[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
[Rules and Regulations]
[Pages 79742-79776]
[FR Doc No: 2020-26679]

Vol. 85

Thursday,

No. 238

December 10, 2020

Part III

Department of Transportation

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14 CFR Part 382

Traveling by Air With Service Animals; Final Rule

Federal Register / Vol. 85 , No. 238 / Thursday, December 10, 2020 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2018-0068]
RIN No. 2105-AE63

Traveling by Air With Service Animals

AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The U.S. Department of Transportation (Department or DOT) is
issuing a final rule to amend the Department's Air Carrier Access Act
(ACAA) regulation on the transport of service animals by air. This
final rule is intended to ensure that our air transportation system is
safe for the traveling public and accessible to individuals with
disabilities.

DATES: This rule is effective January 11, 2021.

FOR FURTHER INFORMATION CONTACT: Maegan Johnson, Senior Trial Attorney,
Office of Aviation Consumer Protection, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, Washington, DC, 20590, 202-
366-9342,<PHONE_NUMBER> (fax<EMAIL_ADDRESS>(email). You may
also contact Blane Workie, Assistant General Counsel, Office of
Aviation Consumer Protection, Department of Transportation, 1200 New
Jersey Ave. SE, Washington, DC, 20590,<PHONE_NUMBER>,<PHONE_NUMBER>
(fax<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Executive Summary

    This final rule defines a service animal as a dog, regardless of
breed or type, 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.\1\ It allows airlines to recognize emotional support
animals as pets, rather than service animals, and permits airlines to
limit the number of service animals that one passenger can bring
onboard an aircraft to two service animals.
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    \1\ The Department's ACAA definition of a service animal in this
final rule is similar to the definition of a service animal in the
Department of Justice (DOJ) regulations implementing the Americans
with Disabilities Act (ADA), 28 CFR 35.104 and 28 CFR 36.104.
Although DOT has chosen to closely align its ACAA service animal
definition with DOJ's service animal definition under the ADA, the
substantive requirements in this final rule differ from DOJ's
requirements for service animals under the ADA in various areas,
e.g., allowing airlines to require service animal documentation and
prohibiting the use of voice control over a service animal.
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    The final rule also allows airlines to require passengers with a
disability traveling with a service animal to complete and submit to
the airline a form, developed by DOT, attesting to the animal's
training and good behavior, and certifying the animal's good health.
For flight segments of eight hours or more, the rule allows airlines to
require passengers to complete and submit a DOT form attesting that the
animal has the ability either not to relieve itself on a long flight or
to relieve itself in a sanitary manner. In addition, this final rule
allows airlines to require a service animal user to provide these forms
up to 48 hours in advance of the date of travel if the passenger's
reservation was made prior to that time. As an alternative, airlines
may require a passenger with a disability seeking to travel with a
service animal in the cabin to provide the forms at the passenger's
departure gate on the date of travel. However, the final rule prohibits
airlines from requiring that a passenger physically check-in at the
airport solely on the basis that the individual is traveling with a
service animal, thus ensuring that service animal users are not
prevented from enjoying the same convenience-related benefits provided
to other passengers, such as online and curbside check-in. Service
animal users may use the online check-in process available to the
general public.
    This final rule also better ensures the safety of passengers and
crewmembers by allowing carriers to require that service animals are
harnessed, leashed, or otherwise tethered onboard an aircraft and
includes requirements that would address the safe transport of large
service animals in the aircraft cabin. Further, it specifies the
circumstances under which the user of a service animal may be charged
for damage caused by the service animal and addresses the
responsibilities of code-share partners.

1. Statutory Authority

    The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits
discrimination in airline service based on disability. When enacted in
1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(AIR-21) amended the ACAA to include foreign carriers. The ACAA, while
prohibiting discrimination by U.S. and foreign air carriers in air
transportation against qualified individuals with disabilities, does
not specify how carriers must act to avoid such discrimination. The
statute similarly does not specify how the Department should regulate
with respect to these issues. In addition to the ACAA, the Department's
authority to regulate nondiscrimination in airline service on the basis
of disability is based in the Department's rulemaking authority under
49 U.S.C. 40113, which states that the Department may take action that
it considers necessary to carry out this part, including prescribing
regulations.
    The current rulemaking has presented questions about how the ACAA
is reasonably interpreted and applied to require airlines to
accommodate the needs of individual passengers whose physical or mental
disability necessitates the assistance of a service animal in air
transportation. In approaching these questions, the Department
recognizes that the ACAA's nondiscrimination mandate is not absolute.
The statute requires airlines to provide accommodations that are
reasonable given the realities and limitations of air service and the
onboard environment of commercial airplanes. Animals on aircraft may
pose a risk to the safety, health, and well-being of passengers and
crew, and may disturb the safe and efficient operation of the aircraft.
Any requirement for the accommodation of passengers traveling with
service animals onboard aircraft necessarily must be balanced against
the health, safety, and mental and physical well-being of the other
passengers and crew, and must not interfere with the safe and efficient
operation of the aircraft.

2. Purpose of Regulatory Action

    The purpose of this final rule is to revise the Department's Air
Carrier Access Act (ACAA) regulation on traveling by air with service
animals (formerly 14 CFR 382.117) in 14 CFR part 382.\2\ This final
rule is prompted by a number of compelling needs to revise these
regulations: (1) The increasing number of service animal complaints
received from, and on behalf of, passengers with disabilities by the
Department and by airlines; (2) the

inconsistent definitions among Federal agencies of what constitutes a
``service animal;'' (3) the disruptions caused by requests to transport
unusual species of animals onboard aircraft, which has eroded the
public trust in legitimate service animals; (4) the increasing
frequency of incidents of travelers fraudulently representing their
pets as service animals; and (5) the reported increase in the incidents
of misbehavior by emotional support animals. In addition, DOT has
received multiple requests for the Department to regulate in this
area.\3\ Each of these purposes underlying this rulemaking, as well as
the requests for rulemaking, were discussed in depth in the
Department's notice of proposed rulemaking (NPRM) issued on February 5,
2020.\4\ Please refer to that discussion for additional background.
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    \2\ In 2008, the Department amended 14 CFR 382 by adding 14 CFR
382.117, a provision dedicated to the transport of service animals
on aircraft. The Department's 2008 amendment codified prior DOT
guidance, which allowed airlines to require emotional support animal
and psychiatric service animal users to provide a letter from a
licensed mental health professional of the passenger's need for the
animal, and permitted airlines to require 48 hours' advance notice
of a passenger's wish to travel with an emotional support or
psychiatric service animal to give airlines sufficient time to
assess the passenger's documentation. This final rule removes 14 CFR
382.117 and adds a new subpart, Subpart EE, on service animals.
    \3\ See, e.g., Psychiatric Service Dog Society, DOT-OST-2009-
0093-0001, 1-2, at https://www.regulations.gov/document?D=DOT-OST-2009-0093-0001 (Apr. 21, 2009); Comment from Airlines for America at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-2751 (Dec.
4, 2017); Comment from International Air Transport Association at
https://www.regulations.gov/document?D=DOT-OST-2017-0069-269 (Dec.
1, 2017); Comment from Kuwait Airways at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2679 (Dec. 1,
2017); and Comment from National Air Carrier Association at https://www.regulations.gov/document?D=DOT-OST-2017-0069-2771 (Dec. 4,
2017).
    \4\ See U.S. Department of Transportation, Notice of Proposed
Rulemaking, ``Traveling by Air with Service Animals,'' 85 FR 6448
(Feb. 5, 2020).
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    This final rule also responds to a congressional mandate. The FAA
Reauthorization Act of 2018 (the FAA Act) requires the Department to
conduct a rulemaking proceeding on the definition of the term ``service
animal'' and to develop minimum standards for what is required for
service and emotional support animals.\5\ Congress also required the
Department to consider whether it should align DOT's ACAA definition of
a service animal with the service animal definition established by the
U.S. Department of Justice (DOJ) in its rule implementing the Americans
with Disabilities Act (ADA).\6\ In response, and as described in more
detail below, the Department has chosen to revise its service animal
definition under the ACAA to be more closely aligned with DOJ's service
animal definition under the ADA, although the substantive requirements
in DOT's ACAA service animals rule differ from DOJ's requirements for
service animals under the ADA in a number of respects. This final rule
is responsive to, and fulfills the requirements found in, the FAA Act.
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    \5\ The FAA Reauthorization Act of 2018, Public Law 115-254,
Sec. 437 (Oct. 5, 2018).
    \6\ See DOJ's ADA definition of a service animal in 28 CFR
35.104 and 28 CFR 36.104.
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3. Recent Rulemaking Activities

    On May 23, 2018, the Department published in the Federal Register
an Advance Notice of Proposed Rulemaking (ANPRM) titled ``Traveling by
Air with Service Animals.'' \7\ In the ANPRM, the Department sought
comment on how to amend the Department's ACAA regulations to address
concerns raised by individuals with disabilities, airlines, flight
attendants, airports and other aviation stakeholders regarding service
animals on aircraft. On February 5, 2020, a Notice of Proposed
Rulemaking (NPRM) on Traveling by Air with Service Animals was
published in the Federal Register.\8\ The Department sought in the NPRM
to propose a rule that would ensure passengers with disabilities can
continue traveling with service animals in air transportation while
also reducing the likelihood that there would be safety or health
issues at the airport or onboard aircraft.
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    \7\ Traveling by Air with Service Animals, Advance Notice of
Proposed Rulemaking, 83 FR 23832 (May 23, 2018).
    \8\ Traveling by Air with Service Animals, Notice of Proposed
Rulemaking, 85 FR 6448 (Feb. 5, 2020).
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    The Department received approximately 15,000 comments on the
NPRM.\9\ While most of the comments received in response to the NPRM
were from individual commenters, the Department also received many
comments from disability rights advocacy organizations, airlines,
airports, transportation worker associations, animal health and
training organizations, and a number of other special-interest
organizations. The Department has carefully reviewed and considered all
of the comments received and is issuing this final rule to ensure
access to individuals whose physical or mental disability necessitates
the assistance of a service animal in air transportation, while also
considering the realities, risks, and limitations associated with
transporting animals on aircraft.
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    \9\ See https://www.regulations.gov/docket?D=DOT-OST-2018-0068.
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4. Summary of the Major Provisions

------------------------------------------------------------------------
              Subject                            Final rule
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Definition of Service Animal......  A service animal is as a dog,
                                     regardless of breed or type, 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.
Emotional Support Animals.........  Carriers are not required to
                                     recognize emotional support animals
                                     as service animals and may treat
                                     them as pets.
Treatment of Psychiatric Service    Psychiatric service animals are
 Animals.                            treated the same as other service
                                     animals that are individually
                                     trained to do work or perform a
                                     task for the benefit of a qualified
                                     individual with a disability.
Species...........................  Carriers are permitted to limit
                                     service animals to dogs.
Health, Behavior and Training Form  Carriers are permitted to require
                                     passengers to remit a completed
                                     hardcopy or electronic version of
                                     the Department's ``U.S. Department
                                     of Transportation Service Animal
                                     Air Transportation Form'' as a
                                     condition of transportation.
Relief Attestation................  Carriers are permitted to require
                                     individuals traveling with a
                                     service animal on flights eight
                                     hours or longer to remit a
                                     completed hardcopy or electronic
                                     version the Department's ``U.S.
                                     Department of Transportation
                                     Service Animal Relief Attestation''
                                     as a condition of transportation.
Number of Service Animals per       Carriers are permitted to limit the
 Passenger.                          number of service animals traveling
                                     with a single passenger with a
                                     disability to two service animals.
Large Service Animals.............  Carriers are permitted to require a
                                     service animal to fit on their
                                     handler's lap or within its
                                     handler's foot space on the
                                     aircraft.
Control of Service Animals........  Carriers are permitted to require a
                                     service animal to be harnessed,
                                     leashed, or otherwise tethered in
                                     areas of the airport that they own,
                                     lease, or control, and on the
                                     aircraft.
Service Animal Breed or Type......  Carriers are prohibited from
                                     refusing to transport a service
                                     animal based solely on breed or
                                     generalized physical type, as
                                     distinct from an individualized
                                     assessment of the animal's behavior
                                     and health.

