Summary of Comments
Washington D.C. - After submitting our own comments to the Department of Transportation (DOT), which outlines why airlines should be allowed to prohibit specific breeds -- pit bulls and fighting breeds -- as service animals from flying in the space of a confined aircraft cabin, we reviewed comments from airlines and airline trade associations regarding breed restrictions. The majority seek the ability to prohibit certain breeds from flying in-cabin should the airline choose to.
Common themes include: airlines should be given discretion to make this policy determination, as "carriers have ultimate responsibility for the safety of passengers and employees" and airline staff are on the frontline of safety; there are valid breed-type behavioral risks and certain breeds are unsuitable for service work; an "individualized assessment" conducted on land cannot predict what occurs in the air; and many countries have breed-specific laws that airlines must comply with.
DOT's reliance on an "individualized assessment" is based upon the approach taken under the Americans with Disabilities Act (ADA).
In the Notice of Proposed Rulemaking (NPRM), DOT stated 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. Yet, DOT did not consider the difficulties or reliability of conducting an "individualized assessment" of service animals in air travel, a method DOT prefers over airlines banning a breed or breed-type.
Most airlines also requested clarification -- if DOT continues to prohibit airlines from restricting certain breeds as service animals -- when transporting these breeds to a country with laws banning their importation or ownership. If airlines are forced to accommodate these breeds to a country, "the airline would be required to transport the passenger and his/her dog back to the United States if the dog were denied entry into that country," noted the airline trade associations.1
Currently, two airlines, Delta Air Lines and Allegiant Air, ban pit bull-type dogs as service animals in the aircraft cabin. These bans began during 2018 and remain in place today, despite both being "inconsistent" with DOT's final enforcement priorities issued last August. In the NPRM, DOT asked for comments on whether "the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bulls." Below are parts of comments from airlines in response.
Comments by Air Canada
"It is important to understand that the goal is not to limit a specific breed but to limit any type of situation where safety would be jeopardized by the impossibility of containing a potentially dangerous situation, and to allow airlines to make their own assessments … Air Canada submits that this individual assessment it not an adequate measure to ensure that aggressive animals are not transported on aircraft, on the basis that it is ineffective and risky. Indeed, this evaluation is based on day-to-day situations that occur on land. The behavioral reaction of an animal in an aircraft environment, in a confined space, in a pressurized environment and in turbulence cannot be evaluated beforehand and therefore the analysis would not be adequate."
Comments by Allegiant Air
"Allegiant's decision not to carry pit bull type dogs was and is based entirely on concern for the safety of passengers, crewmembers, other animals in the cabin, and airport personnel. Through research, analysis and experience, Allegiant has determined the presence of pit bull type dogs in the cabin is inimical to safety ... In the NPRM the Department at least tentatively takes the view, as it has for some time, that pit bulls presented for carriage in the cabin should be assessed individually. But neither airport nor cabin personnel are in a position to make reliable case-by-case assessments of animals with a documented propensity for unpredictable, violent attacks. Airline employees are not veterinarians, veterinary staff, animal shelter employees or other individuals who might possess the expertise to make judgment calls in this area. Nor can they accurately forecast an animal’s reaction to the environment and stimuli it encounters in the close quarters of an aircraft cabin."
Joint Comments of A4A, RAA, and NACA
"DOT proposes to continue to prohibit airlines from restricting transport of service animals based on breed or generalized type of dog. We are concerned that this limitation would increase the risk of animal misbehavior, which could result in serious injury to other passengers, crew, and service animals. Certain breeds of dog, which account for a small minority of the total dog population, are not suited to function as trained service animals. Some airlines have experienced incidents of aggressive behavior by such breeds, which have resulted in extremely serious injuries to passengers, crew, and other animals."
Comments by American Airlines
"American Airlines submits that airlines should be permitted to determine that a breed of animal is too dangerous to fly in the cabin as a service animal because of the undue and direct threat it poses. American asserts 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, our passengers, and other service animals ... Carriers have ultimate responsibility for the safety of passengers and employees, and incidents with aggressive dogs are not as easily mitigated in the air, as in a place of public accommodation."
Comments by Spirit Airlines
"The ultimate responsibility to keep passengers safe lies with the airline, and it should be in the airline's discretion whether to allow certain breeds that are capable of more harm in the event an animal shows aggressive behavior. As the Department notes, the unique environment of a crowded airplane cabin in flight requires more protections for other passengers than, say, a library under the Americans with Disabilities Act. While Spirit does not advocate for restricting certain breeds for no reason, it believes the decision should be left to the airlines."
Fraudulent Service Animals
The core issue of service and emotional support animals (ESA) in air travel, which culminated in the NPRM, has always been driven by fraud. There are two types of fraud: A person claims to have a disabling physical or mental condition, but does not and/or a person claims to have a trained service animal or ESA, but does not. This problem is many years old. Due to this fraud, the majority of airlines praised DOT for eliminating ESAs from their definition of a service animal.
