Proposed Rulemaking: Traveling by Air with Service Animals
Summary of Proposal
DogsBite.org - On January 22, the Department of Transportation (DOT) issued a Notice of Proposed Rulemaking (NPRM) about traveling by air with service animals. The proposal is a stunning reversal from previous DOT positions -- airlines, the public and public safety prevailed! In one fatal swoop, DOT altered the definition of a service animal to align with the Americans with Disabilities Act and no longer considers an emotional support animal (ESA) a service animal.
Our nonprofit began writing about this issue in July of 2017 after a passenger was repeatedly attacked in the face by a "support" dog onboard a Delta flight. That dog was a psychiatric service animal (PSA), which at that time was treated the same way as ESAs by airlines, requiring a letter from a licensed mental health professional stating the passenger has a mental health-related disability. Under the new proposal, PSAs will be treated like all other service animals.
"Define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability;
No longer consider an emotional support animal to be a service animal;
Consider a psychiatric service animal to be a service animal and require the same training and treatment of psychiatric service animals as other service animals;
Allow airlines to require forms developed by DOT attesting to a service animal’s good behavior, certifying the service animal’s good health, and if taking a long flight attesting that the service animal has the ability to either not relieve itself, or can relieve itself in a sanitary manner" - U.S. Department of Transportation, January 22, 2020 (DOT-OST-2018-0068)
All of this came about after thousands of people began purchasing fake ESA letters sold by for-profit companies claiming to need an ESA due to having a mental "disorder" or "condition" listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). In 2018, an airlines trade organization boldly stated, "DOT's conflation of medical 'disorders' and 'conditions' identified in the DSM with the legal concept of 'disability' has created confusion and facilitates fraud."1
In a nutshell, DOT's unwitting language in Section 382.117(e)(1) is in part why fake ESA certification letters gained widespread traction. The proposed rule eliminates ESAs in the aircraft cabin because they are not individually trained to do work or perform tasks for the benefit of an individual with a disability. This is the same reason why the Department of Justice (DOJ) does not recognize support animals as service animals under the Americans with Disabilities Act (ADA).
Standardized Forms and More
After the Delta attack, airlines began requiring multiple forms for passengers with service and support animals in an effort to reduce "Fakers," one being a Veterinary Health Form attesting to the dog's vaccinations. Prior to this, owners of uncaged service and support animals in a cramped, crowded aircraft cabin did not have to provide proof of rabies vaccination. Due to this lack of proof, some passengers bitten by these dogs likely had to undergo post-exposure rabies treatment.
Under the proposed rule, DOT wisely standardized these forms into one set written by DOT. Previously, each airline had a unique set of forms. For instance, if a Delta flight connected to a United flight, the disabled passenger would need to be armed with both sets. DOT will require three forms: a health form, an attestation that the service animal is trained to behave in a public setting, and an attestation the animal will not relieve itself on flights longer than 8 hours.
The last question on DOT's behavioral attestation form states: "I understand that I am committing fraud by knowingly making false statements to secure disability accommodations provided under regulations of the U.S. Department of Transportation." Under the proposed rule, a Faker will now be subject to a federal crime, which is the proper jurisdiction for this crime. The following warning is also included on the behavior form for disabled passengers flying with a service animal:
"Warning: It is a Federal crime to make materially false, fictitious, or fraudulent statements, entries or representations knowingly and willfully on this form to secure disability accommodations provided under regulations of the United States Department of Transportation (18 U.S.C.§ 1001)." - U.S. Department of Transportation
Also, DOT finally ditched the absurd policy that an airline must accommodate a disabled person traveling with up to three service animals -- literally a pack of dogs, which could entail three pit bulls or rottweilers, allegedly being managed by a person with a disability onboard an aircraft. DOT now limits this to two service animals and requires both to fit on their handler's lap and/or within their handler's foot space on the aircraft, whereby eliminating the two-large-dogs scenario.
Pit Bulls and Breed Restrictions
In August 2019, DOT issued their final enforcement priorities regarding service animals. The department's non legally binding guidance came after multiple airlines started tightening policies on service and support animals in early 2018, including Delta banning pit bull-type dogs as service and support animals in July. DOT stated at that time, "The Enforcement Office continues to take the view that restrictions on specific dog breeds are inconsistent with the current regulation."
In September 2019, we published a significant follow up to DOT's guidance. We explained that due to how the current rule is written (Part 382), Delta likely has a legal basis for banning pit bulls; they would not have issued the ban otherwise. We also explained that DOT admitted in the guidance, there are still undefined areas in Part 382. Specifically, how airlines may (or may not) assess whether or not a service animal poses a "direct threat to the health or safety of others."
After Delta enacted their pit bull ban, they stated that "untrained, pit bull-type dogs posing as both service and support animals are a potential safety risk," and that "we must err on the side of safety." That was Delta's legal understanding of the Air Carriers Access Act (ACAA) at that time. Their viewpoint may have been emboldened due to Part 382 failing to define how airlines may (or may not) assess if a service animal presents a "direct threat to the health or safety of others."