Check-In Requirements.............  Carriers are not permitted to
                                     require a passenger with a
                                     disability to physically check-in
                                     at the airport, rather than using
                                     the online check-in process, on the
                                     basis that the individual is
                                     traveling with a service animal.
                                     Airlines may require a passenger
                                     with a disability seeking to travel
                                     with a service animal to provide
                                     the service animal form(s) at the
                                     passenger's departure gate on the
                                     date of travel.
Advance Notice Requirements.......  Carriers may require individuals
                                     traveling with a service animal to
                                     provide a U.S. Department of
                                     Transportation Service Animal Air
                                     Transportation Form and, if
                                     applicable, a U.S. Department of
                                     Transportation Service Animal
                                     Relief Attestation up to 48 hours
                                     in advance of the date of travel if
                                     the passenger's reservation was
                                     made prior to that time.
------------------------------------------------------------------------

5. Summary of the Economic Analysis

    The Department has prepared a regulatory evaluation in support of
the final rule to amend the ACAA service animal regulations. Under this
final rule, a service animal is limited to a dog, regardless of breed
or type, that is individually trained to do work or perform tasks for
the benefit of a qualified individual with a disability. It allows
airlines, for the first time, to recognize emotional support animals
(ESAs) as pets rather than service animals. Because airlines charge
passengers for transporting pets, and are prohibited from charging
passengers traveling with service animals, passengers previously had an
incentive to claim their pets were ESAs. Airlines and other passengers
have also reported increased incidence of misbehavior by ESAs on
aircraft and in the airport. The misbehavior has included animals'
urinating, defecating, and in some instances, harming people and other
animals at the airport or on the aircraft. The primary economic impact
of this rule is that it will eliminate a market inefficiency. Treating
ESAs as service animals amounts to a price restriction that sets the
price of accommodating passengers who travel with ESAs at zero dollars,
despite the fact that airlines face non-zero resource costs to
accommodate those passengers.
    Table ES-1 summarizes the results of the regulatory evaluation. The
final rule creates a potential burden on passengers who travel with
service animals as it allows airlines to require such passengers to
submit two U.S. DOT forms. We estimate that the forms could create as
much as 74,000 burden hours and $1.1 million in costs per year in 2018
dollars.
    Evaluating other impacts was more difficult due to data
limitations. To gauge the potential magnitude of these impacts, we
combined the limited data with reasonable assumptions about ESA
transport that could occur under the final rule and a demand elasticity
from a surrogate market. The analysis indicates that the final rule
could be expected to generate annual cost savings to airlines between
$15.6 million and $21.6 million and annual net benefits of $3.9 to
$12.7 million.

        Table ES-1--Summary of Economic Impacts Due to Final Rule
                        [2018 Dollars, millions]
------------------------------------------------------------------------
                Impact                            Annual value
------------------------------------------------------------------------
Costs:
    Paperwork burden for passengers    $1.1.
     traveling with service animals.
    Cost savings to airlines           -$21.6 to -$15.6.
     associated with providing ESA
     travel.
Benefits:
    Lost benefits to individuals who   -$10.6 to -$7.8.
     no longer travel with ESAs.
    Reduction in negative              Not quantified.
     externalities caused by ESAs.
Transfers:
    Increased fees paid by passengers  $54.0 to $59.6.
     travelling with ESAs to airlines.
------------------------------------------------------------------------
    Net benefits (benefits minus       $3.9 to $12.7.
     costs).
------------------------------------------------------------------------

Discussion

1. Definition of a Service Animal

    In developing the definition of a service animal, the Department
carefully considered whether emotional support animals should be
treated as service animals, whether psychiatric service animals should
be treated the same as other service animals, whether to limit service
animals to certain species of animals, whether certain breeds or
generalized physical types of animals should not be considered service
animals, and whether the Department's definition of a service animal
under the ACAA should be similar to the DOJ definition of a service
animal under the ADA. Each of these issues is discussed in turn below.
A. Emotional Support Animals
The NPRM
    In the NPRM, the Department explained that the ACAA regulations
currently recognize two types of service animal: (1) Any animal that is
individually trained or able to provide assistance to a qualified
person with a disability; and (2) emotional support animals, defined as
``any animal shown by documentation to be necessary for the emotional
well-being of a passenger.'' Emotional support animals are intended to
mitigate a passenger's disability by their presence, and are expected
to be trained to behave in public, but are not individually trained to
do work or perform tasks for the benefit of a passenger with a
disability.
    In the NPRM, the Department proposed to allow airlines to treat
emotional support animals as pets, rather than service animals. The
Department proposed to do so by redefining a ``service animal'' as a
dog that is individually trained to do work or perform a task for the
benefit of a qualified individual with a disability. Under the
Department's proposed definition, airlines would not be required to
recognize comfort animals, companionship animals, or any other non-
task-trained animals as service animals. The Department indicated that
the proposal was intended to align the definition of a service animal
under the ACAA with the DOJ's definition of a

service animal under the ADA.\10\ One purpose of this alignment was to
reduce confusion for individuals with disabilities, airline personnel,
and airports (which are generally subject to the ADA rather than the
ACAA).
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    \10\ See DOJ's ADA definition of a service animal at 28 CFR
35.104 and 28 CFR 36.104.
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    In the NPRM, the Department sought comment on how its proposed
service animal definition would impact individuals with disabilities
who rely on emotional support animals when traveling on aircraft.
Furthermore, although airlines could choose to continue to recognize
emotional support animals and transport them for free pursuant to an
airline's established policy, the Department specifically sought
comment on whether individuals with disabilities who use emotional
support animals to mitigate their disabilities would be less likely to
travel by air if they were no longer permitted to travel with their
emotional support animals. In addition, since the Department proposed
that airlines would be permitted to treat emotional support animals as
pets, the Department sought comment on whether individuals would be
able to transport emotional support cats or other small animals as pets
in the cabin for a fee, and whether the limits on the number of pets an
airline would allow per flight could impact their transport.
    The Department also requested comment in the NPRM on whether
emotional support animal users could train their animals to do work or
perform tasks to assist them with their disability, thereby
transforming the animal from an emotional support animal to a
psychiatric service animal.
    Although the Department proposed not to treat emotional support
animals as service animals, the Department also sought comment on
whether it should recognize emotional support animals as a separate and
distinct accommodation for passengers with disabilities. Specifically,
the Department sought comment on whether to allow airlines to mandate
stricter medical documentation requirements for individuals traveling
with emotional support animals; whether airlines should be allowed to
require that emotional support animals be contained in an FAA-approved
in-cabin pet carrier in the airport and on the aircraft; and whether
limiting emotional support animals to one per passenger would mitigate
a passenger's disability sufficiently on a flight or at the passenger's
destination. The Department did so as part of the mandate in the FAA
Act, which required the Department to conduct a rulemaking proceeding
on the definition of the term ``service animal,'' and to develop
minimum standards for what is required for service and emotional
support animals.\11\
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    \11\ FAA Reauthorization Act of 2018, Public Law 115-254, Sec.
437 (Oct. 5, 2018).
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Comments Received
    Of the approximately 15,000 comments in response to the NPRM, more
than 10,000 of those comments concerned the transport of emotional
support animals. More than 3,000 individuals submitted comments in
support of DOT's proposal to exclude emotional support animals from the
ACAA definition of a service animal and to allow airlines to treat
emotional support animals as pets. Furthermore, a large majority of
airline industry stakeholder organizations that submitted comments on
this issue (i.e., airlines and airline organizations, airports, flight
attendants, and other transportation worker organizations), expressed
their support for DOT's proposal to allow airlines to treat emotional
support animals as pets. Furthermore, approximately half of the
disability rights advocacy organizations that submitted comments on
this issue (mainly those organizations that represent individuals with
allergies and individuals with visual impairment who use guide dogs)
also supported DOT's proposal to allow airlines to treat emotional
support animals as pets.
    Supporters of DOT's proposal to exclude emotional support animals
from the service animal definition primarily expressed safety concerns.
They described incidents of misbehavior by emotional support animals,
including acting aggressively toward people and other service animals
by biting, growling, and lunging; and urinating, defecating, and
otherwise failing to be under the control of their handler. Commenters
expressed general safety concerns for travelers and airline crew given
these disturbances. Some commenters expressed the view that many
emotional support animal users may not actually be individuals with
disabilities, but instead are individuals who are misrepresenting their
pets as service animals to avoid paying airline pet fees.
    Airlines for America (A4A), the Regional Airline Association, and
the National Air Carrier Association jointly commented \12\ that
numerous incidents on aircraft have demonstrated that emotional support
animals are substantially more likely to misbehave during a flight due
to the stressful and challenging aircraft environment.\13\ These
organizations emphasized that emotional support animal misbehavior
poses a substantial risk to flight safety, and that aircraft cannot
reasonably carry untrained animals in the cabin that are uncontained.
Similarly, the Association of Professional Flight Attendants (APFA)
commented that ``emotional support animals have been known to bite
passengers and Flight Attendants, urinate, defecate, cause allergic
reactions and encroach on the space and comfort zone of other
passengers who have purchased tickets,'' and that an untrained
emotional support animal can put passengers at risk during an emergency
evacuation.\14\ The California Chapter of the American Council of the
Blind (ACB California) also commented that emotional support animals
pose a risk to people and other service animals as its members have
reported that their guide dogs have been barked at and growled at on
many occasions.\15\ Similarly, the American Veterinary Medical
Association (AVMA) commented that untrained emotional support animals
``are often not acclimated to various stressful situations in the same
manner that service animals are trained,'' which ``puts the safety and
well-being of both the animal and those sharing the animal's space at
risk.'' \16\
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    \12\ For ease of reference we will refer to these organizations
collectively as ``A4A.''
    \13\ Comment from Airlines for America (A4A), the Regional
Airline Association, (RAA), and the National Air Carrier Association
(NACA) (collectively referred to as A4A) at https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
    \14\ Comment from Association of Professional Flight Attendants
(APFA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19238.
    \15\ Comment from California Chapter of the American Council of
the Blind (ACB California), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19145.
    \16\ Comment from American Veterinary Medical Association
(AVMA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19283.
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    The second concern most frequently expressed by commenters in
support of DOT's proposal related to those individuals who misrepresent
their pets as service animals, and the growing number of online mental
health professionals willing to provide pet owners with emotional
support animal and psychiatric service animal documentation for a fee.
American Airlines commented that the ``increase in the availability of
fraudulent ESA credentials has enabled people who are not truly in need
of animal assistance to abuse the rules and evade airline policies
regarding animals in the

