# Traveling by Air With Service Animals

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-26679

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 10, 2020
- **Citation:** 85 FR 79742

## Text

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:

Final rule.

SUMMARY:

The U.S. Department of Transportation (Department or DOT) is issuing a final rule to amend the Department's Air Carrier Access Act (ACAA) regulation on the transport of service animals by air. This final rule is intended to ensure that our air transportation system is safe for the traveling public and accessible to individuals with disabilities.

DATES:

This rule is effective January 11, 2021.

FOR FURTHER INFORMATION CONTACT:

Maegan Johnson, Senior Trial Attorney, Office of Aviation Consumer Protection, 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 Consumer Protection, 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

This final rule defines a service animal as a dog, regardless of breed or type, 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

It allows airlines to recognize emotional support animals as pets, rather than service animals, and permits airlines to limit the number of service animals that one passenger can bring onboard an aircraft to two service animals.

1
The Department's ACAA definition of a service animal in this final rule 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. Although DOT has chosen to closely align its ACAA service animal definition with DOJ's service animal definition under the ADA, the substantive requirements in this final rule differ from DOJ's requirements for service animals under the ADA in various areas,
e.g.,
allowing airlines to require service animal documentation and prohibiting the use of voice control over a service animal.

The final rule also allows airlines to require passengers with a disability traveling with a service animal to complete and submit to the airline a form, developed by DOT, attesting to the animal's training and good behavior, and certifying the animal's good health. For flight segments of eight hours or more, the rule allows airlines to require passengers to complete and submit a DOT form 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 final rule allows airlines to require a service animal user to provide these forms up to 48 hours in advance of the date of travel if the passenger's reservation was made prior to that time. As an alternative, airlines may require a passenger with a disability seeking to travel with a service animal in the cabin to provide the forms at the passenger's departure gate on the date of travel. However, the final rule prohibits airlines from requiring that a passenger physically check-in at the airport solely on the basis that the individual is traveling with a service animal, thus ensuring that service animal users are not prevented from enjoying the same convenience-related benefits provided to other passengers, such as online and curbside check-in. Service animal users may use the online check-in process available to the general public.

This final rule also better ensures the safety of passengers and crewmembers by allowing carriers to require that service animals are harnessed, leashed, or otherwise tethered onboard an aircraft and includes requirements that would address the safe transport of large service animals in the aircraft cabin. Further, it specifies the circumstances under which the user of a service animal may be charged for damage caused by the service animal and addresses the responsibilities of code-share partners.

1. Statutory Authority

The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits discrimination in airline service based on 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 prohibiting discrimination by U.S. and foreign air carriers in air transportation against qualified individuals with disabilities, does not specify how 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 current rulemaking has presented 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 given the realities and limitations of air service and the onboard environment of commercial airplanes. 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.

2. Purpose of Regulatory Action

The purpose of this final rule is to revise the Department's Air Carrier Access Act (ACAA) regulation on traveling by air with service animals (formerly 14 CFR 382.117) in 14 CFR part 382.
2

This final rule is prompted by a number of compelling needs to revise these regulations: (1) The increasing number of service animal complaints received from, and on behalf of, passengers with disabilities by the Department and by airlines; (2) the

inconsistent definitions among Federal agencies of what constitutes a “service animal;” (3) the disruptions caused by requests to transport unusual species of animals onboard aircraft, which has eroded the public trust in legitimate service animals; (4) the increasing frequency of incidents of travelers fraudulently representing their pets as service animals; and (5) the reported increase in the incidents of misbehavior by emotional support animals. In addition, DOT has received multiple requests for the Department to regulate in this area.
3

Each of these purposes underlying this rulemaking, as well as the requests for rulemaking, were discussed in depth in the Department's notice of proposed rulemaking (NPRM) issued on February 5, 2020.
4

Please refer to that discussion for additional background.

2
In 2008, the Department amended 14 CFR 382 by adding 14 CFR 382.117, a provision dedicated to the transport of service animals on aircraft. The Department's 2008 amendment codified prior DOT guidance, which allowed airlines to require emotional support animal and psychiatric service animal users to provide a letter from a licensed mental health professional of the passenger's need for the animal, and permitted airlines to require 48 hours' advance notice of a passenger's wish to travel with an emotional support or psychiatric service animal to give airlines sufficient time to assess the passenger's documentation. This final rule removes 14 CFR 382.117 and adds a new subpart, Subpart EE, on service animals.

3

See, e.g.,
Psychiatric Service Dog Society, DOT-OST-2009-0093-0001, 1-2, at
https://www.regulations.gov/document?D=DOT-OST-2009-0093-0001
(Apr. 21, 2009); Comment from Airlines for America at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751
(Dec. 4, 2017); Comment from International Air Transport Association at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-269
(Dec. 1, 2017); Comment from Kuwait Airways at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-2679
(Dec. 1, 2017); and Comment from National Air Carrier Association at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-2771
(Dec. 4, 2017).

4

See
U.S. Department of Transportation, Notice of Proposed Rulemaking, “Traveling by Air with Service Animals,” 85 FR 6448 (Feb. 5, 2020).

This final rule also responds to a congressional mandate. 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.
5

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 the U.S. Department of Justice (DOJ) in its rule implementing the Americans with Disabilities Act (ADA).
6

In response, and as described in more detail below, the Department has chosen to revise its service animal definition under the ACAA to be more closely aligned with DOJ's service animal definition under the ADA, although the substantive requirements in DOT's ACAA service animals rule differ from DOJ's requirements for service animals under the ADA in a number of respects. This final rule is responsive to, and fulfills the requirements found in, the FAA Act.

5
The FAA Reauthorization Act of 2018, Public Law 115-254, Sec. 437 (Oct. 5, 2018).

6

See
DOJ's ADA definition of a service animal in 28 CFR 35.104 and 28 CFR 36.104.

3. Recent Rulemaking Activities

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.”
7

In the ANPRM, the Department sought comment on how to amend the Department's ACAA regulations to address concerns raised by individuals with disabilities, airlines, flight attendants, airports and other aviation stakeholders regarding service animals on aircraft. On February 5, 2020, a Notice of Proposed Rulemaking (NPRM) on Traveling by Air with Service Animals was published in the
Federal Register
.
8

The Department sought in the NPRM to propose a rule that would ensure passengers with disabilities can continue traveling with service animals in air transportation while also reducing the likelihood that there would be safety or health issues at the airport or onboard aircraft.

7
Traveling by Air with Service Animals, Advance Notice of Proposed Rulemaking, 83 FR 23832 (May 23, 2018).

8
Traveling by Air with Service Animals, Notice of Proposed Rulemaking, 85 FR 6448 (Feb. 5, 2020).

The Department received approximately 15,000 comments on the NPRM.
9

While most of the comments received in response to the NPRM were from individual commenters, the Department also received many comments from disability rights advocacy organizations, airlines, airports, transportation worker associations, animal health and training organizations, and a number of other special-interest organizations. The Department has carefully reviewed and considered all of the comments received and is issuing this final rule to ensure access to individuals whose physical or mental disability necessitates the assistance of a service animal in air transportation, while also considering the realities, risks, and limitations associated with transporting animals on aircraft.

9

See https://www.regulations.gov/docket?D=DOT-OST-2018-0068.

4. Summary of the Major Provisions

Subject
Final rule

Definition of Service Animal
A service animal is as a dog, regardless of breed or type, 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 are not required to recognize emotional support animals as service animals and may treat them as pets.

Treatment of Psychiatric Service Animals
Psychiatric service animals are 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 are permitted to limit service animals to dogs.

Health, Behavior and Training Form
Carriers are permitted to require passengers to remit a completed hardcopy or electronic version of the Department's “U.S. Department of Transportation Service Animal Air Transportation Form” as a condition of transportation.

Relief Attestation
Carriers are permitted to require individuals traveling with a service animal on flights eight hours or longer to remit a completed hardcopy or electronic version the Department's “U.S. Department of Transportation Service Animal Relief Attestation” as a condition of transportation.

Number of Service Animals per Passenger
Carriers are permitted to limit the number of service animals traveling with a single passenger with a disability to two service animals.

Large Service Animals
Carriers are permitted to require a service animal to fit on their handler's lap or within its handler's foot space on the aircraft.

Control of Service Animals
Carriers are permitted to require a service animal to be harnessed, leashed, or otherwise tethered in areas of the airport that they own, lease, or control, and on the aircraft.

Service Animal Breed or Type
Carriers are 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 are not permitted to require a passenger with a disability to physically check-in at the airport, rather than using the online check-in process, on the basis that the individual is traveling with a service animal. Airlines may require a passenger with a disability seeking to travel with a service animal to provide the service animal form(s) at the passenger's departure gate on the date of travel.

Advance Notice Requirements
Carriers may require individuals traveling with a service animal to provide a U.S. Department of Transportation Service Animal Air Transportation Form and, if applicable, a U.S. Department of Transportation Service Animal Relief Attestation up to 48 hours in advance of the date of travel if the passenger's reservation was made prior to that time.

5. Summary of the Economic Analysis

The Department has prepared a regulatory evaluation in support of the final rule to amend the ACAA service animal regulations. Under this final rule, a service animal is limited to a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. It allows airlines, for the first time, to recognize emotional support animals (ESAs) as pets rather than service animals. Because airlines charge passengers for transporting pets, and are prohibited from charging passengers traveling with service animals, passengers previously had an incentive to claim their pets were ESAs. Airlines and other passengers have also reported increased incidence of misbehavior by ESAs on aircraft and in the airport. The misbehavior has included animals' urinating, defecating, and in some instances, harming people and other animals at the airport or on the aircraft. The primary economic impact of this rule is that it will eliminate a market inefficiency. Treating ESAs as service animals amounts to a price restriction that sets the price of accommodating passengers who travel with ESAs at zero dollars, despite the fact that airlines face non-zero resource costs to accommodate those passengers.