"Absent an approach that clearly demonstrates an animal can behave properly, airlines should be able to impose breed restrictions to ensure passenger safety." - Delta Air Lines, May 23, 2018 (DOT-OST-2018-0068-1157)
DOT "guidance" cannot significantly alter Part 382. That must be done through a new rulemaking, which is what DOT proposed on January 22. But that is merely a "summary" of the NPRM. The full document is 94 pages. In it, DOT specifically seeks comments about whether a crowded aircraft cabin in flight justifies permitting airlines to prohibit specific dog breeds, as well as how airlines can assess if an individual service dog presents a "direct threat to the health or safety of others."
Learn why breed matters in service dogs and why pit bull service dogs are a bad idea. Primarily, pit bull "breed advocates," not advocates for the disabled, promote pit bulls as service dogs.
DOT Seeks Comments on Pit Bulls and Breed Restrictions, Pertaining to Service Animals in Crowded Airplane Cabin
In the proposed rule, DOT recognized for the first time that a "balance" must be struck between passengers and potentially hazardous service dogs. "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," states the Department.
"The cabins of most aircraft are highly confined spaces, with many passengers seated in close quarters and very limited opportunities to separate passengers from nearby disturbances. 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." - U.S. Department of Transportation, January 22, 2020 (DOT-OST-2018-0068)
Striking a balance in competing public interests -- the rights of passengers with service animals and the rights of passengers forced to sit next to a potentially hazardous dog -- has never before been uttered by DOT. Also, for the first time, DOT recognized that air travel, "which involves transporting a large number of people in a very confined space thousands of feet above the ground, is unique in comparison to airports, libraries" and other sites covered by the ADA.
DOT is now seeking comments on "whether, notwithstanding the DOJ rules under the ADA, the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bulls and any other particular breeds or types of dogs from traveling on their flights." The below paragraph is specifically what DOT seeks comments for. The last sentence is fanciful, as no assessment test, not even state-of-the-art SAFER, can detect unpredictable aggression.
"However, 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 because of their muscular bodies, large and powerful jaws and neck muscles, and ferocity when provoked to attack.2
The Department seeks comment on whether these concerns are valid. In particular, the Department seeks comment on whether, notwithstanding the DOJ rules under the ADA, the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bulls and any other particular breeds or types of dogs from traveling on their flights under the ACAA even when those dogs have been individually trained to perform as service animals to assist a passenger with a disability. The Department will consider this question in light of the full rulemaking record when finalizing this rule. The Department also seeks comment on whether its proposal to allow airlines 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 banning an entire breed or type of service animal." - U.S. Department of Transportation, January 22, 2020 (DOT-OST-2018-0068)
How to Provide Comment to DOT
We encourage all commenters to read pages 23 to 28 prior to writing your comment to DOT. The actual pit bull section is pages 25-28, but DOT leads into the pit bull section by acknowledging the need to exclude "capuchin monkeys" as service animals "because they may present a safety risk to other passengers" and may exhibit "unpredictable aggressive behavior." This is critical language that leads into DOT seeking comments about pit bull service dogs in the aircraft cabin.
- Comments are due by April 6, 2020
- If you have a long response, submit it as a PDF, there is no length limitation on submitted PDFs.
- In your PDF add the following:
- Docket Number: DOT-OST-2018-0068
- Traveling by Air with Service Animals Notice of Proposed Rulemaking (NPRM)
- Title your comment in reference to pit bulls or breed restrictions
- Submit to this website by clicking the blue "Comment Now!" button
- Submission category "Public Comment(s)"
If Lacking Enough Comments
DOT will likely explicitly add language to the final rule, Part 382, prohibiting any airline from banning pit bulls as service dogs in the cabin. This will no longer be non legally binding "guidance" readers, it will be federal law. This is a unique opportunity for professionals and members of the public to comment on this critical federal-level issue. Also, DOT noted that during the previous comment period (May-Jul 2018) only 22 percent of commenters supported pit bull restrictions.3
Ideas & Themes for Comments
- Your feedback and experience as a medical health professional.
- Your feedback and experience as a service dog trainer or handler.
- Your feedback and experience as a victim of a violent dog attack.
- Your feedback as an advocate for victims' of violent dog attacks.
- Your feedback as a person with aviation safety experience.
- Your feedback as a person seeking safety in an aircraft cabin.
- Flight Safety: Does a crowded airplane cabin in flight justify permitting airlines like Delta to prohibit pit bulls-type dogs as service dogs in the cabin?
- Flight Safety: Airplane travel is subject to intense and sudden turbulence, the sound of roaring engines and high intensity takeoffs and landings. Only "bomb proof" service dog breeds should be allowed in a crowded aircraft cabin.
- Flight Safety: Pit bulls bite and hold and often "repeatedly" attack. This is a well-identified, breed-specific bite risk that results in severe injury. Every effort should be taken to minimize this in an aircraft cabin that is isolated from help.
- Flight Safety: If DOT forbids airlines from prohibiting a specific breed or type in cabin travel and a sudden attack occurs at 35,000 feet -- or worse, during takeoff -- the safety of the entire aircraft and everyone onboard would be at risk.
