U.S. Department of Transportation (DOT) May 2008
Excerpt from the FINAL RULE on Air Carriers Access Act
Summary from Joan Froling, IAADP Chairperson:
The Final Rule was published in the Federal Register on May 7th It runs over 300 pages in length. It was issued by the DOT after it considered all the Public Comments it received on the Notice of Proposed Rulemaking issued in 2004. The DOT says it will henceforth refer to that NPRM as the “Foreign Carriers NPRM” when discussing it. That is because a major goal was to clarify when foreign air carriers are required to follow the Air Carrier Access Act (ACAA) regulations and guidance. The DOT had an agenda with regard to their accommodation of disabled persons and service animals. Generally these regulations only come into play if one leg of the flight starts or ends in the USA.. The DOT noted this Final Rule also responds to public comments on a second NPRM initiative on accommodating passengers who are deaf or hard of hearing. In addition, it encompasses a third NPRM regarding passengers who travel with oxygen and/or portable respirators.
Part One of the Preamble to the Final Rule is the DOT’s Response To Comments. I have pulled out the relevant excerpts in Part One that were specific to Service Animals.
The next part of the Preamble is a ”Section by Section discussion” of the Final Rule. The subject of service animals came up in some sections outside the scope of what was covered in the DOT’s 2003 Guidance document on service animals. For your reading convenience, I have included all the discussions on service animals from Part Two in this Excerpt. Collectively Part One and Part Two is more than 150 pages in length.
Part Three is what amounts to a new Guidance document due to certain sections with revised language. This will now replace the DOT’s controversial May 2003 guidance document, something they referred to as “Appendix A” in the Foreign Carriers NPRM of 2004.
Part Four discusses the Regulatory Analyses the Final Rule went through, including a cost benefit analysis. Part Five is the meat of the Final Rule itself, where you can look up the actual language utilized on topics such as airport relief areas for service animals, if you wish. The preamble seems to indicate that there won’t be any surprises in the Final Rule, outside of those it has announced in the Preamble, in its “Response to Comments” and in its “Section by Section” discussion, all of which is contained in this Excerpt I prepared.
Service Animal Issues:
The subject that attracted the most comments on the Foreign Carriers NPRM over 1100 of the 1290 received was service animals. Interestingly, most of these comments did not pertain to anything in the Foreign Carriers PRM’s proposed regulatory text, but rather to a guidance document concerning transportation of service animals that the Department had issued in May 2003. As an informational matter, this existing guidance document was published as an appendix to the November 2004 NPRM. The paragraph in the document that was the focus of most of the comments was the following:
If the service animal does not fit in the assigned location, you should relocate the passenger and the service animal to some other place in the cabin in the same class of service where the animal will fit under the seat in front of the passenger and not create an obstruction, such as the bulkhead. If no single seat in the cabin will accommodate the animal and passenger without causing an obstruction, you may offer the option of purchasing a second seat, traveling on a later flight or having the service animal travel in the cargo hold. As indicated above, airlines may not charge passengers with disabilities for services required by part 382, including transporting their oversized service animals in the cargo compartment. (69 FR 64393)
During the one and a half years preceding the issuance of the Foreign Carriers NPRM during which the guidance had been available, and during the over three years since the Foreign Carriers NPRM has been issued, there have been few if any instances brought to the attention of the Department in which service animals have been denied transportation, separated from their owners, or charged for an extra seat. Despite this apparent lack of problems in the real world of air travel, hundreds of comments expressed the fear that Department was proposing new regulations that would unfairly limit the travel opportunities of service animal users. Many of these comments suggested that there were no circumstances under which a service animal should be denied transportation in the cabin. If there were space limitations concerning accommodating larger animals, some commenters said, airlines should reconfigure their cabins to provide some larger spaces.
The Department believes that the fears of these commenters are largely unfounded. Nevertheless, in order to avoid future misunderstanding, the Department is republishing its service animal guidance later in the preamble to this final rule and has revised the language in this guidance document concerning carriage of larger, but otherwise acceptable, service animals to read as follows:
The only situation in which the rule contemplates that a service animal would not be permitted to accompany its user at his or her seat is where the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (e.g., an aisle, access to an emergency exit) AND the passenger and animal cannot be moved to another location where such a blockage does not occur. In such a situation, the carrier should first talk with other passengers to find a seat location where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal). The fact that a service animal may need to use a reasonable portion of an adjacent seat’s foot space—that does not deny another passenger effective use of the space for his or her feet—is not, however, an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat. Only if no other alternative is available should the carrier discuss less desirable options concerning the transportation of the service animal with the passenger traveling with the animal, such as traveling on a later flight with more room or carrying the animal in the cargo compartment. As indicated above, airlines may not charge passengers with disabilities for services required by Part 382, including transporting their oversized service animals in the cargo compartment.
In modifying this paragraph in the guidance, we deleted the phrase concerning the potential purchase of a second seat, since there are probably no circumstances under which this would happen. If a flight is totally filled, there would not be any seat available to buy. If the flight had even one middle seat unoccupied, someone with a service animal could be seated next to the vacant seat, and it is likely that even a large animal could use some of the floor space of the vacant seat, making any further purchase unnecessary. Of course, service animals generally sit on the floor, so it is unlikely that a service animal would ever actually occupy a separate seat.
We have not taken other steps recommended by some commenters, such as mandating that airlines accommodate coach passengers with service animals in first class or reconfigure cabins. We would regard such mandates as potentially requiring a fundamental alteration of airlines’ operations, and consequently outside the scope of the statutory authority for this rule.
