://www.bls.gov/oes/ current/oes_nat.htm. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 6473 (0.25 hours × 281,000 passengers) to retrieve an accessible version of the form and complete the form. To calculate the hourly value of time spent on the forms, we use median wage data from the Bureau of Labor Statistics.119 For the behavior attestation, which passengers fill out on their own time without pay, we use a post-tax wage estimate of $15.42 ($18.58 median for all occupations minus a 17% percent estimated tax rate). 3. Requirement To Prepare and Submit to Airlines the DOT Service Animal Relief Attestation Form Respondents: Passengers with disabilities traveling on aircraft with service animals on flight segments scheduled to take 8 hours or more. Number of Respondents: To estimate the paperwork costs associated with the new forms, we used A4A’s estimate of 281,000 service animals transported in 2017.120 We estimate that 5 percent of those passengers (14,050) would be on flight segments scheduled to take 8 hours or more and would also have to complete the Relief Attestation Form. Estimated Annual Burden on Respondents: We estimate that completing the form will require 15 minutes (.25 hours) per response, per year, including the time it takes to retrieve an electronic or paper version of the form from the carrier’s or DOT’s website, reviewing the instructions, and completing the questions. Passengers would spend a total of 3,512.5 hours (0.25 hours × 14,050 passengers) to retrieve an accessible version of the form and complete the form. To calculate the hourly value of time spent on the forms, we use median wage data from the Bureau of Labor Statistics.121 For the relief form, which passengers fill out on their own time without pay, we use a post-tax wage estimate of $15.42 ($18.58 median for all occupations minus a 17% percent estimated tax rate). 119 Bureau of Labor Statistics (2019). ‘‘May 2018 National Occupational Employment and Wage Estimates: United States.’’ https://www.bls.gov/oes/ current/oes_nat.htm. 120 A4A used data from five U.S. airlines to extrapolate the number of all service animals transported on U.S. airlines. 121 Bureau of Labor Statistics (2019). ‘‘May 2018 National Occupational Employment and Wage Estimates: United States.’’ https://www.bls.gov/oes/ current/oes_nat.htm. E:\FR\FM\05FEP1.SGM 05FEP1 6474 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules TABLE 1—PAPERWORK COST ESTIMATES FOR DOT SERVICE ANIMAL FORMS Form Passengers Hourly time value Total hours Subtotal Health ..................................................... Behavior attestation ............................... Relief ...................................................... 281,000 281,000 14,050 0.25 0.25 0.25 70,250 70,250 3,512.5 $26.48 15.42 15.42 $1,860,220 1,083,255 54,163 Total ................................................ .............................. .............................. 144,012.5 .............................. 2,997,638 The estimated burden and costs of these three new DOT forms are primarily for Paperwork Reduction Act (PRA) accounting purposes. In some cases, carriers already require passengers traveling with service animals to complete equivalent forms. Allegiant Air and Delta Air Lines ask passengers to carry health forms, for example, while American Airlines and Hawaiian Airlines ask passengers to fill out relief attestation forms. Thus, the cost estimates above are likely to overestimate any new burden created by this rulemaking. The Department invites interested persons to submit comments on any aspect of each of these three information collections, including the following: (1) The necessity and utility of the information collection, (2) the accuracy of the estimate of the burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) ways to minimize the burden of collection without reducing the quality of the collected information. Comments submitted in response to this notice will be summarized or included, or both, in the request for OMB approval of these information collections. F. Unfunded Mandates Reform Act The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking. G. National Environmental Policy Act jbell on DSKJLSW7X2PROD with PROPOSALS Hours The Department has analyzed the environmental impacts of this proposed action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency’s NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 impact statement (EIS).122 In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes ‘‘[a]ctions relating to consumer protection, including regulations.’’ Because this rulemaking relates to ensuring both the nondiscriminatory access to air transportation for consumers with disabilities, as well as the safe transport of the traveling public, this rulemaking is a consumer protection rulemaking. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking. comfort animals, companionship animals, and service animals in training are not service animals for the purposes of this Part. A Service animal handler is a qualified individual with a disability who receives assistance from a service animal(s) that does work or performs tasks that are directly related to the individual’s disability, or a safety assistant, as described in section 382.29(b), who accompanies an individual with a disability traveling with a service animal(s). The service animal handler is responsible for keeping the animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding. * * * * * ■ 3. Add § 382.28 to read as follows: List of Subjects in 14 CFR Part 382 § 382.28 What assistance must carriers provide to passengers with a disability required to check-in before the check-in time for the general public? Air Carriers, Civil rights, Consumer protection, Individuals with Disabilities, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Department of Transportation proposes to amend 14 CFR part 382 to read as follows: PART 382—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR TRAVEL 1. The authority citation for part 382 continues to read as follows: ■ Authority: 49 U.S.C. 41702, 41705, 41712, and 41310. 2. Amend § 382.3 by adding in alphabetical order the definitions of service animal and service animal handler to read as follows: ■ § 382.3 mean? What do the terms in this rule * * * * * Service animal means a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Emotional support animals, 122 See PO 00000 40 CFR 1508.4. Frm 00027 Fmt 4702 Sfmt 4702 If you require a passenger with a disability to check-in in advance of the check-in time for the general public, you must make personnel or other employees trained to proficiency on the requirements of this Part available promptly to assist the passenger at a designated location in the airport. § 382.72 [Amended] 4. Amend § 382.27 by removing paragraphs (c)(8) and (c)(9). ■ 5. Add Subpart EE, consisting of §§ 382.72 through 382.80, to read as follows: ■ Subpart EE—Service Animals Sec. 382.72 Must carriers allow a service animal to accompany a passenger with a disability? 382.73 How many service animals must a carrier transport in the cabin of aircraft? 382.74 How do carriers determine if an animal is a service animal? 382.75 May a carrier require documentation from passengers with disabilities seeking to travel with a service animal? 382.76 May a carrier require a service animal user to check-in at the airport one hour before the check-in time at the airport for the general public as a condition of travel to allow time to E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules process the service animal documentation? 382.77 May carriers restrict the location and placement of service animals on aircraft? 382.78 May carriers charge individuals with disabilities for the damage their service animal causes? 382.79 Under what other circumstances may carriers refuse to provide transportation to a service animal traveling with a passenger with a disability? 382.80 May carriers impose additional restrictions on the transport of service animals? § 382.72 Must carriers allow a service animal to accompany a passenger with a disability? You must allow a service animal to accompany a passenger with a disability. You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft. § 382.73 How many service animals must a carrier transport in the cabin of aircraft? You are not required to accept more than two service animals for a single passenger with a disability. jbell on DSKJLSW7X2PROD with PROPOSALS § 382.74 How do carriers determine if an animal is a service animal? (a)You may make two inquiries to determine whether an animal qualifies as a service animal. You may ask if the animal is required to accompany the passenger because of a disability and what work or task the animal has been trained to perform. You must not ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or task. (b) You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal, even if the animal performs an assistive function for a passenger with a disability. (c) You may look for physical indicators on the animal to determine if the animal is a service animal. A service animal must be under the control of its owner. A service animal must have a harness, leash, or other tether unless the owner is unable because of a disability to use a harness, leash, or other tether, VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means). § 382.75 May a carrier require documentation from passengers with disabilities seeking to travel with a service animal? (a) If a passenger seeks to travel with a service animal, you may require the passenger with a disability to provide you, as a condition of permitting the service animal to travel in the cabin: (1) A current (i.e., no older than one year from the date of the passenger’s scheduled initial flight) completed copy of the U.S. Department of Transportation Air Transportation Service Animal Health Form; and (2) A completed copy of the U.S. Department of Transportation Air Transportation Service Animal Behavior and Training Attestation Form. (b) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger with a disability traveling with the service animal to confirm that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight by providing a DOT Service Animal Relief Attestation Form. (c) You are not permitted to require documentation of passengers with disabilities traveling with service animals beyond completion of the forms identified in paragraphs (a) and (b) of this section. (d) You must keep copies of the forms identified in paragraphs (a) and (b) at each airport you serve. As a foreign carrier, you must keep copies of the forms at each airport serving a flight you operate that begins or ends at a U.S. airport. (e) If you have a website, you must make the blank forms identified in paragraphs (a) and (b) available to passengers on your website in an accessible format. (f) You must mail copies of the blank forms identified in paragraphs (a) and (b) to passengers upon request. § 382.76 May a carrier require a service animal user to check-in at the airport one hour before the check-in time at the airport for the general public as a condition of travel to allow time to process the service animal documentation? (a) You may require a passenger with a disability to check-in at the airport one hour before the check-in time at the PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 6475 airport for the general public as a condition of travel with a service animal to allow time to process the service animal documentation and observe the animal so long as: (1) You designate a specific location at the airport where the passenger could be promptly checked-in, the passenger’s service animal would be observed, and the passenger’s service animal documentation would be promptly reviewed by personnel trained to proficiency on the service animal requirements of this Part; and (2) You have a similar or more stringent check-in requirement for passengers traveling with their pets in the cabin. (b) If a passenger does not meet the check-in requirements you establish consistent with this section, you must still provide the accommodation if you can do so by making reasonable efforts, without delaying the flight. § 382.77 May carriers restrict the location and placement of service animals on aircraft? (a) You must permit a service animal to accompany a passenger with a disability on the passenger’s lap or in the foot space immediately in front of the passenger’s seat, unless this location and placement would be: (1) Inconsistent with safety requirements set by the FAA or the foreign carrier’s government; or (2) Encroaches into another passenger’s space. (b) If a service animal cannot be accommodated on the passenger’s lap or in the foot space immediately in front of the passenger’s seat without encroaching into another passenger’s space, you must offer the passenger the opportunity to move with the animal to another seat location within the same class of service, if available on the aircraft, where the animal can be accommodated. You are not required to reseat other passengers to accommodate a service animal except as required by Subpart F. (c) If there are no alternatives available to enable the passenger to travel with the service animal in the cabin of the scheduled flight, you must offer the passenger the opportunity to transport the service animal in the cargo hold free of charge or travel on a later flight to the extent there is space available on a later flight and the transport is consistent with the safety requirements set by the FAA or a foreign carrier’s government. E:\FR\FM\05FEP1.SGM 05FEP1 6476 Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / Proposed Rules § 382.78 May carriers charge individuals with disabilities for the damage their service animal causes? While you cannot charge an individual with a disability for transporting service animals, or for providing other services that this rule requires, you may charge a passenger with a disability for damage caused by his or her service animal so long as you normally charge individuals without disabilities for similar kinds of damage. jbell on DSKJLSW7X2PROD with PROPOSALS § 382.79 Under what other circumstances may carriers refuse to provide transportation to a service animal traveling with a passenger with a disability? (a) You may deny transport to a service animal under the following circumstances: (1) The animal poses a direct threat to the health or safety of others (see definition in § 382.3); (2) The animal causes a significant disruption in the cabin or at an airport gate area, or its behavior on the aircraft or at an airport gate area indicates that it has not been trained to behave properly in public (e.g., running freely, barking or growling repeatedly at other persons on the aircraft, biting or jumping on people, or urinating or defecating in the cabin or gate area); or (3) The animal’s carriage would violate FAA safety requirements or applicable safety requirements of a U.S. territory or foreign government (e.g., the animal is too large or heavy to be accommodated in the cabin). (b) In determining whether to deny transport to a service animal on the basis that the animal poses a direct threat under paragraph (a)(1) of this section, you must make an individualized assessment based on reasonable judgment that relies on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedure will mitigate the risk. (c) In determining whether to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin under paragraph (a)(2), you must make an individualized assessment based on reasonable judgment that relies on the best available objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur; and whether reasonable modifications of policies, practices, or procedure will mitigate the misbehavior and/or the disruption. (d) In conducting the analysis required under paragraph (a)(1) and VerDate Sep<11>2014 17:09 Feb 04, 2020 Jkt 250001 (a)(2), you must not deny transportation to the service animal if there are means available short of refusal that would mitigate the problem (e.g., muzzling a barking service dog or taking other steps to comply with animal health regulations needed to permit entry of the service animal into a domestic territory or a foreign country). (e) If you refuse to provide transportation to a service animal based on any provision in this Part, you must provide the individual with a disability accompanied by the service animal a written statement of the reason for the refusal. This statement must include the specific basis for the carrier’s opinion that the refusal meets the standards of paragraphs (a) through (c) of this section or is otherwise specifically permitted by this Part. You must provide this written statement to the individual with a disability accompanied by the service animal either at the airport, or within 10 calendar days of the refusal of transportation. § 382.80 May carriers impose additional restrictions on the transport of service animals? Carriers are not permitted to establish additional restrictions on the transport of service animals outside of those specifically permitted by the provisions in this Part, unless required by applicable FAA, TSA, or other Federal requirements or a foreign carrier’s government. § 382.117 ■ [Removed] 6. Remove § 382.117. Issued this 21st day of January, 2020, in Washington, DC. Elaine L. Chao, Secretary. [FR Doc. 2020–01546 Filed 2–4–20; 8:45 am] BILLING CODE 4910–9X–P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No. PTO–P–2019–0009] RIN 0651–AD33 Small Entity Government Use License Exception United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rulemaking. AGENCY: The United States Patent and Trademark Office (USPTO or Office) is proposing to amend the rules of practice in patent cases to clarify and expand SUMMARY: PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees so as to support independent inventors, small business concerns and nonprofit organizations in filing patent applications. The proposed rule change is designed to encourage persons, small businesses, and nonprofit organizations to collaborate with the Federal Government by providing an opportunity to qualify for the small entity patent fees discount for inventions made during the course of federally-funded or federally-supported research. Comments must be received by March 23, 2020 to ensure consideration. DATES: The USPTO prefers that comments be submitted via electronic mail message to AD33.comments@ uspto.gov. Written comments also may be submitted by mail to Mail Stop Comments-Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of James Engel, Senior Legal Advisor, Office of Patent Legal Administration. Comments may also be sent by electronic mail message via the Federal eRulemaking Portal at https:// www.regulations.gov. See the Federal eRulemaking Portal website for additional instructions on providing comments via the Federal eRulemaking Portal. All comments submitted directly to the USPTO or provided on the Federal eRulemaking Portal should include the docket number (PTO–P– 2019–0009). Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message over the internet because the Office may easily share such comments with the public. Electronic comments are preferred to be submitted in plain text, but also may be submitted in portable document format or DOC file format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into portable document format. The comments will be available for public inspection on the USPTO’s website at https://www.uspto.gov, on the Federal eRulemaking Portal, and at the Office of the Commissioner for Patents, Office of Patent Legal Administration, 600 Dulany Street, Alexandria, VA 22314. Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or phone number, should not be included. ADDRESSES: E:\FR\FM\05FEP1.SGM 05FEP1

Agencies

[Federal Register Volume 85, Number 24 (Wednesday, February 5, 2020)]
[Proposed Rules]
[Pages 6448-6476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01546]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 85, No. 24 / Wednesday, February 5, 2020 / 
Proposed Rules

[[Page 6448]]



DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

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


Traveling by Air With Service Animals

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The U.S. Department of Transportation (Department or DOT) is 
seeking comment in this Notice of Proposed Rulemaking (NPRM) on 
proposed amendments to the Department's Air Carrier Access Act (ACAA) 
regulation on the transportation of service animals by air. The 
proposed amendments are intended to ensure that our air transportation 
system is safe for the traveling public and accessible to individuals 
with disabilities.

DATES: Comments should be filed by April 6, 2020. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2018-0068 by any of the following methods:
     Federal eRulemaking Portal: Go to 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://www.transportation.gov/privacy.
    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:

Executive Summary

    The Department proposes to define a service animal, under its ACAA 
regulations in 14 CFR part 382, as a dog that is individually trained 
to do work or perform tasks for the benefit of a qualified individual 
with a disability, including a physical, sensory, psychiatric, 
intellectual, or other mental disability.\1\ Furthermore, this NPRM 
proposes to allow airlines to recognize emotional support animals as 
pets rather than service animals. The NPRM also proposes to allow 
airlines to require all passengers with a disability traveling with a 
service animal to complete and submit to the airline forms developed by 
DOT attesting to the animal's training and good behavior, certifying 
the animal's good health, and attesting that the animal has the ability 
either not to relieve itself on a long flight or to relieve itself in a 
sanitary manner. In addition, this NPRM would clarify existing 
prohibitions on airlines' imposing breed restrictions on service 
animals and would allow airlines to set policies to limit the number of 
service animals that one passenger can bring onboard an aircraft. This 
NPRM would also generally require service to be harnessed, leashed, or 
otherwise tethered. This NPRM also proposes requirements that would 
address the safe transport of large service animals in the aircraft 
cabin and would clarify when the user of a service animal may be 
charged for damage caused by the service animal. Finally, this NPRM 
addresses the responsibilities of code-share partners, among other 
provisions.
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    \1\ The Department's proposed definition of a service animal in 
this rulemaking is similar to the definition of a service animal in 
the Department of Justice (DOJ) regulations implementing the 
Americans with Disabilities Act (ADA), 28 CFR 35.104 and 28 CFR 
36.104. However, the Department proposes a number of service animal 
provisions in this proposed rulemaking that differ from DOJ's ADA 
service animal requirements.
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1. Statutory Authority

    The Air Carrier Access Act (ACAA), 49 U.S.C. 1705, prohibits 
discrimination in airline service on the basis of disability. When 
enacted in 1986, the ACAA applied only to U.S. air carriers. On April 
5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century (AIR-21) amended the ACAA to include foreign carriers.
    The ACAA, while representing a watershed mandate of 
nondiscrimination in air transportation for passengers with 
disabilities, does not specify how U.S. and foreign air carriers must 
act to avoid such discrimination. The statute similarly does not 
specify how the Department should regulate with respect to these 
issues. In addition to the ACAA, the Department's authority to regulate 
nondiscrimination in airline service on the basis of disability is 
based in the Department's rulemaking authority under 49 U.S.C. 40113, 
which states that the Department may take action that it considers 
necessary to carry out this part, including prescribing regulations.
    The Department issued its first ACAA regulation in 1990 following a 
lengthy rulemaking process that included a regulatory negotiation 
involving representatives of the airline industry and representatives 
from disability