cabin.'' \17\ Similarly, Open Doors Organization commented that
airlines can show evidence of letters written by certain mental health
professionals on the web that result from fee-based online evaluations
or consultations with minimal therapeutic interaction between the
health professional and the traveler.\18\ Likewise, the Association of
Late Deafened Adults commented that people who falsely claim their pets
are service animals can purchase a fake service animal vest for their
pet online without the pet going through any period of training.\19\
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    \17\ Comment from American Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.
    \18\ Comment from Open Doors Organization, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305. https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.
    \19\ Comment from Association of Late Deafened Adults, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17669.
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    Some commenters also support DOT's proposed service animal
definition, limiting service animals to task-trained animals, because
they believe that only service animals trained to do work or perform
tasks for the benefit of a person with a disability can effectively
function as service animals. The American Association of Airport
Executives (AAAE) commented that disability mitigation training, which
enables an animal to know how to guide individuals with vision
impairments, retrieve items for individuals with mobility impairments,
and perform other tasks and functions for individuals with
disabilities, is critical to mitigating potential risks and to ensure
safety of passengers in the terminal.\20\ An individual commenter
remarked that ``a critical part of a service animal's training includes
a systematic socialization process that gradually and humanely exposes
the dog to a variety of public places and settings . . . [which]
ensures that service animals can both reliably perform their essential
duties in all types of settings, and that venues like busy airport and
crowded aircraft cabins will not trigger behaviors that are unsafe for
the disabled handler, or for others to be around.'' \21\
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    \20\ Comment from American Association of Airport Executives,
(AAAE), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19196.
    \21\ Comment from Ginger G.B. Kutsch, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19306.
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    The Department also received a significant number of comments from
individuals suffering from allergies, or individuals and organizations
commenting on behalf of allergy sufferers, in support of the proposal
to allow airlines to treat emotional support animals as pets. These
commenters describe how the recent increases in the number of service
animals on aircraft, ostensibly emotional support animals, has created
an untenable environment for allergy sufferers in the aircraft cabin.
Furthermore, these commenters believe that DOT's proposed rule would
result in an overall decrease in the number of service animals on
aircraft, which would improve the level of unwanted fur-related
allergens on aircraft. The Asthma and Allergy Network commented that a
training requirement for service animals would help mitigate the number
of animals on aircraft.\22\ The Asthma Allergy Foundation of America
also commented that it supports DOT's proposal, which permits airlines
the flexibility to treat emotional support animals as pets, because it
will ``reduce the risk of animals triggering asthma attacks or severe
allergic reactions.'' \23\
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    \22\ Comment from the Allergy and Asthma Network, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17955.
    \23\ Comment from the Asthma and Allergy Foundation of America,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-18498.
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    On the other hand, more than 6,000 commenters either supported the
Department's continued recognition of emotional support animals as
service animals, or supported a rule allowing emotional support animals
to be recognized as a separate accommodation for individuals with
disabilities. The individual commenters who support the Department's
continued recognition of emotional support animals as service animals
include individuals who suffer from autism, debilitating depression,
anxiety, post-traumatic stress disorder, and a range of other mental
and emotional disabilities. One individual commenter indicated that she
believed that DOT's proposal is discriminatory toward veterans with
disabilities and those with mental health problems, stating: ``ESAs
like mine are prescribed by [a] healthcare professional in order to
ease stress, anxiety, depression and PTSD. I have PTSD and anxiety and
I will testify to the benefit of my ESA. It is far better than
dangerous and harmful drugs that I would otherwise need to take.'' \24\
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    \24\ Comment from Gabrielle Ruiz, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19304.
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    Other individual commenters described their disabilities and how
they are able to travel and, in some cases, complete everyday functions
because of the presence of their emotional support animals. Some of
these commenters described how certain individuals with disabilities
would no longer be able to fly if the Department passed its proposed
definition of a service animal, since many individuals suffering from
mental and emotional disabilities have low incomes and can barely
afford the cost of their own ticket for air transportation. For
example, a joint comment from Paralyzed Veterans for America (PVA) and
other advocacy organizations noted that even if a passenger's emotional
support animal is able to travel as a pet, these fees can cost upwards
of $175 each way, and that ``people with disabilities are
disproportionately low income and these fees would likely make it very
difficult for emotional support animals users to travel[.]'' \25\
Several individual commenters also described the inconceivability of
leaving their emotional support animals behind, as many are either
unable to fly without their emotional support animal, or unable to
function without their emotional support animal at their destination
for long periods of time.
---------------------------------------------------------------------------

    \25\ Joint Comment from PVA, Access Living of Metropolitan
Chicago, American Association of People with Disabilities, Bazelon
Center for Mental Health Law, Christopher and Dana Reeve Foundation,
the National Council on Independent Living, National Disability
Rights Network, and the National Multiple Sclerosis Society, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429. For ease of
reference we will refer to these organizations collectively as
``PVA.''
---------------------------------------------------------------------------

    The Department also received comments from licensed mental health
professionals and other health care workers who describe the harmful
impact that DOT's rule would have on individuals who suffer from mental
and emotional disabilities. These commenters describe their patients,
many of whom were prescribed an emotional support animal to help
accommodate a serious mental or emotional disability, and how the
Department's proposed rule appears to have a disproportionately
negative impact on individuals with mental disabilities, in comparison
to those with physical disabilities.
    Half of disability rights advocacy organizations that commented on
the NPRM opposed the Department's proposal to treat emotional support
animals as pets. They argue primarily that emotional support animals
provide a vital accommodation for many individuals suffering from a
wide range of serious mental and emotional disabilities. The Autistic
Self Advocacy Network commented that emotional support animals ``can
assist with sensory regulation, anxiety, and provide focus for social
communication'' and without the calming effect of an emotional support
animal, individuals with autism or other mental disabilities

may be unable to function without the assistance of an ESA for several
days or weeks, which may result in their inability to travel.\26\ The
Disability Rights Education Defense Fund (DREDF) similarly commented
that the ``use of an emotional support animal may be the only option
for effective mitigation of their mental health symptoms'' because for
some individuals with psychiatric disabilities, ``medications are
ineffective and few or no other clinical mental health interventions
are available or successful for them.'' \27\ The DREDF further
commented that ``[f]requently, an emotional support animal is the
primary intervention that enables a person with a psychiatric
disability to succeed with daily activities--and sometimes to stay
alive.'' \28\
---------------------------------------------------------------------------

    \26\ Comment from the Autistic Self Advocacy Network, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.
    \27\ Comment from the Disability Rights Education Defense Fund
(DREDF), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.
    \28\ Id.
---------------------------------------------------------------------------

    Many of the disability rights advocates that supported DOT's
continued recognition of emotional support animals either (1) expressed
support for stricter requirements on the transport of emotional support
animals, or (2) supported DOT recognition of emotional support animals
not as service animals, but as a separate accommodation for individuals
with disabilities with its own distinct set of regulations. Commenters
that favored stricter requirements for service animal users, such as
Disability Rights of Florida and PVA, submitted comments in support of
a rule that would allow carriers to require behavior attestations from
emotional support animal users, although these organizations rejected
measures such as the mandatory containment of emotional support animals
in pet carriers.\29\ Similarly, the Oklahoma Disability Law Center
commented that it would also support a rule that allowed carriers to
require behavior attestations, as well as a rule that would allow
airlines to require emotional support animal users to produce
documentation from a licensed mental health professional following an
in-person visit.\30\
---------------------------------------------------------------------------

    \29\ Comments from Disability Rights Florida, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19336, and PVA,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
    \30\ Comment from the Oklahoma Disability Law Center, https://www.regulations.gov/document?D=DOT-OST-2018-0068-19237.
---------------------------------------------------------------------------

    Organizations that supported a DOT ACAA rule treating emotional
support animals as a separate accommodation from service animals, such
as PVA, commented that the ``Department should recognize emotional
support animals as an accommodation because emotional support animals
are different from service animals in that they are not trained to
perform work or tasks to mitigate a disability.'' \31\ The Humane
Society of the United States commented that DOT should adopt a rule
that would allow emotional support animals as a separate accommodation
known as an ``assistance animal,'' \32\ regulated separately from
service animals, similar to the Fair Housing Act rule of the Department
of Housing and Urban Development (HUD).\33\ Opening Doors, PLLC,
another interested stakeholder that commented in support of DOT's
treating emotional support animals as a separate accommodation, stated
that a ``benefit of aligning the definition of `emotional support
animal' with `assistance animal' is that [the Fair Housing Act (FHA)]
already has a framework in place for evaluating reasonable
accommodation requests.'' \34\
---------------------------------------------------------------------------

    \31\ Comment from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
    \32\ The U.S. Department of Housing and Urban Development (HUD),
which enforces the Fair Housing Act regulations, recognizes two
types of assistance animals: (1) Service animals, and (2) other
trained or untrained animals that do work, perform tasks, provide
assistance, and/or provide therapeutic emotional support for
individuals with disabilities (``support animal''). See Service
Animals and Assistance Animals for People with Disabilities in
Housing and HUD-Funded Programs, FHEO Notice: FHEO-2020-01, https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
(Jan. 28, 2020), and https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf.
    \33\ Comment from the Humane Society of the United States
(Humane Society), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.
    \34\ Comment from Opening Doors, PLLC, https://www.regulations.gov/document?D=DOT-OST-2018-0068-7322.
---------------------------------------------------------------------------

    In response to the Department's request for comment on the
feasibility of turning an emotional support animal into a psychiatric
service animal, U.S. Support Animals commented that ``requiring a
person with an emotional disability to train their emotional support
animal to be a psychiatric service dog would be incredibly burdensome
on most disabled people and often an impossible standard to meet.''
\35\ U.S. Support Animals further commented that ``emotional support
animals should not be trained to perform a specific task'' because the
benefit of an emotional support animal is the animal's presence;
``there is often no task that can even be defined for the animal to
perform that would help alleviate the symptoms that the passenger
exhibits.'' \36\ In addition, PVA, using rabbits as an example,
commented that it ``does not believe that it is possible to convert all
emotional support animals into service animals.'' \37\
---------------------------------------------------------------------------

    \35\ Comment from U.S. Support Animals, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.
    \36\ Id.
    \37\ Comment from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
---------------------------------------------------------------------------