Table ES-1 summarizes the results of the regulatory evaluation. The final rule creates a potential burden on passengers who travel with service animals as it allows airlines to require such passengers to submit two U.S. DOT forms. We estimate that the forms could create as much as 74,000 burden hours and $1.1 million in costs per year in 2018 dollars.

Evaluating other impacts was more difficult due to data limitations. To gauge the potential magnitude of these impacts, we combined the limited data with reasonable assumptions about ESA transport that could occur under the final rule and a demand elasticity from a surrogate market. The analysis indicates that the final rule could be expected to generate annual cost savings to airlines between $15.6 million and $21.6 million and annual net benefits of $3.9 to $12.7 million.

Table ES-1—Summary of Economic Impacts Due to Final Rule
[2018 Dollars, millions]

Impact
Annual value

Costs:

Paperwork burden for passengers traveling with service animals
$1.1.

Cost savings to airlines associated with providing ESA travel
−$21.6 to −$15.6.

Benefits:

Lost benefits to individuals who no longer travel with ESAs
−$10.6 to −$7.8.

Reduction in negative externalities caused by ESAs
Not quantified.

Transfers:

Increased fees paid by passengers travelling with ESAs to airlines
$54.0 to $59.6.

Net benefits (benefits minus costs)
$3.9 to $12.7.

Discussion

1. Definition of a Service Animal

In developing the definition of a service animal, the Department carefully considered whether emotional support animals should be treated as service animals, whether psychiatric service animals should be treated the same as other service animals, whether to limit service animals to certain species of animals, whether certain breeds or generalized physical types of animals should not be considered service animals, and whether the Department's definition of a service animal under the ACAA should be similar to the DOJ definition of a service animal under the ADA. Each of these issues is discussed in turn below.

A. Emotional Support Animals

The NPRM

In the NPRM, the Department explained that the ACAA regulations currently recognize two types of service animal: (1) Any animal that is individually trained or able to provide assistance to a qualified person with a disability; and (2) emotional support animals, defined as “any animal shown by documentation to be necessary for the emotional well-being of a passenger.” Emotional support animals are intended to mitigate a passenger's disability by their presence, and are expected to be trained to behave in public, but are not individually trained to do work or perform tasks for the benefit of a passenger with a disability.

In the NPRM, the Department proposed to allow airlines to treat emotional support animals as pets, rather than service animals. The Department proposed to do so by redefining a “service animal” as a dog that is individually trained to do work or perform a task for the benefit of a qualified individual with a disability. Under the Department's proposed definition, airlines would not be required to recognize comfort animals, companionship animals, or any other non-task-trained animals as service animals. The Department indicated that the proposal was intended to align the definition of a service animal under the ACAA with the DOJ's definition of a

service animal under the ADA.
10

One purpose of this alignment was to reduce confusion for individuals with disabilities, airline personnel, and airports (which are generally subject to the ADA rather than the ACAA).

10

See
DOJ's ADA definition of a service animal at 28 CFR 35.104 and 28 CFR 36.104.

In the NPRM, the Department sought comment on how its proposed service animal definition would impact individuals with disabilities who rely on emotional support animals when traveling on aircraft. Furthermore, although airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline's established policy, the Department specifically sought 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 were no longer permitted to travel with their emotional support animals. In addition, since the Department proposed that airlines would be permitted to treat emotional support animals as pets, the Department sought comment 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 the limits on the number of pets an airline would allow per flight could impact their transport.

The Department also requested comment in the NPRM on whether emotional support animal users could train their animals to do work or perform tasks to assist them with their disability, thereby transforming the animal from an emotional support animal to a psychiatric service animal.

Although the Department proposed not to treat emotional support animals as service animals, the Department also sought comment on whether it should recognize emotional support animals as a separate and distinct accommodation for passengers with disabilities. Specifically, the Department sought comment on whether to allow airlines to mandate stricter medical documentation requirements for individuals traveling with emotional support animals; 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 limiting emotional support animals to one per passenger would mitigate a passenger's disability sufficiently on a flight or at the passenger's destination. The Department did so as part of the mandate in the FAA Act, which required 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.
11

11
FAA Reauthorization Act of 2018, Public Law 115-254, Sec. 437 (Oct. 5, 2018).

Comments Received

Of the approximately 15,000 comments in response to the NPRM, more than 10,000 of those comments concerned the transport of emotional support animals. More than 3,000 individuals submitted comments in support of DOT's proposal to exclude emotional support animals from the ACAA definition of a service animal and to allow airlines to treat emotional support animals as pets. Furthermore, a large majority of airline industry stakeholder organizations that submitted comments on this issue (
i.e.,
airlines and airline organizations, airports, flight attendants, and other transportation worker organizations), expressed their support for DOT's proposal to allow airlines to treat emotional support animals as pets. Furthermore, approximately half of the disability rights advocacy organizations that submitted comments on this issue (mainly those organizations that represent individuals with allergies and individuals with visual impairment who use guide dogs) also supported DOT's proposal to allow airlines to treat emotional support animals as pets.

Supporters of DOT's proposal to exclude emotional support animals from the service animal definition primarily expressed safety concerns. They described incidents of misbehavior by emotional support animals, including acting aggressively toward people and other service animals by biting, growling, and lunging; and urinating, defecating, and otherwise failing to be under the control of their handler. Commenters expressed general safety concerns for travelers and airline crew given these disturbances. Some commenters expressed the view that many emotional support animal users may not actually be individuals with disabilities, but instead are individuals who are misrepresenting their pets as service animals to avoid paying airline pet fees.

Airlines for America (A4A), the Regional Airline Association, and the National Air Carrier Association jointly commented
12

that numerous incidents on aircraft have demonstrated that emotional support animals are substantially more likely to misbehave during a flight due to the stressful and challenging aircraft environment.
13

These organizations emphasized that emotional support animal misbehavior poses a substantial risk to flight safety, and that aircraft cannot reasonably carry untrained animals in the cabin that are uncontained. Similarly, the Association of Professional Flight Attendants (APFA) commented that “emotional support animals have been known to bite passengers and Flight Attendants, urinate, defecate, cause allergic reactions and encroach on the space and comfort zone of other passengers who have purchased tickets,” and that an untrained emotional support animal can put passengers at risk during an emergency evacuation.
14

The California Chapter of the American Council of the Blind (ACB California) also commented that emotional support animals pose a risk to people and other service animals as its members have reported that their guide dogs have been barked at and growled at on many occasions.
15

Similarly, the American Veterinary Medical Association (AVMA) commented that untrained emotional support animals “are often not acclimated to various stressful situations in the same manner that service animals are trained,” which “puts the safety and well-being of both the animal and those sharing the animal's space at risk.”
16

12
For ease of reference we will refer to these organizations collectively as “A4A.”

13
Comment from Airlines for America (A4A), the Regional Airline Association, (RAA), and the National Air Carrier Association (NACA) (collectively referred to as A4A) at
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

14
Comment from Association of Professional Flight Attendants (APFA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19238.

15
Comment from California Chapter of the American Council of the Blind (ACB California),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19145.

16
Comment from American Veterinary Medical Association (AVMA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19283.

The second concern most frequently expressed by commenters in support of DOT's proposal related to those individuals who misrepresent their pets as service animals, and the growing number of online mental health professionals willing to provide pet owners with emotional support animal and psychiatric service animal documentation for a fee. American Airlines commented that the “increase in the availability of fraudulent ESA credentials has enabled people who are not truly in need of animal assistance to abuse the rules and evade airline policies regarding animals in the

cabin.”
17

Similarly, Open Doors Organization commented that airlines can show evidence of letters written by certain mental health professionals on the web that result from fee-based online evaluations or consultations with minimal therapeutic interaction between the health professional and the traveler.
18

Likewise, the Association of Late Deafened Adults commented that people who falsely claim their pets are service animals can purchase a fake service animal vest for their pet online without the pet going through any period of training.
19

17
Comment from American Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.

18
Comment from Open Doors Organization,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305. https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.

19
Comment from Association of Late Deafened Adults,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17669.

Some commenters also support DOT's proposed service animal definition, limiting service animals to task-trained animals, because they believe that only service animals trained to do work or perform tasks for the benefit of a person with a disability can effectively function as service animals. The American Association of Airport Executives (AAAE) commented that disability mitigation training, which enables an animal to know how to guide individuals with vision impairments, retrieve items for individuals with mobility impairments, and perform other tasks and functions for individuals with disabilities, is critical to mitigating potential risks and to ensure safety of passengers in the terminal.
20

An individual commenter remarked that “a critical part of a service animal's training includes a systematic socialization process that gradually and humanely exposes the dog to a variety of public places and settings . . . [which] ensures that service animals can both reliably perform their essential duties in all types of settings, and that venues like busy airport and crowded aircraft cabins will not trigger behaviors that are unsafe for the disabled handler, or for others to be around.”
21

20
Comment from American Association of Airport Executives, (AAAE),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19196.