[[Page 6449]]

communities. Since then, the Department's disability regulations have 
been amended approximately 15 times to enhance access. The ACAA 
regulations define the rights of qualified individuals with 
disabilities \2\ and the obligations of airlines. The regulations also 
specify that airlines may refuse to provide transportation to any 
passenger on the basis of safety or to any passenger whose carriage 
would violate Federal Aviation Administration (FAA) or Transportation 
Security Administration requirements or applicable requirements of a 
foreign government.\3\ For example, the FAA, which is charged with 
promoting safe flight of aircraft,\4\ has long prohibited conduct 
aboard flights that interferes with crewmember duties. FAA regulations 
state that ``no person may assault, threaten, intimidate, or interfere 
with a crewmember in the performance of the crewmember's duties aboard 
an aircraft being operated.'' \5\ The ACAA regulations are intended to 
help ensure that individuals with disabilities enjoy equal access to 
the air transportation system.
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    \2\ DOT defines the term Qualified individual with a disability 
in 14 CFR 382.3.
    \3\ 14 CFR 382.19(c).
    \4\ See 49 U.S.C. 44701.
    \5\ 14 CFR 91.11, 121.580, and 135.120.
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    The Americans with Disabilities Act (ADA), which was enacted in 
1990, does not cover discrimination against a person with a disability 
in air transportation but prohibits discrimination against individuals 
with disabilities in most other areas of public life, including 
employment, State and local government activities, public 
transportation services, and public accommodations such as restaurants 
and retail stores. The ADA requires that the Department of Justice 
(DOJ) issue regulations for implementing Title II, which applies to 
State and local government entities, and Title III, which applies to 
public accommodations and commercial facilities. DOJ first issued such 
regulations in 1991 and published revised regulations in 2010, which 
took effect in March 2011. In those regulations, DOJ defines a service 
animal as any dog that is individually trained to do work or perform 
tasks for the benefit of an individual with a disability, including a 
physical, sensory, psychiatric, intellectual, or mental disability.\6\ 
DOJ's ADA definition of a service animal differs from DOT's current 
ACAA definition of a service animal as DOJ does not recognize emotional 
support animals as service animals because they are not individually 
trained to do work or perform tasks for the benefit of an individual 
with a disability \7\ and DOJ's ADA regulations limit service animals 
to dogs.\8\
---------------------------------------------------------------------------

    \6\ See DOJ's ADA definition of a service animal in 28 CFR 
35.104 and 28 CFR 36.104.
    \7\ DOJ explains that it did not classify emotional support 
animals as service animals because the provision of emotional 
support, well-being, comfort and companionship does not constitute 
work or tasks. See Nondiscrimination on the Basis of Disability by 
Public Accommodations and in Commercial Facilities, 75 FR 56236, 
56269 (Sept. 15, 2010).
    \8\ DOJ, while not recognizing miniature horses as service 
animals, requires entities covered by the ADA to make reasonable 
modifications in their policies, practices, or procedures to permit 
an individual with a disability to use a miniature horse that has 
been individually trained to do work or perform tasks for the 
benefit of the individual with a disability. See 28 CFR 35.136(i); 
28 CFR 36.302(c)(9).
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    The current rulemaking presents questions about how the ACAA is 
reasonably interpreted and applied to require airlines to accommodate 
the needs of individual passengers whose physical or mental disability 
necessitates the assistance of a service animal in air transportation. 
In approaching these questions, the Department recognizes that the 
ACAA's nondiscrimination mandate is not absolute. The statute requires 
airlines to provide accommodations that are reasonable in light of the 
realities and limitations of air service and the onboard environment of 
commercial airplanes. DOJ, in interpreting the ADA, similarly allows 
public accommodations to consider the characteristics of miniature 
horses, including the implications of their presence on the safe 
operation of a given facility, when determining whether they may be 
accommodated within a facility.\9\ The cabins of most aircraft are 
highly confined spaces, with many passengers seated in close quarters 
and very limited opportunities to separate passengers from nearby 
disturbances. Animals on aircraft may pose a risk to the safety, 
health, and well-being of passengers and crew and may disturb the safe 
and efficient operation of the aircraft. Any requirement for the 
accommodation of passengers traveling with service animals onboard 
aircraft necessarily must be balanced against the health, safety, and 
mental and physical well-being of the other passengers and crew and 
must not interfere with the safe and efficient operation of the 
aircraft.
---------------------------------------------------------------------------

    \9\ See 28 CFR 36.302(c)(9) and see also 28 CFR 35.136.
---------------------------------------------------------------------------

2. Need for a Rulemaking

    The Department has identified the following compelling factors that 
justify the issuance of a revision to the Department's regulations on 
traveling by air with service animals in 14 CFR part 382:

Service Animal Complaints

    Service animal-related complaints are increasingly a more 
significant portion of the disability-related complaints that the 
Department's Aviation Consumer Protection Division and airlines 
receive. Given the year-over-year increase in the number of service 
animal complaints received by the Department against airlines, it is 
clear that the provision of assistance to passengers traveling with 
service animals is an area of increasing concern for passengers with 
disabilities. The Department received 115 service animal complaints 
against airlines in 2018, 70 complaints in 2017, 110 complaints in 
2016, and 100 complaints in 2015, compared with 48 such in 2014 and 45 
complaints in 2013.
    The increase in the number of service animal complaints is also 
representative of the complaints airlines received directly from 
passengers. U.S. and foreign airlines reported receiving 3,065 service 
animal complaints directly from passengers in 2018, 2,473 complaints in 
2017, 2,433 in 2016, and 1,629 in 2015, compared with 1,010 such 
complaints in 2014 and 719 in 2013.

Inconsistent Federal Definition of Service Animal

    At the same time, concerns have been raised by airlines, airports, 
and disability advocates about inconsistencies between the definition 
of a service animal under our rules for U.S. and foreign air carrier 
services versus in the airport context. As explained above, DOJ's ADA 
regulations, which apply to public and commercial airports and airport 
facilities operated by businesses like restaurants and stores, define a 
service animal as any dog that is individually trained to do work or 
perform tasks for the benefit of an individual with a disability, 
including a physical, sensory, psychiatric, intellectual, or mental 
disability.\10\ DOJ does not recognize emotional support animals as 
service animals because they are not individually trained to do work or 
perform tasks for the benefit of an individual with a disability.\11\ 
While DOJ's ADA regulations limit service animals to dogs, entities 
covered by the ADA are required to assess whether they must permit 
individuals with disabilities to be accompanied by miniature horses as 
a reasonable

[[Page 6450]]

modification.\12\ DOT's current ACAA regulations, which apply to 
airlines and their facilities and services, require airlines to 
recognize service animals regardless of species with exceptions for 
certain unusual species of service animals such as snakes, other 
reptiles, ferrets, rodents, and spiders. DOT's current ACAA regulations 
also require airlines to recognize emotional support animals as service 
animals.\13\ Consequently, a restaurant in an airport could, without 
violating DOJ rules, deny entry to an emotional support animal that an 
airline, under the ACAA, would have to accept. These inconsistencies 
between DOT's ACAA and DOJ's ADA definition of a service animal present 
practical challenges for airlines and airports, and are a source of 
confusion for individuals with disabilities and the traveling public.
---------------------------------------------------------------------------

    \10\ See 28 CFR 35.104 and 28 CFR 36.104.
    \11\ See Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities, 75 FR 56236, 56269 
(Sept. 15, 2010).
    \12\ See 28 CFR 35.136(i); 28 CFR 36.302(c)(9). DOJ, while not 
recognizing miniature horses as service animals, requires entities 
covered by the ADA to make reasonable modifications in their 
policies, practices, or procedures to permit an individual with a 
disability to use a miniature horse that has been individually 
trained to do work or perform tasks for the benefit of the 
individual with a disability, based on an assessment of factors, 
including the type, size, and weight of the miniature horse and 
whether the facility can accommodate these features; whether the 
handler has sufficient control of the miniature horse; whether the 
miniature horse is housebroken; and whether the miniature horse's 
presence in a specific facility compromises legitimate safety 
requirements that are necessary for safe operation.
    \13\ See 14 CFR 382.117 and Guidance Concerning Service Animals, 
73 FR 27614, 27659 (May 13, 2008).
---------------------------------------------------------------------------

Unusual Species of Animals

    Passengers have attempted to fly with many different unusual 
species of animals, such as a peacock, ducks, turkeys, pigs, iguanas, 
and various other types of animals as emotional support or service 
animals, causing confusion for airline employees and additional 
scrutiny for service animal users. Disability advocates have voiced 
concerns that the use of these unusual service animals on aircraft 
erodes the public's trust and confidence in service animals. Airlines, 
meanwhile, have expressed concern about the heightened attention these 
animals have received and the resources airlines expend each time an 
unusual or untrained animal is presented for transport on an aircraft.

Pets on Aircraft

    Passengers wishing to travel with their pets may be falsely 
claiming that their pets are service animals so they can take their pet 
in the aircraft cabin or avoid paying pet fees charged by most airlines 
since airlines cannot charge service animal users a fee to transport 
service animals. Airlines have reported increases in the number of 
service animals on aircraft and expressed concern that the significant 
increase in the number of service animals traveling on aircraft may be 
the result of an increase in emotional support animals and/or 
passengers falsely claiming that their pets are emotional support 
animals.\14\ Furthermore, according to airlines, passengers are 
increasingly bringing untrained service animals onboard aircraft and 
putting the safety of crewmembers, other passengers, and other service 
animals at risk.
---------------------------------------------------------------------------

    \14\ See Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141. In 2017, 
Delta Air Lines carried nearly 250,000 service and support animals, 
or almost 700 per day. The volume of service and support animals 
transported increased about 50 percent from 2016 to 2017 (along with 
an additional 240,000 pets), but the growth was not uniform over all 
categories of animals. ESAs led this growth with an increase of 
approximately 63 percent, while other service animal transport grew 
by only approximately 30 percent.
    And comment from Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
    From 2016 to 2017, the number of service animals (excluding 
ESAs) that U.S. airlines accommodated in cabin rose by nearly 24%--a 
rate of increase that far exceeds that of the number of passengers 
U.S. airlines transported over the same period. This rate of 
increase is modest, however, when compared to an explosion in the 
number of passengers seeking to travel with ESAs, which increased by 
56% in just one year (from 2016 to 2017). As DOT noted, one U.S. 
airline experienced a 75% increase from 2016 to 2017. One [Airlines 
for America] member airline has experienced a more than eightfold 
increase in the number of ESAs since 2012. In 2017, we estimate that 
U.S. airlines accommodated more than 750,000 ESAs in cabin, which 
constituted 73% of all estimated service animals transported.
---------------------------------------------------------------------------

    There have also been reports of some online entities that may, for 
a fee, provide individuals with pets a letter stating that the 
individual is a person with a mental or emotional disability and that 
the animal is an emotional support animal or psychiatric service 
animal, when in fact it is not. While the Department's current service 
animal regulation permits airlines to require documentation from a 
licensed mental health professional for the carriage of emotional 
support animals, the advent of online entities that may be guaranteeing 
the required documentation for a fee has made it difficult for airlines 
to determine whether passengers traveling with animals are traveling 
with their pets or with legitimate emotional support animals.

Misbehavior by Service Animals

    The Department's service animal guidance provides that all service 
animals should be trained to behave properly in public to be treated as 
a service animal.\15\ Despite this guidance, some believe that 
emotional support animals pose a greater safety risk because they have 
not been trained to mitigate a disability and, therefore, are less 
likely to have received adequate behavioral training.\16\ Airlines have 
reported increases in the number of behavior-related service animal 
incidents on aircraft, including urinating, defecating, and biting. In 
2018 and 2019, some airlines issued new service animal policies that 
require passengers traveling with a service animal to provide behavior/
training attestations and animal health information as a condition of 
transportation.\17\ These policies are mostly applicable to emotional 
support and psychiatric service animals and were created to address 
perceived or actual increased incidents of animal misbehavior on 
aircraft. In response, disability rights advocates expressed concern 
about the increased burdens that these polices have placed on 
legitimate service animal users. Disability advocates are also 
concerned about the increased stigma and negative perception of all 
service animals traveling on aircraft.
---------------------------------------------------------------------------

    \15\ Guidance Concerning Service Animals, 73 FR 27614, 27659 
(May 13, 2008).
    \16\ See Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409; ``Because 
ESAs are not required to have any training, any documentation of a 
passenger's need for an ESA fails to address the issue that causes 
problems in air travel, the ESA's training and behavior.''
    \17\ See discussion on airline service animal policies the 
Department's Final Statement of Enforcement Priorities Regarding 
Service Animals, 84 FR 43480 (August 21, 2019).
---------------------------------------------------------------------------

Request for Rulemaking

    The Department has heard from the transportation industry, as well 
as individuals with disabilities, that the current ACAA regulation 
could be improved to ensure nondiscriminatory access for individuals 
with disabilities, while simultaneously preventing instances of fraud 
and ensuring consistency with other Federal regulations. The 
Psychiatric Service Dog Society (PSDS), an advocacy group representing 
users of psychiatric service dogs, petitioned the Department in 2009 to 
eliminate a provision in the Department's ACAA regulations permitting 
airlines to require documentation and 48 hours' advance notice for 
users of psychiatric service animals. PSDS asserted that the 
Department's current regulation treats individuals with mental and 
emotional disabilities unfairly because individuals traveling with 
psychiatric service

[[Page 6451]]

animals, animals which are trained to do work or perform a task to 
assist individuals with disabilities, are subject to more burdensome 
requirements than passengers traveling with other trained service 
animals.\18\
---------------------------------------------------------------------------

    \18\ See Psychiatric Service Dog Society, DOT-OST-2009-0093-
0001, 1-2, at https://www.regulations.gov/document?D=DOT-OST-2009-0093-0001 (April 21, 2009).
---------------------------------------------------------------------------

    The Department also received comments from airlines and airline 
associations regarding the need to revise the Department's ACAA service 
animal regulations after the Department published a Notice of 
Regulatory Review in the Federal Register on October 2, 2017, inviting 
public comment on existing rules and other actions that are good 
candidates for repeal, replacement, suspension, or modification.\19\ 
Airlines generally asked that DOT harmonize its ACAA definition of a 
service animal with the service animal definition in DOJ's ADA 
regulations.\20\ Further, in 2018, ten disability advocacy 
organizations urged the Department to stop the proliferation of a 
patchwork of service animal access requirements in airlines' service 
animal policies.\21\
---------------------------------------------------------------------------

    \19\ 82 FR 45750 (Oct. 2, 2017).
    \20\ See, e.g., Comment from Airlines for America at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751 (December 4, 
2017); Comment from International Air Transport Association at 
https://www.regulations.gov/document?D=DOT-OST-2017-0069-269 
(December 1, 2017); Comment from Kuwait Airways at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2679 (December 1, 
2017); and Comment from National Air Carrier Association at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2771 (December 4, 
2017).
    \21\ Letter to Secretary Chao from American Association of 
People with Disabilities, Bazelon Center for Mental Health Law, 
Christopher and Dana Reeve Foundation, Disability Rights Education 
and Defense Fund, National Association of the Deaf, National 
Disability Rights Network, Paralyzed Veterans of America, The Arc of 
the United States, The National Council on Independent Living, and 
United Spinal Association (February 6, 2018) at https://www.regulations.gov/document?D=DOT-OST-2015-0246-0315.
---------------------------------------------------------------------------

Congressional Mandate

    The FAA Extension, Safety, and Security Act of 2016 requires that 
the Department issue a supplemental notice of proposed rulemaking on 
various access issues referenced in the Secretary's June 15, 2015, 
Report on Significant Rulemakings, including traveling by air with 
service animals.\22\ Further, the FAA Reauthorization Act of 2018 (The 
FAA Act) requires the Department to conduct a rulemaking proceeding on 
the definition of the term service animal and to develop minimum 
standards for what is required for service and emotional support 
animals.\23\ Congress also required the Department to consider whether 
it should align DOT's ACAA definition of a service animal with the 
service animal definition established by DOJ in its rule implementing 
the ADA.\24\
---------------------------------------------------------------------------

    \22\ The FAA Extension, Safety, and Security Act of 2016, Public 
Law 114-190, Sec. 2108 (July 15, 2016).
    \23\ The FAA Reauthorization Act of 2018, Public Law 115-254, 
Sec. 437 (October 5, 2018).
    \24\ Id.
---------------------------------------------------------------------------

    In addition, Congress directed the Department to consider the 
following measures to ensure that pets are not claimed as service 
animals: (1) Photo identification for service animals, (2) training 
documentation, (3) medical documentation indicating the tasks the 
animal performs to assist its user, and (4) whether more than one 
service animal should be permitted to accompany a passenger.\25\ 
Moreover, the FAA Act requires the Department to consider the following 
to ensure the health and safety of passengers onboard aircraft: (1) 
Whether to require health and vaccination records for service animals, 
(2) whether to require third-party proof of behavior training for 
service animals. Finally, DOT must consider the impact of additional 
requirements on passengers with disabilities traveling with service 
animals and ways to eliminate or mitigate those impacts. The Department 
is considering each of these measures as part of the present 
rulemaking. The FAA Act directs the Department to issue a final rule on 
service animals no later than March 22, 2020.
---------------------------------------------------------------------------

    \25\ Id.
---------------------------------------------------------------------------

ACCESS Advisory Committee

    In April 2016, the Department established an Advisory Committee on 
Accessible Air Transportation (ACCESS Advisory Committee) to negotiate 
and develop a proposed rule concerning accommodations for individuals 
with disabilities traveling by air with service animals.\26\ The 
Committee members and other interested parties discussed the following 
issues: (1) Distinguishing between emotional support animals and other 
service animals; (2) limiting the species of service animals that 
airlines are required to transport; (3) limiting the number of service 
animals that a single individual should be permitted to transport; and 
(4) requiring attestation from all service animal users that their 
animal has been trained to behave in a public setting. However, despite 
good faith efforts, the ACCESS Advisory Committee was not able to reach 
consensus on how the service animals regulations should be revised. 
Nevertheless, the Department gathered useful information during this 
process from disability rights advocates, the airline industry, an 
association representing flight attendants, and other interested 
parties.
---------------------------------------------------------------------------

    \26\ 81 FR 20265 (Apr. 7, 2016).
---------------------------------------------------------------------------

3. The ANPRM

    On May 23, 2018, the Department published in the Federal Register 
an Advance Notice of Proposed Rulemaking (ANPRM) titled ``Traveling by 
Air with Service Animals.'' \27\ In the ANPRM, the Department sought 
comment on how to amend the Department's ACAA regulations to address 
the problems that exist with the rule, while also ensuring 
nondiscriminatory access for individuals with disabilities in air 
transportation.
---------------------------------------------------------------------------

    \27\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832 (May 23, 2018).
---------------------------------------------------------------------------

    In the ANPRM, the Department sought comment on the following: (1) 
Whether psychiatric service animals should be treated similarly to 
other service animals; (2) whether there should be a distinction 
between emotional support animals and other service animals; (3) 
whether emotional support animals, if allowed onboard a flight, should 
be required to travel in pet carriers for the duration of the flight; 
(4) whether the species of service animals and emotional support 
animals that carriers are required to transport should be limited (for 
example, limited to dogs only); (5) whether the number of service 
animals/emotional support animals should be limited per passenger; (6) 
whether an attestation should be required from all service animal and 
emotional support animal users that their animals have been trained to 
behave in a public setting; (7) whether service animals and emotional 
support animals should be harnessed, leashed, or otherwise tethered; 
(8) whether there are safety concerns with transporting large service 
animals and if so, how to address them; (9) whether airlines should be 
prohibited from requiring a veterinary health form or immunization 
record from service animal users without an individualized assessment 
that the animal would pose a direct threat to the health or safety of 
others or would cause a significant disruption in the aircraft cabin; 
and (10) whether U.S. airlines should continue to be held responsible 
if a passenger traveling under the U.S. carrier's code faces additional 
restrictions on travel with a service animal on a flight operated by

[[Page 6452]]

the U.S. carrier's foreign codeshare partner.\28\
---------------------------------------------------------------------------

    \28\ Id.
---------------------------------------------------------------------------