A second category of comments concerned the relationship of service animal requirements to Part 382’s coverage of foreign carriers. Many foreign carriers and their organizations stated that foreign carriers often had policies more restrictive than those of the ACAA (e.g., only dogs, or only dogs certified by recognized training schools or associations, are accommodated; some carriers don’t allow any animals in the cabin; service animals may be seated only in certain designated locations; there are number limits or advance notice requirements for service animals in the cabin). These commenters generally wished to maintain such restrictions.
As a general matter, foreign carrier policies with respect to service animals, like other foreign carrier policies, are subject to the conflict of laws waiver and equivalent alternative provisions of the final rule. Otherwise, modifying carrier policies to accommodate U.S. civil rights requirements is something foreign carriers must accept as part of their obligation to comply with U.S. law when flying to and from the U.S.
In addition to wishing to maintain existing policies restricting the access of service animals, some commenters mentioned that some countries have quarantine rules that severely delay or limit the entrance of certain animals, or effectively prohibit, certain animals – even service animals – from entering those countries. The Department agrees that, if Country S prohibits a certain kind of animal from entering, an airline serving an airport in Country S could apply for a conflict of laws waiver to be relieved of carrying such an animal to that country. Such a waiver would be country-specific; however. If the same airline is asked to carry the same animal to Country R, which does not have such a prohibition, the carrier would have to transport the creature. The final rule also requires carriers to promptly take all steps necessary to comply with such foreign regulations as are necessary to legally transport service animals from the U.S. into foreign airports (e.g., the United Kingdom’s Pet Travel Scheme).
Commenters mentioned that some persons may have religious or cultural objections to traveling in proximity to certain service animals. Other commenters raised the issue of passengers who may have allergies to certain animals. It has long been a principle of the Department’s ACAA and other disability regulations that it is improper for a transportation provider to deny or restrict service to a passenger with a disability because doing so may offend or annoy other persons (see for instance current 14 CFR 382.31(b) and section 382.19(b) of the final rule). This principle is again articulated in the final’s rule service animal section. Only if a safety problem amounting to a direct threat can be shown is restricting access required by Part 382 justifiable.
This principle applies to concerns about passengers who have allergies not rising to the level of a disability or cultural or personal objections to being on the same aircraft with a certain service animal. Their discomfort must yield to the nondiscrimination mandate of the ACAA. As stated in the Department’s service animal guidance, to which we have added language concerning the handling of allergy issues, carriers should do their best to accommodate other passengers’ concerns by steps like seating passengers with service animals and passengers who are uncomfortable with service animals away from one other. We note that, on flights operated by foreign carriers that are not subject to these rules, the carriers may, of course, apply their own policies with respect to carriage of service animals.
A number of commenters objected to the requirement that carriers accept animals as service animals on the basis of the “credible verbal assurances” of passengers, especially in the absence of credentials from a training school that the carrier recognizes. Under U.S. law (the ADA as well as the ACAA), it is generally not permissible to insist on written credentials for an animal as a condition for treating it as a service animal. It would be inconsistent with the ACAA to permit a foreign carrier, for example, to deny passage to a U.S. resident’s service animal because the animal had not been certified by an organization that the foreign carrier recognized. When flying to or from the United States, foreign carriers are subject to requirements of U.S. nondiscrimination law, though carriers may avail themselves of the conflict of laws waiver and equivalent alternative provisions of this Part. We acknowledge that some foreign carriers may be unused to making the kinds of judgment calls concerning the credibility of a passenger’s verbal assurances that the Department’s service animal guidance describes, and which U.S. carriers have made for over 17 years. However, the comments do not provide any persuasive evidence that foreign carriers are incapable of doing so or that making such judgment calls will in any important way interfere with the operation of their flights.
A number of carriers commented that making provision for service animals on long (e.g., trans-oceanic) flights was especially problematic. The main concern focused on the animals’ eating, drinking, and elimination functions. They pointed out that health and sanitation issues could arise. Some service animal users said that their animals were well trained to avoid creating sanitation problems on even a very long flight. The Department agrees that, on very long flights, carriers have a legitimate concern about sanitation issues that could arise if animals relieve themselves in the cabin. Consequently, the Department has added a provision to the regulatory text pertaining to a flight segment scheduled to take eight hours or more. For such a segment, the carrier may, if it chooses, require the passenger using the animal to provide documentation that the animal will not need to relieve itself on the flight or that the animal can do so in a way that does not create a health or sanitation issue. We agree with commenters that carriers should not have any responsibility for assisting with the eating, drinking, or elimination functions of service animals on board an aircraft.
Another important issue that a number of commenters raised concerned “emotional support animals.” Unlike other service animals, emotional support animals are often not trained to perform a specific active function, such as pathfinding, picking up objects, carrying things, providing additional stability, responding to sounds, etc. This has led some service animal advocacy groups to question their status as service animals and has led to concerns by carriers that permitting emotional support animals to travel in the cabin would open the door to abuse by passengers wanting to travel with their pets.
The Department believes that there can be some circumstances in which a passenger may legitimately travel with an emotional support animal. However, we have added safeguards to reduce the likelihood of abuse. The final rule limits use of emotional support animals to persons with a diagnosed mental or emotional disorder, and the rule permits carriers to insist on recent documentation from a licensed mental health professional to support the passenger’s desire to travel with such an animal. In order to permit the assessment of the passenger’s documentation, the rule permits carriers to require 48 hours’ advance notice of a passenger’s wish to travel with an emotional support animal. Of course, like any service animal that a passenger wishes to bring into the cabin, an emotional support animal must be trained to behave properly in a public setting.
