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Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

Previously, the Department of Transportation came out with proposed regulations on service animals, here121230180118219189696969197.  I have written about the issue of animals on planes numerous times before (such as here122231181119220190707070198, here123232182120221191717171199, and here124233183121222192727272200), as well. Last week, the Department of Transportation came up with their final rule, here223193737373201. So considering all the writing I have done on the subject, I felt compelled to blog on the final rule. As usual, the blog entry is divided into categories and they are: the final rule; and thoughts/takeaways. The reader is definitely going to want to read the final regulation section. Of course, I would like to think that the reader always wants to read my thoughts/takeaways. It’s not much of an add-on from the final regulation section anyway.

I

The Final Regulations

1. The final rule define a service animal as a dog and only 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. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126235185123224194747474202), found at 28 C.F.R. §§104127236186124225195757575203, 36.104128237187125226196767676204. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger unless the owner wants to buy an additional seat. The airline could also find another section of the cabin that would allow for the passenger and the animal space permitting.
2. Emotional support animals, comfort animals, companionship animals, and service animals in training are not included in the definition of a service animal. Such animals can be treated as pets by the carriers.
3. A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species flying on aircraft, 90%. Second, dogs also have 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.
4. Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability.
5. Dog breed restrictions are out.
6. Psychiatric service animals get treated the same as other service animal trained to do work or perform tasks.
7. Service animals must be harnessed, leashed, or tethered when not with the passenger at their seat, which also includes anywhere in the airport that the airlines own, lease, or control.
8. A service animal handler is a passenger in air transportation who is a qualified individual with a disability receiving assistance from a service animal that does work or perform tasks that are directly related to the individual’s disability, or a third party accompanying the individual with a disability traveling with a service animal such as a parent of a minor child or a caretaker.
9. With respect to documentation that the animal is a service animal, the rule does the following: 1) requires individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT mandates a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the DOT forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger traveling with a service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. Only one form per trip is needed. Also, the forms must be on the airline’s websites, at the airport, or available by mail.
10. The actual service animal behavior and training attestation form which has been combined with the proposed health certification form, contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be harnessed, leashed, or tethered at all times in the airport and on the aircraft; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; 5) the animal has been vaccinated for rabies; 6) the animal does not have fleas or tics or a disease that would endanger people or other animals; 7) the name and phone number of the veterinarian, though a signature is not required; and 9) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
11. The species requirement is the same for both U.S. carriers and foreign carriers.
12. Airlines can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks. Unlike the DOJ’s title II and title III scheme, these questions can be asked regardless of whether it is readily apparent that the dog is assisting a person with a disability. While it doesn’t say so in this section, within the definition of handler it is clear that the disability must relate to the work or tasks performed. In addition to the two inquiries, carriers can observe the animal and look at physical indicators such as harnesses and vests. DOT recognizes that paraphernalia is widely available for purchase, and so carriers are free to give little weight to the presence of paraphernalia.
13. An airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
14. With respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin, it must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
15. Anyone can train an animal to be a service animal.
16. Carriers can deny transporting a service animal for any of four reasons: 1) animal poses a direct threat to the health or safety of others; 2) the animal causes a significant disruption in the aircraft or at the airport; 3) transporting the animal violates the applicable safety, health or other regulations of a federal agency, U.S. territory, or foreign government; or 4) the passenger failed to fill out the DOT forms when required to do so by the airline.
17. Carriers cannot require a person with a disability to physically check in at the airport rather than using the online process on the basis that the person with the disability is traveling with a service animal.
18. Prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

III

Thoughts/Takeaways

1. Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the final regulation brings needed clarity to the situation.

1. I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules. My hearing dog is strictly for the house (of course, what is my house can vary), which I am told is not unusual for deaf or Deaf individuals.
2. The final regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
3. The final regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this is longer be an issue.
4. Emotional support animals are out and are treated as pets. How many people will be truly affected by this decision is an open question.
5. Delta Airlines will have to end its restriction on pitbulls as breed restrictions are out.
6. Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132241191129227197777777205. It brings needed clarity to the area to what was previously very confusing.
7. From a reading of the regulation, it can be concluded that a person training an animal to be a service animal has no right to fly with that animal unless they are the handler of that service animal or a person assisting the owner of that service animal.
8. The documentation approach seems balanced and simplifies things greatly.
9. Airlines can require the DOT standardized forms in advance up to 48 hours before the flight  unless the ticket was bought after that.
10. DOT uses the two inquiries system found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries.
11. The regulations are exclusive. That is, airlines cannot add additional restrictions beyond the regulation.
12. No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
13. What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense? The effect may be one of deterrence more than anything else.
14. The harness, leash, or tethered requirement always applies to the animal when away from the passenger seat. This is different from the DOJ title II and title III of the ADA rules, which has a control of the handler’s standard. The difference comes down to the nature of airline flight.
15. How does a person train an animal to fly on planes under this rule? I honestly don’t know the answer to that question. Perhaps, the airlines will work out deals with organizations that train dogs to be service animals. From the rule, it appears that the airlines are not required to allow service animals in training to fly on their planes in the passenger section.
16. This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.