21
Comment from Ginger G.B. Kutsch,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19306.

The Department also received a significant number of comments from individuals suffering from allergies, or individuals and organizations commenting on behalf of allergy sufferers, in support of the proposal to allow airlines to treat emotional support animals as pets. These commenters describe how the recent increases in the number of service animals on aircraft, ostensibly emotional support animals, has created an untenable environment for allergy sufferers in the aircraft cabin. Furthermore, these commenters believe that DOT's proposed rule would result in an overall decrease in the number of service animals on aircraft, which would improve the level of unwanted fur-related allergens on aircraft. The Asthma and Allergy Network commented that a training requirement for service animals would help mitigate the number of animals on aircraft.
22

The Asthma Allergy Foundation of America also commented that it supports DOT's proposal, which permits airlines the flexibility to treat emotional support animals as pets, because it will “reduce the risk of animals triggering asthma attacks or severe allergic reactions.”
23

22
Comment from the Allergy and Asthma Network,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17955.

23
Comment from the Asthma and Allergy Foundation of America,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18498.

On the other hand, more than 6,000 commenters either supported the Department's continued recognition of emotional support animals as service animals, or supported a rule allowing emotional support animals to be recognized as a separate accommodation for individuals with disabilities. The individual commenters who support the Department's continued recognition of emotional support animals as service animals include individuals who suffer from autism, debilitating depression, anxiety, post-traumatic stress disorder, and a range of other mental and emotional disabilities. One individual commenter indicated that she believed that DOT's proposal is discriminatory toward veterans with disabilities and those with mental health problems, stating: “ESAs like mine are prescribed by [a] healthcare professional in order to ease stress, anxiety, depression and PTSD. I have PTSD and anxiety and I will testify to the benefit of my ESA. It is far better than dangerous and harmful drugs that I would otherwise need to take.”
24

24
Comment from Gabrielle Ruiz,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19304.

Other individual commenters described their disabilities and how they are able to travel and, in some cases, complete everyday functions because of the presence of their emotional support animals. Some of these commenters described how certain individuals with disabilities would no longer be able to fly if the Department passed its proposed definition of a service animal, since many individuals suffering from mental and emotional disabilities have low incomes and can barely afford the cost of their own ticket for air transportation. For example, a joint comment from Paralyzed Veterans for America (PVA) and other advocacy organizations noted that even if a passenger's emotional support animal is able to travel as a pet, these fees can cost upwards of $175 each way, and that “people with disabilities are disproportionately low income and these fees would likely make it very difficult for emotional support animals users to travel[.]”
25

Several individual commenters also described the inconceivability of leaving their emotional support animals behind, as many are either unable to fly without their emotional support animal, or unable to function without their emotional support animal at their destination for long periods of time.

25
Joint Comment from PVA, Access Living of Metropolitan Chicago, American Association of People with Disabilities, Bazelon Center for Mental Health Law, Christopher and Dana Reeve Foundation, the National Council on Independent Living, National Disability Rights Network, and the National Multiple Sclerosis Society,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
For ease of reference we will refer to these organizations collectively as “PVA.”

The Department also received comments from licensed mental health professionals and other health care workers who describe the harmful impact that DOT's rule would have on individuals who suffer from mental and emotional disabilities. These commenters describe their patients, many of whom were prescribed an emotional support animal to help accommodate a serious mental or emotional disability, and how the Department's proposed rule appears to have a disproportionately negative impact on individuals with mental disabilities, in comparison to those with physical disabilities.

Half of disability rights advocacy organizations that commented on the NPRM opposed the Department's proposal to treat emotional support animals as pets. They argue primarily that emotional support animals provide a vital accommodation for many individuals suffering from a wide range of serious mental and emotional disabilities. The Autistic Self Advocacy Network commented that emotional support animals “can assist with sensory regulation, anxiety, and provide focus for social communication” and without the calming effect of an emotional support animal, individuals with autism or other mental disabilities

may be unable to function without the assistance of an ESA for several days or weeks, which may result in their inability to travel.
26

The Disability Rights Education Defense Fund (DREDF) similarly commented that the “use of an emotional support animal may be the only option for effective mitigation of their mental health symptoms” because for some individuals with psychiatric disabilities, “medications are ineffective and few or no other clinical mental health interventions are available or successful for them.”
27

The DREDF further commented that “[f]requently, an emotional support animal is the primary intervention that enables a person with a psychiatric disability to succeed with daily activities—and sometimes to stay alive.”
28

26
Comment from the Autistic Self Advocacy Network,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.

27
Comment from the Disability Rights Education Defense Fund (DREDF),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.

28

Id.

Many of the disability rights advocates that supported DOT's continued recognition of emotional support animals either (1) expressed support for stricter requirements on the transport of emotional support animals, or (2) supported DOT recognition of emotional support animals not as service animals, but as a separate accommodation for individuals with disabilities with its own distinct set of regulations. Commenters that favored stricter requirements for service animal users, such as Disability Rights of Florida and PVA, submitted comments in support of a rule that would allow carriers to require behavior attestations from emotional support animal users, although these organizations rejected measures such as the mandatory containment of emotional support animals in pet carriers.
29

Similarly, the Oklahoma Disability Law Center commented that it would also support a rule that allowed carriers to require behavior attestations, as well as a rule that would allow airlines to require emotional support animal users to produce documentation from a licensed mental health professional following an in-person visit.
30

29
Comments from Disability Rights Florida,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19336,
and PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.

30
Comment from the Oklahoma Disability Law Center,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-19237.

Organizations that supported a DOT ACAA rule treating emotional support animals as a separate accommodation from service animals, such as PVA, commented that the “Department should recognize emotional support animals as an accommodation because emotional support animals are different from service animals in that they are not trained to perform work or tasks to mitigate a disability.”
31

The Humane Society of the United States commented that DOT should adopt a rule that would allow emotional support animals as a separate accommodation known as an “assistance animal,”
32

regulated separately from service animals, similar to the Fair Housing Act rule of the Department of Housing and Urban Development (HUD).
33

Opening Doors, PLLC, another interested stakeholder that commented in support of DOT's treating emotional support animals as a separate accommodation, stated that a “benefit of aligning the definition of `emotional support animal' with `assistance animal' is that [the Fair Housing Act (FHA)] already has a framework in place for evaluating reasonable accommodation requests.”
34

31
Comment from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.

32
The U.S. Department of Housing and Urban Development (HUD), which enforces the Fair Housing Act regulations, recognizes two types of assistance animals: (1) Service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (“support animal”). See Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-2020-01,
https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
(Jan. 28, 2020), and
https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf.

33
Comment from the Humane Society of the United States (Humane Society),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.

34
Comment from Opening Doors, PLLC,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-7322.

In response to the Department's request for comment on the feasibility of turning an emotional support animal into a psychiatric service animal, U.S. Support Animals commented that “requiring a person with an emotional disability to train their emotional support animal to be a psychiatric service dog would be incredibly burdensome on most disabled people and often an impossible standard to meet.”
35

U.S. Support Animals further commented that “emotional support animals should not be trained to perform a specific task” because the benefit of an emotional support animal is the animal's presence; “there is often no task that can even be defined for the animal to perform that would help alleviate the symptoms that the passenger exhibits.”
36

In addition, PVA, using rabbits as an example, commented that it “does not believe that it is possible to convert all emotional support animals into service animals.”
37

35
Comment from U.S. Support Animals,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.

36

Id.

37
Comment from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.

DOT Response

The Department recognizes that whether to require airlines to recognize emotional support animals as service animals is a contentious question, with strongly held views on all sides, and with no perfect solution likely to satisfy all stakeholders. After careful review of the comments in this area, the Department has determined that the most appropriate course is to adopt a definition of service animal that covers only dogs, regardless of breed or type, that are individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. This definition excludes all non-task-trained animals, such as emotional support animals, comfort animals, and service animals in training.

The Department recognizes several benefits to adopting this definition. First, the rule is expected to reduce confusion among airlines, passengers, airports, and other stakeholders by more closely aligning the Department's definition of a service animal with DOJ's definition of a service animal under the ADA, which applies to a broad array of entities, including airports, and which covers only dogs that are individually trained to do work or perform tasks for the benefit of an individual with a disability. The Department has long recognized that under its prior rule, air transportation was the only mode of transportation on which emotional support animals must be accommodated.
38

Indeed, under the ADA, emotional support animals are not required to be accommodated in public spaces such as restaurants, hotels, theaters, or airports. This mismatch between the Department's ACAA regulation and the DOJ's ADA regulation was particularly striking

given that passengers in air transportation are confined with service animals in the narrow space of an aircraft cabin for the duration of the flight.

38
We acknowledge that emotional support animals are permitted as a reasonable accommodation for a person with a disability under the Fair Housing Act. However, we note that the large space available to the animal and the limited number of other individuals in close proximity to the animal differs significantly when compared to the confined space on an aircraft cabin and the many other passengers in close proximity to the animal on aircraft.

Second, after reviewing the comments submitted during both the ANPRM and NPRM, we find persuasive the view of advocates who commented that task-trained service animals are also generally provided enhanced training in how to behave in public, while emotional support animals may not have received this degree of training. We also find persuasive the information provided by airlines and other stakeholders indicating that emotional support animals, or animals being presented to the airline as emotional support animals, are responsible for a significant percentage of the incidents of animal misbehavior onboard aircraft. Finally, it is reasonable to predict that the Department's definition will result in an overall reduction in the number of uncrated animals onboard aircraft, thereby reducing the overall number of animal misbehavior incidents (and the overall number of potential allergic reactions) onboard aircraft.

For many of these same reasons, we have declined to adopt a process to accommodate emotional support animals onboard, not as service animals, but as a separate accommodation for individuals with disabilities with its own distinct set of requirements, such as stricter documentation standards, containment in a pet carrier, etc. In our view, allowing emotional support animals with a stricter set of requirements would perpetuate tiered systems that give rise to confusion and the continued opportunity for abuse and increased safety risk. As such, the final rule allows airlines to treat emotional support animals as pets. We note, however, that airlines may choose to continue to transport emotional support animals without charge at their discretion. Furthermore, even if airlines decide after the effective date of this rule to charge pet fees for emotional support animals, this change would not impact the ability of individuals with psychiatric or mental health disabilities to continue to travel with their psychiatric service animals onboard aircraft without being charged a pet fee. This rule requires airlines to recognize animals that are individually trained to do work or perform tasks for the benefit of individuals with mental health disabilities as service animals, including psychiatric service animals.