We have also noted a concern that there could be differences, in the airport terminal context, between the ACAA regulations that apply to airlines, and their facilities and services, contrasted with public accommodations like restaurants and stores. The DOJ Title III rules for places of public accommodation govern concession facilities of this kind. As a consequence, a concession could, without violating DOJ rules, deny entry to a properly documented emotional support animal that an airline, under the ACAA, would have to accept. On the other hand, nothing in the DOJ rules would prevent a concession from accepting a properly documented emotional support animal. We urge all parties at airports to be aware that their services and facilities are intended to serve all passengers. Airlines, airport operators, and concessionaires should work together to ensure that all persons who are able to use the airport to access the air transportation system are able equally to use all services and facilities provided to the general public.
Because they make for colorful stories, accounts of unusual service animals have received publicity wholly disproportionate to their frequency or importance. Some (e.g., tales of service snakes, which grow larger with each retelling) have become the stuff of urban legends. A number of commenters nevertheless expressed concern about having to accommodate unusual service animals. To allay these concerns, the Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. Any denial of transportation to a service animal would have to be explained, in writing, to the passenger within 10 days.
While it is possible that foreign air carriers may have safety-related reasons for objecting to service animals other than dogs, even ones that have been successfully accommodated on U.S. carriers, these reasons were generally not articulated in their comments to the docket. Nevertheless, to give foreign carriers a further opportunity to raise any safety-related objections specific to foreign airlines to carrying these animals, the final rule does not apply the requirement to carry service animals other than dogs to foreign airlines. However, foreign carriers could not, absent a conflict of laws waiver, impose certification or documentation requirements for dogs beyond those permitted to U.S. carriers. We intend to seek further comment on this subject in the forthcoming SNPRM.
A few comments suggested adding, to the section prohibiting carriers from requiring passengers to sign waivers or releases of liability, language specifically applying this prohibition to the loss, injury, or death of service animals. We believe that this is a sensible suggestion, and we have added the language.
ADDITIONAL DISCUSSION: It should be emphasized that the fact that a carrier policy or foreign regulation addresses the same subject as a provision of Part 382 does not mean the carrier policy or foreign regulation is an equivalent alternative. For example, both Part 382 and various carrier policies address the transportation of service animals. A policy or regulation that was more restrictive than Part 382 would not be viewed as an equivalent alternative, since it provided less, rather than substantially equivalent, accessibility for passengers who use service animals.
NOTE: this is the end of PART ONE, “Response to Comments,” in the Preamble to the Final Rule
PART TWO of the Preamble to the Final Rule
The purpose of this portion of the preamble is to describe each of the sections of the final rule. The focus of the descriptions is on new or changed material.
First Excerpt: Requirement for Emotional Support & Psychiatric Service Animals
We also note that, under section 382.117(e), airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation. This information is not a medical certificate in the sense articulated in section 382.23, but airlines are entitled to obtain this documentation as a condition of permitting the emotional support or psychiatric service animal to travel in the cabin with the passenger.
Second Excerpt: Advance Notice may be Required!
There are a few new situations in which the rule permits carriers to require advance notice. These include transportation of an emotional support or psychiatric service animal, transportation of any service animal on a flight scheduled to take eight hours or more, and accommodation of an individual who has both severe vision and hearing impairments.
Third Excerpt: Service Animal Relief Areas
Inter-terminal and intra-terminal transportation owned, leased, or controlled by a carrier at a U.S. airport must meet DOT ADA rules. Since DOT has already incorporated the new version of ADAAG into its regulations, the new ADAAG’s provision will apply to any features covered by the DOT rules. One new requirement at U.S. airports is to provide, in cooperation with the airport operator, animal relief areas for service animals that accompany passengers who are departing, arriving, or connecting at the facility.
Fourth Excerpt: Escort to Relief Area – documentation required?
Another addition, applicable only in U.S. airports, is that a carrier would, on request, and in cooperation with the airport operator, have to escort a passenger to a service animal relief area. Finally, carriers would have to assist passengers with disabilities in transporting their carry-on or gate-checked luggage to or from the gate. This obligation would arise only if the passenger could make credible verbal assurances of his or her inability to carry the item due to his or her disability. If the passenger’s verbal assurances to the carrier are not credible, the carrier may require the passenger to produce documentation as a condition of providing the service. All the services mentioned in this paragraph would be provided only on request of a passenger with a disability.
At foreign airports, as mentioned in connection with the terminal accessibility section, airport operators may be the basic providers of terminal services. The carrier may rely on these services, but would have to supplement them if they did not fully comply with the provisions of this Part.
Fifth Excerpt: Summary of Changes re: Service Animals, in the Final Rule
382.117 Must carriers permit passengers with a disability to travel with service animals?
This section has been made more detailed than the current Rule’s service animal provision, in response to the comments discussed earlier in the preamble. Appendix A provides further guidance to carriers and passengers conceming service animals.
The general rule is that service animals must be allowed to accompany their users. Carriers cannot deny transportation to a service animal because its presence may offend or annoy other passengers (e.g., by causing an allergic reaction that does not rise to the level of a disability or by offending someone’s cultural or personal preferences). When another passenger is uncomfortable with proximity to a service animal, the carrier should do its best to satisfy all passengers by offering the uncomfortable passenger the opportunity to sit elsewhere. Forcing the passenger with the service animal to move to another seat to make another passenger more comfortable, let alone denying transportation in the cabin to the service animal or its user, is not an option.
If a flight segment is scheduled to take eight hours or more, the carrier may require documentation that the service animal will not need to relieve itself or can do so in a way that will not create a health or sanitation issue on the flight.
The only acceptable reason for not allowing a service animal to accompany its user at the user’s seat is that the animal will block a space that, according to FAA or equivalent foreign safety regulations, must remain unobstmcted. If, for this reason, the animal caimot be accommodated at the user’s seat, the carrier must allow the passenger and the animal to sit elsewhere on the aircraft, if an appropriate place exists.