DOT Response
    The Department recognizes that whether to require airlines to
recognize emotional support animals as service animals is a contentious
question, with strongly held views on all sides, and with no perfect
solution likely to satisfy all stakeholders. After careful review of
the comments in this area, the Department has determined that the most
appropriate course is to adopt a definition of service animal that
covers only dogs, regardless of breed or type, that are individually
trained to do work or perform tasks for the benefit of a qualified
individual with a disability. This definition excludes all non-task-
trained animals, such as emotional support animals, comfort animals,
and service animals in training.
    The Department recognizes several benefits to adopting this
definition. First, the rule is expected to reduce confusion among
airlines, passengers, airports, and other stakeholders by more closely
aligning the Department's definition of a service animal with DOJ's
definition of a service animal under the ADA, which applies to a broad
array of entities, including airports, and which covers only dogs that
are individually trained to do work or perform tasks for the benefit of
an individual with a disability. The Department has long recognized
that under its prior rule, air transportation was the only mode of
transportation on which emotional support animals must be
accommodated.\38\ Indeed, under the ADA, emotional support animals are
not required to be accommodated in public spaces such as restaurants,
hotels, theaters, or airports. This mismatch between the Department's
ACAA regulation and the DOJ's ADA regulation was particularly striking

given that passengers in air transportation are confined with service
animals in the narrow space of an aircraft cabin for the duration of
the flight.
---------------------------------------------------------------------------

    \38\ We acknowledge that emotional support animals are permitted
as a reasonable accommodation for a person with a disability under
the Fair Housing Act. However, we note that the large space
available to the animal and the limited number of other individuals
in close proximity to the animal differs significantly when compared
to the confined space on an aircraft cabin and the many other
passengers in close proximity to the animal on aircraft.
---------------------------------------------------------------------------

    Second, after reviewing the comments submitted during both the
ANPRM and NPRM, we find persuasive the view of advocates who commented
that task-trained service animals are also generally provided enhanced
training in how to behave in public, while emotional support animals
may not have received this degree of training. We also find persuasive
the information provided by airlines and other stakeholders indicating
that emotional support animals, or animals being presented to the
airline as emotional support animals, are responsible for a significant
percentage of the incidents of animal misbehavior onboard aircraft.
Finally, it is reasonable to predict that the Department's definition
will result in an overall reduction in the number of uncrated animals
onboard aircraft, thereby reducing the overall number of animal
misbehavior incidents (and the overall number of potential allergic
reactions) onboard aircraft.
    For many of these same reasons, we have declined to adopt a process
to accommodate emotional support animals onboard, not as service
animals, but as a separate accommodation for individuals with
disabilities with its own distinct set of requirements, such as
stricter documentation standards, containment in a pet carrier, etc. In
our view, allowing emotional support animals with a stricter set of
requirements would perpetuate tiered systems that give rise to
confusion and the continued opportunity for abuse and increased safety
risk. As such, the final rule allows airlines to treat emotional
support animals as pets. We note, however, that airlines may choose to
continue to transport emotional support animals without charge at their
discretion. Furthermore, even if airlines decide after the effective
date of this rule to charge pet fees for emotional support animals,
this change would not impact the ability of individuals with
psychiatric or mental health disabilities to continue to travel with
their psychiatric service animals onboard aircraft without being
charged a pet fee. This rule requires airlines to recognize animals
that are individually trained to do work or perform tasks for the
benefit of individuals with mental health disabilities as service
animals, including psychiatric service animals.
    We solicited comment on the specific question whether and at what
cost emotional support animals could be task-trained, and could
therefore qualify as psychiatric service animals. We received few
comments on this issue. PVA, for example, commented that an emotional
support rabbit could not be individually trained to perform a task or
function, but does provide emotional support for the individual by its
presence.\39\ U.S. Support Animals stated that ``requiring a person
with an emotional disability to train their emotional support animal to
be a psychiatric service dog would be incredibly burdensome on most
disabled people and often an impossible standard to meet.'' \40\ While
we understand PVA's concern that there are currently emotional support
animals such as rabbits that cannot be trained, the Department's final
rule recognizes only dogs as service animals, and it is our
understanding that the vast majority of emotional support animals are
dogs, and dogs can be task-trained to perform many different tasks and
functions. We also note that the rule does not require service animal
users to incur the cost of training by third party schools or
organizations; service animal users are free to train their own dogs to
perform a task or function for them.
---------------------------------------------------------------------------

    \39\ Comment from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
    \40\ Comment from, U.S. Support Animals at https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.
---------------------------------------------------------------------------

B. Psychiatric Service Animals
The NPRM
    In the NPRM, the Department proposed to change its service animal
requirements to ensure that psychiatric service animals would be
treated the same as other service animals. Psychiatric service animals
are individually trained to do work or perform tasks for an individual
with a psychiatric, intellectual, or other mental disability. In the
NPRM, the Department proposed to remove requirements for psychiatric
service animal users that allowed airlines (1) to require psychiatric
service animal users to provide a letter from a licensed mental health
professional of the passenger's need for the animal,\41\ (2) to require
48 hours' advance notice of a passenger's intent to travel with a
psychiatric service animal to give airlines sufficient time to assess
the passenger's documentation, \42\ and (3) to require check in one
hour before the check-in time for other passengers. The Department's
proposed definition of a service animal sought to ensure that
individuals with mental and psychiatric disabilities who rely on
psychiatric service animals would be treated the same as individuals
with physical disabilities who rely on task-trained service animals.
The Department's proposal was based on the fact that there is no valid
basis for allowing airlines to treat certain tasked-trained service
animals differently from other task-trained animals.
---------------------------------------------------------------------------

    \41\ 14 CFR 382.117(e).
    \42\ 14 CFR 382.27(c)(8).
---------------------------------------------------------------------------

    In the NPRM, the Department indicated that it was aware of concerns
about passengers who falsely claim to have a mental health condition
that may require the use of a service animal. We recognized that it was
this specific concern that originally led the Department to adopt
heightened documentation and check-in requirements for users of both
emotional support animals and psychiatric service animals. We noted in
the NPRM, however, that ``unscrupulous passengers may also falsely
claim to have other hidden disabilities such as seizure disorder or
diabetes to pass off their pets as service animals and avoid paying
airline pet fees.'' \43\ In other words, the concerns that led the
Department to adopt heightened documentation and check-in requirements
for users of psychiatric service animals is not unique to psychiatric
service animals. For these reasons, the proposed final rule did not
draw distinctions between psychiatric service animals and other types
of service animals.
---------------------------------------------------------------------------

    \43\ Traveling by Air with Service Animals, Notice of Proposed
Rulemaking, 85 FR 6448 (Feb. 5, 2020).
---------------------------------------------------------------------------

    In the NPRM, we indicated that if the rule were adopted as
proposed, the Department would monitor the experience of airlines in
accommodating the use of psychiatric service animals, particularly
given the concern that unscrupulous passengers may attempt to pass off
their pets as psychiatric service animals. We indicated that we would
``consider revisiting whether it is reasonable and appropriate to allow
additional requirements for the use of such animals if there is a
demonstrated need--for example, if there is a notable increase in
instances of passengers falsely representing pets as mental-health-
related service animals.'' \44\
---------------------------------------------------------------------------

    \44\ Traveling by Air with Service Animals, Notice of Proposed
Rulemaking, 85 FR 6448 (Feb. 5, 2020).
---------------------------------------------------------------------------

Comments Received
    Most individuals, disability rights organizations, airlines, and
other stakeholders who commented on these topics supported the
elimination of regulatory distinctions between psychiatric service
animals and other service animals. Commenters generally observed that
the Department's prior

approach unfairly discriminated against individuals with particular
types of disabilities. Some commenters also noted that the proposed
rule harmonizes DOT's approach with that of other Federal agencies in
this respect. In contrast, four airlines (Air Canada, Allegiant
Airlines, Asiana Airlines, and Spirit Airlines) and one advocacy
organization \45\ (the Michigan Developmental Disabilities Council)
recommended that the Department retain heightened documentation
requirements for psychiatric service animal users because of concerns
that individuals who wish to travel with their pets in the cabin for
free may start misrepresenting their pets as psychiatric service
animals.
---------------------------------------------------------------------------

    \45\ See Comments from Air Canada Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328; Allegiant Air,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19164; Asiana
Airlines https://beta.regulations.gov/comment/DOT-OST-2018-0068-19340, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19340;
Spirit Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221; and the Michigan Developmental Disabilities Council,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19191.
---------------------------------------------------------------------------

    With respect to monitoring potential falsification of pets as
psychiatric service animals, we received a range of responses. A4A
expressed concern that ``the fraud will migrate to the PSA category,''
and urged the Department to explain how it would collect data to
monitor the issue.\46\ All Nippon Airways (ANA) expressed a similar
view.\47\ American Kennel Club urged the Department to monitor fraud
with respect to psychiatric service animals.\48\
---------------------------------------------------------------------------

    \46\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
    \47\ Comment from All Nippon Airways (ANA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19025.
    \48\ Comment from American Kennel Club, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19163.
---------------------------------------------------------------------------

    PVA expressed concerns about the Department's stated intent to
monitor potential fraud by individuals who attempt to pass off their
pets as psychiatric service animals. PVA indicated that ``the
Department provides no information about why suspicion should be cast
on psychiatric service animal users versus animals that assist
passengers with other non-apparent disabilities.'' \49\ PVA also noted
that without a clear sense of how that monitoring would take place, the
public would not know whether any conclusions are based on accurate
data.
---------------------------------------------------------------------------

    \49\ Comment from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429.
---------------------------------------------------------------------------

DOT Response
    The Department agrees with commenters who expressed the view that
it is inappropriate to allow airlines to impose greater burdens on
psychiatric service animal users than on individuals who utilize
service animals that are trained to do work or perform tasks for the
benefit of individuals with physical or other types of disabilities.
Accordingly, the Department will no longer draw a distinction between
psychiatric service animal users when traveling in air transportation
and other service animal users. This means that psychiatric service
animals will be subject to the same regulations as other service
animals. Most notably, psychiatric service animal users will no longer
be required to provide a letter from a licensed mental health
professional detailing the passenger's need for the animal, nor will
they be required to check in one hour before the check-in time for
other passengers.
    The Department will, however, monitor whether unscrupulous
individuals are attempting to pass off their pets as service animals
for non-apparent disabilities, including (but not limited to)
psychiatric disabilities. This process is not intended to single out or
unduly burden psychiatric service animal users. Indeed, in the NPRM,
the Department noted the possibility that individuals could also
attempt to pass off their pets as service animals for non-apparent
physical disabilities, such as diabetes. The Office of Aviation
Consumer Protection welcomes the input and assistance of airlines,
disability advocacy organizations, and other stakeholders on how best
to conduct the monitoring to ensure accurate data.
C. Species
The NPRM
    In the NPRM, the Department proposed to limit the species of
animals that airlines would be required to recognize as service animals
to dogs. Under the Department's proposal, while airlines could choose
to transport other species of animals that assist individuals with
disabilities in the cabin for free pursuant to an established airline
policy, they would only be required under Federal law to recognize dogs
as service animals. The Department's proposal considered the fact that
dogs are the most common animal species used to assist individuals with
their disabilities, both on and off aircraft, and that dogs have both
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.
    The Department decided against adopting a proposal that would
include other species as service animals, including miniature horses
and capuchin monkeys. However, the Department requested specific
comment on whether it should recognize those animals under its
definition of a service animal.
Comments Received
    The Department received approximately 1,100 comments on this topic
from individuals with disabilities. Commenters generally support dogs
as service animals, which is unsurprising as dogs have been, and
continue to be, the most common species of service animal relied upon
by individuals with disabilities.\50\ The AAAE commented that dogs
represent approximately 90 percent or more of animals traveling on
aircraft, and supported recognizing dogs exclusively as service animals
because they are easily trained, and can hold their elimination
function for extended periods of time.\51\ Assistance Dogs
International, North America (ADI-NA) noted that dogs have both the
temperament and the capability to assist individuals with disabilities
by mitigating their disabilities through the performance of tasks.\52\
American Airlines also noted that limiting the species of service
animals to dogs provides greater predictability and access for most
people with disabilities.\53\ The International Air Transport
Association (IATA) and individual foreign airline commenters also
support including dogs exclusively as service animals. These commenters
argued that requiring all carriers, both domestic and foreign, to
recognize only dogs, would bring the regulations for the domestic
carriage of service animals in alignment with those for international
carriage, since foreign carriers have only been required under DOT's
ACAA regulation to transport dogs as service

animals.\54\ Air Canada also commented that no country other than the
United States has required the acceptance of service animals other than
dogs.\55\
---------------------------------------------------------------------------