We solicited comment on the specific question whether and at what cost emotional support animals could be task-trained, and could therefore qualify as psychiatric service animals. We received few comments on this issue. PVA, for example, commented that an emotional support rabbit could not be individually trained to perform a task or function, but does provide emotional support for the individual by its presence.
39

U.S. Support Animals stated that “requiring a person with an emotional disability to train their emotional support animal to be a psychiatric service dog would be incredibly burdensome on most disabled people and often an impossible standard to meet.”
40

While we understand PVA's concern that there are currently emotional support animals such as rabbits that cannot be trained, the Department's final rule recognizes only dogs as service animals, and it is our understanding that the vast majority of emotional support animals are dogs, and dogs can be task-trained to perform many different tasks and functions. We also note that the rule does not require service animal users to incur the cost of training by third party schools or organizations; service animal users are free to train their own dogs to perform a task or function for them.

39
Comment from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.

40
Comment from, U.S. Support Animals at
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.

B. Psychiatric Service Animals

The NPRM

In the NPRM, the Department proposed to change its service animal requirements to ensure that psychiatric service animals would be treated the same as other service animals. Psychiatric service animals are individually trained to do work or perform tasks for an individual with a psychiatric, intellectual, or other mental disability. In the NPRM, the Department proposed to remove requirements for psychiatric service animal users that allowed airlines (1) to require psychiatric service animal users to provide a letter from a licensed mental health professional of the passenger's need for the animal,
41

(2) to require 48 hours' advance notice of a passenger's intent to travel with a psychiatric service animal to give airlines sufficient time to assess the passenger's documentation,
42

and (3) to require check in one hour before the check-in time for other passengers. The Department's proposed definition of a service animal sought to ensure that individuals with mental and psychiatric disabilities who rely on psychiatric service animals would be treated the same as individuals with physical disabilities who rely on task-trained service animals. The Department's proposal was based on the fact that there is no valid basis for allowing airlines to treat certain tasked-trained service animals differently from other task-trained animals.

41
14 CFR 382.117(e).

42
14 CFR 382.27(c)(8).

In the NPRM, the Department indicated that it was aware of concerns about passengers who falsely claim to have a mental health condition that may require the use of a service animal. We recognized that it was this specific concern that originally led the Department to adopt heightened documentation and check-in requirements for users of both emotional support animals and psychiatric service animals. We noted in the NPRM, however, that “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.”
43

In other words, the concerns that led the Department to adopt heightened documentation and check-in requirements for users of psychiatric service animals is not unique to psychiatric service animals. For these reasons, the proposed final rule did not draw distinctions between psychiatric service animals and other types of service animals.

43
Traveling by Air with Service Animals, Notice of Proposed Rulemaking, 85 FR 6448 (Feb. 5, 2020).

In the NPRM, we indicated that if the rule were adopted as proposed, the Department would monitor the experience of airlines in accommodating the use of psychiatric service animals, particularly given the concern that unscrupulous passengers may attempt to pass off their pets as psychiatric service animals. We indicated that 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.”
44

44
Traveling by Air with Service Animals, Notice of Proposed Rulemaking, 85 FR 6448 (Feb. 5, 2020).

Comments Received

Most individuals, disability rights organizations, airlines, and other stakeholders who commented on these topics supported the elimination of regulatory distinctions between psychiatric service animals and other service animals. Commenters generally observed that the Department's prior

approach unfairly discriminated against individuals with particular types of disabilities. Some commenters also noted that the proposed rule harmonizes DOT's approach with that of other Federal agencies in this respect. In contrast, four airlines (Air Canada, Allegiant Airlines, Asiana Airlines, and Spirit Airlines) and one advocacy organization
45

(the Michigan Developmental Disabilities Council) recommended that the Department retain heightened documentation requirements for psychiatric service animal users because of concerns that individuals who wish to travel with their pets in the cabin for free may start misrepresenting their pets as psychiatric service animals.

45

See
Comments from Air Canada Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328;
Allegiant Air,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19164;
Asiana Airlines
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19340, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19340;
Spirit Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221;
and the Michigan Developmental Disabilities Council,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19191.

With respect to monitoring potential falsification of pets as psychiatric service animals, we received a range of responses. A4A expressed concern that “the fraud will migrate to the PSA category,” and urged the Department to explain how it would collect data to monitor the issue.
46

All Nippon Airways (ANA) expressed a similar view.
47

American Kennel Club urged the Department to monitor fraud with respect to psychiatric service animals.
48

46
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

47
Comment from All Nippon Airways (ANA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19025.

48
Comment from American Kennel Club,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19163.

PVA expressed concerns about the Department's stated intent to monitor potential fraud by individuals who attempt to pass off their pets as psychiatric service animals. PVA indicated that “the Department provides no information about why suspicion should be cast on psychiatric service animal users versus animals that assist passengers with other non-apparent disabilities.”
49

PVA also noted that without a clear sense of how that monitoring would take place, the public would not know whether any conclusions are based on accurate data.

49
Comment from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.

DOT Response

The Department agrees with commenters who expressed the view that it is inappropriate to allow airlines to impose greater burdens on psychiatric service animal users than on individuals who utilize service animals that are trained to do work or perform tasks for the benefit of individuals with physical or other types of disabilities. Accordingly, the Department will no longer draw a distinction between psychiatric service animal users when traveling in air transportation and other service animal users. This means that psychiatric service animals will be subject to the same regulations as other service animals. Most notably, psychiatric service animal users will no longer be required to provide a letter from a licensed mental health professional detailing the passenger's need for the animal, nor will they be required to check in one hour before the check-in time for other passengers.

The Department will, however, monitor whether unscrupulous individuals are attempting to pass off their pets as service animals for non-apparent disabilities, including (but not limited to) psychiatric disabilities. This process is not intended to single out or unduly burden psychiatric service animal users. Indeed, in the NPRM, the Department noted the possibility that individuals could also attempt to pass off their pets as service animals for non-apparent physical disabilities, such as diabetes. The Office of Aviation Consumer Protection welcomes the input and assistance of airlines, disability advocacy organizations, and other stakeholders on how best to conduct the monitoring to ensure accurate data.

C. Species

The NPRM

In the NPRM, the Department proposed to limit the species of animals that airlines would be required to recognize as service animals to dogs. Under the Department's proposal, while 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, they would only be required under Federal law to recognize dogs as service animals. The Department's proposal considered the fact that dogs are the most common animal species used to assist individuals with their disabilities, both on and off aircraft, and that dogs 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 decided against adopting a proposal that would include other species as service animals, including miniature horses and capuchin monkeys. However, the Department requested specific comment on whether it should recognize those animals under its definition of a service animal.

Comments Received

The Department received approximately 1,100 comments on this topic from individuals with disabilities. Commenters generally support dogs as service animals, which is unsurprising as dogs have been, and continue to be, the most common species of service animal relied upon by individuals with disabilities.
50

The AAAE commented that dogs represent approximately 90 percent or more of animals traveling on aircraft, and supported recognizing dogs exclusively as service animals because they are easily trained, and can hold their elimination function for extended periods of time.
51

Assistance Dogs International, North America (ADI-NA) noted that dogs have both the temperament and the capability to assist individuals with disabilities by mitigating their disabilities through the performance of tasks.
52

American Airlines also noted that limiting the species of service animals to dogs provides greater predictability and access for most people with disabilities.
53

The International Air Transport Association (IATA) and individual foreign airline commenters also support including dogs exclusively as service animals. These commenters argued that requiring all carriers, both domestic and foreign, to recognize only dogs, would bring the regulations for the domestic carriage of service animals in alignment with those for international carriage, since foreign carriers have only been required under DOT's ACAA regulation to transport dogs as service

animals.
54

Air Canada also commented that no country other than the United States has required the acceptance of service animals other than dogs.
55

50
In response to the ANPRM, Assistance Dogs International (ADI) noted specifically that dogs have been assisting individuals with disabilities for over 100 years. Comment from Assistance Dogs International,
https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409.

51
Comment from AAAE,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19196.

52
Comment from Assistance Dogs International, North America (ADI-NA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915.

53
Comment from American Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.

54
Comment from International Air Transport Association (IATA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.

55
Comment from Air Canada,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328.

More than 400 individual commenters, however, supported also including miniature horses in the Department's definition of a service animal. These commenters noted that some individuals with disabilities may not be able to use dogs to accommodate their disability because of allergies or religious and/or cultural reasons. Furthermore, these commenters note that excluding miniature horses runs counter to DOT's mission of promoting consistency among Federal regulations, as DOJ requires regulated entities, in certain circumstances, to recognize miniature horses as a reasonable accommodation under the ADA.
56

The DREDF commented that DOT's proposal to “eliminate access for miniature horses is particularly concerning because these animals have access to public accommodations as a reasonable accommodation under the Department of Justice's Americans with Disabilities Act.”
57

Similarly, the Autistic Self Advocacy Network commented that DOT's proposal to limit service animals to dogs is arbitrary and inconsistent with DOT's stated goal of harmonizing Federal regulatory requirements, and that DOT's proposal to exclude miniature horses is more restrictive than DOJ's regulations implementing Title III of the ADA, which allow people with disabilities to use miniature horses on an individualized basis.
58

Finally, The Disability Coalition (New Mexico) commented that by diverging from the ADA, DOT would be promoting confusion rather than reducing it.
59

56
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. DOJ sets forth four assessment factors to assist entities in determining whether reasonable modifications can be made to allow a miniature horse into a specific facility—(1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner's control; (3) whether the facility can accommodate the miniature horse's type, size, and weight; and (4) whether the miniature horse's presence will compromise legitimate safety requirements necessary for safe operation of the facility. See 28 CFR 35.136(i); 28 CFR 36.302(c)(9).

