The U.S. Department of Transportation (DOT) last week attempted to address controversies and confusion concerning the transportation of service animals aboard passenger aircraft by publishing a Final Statement of Enforcement Priorities Regarding Service Animals (Statement).1 Even though DOT has been engaged in a rulemaking process on this issue for some time (with final rules yet to come), the regulator sought to provide interim working guidelines to airlines (and their passengers) in order to forestall disputes at the airport, or even worse, in the aircraft cabin itself. These guidelines will be implemented as of Sept. 20, 2019.
For several years now, carriers have expressed concern about the increasing number of passengers bringing various types of service animals, and, in particular, emotional support animals (ESAs) aboard aircraft.2 Moreover, there have been an increasing number of incidents involving untrained service animals and ESAs creating disturbances, relieving themselves inappropriately and threatening and/or attacking other individuals aboard the aircraft.3
Recent headlines on this topic note that DOT has recognized dogs, cats and miniature horses as "common" service animals, and have also noted that passengers have tried, with varying success to use (and transport) more exotic service animals, such as peacocks and squirrels. Many of the stories focus on the fact that although airlines are permitted to charge for the transportation of pets, they are not permitted to levy charges to transport animals that assist passengers with disabilities. While an animal's service function is often evident, DOT also recognizes and includes ESAs within its regulatory requirements.4
When issuing its Statement, DOT emphasized that it did "not intend to take action against an airline for asking users of any type of service animal to provide documentation related to vaccination, training or behavior so long as it is reasonable to believe that the documentation would assist the airline in making a determination as to whether an animal poses a direct threat to the health or safety of others."
Although a detailed summary of DOT's regulations and guidelines are beyond the scope of this Note, the Statement and its accompanying press release,5 offered guidelines concerning the following issues:
- Species Limitations
- Documentation Requirements
- Containment
- Advance Notice
- Check-in Requirements
- Number of Service Animals per Passenger and per Aircraft
DOT also responded to recent carrier-imposed categorical restrictions on service animal breed, age and weight; flight duration; and medical forms for ESAs.
We note that while the Statement offered needed clarity in some areas (e.g., carriers can limit the number of service animals per passenger, and may require that service animals be appropriately tethered), several issues are likely to remain complex in practice. For example, DOT has cautioned against prohibiting the carriage of certain breeds of dog, and has demanded that carriers make case-by-case determinations about the animal's temperament. Similarly, DOT has said that carriers may not categorically exclude ESAs from flights lasting more than eight hours, instead permitting "carriers to ask for documentation, advance notice, and early check-in to transport service animals on flights scheduled to last eight hours or more." In terms of species, DOT referred to dogs, cats and miniature horses as common service animals, but noted that other animals (other than ferrets, rodents, spiders, snakes and other reptiles) should not be categorically excluded from the cabin and should be considered on a case by case basis. (DOT did, however, maintain its policy of requiring foreign carriers only to transport service dogs.)
These issues will, no doubt, be closely watched and zealously commented upon by carriers (both domestic and foreign), industry stakeholders and advocates for individuals with disabilities when DOT issues its proposed rules; and DOT will face a substantial challenge as it attempts to balance competing interests.
Under DOT regulations, carriers can be fined up to $34,174 per incident for failing to properly accommodate service animals, including ESAs, a factor which should heighten industry interest and concern. We will continue to monitor and provide periodic updates regarding DOT's amendments to its regulations regarding the accommodation of travelers with disabilities.
Footnote
1See 84 Fed. Reg 43480-87, (Aug. 21, 2019), Docket DOT-OST-2018-0067, also available at https://www.regulations.gov/document?D=DOT-OST-2018-0067-0100.
2See, e.g., Comments of Airlines for America and the International Air Transport Association (A4A-IATA Comments), (June 7, 2018), Docket DOT-OST-2018-0067, p. 2-3 (citing a nearly 24% increase in non-ESA/PSA service animals accommodated in aircraft cabins from 2016 to 2017, and a 56% increase of ESAs and PSAs accommodated during that same period, with some carriers seeing even greater increases).
3See A4A-IATA Comments, at 4-5. See also Comments of Delta Air Lines, Inc., (June 7, 2018), Docket DOT-OST-2018-0068, p. 2 ("Accommodating service and support animals has become a growing challenge for Delta and other U.S. airlines.").
4See, e.g., "DOT offers guidance for people traveling with emotional support animals", Washington Post, August 8, 2019 available at https://www.washingtonpost.com/local/2019/08/08/dot-offers-guidance-people-traveling-with-emotional-support-animals/.
5Available at https://www.transportation.gov/briefing-room/us-department-transportation-issues-final-statement-enforcement-priorities-regarding.
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