    The Department received approximately 4,500 comments over the 45-
day comment period from disability advocacy organizations, airlines, 
human and animal health organizations, consumer groups, and other 
interested parties; the vast majority of these comments were from 
individual members of the public.\29\ The Department has carefully 
reviewed and considered the comments received and is proposing a 
rulemaking that is designed to ensure that airlines provide 
nondiscriminatory access to passengers with disabilities who require 
the assistance of service animals while incorporating modifications to 
these requirements reasonably designed to ensure that airlines remain 
able to provide for the safety and well-being of all passengers and 
crewmember and the safe and efficient operation of the aircraft. The 
Department's responses to the comments are set forth below, immediately 
following a summary of regulatory provisions and a summary of the 
regulatory impact analysis.
---------------------------------------------------------------------------

    \29\ See Traveling by Air with Service Animals, Advance Notice 
of Proposed Rulemaking, https://www.regulations.gov/docket?D=DOT-OST-2018-0068.
---------------------------------------------------------------------------

4. Summary of Proposed Regulatory and Deregulatory Provisions

------------------------------------------------------------------------
              Subject                             Proposal
------------------------------------------------------------------------
Definition of Service Animal......  A service animal would be defined as
                                     a dog that is individually trained
                                     to do work or perform tasks for the
                                     benefit of a qualified individual
                                     with a disability, including a
                                     physical, sensory, psychiatric,
                                     intellectual, or other mental
                                     disability.
Emotional Support Animals.........  Carriers would not be required to
                                     recognize emotional support animals
                                     as service animals and may treat
                                     them as pets.
Treatment of Psychiatric Service    Psychiatric service animals would be
 Animals.                            treated the same as other service
                                     animals that are individually
                                     trained to do work or perform a
                                     task for the benefit of a qualified
                                     individual with a disability.
Species...........................  Carriers would be permitted to limit
                                     service animals to dogs.
Health Form.......................  Carriers would be permitted to
                                     require passengers to remit a
                                     completed U.S. Department of
                                     Transportation Service Animal Air
                                     Transportation Health Form as a
                                     condition of transportation.
Behavior and Training Attestation.  Carriers would be permitted to
                                     require passengers to remit a
                                     completed U.S. Department of
                                     Transportation Service Animal Air
                                     Transportation Behavior and
                                     Training Attestation Form as a
                                     condition of transportation.
Relief Attestation................  Carriers would be permitted to
                                     require individuals traveling with
                                     a service animal on flights eight
                                     hours or longer to complete a U.S.
                                     Department of Transportation
                                     Service Animal Relief Attestation
                                     as a condition of transportation.
Number of Service Animals per       Carriers would be permitted to limit
 Passenger.                          the number of service animals
                                     traveling with a single passenger
                                     with a disability to two service
                                     animals, and would be permitted to
                                     require that both service animals
                                     fit on their handler's lap and/or
                                     within their handler's foot space
                                     on the aircraft.
Large Service Animals.............  Carriers would be permitted to
                                     require a service animal to fit
                                     within its handler's foot space on
                                     the aircraft.
Control of Service Animals........  Carriers would be permitted to
                                     require that a service animal be
                                     harnessed, leashed, tethered, or
                                     otherwise under the control of its
                                     handler.
Service Animal Breed or Type......  Carriers would be prohibited from
                                     refusing to transport a service
                                     animal based solely on breed or
                                     generalized physical type, as
                                     distinct from an individualized
                                     assessment of the animal's behavior
                                     and health.
Check-In Requirements.............  Carriers that require a passenger
                                     with a disability to check-in at
                                     the airport prior to the travel
                                     time required for the general
                                     public would be required to make an
                                     employee available promptly to
                                     assist the passenger with the check-
                                     in process.
------------------------------------------------------------------------

5. Summary of Regulatory Impact Analysis

    The Department has prepared a preliminary regulatory evaluation in 
support of the NPRM to amend the ACAA service animal regulations. DOT 
proposes to define a service animal as a dog that is individually 
trained to do work or perform tasks for the benefit of a qualified 
individual with a disability, including a physical, sensory, 
psychiatric, intellectual, or other mental disability. DOT's proposed 
service animal definition also explains that emotional support animals, 
comfort animals, companionship animals, and service animals in training 
are not service animals for purposes of this rule. In addition, DOT 
proposes to treat psychiatric service animals (animals that assist 
individuals with mental health related disabilities) like other service 
animals. Under the proposed rule, airlines would be allowed to require 
passengers traveling with a service animal to complete forms attesting 
that the passenger's service animal has been individually trained to do 
work or perform tasks for the benefit of the passenger with a 
disability, the animal has been trained to behave in public, the animal 
is in good health, and the animal has the ability either not to relieve 
itself on a long flight or to relieve itself in a sanitary manner.
    Under the proposed rulemaking, carriers would no longer be required 
to recognize emotional support animals as service animals. Passengers 
currently have an incentive to claim pets as emotional support animals 
as existing regulations require carriers to transport all emotional 
support animals at no cost to the passenger.
    The primary economic impact of this proposed rulemaking is that it 
eliminates a market inefficiency. The current policy amounts to a price 
restriction, which requires carriers to forgo a potential revenue 
source. In addition, the current policy, which effectively sets the 
price at zero, requires carriers to use resources to provide an 
accommodation for emotional support animals.
    There is one quantified cost element: A potential burden on 
passengers traveling with service animals who may be required to submit 
up to three DOT forms to carriers. For Paperwork Reduction Act (PRA) 
purposes, we estimate that the forms could create 144,000 burden hours 
and $3.0 million in costs per year. In some cases, however, carriers 
already ask passengers to complete equivalent non-governmental forms. 
Thus, the PRA numbers likely overestimate the burden that would result 
from this rulemaking.

[[Page 6453]]



        Table ES-1--Summary of Impacts Due to Proposed Rulemaking
                       [Millions of 2018 dollars]
------------------------------------------------------------------------
                Impact                            Annual value
------------------------------------------------------------------------
Paperwork burden for passengers        -$3.0.
 traveling with service animals.
Discomfort to passengers who no        Not quantified.
 longer will travel with ESAs.
Eliminated deadweight loss; transfer   $75.1 (total).
 of surplus from consumers to
 producers (increased fees paid by
 passengers travelling with ESAs).
Reduction in negative externalities    Not quantified.
 caused by ESAs.
Secondary market impacts due to        Not quantified.
 reduced demand for ESA documentation
 Service.
------------------------------------------------------------------------

    Public or non-use values or negative externalities in ESA travel 
could affect the efficiency consequences of this proposed rule. The 
preliminary regulatory evaluation describes the potential impacts of 
non-use values and negative externalities in detail but does not 
quantify them due to a lack of data. The Department requests 
information and data to quantify and evaluate the extent of these 
impacts.

1. Service Animal Species

Current Requirements

    The Department's current service animal rule does not include a 
species restriction with the exception of certain unusual species, such 
as snakes, other reptiles, ferrets, rodents, and spiders.

The ANPRM

    In the ANPRM, the Department sought comment on what, if any, 
species limitations should be placed on service animals.\30\ In light 
of suggestions made by certain disability advocacy organizations, the 
Department also sought specific comment on whether capuchin monkeys 
should be recognized as service animals.\31\ Finally, the Department 
requested comment on whether it should recognize miniature horses under 
its definition of a service animal, as some individuals with 
disabilities prefer miniature horses instead of dogs as service animals 
for religious reasons, because of their long life spans, and/or because 
of allergies.\32\
---------------------------------------------------------------------------

    \30\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23839.
    \31\ Id. at 23840.
    \32\ Id.
---------------------------------------------------------------------------

Comments Received

    Individual commenters, disability advocates, airlines, and other 
commenters all support dogs as service animals. This result is not 
surprising as the Department has been consistently informed that the 
clear majority, approximately 90 percent or more, of service animals 
that travel on aircraft are dogs. Some commenters note that dogs are 
the preferred species for service animals because they can be more 
easily trained to mitigate a passenger's disability than other animals. 
In a joint comment filed by Airlines for America (A4A), the Regional 
Airline Association (RAA), and International Air Transport Association 
(IATA), these associations commented that dogs in particular can hold 
their elimination functions for extended amounts of time, have the 
correct temperament to serve as service animals, and can be trained to 
behave appropriately in public and around large groups of people.\33\ 
Assistance Dogs International (ADI) notes specifically that dogs have 
been assisting individuals with disabilities for over 100 years.\34\
---------------------------------------------------------------------------

    \33\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
    \34\ Comment of Assistance Dogs International, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409.
---------------------------------------------------------------------------

    A smaller majority of disability advocate organizations and 
airports support both dogs and miniature horses as service animals. 
Disability advocates argue that miniature horses should be recognized 
subject to aircraft space restraints for those individuals with 
disabilities who rely on these animals, while airports argue for their 
inclusion to promote greater predictably for passengers with 
disabilities and airport operators. Although miniature horses do not 
fall under DOJ's definition of a service animal, DOJ requires covered 
entities such as airports to permit individuals with disabilities to 
use miniature horses, where reasonable, if the miniature horse has been 
individually trained to do work or perform tasks for the benefit of the 
individual with a disability.\35\
---------------------------------------------------------------------------

    \35\ See 28 CFR 36.302(c)(9) and 28 CFR 35.136.
---------------------------------------------------------------------------

    Some disability organizations, however, argue against miniature 
horses as service animals, reasoning that horses are not commonly used 
as service animals and that excluding them from the rule will not 
impact many individuals with disabilities. Some airline commenters 
acknowledged that they receive very few requests to accommodate 
miniature horses each year and further oppose the inclusion of 
miniature horses as service animals because they are too large and 
inflexible to be safely accommodated on an aircraft and to fit within a 
passenger's foot space.
    A small number of disability advocacy organizations support 
capuchin monkeys as service animals because of their ability to assist 
individuals with limited mobility with in-home services; however, these 
groups recognize that capuchin monkeys must be contained in a carrier 
in the airport and on the aircraft because of the potential danger they 
pose. Other disability advocacy organizations, airlines, and animal 
health associations strongly oppose recognizing capuchin monkeys as 
service animals. These groups argue that capuchin monkeys, while 
trained to do work or perform tasks for individuals with disabilities, 
are not domesticated animals and can be prone to increased aggression. 
Other groups oppose capuchin monkeys and other non-human primates as 
service animals, citing DOJ's position that these animals have the 
potential for disease transmission and that they exhibit unpredictable 
aggressive behavior.\25\
    While Paralyzed Veterans of America (PVA) supports some limitations 
on the type of species that may be used as service animals or emotional 
support animals, the organization argues that access should be provided 
for all species and sizes of dogs, cats, rabbits, miniature horses, 
capuchin monkeys and other species that can be trained to behave 
appropriately and be safely brought on airplanes.\36\ Finally, while 
the Association of Flight Attendants (AFA) commented that service 
animals and ESAs should be limited by species, it recognized that it 
was not in a position to make specific recommendations about the type 
of species airlines should be required to

[[Page 6454]]

transport.\37\ However, AFA recognized that it is appropriate for the 
Department under the ACAA to consider the characteristics of the animal 
that may be carried in the cabin, the size of the animal, and the 
aircraft's ability to accommodate the animal.
---------------------------------------------------------------------------

    \36\ Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4187.
    \37\ Comment of the Association of Flight Attendants, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4207.
---------------------------------------------------------------------------

DOT Response

    DOT proposes to define a service animal as a dog that is 
individually trained to do work or perform tasks for the benefit of a 
qualified individual with a disability, including a physical, sensory, 
psychiatric, intellectual, or other mental disability. DOT's proposed 
service animal definition also explains that emotional support animals, 
comfort animals, companionship animals, and service animals in training 
are not service animals. Consistent with this definition, the 
Department proposes to limit the species of service animals to dogs. 
Under the Department's proposal, airlines could choose to transport 
other species of animals that assist individuals with disabilities in 
the cabin for free pursuant to an established airline policy, but would 
only be required under Federal law to recognize dogs as service 
animals. The Department considered the fact that dogs are the most 
common animal species used by individuals to mitigate disabilities both 
on and off aircraft as noted by many commenters. Dogs also have both 
the temperament and ability to do work and perform tasks while behaving 
appropriately in a public setting and while being surrounded by a large 
group of people.
    The Department considered, but decided against, a proposal that 
would include other species as service animals, including capuchin 
monkeys and miniature horses. Although trained capuchin monkeys can 
assist persons with limited mobility with their daily tasks, we are not 
proposing to recognize capuchin monkeys as service animals because they 
may present a safety risk to other passengers as they have the 
potential to transmit diseases and may exhibit ``unpredictable 
aggressive behavior.'' \38\ Further, according to information the 
Department received from Helping Hands: Monkey Helpers,\39\ it is 
often, if not always, qualified trainers rather than individuals with 
disabilities, who travel by air with capuchin monkeys, as the trainer 
delivers the monkeys. However, neither the existing regulation nor the 
proposed rule would require airlines to transport service animals when 
they are not accompanied by the service animal user. Because 
individuals with disabilities may have significantly more difficulty 
obtaining the assistance of capuchin monkeys if they are not allowed to 
travel by air with their trainer, the Department seeks comment on 
whether to require airlines to allow the transport of closed-colony 
capuchin monkeys \40\ in a carrier (capuchin monkeys weigh 
approximately 6-10 lbs.) and when traveling with a qualified 
trainer.\41\
---------------------------------------------------------------------------

    \38\ Nondiscrimination on the Basis of Disability in State and 
Local Government Services, 75 FR 56164, 56194 (Sept. 5, 2010).
    \39\ Helping Hands monkeys are New World monkeys, native to 
Central and South America. New World monkeys do not carry the 
zoonotic diseases often associated with Old World monkeys (from 
Africa) such as Herpes B, Monkey Pox, or Simian Immunodeficiency 
Virus (SIV). However, according to the CDC, New World monkeys do 
carry and potentially transmit tuberculosis, measles, enteric 
diseases (salmonella, shigella, cryptosporidium, and giardia).
    \40\ According to Helping Hands: Monkey Helpers, its capuchin 
monkeys were bred from an existing colony first obtained within the 
United States in 1979 and continue to be housed in a closed colony, 
which means that the organization knows exactly where the monkeys 
come from, including their parentage, and have complete medical 
histories on every monkey in the program. However, according to CDC, 
most of the zoonotic diseases associated with New World NHPs can be 
acquired from humans. A ``closed colony'' does not ensure that these 
animals are or will remain free of zoonotic diseases of concern. TB, 
in particular, is always acquired from humans. The comment does not 
mention routine, regular TB testing, which is a necessary component 
of a ``closed colony.'' More information is available at https://www.monkeyhelpers.org.
    \41\ The Department notes that under 42 CFR 71.53, the 
importation of any non-human primate into the United States is 
prohibited unless the importer is registered with the CDC and the 
purpose of the import is limited to science, education, or 
exhibition.
---------------------------------------------------------------------------

    In addition, the Department did not propose to include miniature 
horses in its definition of a service animal given size limitations on 
aircraft. The Department seeks comment on its proposal to limit service 
animals to dogs.

2. Breed or Type Restrictions

Current Requirements

    While the Department's disability regulations allow airlines to 
deny transportation to an animal if, among other things, it poses a 
direct threat to the health or safety of others, the Department has 
taken the position that restrictions on specific dog breeds or types 
are inconsistent with its current service animal regulation.\42\
---------------------------------------------------------------------------

    \42\ See Final Statement of Enforcement Priorities Regarding 
Service Animals, 84 FR 43480 (August 21, 2019).).
---------------------------------------------------------------------------

ANPRM

    Although the Department did not specifically seek comment on 
whether airlines should be permitted to refuse transportation to 
certain breeds or types of service dogs, the Department received a 
number of comments on airline breed restrictions.

Comments Received

    The Department received hundreds of comments from individual 
commenters on whether airlines should be permitted to restrict service 
dogs based on breed or type. Delta Air Lines, Inc. (Delta Air Lines) 
commented that carriers should be permitted to impose such restrictions 
to ensure the safety of passengers on aircraft if the Department does 
not establish a clear means to demonstrate that an animal can behave 
properly.\43\ No other airline and no disability rights organization 
addressed this issue as the ANPRM did not specifically call for comment 
on this subject.
---------------------------------------------------------------------------

    \43\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
---------------------------------------------------------------------------

    Most individual commenters did not support allowing airlines to 
impose breed restrictions on service animals. These commenters stated 
that pit-bull bans are discriminatory and that their pit-bull-type 
dogs, like other dogs, can be trained to perform tasks to mitigate a 
user's disabilities and can be well behaved. These commenters also 
questioned an airline's ability to determine whether a dog is a ``pit 
bull'' simply by looking at the animal's features. Conversely, 
approximately 22 percent of commenters supported a breed or type 
restriction on dogs such as pit bulls (typically taken to include 
American pit bull terriers, Staffordshire bull terriers, and American 
Staffordshire bull terriers), as well as other types of dogs that 
commenters believe are commonly known to be aggressive.

DOT Response

    The Department is proposing that airlines should continue to be 
prohibited from restricting service animals based solely on the breed 
or generalized type of dog. The Department's policy has been to require 
airlines to conduct individualized assessments of particular service 
animals based on the animal's evident behavior or health, rather than 
applying generalized assumptions about how a breed or type of dog would 
be expected to behave. Under this policy, the Department allows 
airlines to refuse transportation to dogs that exhibit aggressive 
behavior and that pose a direct threat to the health or safety of 
others regardless of breed, and we propose to retain that policy in our 
new service animal rule. We note that DOJ

[[Page 6455]]

also rejects an outright ban on service animals because of their breed 
in implementing its regulations under the ADA. DOJ has advised 
municipalities that prohibit specific breeds of dogs that they must 
make an exception for a service animal of a prohibited breed, unless 
the dog poses a direct threat to the health or safety of others, a 
determination that must be made on a case-by-case basis.\44\
---------------------------------------------------------------------------

    \44\ See Frequently Asked Questions about Service Animals and 
the ADA, Questions 22-24, available at https://www.ada.gov/regs2010/service_animal_qa.html (July 20, 2015): [I]f an individual uses a 
breed of dog that is perceived to be aggressive because of breed 
reputation, stereotype, or the history or experience the observer 
may have with other dogs, but the dog is under the control of the 
individual with a disability and does not exhibit aggressive 
behavior, the public accommodation cannot exclude the individual or 
the animal from the place of public accommodation. The animal can 
only be removed if it engages in the behaviors mentioned in Sec.  
36.302(c) (as revised in the final rule) or if the presence of the 
animal constitutes a fundamental alteration to the nature of the 
goods, services, facilities, and activities of the place of public 
accommodation.
    See also 75 FR 56236, 52266-56267 (September 15, 2010): [I]f an 
individual uses a breed of dog that is perceived to be aggressive 
because of breed reputation, stereotype, or the history or 
experience the observer may have with other dogs, but the dog is 
under the control of the individual with a disability and does not 
exhibit aggressive behavior, the public accommodation cannot exclude 
the individual or the animal from the place of public accommodation. 
The animal can only be removed if it engages in the behaviors 
mentioned in Sec.  36.302(c) (as revised in the final rule) or if 
the presence of the animal constitutes a fundamental alteration to 
the nature of the goods, services, facilities, and activities of the 
place of public accommodation.
---------------------------------------------------------------------------

    However, the Department understands the concerns raised about pit 
bulls and certain other breeds or types of dogs that have a reputation 
of attacking people and inflicting severe and sometimes fatal injuries. 
The Department also understands that there may be concerns that certain 
dogs may be dangerous because of their muscular bodies, large and 
powerful jaws and neck muscles, and ferocity when provoked to attack. 
The Department seeks comment on whether these concerns are valid. In 
particular, the Department seeks comment on whether, notwithstanding 
the DOJ rules under the ADA, the unique environment of a crowded 
airplane cabin in flight justifies permitting airlines to prohibit pit 
bulls and any other particular breeds or types of dogs from traveling 
on their flights under the ACAA even when those dogs have been 
individually trained to perform as service animals to assist a 
passenger with a disability. The Department will consider this question 
in light of the full rulemaking record when finalizing this rule. The 
Department also seeks comment on whether its proposal to allow airlines 
to conduct an individualized assessment of a service animal's behavior 
to determine whether the service animal poses a direct threat to the 
health or safety of others is an adequate measure to ensure that 
aggressive animals are not transported on aircraft, rather than banning 
an entire breed or type of service animal.