There are new, more detailed procedures for the carriage of emotional support and psychiatric service animals. The carrier may require the passenger to provide current documentation from a mental health professional caring for the passenger that the passenger has a specific, recognized mental or emotional disability and that the passenger needs to be accompanied by the specific emotional support or psychiatric service animal in question, either on the flight or at the passenger’s destination.
Certain unusual service animals need never be accommodated (e.g., rodents, snakes). Other uncommonly used animals (e.g., miniature horses, monkeys) can travel as service animals on U.S. carriers, but the carrier can decide to exclude a particular animal on a case-by-case basis if it is too large or heavy to be accommodated on a given flight. Foreign carriers are not required to carry service animals other than dogs. We will seek fiirther comment in the SNPRM on whether there are safety-related reasons for excluding animals that may be specific to foreign carriers.
Near the end of this preamble, the Department has included a revised guidance document containing further discussion of service animal matters. With the exception of changes discussed earlier in the preamble, this guidance document incorporates the guidance the Department issued on service animal matters in May 2003. As guidance, it does not have independent mandatory effect, but rather describes how the Department understands the requirements of section 382.117. It also makes suggestions and recommendations concerning how carriers can best accommodate service animals and their users.
The guidance document notes that carriers can properly apply the same policies to “psychiatric service animals” as they do for emotional support animals. This is because carriers and the Department have encountered instances of attempted abuse of service animal transportation policies by persons traveling with animals in both categories. Should the Department encounter a pattern of abuse concerning service animals in other categories, we can consider additional safeguards with respect to those categories as well.
We would call also readers’ attention to recent DOT guidance concerning the transportation of service animals into the United Kingdom. “Guidance Concerning the Carriage of Services Animals in Air Transportation Into the United Kingdom” (February 26, 2007) discusses the transportation of service dogs and cats into the U.K. via U.S. and foreign carriers. To transport service animals into the U.K., carriers must participate in the U.K. Pet Travel Scheme. A supplementary DOT guidance document, “Carriage of Service Animals in Air Transportation Into the United Kingdom and Foreign Health Documentation Requirements for Service Animals in Air Transportation” (July 17, 2007), provides further information for carriers and the public concerning carriage of, and documentation needed for, carriage of service animals into countries other than the U.K. These documents may be found on the Department’s Aviation Consumer Protection Division website.
New “Modified” Guidance Document in the Final Rule
[ this replaces the DOT’s 2003 Guidance document ]
GUIDANCE CONCERNING SERVICE ANIMALS
In 1990, the U.S. Department of Transportation (DOT) promulgated the official regulations implementing the Air Carrier Access Act (ACAA). Those mles are entitled Nondiscrimination on the Basis of Disability in Air Travel (14 CFR Part 382). Since then the number of people with disabilities traveling by air has grown steadily. This growth has increased the demand for air transportation accessible to all people with disabilities and the importance of understanding DOT’s regulations and how to apply them. This document expands on an earlier DOT guidance document published in 1996, which was based on an earlier Americans with Disabilities Act (ADA) service animal guide issued by the Department of Justice (DOJ) in July 1996. The purpose of this document is to aid airline employees and people with disabilities in understanding and applying the ACAA and the provisions of Part 382 with respect to service animals in determining:
(1) whether an animal is a service animal and its user a qualified individual with a disability;
(2) how to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and ^ 61 FR 56409, 56420 (Nov. 1, 1996).
(3) when a service animal legally can be refused carriage in the cabin. This guidance will also be used by Department of Transportation staff in reviewing the implementation of §382.117 of this Part by carriers.
The 1996 DOT guidance document defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” This document refines DOT’s previous definition of service animal”* by making it clear that animals that assist persons with disabilities by providing emotional support qualify as service animals and ensuring that, in situations concerning emotional support animals and psychiatric service animals, the authority of airline personnel to require documentation of the individual’s disability and the medical necessity of the passenger traveling with the animal is understood.
Today, both the public and people with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc. that describe how the animal assists a person with a disability.
When Part 382 was first promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animal (e.g., cats, monkeys, etc.) have been individually trained to assist people with disabilities. Service animals also perform a [See Glossary for definition of this and other terms] much wider variety of functions than ever before (e.g., alerting a person with epilepsy of imminent seizure onset, pulling a wheelchair, assisting persons with mobility impairments with balance). These developments can make it difficult for airline employees to distinguish service animals from pets, especially when a passenger does not appear to be disabled, or the animal has no obvious indicators that it is a service animal. Passengers may claim that their animals are service animals at times to get around airline policies that restrict the carriage of pets. Clear guidelines are needed to assist airline personnel and people with disabilities in knowing what to expect and what to do when these assessments are made.
Since airlines also are obliged to provide all accommodations in accordance with FAA safety regulations, educated consumers help assure that airlines provide accommodations consistent with the carriers’ safety duties and responsibilities. Educated consumers also assist the airline in providing them the services they want, including accommodations, as quickly and efficiently as possible.
General Requirements of Part 382
In a nutshell, the main requirements of Part 382 regarding service animals are:
> Carriers shall permit dogs and other service animals used by persons with disabilities to accompany the persons on a flight. See §382.117(a).
> Carriers shall accept as evidence that an animal is a service animal identifiers such as identification cards, other written documentation, presence of harnesses, tags or the credible verbal assurances of a qualified individual with a disability using the animal.
> Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation or to comply with FAA regulations.
> If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying, the carrier shall offer the passenger the opportunity to move with the animal to a seat location in the same class of service, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold (see §382.117(c)).
> Carriers shall not impose charges for providing facilities, equipment, or services that are required by this Part to be provided to qualified individuals with a disability (see §382.31).