"We applaud DOT for a sound proposal that promotes the needs of qualified individuals with a disability to travel with a trained service animal." - Joint Comments of A4A, RAA, and NACA
Furthermore, despite some issues still outstanding (such as breed restrictions), airlines urged DOT to finalize the proposed rule "as soon as possible so that these reforms are implemented without delay." The new service animal rule will be an "important step towards reducing the widespread abuse of existing service animal regulations and will ease the continuing challenges that untrained animals pose to passengers, crew, and legitimate service dogs," stated United Airlines.2
With that in mind, we are calling to attention a bold proposal in the airline trade associations' comments, which represents the interests of dozens of airlines. They propose consolidating DOT's proposed three forms into one to reduce the burden of qualified individuals flying with a trained service animal. We agree this is a good solution (see Consolidated DOT form). What is bold on their part is that they seek proof by an accredited entity the service animal has been trained.3
"DOT's form should require that passengers specify the name of the accredited organization and be able to present evidence of training or evaluation by such an organization. Without this requirement, airlines would have no reliable assurance that the animal is trained or will behave appropriately once onboard the aircraft." - Joint Comments of A4A, RAA, and NACA
A self-signed attestation form that "my service dog will behave" is not enough, according to airlines. Again, airlines want to reduce fraudulent service animals. While airlines are pleased DOT proposed eliminating ESAs from the definition of a service animal, there remains a fear that ESA owners will then "migrate" to claiming their dogs are psychiatric service animals (PSA), which are included in DOT's definition of a service animal, and fake service dogs in air travel will continue.
To discuss this more in depth, we have to go to back to 2008, when the ADA underwent revisions, along with a public comment period. Those revisions were adopted in 2010. Under those revisions, DOJ, purposely required no certified training or licensing for a service dog, thus the era of Internet "shopping cart" style service animals officially began.4 Via a few mouse clicks and a payment, a dog owner could register his pet as a service dog. This fraud continues today.
The DOJ's reasoning back then, and still today, is that many individuals with a disability self-train service dogs.5 We understand this and respect this, however, the lack of certification or training documentation also opens the door to fraud. We see this fraud routinely in spaces governed under the ADA (supermarkets, etc). In the confined spaces of air travel, however, there is no margin for error. Airlines asking for proof that an accredited entity has validated the dog's training is justified.
Furthermore, according to airline trade associations, if DOT is unwilling to allow airlines to prohibit specific breeds from flying in-cabin as service animals, then DOT should allow airlines to require that passengers provide "a training and behavior attestation form that includes a certification by an accredited organization as to an animal's behavior and training. This would be a minimally necessary measure to protect the safety of the traveling public," states the joint comments.6
"If DOT is not willing to allow airlines to prohibit specific dog breeds from traveling in-cabin as service animals, it becomes even more important that DOT allow airlines to require that passengers, no later than 48 hours prior to travel, provide the airline with a training and behavior attestation form that includes a certification by an accredited organization as to an animal's behavior and training. This would be a minimally necessary measure to protect the safety of the traveling public, crew, and other animals." - Joint Comments of A4A, RAA, and NACA
This proposal leverages the inability for airlines to prohibit certain breeds from flying in-cabin against requiring proof of "certification by an accredited organization" to ensure passenger and crew safety. If airlines cannot have the first option, then airlines request the second option. Only under the second option, along with requiring this documentation 48 hours in advance of travel, would airlines be confident that the "minimally necessary" safety standards were met.7
The comments from airlines are direct, articulate and reflect their priorities. Their highest priority is the safety of passengers, crewmembers and legitimate service animals onboard aircraft. Further, they reflect the culture of air travel. As Allegiant Air eloquently stated, "Accepting the risk created by the presence of pit bull type dogs in the confined environment of an aircraft cabin is frankly at odds with the culture that has led to the sterling safety record of the U.S. airline industry."8
Not only is safety "paramount" in air travel, airlines currently must mitigate substantial service dog fraud with comparatively weak tools.
DOT must get this safety issue right. Airlines must have the ability to restrict certain breeds -- pit bulls and fighting breeds -- in the aircraft cabin. The airlines have stated this loud and clear. The mere "presence" of these dogs is a "direct threat." Allegiant stated it has "determined the presence of pit bull type dogs in the cabin is inimical to safety." American Airlines stated that DOT should permit carriers to prohibit certain breeds, "because certain breeds pose a direct threat."
The elimination of ESAs from the DOT's definition of a service animal should reduce service animal fraud. What remains unknown is how many fake ESA owners will migrate over to fake PSA owners, claiming the dogs are PTSD or seizure-alert service animals? Airlines need robust tools to counter this fraud. The simplest tool is to prohibit pit bull-type dogs in-cabin. A much more contentious tool is requiring proof by an accredited entity the service animal has been trained.
2Comments from United Airlines, Inc. Traveling by Air with Service Animals (DOT-OST-2018-0068-19250).
3See footnote 1.
4Q17. Does the ADA require that service animals be certified as service animals? No. Covered entities may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, as a condition for entry. Frequently Asked Questions about Service Animals and the ADA (ada.gov).
5Q5. Does the ADA require service animals to be professionally trained? A. No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program. Frequently Asked Questions about Service Animals and the ADA (ada.gov).
6See footnote 1.
7The second option is akin to airlines asking DOT for the Holy Grail, as the ADA prohibits this due to the number of self-trained dogs. DOT has recognized that air travel is unique and warrants tighter restrictions. But if DOT were to ever agree to this option, push back by attorneys and advocates for individuals with disabilities would be extreme. It would be a rekindling of a massive debate settled by the ADA a decade ago. It's far simpler for DOT to allow airlines the ability to prohibit a singular dog breed, pit bulls, because they present a clear and present danger (a "direct threat") to passengers, crew and legitimate service animals in the confined space of an aircraft cabin.
8Comments from Allegiant Air, LLC. Traveling by Air with Service Animals (DOT-OST-2018-0068-19164).
04/08/20: Public Comments of DogsBite.org to the Department of Transportation
02/01/20: DOT Seeks Comments on Pit Bulls and Breed Restrictions in Crowded Airplane Cabin
08/19/19: Beneath the 'Headlines' of the DOT's Final Guidance of Enforcement Priorities