57
Comment from DREDF,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.

58
Comment from Autistic Self Advocacy Network,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.

59
Comment from The Disability Coalition (New Mexico),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19219.

Disability rights advocates that commented in support of including miniature horses in DOT's ACAA definition of a service animal commented that space on the aircraft should not be a concern when considering whether a miniature horse can be accommodated in an aircraft cabin. The commenters argued that the Department's ACAA rule has always required airlines to allow miniature horses to accompany an individual with a disability on aircraft, subject to aircraft size limitations and FAA safety regulations. Psychiatric Service Dog Partners commented that many miniature horses are comparable in size to a St. Bernard, and that many can fold their legs and lie down more easily than their larger equine counterparts.
60

Similarly, Starfleet Service Dogs commented that the height of a miniature service horse, from its withers, should generally be 34 inches or shorter, and that in most cases a Great Dane will be larger and take up more room than a miniature horse.
61

60
Comment from Psychiatric Service Dog Partners,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.

61
Comment from Starfleet Service Dogs,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18551.

Airlines and other industry stakeholders who oppose the inclusion of miniature horses argue that miniature horses are too big to be accommodated in the cabin of an aircraft, and that potential safety concerns could arise from transporting miniature horses in the aircraft cabin. A4A asserted that a miniature horse's size, weight, and inability to curl up in a passenger's allotted foot space poses a substantial risk to flight safety, including the safety of passengers and crew, and that the presence of miniature horses in an aircraft cabin would pose a serious risk of injury to passengers and crew during moderate to severe turbulence or an emergency situation due to these animals' weight and size.
62

American Airlines likewise commented that miniature horses are classified as livestock, have hooves, are not as flexible as dogs, are unable to manage their elimination functions the way a trained service dog can, and that a miniature horse's hooves could puncture an aircraft evacuation slide in the event of an evacuation, potentially disabling it.
63

62
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

63
Comment from American Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.

A smaller number of disability advocacy organizations support the inclusion of cats and other animal species as service animals. Ethiopian Airlines commented that only dogs and cats should be permitted as service and emotional support animals.
64

Similarly, the Transport Workers Union of America recognizes that while dogs are the most common service animals, other types of animals may also be trained to provide needed assistance to individuals with disabilities.
65

The Autistic Self Advocacy Network commented that cats can be trained to perform tasks, such as detecting seizures.
66

Conversely, A4A commented that cats have neither the temperament nor ability to be trained to do work or tasks to assist an individual with a disability or to behave appropriately in an aircraft cabin.
67

64
Comment from Ethiopian Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-10984.

65
Comment from Transport Workers Union,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19183.

66
Comment from the Autistic Self Advocacy Network,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.

67
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

The Department also specifically sought comment on whether it should recognize capuchin monkeys in its revised service animal definition. Several advocacy organization commenters argued that capuchin monkeys deserve special treatment under DOT's ACAA rule and that DOT should require airlines to transport these animals, so long as they remain in a carrier, because of the invaluable accommodations these animals provide to individuals with disabilities. Helping Hands: Monkey Helpers for the Disabled commented that its capuchin monkeys are transported in pet carriers, often undetected, and wear diapers so that the possibility of bodily fluids escaping the carrier are de minimis, and the possibility of disease transmission is prevented.
68

68
Comment from Helping Hands: Monkey Helpers for the Disabled,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18160.

Airlines and other organizations such as AVMA continue to believe that other animal species, and capuchin monkeys in particular, should not be included in DOT's definition of a service animal because of animal welfare concerns, the

potential for serious injury, and zoonotic risks.
69

ADI-NA commented that capuchin monkeys are not domesticated animals and subjecting these animals to stress in the air travel environment increases the chance of their behaving aggressively or at least disruptively during air travel.
70

Finally, A4A commented that capuchin monkeys would likely accompany a qualified trainer on an aircraft, for the purposes of transporting the animal for delivery to an individual with a disability, instead of accompanying an individual with a disability, which ultimately brings the transport of capuchin monkeys beyond the scope of DOT's existing ACAA rule.
71

69
Comment from AVMA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19283.

70
Comment from ADI-NA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915.

71
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

DOT Response

The Department has considered the comments received and has decided to adopt, as proposed, a rule limiting the species of service animals to dogs only. This decision considers that dogs are the most common animal species used by individuals to mitigate disabilities both on and off aircraft. A rule requiring airlines to accept trained service dogs will permit the vast majority of service animal users to travel with their service animals while also minimizing confusion and safety concerns for airlines, airports, and individuals with disabilities. Overall, dogs have the temperament and ability to be trained to do work and perform tasks while behaving appropriately in a public setting, and while being surrounded by a large group of people in the close confines of an aircraft cabin. Although airlines may choose to transport other species of animals, such as cats, miniature horses, and capuchin monkeys, that assist individuals with disabilities in the cabin for free pursuant to an established airline policy, they would only be required under Federal law to recognize trained dogs as service animals.

Although some service animal users would prefer to, and in fact do, use miniature horses instead of dogs as service animals, the number of individuals that use trained miniatures horses as service animals is quite small compared to that of service animal dog users.
72

The number of miniature horses transported in the cabin by airlines annually is also exceptionally small, and airlines are free to accommodate the transport of miniature horses for passengers if they choose to do so. There are also practical concerns related to the carriage of miniature horses that may make it difficult for airlines to accommodate these animals on small aircraft safely. While one commenter noted that miniature horses are more flexible than large horses, as a practical matter they are far less flexible than dogs and are unable to curl up at the feet of the handler and fit into the space directly in front of the service animal user's seat, like most dogs. In certain instances, miniature horses may need to occupy the space in front of more than one seat to be accommodated on an aircraft, and in some instances, they may need to occupy the space in front of an entire row of seats to be accommodated in the aircraft.

72
AAAE commented that dogs represent approximately 90 percent or more of animals traveling on aircraft and according to Psychiatric Service Dog Partners, miniature horses are substantially less common.

Miniature horses are not at all common as pets, nor is there reason to think they would become so. Generally, a person is unable to and does not acquire a miniature horse without deliberate planning. Further, if someone is to travel with a large animal with needs like that of a mini-horse, the training and planning that travel requires carries with it greater assurances of handler responsibility than do the tag-along possibilities of many pets. There is no good reason to believe that allowing access with service miniature horses would translate to any increase in the public trying to bring an assortment of pets with them as service animals.

See comment from Psychiatric Service Dog Partners,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.

The Department was also unpersuaded that airlines should be required to carry capuchin monkeys. As the Department stated in its proposal, although trained capuchin monkeys can assist persons with limited mobility with their daily tasks, capuchin monkeys may present a safety risk to other passengers as they have the potential to transmit diseases and may exhibit “unpredictable aggressive behavior.” Further, capuchin monkeys fall outside of the regulatory framework because qualified trainers, rather than individuals with disabilities, typically travel by air to deliver the monkeys to an individual with a disability, and would not be accompanied by the service animal user.

D. Breed or Type of Dog

The NPRM

The Department proposed to continue to prohibit carriers from refusing to transport a trained dog as a service animal based solely on breed or generalized physical type. Under the Department's proposal, airlines would continue to assess each animal individually to determine whether a specific animal poses a direct threat to the health or safety of others, instead of determining whether to transport a service animal based on stereotypes or generalized assumptions about how a breed or type of dog may or may not behave. The Department also specifically sought comment on whether the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bull-type dogs, or any other particular breed or type of dog, from traveling on aircraft under the ACAA, even when those dogs have been individually trained to perform as service animals to assist a passenger with a disability.

Comments Received

The Department received nearly 700 comments on whether airlines should be permitted to restrict service dogs based on breed or type. Most commenters supported the Department's proposal, opposing a departmental regulation that would categorically exclude any specific dog breed or type. These commenters noted that individuals with disabilities use a wide range of dog breeds as service animals to accommodate a variety of disabilities, and airlines should not be permitted to refuse transportation to certain breeds or types of dogs as long as the dogs do not pose a direct threat and are individually trained to do work or perform tasks for the benefit of an individual with a disability. Most, if not all, disability advocates supported the Department's proposal to prohibit dog breed or type restrictions, arguing that the determination of whether a particular service animal poses a direct threat should be based on an individualized, observed, and objective assessment by the airline, and should not be based on generalized assumptions or stereotypes about the dog's type or breed. Disability advocates also expressed support for DOT's proposal because it is consistent with DOJ's ADA regulations, with respect to prohibiting regulated entities from limiting a service animal to a specific breed. Various commenters also cited studies that have concluded that environmental factors, rather than a dog's breed, determine a dog's propensity to harm a person or animal.

