The Department's final rule allows fighting breeds as service animals in the aircraft cabin.
Final Rule Issued
Washington DC - On December 2, the Department of Transportation (DOT) issued its final rule on Traveling by Air with Service Animals. It is now absolute that the Air Carrier Access Act (ACAA) no longer recognizes emotional support animals (ESAs) as a service animal. Passengers claiming to have a disability and needing to fly with one or more ESAs in the aircraft cabin is finally an artifact of the past. The DOT's final rule also recognizes psychiatric service dogs as a service animal.
Passengers flying with a service animal must complete a combined behavior and health form developed by DOT, attesting to the dog's training, behavior, and health. This form also warns, "It is a Federal crime" to make fraudulent statements. DOT also allows airlines to require that service animals be harnessed or leashed at all times when onboard. However, the Department prohibits airlines, such as Delta, from banning pit bull breeds as service animals in the aircraft cabin.
Our ninth special report about traveling by air with service animals dives into the events that led up to the Department's final rule, including a violent facial attack by a lap-held "support dog" in 2017, along with the pros and cons of the final rule. We also discuss DOT's "open-ended," promise regarding future bans of fighting breeds in the cabin; DOT's false arguments about pit bull identification; and how DOT did not err on the side of safety regarding bans of fighting breeds.
Leading Up to the Final Rule
The need to mitigate the widely abused loophole in the ACAA pertaining to service animals and ESAs began with new urgency in 2017 after Marlin Jackson, then 44, was repeatedly attacked in the face by a large "support" dog seated on a man's lap on board Delta Flight 1430. At the time, Jackson was in a window seat. The dog attacked his face, while pinning him against the window. This occurred just after Jackson asked the owner multiple times, "Is your dog going to bite me?"
The 50-pound support dog that attacked Jackson was technically a psychiatric service animal, not an ESA, and it was clearly untrained.
Delta responded in January 2018 by tightening the reins on untrained "support" animals flying in the cabin. Delta began requiring passengers flying with an ESA or psychiatric service animal (PSA) to submit a signed Veterinary Health form verifying immunizations and a signed Animal Training form, attesting to the dog's behavior, to its support desk at least 48 hours before travel. Passengers with service animals were also required to show proof of basic immunizations.
As indicated above, ESAs and PSAs were formerly treated the same way by airlines. Both types required a signed letter from a licensed mental health professional stating the passenger has a mental health-related disability and that the passenger needed the animal for an activity at the passenger's destination. In 2018, to reduce fraudulent untrained "support" animals flying in the cabin, Delta began requiring a health and training form for these types of support animals too.
Just five months later, in June 2018, Delta banned pit bull-type dogs as service and support animals in the aircraft cabin. Delta also began limiting passengers with support animals (ESAs and PSAs) to one support animal per person. The new policy came after multiple employees were bitten by a passenger's ESA. Apparently, a passenger attempted to board a plane in Atlanta with not one, but two alleged emotional support pit bulls. Two Delta crew members were bitten.
"I can understand that many people have anxiety issues and that comfort animals can mitigate this. But not at the expense of the safety of others on board. Flying is stressful enough (and I have a basic fear of flying, though Martinis allow me to cope) without having to worry about your face being ripped off by someone's 'comfort pit bull.'" | full comment - Gaius Marius, who witnessed the attack
In our related special report, we pointed out in defense of Delta, that airlines are not subject to the Americans with Disability Act (ADA), which does not allow breed restrictions. We stated in June 2018: "Delta was correct in stating that 'untrained, pit bull-type dogs posing as both service and support animals are a potential safety risk.' Under the ACAA, the prohibition of pit bulls is apparently legal, as a safety standard, (§382.117) and Delta is free to 'err on the side of safety.'"
At that time, Delta also provided insight into their reasoning for the ban. A pit bull advocate left a comment on social media, sharing what Delta had told her after she complained about the ban: "Hello Lorraine, RE: Case 01211022 … We have worked with our Advisory Board on Disabilities to develop this more detailed policy. Pit bull type dogs tend to not behave as well in small spaces and we feel not allowing them is in the best interest of our customers and employees," Delta stated.
The issues of PSA fraud and pit bulls not behaving well in confined spaces play into DOT's final rule, so keep both aspects in mind.
In August 2019, the Department issued final guidance of its enforcement priorities. Parts of DOT's guidance, which is not legally binding, foreshadowed their final rule, stating, "the Department is not aware of and has not been presented with evidence supporting the assertion that an animal poses a direct threat simply because of its breed" and "The Enforcement Office continues to take the view that restrictions on specific dog breeds are inconsistent with the current regulation."
Airlines had 30 days to respond to the enforcement guidance. Delta responded by continuing its pit bull ban, stating: "Delta instituted its ban on pit bulls in 2018, to protect the airline’s employees, customers and trained service animals. Pit bulls account for less than 5 percent of the overall dog population but 37.5 percent of vicious dog attacks. Understanding this risk, Delta has not come to a solution for allowing pit bulls onboard that satisfies its own rigorous safety requirements."