Two Steps for Airline Personnel
To determine whether an animal is a service animal and should be allowed to accompany its user in the cabin, airline personnel should:
1. Establish whether the animal is a pet or a service animal, and whether the passenger is a qualified individual with a disability; and then
2. Determine if the service animal presents either a. a “direct threat to the health or safety of others,” or b. a significant threat of disruption to the airline service in the cabin (i.e., a “fundamental alteration” to passenger service). See §382.19(c).
How do I know it’s a service animal and not a pet?
Remember: In most situations the key is TRAINING. Generally, a service animal is individually trained to perform functions to assist the passenger who is a qualified individual with a disability. In a few extremely limited situations, an animal such as a seizure alert animal may be capable of performing functions to assist a qualified person with a disability without individualized training. Also, an animal used for emotional support need not have specific training for that function. Similar to an animal that has been individually trained, the definition of a service animal includes: an animal that has been shown to have the innate ability to assist a person with a disability; or an emotional support animal.
These five steps can help one determine whether an animal is a service animal or a pet:
1. Obtain credible verbal assurances: Ask the passenger: “Is this your pet?” If the passenger responds that the animal is a service animal and not a pet, but uncertainty remains about the animal, appropriate follow-up questions would include:
> “What tasks or functions does your animal perform for you?” or
> “What has it been trained to do for you?”
> “Would you describe how the animal performs this task (or function) for you?”
As noted earlier, functions include, but are not limited to:
A. helping blind or visually impaired people to safely negotiate their surroundings;
B. alerting deaf and hard-of-hearing persons to sounds;
C. helping people with mobility impairments to open and close doors, retrieve objects, transfer from one seat to another, maintain balance; or
D. alert or respond to a disability-related need or emergency (e.g., seizure, extreme social anxiety or panic attack).
Note that to be a service animal that can properly travel in the cabin, the animal need not necessarily perform a function for the passenger during the flight. For example, some dogs are trained to help pull a passenger’s wheelchair or carry items that the passenger cannot readily carry while using his or her wheelchair. It would not be appropriate to deny transportation in the cabin to such a dog.
If a passenger cannot provide credible assurances that an animal has been individually trained or is able to perform some task or function to assist the passenger with his or her disability, the animal might not be a service animal. In this case, the airline personnel may require documentation (see Documentation below).
1. There may be cases in which a passenger with a disability has personally trained an animal to perform a specific function (e.g., seizure alert). Such an animal may not have been trained through a formal training program (e.g., a “school” for service animals). If the passenger can provide a reasonable explanation of how the animal was trained or how it performs the function for which it is being used, this can constitute a “credible verbal assurance” that the animal has been trained to perform a function for the passenger.
2. Look for physical indicators on the animal: Some service animals wear harnesses, vests, capes or backpacks. Markings on these items or on the animal’s tags may identify it as a service animal. It should be noted, however, that the absence of such equipment does not necessarily mean the animal is not a service animal. Similarly, the presence of a harness or vest on a pet for which the passenger cannot provide such credible verbal assurance may not be sufficient evidence that the animal is, in fact, a legitimate service animal.
3. Request documentation for service animals other than emotional support or psychiatric service animals: The law allows airline personnel to ask for documentation as a means of verifying that the animal is a service animal, but DOT rules tell carriers not to require documentation as a condition for permitting an individual to travel with his or her service animal in the cabin unless a passenger’s verbal assurance is not credible. In that case, the airline may require documentation as a condition for allowing the animal to travel in the cabin. This should be an infrequent situation. The purpose of documentation is to substantiate the passenger’s disability-related need for the animal’s accompaniment, which the airline may require as a condition to permit the animal to travel in the cabin. Examples of documentation include a letter from a licensed professional treating the passenger’s condition (e.g., physician, mental health professional, vocational case manager, etc.)
4. Require documentation for emotional support and psychiatric service animals: With respect to an animal used for emotional support (which need not have specific training for that function but must be trained to behave appropriately in a public setting), airline personnel may require current documentation (i.e., not more than one year old) on letterhead from a licensed mental health professional stating (1) that the passenger has a mental health-related disability listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV); (2) that having the animal accompany the passenger is necessary to the passenger’s mental health or treatment; (3) that the individual providing the assessment of the passenger is a licensed mental health professional and the passenger is under his or her professional care; and (4) the date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued. Airline personnel may require this documentation as a condition of permitting the animal to accompany the passenger in the cabin. The purpose of this provision is to prevent abuse by passengers that do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their service animals on the aircraft. Airlines are not permitted to require the documentation to specify the type of mental health disability, e.g., panic attacks.
There is a separate category of service animals generally known as “psychiatric service animals.” These animals may be trained by their owners, sometimes with the assistance of a professional trainer, to perform tasks such as fetching medications, reminding the user to take medications, helping people with balance problems caused by medications or an underlying condition, bringing a phone to the user in an emergency or activating a specially equipped emergency phone, or acting as a buffer against other people crowding too close). As with emotional support animals, it is possible for this category of animals to be a source of abuse by persons attempting to circumvent carrier rules concerning transportation of pets. Consequently, it is appropriate for airlines to apply the same advance notice and documentation requirements to psychiatric service animals as they do to emotional support animals.
5. Observe behavior of animals: Service animals are trained to behave properly in public settings. For example, a properly trained guide dog will remain at its owner’s feet. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons on the aircraft, bite or jump on people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior shows that it has not been successfully trained to function as a service animal in public settings. Therefore, airlines are not required to treat it as a service animal, even if the animal performs an assistive function for a passenger with a disability or is necessary for a passenger’s emotional well-being.
What about service animals in training?