3. Emotional Support Animals

Current Requirements

    For purposes of air transportation, under our existing rules, DOT 
considers a service animal to be any animal that is individually 
trained or able to provide assistance to a qualified person with a 
disability; or any animal shown by documentation to be necessary for 
the emotional well-being of a passenger.\45\ However, while the 
Department currently requires airlines to recognize emotional support 
animals as service animals, it allows airlines to require that 
emotional support animal users provide a letter from a licensed mental 
health professional of the passenger's need for the animal. Currently, 
the Department's ACAA rules allow airlines to require emotional support 
animal users to provide current documentation (no older than one year 
from the date of the passenger's scheduled initial flight) on the 
letterhead of a licensed mental health professional stating the 
following:
---------------------------------------------------------------------------

    \45\ See 14 CFR 382.117; Guidance Concerning Service Animals, 73 
FR 27614, 27663 (May 13, 2008).
---------------------------------------------------------------------------

    (1) The passenger has a mental or emotional disability recognized 
in the Diagnostic and Statistical Manual of Mental Disorders--Fourth 
Edition (DSM IV);
    (2) The passenger needs the emotional support or psychiatric 
service animal as an accommodation for air travel and/or for activity 
at the passenger's destination;
    (3) The individual providing the assessment is a licensed mental 
health professional, and the passenger is under his or her professional 
care; and
    (4) The date and type of the mental health professional's license 
and the state or other jurisdiction in which it was issued.\46\
---------------------------------------------------------------------------

    \46\ 14 CFR 382.117(e)(1)-(4).
---------------------------------------------------------------------------

    Furthermore, to enable airlines sufficient time to assess the 
passenger's documentation, DOT permits airlines to require 48 hours' 
advance notice of a passenger's wish to travel with an emotional 
support animal so that airlines can verify the documentation. Airlines 
are also permitted to require that passengers traveling with emotional 
support animals check-in one hour before the check-in time for the 
general public.\47\
---------------------------------------------------------------------------

    \47\ 14 CFR 382.27(c)(8).
---------------------------------------------------------------------------

The ANPRM

    In the ANPRM, the Department described the concerns raised by 
airlines, disability advocates, flight attendants, and the traveling 
public that emotional support animals may pose a safety risk to other 
service animals, passengers, and airline personnel and could create a 
disturbance or disruption that would interfere with the safe and 
efficient operation of the aircraft. The Department sought comment on 
whether it should continue to include emotional support animals in the 
definition of a service animal in its ACAA regulation, or adopt a 
definition of service animal similar to the definition in DOJ's ADA 
regulation where emotional support animals are not recognized as 
service animals.\48\
---------------------------------------------------------------------------

    \48\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23838.
---------------------------------------------------------------------------

    In the event that the Department decided to continue to recognize 
emotional support animals as service animals, the Department sought 
comment on whether it should continue to allow airlines to require 
emotional support animal users to provide documentation.\49\ The 
Department also sought comment on alternative approaches to 
documentation that can be used to verify an emotional support animal's 
status.\50\ Further, the Department sought comment on whether emotional 
support animals should be regulated separately and distinctly from 
service animals, and if airlines are required to transport emotional 
support animals, whether airlines should be allowed to require that 
emotional support animals be contained.\51\
---------------------------------------------------------------------------

    \49\ Id.
    \50\ Id
    \51\ Id
---------------------------------------------------------------------------

Comments Received

Should the Department continue to include emotional support animals in 
the Department's ACAA definition of a service animal?
    Most organization commenters urged the Department to align its 
definition of a service animal with DOJ's definition of a service 
animal, which does not recognize emotional support animals and limits 
service animals to dogs individually trained to do work or perform a 
task for an individual with a disability. As part of this NPRM, the 
Department seeks comment on reasons

[[Page 6456]]

the regulation of service animals on aircraft should or should not 
differ from DOJ's regulation of service animals under its rules 
implementing the ADA. Airline organizations commented that the 
Department should follow DOJ's lead and exclude emotional support 
animals from the definition of a service animal in the air 
transportation context because DOJ's definition is ``better suited to 
the particular challenges associated with accommodating animals in the 
aircraft cabin environment, which involves allowing animals to travel 
in a confined, noisy, moving space at high altitude . . . and in close 
proximity to crew, passenger, and other animals and no opportunity to 
remove the animal during flight.'' \52\ Similarly, disability advocates 
have commented that the Department's current rule, which classifies 
emotional support animals as service animals, causes significant 
confusion in the disability community.
---------------------------------------------------------------------------

    \52\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------

    However, while disability advocates, airlines, and the majority of 
commenters agree that emotional support animals should be removed from 
the definition of a service animal, they disagree on whether the 
Department should recognize emotional support animals as an 
accommodation for individuals with disabilities that would be regulated 
separately and distinctly from service animals. Most advocacy 
organizations support a definition of service animal focused on animals 
trained to do work or perform tasks for the benefit of individuals with 
disabilities, similar to DOJ's definition. Those advocacy 
organizations, however, support the Department's continued recognition 
of emotional support animals, so long as emotional support animals are 
regulated separately and distinctly from service animals.
    The National Federation of the Blind (NFB) \53\ commented that 
emotional support animals, which are untrained to mitigate a 
disability, should be permitted as an accommodation subject to 
``specific and more restrictive conditions'' of carriage. In addition, 
Psychiatric Service Dog Partners (PSDP) \54\ commented that regulating 
emotional support animals differently from other service animals is 
warranted given that emotional support animals have not been trained to 
perform a specific task for a passenger with a disability, and 
emotional support animal users are likely not aware of DOT's behavior 
expectations or the required public access training protocols.
---------------------------------------------------------------------------

    \53\ Comment of the National Federation of the Blind, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3261.
    \54\ Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3117.
---------------------------------------------------------------------------

    Similarly, in a joint comment filed by A4A, RAA, and IATA, these 
associations commented that should the Department continue to recognize 
emotional support animals, a decision opposed by the associations, 
emotional support animals should be regulated separately and distinctly 
from service animals and subject to more stringent requirements than 
service animals, such as documentation from a licensed mental health 
professional who has examined and diagnosed the emotional support 
animal user in person.\55\
---------------------------------------------------------------------------

    \55\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------

    The majority of individual commenters provided general statements 
of support for the Department's continued recognition of emotional 
support animals, and did not opine on whether emotional support animals 
should be regulated separately from service animals. Generally, these 
individuals, along with those disability advocates in support of the 
continued recognition of emotional support animals, argue that the 
Department should continue to recognize the vital role that emotional 
support animals play in mitigating mental and emotional disabilities 
during air transportation and at a passenger's destination. 
Specifically, PVA insists that passengers with disabilities have access 
to their emotional support animals as the mere presence of these 
animals accommodates a person's disability and may be crucial to 
allowing a person with a disability to travel by air.\56\ Similarly, 
the American Council of the Blind (ACB) recognizes that emotional 
support animals can perform a vital role for individuals who are 
incapable of moving freely through society.\57\
---------------------------------------------------------------------------

    \56\ Comment of Paralyzed Veterans of America, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4187.
    \57\ Comment of American Council of the Blind, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4133.
---------------------------------------------------------------------------

    Autism Speaks commented that the Department should afford 
individuals with disabilities who rely on emotional support and 
psychiatric service animals ``with the same legal protections as people 
who use other service animals.'' \58\ Autism Speaks acknowledges that 
``people may not see the services psychiatric service animals and 
emotional support animals provide because sometimes these services may 
not be obvious; autism itself may be an invisible disability,'' but 
``the needs of many people with autism for emotional support, however, 
are very real.''
---------------------------------------------------------------------------

    \58\ Comment of Autism Speaks, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4268.
---------------------------------------------------------------------------

    Airlines have indicated that fraud and safety are the primary 
reasons they oppose the Department's continued recognition of emotional 
support animals. In a joint comment filed by A4A, RAA, and IATA, these 
associations commented that ``incidents involving animals that 
allegedly are [emotional support animals] [have] become an unacceptable 
threat to the health and safety of airline staff and the traveling 
public, including qualified individuals with a disability who travel 
with a trained service animal and those trained service animals 
themselves.'' \59\
---------------------------------------------------------------------------

    \59\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------

    With respect to fraud, airlines commented that individuals 
traveling with purported emotional support animals may not actually be 
individuals with disabilities, and the surge in the transport of 
emotional support animals on aircraft is fueled by ``cheap and easy 
availability of fraudulent credentials.'' American Airlines, Inc. 
(American Airlines) commented that it experienced a 48-percent increase 
in the number of emotional support animals carried in 2017 compared to 
2016 (105,155 in 2016 and 155,790 in 2017).\60\ American Airlines also 
commented that it experienced a 17-percent decline in the number of 
requests to transport pets for a fee in 2017 in comparison to 2016. 
Spirit Airlines, Inc. (Spirit Airlines) commented on the loss of 
millions of dollars in pet carriage fees from passengers fraudulently 
claiming their ``house pets are service or support animals'' and on 
instances of emotional support animal misbehavior as justification for 
why the Department should not recognize emotional support animals.\61\ 
Delta Air Lines recognizes that some passengers with disabilities 
``have a legitimate need'' for emotional support animals; however, the 
carrier opposes the Department's continued recognition of emotional 
support animals and urged the Department to adopt the DOJ definition of 
a trained service animal. Delta believes that passengers who currently 
have a

[[Page 6457]]

legitimate need for an emotional support animal could still be 
accommodated on aircraft under the DOJ definition of a service animal, 
if these passengers trained their animals to become psychiatric service 
animals, which are recognized as service animals by DOJ.\62\ However, 
Spirit Airlines contends that the Department should eliminate the 
category of emotional support animals in its regulations because 
emotional support animals generally receive ``absolutely no training, 
neither obedience nor specific to their owner's disability'' (emphasis 
in original).\63\ Most U.S. carriers believe that most of the fraud and 
safety issues on which the Department sought comment in the ANPRM would 
be mitigated if DOT adopted a definition of service animal that 
excluded emotional support animals.
---------------------------------------------------------------------------

    \60\ Comment of American Airlines, Comment of American Airlines, 
Inc. https://www.regulations.gov/document?D=DOT-OST-2018-0068-3507.
    \61\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
    \62\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
    \63\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
---------------------------------------------------------------------------

    While U.S. airlines oppose the Department's continued recognition 
of emotional support animals, foreign carriers are split on this issue. 
Those foreign carriers in support of emotional support animals urge the 
Department to define emotional support animals separately from service 
animals and subject them to a more stringent regulatory standard. 
Health and safety concerns continue to be the primary justification 
provided by foreign carriers in support of eliminating emotional 
support animals or subjecting them to stricter regulation.
Should the Department continue to allow airlines to require emotional 
support animal users to provide medical documentation and advance 
notice?
    While most disability advocates oppose allowing airlines to require 
documentation from service animal users, including emotional support 
animal users, some advocacy organizations are in favor of documentation 
exclusively for emotional support animals. Some advocacy organizations 
support documentation for all service animal users in the form of a 
decision-tree, which is a series of questions designed to educate the 
public on traveling with service animals and reduce the instances of 
individuals fraudulently representing their pets as service animals. 
Some advocates and airlines expressed support for behavior 
attestations, another form of documentation first suggested during a 
2016 negotiated rulemaking as a potential measure to be proposed by the 
Department in a future rulemaking.\64\ Since the negotiated rulemaking, 
several carriers have created their own behavioral attestations as one 
of many service animal policy changes that carriers put into place in 
2018 and 2019. Finally, some disability advocacy organizations that 
oppose documentation for service animals, including emotional support 
animals, commented that the Department should only permit airlines to 
make the same inquiries that DOJ permits under its regulation 
implementing the ADA: (1) Is the animal required because of a 
disability? and (2) What work or task has the animal been trained to 
perform? \65\
---------------------------------------------------------------------------

    \64\ Service Animal--Vote Tally Sheet--3rd Party Documentation, 
Mandatory Attestation (Oct. 26, 2016), https://www.regulations.gov/document?D=DOT-OST-2015-0246-0281.
    \65\ See 28 CFR 35.136(f); 28 CFR 36.302(c)(6). DOJ's ADA 
regulations do not generally permit a covered entity to make these 
two inquiries when it is readily apparent that an animal is trained 
to do work or perform tasks for an individual with a disability, 
(e.g., the dog is observed guiding an individual who is blind or has 
low vision, pulling a person's wheelchair, or providing assistance 
with stability or balance to an individual with an observable 
mobility disability).
---------------------------------------------------------------------------

    While all commenting U.S. airline opposed the Department's 
continued recognition of emotional support animals, airlines have 
commented that if the Department continues to require airlines to 
transport emotional support animals as an accommodation for individuals 
with disabilities, airlines should be permitted to require those 
passengers to provide documentation from a medical professional that 
confirms the passenger's need for the animal. Airlines also commented 
that airlines should be able to impose more restrictive requirements--
for example, that the passenger's diagnosis be based on an in-person 
visit and that the documentation state that the passenger has a mental 
impairment as defined in the Department's ACAA regulations, as opposed 
to stating only that the passenger has a disorder recognized under the 
Diagnostic and Statistical Manual of Mental Disorders.
    Both U.S. and foreign carriers believe that allowing airlines to 
require documentation to prove the passenger's need for an emotional 
support animal is essential if the Department continues to recognize 
emotional support animals. Airlines commented that there is a 
significant problem with fraud under the Department's current 
requirements and that fraud would only become more prevalent should the 
Department dispense with a documentation requirement for emotional 
support animal users. The Association of Flight Attendants (AFA) also 
favors a documentation requirement for emotional support animal users 
and noted that while some emotional support animal users may be 
discouraged from flying if required to produce documentation, the 
correlation between a documentation requirement and fraud reduction 
justifies the requirement. That association also noted that while a 
documentation requirement may not eliminate fraud entirely, fraud 
reduction, to any degree, benefits the traveling public, individuals 
with disabilities, and airlines.
Should the Department allow airlines to require emotional support 
animals to be contained in pet carriers?
    Disability advocates are largely split on the issue of whether 
emotional support animals should be contained in pet carriers. Some 
advocates support requiring the containment of emotional support 
animals but comment that they should be allowed to be removed from the 
carrier to mitigate a disability. Other disability advocates only 
support the containment of emotional support animals when the animal is 
behaving badly. Some disability advocates oppose a containment 
requirement altogether fearing that large emotional support animals 
that do not fit in pet carriers would not be permitted access on 
airplanes. Finally, some advocates recommend that emotional support 
animals merely be leashed, harnessed, or tethered, rather than 
contained.
    The majority of airlines commented that if the Department chooses 
to recognize emotional support animals, emotional support animals 
should be contained for the duration of the flight. If the animal is 
too large to fit in a container, one airline suggests that the airline 
be permitted to treat the animal as a pet and offer the passenger the 
option for the animal to fly in the cargo compartment. Conversely Delta 
Air Lines, which generally opposes the Department's recognition of 
emotional support animals, does not support containing emotional 
support animals for the duration of the flight.\66\ That carrier 
explained that if the Department were to decide to continue to 
recognize emotional support animals, emotional support animals would be 
unable to mitigate a passenger's disability if contained in a carrier. 
The carrier further stated that a containment requirement for emotional 
support animals, if allowed, would be

[[Page 6458]]

inconsistent with the spirit of the ADA and the ACAA. The carrier does, 
however, support that airlines be granted the authority to restrain 
emotional support animals by harness, leash, or other restraint 
mechanisms.
---------------------------------------------------------------------------

    \66\ Comment of Delta Air Lines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4141.
---------------------------------------------------------------------------

    Airport commenters support a requirement that emotional support 
animals be contained if they continue to be recognized, especially 
while traversing through the airport. Airports argue that airport 
operators have the right to require any animal that is not a service 
animal under the ADA to be contained and a containment requirement 
promotes consistency between the ADA and ACAA regulations.
What species should be accepted as emotional support animals?
    Disability advocacy organizations and the public are generally 
split on what species of emotional support animals the Department 
should recognize if it continues to recognize emotional support 
animals. Some public commenters and disability advocacy organizations 
favor the Department's current species requirement for emotional 
support animals, which does not limit species except with respect to 
unusual species such as snakes, other reptiles, fetters, rodents, and 
spiders.\67\ Conversely, other individual commenters and disability 
advocates urge the Department to recognize only dogs and miniature 
horses as emotional support animals.
---------------------------------------------------------------------------

    \67\ 14 CFR 382.117(f).
---------------------------------------------------------------------------

    The majority of disability advocacy organizations and public 
commenters, however, are split between favoring a requirement that dogs 
and cats be recognized as emotional support animals and favoring a 
requirement that dogs, cats, and rabbits be recognized as emotional 
support animals because, as noted by these organizations, dogs, cats 
and rabbits are the most commonly used species of emotional support 
animal. A small contingent of disability advocacy organizations 
encourage the Department to allow airlines to limit emotional support 
animals to animals that have been trained to behave properly in public, 
rather than specifying a species in the rule. Finally, one advocacy 
organization argues that all trained or domesticated emotional support 
animals should be permitted to be recognized as a service animal under 
DOT's ACAA rule.
    Most airlines commented that they should only be required to carry 
dogs as emotional support animals if the Department continues to 
recognize emotional support animals, although some also support 
permitting miniature horses, subject to airline pre-approval. One 
airline suggests that cats be allowed as emotional support animals if 
the Department continues to recognize emotional support animals.