    \50\ In response to the ANPRM, Assistance Dogs International
(ADI) noted specifically that dogs have been assisting individuals
with disabilities for over 100 years. Comment from Assistance Dogs
International, https://www.regulations.gov/document?D=DOT-OST-2018-0068-4409.
    \51\ Comment from AAAE, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19196.
    \52\ Comment from Assistance Dogs International, North America
(ADI-NA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915.
    \53\ Comment from American Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.
    \54\ Comment from International Air Transport Association
(IATA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.
    \55\ Comment from Air Canada, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328.
---------------------------------------------------------------------------

    More than 400 individual commenters, however, supported also
including miniature horses in the Department's definition of a service
animal. These commenters noted that some individuals with disabilities
may not be able to use dogs to accommodate their disability because of
allergies or religious and/or cultural reasons. Furthermore, these
commenters note that excluding miniature horses runs counter to DOT's
mission of promoting consistency among Federal regulations, as DOJ
requires regulated entities, in certain circumstances, to recognize
miniature horses as a reasonable accommodation under the ADA.\56\ The
DREDF commented that DOT's proposal to ``eliminate access for miniature
horses is particularly concerning because these animals have access to
public accommodations as a reasonable accommodation under the
Department of Justice's Americans with Disabilities Act.'' \57\
Similarly, the Autistic Self Advocacy Network commented that DOT's
proposal to limit service animals to dogs is arbitrary and inconsistent
with DOT's stated goal of harmonizing Federal regulatory requirements,
and that DOT's proposal to exclude miniature horses is more restrictive
than DOJ's regulations implementing Title III of the ADA, which allow
people with disabilities to use miniature horses on an individualized
basis.\58\ Finally, The Disability Coalition (New Mexico) commented
that by diverging from the ADA, DOT would be promoting confusion rather
than reducing it.\59\
---------------------------------------------------------------------------

    \56\ DOJ, while not recognizing miniature horses as service
animals, requires entities covered by the ADA to make reasonable
modifications in their policies, practices, or procedures to permit
an individual with a disability to use a miniature horse that has
been individually trained to do work or perform tasks for the
benefit of the individual with a disability. DOJ sets forth four
assessment factors to assist entities in determining whether
reasonable modifications can be made to allow a miniature horse into
a specific facility--(1) whether the miniature horse is housebroken;
(2) whether the miniature horse is under the owner's control; (3)
whether the facility can accommodate the miniature horse's type,
size, and weight; and (4) whether the miniature horse's presence
will compromise legitimate safety requirements necessary for safe
operation of the facility. See 28 CFR 35.136(i); 28 CFR
36.302(c)(9).
    \57\ Comment from DREDF, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.
    \58\ Comment from Autistic Self Advocacy Network, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.
    \59\ Comment from The Disability Coalition (New Mexico), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19219.
---------------------------------------------------------------------------

    Disability rights advocates that commented in support of including
miniature horses in DOT's ACAA definition of a service animal commented
that space on the aircraft should not be a concern when considering
whether a miniature horse can be accommodated in an aircraft cabin. The
commenters argued that the Department's ACAA rule has always required
airlines to allow miniature horses to accompany an individual with a
disability on aircraft, subject to aircraft size limitations and FAA
safety regulations. Psychiatric Service Dog Partners commented that
many miniature horses are comparable in size to a St. Bernard, and that
many can fold their legs and lie down more easily than their larger
equine counterparts.\60\ Similarly, Starfleet Service Dogs commented
that the height of a miniature service horse, from its withers, should
generally be 34 inches or shorter, and that in most cases a Great Dane
will be larger and take up more room than a miniature horse.\61\
---------------------------------------------------------------------------

    \60\ Comment from Psychiatric Service Dog Partners, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.
    \61\ Comment from Starfleet Service Dogs, https://beta.regulations.gov/comment/DOT-OST-2018-0068-18551.
---------------------------------------------------------------------------

    Airlines and other industry stakeholders who oppose the inclusion
of miniature horses argue that miniature horses are too big to be
accommodated in the cabin of an aircraft, and that potential safety
concerns could arise from transporting miniature horses in the aircraft
cabin. A4A asserted that a miniature horse's size, weight, and
inability to curl up in a passenger's allotted foot space poses a
substantial risk to flight safety, including the safety of passengers
and crew, and that the presence of miniature horses in an aircraft
cabin would pose a serious risk of injury to passengers and crew during
moderate to severe turbulence or an emergency situation due to these
animals' weight and size.\62\ American Airlines likewise commented that
miniature horses are classified as livestock, have hooves, are not as
flexible as dogs, are unable to manage their elimination functions the
way a trained service dog can, and that a miniature horse's hooves
could puncture an aircraft evacuation slide in the event of an
evacuation, potentially disabling it.\63\
---------------------------------------------------------------------------

    \62\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
    \63\ Comment from American Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.
---------------------------------------------------------------------------

    A smaller number of disability advocacy organizations support the
inclusion of cats and other animal species as service animals.
Ethiopian Airlines commented that only dogs and cats should be
permitted as service and emotional support animals.\64\ Similarly, the
Transport Workers Union of America recognizes that while dogs are the
most common service animals, other types of animals may also be trained
to provide needed assistance to individuals with disabilities.\65\ The
Autistic Self Advocacy Network commented that cats can be trained to
perform tasks, such as detecting seizures.\66\ Conversely, A4A
commented that cats have neither the temperament nor ability to be
trained to do work or tasks to assist an individual with a disability
or to behave appropriately in an aircraft cabin.\67\
---------------------------------------------------------------------------

    \64\ Comment from Ethiopian Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-10984.
    \65\ Comment from Transport Workers Union, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19183.
    \66\ Comment from the Autistic Self Advocacy Network, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.
    \67\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
---------------------------------------------------------------------------

    The Department also specifically sought comment on whether it
should recognize capuchin monkeys in its revised service animal
definition. Several advocacy organization commenters argued that
capuchin monkeys deserve special treatment under DOT's ACAA rule and
that DOT should require airlines to transport these animals, so long as
they remain in a carrier, because of the invaluable accommodations
these animals provide to individuals with disabilities. Helping Hands:
Monkey Helpers for the Disabled commented that its capuchin monkeys are
transported in pet carriers, often undetected, and wear diapers so that
the possibility of bodily fluids escaping the carrier are de minimis,
and the possibility of disease transmission is prevented.\68\
---------------------------------------------------------------------------

    \68\ Comment from Helping Hands: Monkey Helpers for the
Disabled, https://beta.regulations.gov/comment/DOT-OST-2018-0068-18160.
---------------------------------------------------------------------------

    Airlines and other organizations such as AVMA continue to believe
that other animal species, and capuchin monkeys in particular, should
not be included in DOT's definition of a service animal because of
animal welfare concerns, the

potential for serious injury, and zoonotic risks.\69\ ADI-NA commented
that capuchin monkeys are not domesticated animals and subjecting these
animals to stress in the air travel environment increases the chance of
their behaving aggressively or at least disruptively during air
travel.\70\ Finally, A4A commented that capuchin monkeys would likely
accompany a qualified trainer on an aircraft, for the purposes of
transporting the animal for delivery to an individual with a
disability, instead of accompanying an individual with a disability,
which ultimately brings the transport of capuchin monkeys beyond the
scope of DOT's existing ACAA rule.\71\
---------------------------------------------------------------------------

    \69\ Comment from AVMA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19283.
    \70\ Comment from ADI-NA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915.
    \71\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
---------------------------------------------------------------------------

DOT Response
    The Department has considered the comments received and has decided
to adopt, as proposed, a rule limiting the species of service animals
to dogs only. This decision considers that dogs are the most common
animal species used by individuals to mitigate disabilities both on and
off aircraft. A rule requiring airlines to accept trained service dogs
will permit the vast majority of service animal users to travel with
their service animals while also minimizing confusion and safety
concerns for airlines, airports, and individuals with disabilities.
Overall, dogs have the temperament and ability to be trained to do work
and perform tasks while behaving appropriately in a public setting, and
while being surrounded by a large group of people in the close confines
of an aircraft cabin. Although airlines may choose to transport other
species of animals, such as cats, miniature horses, and capuchin
monkeys, that assist individuals with disabilities in the cabin for
free pursuant to an established airline policy, they would only be
required under Federal law to recognize trained dogs as service
animals.
    Although some service animal users would prefer to, and in fact do,
use miniature horses instead of dogs as service animals, the number of
individuals that use trained miniatures horses as service animals is
quite small compared to that of service animal dog users.\72\ The
number of miniature horses transported in the cabin by airlines
annually is also exceptionally small, and airlines are free to
accommodate the transport of miniature horses for passengers if they
choose to do so. There are also practical concerns related to the
carriage of miniature horses that may make it difficult for airlines to
accommodate these animals on small aircraft safely. While one commenter
noted that miniature horses are more flexible than large horses, as a
practical matter they are far less flexible than dogs and are unable to
curl up at the feet of the handler and fit into the space directly in
front of the service animal user's seat, like most dogs. In certain
instances, miniature horses may need to occupy the space in front of
more than one seat to be accommodated on an aircraft, and in some
instances, they may need to occupy the space in front of an entire row
of seats to be accommodated in the aircraft.
---------------------------------------------------------------------------

    \72\ AAAE commented that dogs represent approximately 90 percent
or more of animals traveling on aircraft and according to
Psychiatric Service Dog Partners, miniature horses are substantially
less common.
    Miniature horses are not at all common as pets, nor is there
reason to think they would become so. Generally, a person is unable
to and does not acquire a miniature horse without deliberate
planning. Further, if someone is to travel with a large animal with
needs like that of a mini-horse, the training and planning that
travel requires carries with it greater assurances of handler
responsibility than do the tag-along possibilities of many pets.
There is no good reason to believe that allowing access with service
miniature horses would translate to any increase in the public
trying to bring an assortment of pets with them as service animals.
    See comment from Psychiatric Service Dog Partners, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.
---------------------------------------------------------------------------