- Flight Safety: There is no mechanism for passengers or crewmembers while in an aircraft cabin in flight to defend oneself if a pit bull-type dog suddenly attacks. No weapons of any sort are allowed onboard commercial flights.
- Flight Safety: Delta Air Lines and United Airlines already ban "strong-jawed" breeds, primarily fighting breeds, from cargo transport for health and safety purposes. Why would these breeds be allowed uncaged in a crowded airplane cabin?
- Flight Safety: The cabin of an airplane is not only crowded, it forces face-to-face encounters and eye contact that dogs interpret as signs of aggression. For this reason, airlines should be able to prohibit fighting breeds in the cabin.
- Injury Statistics: What are the regional statistics of pit bulls inflicting severe injuries and national statistics of pit bulls inflicting fatal injuries compared to other dog breeds? See also, national bite statistics by breed (37.5% pit bulls).
- Service Work: Why do most accredited service dog organizations use four specific dog breeds for service work -- Labradors, goldens, Labrador-golden crosses, standard poodles -- and discourage the use of guarding and fighting breeds?
- Assessment: Currently, there is no reliable behavior test that detects unpredictable aggression. Yet DOT presumes an airline, which would have to provide highly trained testers for this purpose, can easily "conduct an individualized assessment of a service animal's behavior" while the dog is in the lobby (airline ticket counter line).
- Pivoting: Despite the new DOT forms and dropping ESAs, some Fakers will pivot from an ESA to a PSA (45-47). For this reason, as the case of the Fake PSA that viciously attacked a man in the face resulting in a lawsuit showed, airlines should be able to restrict breed-types in the cabin (fighting breeds).
- Breed-Specific Laws: Over 900 jurisdictions in the U.S. impose restrictions on specific breeds, chiefly pit bulls; 42 countries impose pit bull restrictions at a national-level; and all three U.S. military divisions ban pit bulls in privatized housing.
- Unpredictability: Since 1988, appellate courts have upheld pit bull laws due to the breed's "unpredictable" aggression, including: "possesses inherent characteristics of aggression, strength, viciousness and unpredictability not found in any other breeds of dog" ... "pit bull dogs are unique in their 'savageness and unpredictability.'"
Summary and Call to Action
DOT's proposed rulemaking is a win for airlines, the public and public safety. It is also a win for persons with a disability flying with a service animal. The elimination of ESAs flying for free in the cabin is long overdue. Standardized forms provided by DOT to passengers with a service animal will reduce burden on these passengers and enhance public safety. Also, behavioral attestation forms created by airlines had no penalty. Now Fakers will face a federal crime for this act of fraud.4
For the first time ever, DOT recognized that a balance must be struck in the competing public interests between passengers with service animals and passengers forced to sit beside a potentially hazardous dog. Further, DOT recognized that the unique environment of a cramped airplane cabin allows them to increase restrictions on service dogs, verging from the DOJ's strict position on breed restrictions, which allows "service pit bulls" to evade municipal pit bull laws.
We implore all of our readers to submit a comment to DOT, which seeks feedback about "service pit bulls" flying in a crowded airplane cabin and whether airlines can prohibit specific breeds. Remember, it is primarily pit bull "breed advocates," not advocates for the disabled who promote pit bulls as service dogs. Many accredited service dog organizations only use specific dog breeds and discourage, even prohibit, the use of protection, guarding and fighting breeds in service work.
2While we do not know the motive of DOT's language choice in this case, "when provoked to attack," we do know that scientific medical studies consistently state that pit bulls frequently attack without provocation, "Pit bull terriers inflicted more complex wounds, were often unprovoked, and went off property to attack." (Kahn et al., 2019); "Most alarming is the observation that when attacks come from unfamiliar dogs, the pit bull was responsible for 60% and 63% of all injuries." (Prendes et al., 2015); and "Unlike all other breeds, pit bull terriers were relatively more likely to attack an unknown individual (+31%), and without provocation (+48%)." (O'Brien et al., 2015).
3As if passenger and crew safety in the aircraft cabin should be measured by a popularity contest.
4Multiple states have passed state laws making it a crime to falsely represent an untrained pet as a service animal. The problem is, these laws typically lack an enforcement body. Thus, they only hold value as being "symbolic." To our knowledge, no Faker has ever been prosecuted under one of these state misdemeanor laws.
08/19/19: Beneath the 'Headlines' of DOT's Final Guidance of Enforcement Priorities...
06/04/19: Delta Passenger Attacked in the Face by a Large "Support" Dog Sues Airline...
03/04/19: Mother of Child Mauled by an 'Emotional Support' Pit Bull at Portland Airport Sues
07/05/18: Why Breed Matters in Service Dogs and Why Pit Bull Service Dogs are a Bad Idea
06/23/18: Delta Bans Pit Bull-Type Dogs as Service, Support Animals in the Cabin
01/25/18: Delta Tightens Reins on Untrained 'Support' Dogs in the Aircraft Cabin
07/14/17: Delta Passenger is Severely Attacked by an Unrestrained Emotional Support Dog