Part 382 requires airlines to allow service animals to accompany their handlers in the cabin of the aircraft, but airlines are not required otherwise to carry animals of any kind either in the cabin or in the cargo hold. Airlines are free to adopt any policy they choose regarding the carriage of pets and other animals (e.g., search and rescue dogs) provided that they comply with other applicable requirements (e.g., the Animal Welfare Act). Although “service animals in training” are not pets, the ACAA does not include them, because “in training” status indicates that they do not yet meet the legal definition of service animal. However, like pet policies, airline policies regarding service animals in training vary. Some airlines permit qualified trainers to bring service animals in training aboard an aircraft for training purposes. Trainers of service animals should consult with airlines, and become familiar with their policies.
Service animal users typically refer to the person who accompanies the animal as the “handler.”
What about a service animal that is not accompanying a qualified individual with a disability?
When a service animal is not accompanying a passenger with a disability, the airline’s general policies on the carriage of animals usually apply. Airline personnel should know their company’s policies on pets, service animals in training, and the carriage of animals generally. Individuals planning to travel with a service animal other than their own should inquire about the applicable policies in advance.
Qualified Individuals with Disabilities
How do I know if a passenger is a qualified individual with a disability who is entitled to bring a service animal in the cabin of the aircraft if the disability is not readily apparent?
1. Ask the passenger about his or her disability as it relates to the need for a service animal. Once the passenger identifies the animal as a service animal, you may ask, “How does your animal assist you with your disability?” Avoid the question “What is your disability?” as this implies you are asking for a medical label or the cause of the disability, which is intrusive and inconsistent with the intent of the ACAA. Remember, Part 382 is intended to facilitate travel by people with disabilities by requiring airlines to accommodate them on an individual basis. * See Glossary.
2. Ask the passenger whether he or she has documentation as a means of verifying the medical necessity of the passenger traveling with the animal. Keep in mind that you can ask but cannot require documentation as proof of service animal status UNLESS (1) a passenger’s verbal assurance is not credible and the airline personnel cannot in good faith determine whether the animal is a service animal without documentation, or (2) a passenger indicates that the animal is to be used as an emotional support or psychiatric service animal.
Using the questions and other factors above, you must decide whether it is reasonable to believe that the passenger is a qualified individual with a disability, and the animal is a service animal.
Denying a Service Animal Carriage in the Cabin
What do I do if I believe that carriage of the animal in the cabin of the aircraft would inconvenience non-disabled passengers?
Part 382 requires airlines to permit qualified individuals with a disability to be accompanied by their service animals in the cabin, as long as the animals do not I) pose a direct threat to the health or safety of others (e.g., animal displays threatening behaviors by growling, snarling, lunging at, or attempting to bite other persons on the aircraft) or 2) cause a significant dismption in cabin service (i.e. a “fundamental alteration” to passenger service). Offense or inconvenience to other passengers (e.g., a cultural or personal discomfort with being in proximity to certain kinds of animals, allergies that do not rise to the level of a disability, reasonable limitations on foot space) is not sufficient grounds to deny a service animal carriage in the cabin. However, carriers should try to accommodate the wishes of other passengers in this situation, such as by relocating them to a different part of the aircraft. What do I do if a passenger claims that he or she is allergic to someone else’s service animal?
* First, remember that not all allergies rise to the level of a disability. The fact that someone may have a stuffy nose or sneeze when exposed to dog or cat dander does not necessarily mean that the individual has a disability.
* If a passenger expresses discomfort or annoyance because of an allergic reaction to the presence of a service animal nearby, you can offer the uncomfortable passenger the opportunity to change to a seat further away from the animal. Passengers who state they have allergies or other animal aversions should be located as far away from the service animal as practicable. Each individual’s needs should be addressed to the fullest extent possible under the circumstances and in accordance with the requirements of Part 382 and company policy.
* If a passenger provides credible verbal assurances, or medical documentation, that he or she has an allergy to a particular sort of animal that rises to the level of a disability (e.g., produces shock or respiratory distress that could require emergency or significant medical treatment), and there is a service animal of that kind seated nearby, the carrier should try to place as much distance as possible between the service animal and the individual with the allergy. Depending on where the passengers are initially seated, this could involve moving both passengers. For example, if both are seated toward the center of the cabin, one could be moved to the front and the other to the back.
* It is unlikely that the mere presence of an animal in the same cabin would, by itself, even if located at a distance from an allergic passenger, produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.
* There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.
What do I do if I believe that a passenger’s assertions about having a disability or a service animal are not credible?
1. Ask if the passenger has documentation that satisfies the requirements for determining that the animal is a service animal (see discussion of “Documentation” above).
2. If the passenger has no documents, then explain to the passenger that the animal cannot be carried in the cabin, because it does not meet the criteria for service animals. Explain your airline’s policy on pets (i.e., will or will not accept for carriage in the cabin or cargo hold), and what procedures to follow.
3. If the passenger does not accept your explanation, avoid getting into an argument Ask the passenger to wait while you contact your airline’s complaint resolution official (CRO). Part 382 requires all airlines to have a CRO available at each airport they serve during all hours of operation. The CRO may be made available by telephone. The CRO is a resource for resolving difficulties related to disability accommodation.
4. Consult with the CRO immediately, if possible. The CRO normally has the authority to make the final decision regarding carriage of service animals. In the rare instance that a service animal would raise a concern regarding flight safety, the CRO may consult with the pilot-in-command. If the pilot-in-command makes a decision to restrict the animal from the cabin or the flight for safety reasons, the CRO cannot countermand the pilot’s decision. This does not preclude the Department from taking subsequent enforcement action, however, if it is determined that the pilot’s decision was inconsistent with Part 382.