DOT Response

Definition of a Service Animal
    The Department proposes in this NPRM to define a service animal as 
a dog that is individually trained to do work or perform tasks for the 
benefit of a qualified individual with a disability. This definition is 
similar to DOJ's definition of a service animal under Title II and 
Title III of the ADA.\68\ DOJ's Title II rules for State and local 
governments govern airports owned by a public entity and DOJ's Title 
III rules for public accommodations and commercial facilities govern 
privately owned airports and airport facilities. Under DOT's proposed 
service animal definition, like DOJ's service animal definition in its 
ADA rules, emotional support animals would not be recognized as service 
animals as they are not trained to do work or perform a task for the 
benefit of an individual with a disability. The Department's proposal 
is intended to align DOT's ACAA definition of a service animal with the 
service animal definition established by DOJ in its rules implementing 
the ADA and thereby decrease confusion for individuals with 
disabilities, airline personnel, and airports. While the Department 
proposes to allow airlines to treat emotional support animals as pets 
rather than service animals, airlines could choose to continue to 
recognize emotional support animals and transport them for free 
pursuant to an airline's established policy. The Department seeks 
comment on its proposed service animal definition, which does not 
recognize emotional support animals and limits the species that qualify 
as service animals to dogs.
---------------------------------------------------------------------------

    \68\ See 28 CFR 35.104 and 28 CFR 36.104.
---------------------------------------------------------------------------

    Although the NPRM proposes not to treat emotional support animals 
as service animals, the Department seeks further comment on whether the 
Department should recognize emotional support animals as an 
accommodation for individuals with disabilities that would be regulated 
separately and distinctly from service animals. The Department 
recognizes that we have already received considerable feedback on this 
topic during the comment period to the ANPRM; individuals and 
organizations need not re-submit those same comments during the comment 
period to this NPRM. The NPRM solicits comment on whether, and to what 
extent, the proposal not to recognize emotional support animals would 
impact the ability of individuals with disabilities who rely on 
emotional support animals to travel via aircraft. The Department seeks 
comment on whether individuals with disabilities who use emotional 
support animals to mitigate their disabilities would be less likely to 
travel by air if they are no longer permitted to travel with their 
emotional support animal. Furthermore, since airlines would be 
permitted to treat emotional support animals as pets, the Department 
requests information from airlines on whether individuals would be able 
to transport emotional support cats or other small animals as pets in 
the cabin for a fee and whether there are limits on the number of pets 
an airline would allow per flight which could impact their transport.
    Some commenters have noted that emotional support animal users who 
have a mental health disability may train their dogs to do work or 
perform a task to assist them with their disability, thereby 
transforming the animal from an emotional support animal to a 
psychiatric service animal. The Department requests comment as to 
whether the Department should recognize this option and, if so, whether 
the availability of this option would mitigate any negative impact of 
this proposal on users of emotional support dogs.
    Alternatively, if the Department decides not to adopt the 
definition of service animal as proposed (and instead adopts a final 
rule that continues to recognize emotional support animals), the 
Department requests comment on whether emotional support animals are 
more likely to misbehave in comparison to traditional service animals 
because they have not been trained to mitigate a disability. While one 
solution suggested by commenters is to permit airlines to require 
stricter documentation for emotional support animal users (e.g., forms 
completed and signed by a medical practitioner such as a doctor or 
nurse practitioner, verification of in-person treatment by a medical 
practitioner, and verification that the patient has or will receive 
ongoing treatment from the medical practitioner), others expressed 
concern that these stricter measures may impose unnecessary burdens on 
passengers with disabilities. The Department requests comment on 
whether stricter documentation for emotional support animal users would 
be effective in decreasing the likelihood of fraud by businesses 
seeking to profit by guaranteeing emotional support animal

[[Page 6459]]

documentation to individuals traveling with pets.
    The Department also seeks comment on how limiting emotional support 
animals to dogs and cats might impact individuals with disabilities who 
rely on other species of animals to accommodate their disability. It is 
the Department's understanding that dogs currently represent the 
majority (approximately 90 percent) of service animals transported on 
aircraft (including emotional support animals) and cats are the second 
largest species used as emotional support animals. As such, the 
Department seeks comment on how individuals who rely on emotional 
support cats would be impacted should the Department decide not to 
recognize emotional support animals or only recognize emotional support 
dogs.
    Finally, if the Department decides not to adopt the definition of 
service animal as proposed (and instead adopts a final rule that 
continues to recognize emotional support animals), the Department seeks 
comment on whether airlines should be allowed to require that emotional 
support animals be contained in an FAA-approved in-cabin pet carrier in 
the airport and on the aircraft and whether providing passengers the 
ability to open the carrier and touch the animal is sufficient 
disability mitigation, even if the animal is required to remain in its 
carrier for the duration of a flight. The Department also seeks comment 
on whether to allow airlines to accept only those emotional support 
animals that fit in in-cabin pet carriers that are consistent with 
applicable FAA regulations and, if so, the impact of limiting the size 
of emotional support animals. Finally, the Department seeks comment on 
whether limiting emotional support animals to one per passenger would 
sufficiently mitigate a passenger's disability on a flight or at the 
passenger's destination.

4. Psychiatric Service Animals

Current Requirements

    The Department's current ACAA regulation allows airlines to treat 
psychiatric service animals and emotional support animals differently 
from other animals that assist individuals with disabilities.\69\ 
Similar to emotional support animals, airlines are permitted to require 
psychiatric service animal users to provide medical documentation to 
prove the passenger's need for the psychiatric service animal, to 
provide 48--hours advance notice prior to travel, and check-in one hour 
before the check-in time for the general public.\70\
---------------------------------------------------------------------------

    \69\ See 14 CFR 382.117(e).
    \70\ 14 CFR 382.27(c)(8).
---------------------------------------------------------------------------

The ANPRM

    In the ANPRM, the Department solicited comment on whether it should 
amend its service animal regulation to ensure individuals traveling 
with psychiatric service animals are not subject to more burdensome 
requirements than passengers traveling with other service animals that 
do work or perform a task to mitigate a disability. More specifically, 
the Department sought comment in the ANPRM on whether it should amend 
its service animal regulations no longer to permit airlines to require 
medical documentation, 48--hours advance notice of travel, or check-in 
in one hour before the general public for psychiatric service animal 
users.\71\
---------------------------------------------------------------------------

    \71\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23838).
---------------------------------------------------------------------------

    The Department also requested comment on whether there may be a 
valid basis for allowing airlines to treat individuals traveling with 
psychiatric service animals differently from individuals traveling with 
traditional service animals.\72\ The Department inquired about the 
practical implications of no longer permitting airlines to require 
medical documentation from psychiatric service animal users if the ACAA 
rule were to treat psychiatric service animals like other service 
animals.\73\ The Department sought comment in the ANPRM on whether 
airline personnel would be able to distinguish between a psychiatric 
service animal and an emotional support animal should the Department 
amend its regulation to treat psychiatric service animals like other 
service animals that do work or perform tasks.\74\ Further, to gauge 
whether the problem of individuals' falsely claiming to have a mental-
health-related condition is greater than the problem of individuals' 
falsely claiming other hidden disabilities, such as a seizure disorder, 
to avoid paying airline pet fees, the Department sought comment on 
what, if any, experience airlines have had with passengers' claiming to 
have a seizure disorder, diabetes, or non-mental-health-related 
condition, and fraudulently attempting to travel with their pets as 
service animals.\75\ In addition, the Department sought feedback on 
alternatives to a medical documentation requirement that would prove 
the passenger's need for a psychiatric service animal.\76\
---------------------------------------------------------------------------

    \72\ Id.
    \73\ Id.
    \74\ Id.
    \75\ Id.
    \76\ Id.
---------------------------------------------------------------------------

Comments Received

    Most commenters support an ACAA definition of a service animal that 
treats psychiatric service animals the same as other service animals 
that do work or perform a task. The National Disability Rights Network 
commented that treating psychiatric service animals the same as other 
tasked-trained service animals is fair because treating them 
differently perpetuates the myth that psychiatric service animals are 
inferior to service animals used to mitigate other types of 
disabilities.\77\ Similarly, American Airlines commented that 
psychiatric service animals should be treated the same as other service 
animals trained to do work or perform a task because psychiatric 
service animals are professional working dogs.\78\ American Airlines 
also commented that treating psychiatric service animals the same as 
other task-trained service animals would provide consistency between 
the DOT's ACAA regulation and DOJ's ADA regulations.
---------------------------------------------------------------------------

    \77\ Comment of National Disability Rights Network, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4307.
    \78\ Comment of American Airlines, Inc. https://www.regulations.gov/document?D=DOT-OST-2018-0068-3507.
---------------------------------------------------------------------------

    A4A urged the Department to treat psychiatric service animals the 
same as other task-trained service animals and no longer to recognize 
emotional support animals.\79\ But A4A encourages the Department to 
dispense with the medical documentation and advance notice allowance 
for psychiatric service animal users for only a one-year review period. 
A4A reasoned that removing the documentation and advance notice 
allowance for psychiatric service animals may encourage pet owners, who 
once claimed that their pets were emotional support animals, to pivot 
to claiming that their pets are psychiatric service animals to avoid 
airline pet fees and to travel with their pets in the cabin. A4A 
suggests allowing airlines to collect data during the one-year review 
period and if enough evidence exists to suggest that some pet owners 
are falsely representing their pets as psychiatric service animals 
after the one-year period, airlines should be allowed to request 
medical documentation, and proof of training and/or vaccination from 
psychiatric service animal users.
---------------------------------------------------------------------------

    \79\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------

    Some U.S. carriers disagree with treating psychiatric service 
animals the

[[Page 6460]]

same as traditional service animals and encourage the Department to 
continue to allow airlines to require documentation and advance notice 
from psychiatric service animal users. United Airlines states that the 
Department should ``retain (and consider strengthening) documentation 
provisions for [psychiatric service animals] in the event that it 
becomes apparent that individuals without disabilities are attempting 
to assert that their untrained pets are [psychiatric service 
animals].'' \80\ Spirit Airlines commented that psychiatric service 
animals do not receive the same level of training as ``true'' service 
animals, which are subjected to training to attend to their 'handlers' 
needs, specifically in the area of obedience training.\81\ Spirit 
Airlines also expressed concerns that dispensing with the documentation 
requirement for psychiatric service animals would result in more 
animals being transported for free as airlines would only be able to 
rely on a passenger's verbal assurances that the animal was a service 
animal and not a pet.
---------------------------------------------------------------------------

    \80\ Comment of United Airlines, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4283.
    \81\ Comment of Spirit Airlines, Inc., https://www.regulations.gov/document?D=DOT-OST-2018-0068-4226.
---------------------------------------------------------------------------

DOT Response

    As discussed above, the Department proposes to define a service 
animal as a dog that is individually trained to do work or perform 
tasks for the benefit of a qualified individual with a disability. 
Because psychiatric service animals are trained to do work or perform 
tasks for an individual with a disability, the Department proposes to 
treat psychiatric service animals the same as other service animals 
trained to do work or perform tasks. The Department proposes this 
change not only to harmonize DOT's ACAA service animal definition with 
DOJ's ADA service animal definition, which, as noted above, defines a 
service animal as one that is individually trained to do work or 
perform tasks for the benefit of an individual with a disability, but 
also because the rationale for having a different regulatory 
requirement for users of psychiatric service animals is weak. The 
current medical documentation, 48 hours' advance notice, and check-in 
requirements for psychiatric service animal users were adopted in the 
Department's 2008 amendment to the ACAA rule to address concerns raised 
about passengers falsely claiming to have a mental health condition in 
order to pass off their pets as service animals. While the Department 
is aware of concerns about passengers who falsely claim to have a 
mental health condition that may require the use of a service animal, 
unscrupulous passengers may also falsely claim to have other hidden 
disabilities such as seizure disorder or diabetes to pass off their 
pets as service animals and avoid paying airline pet fees. Thus, we 
believe that the justification for treating service animal users with 
mental or emotional disabilities different from service animal users 
with other hidden disabilities is currently lacking.
    If the rule is adopted as proposed, the Department would monitor 
the experience of airlines in accommodating the use of service animals 
for those passengers with mental-health needs who depend upon such 
service animals. We would consider revisiting whether it is reasonable 
and appropriate to allow additional requirements for the use of such 
animals if there is a demonstrated need--for example, if there is a 
notable increase in instances of passengers falsely representing pets 
as mental-health-related service animals.

5. Large Service Animals

Current Requirements

    The Department's current regulation allows airlines to determine 
whether factors preclude a given service animal from being transported 
in the cabin, including whether the animal is too large or too heavy to 
be accommodated in the cabin. Under this rule, an animal may be 
excluded from the cabin if it is too large or too heavy to be 
accommodated in the specific aircraft at issue.
    However, the Department's guidance on the issue of a service 
animal's encroaching on the foot space of a passenger is not clear. DOT 
has previously stated that service animals may be ``placed at the feet 
of a person with a disability at any bulkhead seat or in any other seat 
as long as when the animal is seated/placed/curled up on the floor, no 
part of the animal extends into the main aisle(s) of the aircraft, the 
service animal is not at an emergency exit seat, and the service animal 
does not extend into the foot space of another passenger seated nearby 
who does not wish to share foot space with the service animal.'' \82\ 
DOT has also stated that a service animal may need to use a reasonable 
portion of an adjacent seat's foot space that does not deny another 
passenger effective use of the space for his or her feet by taking all 
or most of the passenger's foot space.\83\ The Department advised 
airlines to seek out and seat the individual with a disability next to 
a passenger willing to share foot space with the animal. The Department 
also advised airlines to reseat passengers traveling with a service 
animal in a location on the aircraft where the service animal can be 
accommodated--e.g., next to an empty seat. Finally, DOT advised 
airlines that if there are no alternatives available to enable the 
passenger to travel with the service animal in the cabin on that 
flight, the carrier should offer the passenger the option of either 
transporting the service animal in the cargo hold or on a later flight 
with more room.\84\
---------------------------------------------------------------------------

    \82\ See FAA Order 8900.1, Vol. 3, Ch. 33, Section 6 at ] 3-3576 
(March 5, 2019), https://fsims.faa.gov/wdocs/8900.1/v03%20tech%20admin/chapter%2033/s_03_033_006.pdf and FAA Guidance, 
What Airline Employees, Airline Contractors, and Air Travelers with 
Disabilities Need to Know About Access to Air Travel for Persons 
with Disabilities, A Guide to the Air Carrier Access Act (ACAA) and 
its implementing regulations, 14 CFR part 382 (part 382), https://www.transportation.gov/sites/dot.gov/files/docs/TAM-07-15-05_0.pdf.
    \83\ See 73 FR 27614, 27634, ``The fact that a service animal 
may need to use a reasonable portion of an adjacent seat's foot 
space--that does not deny another passenger effective use of the 
space for his or her feet--is not, however, an adequate reason for 
the carrier to refuse to permit the animal to accompany its user at 
his or her seat.''
    \84\ See 73 FR 27614, 27661.
---------------------------------------------------------------------------

The ANPRM

    In the ANPRM, the Department sought comment on whether to allow 
airlines to limit the size of service animals that travel in the cabin, 
and the implications of such a decision.\85\ Airlines had previously 
indicated to the Department that some passengers have felt coerced when 
asked by the airline, in front of other passengers on aircraft, to 
share their space with a service animal and they may have agreed to 
share space even if they did not wish to so. As such, the Department 
sought comment on whether passengers find it burdensome to share foot 
space on the aircraft with service animals.
---------------------------------------------------------------------------

    \85\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23841.
---------------------------------------------------------------------------

Comments Received

    The comments received by disability advocates uniformly discourage 
the Department from adopting a rule that would allow airlines to limit 
the size of service animals on an aircraft. Disability advocates argue 
that aircraft seat sizes have shrunk, and continue to shrink, and that 
the Department should adopt a rule that prohibits airlines from 
decreasing seat size rather than allowing airlines to limit the size of 
service

[[Page 6461]]

animals. Furthermore, disability advocates argue that there is little 
evidence to show that large service animals pose a greater safety risk 
than small service animals on aircraft and that limiting the size of 
service animals would be disproportionately unfair to individuals with 
mobility impairments who use larger animals to mitigate their 
disability.
    Airlines, however, argue that it is unfair to paying passengers to 
be forced to share their limited space on the aircraft with a large 
service animal. Airlines also believe that limiting the size of service 
animals would decrease burdens on flight attendants, as flight 
attendants must spend time rearranging passengers to accommodate large 
animals and flight crew frequently suffer the ire of passengers unhappy 
with having to move or being asked to share their foot space with an 
animal.
    Airlines also argue that the carriage of large animals in the cabin 
violates FAA safety requirements, which require that aisles and other 
passageways be free of obstructions to allow all passengers egress in 
the case of an emergency. A4A, RAA, and IATA commented that allowing 
large untrained emotional support animals in the cabin threatens the 
safety and health of other passengers on aircraft.\86\ Finally, AFA 
commented that airlines should be allowed to limit the size of service 
animals on aircraft, but the limitation should be based on the aircraft 
type and the available space in the cabin.\87\
---------------------------------------------------------------------------

    \86\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
    \87\ Comment of the Association of Flight Attendants, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4207.
---------------------------------------------------------------------------

DOT Response

    The Department proposes to allow airlines to place size limitations 
on service animals to the extent that the animal must fit within the 
passenger's foot space on the aircraft or can be placed on the 
passenger's lap. While the Department is sensitive to the fact that 
many large service animals, such as German Shepherds, Golden 
Retrievers, and Labrador Retrievers, tend to accompany individuals with 
disabilities, particularly individuals with mobility impairments, these 
animals are often trained to fit into small spaces. The Department 
seeks comment on its proposal to limit the size of service animals 
based on whether the animal can fit into the foot space afforded to the 
passenger on that particular aircraft type, or on whether the service 
animal is no larger than a lap-held child and can be placed on the 
passenger's lap.
    In instances where an animal is too large to fit in the passenger's 
foot space or be placed on the passenger's lap, the Department proposes 
to require airlines to seat the passenger traveling with a service 
animal next to an empty seat within the same class of service where the 
animal can be accommodated, if such a seat is available. If there are 
no empty seats available to allow a passenger to travel with the 
service animal in the cabin on the passenger's scheduled flight, the 
Department proposes to require airlines to provide passengers the 
option to transport the animal in the cargo hold for free, or to 
transport the passenger on a later flight with more room if available. 
The Department seeks comment on these proposals.

6. Number of Service Animals per Passenger

Current Requirements

    Under the Department's current service animal regulation, it is not 
clear how many service animals may accompany a single passenger on an 
aircraft. Section 382.117(a) states that an airline ``must permit a 
service animal to accompany a passenger with a disability'' (emphases 
added). While this language could be read as suggesting that an airline 
is only required to transport one service animal per passenger, section 
382.117(i) references guidance concerning carriage of service animals, 
which does not have independent mandatory effect, but rather describes 
how the Department understands the requirements of section 382.117. 
That guidance states, ``A single passenger legitimately may have two or 
more service animals.'' See 73 FR 27614, 27661 (May 13, 2008). In its 
Final Statement of Enforcement Priorities Regarding Service Animals, 
the Department's Enforcement Office stated that it would focus its 
enforcement efforts on ensuring that airlines are not restricting a 
single passenger from traveling with a total of three service animals 
if needed.\88\ While the Department's disability regulation does not 
specify how many service animals may travel with a passenger with a 
disability, it does not allow airlines to deny transport to a service 
animal accompanying a passenger with a disability because of a limit on 
the total number of service animals that can be on a flight.\89\
---------------------------------------------------------------------------

    \88\ Final Statement of Enforcement Priorities Regarding Service 
Animals, 84 FR 43480 (August 21, 2019).
    \89\ For example, if Ms. Smith needs to travel with a service 
dog, an airline cannot deny transport to that service dog because 
the airline believes that there are already too many service dogs on 
the aircraft. Section 382.117(a) requires airlines to permit a 
service animal to accompany a passenger with a disability. Section 
382.17 prohibits airlines from limiting the number of passengers 
with a disability on a flight.
---------------------------------------------------------------------------

The ANPRM

    In the ANPRM, the Department sought comment on whether to limit the 
number of service animals that a single passenger with a disability may 
carry onboard a flight and how many service animals should be permitted 
to accompany a single passenger with a disability. DOT also sought 
comment on whether airlines should allow passengers to justify the need 
for more than a single animal, and what the parameters of such a 
justification should be.\90\
---------------------------------------------------------------------------

    \90\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23840.
---------------------------------------------------------------------------

Comments Received

    Most disability advocates commented that airlines should be 
required to allow at least two service animals to travel with a single 
passenger if needed. Advocates reason that some individuals have 
multiple disabilities and that while some animals have been trained to 
perform multiple tasks, some individuals with disabilities may need 
animals that are focused on mitigating a specific disability for the 
mitigation to be effective. Airlines, however, commented that they 
should be permitted to limit the number of service animals traveling 
with a passenger to one service animal. Airlines argue that allowing 
one service animal per passenger helps support safety and would help to 
avoid disruptions in the cabin. Airlines also argue that given the 
space afforded to individual passengers on aircraft, transporting more 
than one service animal could be problematic.