Regarding a specific breed, the Department received the most feedback in the comments about pit bulls. According to Wisdom Panel, a pit bull DNA testing organization, the term “pit bull” does not refer to a single recognized breed of dog, but rather to a genetically diverse group of breeds that are associated by similar physical

traits.
73

Wisdom Panel explains that pit bull-type dogs have historically been bred by combining guard-type breeds with terriers for certain desired characteristics, and, as such, they may retain many genetic similarities to their original breeds and other closely related breeds.
74

According to the Humane Society, 46 percent of dogs in the United States were of mixed breed as of 2012.
75

The American Temperament Test Society found that more than 85 percent of pit bull-type dogs have tested with above average temperaments (85.6 percent of Golden Retrievers and 85 percent of German Shepherds tested the same).
76

According to the Humane Society, an AVMA study found that physical breed standards/visual identification as a way of identifying a dog's breed, which is the method used by airlines to identify dog breed, is seriously flawed.
77

Furthermore, the Humane Society states that an American Journal of Sociological Research study found that animal professionals, veterinarians, and animal control officers were unable to identify correctly dog breeds visually when compared with DNA evidence, and that dogs with blocky heads and thick necks were commonly misidentified as pit bulls because there is no clear definition or set of characteristics that define a “pit bull” type.
78

Commenters also cited a growing body of evidence suggesting that pit bulls do not have a stronger bite strength than similar-sized dogs. According to a study cited by the Humane Society, which looked at 150 scientific papers from 1969 to 2009, and two legal cases, many claims about the jaw strength of pit bull-type dogs are based on misinterpretations with no reliable data or sources.
79

Commenters also noted that numerous municipalities across the country are rescinding their pit bull bans, realizing that the bans are misguided. Furthermore, commenters argued that if DOT ultimately requires that all service animals be trained, there would be no need to ban pit bulls for fear of their behavior.

73

https://help.wisdompanel.com/s/article/Does-Wisdom-Panel-test-for-Pit-bull.

74

Id.

75
Comment from the Humane Society of the United States and the Humane Society Legislative Fund,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.

76

https://atts.org/breed-statistics/statistics-page1/.

77
Comment from the Humane Society of the United States and the Humane Society Legislative Fund,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.

78
Comment from the Humane Society of the United States and the Humane Society Legislative Fund,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.

79

Id.

The Department also received many comments in support of allowing airlines to ban specific breeds of service animals. Airlines and airline organizations expressed concerns that not allowing airlines to restrict service animals based on breed could result in an unsafe flying environment and argued that airlines should have the discretion to choose whether to transport dogs that are capable of inflicting serious harm. A4A argued that not allowing airlines to restrict transport of service animals based on breed or generalized type of dog would increase the risk of animal misbehavior, which could result in serious injury to other passengers, crew, and service animals.
80

They argued that certain breeds of dog, which account for a small minority of the total dog population, are not suited to function as trained service animals. They also noted that certain breeds raise legitimate fears from other passengers and animals, including other service dogs and handlers. American Airlines asserted that airplanes are a unique environment—“they are crowded spaces with no opportunity for egress—which could be triggering, and triggering an animal with large and powerful jaws and neck muscles that can be ferocious if `provoked,' is a direct threat to the health and safety of our crews, passengers, and other service animals.”
81

American Airlines further argued that there is precedent for adopting a more stringent approach in the airline environment because air travel differs from other places of public accommodation. Some airlines argued that individualized assessments are not enough.
82

For example, Spirit Airline and Air Canada argued that some animals are more prone to aggression and may not exhibit such behavior until they are onboard an aircraft.
83

Thus, even with the ability to refuse transportation to dogs that exhibit aggressive behavior, it may, in some instances, be too late by the time an animal that eventually exhibits aggressive behavior has boarded an aircraft.

80
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

81
Comment from American Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.

82

Id.

83

See
Comments from Air Canada Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328,
and Spirit Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221.

Foreign airlines and commenters raised concerns about jurisdictions outside of the United States that impose entry restrictions on certain dog breeds. Deutsche Lufthansa Airlines (Lufthansa) urged DOT to consider allowing airlines to restrict service animals of specific breeds because, with respect to international travel from the United States, there are other additional foreign regulations to comply with concerning the transport of animals.
84

Specifically, Lufthansa noted that France and Germany, for example, have implemented strict entry bans for specific breeds of dogs, such as Staffordshire Bull Terriers, American Pitbull Terriers, Mastiff type dogs, and Tosa Inu (France); and Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terrier (Germany), and that requiring airlines to transport all breeds may present a conflict of laws that would cause severe disruption, not only to the airline but also to passengers.
85

84
Comment from Deutsche Lufthansa Airlines (Lufthansa),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19351.

85
Comment from Lufthansa Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19351.

Many individual commenters also opposed recognizing pit bulls as service animals. According to
dogbites.org
, which obtains data on canine-related injuries and fatalities from news reports, photographs, police reports, coroner reports, and court filings, canines killed 512 individuals in the United States between 2005 and 2019.
86

Of the 512 individuals killed by dogs,
dogbites.org
reports that pit bulls were involved in 346 of these deaths (66 percent of the deaths) despite only comprising about 7 percent of the total U.S. dog population.
87

Similarly, media reports and news accounts tracked by ANIMALS 24-7 since 1982 indicate that approximately one pit bull in 100 will kill or disfigure a human, or kill another pet or livestock animal, each year.
88

According to ANIMALS 24-7, two recent studies published in prominent scientific journals point toward anatomical differences in dog brain structure among various breeds, which in dogs bred for centuries to fight, appear to be linked to reactivity and aggression.
89

86
Comment from
DogsBite.org
,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18935.

87

Id.

88
Comment from ANIMALS 24-7,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-12212. https://beta.regulations.gov/comment/DOT-OST-2018-0068-12212.

89

Id.

DOT Response

The Department is declining in this final rule to adopt a categorical exclusion for particular breeds or types of dogs as service animals and will continue at this time to prohibit airlines from refusing to accommodate a dog that is individually trained to do work or perform tasks for the benefit of a qualified person with a disability and that otherwise satisfies the requirements of a service animal based solely on the dog's breed or generalized type. However, the final rule specifies that airlines are permitted to make an individualized assessment based on reasonable judgement and objective evidence to determine if a service animal poses a direct threat to the health or safety of others. The Department believes that this standard, which is based on objective evidence of the dog's behavior, rather than generalized assumptions about how a breed or type of dog would be expected to behave, provides airlines with the best means of determining whether the particular animal poses a direct threat to the health and safety of others.

Furthermore, prohibiting airlines from banning particular breeds of dogs, including pit bull-type dogs, on aircraft is consistent with DOJ guidance under the ADA. We note that DOJ 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.
90

Commenters suggesting that airlines are not able accurately to distinguish a pit bull-type dog from a non-pit bull-type dog that may have similar features unless DNA testing has been conducted further supports the Department's position that categorically excluding particular breeds is not appropriate.

90

See
Frequently Asked Questions about Service Animals and the ADA, Questions 22-24, available at
https://www.ada.gov/regs2010/service_animal_qa.html 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.

The Department also recognizes the concerns raised by IATA and foreign airlines that certain foreign jurisdictions may have laws prohibiting passengers from bringing certain breeds of dogs into these jurisdictions. To address this concern, the Department has included language, in section 382.79(a)(3), that makes clear that an airline may deny transport to a service animal if the animal's carriage would violate applicable health or safety requirements of a foreign government.

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, particularly dogs that have been bred to fight, which may be linked to a heightened degree of reactivity and aggression. The Department will continue to monitor published studies or accounts of dog behavior by breed or type and reports of incidents involving service dogs, and if there are compelling studies or data indicating that there are particular dog types or breeds that are established to pose a heightened threat to the health and safety of people in close proximity, we will revisit this issue. At this time, however, the Department finds that the airlines' ability 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 permitting airlines to ban an entire breed or type of dog.

E. Considerations on Alignment With DOJ Definition

The NPRM

In the NPRM, the Department proposed 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 definition of a service animal, which is more closely aligned with DOJ's definition of a service animal under the ADA, is intended to address concerns raised by airlines, airports, and disability advocates about challenges associated with inconsistencies between the definition of a service animal in the airport environment and on aircraft. DOT's existing service animal regulations require airlines to recognize emotional support animals, and all species of service animals, with limited exceptions. Meanwhile, DOJ's ADA regulations, which apply to public and commercial airports and airport facilities operated by businesses like restaurants and stores, limit service animals to dogs, and do not recognize emotional support animals as service animals.
91

The significant inconsistencies between DOT's former ACAA definition of a service animal, and DOJ's ADA definition of a service animal have presented practical challenges for airlines and airports and the traveling public. The Department, through its NPRM proposal, sought to promote greater consistency among Federal regulatory requirements, to decrease confusion for individuals traveling with service animals, to recognize the distinct characteristics of an aircraft cabin as compared to other indoor environments, and to streamline the treatment of service animals in the context of air travel.

91
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).

Comments Received

The Department received more than 7,200 comments on the proposed definition of a service animal, with a nearly even split between individual commenters who supported or opposed the Department's proposed definition.

Most disability rights advocates and all of the airlines and airline organizations that commented on the NPRM expressed support for the Department's proposed definition of a service animal. The American Council of the Blind supported the proposal, stating that limiting service animals to trained animals will make the requirements for airlines and their

employees less complicated and more succinct;
92

while other groups supported the definition because it is more consistent with DOJ's ADA definition of a service animal. These commenters argued that a more consistent definition would benefit travelers with disabilities.