    The Department was also unpersuaded that airlines should be
required to carry capuchin monkeys. As the Department stated in its
proposal, although trained capuchin monkeys can assist persons with
limited mobility with their daily tasks, capuchin monkeys may present a
safety risk to other passengers as they have the potential to transmit
diseases and may exhibit ``unpredictable aggressive behavior.''
Further, capuchin monkeys fall outside of the regulatory framework
because qualified trainers, rather than individuals with disabilities,
typically travel by air to deliver the monkeys to an individual with a
disability, and would not be accompanied by the service animal user.
D. Breed or Type of Dog
The NPRM
    The Department proposed to continue to prohibit carriers from
refusing to transport a trained dog as a service animal based solely on
breed or generalized physical type. Under the Department's proposal,
airlines would continue to assess each animal individually to determine
whether a specific animal poses a direct threat to the health or safety
of others, instead of determining whether to transport a service animal
based on stereotypes or generalized assumptions about how a breed or
type of dog may or may not behave. The Department also specifically
sought comment on whether the unique environment of a crowded airplane
cabin in flight justifies permitting airlines to prohibit pit bull-type
dogs, or any other particular breed or type of dog, from traveling on
aircraft under the ACAA, even when those dogs have been individually
trained to perform as service animals to assist a passenger with a
disability.
Comments Received
    The Department received nearly 700 comments on whether airlines
should be permitted to restrict service dogs based on breed or type.
Most commenters supported the Department's proposal, opposing a
departmental regulation that would categorically exclude any specific
dog breed or type. These commenters noted that individuals with
disabilities use a wide range of dog breeds as service animals to
accommodate a variety of disabilities, and airlines should not be
permitted to refuse transportation to certain breeds or types of dogs
as long as the dogs do not pose a direct threat and are individually
trained to do work or perform tasks for the benefit of an individual
with a disability. Most, if not all, disability advocates supported the
Department's proposal to prohibit dog breed or type restrictions,
arguing that the determination of whether a particular service animal
poses a direct threat should be based on an individualized, observed,
and objective assessment by the airline, and should not be based on
generalized assumptions or stereotypes about the dog's type or breed.
Disability advocates also expressed support for DOT's proposal because
it is consistent with DOJ's ADA regulations, with respect to
prohibiting regulated entities from limiting a service animal to a
specific breed. Various commenters also cited studies that have
concluded that environmental factors, rather than a dog's breed,
determine a dog's propensity to harm a person or animal.
    Regarding a specific breed, the Department received the most
feedback in the comments about pit bulls. According to Wisdom Panel, a
pit bull DNA testing organization, the term ``pit bull'' does not refer
to a single recognized breed of dog, but rather to a genetically
diverse group of breeds that are associated by similar physical

traits.\73\ Wisdom Panel explains that pit bull-type dogs have
historically been bred by combining guard-type breeds with terriers for
certain desired characteristics, and, as such, they may retain many
genetic similarities to their original breeds and other closely related
breeds.\74\ According to the Humane Society, 46 percent of dogs in the
United States were of mixed breed as of 2012.\75\ The American
Temperament Test Society found that more than 85 percent of pit bull-
type dogs have tested with above average temperaments (85.6 percent of
Golden Retrievers and 85 percent of German Shepherds tested the
same).\76\ According to the Humane Society, an AVMA study found that
physical breed standards/visual identification as a way of identifying
a dog's breed, which is the method used by airlines to identify dog
breed, is seriously flawed. \77\ Furthermore, the Humane Society states
that an American Journal of Sociological Research study found that
animal professionals, veterinarians, and animal control officers were
unable to identify correctly dog breeds visually when compared with DNA
evidence, and that dogs with blocky heads and thick necks were commonly
misidentified as pit bulls because there is no clear definition or set
of characteristics that define a ``pit bull'' type.\78\ Commenters also
cited a growing body of evidence suggesting that pit bulls do not have
a stronger bite strength than similar-sized dogs. According to a study
cited by the Humane Society, which looked at 150 scientific papers from
1969 to 2009, and two legal cases, many claims about the jaw strength
of pit bull-type dogs are based on misinterpretations with no reliable
data or sources.\79\ Commenters also noted that numerous municipalities
across the country are rescinding their pit bull bans, realizing that
the bans are misguided. Furthermore, commenters argued that if DOT
ultimately requires that all service animals be trained, there would be
no need to ban pit bulls for fear of their behavior.
---------------------------------------------------------------------------

    \73\ https://help.wisdompanel.com/s/article/Does-Wisdom-Panel-test-for-Pit-bull.
    \74\ Id.
    \75\ Comment from the Humane Society of the United States and
the Humane Society Legislative Fund, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.
    \76\ https://atts.org/breed-statistics/statistics-page1/.
    \77\ Comment from the Humane Society of the United States and
the Humane Society Legislative Fund, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.
    \78\ Comment from the Humane Society of the United States and
the Humane Society Legislative Fund, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19184.
    \79\ Id.
---------------------------------------------------------------------------

    The Department also received many comments in support of allowing
airlines to ban specific breeds of service animals. Airlines and
airline organizations expressed concerns that not allowing airlines to
restrict service animals based on breed could result in an unsafe
flying environment and argued that airlines should have the discretion
to choose whether to transport dogs that are capable of inflicting
serious harm. A4A argued that not allowing airlines to restrict
transport of service animals based on breed or generalized type of dog
would increase the risk of animal misbehavior, which could result in
serious injury to other passengers, crew, and service animals.\80\ They
argued that certain breeds of dog, which account for a small minority
of the total dog population, are not suited to function as trained
service animals. They also noted that certain breeds raise legitimate
fears from other passengers and animals, including other service dogs
and handlers. American Airlines asserted that airplanes are a unique
environment--``they are crowded spaces with no opportunity for egress--
which could be triggering, and triggering an animal with large and
powerful jaws and neck muscles that can be ferocious if `provoked,' is
a direct threat to the health and safety of our crews, passengers, and
other service animals.'' \81\ American Airlines further argued that
there is precedent for adopting a more stringent approach in the
airline environment because air travel differs from other places of
public accommodation. Some airlines argued that individualized
assessments are not enough.\82\ For example, Spirit Airline and Air
Canada argued that some animals are more prone to aggression and may
not exhibit such behavior until they are onboard an aircraft.\83\ Thus,
even with the ability to refuse transportation to dogs that exhibit
aggressive behavior, it may, in some instances, be too late by the time
an animal that eventually exhibits aggressive behavior has boarded an
aircraft.
---------------------------------------------------------------------------

    \80\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
    \81\ Comment from American Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19138.
    \82\ Id.
    \83\ See Comments from Air Canada Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19328, and Spirit
Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221.
---------------------------------------------------------------------------

    Foreign airlines and commenters raised concerns about jurisdictions
outside of the United States that impose entry restrictions on certain
dog breeds. Deutsche Lufthansa Airlines (Lufthansa) urged DOT to
consider allowing airlines to restrict service animals of specific
breeds because, with respect to international travel from the United
States, there are other additional foreign regulations to comply with
concerning the transport of animals.\84\ Specifically, Lufthansa noted
that France and Germany, for example, have implemented strict entry
bans for specific breeds of dogs, such as Staffordshire Bull Terriers,
American Pitbull Terriers, Mastiff type dogs, and Tosa Inu (France);
and Pit Bull Terriers, American Staffordshire Terriers, Staffordshire
Bull Terriers, and Bull Terrier (Germany), and that requiring airlines
to transport all breeds may present a conflict of laws that would cause
severe disruption, not only to the airline but also to passengers.\85\
---------------------------------------------------------------------------

    \84\ Comment from Deutsche Lufthansa Airlines (Lufthansa),
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19351.
    \85\ Comment from Lufthansa Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19351.
---------------------------------------------------------------------------

    Many individual commenters also opposed recognizing pit bulls as
service animals. According to dogbites.org, which obtains data on
canine-related injuries and fatalities from news reports, photographs,
police reports, coroner reports, and court filings, canines killed 512
individuals in the United States between 2005 and 2019.\86\ Of the 512
individuals killed by dogs, dogbites.org reports that pit bulls were
involved in 346 of these deaths (66 percent of the deaths) despite only
comprising about 7 percent of the total U.S. dog population.\87\
Similarly, media reports and news accounts tracked by ANIMALS 24-7
since 1982 indicate that approximately one pit bull in 100 will kill or
disfigure a human, or kill another pet or livestock animal, each
year.\88\ According to ANIMALS 24-7, two recent studies published in
prominent scientific journals point toward anatomical differences in
dog brain structure among various breeds, which in dogs bred for
centuries to fight, appear to be linked to reactivity and
aggression.\89\
---------------------------------------------------------------------------

    \86\ Comment from DogsBite.org, https://beta.regulations.gov/comment/DOT-OST-2018-0068-18935.
    \87\ Id.
    \88\ Comment from ANIMALS 24-7, https://beta.regulations.gov/comment/DOT-OST-2018-0068-12212. https://beta.regulations.gov/comment/DOT-OST-2018-0068-12212.
    \89\ Id.

---------------------------------------------------------------------------

DOT Response
    The Department is declining in this final rule to adopt a
categorical exclusion for particular breeds or types of dogs as service
animals and will continue at this time to prohibit airlines from
refusing to accommodate a dog that is individually trained to do work
or perform tasks for the benefit of a qualified person with a
disability and that otherwise satisfies the requirements of a service
animal based solely on the dog's breed or generalized type. However,
the final rule specifies that airlines are permitted to make an
individualized assessment based on reasonable judgement and objective
evidence to determine if a service animal poses a direct threat to the
health or safety of others. The Department believes that this standard,
which is based on objective evidence of the dog's behavior, rather than
generalized assumptions about how a breed or type of dog would be
expected to behave, provides airlines with the best means of
determining whether the particular animal poses a direct threat to the
health and safety of others.
    Furthermore, prohibiting airlines from banning particular breeds of
dogs, including pit bull-type dogs, on aircraft is consistent with DOJ
guidance under the ADA. We note that DOJ also rejects an outright ban
on service animals because of their breed in implementing its
regulations under the ADA. DOJ has advised municipalities that prohibit
specific breeds of dogs that they must make an exception for a service
animal of a prohibited breed, unless the dog poses a direct threat to
the health or safety of others, a determination that must be made on a
case-by-case basis.\90\ Commenters suggesting that airlines are not
able accurately to distinguish a pit bull-type dog from a non-pit bull-
type dog that may have similar features unless DNA testing has been
conducted further supports the Department's position that categorically
excluding particular breeds is not appropriate.
---------------------------------------------------------------------------

    \90\ See Frequently Asked Questions about Service Animals and
the ADA, Questions 22-24, available at https://www.ada.gov/regs2010/service_animal_qa.html https://www.ada.gov/regs2010/service_animal_qa.html (July 20, 2015):
    [I]f an individual uses a breed of dog that is perceived to be
aggressive because of breed reputation, stereotype, or the history
or experience the observer may have with other dogs, but the dog is
under the control of the individual with a disability and does not
exhibit aggressive behavior, the public accommodation cannot exclude
the individual or the animal from the place of public accommodation.
The animal can only be removed if it engages in the behaviors
mentioned in Sec.  36.302(c) (as revised in the final rule) or if
the presence of the animal constitutes a fundamental alteration to
the nature of the goods, services, facilities, and activities of the
place of public accommodation.
    See also 75 FR 56236, 52266-56267 (September 15, 2010):
    [I]f an individual uses a breed of dog that is perceived to be
aggressive because of breed reputation, stereotype, or the history
or experience the observer may have with other dogs, but the dog is
under the control of the individual with a disability and does not
exhibit aggressive behavior, the public accommodation cannot exclude
the individual or the animal from the place of public accommodation.
The animal can only be removed if it engages in the behaviors
mentioned in Sec.  36.302(c) (as revised in the final rule) or if
the presence of the animal constitutes a fundamental alteration to
the nature of the goods, services, facilities, and activities of the
place of public accommodation.
---------------------------------------------------------------------------

