Department of Transportation Issues Statement Clarifying Its Enforcement Policies Relating to Transportation of Service and Emotional Support Animals

In May 2018, the U.S. Department of Transportation (DOT) issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking comment on amending existing regulations pertaining to carriage of service and emotional support animals.1 In issuing the ANPRM, the DOT sought to balance its longstanding goal of ensuring that passengers with disabilities can continue using service animals, with deterring the fraudulent use of animals that are not qualified as emotional support animals and the use of animals that are not properly trained.2

Stakeholders submitted approximately 4,500 comments in response to the subjects raised in the ANPRM.  The DOT considered these comments, as well as certain carriers’ policies relating to carriage of service animals.  On August 8, 2019, the DOT issued a Final Statement of Enforcement Priorities to clarify its interpretation of existing regulations and its priorities concerning their enforcement.3  The following is a discussion of certain provisions of the Final Statement.

First, the DOT intends to focus on ensuring that carriers accept for transport the most commonly used types of service animals: dogs, cats, and miniature horses.  Carriers must continue to abide by the rule that they must carry all animals that qualify as service animals, but the Enforcement Office will focus its effort on the three most commonly transported animals.  When issuing its Final Statement on this issue, the DOT reminded stakeholders that carriers cannot restrict dogs based on breed alone.

Second, carriers may limit a passenger to one emotional support animal and a total of three service animals, if needed.

Third, carriers may not refuse to transport service animals based on weight alone, without regard to other factors that would preclude transport.  For example, a large service animal might have other characteristics that would render it a direct threat to the health or safety of others, which would allow a carrier to refusal to carry the animal, but its size cannot, by itself, preclude its carriage.

Fourth, on flights scheduled to last eight hours or more, air carriers may require passengers traveling with service animals to: 1) provide 48 hours’ advance notice; 2) check-in early, and 3) provide documentation that the animal will not need to relieve itself on the flight or that it can do so in a manner that does not create a health or sanitation issue.  Carriers may not categorically restrict service animals on flights scheduled to last more than eight hours, and cannot require advance notice for service animals for flights less than eight hours.

Fifth, carriers may ask certain limited questions to confirm a passenger’s need for a service animal, even if the animal is wearing a harness or other visible proof that it is a service animal.

Sixth, carriers may now request that passengers transporting any service animal present documentation confirming the animal’s vaccination, training, or behavior, so long as doing so would reasonably assist in determining whether the animal poses a direct threat to the health or safety of others.  Carriers may not use documentation requirements to unduly restrict passengers from traveling with their service animals.  Carriers may require passengers to present their documentation as to emotional or psychiatric support animals during check-in at the airport lobby up to one hour prior to check-in time for the general public, rather than at the gate.

As a matter of enforcement, the DOT will refrain from taking enforcement action against an air carrier with respect to the issues addressed in the Final Statement for thirty days, so long as the carrier demonstrates it began the process of compliance at the time the Final Rule was published.

The DOT is expected to issue a Notice of Proposed Rulemaking (NPRM) concerning the transportation of service animals soon.4 Thus, the DOT could propose additional changes to the service animal regulations as early as later this year.

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1 Traveling by Air With Service Animals, 83 Fed. Reg. 23832 (May 23, 2018).  An ANPRM is used by an agency to obtain public participation and input prior to the agency formally proposing a regulatory change.

2 Because the rulemaking process is lengthy, the DOT issued an Interim Statement of Enforcement Office Priorities to clarify its positions on carriage of service and emotional support animals while authorizing carriers to impose some additional constraints on the carriage of emotional support animals.  See Nondiscrimination on the Basis of Disability in Air Travel, 83 Fed. Reg. 23804 (May 23, 2018).

3 Guidance on Nondiscrimination on the basis of Disability in Air Travel, Docket No. DOT-OST-2018-0067-0099.

4 Contrasted with the ANPRM, an NPRM proposes a new rule or regulatory change, explains the basis and purpose of the rule or change, and sets forth the proposed text of the rule.