92
Comment from American Council of the Blind,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18365.

The majority of airlines and airline organizations likewise supported the Department's proposal, in the interest of greater regulatory consistency. IATA
93

commented that a service animal definition that is more consistent between the ACAA and the ADA will provide greater clarity for airlines, airports, individuals with disabilities, and the traveling public. Likewise, A4A commented that DOT's proposal to more closely align its definition with DOJ's rules implementing the ADA would not only decrease confusion for individuals with a disability, airline personnel, and airports, but would also establish a clear distinction between a legitimate service animal that is trained to do work or perform a task for the benefit of a person with a disability and a pet.
94

93
Comment from International Air Transport Association,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.

94
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

Several disability advocates opposed the Department's proposed definition of a service animal. U.S. Support Animals urged the Department to focus on the language of the ACAA, which prohibits airlines from discriminating against individuals with disabilities, and discouraged DOT from seeking to align its definition of a service animal with DOJ's ADA rule, when the ADA was enacted four years after the ACAA
95

U.S. Support Animals further commented that if Congress intended for the ACAA to be “subordinate” to the ADA, it could have easily repealed the ACAA and included its provision in the ADA.
96

Both U.S. Support Animals and the Autistic Self Advocacy Network commented that it would be improper for the Department to align its ACAA definition of a service animal with DOJ's ADA definition because unlike the ADA, which is broadly applicable to a number of contexts, the ACAA applies only to air transportation, and its regulations should pertain to the specific circumstances of air travel.
97

These commenters believe that it would be more appropriate for DOT to align its regulations with HUD, which enforces FHA regulations,
98

because discrimination in housing is more analogous to air travel as travelers who depend on service animals for assistance will likely be at their destination for longer periods of time and the loss of their service animal would be more acute. Specifically, the Autistic Self Advocacy Network notes that while an individual with a disability may be impacted somewhat by being separated from their service animal for a few hours while at establishments covered by the ADA,
e.g.,
stores, restaurants, movie theaters, etc., the impact of being separated from a service animal is more significant in the housing and transportation context as the separation would be for a much longer duration.

95
Comment from U.S. Support Animals,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.

96

Id.

97
Comments from U.S. Support Animals,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248
and Autism Self Advocacy Network,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.

98
HUD, which enforces Fair Housing Act regulations, recognizes two types of assistance animals: (1) Service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (“support animal”). See Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-2020-01 at
https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
(Jan. 28, 2020), and
https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf.

DOT Response

The Department has considered the comments it received and Congress's mandate in the FAA Act that the Department consider whether it should align its ACAA definition of a service animal with the service animal definition established by the DOJ in its rule implementing the ADA. In this final rule, the Department is revising its definition of a service animal under the ACAA as a dog, regardless of breed or type, 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. Species of animals other than dogs, emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals under this definition. This revised definition does not preclude airlines from allowing passengers to travel with animals that are not included within the revised service animal definition; however, airlines are not required by Federal law to treat those animals as service animals. This revised definition is more in line with DOJ's definition of a service animal and takes into consideration, as commenters raised, the challenges associated with the inconsistencies between the definition of a service animal in the airport environment and on aircraft that stakeholders have identified.
99

99
Although the Department, in this final rule, has closely aligned its service animal definition under the ACAA with DOJ's service animal definition under the ADA, the substantive requirements in this rule differ from DOJ's requirements for service animals under the ADA in numerous respects. For instance, in this final rule, the Department allows carriers to require passengers traveling with service animals to submit a DOT health and behavior attestation form and for long flights, a DOT service animal relief attestation form. Conversely, DOJ regulations prohibit covered entities from requiring documentation from a service animal user, such as proof that the animal has been certified, trained, or licensed as a service animal.
See
28 CFR 35.136(f), 28 CFR 36.302(c)(6).

2. Definition of Service Animal Handler

The NPRM

The Department proposed 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 tasks that are directly related to the individual's disability, or a safety assistant
100

who accompanies an individual with a disability traveling with a service animal(s). The Department proposed that the service animal handler would be 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's proposed definition of a service animal handler differed 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.
101

The Department proposed to limit the definition of service animal handlers to the individual with a disability who is being helped by the animal and a safety assistant, meaning another individual who is required to travel with the person with a disability to assist that person in an evacuation from the aircraft, in order to make clear that service animal trainers and other

passengers traveling with an individual with a disability on aircraft who are not safety assistants would not be considered service animal handlers under the ACAA rules. The Department sought comment generally on its decision to define the term “service animal handler” and sought comments on its proposed definition. The Department also sought comment on what impact, if any, its exclusion of third parties as service animal handlers might have on individuals with disabilities who are traveling on aircraft with a service animal.

100
The term “safety assistant” is used in the Department's disability regulation. See 14 CFR 382.29(b).

101

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.

Comments Received

Disability advocates, such as PVA and DREDF, opposed DOT's proposed definition of a service animal handler, arguing that the Department should make its definition of a service animal handler consistent with DOJ's ADA guidance on service animal handlers, which includes third parties.
102

Disability Rights Florida also commented that it “urges DOT to use the DOJ ADA formulation to allow a third party, such as a parent, caretaker or aide, to also be a service animal handler for a young child or other individuals with a disability.”
103

102
Comments from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429
, and DREDF,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.

103
Comment from Disability Rights Florida,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19336.

Some disability advocates also opposed DOT's proposal to define safety assistants as service animal handlers, arguing that safety assistants are not service animal handlers, as their purpose is to ensure safe disembarkation from the aircraft, not to handle a passenger's service animal. Open Doors Organization commented that a “safety assistant's sole purpose is to assist a traveler with a disability in the event of an emergency, not to provide personal care assistance or any other non-safety-related help to a traveler.”
104

Similarly, Psychiatric Service Dog Partners commented that a “member of the disabled service animal user's party should not need to meet the `safety assistant' description in 14 CFR 382.29 in order to provide handling assistance.”
105

Conversely, with respect to airlines, the Association of Asian Pacific Airlines (AAPA) s and A4A both expressed support for DOT's proposal to include safety assistant in its definition of a service animal handler.
106

104
Comment from Open Doors Organization,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.

105
Comment from Psychiatric Service Dog Partners,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.

106

See
Comment from Association of Asian Pacific Airlines (AAPA),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19323,
“[w]e also support DOT's proposal to limit the definition of a service animal handler to a qualified individual with a disability or a safety assistant travelling with them, who will be responsible for keeping the animal under control at all times, and caring for and supervising the service animal, including toileting and feeding.” Also, see comment from A4A at Service animal handler,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240,
”[w]e support DOT's proposed definition of “service animal handler” as “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).”

DOT Response

The Department has decided to define the term “service animal handler” in its disability regulation differently from proposed.
107

The Department is persuaded by the comments supporting the recognition of third-party service animal handlers consistent with DOJ's ADA guidance and is revising its proposed definition of a service animal handler in this final rule to more closely align with DOJ's treatment of a service animal handler. The revised definition includes third parties in the DOT definition of a service animal handler. It also excludes safety assistants because, as commenters noted, safety assistants do not necessarily serve the same role as service animal handlers. The revised definition also provides for the situation where a child with a disability, who may not be able to control a service animal physically, is accompanied by a parent or other third party who physically handles and controls the service animal on the child's behalf.

107
The definition of service animal handler in 14 CFR part 382 is solely for the purpose of determining the individuals who would be responsible for the care and control of an animal that does work or performs tasks that are directly related to an individual's disability. It does not mean that these individuals would be considered service animal handlers under 14 CFR part 121. Specifically, they are not considered “persons necessary for the safe handling of animals” in section 14 CFR 121.583(a)(4)(ii), which provides that a person necessary for the safe handling of animals is excluded from the passenger-carrying requirements of part 121.
See
14 CFR 121.583(a)(4)(ii).

3. Service Animal Documentation

In the NPRM, the Department proposed to allow airlines to require individuals traveling with a service animal to submit three DOT-created forms: (1) A certification of a service animal's good behavior and training; (2) a certification of good health; and (3) for flight segments of eight hours or more, a certification that the animal would not need to relieve itself or could relieve itself in a way that does not create a health or sanitation risk. The Department proposed that each form include a warning to service animal users that it would be a Federal crime, in violation of 18 U.S.C. 1001, to make false statements or representations on these forms to secure disability accommodations. The Department also proposed to allow airlines to require passengers to submit completed versions of these forms as a condition of travel. The Department sought comment on its proposal to standardize the service animal documentation process by allowing airlines to require DOT forms, and its proposal that the DOT forms be the only documentation that an airline could require from a passenger traveling with a service animal. The Department recognized that the DOJ does not allow these types of forms for public accommodation under the ADA. The Department reasoned, however, that air transportation is unique because it involves transporting a large number of individuals in a confined space thousands of feet in the air with no means of egress; accordingly, it stated that it would be appropriate for airlines to require these forms to ensure that the animal does not pose a health or safety risk to other passengers or service animals before boarding the cabin of the aircraft.

DOT received nearly 500 comments on its proposal to allow airlines to require service animal handlers to submit the various forms to airlines. We will discuss each form and its elements in greater detail below.

A. Behavior and Training Form

The NPRM

First, the Department proposed to allow airlines to require a U.S. Department of Transportation Air Transportation Service Animal Behavior and Training Attestation Form (Behavior and Training Form), to be completed by the service animal handler, which often is the same person as the individual with a disability who receives assistance from the service animal. The proposed Behavior and Training Form would have required the handler to certify that: (1) The animal has been individually trained to do work or perform tasks for the benefit of the passenger with a disability; (2) the animal has been trained to behave properly in public; (3) the handler is aware that the service animal must be under the handler's control at all times; (4) the handler is aware that if the animal misbehaves in a way that

indicates it has not been properly trained, then the airline may treat the animal as a pet; and (5) the handler is aware that the handler may be liable for damage caused by the service animal's misbehavior, so long as the airline charges passengers without disabilities for similar kinds of damage.

The Department proposed to allow airlines to require this form as a condition of transport for individuals traveling with service animals because the form would allow airlines to receive direct assurances from service animal users of their animal's good behavior and training. The form would have also served as an instrument to educate passengers traveling with service animals on how service animals in air transportation are expected to behave, and that the airline could charge passengers for damage caused by a service animal, so long as the airline had a policy of charging other passengers for similar kinds of damage. The Department also reasoned that the form itself would have the potential to 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 and thus risk the potential for criminal prosecution.