DOT Response

    The Department proposes to limit the number of service animals 
traveling with a single passenger with a disability to no more than two 
service animals. The Department acknowledges comments from disability 
rights advocates that certain individuals with disabilities require 
more than one service animal, and while a single service animal may be 
trained to perform more than one mitigating function, more than one 
service animal may be needed to assist an individual on the aircraft or 
at the passenger's

[[Page 6462]]

destination if the passenger uses the animals for lengthy periods of 
time (e.g., if one animal may need a break from work). Furthermore, 
disability advocate commenters noted that while a service animal may be 
trained to assist an individual with multiple disabilities, a 
passenger's animal may need to focus on mitigating one disability at a 
time for the mitigation to be effective so multiple animals may be 
needed at once. For those passengers who seek accommodation for two 
service animals, the airline would be permitted to require the 
passenger to complete two separate attestation forms, one for each 
animal, to verify that each qualifies for appropriate accommodation as 
a service animal to accompany the passenger on the flight.
    In response to the carriers' argument regarding the lack of space 
in the cabin to accommodate a passenger traveling with two service 
animals, the Department notes that this NPRM does not propose that an 
airline be required to provide an individual with two service animals 
with additional space but would require the airline to allow the 
individual to use all his or her allotted space without encroaching 
into the space of another passenger. Airlines may refuse transportation 
to the animals in the cabin if the animals would not safely fit in the 
passenger's lap or foot space. The Department seeks comment on its 
proposal to limit the number of service animals traveling with a single 
individual with a disability to two animals, specifically including 
whether there are compelling safety-related reasons to limit each 
qualifying passenger to no more than one service animal.

7. Service Animal Restraints

Current Requirements

    The Department's current rule does not clearly specify whether or 
how airlines may restrict the movement of service animals in the cabin. 
However, the Department has issued guidance that service animal users 
are expected under the Department's current ACAA service animal rule to 
maintain control of their animals both in the airport and on aircraft. 
In the Final Statement of Enforcement Priorities Regarding Service 
Animals, the Department's Enforcement Office also noted that, in 
general, tethering and similar means of controlling an animal that are 
permitted in the ADA context would appear to be reasonable in the 
context of controlling service animals in the aircraft cabin.

The ANPRM

    Because of the potential safety risks associated with transporting 
unrestrained animals, including both the risks to the well-being of 
other passengers and crew as well as the risks of interfering with the 
safe and efficient operation of the aircraft, DOT sought comment on 
whether its service animal rule should explicitly state that service 
animals must be harnessed, leashed, tethered, or otherwise under the 
control of its handler or whether it is reasonable for airlines to make 
this requirement a condition of providing air transportation.\91\ DOT 
also sought comment on whether a leash, tether, harness or other 
restraint device would increase safety on aircraft.\92\ Finally, the 
Department sought general feedback on the advantages and disadvantages 
of adopting such a requirement.\93\
---------------------------------------------------------------------------

    \91\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23840.
    \92\ Id.
    \93\ Id.
---------------------------------------------------------------------------

Comments Received

    Airlines, disability advocates, organizations, and individual 
commenters were unified in their support that the Department adopt a 
requirement that requires service animals to be harnessed, leashed, 
tethered, or otherwise under the control of the service animal user. 
A4A, RAA, and IATA, commented that if harnessing, leashing, and 
tethering is appropriate for trained animals under the ADA, a similar 
requirement is appropriate for service animals on aircraft.\94\ A 
number of commenters also recognized that a control requirement is 
especially crucial in the airport/aircraft environment given the high-
stakes nature of air transportation.
---------------------------------------------------------------------------

    \94\ Comment of Airlines for America, Regional Airline 
Association, and International Air Transport Association, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4288.
---------------------------------------------------------------------------

    Some airlines recommended muzzling as a form of control, although 
some advocates discouraged muzzling as an acceptable restraint measure 
because it may limit a service animal's ability to breathe properly. 
But even those advocacy groups that opposed muzzling supported a 
requirement that service animals be under the control of an individual 
with a disability at all times. Some disability advocates also 
recommend that DOT, similar to DOJ, should permit service animal 
handlers to exercise voice command over service animals as a means of 
control if a service animal needs to be free from a restraint device to 
mitigate a passenger's disability.

DOT Response

    The Department proposes to allow airlines to require service 
animals to be harnessed, leashed, or tethered unless the device 
interferes with the service animal's work or the passenger's disability 
prevents use of these devices. In that case, the carrier must permit 
the passenger to use voice, signal, or other effective means to 
maintain control of the service animal. This proposal is similar to the 
requirement in DOJ's rule implementing the ADA, which requires service 
animals to be harnessed, leashed or tethered while in public places 
unless the device interferes with the animal's work.\95\
---------------------------------------------------------------------------

    \95\ See 28 CFR 35.136(d); 28 CFR 36.302(c)(4).
---------------------------------------------------------------------------

    While the Department always anticipated that a service animal would 
be under the constant control of its handler during air transportation, 
the Department was persuaded to propose that the rule include a 
provision on service animal restraints given the increased concern of 
animal misbehavior on aircraft. Specifically, the Department is 
proposing to allow airlines to determine that an animal is not a 
service animal if it is not under the control of its handler. The 
Department's proposal to allow airlines to determine that an animal is 
not a service animal if it is not under the control of its handler 
differs from DOJ's approach. DOJ's regulations do not allow covered 
entities to determine that such animal is ``not a service animal.'' 
DOJ's ADA regulations do, however, allow covered entities to exclude a 
service animal if the animal is out of control and the animal's handler 
does not take effective action to control it.\96\
---------------------------------------------------------------------------

    \96\ See 28 CFR 35.136(b)(1); 28 CFR 36.302(c)(2)(i).
---------------------------------------------------------------------------

    In addition, the DOT Air Transportation Service Animal Behavior and 
Attestation Form, which airlines may require of passengers with 
disabilities seeking to travel with a service animal on aircraft, 
includes a statement that the passenger understands that the animal 
must be harnessed, leashed, or tethered, unless the passenger is unable 
because of a disability to use a harness, leash or other tether, or the 
use of a harness, leash, or other tether would interfere with the 
service animal's safe, effective performance of work or tasks. In such 
cases, the animal must otherwise be under the handler's control through 
voice, signals, or other effective means.
    The Department proposes to define a service animal handler as a 
qualified individual with a disability who receives assistance from a 
service animal(s) that does work or performs

[[Page 6463]]

tasks that are directly related to the individual's disability, or a 
safety assistant, as described in section 382.29(b),\97\ who 
accompanies an individual with a disability traveling with a service 
animal(s). The service animal handler is responsible for keeping the 
service animal under control at all times, and caring for and 
supervising the service animal, which includes toileting and feeding. 
The DOT proposed definition of a service animal handler differs from 
DOJ's technical assistance, which states that a service animal handler 
can be either an individual with a disability or a third party who 
accompanies the individual with a disability.\98\ The Department 
proposes to limit service animal handlers to individuals with 
disabilities and their safety assistants, which are required to travel 
with those individuals with a disability who are unable to assist in 
their own evacuation from the aircraft, in order to make clear that 
service animal trainers traveling with trained service animals not 
serving as a safety assistant for a passenger with a disability, and 
other passengers traveling with an individual with a disability on 
aircraft, would not be considered service animal handlers under the 
ACAA rules. The Department recognizes that there may be occasions where 
an individual with a disability who does not require a safety assistant 
must rely on a third party to control their service animal during air 
travel, e.g., a small child who uses a service animal or a passenger 
with a disability capable of assisting with their own evacuation, but 
incapable of controlling or caring for their service animal. The 
Department seeks comment generally on its decision to define the term 
``service animal handler'' and seeks comments on its proposed 
definition. The Department also seeks comment on what impact, if any, 
its exclusion of third parties as service animal handlers might have on 
individuals with disabilities traveling on aircraft with a service 
animal.
---------------------------------------------------------------------------

    \97\ The term ``safety assistant'' is used in the Department's 
disability regulation. See 14 CFR 382.29(b).
    \98\ See Frequently Asked Questions about Service Animals and 
the ADA, Questions 27, available at https://www.ada.gov/regs2010/service_animal_qa.html, (July 20, 2015), ``The ADA requires that 
service animals be under the control of the handler at all times. In 
most instances, the handler will be the individual with a disability 
or a third party who accompanies the individual with a disability.'' 
https://www.ada.gov/regs2010/service_animal_qa.html.
---------------------------------------------------------------------------

    The Department seeks comment on its proposal to allow airlines to 
require that service animals be under the service animal user's 
constant control, via restraint devices or, if the restraint device 
interferes with the animal's work or the handler is unable because of a 
disability to use the restraint device, by voice command, signals, or 
other effective means. The Department also seeks comment on whether in-
cabin pet carriers that are consistent with applicable FAA regulations 
should be included in the rule as an optional service-animal restraint 
device if the final rule recognizes emotional support animals.

8. Service Animal Documentation

Current Requirements

    While the Department's current rule sets forth the type of medical 
documentation that airlines may request from emotional support and 
psychiatric service animal users to reduce likelihood of abuse by 
passengers wishing to travel with their pets, the regulation does not 
explicitly permit or prohibit the use of additional documentation 
related to a service animal's vaccination, training, or behavior. 
Moreover, while Part 382 permits airlines to determine, in advance of 
flight, whether any service animal poses a direct threat, the rule does 
not clearly indicate how airlines must make that assessment--for 
example, behavioral assessments or information from a service animal 
user's veterinarian.

The ANPRM

    Airlines have asserted that the risk to passenger safety is 
increasing. In the ANPRM, the Department sought data on the number of 
service animal-related incidents of misbehavior on aircraft and what 
amount of increase in animal misbehavior was sufficient to warrant a 
requirement for animal health records and behavior forms.\99\ The 
Department also sought comment on whether it should amend its service 
animal regulation to allow airlines to require that service animal 
users attest that their animal can behave properly in a public setting, 
whether airlines should be permitted to require the attestation in 
advance, the impacts that a behavior attestation requirement would have 
on individuals with disabilities, and alternatives to a behavioral 
attestation that would allow airlines to assess an animal's 
behavior.\100\
---------------------------------------------------------------------------

    \99\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23840.
    \100\ Id.
---------------------------------------------------------------------------

    The Department was interested in knowing whether a behavior 
attestation would reduce the safety risk for passengers, crewmember, 
and other service animals on aircraft. Furthermore, recognizing that 
DOJ's ADA regulation prohibits covered entities from requiring service 
animal users to provide documentation, the Department sought comment on 
whether DOT should have a different standard from the ADA given the 
unique nature of air transportation.\101\
---------------------------------------------------------------------------

    \101\ Id.
---------------------------------------------------------------------------

    With respect to animal health records, the Department sought 
comment on what burdens, if any, would exist should the Department 
allow airlines to require individuals with disabilities to submit 
veterinary forms and related animal health documentation.\102\ The 
Department also sought comment on whether an airline should be 
permitted to require animal health forms as a condition of travel, or 
whether the airline should be required to conduct an individualized 
assessment of the animal's behavior based solely on its observations to 
assess whether the animal poses a direct threat to humans, before 
requiring these forms.\103\ Finally, the Department sought comment on 
whether airlines should be able to require passengers to obtain signed 
statements from veterinarians about an animal's behavior.
---------------------------------------------------------------------------

    \102\ Id. at 23841.
    \103\ Id.
---------------------------------------------------------------------------

Comments Received

Behavior/Training Attestations
    The majority of public commenters and disability advocacy 
organizations that commented on this issue oppose the use of behavior/
training attestations as a measure of ensuring that a service animal 
has been trained to, or will, behave appropriately in public and on the 
aircraft. These groups argue that attestation documents are ineffective 
and do not provide realistic assurances that an animal will behave 
appropriately as passengers can easily lie that their animal has been 
trained to behave properly in public. Others who oppose this form argue 
that filling out behavior/training attestations is burdensome as each 
airline has its own unique form, and it is difficult to follow each 
airline's individual policy. Furthermore, some groups note that some 
airline websites make it difficult to submit these forms to the airline 
prior to travel. These groups also oppose behavior/training 
attestations on the basis that these practices are inconsistent with 
the ADA and that service animal users do not have to provide 
attestations to travel by train or other modes of transportation.
    Some disability advocates are in favor of behavior/training 
attestations, but

[[Page 6464]]

only for emotional support animals arguing that emotional support 
animals, which are not trained to do work or perform a task, have 
likely received less, if any, public-access training. Further, a few 
disability advocates oppose the behavior/training attestations that 
some airlines currently have in place, but they support a ``decision 
tree'' approach, which is a sequence of questions that service animal 
users would be prompted to complete as a condition of travel. As 
explained in a comment filed by PSDP, the decision-tree approach is 
designed to confirm that service animals have been trained to behave 
properly on aircraft and to ensure that users are educated on the 
requirements for traveling with service animals on aircraft.\104\ 
Finally, Autism Speaks is in favor of behavior/training attestations 
for all service animal users but urges the Department to develop 
unified attestation requirements to decrease confusion for service 
animal users.\105\
---------------------------------------------------------------------------

    \104\ Comment of Psychiatric Service Dog Partners, https://www.regulations.gov/document?D=DOT-OST-2018-0068-3117.
    \105\ Comment of Autism Speaks, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4268.
---------------------------------------------------------------------------

    Some airlines broadly support behavior and training attestations 
for service animal users, or support attestations for only emotional 
support and psychiatric service animal users. These airlines argue that 
behavior/training attestations eliminate the need for airline personnel 
to observe and evaluate a service animal's behavior in the airport, a 
task that airline personnel are often not qualified to perform and that 
is burdensome given their primary responsibilities. Furthermore, these 
airlines argue that the Department's service animal guidance currently 
requires that service animals be trained to behave appropriately in 
public, and behavior/training attestations are a means of ensuring that 
service animal users are aware of this requirement and aware that if 
their animal is not trained, the animal may be removed from the 
aircraft or treated like a pet. Some airlines, however, only support 
behavior/training attestations in the event that the Department 
continues to recognize emotional support animals.
Animal Health Records
    The majority of disability advocates who commented oppose a 
requirement that allows airlines to require service animal users to 
produce animal health information as a condition of transportation. 
These groups argue that requiring service animal users to produce 
animal health information, which must be completed by a third party, is 
costly and would pose unnecessary burdens on individuals with 
disabilities, especially on those service animal users who are not 
currently required to produce any documentation when traveling on 
aircraft. Furthermore, these groups argue that animal health 
information is not helpful in determining if an animal poses a direct 
threat. Finally, these groups argue that requiring animal health 
information is excessive, as airlines have provided no evidence that 
passengers on aircraft have contracted rabies or other diseases from 
service animals or that service animal users have refused to provide 
animal health information in cases where a service animal has bitten or 
injured someone on an aircraft.
    Some disability rights advocates are also concerned that if service 
animal users are required to provide airlines with animal health 
records, users will be unable to check-in for travel online or travel 
seamlessly through the airport to their gate. While there are a few 
advocacy organizations that support an animal health form requirement 
for service animal users, this support is limited to information 
regarding the animal's rabies vaccinations.
    Conversely, many airlines, an animal health organization, a flight 
attendant association and most individual commenters who commented on 
this issue support a requirement that would allow airlines to require 
animal health information from service animal users. Similar to the 
rationale used by airlines in support of behavior/training 
attestations, airlines argue that animal health information is a 
reasonable means to determine if an animal presents a direct threat to 
the health and safety of individuals on aircraft. Airlines also argue 
that in the event a service animal bites an individual on an aircraft, 
proof of up-to-date vaccinations will prevent the need for the injured 
passenger to undergo unnecessary and painful treatments for certain 
diseases, e.g., rabies, although according to the Center for Disease 
Control and Prevention (CDC), any dog that bites an individual should 
be assessed and monitored by a local or state health department over a 
10-day period irrespective of whether there is proof that the animal 
has been vaccinated. Airlines also argue that providing animal health 
information is not burdensome as most, if not all, States and 
localities already require that animals be vaccinated.
    In a joint comment filed by Avianca, Avianca Costa Rica, Aviateca, 
TACA, and TACA Peru, these carriers note that many ``foreign carriers, 
currently have a general requirement for veterinary certification as a 
condition of transport.'' These carriers further state that ``[m]any 
foreign countries require veterinary certification for all animals 
entering the country, including all service animals'' and that ``DOT 
should clarify in any rulemaking that carriers may require veterinary 
certification for all service animals as a condition for entry into all 
countries that require such certification.'' \106\
---------------------------------------------------------------------------

    \106\ Comment of Avianca Carriers, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4289.
---------------------------------------------------------------------------

    One animal health organization supports allowing airlines to 
require proof of rabies vaccinations arguing that these vaccinations 
are necessary to protect both animal and public health.\107\ 
Furthermore, certain airline organizations support an animal health 
record allowance if the Department decides to recognize emotional 
support animals. These organizations reason that emotional support 
animal users should provide information on their animal's health as a 
matter of public safety and public health as these untrained animals 
are in close proximity to passengers, airline crewmember, other staff, 
and, sometimes, other animals. While the American Association of 
Airport Executives (AAAE) is in favor of allowing airlines to verify 
that an animal has been vaccinated, this organization believes that if 
the Department chose not to recognize emotional support animals, 
allowing airlines to require proof may not be necessary as the risk to 
passengers would automatically decrease.\108\
---------------------------------------------------------------------------

    \107\ Comment of American Veterinarian Medical Association, 
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4276.
    \108\ Comment of the American Association of Airport Executives, 
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4138.
---------------------------------------------------------------------------

DOT Response

    After carefully reviewing the comments received, the Department is 
proposing to allow airlines to require individuals traveling with a 
service animal to provide to the airlines standardized documentation of 
the service animal's behavior, training, and health. Also, if the 
service animal would be on a flight segment that is longer than 8 
hours, the Department is proposing to allow a standard form attesting 
that the animal will not need to relieve itself or can relieve itself 
in a way that does not create a health or sanitation risk. The 
Department proposes that these forms be the only forms of documentation 
that an airline can require of a passenger traveling with a service 
animal. In other words, under this proposed rule, an