5. If a CRO makes the final decision not to accept an animal as a service animal, then the CRO must provide a written statement to the passenger within 10 days explaining the reason(s) for that determination. If carrier personnel other than the CRO make the final decision, a written explanation is not required; however, because denying carriage of a legitimate service animal is a potential civil rights violation, it is recommended that carrier personnel explain to the passenger the reason the animal will not be accepted as a service animal. A recommended practice may include sending passengers whose animals are not accepted as service animals a letter within 10 business days explaining the basis for such a decision.
In considering whether a service animal should be excluded from the cabin, keep these things in mind:
1. Certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) pose unavoidable safety and/or public health concerns and airlines are not required to transport them. In all other circumstances for U.S. carriers, each situation must be considered individually. Do not make assumptions about how a particular unusual animal is likely to behave based on past experience with other animals. You may inquire, however, about whether a particular animal has been trained to behave properly in a public setting. Note that, under the 2008 final rule, foreign carriers are not required to carry animals other than dogs.
2. Before deciding to exclude the animal, you should consider and try available means of mitigating the problem (e.g., muzzling a dog that barks frequently, allowing the passenger a reasonable amount of time under the circumstances to correct the disruptive behavior, offering the passenger a different seat where the animal won’t block the aisle.) If it is determined that the animal should not accompany the disabled passenger in the cabin at this time, offer the passenger alternative accommodations in accordance with Part 382 and company policy (e.g., accept the animal for carriage in the cargo compartment at no cost to the passenger).
What about unusual service animals?
1. As indicated above, certain unusual service animals, (e.g., snakes, other reptiles, ferrets, rodents, and spiders) pose unavoidable safety and/or public health concerns and airlines are not required to transport them. The release of such an animal in the aircraft cabin could result in a direct threat to the health or safety of passengers and crew members. For these reasons, airlines are not required to transport these types of service animals in the cabin, and carriage in the cargo hold will be in accordance with company policies on the carriage of animals generally.
2. Other unusual animals such as miniature horses, pigs, and monkeys should be evaluated on a case-by-case basis by U.S. carriers. Factors to consider are the animal’s size, weight, state and foreign country restrictions, and whether or not the animal would pose a direct threat to the health or safety of others, or cause a fundamental alteration (e.g., significant disruption) in the cabin service. If none of these factors apply, the animal may accompany the passenger in the cabin. In most other situations, the animal should be carried in the cargo hold in accordance with company policy. Under the 2008 final rule, foreign carriers are not required to transport animals other than dogs.
What about the passenger who has two or more service animals?
A single passenger legitimately may have two or more service animals. In these circumstances, you should make every reasonable effort to accommodate them in the cabin in accordance with Part 382 and company policies on seating. This might include permitting the passenger to purchase a second seat so that the animals can be accommodated in accordance with FAA safety regulations. You may offer the passenger a seat on a later flight if the passenger and animals cannot be accommodated together at a single passenger seat. Airlines may not charge passengers for accommodations that are required by Part 382, including transporting service animals in the cargo compartment. If carriage in the cargo compartment is unavoidable, notify the destination station to return the service animal(s) to the passenger at the gate as soon as possible, or to assist the passenger as necessary to retrieve them in the appropriate location.
Are there any situations in which an animal would not be permitted to accompany its user on the flight?
The only situation in which the rule contemplates that a service animal would not be permitted to accompany its user at his or her seat is where the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (e.g., an aisle, access to an emergency exit) AND the passenger and animal cannot be moved to another location where such a blockage does not occur. In such a situation, the carrier should first talk with other passengers to find a seat location in the cabin where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal). The fact that a service animal may need to use a reasonable portion of an adjacent seat’s foot space that does not deny another passenger effective use of the space for his or her feet by taking all or most of the passenger’s foot space is not, however, an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat. Only if no other alternative is available should the carrier discuss less desirable options concerning the transportation of the service animal with the passenger traveling with the animal, such as traveling on a later flight with more room or carrying the animal in cargo. As indicated above, airlines may not charge passengers with disabilities for services required by Part 382, including transporting their oversized service animals in the cargo compartment.
Should passengers provide advance notice to the airline concerning multiple or large service animals?
In most cases, airlines may not insist on advance notice or health certificates for service animals under the ACAA regulations. However, it is very useful for passengers to contact the airline well in advance if one or more of their service animals may need to be transported in the cargo compartment. The passenger will need to understand airline policies and should find out what type of documents the carrier would need to ensure the safe passage of the service animal in the cargo compartment and any restrictions for cargo travel that might apply (e.g., temperature conditions that limit live animal transport).
Accommodating Passengers With Service Animals in the Cabin
How can airline personnel help ensure that passengers with service animals are assigned and obtain appropriate seats on the aircraft?
Let passengers know the airline’s policy about seat assignments for people with disabilities. For instance: (1) should the passenger request pre-boarding at the gate? or (2) should the passenger request an advance seat assignment (a priority seat such as a bulkhead seat or aisle seat) up to 24 hours before departure? or (3) should the passenger request an advance seat assignment at the gate on the day of departure? When assigning priority seats, ask the passenger what location best fits his/her needs.
Passengers generally know what kinds of seats best suit their service animals. In certain circumstances, passengers with service animals must either be provided their pre-requested priority seats, or if their requested seat location cannot be made available, they must be assigned to other available priority seats of their choice in the same cabin class. Part 382.81(c) requires airlines to provide a bulkhead seat or a seat other than a bulkhead seat at the request of an individual traveling with a service animal.
Passengers should comply with airline recommendations or requirements regarding when they should arrive at the gate before a flight. This may vary from airport to airport and airline to airline. Not all airlines announce pre-boarding for passengers with special needs, although it may be available. If you wish to request pre-boarding, tell the agent at the gate.
