Addressing Safety and Comfort in Air Travel, the U.S. Department of Transportation Proposes Sweeping Changes to Regulations Governing Carriage of Service Animals

The U.S. Department of Transportation (DOT) has proposed significant changes to regulations governing air transportation of service animals.  The proposal is designed to ensure that passengers with physical or mental disabilities may continue to utilize the assistance of service animals in air travel, while reducing risks to the safety, health, and well-being of other passengers, as well as the possibility of passengers falsely claiming their pets are service animals.  In particular, the DOT has recognized that the current rule and accompanying enforcement policies has resulted in the carriage of pets and other animals that are not trained to behave properly, and has led to the stigma of bona fide support animals.

In its Notice of Proposed Rulemaking, the DOT first proposes that a “service animal” should be defined as – and limited to – a dog that is individually trained to do work or perform tasks for the benefit of a “qualified individual,” which includes individuals with a physical, sensory, psychiatric, intellectual, or other mental disability.  In contrast with the DOT’s current regulation which requires air carriers to recognize emotional support animals as service animals, the proposed rule expressly excludes emotional support animals from the definition of “service animal.”1 The DOT is seeking comments from the public as to whether the DOT should recognize emotional support animals as an accommodation for individuals with disabilities, and whether and to what extent they should be regulated separately from service animals.

Under the proposed regulation, carriers would be permitted to refuse transportation to dogs that exhibit aggressive behavior and pose a direct threat to the health or safety of others.  Current enforcement policy bars carriers from refusing to transport a dog based solely on its breed or generalized physical type; rather, the carrier must assess each animal’s behavior and health individually.  However, the DOT is now seeking comment from stakeholders as to whether, in light of the unique environment of a crowded aircraft cabin, carriers should be allowed to prohibit pit bulls and any other breeds of dogs regardless of their training to perform as a service animal.  This suggests that the DOT is considering allowing air carriers to refuse to carry a service animal based on breed alone.

Carriers also would be permitted to require a service animal to fit within a passenger’s own foot space on the aircraft.  Additionally, carriers would be permitted to limit passengers with disabilities to two service animals, and would be permitted to require that both animals fit either on the passenger’s lap or within their foot space.

Under the current regulation, carriers are not permitted to require that passengers submit documentation attesting to the behavior or training of a service animal.  Under the proposed regulation, carriers would be permitted to require a passenger to complete forms developed by the DOT in which the passenger attests to the service animal’s good behavior, certifies the animal’s good health, and, in the case of a long flight in excess of eight hours, that the service animal has the ability to either not relieve itself or relieve itself in a sanitary manner.  Carriers also would be permitted to charge individuals for damage caused by their service animals, as long as the carriers would charge individuals without disabilities for similar damage.

The DOT also has proposed an expansion of the manner in which an air carrier may determine whether an animal is, in fact, a service animal.  First, the carrier may ask if the animal is required to accompany the passenger because of a disability and what work the animal has been trained to perform; carriers still must not ask about the nature of a passenger’s disability.  Second, the carrier may observe the behavior of the service animal, such as whether it remains under the control of the passenger, does not run freely around the airport or bark or growl at other people or animals, and otherwise behaves properly in a public setting.  Third, the carrier may look for physical indicators on the animal such as a harness or leash or, if such items could interfere with the animal’s performance, the carrier may look for indicators that the animal is under the passenger’s control, such as by voice control.

The proposed rule would significantly alter the regulatory framework governing air transportation of service animals.  By proposing to clarify and tighten current regulations, the DOT has recognized concerns raised by both air carriers and disability advocates that the existing rules affect the rights of individuals with disabilities and the rest of the traveling public to travel in a safe, secure, and comfortable environment.

The public has 60 days to submit comments to the proposal.

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1 These changes align the DOT’s definition of “service animal” under the Air Carrier Access Act with the definition set forth by the U.S. Department of Justice under the analogous Americans with Disabilities Act.