    The Department also recognizes the concerns raised by IATA and
foreign airlines that certain foreign jurisdictions may have laws
prohibiting passengers from bringing certain breeds of dogs into these
jurisdictions. To address this concern, the Department has included
language, in section 382.79(a)(3), that makes clear that an airline may
deny transport to a service animal if the animal's carriage would
violate applicable health or safety requirements of a foreign
government.
    The Department understands the concerns raised about pit bulls and
certain other breeds or types of dogs that have a reputation of
attacking people and inflicting severe and sometimes fatal injuries.
The Department also understands that there may be concerns that certain
dogs may be dangerous, particularly dogs that have been bred to fight,
which may be linked to a heightened degree of reactivity and
aggression. The Department will continue to monitor published studies
or accounts of dog behavior by breed or type and reports of incidents
involving service dogs, and if there are compelling studies or data
indicating that there are particular dog types or breeds that are
established to pose a heightened threat to the health and safety of
people in close proximity, we will revisit this issue. At this time,
however, the Department finds that the airlines' ability to conduct an
individualized assessment of a service animal's behavior to determine
whether the service animal poses a direct threat to the health or
safety of others is an adequate measure to ensure that aggressive
animals are not transported on aircraft, rather than permitting
airlines to ban an entire breed or type of dog.
E. Considerations on Alignment With DOJ Definition
The NPRM
    In the NPRM, the Department proposed to define a service animal as
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. DOT's proposed definition of a service animal, which is
more closely aligned with DOJ's definition of a service animal under
the ADA, is intended to address concerns raised by airlines, airports,
and disability advocates about challenges associated with
inconsistencies between the definition of a service animal in the
airport environment and on aircraft. DOT's existing service animal
regulations require airlines to recognize emotional support animals,
and all species of service animals, with limited exceptions. Meanwhile,
DOJ's ADA regulations, which apply to public and commercial airports
and airport facilities operated by businesses like restaurants and
stores, limit service animals to dogs, and do not recognize emotional
support animals as service animals.\91\ The significant inconsistencies
between DOT's former ACAA definition of a service animal, and DOJ's ADA
definition of a service animal have presented practical challenges for
airlines and airports and the traveling public. The Department, through
its NPRM proposal, sought to promote greater consistency among Federal
regulatory requirements, to decrease confusion for individuals
traveling with service animals, to recognize the distinct
characteristics of an aircraft cabin as compared to other indoor
environments, and to streamline the treatment of service animals in the
context of air travel.
---------------------------------------------------------------------------

    \91\ DOJ explains that it did not classify emotional support
animals as service animals because the provision of emotional
support, well-being, comfort and companionship does not constitute
work or tasks. See Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities, 75 FR 56236,
56269 (Sept. 15, 2010).
---------------------------------------------------------------------------

Comments Received
    The Department received more than 7,200 comments on the proposed
definition of a service animal, with a nearly even split between
individual commenters who supported or opposed the Department's
proposed definition.
    Most disability rights advocates and all of the airlines and
airline organizations that commented on the NPRM expressed support for
the Department's proposed definition of a service animal. The American
Council of the Blind supported the proposal, stating that limiting
service animals to trained animals will make the requirements for
airlines and their

employees less complicated and more succinct; \92\ while other groups
supported the definition because it is more consistent with DOJ's ADA
definition of a service animal. These commenters argued that a more
consistent definition would benefit travelers with disabilities.
---------------------------------------------------------------------------

    \92\ Comment from American Council of the Blind, https://beta.regulations.gov/comment/DOT-OST-2018-0068-18365.
---------------------------------------------------------------------------

    The majority of airlines and airline organizations likewise
supported the Department's proposal, in the interest of greater
regulatory consistency. IATA \93\ commented that a service animal
definition that is more consistent between the ACAA and the ADA will
provide greater clarity for airlines, airports, individuals with
disabilities, and the traveling public. Likewise, A4A commented that
DOT's proposal to more closely align its definition with DOJ's rules
implementing the ADA would not only decrease confusion for individuals
with a disability, airline personnel, and airports, but would also
establish a clear distinction between a legitimate service animal that
is trained to do work or perform a task for the benefit of a person
with a disability and a pet.\94\
---------------------------------------------------------------------------

    \93\ Comment from International Air Transport Association,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.
    \94\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
---------------------------------------------------------------------------

    Several disability advocates opposed the Department's proposed
definition of a service animal. U.S. Support Animals urged the
Department to focus on the language of the ACAA, which prohibits
airlines from discriminating against individuals with disabilities, and
discouraged DOT from seeking to align its definition of a service
animal with DOJ's ADA rule, when the ADA was enacted four years after
the ACAA \95\ U.S. Support Animals further commented that if Congress
intended for the ACAA to be ``subordinate'' to the ADA, it could have
easily repealed the ACAA and included its provision in the ADA.\96\
Both U.S. Support Animals and the Autistic Self Advocacy Network
commented that it would be improper for the Department to align its
ACAA definition of a service animal with DOJ's ADA definition because
unlike the ADA, which is broadly applicable to a number of contexts,
the ACAA applies only to air transportation, and its regulations should
pertain to the specific circumstances of air travel.\97\ These
commenters believe that it would be more appropriate for DOT to align
its regulations with HUD, which enforces FHA regulations,\98\ because
discrimination in housing is more analogous to air travel as travelers
who depend on service animals for assistance will likely be at their
destination for longer periods of time and the loss of their service
animal would be more acute. Specifically, the Autistic Self Advocacy
Network notes that while an individual with a disability may be
impacted somewhat by being separated from their service animal for a
few hours while at establishments covered by the ADA, e.g., stores,
restaurants, movie theaters, etc., the impact of being separated from a
service animal is more significant in the housing and transportation
context as the separation would be for a much longer duration.
---------------------------------------------------------------------------

    \95\ Comment from U.S. Support Animals, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248.
    \96\ Id.
    \97\ Comments from U.S. Support Animals, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19248 and Autism Self
Advocacy Network, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19232.
    \98\ HUD, which enforces Fair Housing Act regulations,
recognizes two types of assistance animals: (1) Service animals, and
(2) other trained or untrained animals that do work, perform tasks,
provide assistance, and/or provide therapeutic emotional support for
individuals with disabilities (``support animal''). See Service
Animals and Assistance Animals for People with Disabilities in
Housing and HUD-Funded Programs, FHEO Notice: FHEO-2020-01 at
https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf (Jan. 28, 2020), and https://www.hud.gov/sites/dfiles/PA/documents/AsstAnimalsGuidFS1-24-20.pdf.
---------------------------------------------------------------------------

DOT Response
    The Department has considered the comments it received and
Congress's mandate in the FAA Act that the Department consider whether
it should align its ACAA definition of a service animal with the
service animal definition established by the DOJ in its rule
implementing the ADA. In this final rule, the Department is revising
its definition of a service animal under the ACAA as a dog, regardless
of breed or type, 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. Species of animals other than dogs, emotional
support animals, comfort animals, companionship animals, and service
animals in training are not service animals under this definition. This
revised definition does not preclude airlines from allowing passengers
to travel with animals that are not included within the revised service
animal definition; however, airlines are not required by Federal law to
treat those animals as service animals. This revised definition is more
in line with DOJ's definition of a service animal and takes into
consideration, as commenters raised, the challenges associated with the
inconsistencies between the definition of a service animal in the
airport environment and on aircraft that stakeholders have
identified.\99\
---------------------------------------------------------------------------

    \99\ Although the Department, in this final rule, has closely
aligned its service animal definition under the ACAA with DOJ's
service animal definition under the ADA, the substantive
requirements in this rule differ from DOJ's requirements for service
animals under the ADA in numerous respects. For instance, in this
final rule, the Department allows carriers to require passengers
traveling with service animals to submit a DOT health and behavior
attestation form and for long flights, a DOT service animal relief
attestation form. Conversely, DOJ regulations prohibit covered
entities from requiring documentation from a service animal user,
such as proof that the animal has been certified, trained, or
licensed as a service animal. See 28 CFR 35.136(f), 28 CFR
36.302(c)(6).
---------------------------------------------------------------------------

2. Definition of Service Animal Handler

The NPRM
    The Department proposed to define a service animal handler as a
qualified individual with a disability who receives assistance from a
service animal(s) that does work or performs tasks that are directly
related to the individual's disability, or a safety assistant \100\ who
accompanies an individual with a disability traveling with a service
animal(s). The Department proposed that the service animal handler
would be responsible for keeping the service animal under control at
all times, and caring for and supervising the service animal, which
includes toileting and feeding. The DOT's proposed definition of a
service animal handler differed from DOJ's technical assistance, which
states that a service animal handler can be either an individual with a
disability or a third party who accompanies the individual with a
disability.\101\ The Department proposed to limit the definition of
service animal handlers to the individual with a disability who is
being helped by the animal and a safety assistant, meaning another
individual who is required to travel with the person with a disability
to assist that person in an evacuation from the aircraft, in order to
make clear that service animal trainers and other

passengers traveling with an individual with a disability on aircraft
who are not safety assistants would not be considered service animal
handlers under the ACAA rules. The Department sought comment generally
on its decision to define the term ``service animal handler'' and
sought comments on its proposed definition. The Department also sought
comment on what impact, if any, its exclusion of third parties as
service animal handlers might have on individuals with disabilities who
are traveling on aircraft with a service animal.
---------------------------------------------------------------------------

    \100\ The term ``safety assistant'' is used in the Department's
disability regulation. See 14 CFR 382.29(b).
    \101\ See Frequently Asked Questions about Service Animals and
the ADA, Questions 27, available at https://www.ada.gov/regs2010/service_animal_qa.html, (July 20, 2015), ``The ADA requires that
service animals be under the control of the handler at all times. In
most instances, the handler will be the individual with a disability
or a third party who accompanies the individual with a disability.''
https://www.ada.gov/regs2010/service_animal_qa.html.
---------------------------------------------------------------------------

Comments Received
    Disability advocates, such as PVA and DREDF, opposed DOT's proposed
definition of a service animal handler, arguing that the Department
should make its definition of a service animal handler consistent with
DOJ's ADA guidance on service animal handlers, which includes third
parties.\102\ Disability Rights Florida also commented that it ``urges
DOT to use the DOJ ADA formulation to allow a third party, such as a
parent, caretaker or aide, to also be a service animal handler for a
young child or other individuals with a disability.'' \103\
---------------------------------------------------------------------------

    \102\ Comments from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429, and DREDF, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264.
    \103\ Comment from Disability Rights Florida, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19336.
---------------------------------------------------------------------------