A timely request for pre-boarding by a passenger with a disability must be honored (see sections 382.83(c) and 382.93) Part 382 does not require carriers to make modifications that would constitute an undue burden or would fundamentally alter their programs (382.13 (c)). Therefore, the following are not required in providing accommodations for users of service animals
> Requiring another passenger to give up all or a most of the space in front of his or her seat to accommodate a service animal. (There is nothing wrong with asking another passenger if the passenger would mind sharing foot space with a service animal, as distinct from telling the passenger that he or she must do so. Indeed, finding a passenger willing to share space is a common, and acceptable, method of finding an appropriate place for someone traveling with a service animal that may not be able to be seated in his or her original seat location.)
> Denying transportation to any individual on a flight in order to provide an accommodation to a passenger with a service animal; > Furnishing more than one seat per ticket; and
> Providing a seat in a class of service other than the one the passenger has purchased. (While a carrier is not required to do so, there could be situations in which the carrier could voluntarily reseat a passenger with a service animal in a different seating class. For example, suppose that the economy cabin is completely full and no alternate seat location in that cabin can be found for a service animal that cannot be seated at the passenger’s original seat location. If the business or first class cabin has vacant space, the carrier could choose to move the passenger and animal into the vacant space, rather than make the passenger and animal take a later flight.)
Are airline personnel responsible for the care and feeding of service animals?
Airline personnel are not required to provide care, food, or special facilities for service animals. The care and supervision of a service animal is solely the responsibility of the passenger with a disability whom the animal is accompanying.
May a carrier charge a maintenance or cleaning fee to passengers who travel with service animals?
Part 382 prohibits carriers from imposing special charges for accommodations required by the regulation, such as carriage of a service animal. However, a carrier may charge passengers with a disability if a service animal causes damage, as long as it is its regular practice to charge non-disabled passengers for similar kinds of damage. For example, it could charge a passenger with a disability for the cost of repairing or cleaning a seat damaged by a service animal, assuming that it is its policy to charge when a non-disabled passenger or his or her pet causes similar damage.
Advice for Passengers with Service Animals
Ask about the airline’s policy on advance seat assignments for people with disabilities. For instance: (1) should a passenger request pre-boarding at the gate? or (2) should a passenger request an advance seat assignment (a priority seat such as a (bulkhead seat or aisle seat)) up to 24 hours before departure? or (3) should a passenger request an advance seat assignment at the gate on the day of departure?
Although airlines are not permitted to automatically require documentation for service animals other than emotional support or psychiatric service animals, if you think it would help you explain the need for a service animal, you may want to carry documentation from your physician or other licensed professional confirming your need for the service animal. Passengers with unusual service animals also may want to carry documentation confirming that their animal has been trained to perform a function or task for them.
> If you are traveling with an emotional support or psychiatric service animal, you may be required by the airline to provide 48 hours’ advance notice.
> If you need a specific seat assignment for yourself and your service animal, make your reservation as far in advance as you can, and identify your need at that time.
> You may have to be flexible if your assigned seat unexpectedly turns out to be in an emergency exit row. When an aircraft is changed at the last minute, seating may be reassigned automatically. Automatic systems generally do not recognize special needs, and may make inappropriate seat assignments. In that case, you may be required by FAA regulations to move to another seat.
> Arrive at the gate when instructed by the airline, typically at least one hour before departure, and ask the gate agent for pre-boarding ~ if that is your desire.
Remember that your assigned seat may be reassigned if you fail to check in on time; airlines typically release seat assignments not claimed 30 minutes before scheduled departure. In addition, if you fail to check in on time you may not be able to take advantage of the airline’s preboard offer.
If you have a very large service animal or multiple animals that might need to be transported in the cargo compartment, contact the airline well in advance of your travel date. In most cases, airlines cannot insist on advance notice, except for emotional support or psychiatric service animals, or on health certificates for service animals under the ACAA regulations. However, it is very useful for passengers to contact the airline well in advance if one or more of their service animals may need to be transported in the cargo compartment. The passenger will need to understand airline policies and should find out what type of documents the carrier would need to ensure the safe passage of the service animal in the cargo compartment and any restrictions for cargo travel that might apply (e.g., temperature conditions that limit live animal transport).
If you are having difficulty receiving an appropriate accommodation, ask the airline employee to contact the airline’s CRO. Part 382 requires all airlines to have a CRO available during all hours of operation. The CRO is a resource for resolving difficulties related to disability accommodations.
> Another resource for resolving issues related to disability accommodations is the U.S. Department of Transportation’s Disability Hotline. The toll-free number is 1800-778-4838 (voice) and 1-800-455-9880 (TTY).
Direct Threat to the Health or Safety of Others
A significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.
A modification that substantially alters the basic nature or purpose of a program, service, product or activity.
Individual with a Disability
“Any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.” (Section 382.5)
Qualified Individual with a Disability
Any individual with a disability who:
(1) “takes those actions necessary to avail himself or herself of facilities or services offered by an carrier to the general public with respect to accompanying or meeting a traveler, use of ground transportation, using terminal facilities, or obtaining information about schedules, fares or policies”;
(2) “offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain .. . a ticket” “for air transportation on an carrier”; or
(3) “purchases or possesses a valid ticket for air transportation on an carrier and presents himself or herself at the airport for the purpose of traveling on the flight for which the ticket has been purchased or obtained; and meets reasonable, nondiscriminatory confract of carriage requirements applicable to all passengers.” (Section 382.5).
Any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well being of a passenger.
In addition to applicable provisions of Part 382, the sources for this guidance include the following: “Guidance Concerning Service Animals in Air Transportation,” (61 FR 56420-56422, (November 1, 1996)), “Commonly Asked Questions About Service Animals in Places of Business” (Department of Justice, July, 1996), and “ADA Business Brief: Service Animals” (Department of Justice, April 2002).
END of Guidance Document Portion