The Department sought comment on its proposal to allow airlines to require the DOT Behavior and Training Form, the general content of the form, and whether the form would help ensure that service animals are properly trained. DOT also sought comment on whether the form would serve as an effective fraud deterrent for passengers who might try to misrepresent their pets as service animals, and the impact this form would potentially impose on those individuals traveling with traditional service animals who were not previously required to provide documentation to airlines.
108

108
The Department was aware of airline policies requiring or recommending that passengers with disabilities traveling with service animals carry vaccination, training, or behavior documentation with them. However, these airline policies often were applied only to ESAs or PSAs. In 2019, the Department's Office of Aviation Consumer Protections stated that “[w]hile section 382.117 clearly sets forth the type of medical documentation that airlines may request from ESA and PSA users to reduce likelihood of abuse by passengers wishing to travel with their pets, the regulation does not explicitly permit or prohibit the use of additional documentation related to a service animal's vaccination, training, or behavior.”
See
Guidance on Nondiscrimination on the Basis of Disability in Air Travel, Final Statement of Enforcement Priorities Regarding Service Animals, 84 FR 43480, 43484 (Aug. 21, 2019).

Comments Received

The proposed Behavior and Training Form was opposed by nearly sixty percent of individuals, and the great majority of the disability rights advocacy organizations, who commented on the issue. Those commenters who opposed this form, such as the National Council on Disability, the American Council for the Blind, and DREDF, argued that it would be unduly burdensome for passengers with disabilities, especially to those who had never been required to submit any type of documentation to travel with their service animal in the past. PVA commented that “[d]ecades of access without documentation have been provided for the vast majority of service animal users,” and that requiring all passengers with disabilities who use service animals to attest to their animal's behavior and training, and provide a health form to gain access “burdens an individual's civil rights without any justification that such burden is needed.”
109

Other opponents argued that the forms were unnecessary and inconsistent with other Federal civil rights laws.

109

See
Comments from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429 and DREDF, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.
PVA and Disability Rights Florida did argue that such forms could be required of emotional support animal users; however, this issue is now moot in light of the Department's decision to allow airlines not to recognize emotional support animals as service animals.

The proposed Behavior and Training Form was supported by about forty percent of individuals, all of the airline and industry organizations, and a minority of advocacy organizations that commented on the issue. Supporters of the form, such as A4A, argued that it would provide a uniform method of ensuring that animals have been properly trained to perform a task or function and trained to behave in public, and the consistency of a DOT form would facilitate a smoother travel experience for persons with disabilities.
110

Spirit Airlines commented that the DOT forms would “lessen the opportunity for confusion and promote uniformity across domestic air travel.”
111

Psychiatric Service Dog Partners also commented that if DOT permitted airlines to require a form, it is important that the forms be uniform, transferable among airlines, and available to individuals with disabilities in an accessible format to reduce burdens on individuals traveling with service animals.
112

110
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.

111
Comment from Spirit Airlines,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221.

112
Comment from Psychiatric Service Dog Partners,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.

While a number of organizations (such as ADI-NA, America's VetDogs, and the Open Doors Organization) strongly oppose documentation requirements for individuals with disabilities traveling with trained service animals, these organizations commented that if the Department were to allow airlines to require behavior and training attestations, it would be less burdensome on individuals with disabilities if these attestations could be made through a check-box system available on each airline's website during the reservation process.
113

A4A and IATA indicated that the only effective way to reduce fraud is to require passengers to obtain a certification from an accredited service dog training organization such as Assistance Dogs International or the International Guide Dog Federation that the animal has been properly trained (either by the organization itself or by the dog's handler).
114

113
Comments from ADI-NA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915;
America's VetDogs,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18138;
and Open Doors Organization,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.

114
Comment from A4A,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240 and IATA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.

DOT Response

The Department is of the view that allowing airlines to require individuals with disabilities to attest to their animal's good behavior and training serves the important purpose of ensuring that passengers are aware of how their animals are expected to behave on aircraft. Furthermore, the Department believes that allowing airlines to require an attestation completed by the service animal users, rather than a veterinarian or other third party, as a means of verifying the service animal's good behavior, training and good heath, will impose minimal burdens on service animal users. The Department also believes that a behavior and training attestation will assure airline personnel and the traveling public that an animal, which is being presented as a service animal for uncrated transport in the aircraft cabin, has been both trained to perform a task or function for the passenger with a disability, and has been trained to behave in public. As such, this final rule allows airlines to require passengers

traveling with a service animal to submit a completed U.S. Department of Transportation Service Animal Air Transportation Form (Air Transportation Form), as described more fully below, which includes an attestation from the service animal handler of a service animal's good behavior and training.

The Department is adopting its proposal that the only forms that airlines may require of passengers with service animals are the forms developed by the Department. In 2019, the Department's Office of Aviation Consumer Protections had stated that it does not “intend to take action against an airline for asking service animal users to present documentation related to a service animal's vaccination, training, or behavior, so long as it is reasonable to believe that the documentation would assist the airline in determining whether an animal poses a direct threat to the health or safety of others.”
115

This final rule makes it clear that airlines are not permitted to require any other documentation as a condition of transport, beyond the ones described in the rule. As such, service animal users will no longer have to navigate different forms propounded by different airlines.

115
Guidance on Nondiscrimination on the Basis of Disability in Air Travel, Final Statement of Enforcement Priorities Regarding Service Animals, 84 FR 43480, 43484 (August 21, 2019).

With regard to the content of the DOT form, we decline the suggestion of A4A that the form require service animal handlers to certify that the animal was either trained or evaluated by an accredited organization as a means of validating the animal's training. While DOT provides space on its form for a service animal handler to state the organization or individual that trained the service animal to do work or perform tasks to assist the handler, DOT does not require that individuals with disabilities have their animal trained or evaluated by an accredited organization as a condition of transport. The Department similarly rejects the suggestion from IATA that every service animal user must obtain a certification of training from a specific organization, as this requirement could impose an undue burden on service animal users.
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Other commenters suggested additional modifications to the content of the form. Allegiant Air and ANA suggested that the form make clear that all boxes must be checked for the animal to be accepted for transport. We are of the view that this aspect of the form is already sufficiently clear. Psychiatric Service Dog Partners suggested that the form should contain both a “YES” box and a “NO” box, so that individuals take greater time to assess the questions and understand the answers. We decline this suggestion as an unnecessary.

B. Health Form

The NPRM

DOT proposed to allow airlines to require a U.S. Department of Transportation Air Transportation Service Animal Health Form (Health Form), to be completed by the service animal's veterinarian. The Centers for Disease Control and Prevention (CDC), a major operating component of the U.S. Department of Health and Human Services, requires that all dogs imported into the United States, including service dogs, be vaccinated for rabies if coming from a high-risk rabies country.
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The proposed Health Form was modeled after a number of State certificate of veterinary inspection (CVI) forms and the United States Department of Agriculture (USDA) APHIS 7001 form.
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DOT proposed that the passenger's veterinarian would describe the animal, indicate whether the service animal's rabies vaccinations were up to date, state whether the animal had any known diseases or infestations, and state whether the veterinarian is aware of any aggressive behavior by the animal. The Department reasoned that such a form would help to ensure that the animal does not pose a direct threat to the health or safety of others. The Department indicated that it had consulted with airlines and the AVMA in drafting the content of the form.

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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).

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https://www.aphis.usda.gov/library/forms/pdf/APHIS7001.pdf.

The Department sought comment on its proposal to permit airlines to require the proposed Health Form as a condition of travel, the general content of the Health Form, and whether airlines should be able to refuse transportation to a service animal based on the information contained in the form. The Department asked whether the proposed Health Form would ensure effectively that a service animal does not pose a direct threat to the health or safety of others by ensuring that travelers do not contract rabies from a service animal if bitten. The Department asked whether veterinarians should indicate on the form whether, to the veterinarian's knowledge, the animal has ever exhibited aggressive behavior. The Department sought comment on whether it would be burdensome for individuals traveling with service animals to allow airlines to require the Department's Health Form. Finally, the Department asked whether it should allow airlines to require passengers traveling with service animals to provide photo identification of the service animal as an additional measure to verify a service animal's identity.

Comments Received

The proposed Health Form was opposed by most individuals and nearly all of the disability rights advocacy organizations who commented on the issue. Opponents raised many of the same arguments that they raised with regard to the proposed Behavior and Training Form, but added that the Health Form would have a financial impact on passengers with disabilities because it would require them to make an extra visit to a veterinarian and potentially to incur veterinarian fees.
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Opponents noted that requiring a form from a veterinarian could also significantly limit an individual's ability to travel on short notice. Advocates also argued that veterinarians may be uncomfortable attesting to the behavior of the animal, even if the attestation is limited to information within the personal knowledge of the veterinarian. Other advocates argued that because the overall incidence of rabies in the United States is exceedingly low, the form would not be an effective means to determine if an animal poses a direct threat. More generally, advocates including PVA and DREDF argued that the data on the proposed Health Form would not provide a meaningful basis from which to conclude that an animal poses a direct threat.
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Comment from Psychiatric Service Dog Partners,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092,
Psychiatric Service Dog Partners estimated the total cost of service animal users being required to fill out veterinary forms at almost $60 million.

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See comments from PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429, and DREDF, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264,
“[T]he issue is the level of training of the animal, not its health, that poses the threat.”
See also
Comment from ADI, NA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915.

Proponents of the proposed Health Form included about forty-five percent of individual commenters and all industry commenters. Proponents generally argued that a DOT form would provide a uniform means of determining

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-26679. Public record. Not legal advice.