    Some disability advocates also opposed DOT's proposal to define
safety assistants as service animal handlers, arguing that safety
assistants are not service animal handlers, as their purpose is to
ensure safe disembarkation from the aircraft, not to handle a
passenger's service animal. Open Doors Organization commented that a
``safety assistant's sole purpose is to assist a traveler with a
disability in the event of an emergency, not to provide personal care
assistance or any other non-safety-related help to a traveler.'' \104\
Similarly, Psychiatric Service Dog Partners commented that a ``member
of the disabled service animal user's party should not need to meet the
`safety assistant' description in 14 CFR 382.29 in order to provide
handling assistance.'' \105\ Conversely, with respect to airlines, the
Association of Asian Pacific Airlines (AAPA) s and A4A both expressed
support for DOT's proposal to include safety assistant in its
definition of a service animal handler.\106\
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    \104\ Comment from Open Doors Organization, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.
    \105\ Comment from Psychiatric Service Dog Partners, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.
    \106\ See Comment from Association of Asian Pacific Airlines
(AAPA), https://beta.regulations.gov/comment/DOT-OST-2018-0068-19323, ``[w]e also support DOT's proposal to limit the definition of
a service animal handler to a qualified individual with a disability
or a safety assistant travelling with them, who will be responsible
for keeping the animal under control at all times, and caring for
and supervising the service animal, including toileting and
feeding.'' Also, see comment from A4A at Service animal handler,
https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240, ''[w]e
support DOT's proposed definition of ``service animal handler'' as
``a qualified individual with a disability who receives assistance
from a service animal(s) that does work or performs tasks that are
directly related to the individual's disability, or a safety
assistant, as described in section 382.29(b), who accompanies an
individual with a disability traveling with a service animal(s).''
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DOT Response
    The Department has decided to define the term ``service animal
handler'' in its disability regulation differently from proposed.\107\
The Department is persuaded by the comments supporting the recognition
of third-party service animal handlers consistent with DOJ's ADA
guidance and is revising its proposed definition of a service animal
handler in this final rule to more closely align with DOJ's treatment
of a service animal handler. The revised definition includes third
parties in the DOT definition of a service animal handler. It also
excludes safety assistants because, as commenters noted, safety
assistants do not necessarily serve the same role as service animal
handlers. The revised definition also provides for the situation where
a child with a disability, who may not be able to control a service
animal physically, is accompanied by a parent or other third party who
physically handles and controls the service animal on the child's
behalf.
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    \107\ The definition of service animal handler in 14 CFR part
382 is solely for the purpose of determining the individuals who
would be responsible for the care and control of an animal that does
work or performs tasks that are directly related to an individual's
disability. It does not mean that these individuals would be
considered service animal handlers under 14 CFR part 121.
Specifically, they are not considered ``persons necessary for the
safe handling of animals'' in section 14 CFR 121.583(a)(4)(ii),
which provides that a person necessary for the safe handling of
animals is excluded from the passenger-carrying requirements of part
121. See 14 CFR 121.583(a)(4)(ii).
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3. Service Animal Documentation

    In the NPRM, the Department proposed to allow airlines to require
individuals traveling with a service animal to submit three DOT-created
forms: (1) A certification of a service animal's good behavior and
training; (2) a certification of good health; and (3) for flight
segments of eight hours or more, a certification that the animal would
not need to relieve itself or could relieve itself in a way that does
not create a health or sanitation risk. The Department proposed that
each form include a warning to service animal users that it would be a
Federal crime, in violation of 18 U.S.C. 1001, to make false statements
or representations on these forms to secure disability accommodations.
The Department also proposed to allow airlines to require passengers to
submit completed versions of these forms as a condition of travel. The
Department sought comment on its proposal to standardize the service
animal documentation process by allowing airlines to require DOT forms,
and its proposal that the DOT forms be the only documentation that an
airline could require from a passenger traveling with a service animal.
The Department recognized that the DOJ does not allow these types of
forms for public accommodation under the ADA. The Department reasoned,
however, that air transportation is unique because it involves
transporting a large number of individuals in a confined space
thousands of feet in the air with no means of egress; accordingly, it
stated that it would be appropriate for airlines to require these forms
to ensure that the animal does not pose a health or safety risk to
other passengers or service animals before boarding the cabin of the
aircraft.
    DOT received nearly 500 comments on its proposal to allow airlines
to require service animal handlers to submit the various forms to
airlines. We will discuss each form and its elements in greater detail
below.
A. Behavior and Training Form
The NPRM
    First, the Department proposed to allow airlines to require a U.S.
Department of Transportation Air Transportation Service Animal Behavior
and Training Attestation Form (Behavior and Training Form), to be
completed by the service animal handler, which often is the same person
as the individual with a disability who receives assistance from the
service animal. The proposed Behavior and Training Form would have
required the handler to certify that: (1) The animal has been
individually trained to do work or perform tasks for the benefit of the
passenger with a disability; (2) the animal has been trained to behave
properly in public; (3) the handler is aware that the service animal
must be under the handler's control at all times; (4) the handler is
aware that if the animal misbehaves in a way that

indicates it has not been properly trained, then the airline may treat
the animal as a pet; and (5) the handler is aware that the handler may
be liable for damage caused by the service animal's misbehavior, so
long as the airline charges passengers without disabilities for similar
kinds of damage.
    The Department proposed to allow airlines to require this form as a
condition of transport for individuals traveling with service animals
because the form would allow airlines to receive direct assurances from
service animal users of their animal's good behavior and training. The
form would have also served as an instrument to educate passengers
traveling with service animals on how service animals in air
transportation are expected to behave, and that the airline could
charge passengers for damage caused by a service animal, so long as the
airline had a policy of charging other passengers for similar kinds of
damage. The Department also reasoned that the form itself would have
the potential to serve as a deterrent for individuals who might
otherwise seek to claim falsely that their pets are service animals, as
those individuals may be less likely to falsify a Federal form and thus
risk the potential for criminal prosecution.
    The Department sought comment on its proposal to allow airlines to
require the DOT Behavior and Training Form, the general content of the
form, and whether the form would help ensure that service animals are
properly trained. DOT also sought comment on whether the form would
serve as an effective fraud deterrent for passengers who might try to
misrepresent their pets as service animals, and the impact this form
would potentially impose on those individuals traveling with
traditional service animals who were not previously required to provide
documentation to airlines.\108\
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    \108\ The Department was aware of airline policies requiring or
recommending that passengers with disabilities traveling with
service animals carry vaccination, training, or behavior
documentation with them. However, these airline policies often were
applied only to ESAs or PSAs. In 2019, the Department's Office of
Aviation Consumer Protections stated that ``[w]hile section 382.117
clearly sets forth the type of medical documentation that airlines
may request from ESA and PSA users to reduce likelihood of abuse by
passengers wishing to travel with their pets, the regulation does
not explicitly permit or prohibit the use of additional
documentation related to a service animal's vaccination, training,
or behavior.'' See Guidance on Nondiscrimination on the Basis of
Disability in Air Travel, Final Statement of Enforcement Priorities
Regarding Service Animals, 84 FR 43480, 43484 (Aug. 21, 2019).
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Comments Received
    The proposed Behavior and Training Form was opposed by nearly sixty
percent of individuals, and the great majority of the disability rights
advocacy organizations, who commented on the issue. Those commenters
who opposed this form, such as the National Council on Disability, the
American Council for the Blind, and DREDF, argued that it would be
unduly burdensome for passengers with disabilities, especially to those
who had never been required to submit any type of documentation to
travel with their service animal in the past. PVA commented that
``[d]ecades of access without documentation have been provided for the
vast majority of service animal users,'' and that requiring all
passengers with disabilities who use service animals to attest to their
animal's behavior and training, and provide a health form to gain
access ``burdens an individual's civil rights without any justification
that such burden is needed.'' \109\ Other opponents argued that the
forms were unnecessary and inconsistent with other Federal civil rights
laws.
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    \109\ See Comments from PVA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19429 and DREDF, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19264. PVA and
Disability Rights Florida did argue that such forms could be
required of emotional support animal users; however, this issue is
now moot in light of the Department's decision to allow airlines not
to recognize emotional support animals as service animals.
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    The proposed Behavior and Training Form was supported by about
forty percent of individuals, all of the airline and industry
organizations, and a minority of advocacy organizations that commented
on the issue. Supporters of the form, such as A4A, argued that it would
provide a uniform method of ensuring that animals have been properly
trained to perform a task or function and trained to behave in public,
and the consistency of a DOT form would facilitate a smoother travel
experience for persons with disabilities.\110\ Spirit Airlines
commented that the DOT forms would ``lessen the opportunity for
confusion and promote uniformity across domestic air travel.'' \111\
Psychiatric Service Dog Partners also commented that if DOT permitted
airlines to require a form, it is important that the forms be uniform,
transferable among airlines, and available to individuals with
disabilities in an accessible format to reduce burdens on individuals
traveling with service animals.\112\
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    \110\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240.
    \111\ Comment from Spirit Airlines, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19221.
    \112\ Comment from Psychiatric Service Dog Partners, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17092.
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    While a number of organizations (such as ADI-NA, America's VetDogs,
and the Open Doors Organization) strongly oppose documentation
requirements for individuals with disabilities traveling with trained
service animals, these organizations commented that if the Department
were to allow airlines to require behavior and training attestations,
it would be less burdensome on individuals with disabilities if these
attestations could be made through a check-box system available on each
airline's website during the reservation process.\113\ A4A and IATA
indicated that the only effective way to reduce fraud is to require
passengers to obtain a certification from an accredited service dog
training organization such as Assistance Dogs International or the
International Guide Dog Federation that the animal has been properly
trained (either by the organization itself or by the dog's
handler).\114\
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    \113\ Comments from ADI-NA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-17915; America's VetDogs, https://beta.regulations.gov/comment/DOT-OST-2018-0068-18138; and Open Doors
Organization, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19305.
    \114\ Comment from A4A, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19240 and IATA, https://beta.regulations.gov/comment/DOT-OST-2018-0068-19041.
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DOT Response
    The Department is of the view that allowing airlines to require
individuals with disabilities to attest to their animal's good behavior
and training serves the important purpose of ensuring that passengers
are aware of how their animals are expected to behave on aircraft.
Furthermore, the Department believes that allowing airlines to require
an attestation completed by the service animal users, rather than a
veterinarian or other third party, as a means of verifying the service
animal's good behavior, training and good heath, will impose minimal
burdens on service animal users. The Department also believes that a
behavior and training attestation will assure airline personnel and the
traveling public that an animal, which is being presented as a service
animal for uncrated transport in the aircraft cabin, has been both
trained to perform a task or function for the passenger with a
disability, and has been trained to behave in public. As such, this
final rule allows airlines to require passengers

traveling with a service animal to submit a completed U.S. Department
of Transportation Service Animal Air Transportation Form (Air
Transportation Form), as described more fully below, which includes an
attestation from the service animal handler of a service animal's good
behavior and training.
    The Department is adopting its proposal that the only forms that
airlines may require of passengers with service animals are the forms
developed by the Department. In 2019, the Department's Office of
Aviation Consumer Protections had stated that it does not ``intend to
take action against an airline for asking service animal users to
present documentation related to a service animal's vaccination,
training, or behavior, so long as it is reasonable to believe that the
documentation would assist the airline in determining whether an animal
poses a direct threat to the health or safety of others.'' \115\ This
final rule makes it clear that airlines are not permitted to require
any other documentation as a condition of transport, beyond the ones
described in the rule. As such, service animal users will no longer