[[Page 6465]]

airline would not be required to ask a passenger traveling with a 
service animal for any documentation but, if they choose to do so, the 
airline must use the forms established by the Department. The 
Department seeks comment on whether airlines should be allowed to 
create their own forms or if uniformity would be more helpful. Are 
there other existing forms that could be utilized such that the 
establishment of departmental forms would be unnecessarily duplicative?
    First, the Department proposes to allow airlines to require 
passengers seeking to travel with service animals to submit to the 
airline, as a condition of accepting the animal as a service animal for 
travel, a DOT Air Transportation Service Animal Behavior and Training 
Attestation Form, which is a form to be completed by the passenger. 
This form would provide assurance that the service animal traveling on 
the aircraft has been individually trained to do work or perform tasks 
for the benefit of the passenger with a disability and has been trained 
to behave properly in public, and that the user is aware that the 
service animal must be under his or her control at all times. The 
Department agrees with comments from airlines that airline personnel 
are often unable to observe service animals sufficiently prior to a 
flight in the fast-paced airport environment to determine whether the 
service animal would be a direct threat to the health or safety of 
others. Further, the Department believes that the form would serve as a 
deterrent for individuals who might otherwise seek to claim falsely 
that their pets are service animals, as those individuals may be less 
likely to falsify a Federal form. The Department seeks comment on its 
proposal to allow airlines to require all service animal users to 
provide this form to airlines and on whether this form would be 
effective in ensuring that service animals have been properly trained 
and in deterring individuals from misrepresenting their pets as service 
animals on aircraft.
    The Department understands that this form would impose a burden on 
those individuals traveling with traditional service animals who are 
not currently required to provide documentation. The Department seeks 
comment from the public on ways to reduce the burden that the 
Department's behavior and training form would have on passengers with 
disabilities. Should airlines be allowed to require the form each time 
a service animal user travels, even for round-trip flights? What medium 
should airlines use, e.g., hardcopy, electronic, email, to provide and 
collect this form from passengers with disabilities? Also, are there 
privacy concerns that airlines should consider? Furthermore, the 
Department seeks comment on whether the questions in this form would 
help an airline determine whether an animal has been adequately and 
properly trained, and whether the form adequately educates passengers 
on how a service animal is expected to behave, the consequences of a 
misbehaving service animal, and the seriousness of falsifying the DOT 
form. The Department seeks comment on whether it should allow airlines 
to require only emotional support animal users to complete such an 
attestation form, in the event the Department were to continue to 
require airlines to transport emotional support animals. Finally, the 
Department seeks comment on the general content and layout of the form, 
which is provided below.
BILLING CODE 4910-9X-P

[[Page 6466]]

[GRAPHIC] [TIFF OMITTED] TP05FE20.000


[[Page 6467]]


    Second, the Department proposes to allow airlines to require 
passengers to submit to the airline a DOT Service Animal Health Form, 
which is a form to be completed by the passenger's veterinarian.\109\ 
In completing the form, the veterinarian would describe the animal, 
indicate whether the service animal's = rabies vaccinations are up to 
date and whether the animal has any known diseases or infestations, and 
state whether the veterinarian is aware of any aggressive behavior by 
the animal. The Department proposes that the form be valid for 1 year 
from the date of issuance. The Department seeks comment on whether 1 
year is too long or too short for the vaccination form to be valid, and 
the reasons for this belief.
---------------------------------------------------------------------------

    \109\ We note that the CDC requires that all dogs imported into 
the United States, including service dogs, be vaccinated for rabies 
if coming from a high-risk rabies country. A current list of high 
risk rabies countries may be found at: https://www.cdc.gov/importation/bringing-an-animal-into-the-united-states/rabies-vaccine.html. See 42 CFR 71.51(e).
---------------------------------------------------------------------------

    The Department modeled its DOT Service Animal Health Form after a 
number of State certificate of veterinary inspection (CVI) forms and 
the United States Department of Agriculture's (USDA) APHIS 7001 
form.\110\ The Department's decision to use the content of State CVI 
forms and the USDA APHIS 7001 form was based on a recommendation from 
the American Veterinary Medical Association (AVMA). The AVMA, some 
airlines, and other commenters have requested that the Department 
require all service animals to produce proof of vaccinations because of 
the potential threat to health and public safety that might result from 
the transport of unvaccinated animals on aircraft.\111\ The Department 
agrees that requiring proof of rabies vaccinations should be permitted 
to help ensure that the animal does not pose a direct threat to the 
health and safety of others.
---------------------------------------------------------------------------

    \110\ https://www.aphis.usda.gov/library/forms/pdf/APHIS7001.pdf.
    \111\ Comment of American Veterinarian Medical Association, 
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4276.
---------------------------------------------------------------------------

    Airlines have expressed concerns that their inability to verify, 
pre-incident, that an animal has received the proper vaccinations has 
caused individuals bitten by service animals to undergo painful and 
expensive rabies treatment. The Department, along with a number of U.S. 
airlines, attended a meeting at the AVMA's headquarters on October 29, 
2018, to discuss the potential for the airlines to create a standard 
form document to use to verify service animal vaccinations. The 
Department used information learned at this meeting, such as what 
vaccinations should be required to ensure the health and safety of the 
traveling public, the duration for which the form should be valid, and 
whether animals should be inspected for pests, as guidance for the 
content of this form. The Department seeks comment from the public on 
its proposal to allow airlines to require that passengers provide this 
vaccination form as evidence that a service animal has received the 
rabies vaccine and that the animal has not exhibited aggressive 
behavior, known to the veterinarian. The Department seeks comment on 
its proposal to permit airlines, as a condition of travel, to require 
this form and whether airlines should be able to refuse transportation 
to a service animal based on the information contained in the form 
(e.g., the veterinarian discloses on the form that the animal has a 
history of aggressive behavior or has caused serious injury to a person 
or animal). The Department also seeks comment on whether the form would 
be effective in ensuring that the traveling public would not contract 
rabies from service animals should they be bitten.\112\ Furthermore, 
the Department seeks comment on the burden on individuals traveling 
with service animals of allowing airlines to require the Department's 
service animal health form as it is the Department's understanding that 
USDA's APHIS 7001 form already includes the type of information 
contained on the proposed DOT form. Could passengers traveling with a 
service animals have their veterinarians complete the Department's 
Service Animal Air Transportation Health Form at the animal's annual 
physical? Should the requirement for an animal health form be limited 
to emotional support animal users, in the event the Department were to 
continue to require airlines to transport emotional support animals?
---------------------------------------------------------------------------

    \112\ See the Rabies Compendium available at: www.nsphv.org/documents/NASPHVrabiescompendium.
---------------------------------------------------------------------------

    The Department's air transportation animal health form requires 
veterinarians to provide a physical description of the service animal. 
Should the Department consider allowing airlines to require passengers 
traveling with a service animals to provide photo identification of the 
service animal as an additional measure to verify a service animal's 
identity? Finally, the Department seeks comment on the general content 
and layout of the form, which is provided below, and whether airlines 
that require the form should accept the form in both a paper and 
electronic format.

[[Page 6468]]

[GRAPHIC] [TIFF OMITTED] TP05FE20.001


[[Page 6469]]


    Third, while airlines are currently permitted to require 
individuals traveling with service animals on a flight segment that is 
longer than 8 hours to provide documentation that the animal will not 
need to relieve itself or can relieve itself in a way that does not 
create a health or sanitation risk, the Department proposes to amend 
this rule to allow airlines to require only a DOT Service Animal Relief 
Attestation Form be completed by the service animal user to attest that 
the animal will not create a health or sanitation risk on long flights.
    The Department seeks comment on whether the DOT Service Animal 
Relief Attestation Form serves as adequate proof to verify that a 
passenger's animal will not need to relieve itself on flight segments 
of eight or more hours, or can relieve itself in a way that does not 
create a health or sanitation issue. The Department also seeks comment 
on the content and layout of the form, which is provided below.

[[Page 6470]]

[GRAPHIC] [TIFF OMITTED] TP05FE20.002

BILLING CODE 4910-9X-C
    The Department also asks for comment on its proposal to prohibit 
airlines from requiring passengers to provide the proposed DOT health, 
behavior and training, and relief forms prior to the passenger's date 
of travel, although an airline would not be prohibited from requesting 
the forms so long as it was clear that passengers were

[[Page 6471]]

not obligated to remit the forms to the airline in advance of their 
travel date.
    At the beginning of 2018, several airlines started requiring 
individuals traveling with service animals to provide service animal 
health forms and attestations that a passenger's service animal had 
been trained to behave appropriately in public. In a Final Statement of 
Enforcement Priorities, the Department's Office of Aviation Enforcement 
and Proceedings (Enforcement Office) indicated that it did not intend 
to take action against an airline for asking users of any type of 
service animal to present documentation related to the service animal's 
vaccination, training, or behavior, so long as it is reasonable to 
believe that the documentation would assist the airline in making a 
determination as to whether an animal poses a direct threat to the 
health or safety of others. The Enforcement Office explained that the 
existing rule permits airlines to determine, in advance of flight, 
whether any service animal poses a direct threat, but the rule does not 
clearly indicate how airlines must make that assessment. While the 
Department recognized that airlines may have a valid basis for 
requesting certain health and behavior information from individuals 
traveling with service animals, commenters stated that it has become 
burdensome and confusing for individuals with disabilities to comply 
with these documentation requirements because many of the airlines 
require different information from passengers traveling with service 
animals and have adopted their own unique forms and data collection 
methods.
    The Department is proposing to require standard departmental forms 
to establish a uniform process for collecting data about a service 
dog's health as well as behavior and training from passengers traveling 
with a service dog. The Department is also proposing to allow airlines 
to require passengers with a disability to complete a DOT Service 
Animal Relief Attestation Form Service Animal Relief Attestation Form 
for flight segments of 8 hours or longer. The Department seeks comment 
on whether using standardized U.S. Department of Transportation forms 
is the best way for airlines to collect data from passengers traveling 
with a service dog.
    The Department recognizes that these forms go beyond what DOJ 
allows in its ADA service animal regulations, but the Department 
believes that air transportation, which involves transporting a large 
number of people in a very confined space thousands of feet above the 
ground, is unique in comparison to airports, libraries, and other 
locations covered by Title II or Title III of the ADA. For this reason, 
the Department believes that a proposal allowing airlines to require 
all service dog users to provide these forms to assist airlines in 
determining whether a service dog poses a direct threat to the health 
or safety of others is appropriate.
    Under this NPRM, the Department would prohibit airlines from 
requiring individuals traveling with a service animals to provide the 
DOT-issued forms even a day in advance of the passenger's flight 
because advance notice may present significant challenges to passengers 
with disabilities wishing to make last minute travel plans that may be 
necessary for work or family emergencies. However, the Department is 
proposing to allow airlines to require users of a service animals to 
check-in at the airport one hour before the check-in time at the 
airport for the general public to process service animal documentation 
so long as the airline similarly requires advance check-in for 
passengers traveling with their pets in the cabin. This rulemaking 
would also permit airlines to require that the check-in take place at 
any designated airport location including the terminal lobby. One 
concern is that service animal users would not be able to check-in 
electronically before arriving at the airport like other passengers and 
would be unable to avoid the inconvenience of long waits when checking 
in. To address this concern, the Department is proposing to require 
airlines to make an employee trained to handle disability-related 
matters available in-person at the airline's designated airport 
location to process service animal documentation promptly. The 
Department solicits comment on whether one hour before the general 
public check-in is sufficient time for airline personnel to process 
service animal documentation. The Department also seeks comment on its 
proposal to require airlines to try to accommodate passengers who fail 
to meet the one-hour check-in requirement so long as the airline can do 
so by making reasonable efforts without delaying the flight. Finally, 
the Department would like commenters to identify potential benefits 
that service animal users may forgo by not being permitted to check-in 
electronically, and steps that can be taken to ensure that these 
benefits are provided to them.

9. Codeshare Flights

Current Requirements

    Under the Department's current ACAA rule, U.S. carriers that 
participate in a code-sharing arrangement with a foreign carrier are 
responsible for ensuring that the foreign carrier complies with the 
service animal provisions of the rule with respect to passengers 
traveling under the U.S. carrier's code on the foreign carrier's 
aircraft on flights between two foreign points.\113\ While the 
Department's current rule requires foreign carriers to transport only 
dogs, the Department could, based on the language in the current rule, 
hold a foreign carrier's U.S. codeshare partner responsible for that 
foreign carrier's refusal to transport other service animal species 
when the passenger is traveling under a U.S. carrier's code.\114\
---------------------------------------------------------------------------

    \113\ 14 CFR 382.7(c).
    \114\ The Department's Aviation Enforcement Office does not 
enforce section 382.7(c) in this way.
---------------------------------------------------------------------------

The ANPRM

    The Department sought comment in the ANPRM on whether DOT's service 
animal rule should explicitly state that a U.S. carrier would not be 
held responsible for its foreign codeshare partner's refusal to 
transport service animals other than dogs.\115\
---------------------------------------------------------------------------

    \115\ Traveling by Air with Service Animals, Advance Notice of 
Proposed Rulemaking, 83 FR 23832, 23842.
---------------------------------------------------------------------------

Comments Received

    Few individual commenters and disability advocates commented on 
whether the Department should explicitly state in its service animal 
regulation that U.S. airlines should not be held responsible if a 
foreign airline only transports dogs as service animals, but one 
advocacy organization states that making this clarification in the rule 
would clear up ambiguity caused by the provision in DOT's rules 
implementing the ACAA, 14 CFR part 382.
    Airlines also agree that the Department's rule should explicitly 
state that U.S. carriers would not be held responsible if a foreign 
carrier only transports dogs as service animals. These carriers believe 
that the Enforcement Office's decision not to pursue action against 
U.S. carriers is reasonable and appropriate as it would be 
fundamentally unfair to hold a U.S. carrier accountable for the flight 
operations and procedures of its foreign codeshare partners, over which 
it has no control. Furthermore, these carriers argue that an express 
statement of the Department's enforcement position in the rule would 
alleviate any confusion that may arise from otherwise ambiguous 
provisions in Part 382. One foreign airline also commented that while 
the Department has chosen not to take legal action against U.S. 
carriers as

[[Page 6472]]

a matter of enforcement discretion, it would be better for the 
Department specifically to state its position in a regulation so that 
carriers have concrete legal certainty of the Department's position.

DOT Response

    The Department's proposed service animal regulation would recognize 
only dogs as service animals. If the rule were finalized as proposed, 
the species requirements for both U.S. carriers and foreign carriers 
would be the same, thereby eliminating situations whereby a U.S. 
carrier could be held responsible for a foreign carrier's failure to 
transport service animals other than dogs but a foreign carrier could 
not. However, if the DOT final rule differs from the proposal and 
recognizes other species of service animals and/or emotional support 
animals, the Department would consider including language in the rule 
to make it clear that U.S. airlines are not responsible for their 
foreign carrier codeshare partners' failure to transport animals other 
than dogs. The Department seeks comment on this proposed action.

Regulatory Analyses and Notices

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and DOT 
Regulatory Policies and Procedures

    This proposed rulemaking has been determined to be significant 
under Executive Order 12866 (Regulatory Planning and Review) and the 
Department of Transportation's Regulatory Policies and Procedures 
because of its considerable interest to the disability community and 
the aviation industry. It does not, however, meet the criteria under 
Executive Order 12866 for an economically significant rule. It has been 
reviewed by the Office of Management and Budget under that Order.
    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') require agencies 
to regulate in the ``most cost-effective manner,'' to make a ``reasoned 
determination that the benefits of the intended regulation justify its 
costs,'' and to develop regulations that ``impose the least burden on 
society.'' DOT proposes to define a service animal as a dog that is 
individually trained to do work or perform tasks for the benefit of a 
qualified individual with a disability. In addition, DOT proposes to 
treat psychiatric service animals like other service animals and to 
allow airlines to require passengers traveling with a service animal to 
attest to the animal's good behavior and good health. DOT also proposes 
that airlines no longer be required to recognize emotional support 
animals as service animals.
    The primary economic impact of this proposed rulemaking is that it 
eliminates a market inefficiency. The current policy amounts to a price 
restriction which requires that airlines forgo a potential revenue 
source, as airlines are currently prohibited from charging a pet fee 
for transporting emotional support animals. A4A estimates that airline 
carriers transported 751,000 emotional support animals in 2017, a 56.1 
percent increase from 2016. This number nearly equals the 784,000 pets 
transported in 2017. Airlines charge as much as $175 to transport pets 
on a one-way trip, giving passengers an incentive to claim their pets 
as emotional support animals. The proposed rulemaking will eliminate a 
pricing restriction currently imposed by government on airlines by 
allowing them to set a price on the transport of emotional support 
animals other than zero.
    Removing the current requirement that carriers must transport 
emotional support animals free of charge would allow market forces 
(i.e., carriers as producers and passengers as consumers) to set the 
price for air transportation of emotional support animals. This 
provision would allow carriers to charge passengers traveling with 
emotional support animals (dogs and other accepted species on board of 
an aircraft) with pet transportation fees. This represents a transfer 
of surplus from passengers to airlines, and does not have implications 
for the net benefits calculation.
    The proposed rulemaking would also allow airlines to require 
passengers traveling with service animals to produce three forms of 
documentation developed by DOT. This cost element places a potential 
burden on passengers traveling with service animals who would need to 
submit three DOT forms to airlines. We estimate that, by Paperwork 
Reduction Act (PRA) accounting standards, the forms create 144,000 
burden hours and $3.0 million in costs per year. In some cases, 
however, carriers already ask passengers to complete equivalent 
nongovernmental forms. Thus, the PRA accounting overestimates the net 
burden created by this rulemaking.
    Furthermore, Executive Orders 12866 and 13563 require agencies to 
provide a meaningful opportunity for public participation. Accordingly, 
we have asked commenters to provide feedback on the proposed change to 
the regulation.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
A direct air carrier or foreign air carrier is a small business if it 
provides air transportation only with small aircraft (i.e., aircraft 
with up to 60 seats/18,000-pound payload capacity).\116\ Relative to 
typical airlines' operating costs and revenues, the impact is expected 
to be nonsignificant. Accordingly, the Department does not believe that 
the NPRM would have a significant impact on a substantial number of 
small entities. However, we invite comment on the potential impact of 
this rulemaking on small entities.
---------------------------------------------------------------------------

    \116\ See 14 CFR 399.73.
---------------------------------------------------------------------------

C. Executive Order 13132 (Federalism)

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

D. Executive Order 13084

    This rulemaking has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rulemaking 
does not significantly or uniquely affect the communities of the Indian 
Tribal governments or impose substantial direct compliance costs on 
them, the funding and consultation requirements of Executive Order 
13084 do not apply.

E. Paperwork Reduction Act

    This NPRM proposes three new collections of information that would 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995

[[Page 6473]]

(Pub. L. 104-13, 49 U.S.C. 3501 et seq.). Under the Paperwork Reduction 
Act, before an agency submits a proposed collection of information to 
OMB for approval, it must first publish a document in the Federal 
Register providing notice of the proposed information collection and a 
60-day comment period, and otherwise consult with members of the public 
and affected agencies concerning each proposed collection of 
information.
    The proposed rulemaking would allow airlines to require passengers 
traveling with service animals to provide carriers with the following 
three forms of documentation developed by the Department:
    1. DOT Air Transportation Service Animal Health Form (``Health 
Form''): This form would be completed by a veterinarian who would 
certify that the service dog has obtained the required vaccinations, is 
not showing signs of infectious or communicable diseases, and, to the 
veterinarian's knowledge, has not exhibited aggressive behavior or 
caused injury to another.
    2. DOT Air Transportation Service Animal Behavior and Training 
Attestation Form (``Behavior Attestation Form''): This form would be 
completed by the passenger with a service animal. This passenger would 
certify his/her service animal has been trained to behave properly in 
public, is aware of the handler's responsibility to maintain the animal 
under control at all times, and understands the consequences of service 
animal misbehavior.
    3. DOT Service Animal Relief Attestation Form (``Relief Attestation 
Form''): This form would be completed by passengers traveling with a 
service animal on flight segments scheduled to take 8 hours or more. It 
would require the passenger to affirm that the service animal will not 
need to relieve itself on the flight or that the service animal can 
relieve itself in a way that does not create a health or sanitation 
issue.
    For each of these information collections, the title, a description 
of the respondents, and an estimate of the annual recordkeeping and 
periodic reporting burden are set forth below:
1. Requirement To Prepare and Submit to Airlines the DOT Air 
Transportation Service Animal Health Form
    Respondents: Passengers with disabilities traveling on aircraft 
with service animals.
    Number of Respondents: Using A4A's estimate of 281,000 \117\ 
service animals transported in 2017, and assuming one passenger with a 
disability travels with a service animal, 281,000 respondents would 
have to provide a health form signed by a veterinarian and the 
passenger.
---------------------------------------------------------------------------

    \117\ A4A used data from five U.S. airlines to extrapolate the 
number of all service animals transported on U.S. airlines.
---------------------------------------------------------------------------

    Estimated Annual Burden on Respondents: We estimate that completing 
the form would require 15 minutes (.25 hours) per response, per year, 
including the time it takes to retrieve an electronic or paper version 
of the form from the carrier's or DOT's website, reviewing the 
instructions, and completing the questions. Passengers and veterinary 
assistants would spend a total of 70,250 hours (0.25 hours x 281,000 
passengers) to retrieve an accessible version of the form and provide 
it to the veterinarian for completion. To calculate the hourly value of 
time spent on the forms, we used median wage data from the Bureau of 
Labor Statistics.\118\ For the health form, which veterinary assistants 
perform on the job, we assume a fully loaded median wage rate of 
$26.48/hour ($13.24/hour x 2). A ``fully loaded'' wage includes 
benefits and indirect costs.
---------------------------------------------------------------------------

    \118\ Bureau of Labor Statistics (2019). ``May 2018 National 
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

2. Requirement To Prepare and Submit to Airlines the DOT Air 
Transportation Service Animal Behavior and Attestation Form
    Respondents: Passengers with disabilities traveling on aircraft 
with service animals.
    Number of Respondents: Using A4A's estimate of 281,000 service 
animals transported in 2017, and assuming one passenger with a 
disability travels with a service animal, 281,000 respondents would 
have to provide a behavior form signed by the passenger.
    Estimated Annual Burden on Respondents: We estimate that completing 
the form will require 15 minutes (.25 hours) per response, per year, 
including the time it takes to retrieve an electronic or paper version 
of the form from the carrier's or DOT's website, reviewing the 
instructions, and completing the questions. Passengers would spend a 
total of 70,250 hours (0.25 hours x 281,000 passengers) to retrieve an 
accessible version of the form and complete the form. To calculate the 
hourly value of time spent on the forms, we use median wage data from 
the Bureau of Labor Statistics.\119\ For the behavior attestation, 
which passengers fill out on their own time without pay, we use a post-
tax wage estimate of $15.42 ($18.58 median for all occupations minus a 
17% percent estimated tax rate).
---------------------------------------------------------------------------

    \119\ Bureau of Labor Statistics (2019). ``May 2018 National 
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

3. Requirement To Prepare and Submit to Airlines the DOT Service Animal 
Relief Attestation Form
    Respondents: Passengers with disabilities traveling on aircraft 
with service animals on flight segments scheduled to take 8 hours or 
more.
    Number of Respondents: To estimate the paperwork costs associated 
with the new forms, we used A4A's estimate of 281,000 service animals 
transported in 2017.\120\ We estimate that 5 percent of those 
passengers (14,050) would be on flight segments scheduled to take 8 
hours or more and would also have to complete the Relief Attestation 
Form.
---------------------------------------------------------------------------

    \120\ A4A used data from five U.S. airlines to extrapolate the 
number of all service animals transported on U.S. airlines.
---------------------------------------------------------------------------

    Estimated Annual Burden on Respondents: We estimate that completing 
the form will require 15 minutes (.25 hours) per response, per year, 
including the time it takes to retrieve an electronic or paper version 
of the form from the carrier's or DOT's website, reviewing the 
instructions, and completing the questions. Passengers would spend a 
total of 3,512.5 hours (0.25 hours x 14,050 passengers) to retrieve an 
accessible version of the form and complete the form. To calculate the 
hourly value of time spent on the forms, we use median wage data from 
the Bureau of Labor Statistics.\121\ For the relief form, which 
passengers fill out on their own time without pay, we use a post-tax 
wage estimate of $15.42 ($18.58 median for all occupations minus a 17% 
percent estimated tax rate).
---------------------------------------------------------------------------

    \121\ Bureau of Labor Statistics (2019). ``May 2018 National 
Occupational Employment and Wage Estimates: United States.'' https://www.bls.gov/oes/current/oes_nat.htm.

[[Page 6474]]



                                             Table 1--Paperwork Cost Estimates for DOT Service Animal Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Form                                Passengers           Hours           Total hours     Hourly time value       Subtotal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Health...................................................            281,000               0.25             70,250             $26.48         $1,860,220
Behavior attestation.....................................            281,000               0.25             70,250              15.42          1,083,255
Relief...................................................             14,050               0.25            3,512.5              15.42             54,163
                                                          ----------------------------------------------------------------------------------------------
    Total................................................  .................  .................          144,012.5  .................          2,997,638
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The estimated burden and costs of these three new DOT forms are 
primarily for Paperwork Reduction Act (PRA) accounting purposes. In 
some cases, carriers already require passengers traveling with service 
animals to complete equivalent forms. Allegiant Air and Delta Air Lines 
ask passengers to carry health forms, for example, while American 
Airlines and Hawaiian Airlines ask passengers to fill out relief 
attestation forms. Thus, the cost estimates above are likely to 
overestimate any new burden created by this rulemaking.
    The Department invites interested persons to submit comments on any 
aspect of each of these three information collections, including the 
following: (1) The necessity and utility of the information collection, 
(2) the accuracy of the estimate of the burden, (3) ways to enhance the 
quality, utility, and clarity of the information to be collected, and 
(4) ways to minimize the burden of collection without reducing the 
quality of the collected information. Comments submitted in response to 
this notice will be summarized or included, or both, in the request for 
OMB approval of these information collections.

F. Unfunded Mandates Reform Act

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

G. National Environmental Policy Act

    The Department has analyzed the environmental impacts of this 
proposed action pursuant to the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is 
categorically excluded pursuant to DOT Order 5610.1C, Procedures for 
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). 
Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS).\122\ In 
analyzing the applicability of a categorical exclusion, the agency must 
also consider whether extraordinary circumstances are present that 
would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.6.i of 
DOT Order 5610.1C categorically excludes ``[a]ctions relating to 
consumer protection, including regulations.'' Because this rulemaking 
relates to ensuring both the nondiscriminatory access to air 
transportation for consumers with disabilities, as well as the safe 
transport of the traveling public, this rulemaking is a consumer 
protection rulemaking. The Department does not anticipate any 
environmental impacts, and there are no extraordinary circumstances 
present in connection with this rulemaking.
---------------------------------------------------------------------------

    \122\ See 40 CFR 1508.4.
---------------------------------------------------------------------------

List of Subjects in 14 CFR Part 382

    Air Carriers, Civil rights, Consumer protection, Individuals with 
Disabilities, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Department of 
Transportation proposes to amend 14 CFR part 382 to read as follows:

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR 
TRAVEL

0
1. The authority citation for part 382 continues to read as follows:

    Authority:  49 U.S.C. 41702, 41705, 41712, and 41310.

0
2. Amend Sec.  382.3 by adding in alphabetical order the definitions of 
service animal and service animal handler to read as follows:


Sec.  382.3   What do the terms in this rule mean?

* * * * *
    Service animal means a dog that is individually trained to do work 
or perform tasks for the benefit of a qualified individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Emotional support animals, comfort animals, 
companionship animals, and service animals in training are not service 
animals for the purposes of this Part.
    A Service animal handler is a qualified individual with a 
disability who receives assistance from a service animal(s) that does 
work or performs tasks that are directly related to the individual's 
disability, or a safety assistant, as described in section 382.29(b), 
who accompanies an individual with a disability traveling with a 
service animal(s). The service animal handler is responsible for 
keeping the animal under control at all times, and caring for and 
supervising the service animal, which includes toileting and feeding.
* * * * *
0
3. Add Sec.  382.28 to read as follows:


Sec.  382.28   What assistance must carriers provide to passengers with 
a disability required to check-in before the check-in time for the 
general public?

    If you require a passenger with a disability to check-in in advance 
of the check-in time for the general public, you must make personnel or 
other employees trained to proficiency on the requirements of this Part 
available promptly to assist the passenger at a designated location in 
the airport.


Sec.  382.72   [Amended]

0
4. Amend Sec.  382.27 by removing paragraphs (c)(8) and (c)(9).
0
5. Add Subpart EE, consisting of Sec. Sec.  382.72 through 382.80, to 
read as follows:

Subpart EE--Service Animals

Sec.
382.72 Must carriers allow a service animal to accompany a passenger 
with a disability?
382.73 How many service animals must a carrier transport in the 
cabin of aircraft?
382.74 How do carriers determine if an animal is a service animal?
382.75 May a carrier require documentation from passengers with 
disabilities seeking to travel with a service animal?
382.76 May a carrier require a service animal user to check-in at 
the airport one hour before the check-in time at the airport for the 
general public as a condition of travel to allow time to

[[Page 6475]]

process the service animal documentation?
382.77 May carriers restrict the location and placement of service 
animals on aircraft?
382.78 May carriers charge individuals with disabilities for the 
damage their service animal causes?
382.79 Under what other circumstances may carriers refuse to provide 
transportation to a service animal traveling with a passenger with a 
disability?
382.80 May carriers impose additional restrictions on the transport 
of service animals?


Sec.  382.72   Must carriers allow a service animal to accompany a 
passenger with a disability?

    You must allow a service animal to accompany a passenger with a 
disability. You must not deny transportation to a service animal on the 
basis that its carriage may offend or annoy carrier personnel or 
persons traveling on the aircraft.


Sec.  382.73   How many service animals must a carrier transport in the 
cabin of aircraft?

    You are not required to accept more than two service animals for a 
single passenger with a disability.


Sec.  382.74   How do carriers determine if an animal is a service 
animal?

    (a)You may make two inquiries to determine whether an animal 
qualifies as a service animal. You may ask if the animal is required to 
accompany the passenger because of a disability and what work or task 
the animal has been trained to perform. You must not ask about the 
nature or extent of a person's disability or ask that the service 
animal demonstrate its work or task.
    (b) You may observe the behavior of an animal. A trained service 
animal will remain under the control of its handler. It does not run 
freely around an aircraft or an airport gate area, bark or growl 
repeatedly at other persons or other animals on the aircraft or in the 
airport gate area, bite, jump on, or cause injury to people, or urinate 
or defecate in the cabin or gate area. An animal that engages in such 
disruptive behavior demonstrates that it has not been successfully 
trained to behave properly in a public setting and carriers are not 
required to treat it as a service animal, even if the animal performs 
an assistive function for a passenger with a disability.
    (c) You may look for physical indicators on the animal to determine 
if the animal is a service animal. A service animal must be under the 
control of its owner. A service animal must have a harness, leash, or 
other tether unless the owner is unable because of a disability to use 
a harness, leash, or other tether, or the use of a harness, leash, or 
other tether would interfere with the service animal's safe, effective 
performance of work or tasks, in which case the service animal must be 
otherwise under the handler's control (e.g., voice control, signals, or 
other effective means).


Sec.  382.75   May a carrier require documentation from passengers with 
disabilities seeking to travel with a service animal?

    (a) If a passenger seeks to travel with a service animal, you may 
require the passenger with a disability to provide you, as a condition 
of permitting the service animal to travel in the cabin:
    (1) A current (i.e., no older than one year from the date of the 
passenger's scheduled initial flight) completed copy of the U.S. 
Department of Transportation Air Transportation Service Animal Health 
Form; and
    (2) A completed copy of the U.S. Department of Transportation Air 
Transportation Service Animal Behavior and Training Attestation Form.
    (b) On a flight segment scheduled to take 8 hours or more, you may, 
as a condition of permitting a service animal to travel in the cabin, 
require the passenger with a disability traveling with the service 
animal to confirm that the animal will not need to relieve itself on 
the flight or that the animal can relieve itself in a way that does not 
create a health or sanitation issue on the flight by providing a DOT 
Service Animal Relief Attestation Form.
    (c) You are not permitted to require documentation of passengers 
with disabilities traveling with service animals beyond completion of 
the forms identified in paragraphs (a) and (b) of this section.
    (d) You must keep copies of the forms identified in paragraphs (a) 
and (b) at each airport you serve. As a foreign carrier, you must keep 
copies of the forms at each airport serving a flight you operate that 
begins or ends at a U.S. airport.
    (e) If you have a website, you must make the blank forms identified 
in paragraphs (a) and (b) available to passengers on your website in an 
accessible format.
    (f) You must mail copies of the blank forms identified in 
paragraphs (a) and (b) to passengers upon request.


Sec.  382.76   May a carrier require a service animal user to check-in 
at the airport one hour before the check-in time at the airport for the 
general public as a condition of travel to allow time to process the 
service animal documentation?

    (a) You may require a passenger with a disability to check-in at 
the airport one hour before the check-in time at the airport for the 
general public as a condition of travel with a service animal to allow 
time to process the service animal documentation and observe the animal 
so long as:
    (1) You designate a specific location at the airport where the 
passenger could be promptly checked-in, the passenger's service animal 
would be observed, and the passenger's service animal documentation 
would be promptly reviewed by personnel trained to proficiency on the 
service animal requirements of this Part; and
    (2) You have a similar or more stringent check-in requirement for 
passengers traveling with their pets in the cabin.
    (b) If a passenger does not meet the check-in requirements you 
establish consistent with this section, you must still provide the 
accommodation if you can do so by making reasonable efforts, without 
delaying the flight.


Sec.  382.77   May carriers restrict the location and placement of 
service animals on aircraft?

    (a) You must permit a service animal to accompany a passenger with 
a disability on the passenger's lap or in the foot space immediately in 
front of the passenger's seat, unless this location and placement would 
be:
    (1) Inconsistent with safety requirements set by the FAA or the 
foreign carrier's government; or
    (2) Encroaches into another passenger's space.
    (b) If a service animal cannot be accommodated on the passenger's 
lap or in the foot space immediately in front of the passenger's seat 
without encroaching into another passenger's space, you must offer the 
passenger the opportunity to move with the animal to another seat 
location within the same class of service, if available on the 
aircraft, where the animal can be accommodated. You are not required to 
reseat other passengers to accommodate a service animal except as 
required by Subpart F.
    (c) If there are no alternatives available to enable the passenger 
to travel with the service animal in the cabin of the scheduled flight, 
you must offer the passenger the opportunity to transport the service 
animal in the cargo hold free of charge or travel on a later flight to 
the extent there is space available on a later flight and the transport 
is consistent with the safety requirements set by the FAA or a foreign 
carrier's government.

[[Page 6476]]

Sec.  382.78   May carriers charge individuals with disabilities for 
the damage their service animal causes?

    While you cannot charge an individual with a disability for 
transporting service animals, or for providing other services that this 
rule requires, you may charge a passenger with a disability for damage 
caused by his or her service animal so long as you normally charge 
individuals without disabilities for similar kinds of damage.


Sec.  382.79   Under what other circumstances may carriers refuse to 
provide transportation to a service animal traveling with a passenger 
with a disability?

    (a) You may deny transport to a service animal under the following 
circumstances:
    (1) The animal poses a direct threat to the health or safety of 
others (see definition in Sec.  382.3);
    (2) The animal causes a significant disruption in the cabin or at 
an airport gate area, or its behavior on the aircraft or at an airport 
gate area indicates that it has not been trained to behave properly in 
public (e.g., running freely, barking or growling repeatedly at other 
persons on the aircraft, biting or jumping on people, or urinating or 
defecating in the cabin or gate area); or
    (3) The animal's carriage would violate FAA safety requirements or 
applicable safety requirements of a U.S. territory or foreign 
government (e.g., the animal is too large or heavy to be accommodated 
in the cabin).
    (b) In determining whether to deny transport to a service animal on 
the basis that the animal poses a direct threat under paragraph (a)(1) 
of this section, you must make an individualized assessment based on 
reasonable judgment that relies on the best available objective 
evidence to ascertain the nature, duration, and severity of the risk; 
the probability that the potential injury will actually occur; and 
whether reasonable modifications of policies, practices, or procedure 
will mitigate the risk.
    (c) In determining whether to deny transport to a service animal on 
the basis that the animal has misbehaved and/or has caused a 
significant disruption in the cabin under paragraph (a)(2), you must 
make an individualized assessment based on reasonable judgment that 
relies on the best available objective evidence to ascertain the 
probability that the misbehavior and/or disruption will continue to 
occur; and whether reasonable modifications of policies, practices, or 
procedure will mitigate the misbehavior and/or the disruption.
    (d) In conducting the analysis required under paragraph (a)(1) and 
(a)(2), you must not deny transportation to the service animal if there 
are means available short of refusal that would mitigate the problem 
(e.g., muzzling a barking service dog or taking other steps to comply 
with animal health regulations needed to permit entry of the service 
animal into a domestic territory or a foreign country).
    (e) If you refuse to provide transportation to a service animal 
based on any provision in this Part, you must provide the individual 
with a disability accompanied by the service animal a written statement 
of the reason for the refusal. This statement must include the specific 
basis for the carrier's opinion that the refusal meets the standards of 
paragraphs (a) through (c) of this section or is otherwise specifically 
permitted by this Part. You must provide this written statement to the 
individual with a disability accompanied by the service animal either 
at the airport, or within 10 calendar days of the refusal of 
transportation.


Sec.  382.80   May carriers impose additional restrictions on the 
transport of service animals?

    Carriers are not permitted to establish additional restrictions on 
the transport of service animals outside of those specifically 
permitted by the provisions in this Part, unless required by applicable 
FAA, TSA, or other Federal requirements or a foreign carrier's 
government.


Sec.  382.117   [Removed]

0
6. Remove Sec.  382.117.

    Issued this 21st day of January, 2020, in Washington, DC.
Elaine L. Chao,
Secretary.
[FR Doc. 2020-01546 Filed 2-4-20; 8:45 am]
 BILLING CODE 4910-9X-P

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