On January 22, 2020, DOT issued a Notice of Proposed Rulemaking asking for public comments on whether a crowded airplane cabin justifies airlines banning pit bulls. Our comments focused on the unpredictable aggression by pit bulls, the disproportionate response by pit bulls when they attack and that airlines cannot conduct an "individualized assessment" for each service animal prior to flight because behavior tests, even when conducted by experts, have low predictive value.
"Airline travel has a number of unpredictable elements, from sudden turbulence to abrupt loud noises to long delays. This unpredictability combined with the extremely confined space inside an aircraft cabin could exacerbate the well-identified dangerous characteristics in pit bulls, a breed that consistently displays these traits -- failure to communicate intention before an attack, disinhibited aggression and a disproportionate response to stimuli -- when in a safe, predictable environment." - DogsBite.org (DOT-OST-2018-0068-18935)
This brings us to the present discussion of the Department's final rule. Despite well-crafted and cited public comments by this nonprofit and many airlines, all supporting the right to restrict certain breeds as service animals in the cabin -- specifically fighting breeds -- the DOT eliminated breed bans. DOT did so by citing the "ancient" and debunked American Temperament Test, which is not based upon scientific random sampling of any dog breed, is breed-specific and is biased.1
The Pros of DOT Final Rule
Airlines no longer have to accommodate emotional support animals (ESAs) in the airline cabin. The final rule now defines a service animal in coordination with the Americans with Disabilities Act (ADA). The DOT defines service animals 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." Airlines can now recognize ESAs as pets.
Prior to the final rule, ESAs were subject to airport rules governed under the ADA and had to be crated while in an airport, but were allowed to be loose in the aircraft cabin. Certainly, the DOT aligning its definition of a service animal with the Department of Justice will "reduce confusion for individuals with disabilities, airline personnel, and airports." The ACAA never should have had a special carve-out for ESAs to begin with since their sole function is to "provide comfort."
DOT now also limits each passenger to two service animals instead of three. While that may seem like a modest improvement, it points to the absurdity of a person with a disability managing three separate dogs in the cabin and airlines having to accommodate them. The airlines had wanted to limit passengers to only one service animal. The Department also clarified that airlines can refuse to transport two service animals if they cannot safely fit in the passenger's lap or foot space.
Leashing and Large Dogs
In a departure from the ADA, the Department's final rule "allows airlines to require service animals to be harnessed, leashed, or tethered at all times, even in instances where the device interferes with the service animal’s work or the passenger’s disability prevents use of these devices." DOT was convinced by commenters who explained to them that, "non-physical means of control over the service animal, such as voice commands or signals, could implicate safety on an aircraft."
Regarding large service animals, such as mastiffs and Great pyrenees, DOT stated that, "Passengers, including passengers with disabilities traveling with large service animals, are not entitled to more space than they purchased." However, airlines must accommodate passengers with large service dogs by moving them to a different seat, transporting the animal in cargo or by providing an opportunity to take a later flight if there is space available on the later flight.
Combined Unified Form
Under the final rule, passengers with service animals are required to complete a combined animal behavior and health form provided by the DOT for each trip.2 The form contains the following 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."
A unified DOT form eliminates forms created by each airline. Owners must attest to the behavior and training of their dog, that their dog has "not behaved aggressively or caused serious injury to another person/dog," that their dog must be tethered at all times, that airlines may treat their dog like a pet if it exhibits poor behavior and that if the passenger "knowingly make false statements on this document," he or she can be subject to fines and other penalties." DOT also states:
"[The form] educates the user that the animal must be harnessed, leashed, or otherwise tethered; that the animal may be treated as a pet if it engages in disruptive behavior; and that the user may be responsible for any damage caused by the service animal. The Air Transportation Form also provides airlines with a means of contacting the service animal user and the animal’s veterinarian in the event of an incident that endangers other passengers or service animals." - DOT final rule, 12/02/2020
Enforcement of the Federal crime notification -- the part that matters the most -- begins by an airline notifying the Office of Aviation Consumer Protection (ACP) of the fraud. The Office plans to refer these reports to the Department’s Office of the Inspector General for investigation and prosecution. ACP "does not have the authority to assess fines or other penalties on passengers who make false statements based on the ACAA or a regulation prescribed under that Act."
Finally, though the final rule prohibits airlines from banning certain breeds, specifically fighting breeds, which are already regulated at a national-level in at least 42 countries, the DOT said it 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 is data indicating that certain breeds pose a heightened threat to the health and safety of people in close proximity, we will revisit the issue.
42 countries barring the entrance of pit bull-type dogs into their borders is not enough evidence for DOT. All three branches of the U.S. military banning pit bulls from privatized housing is not enough evidence for DOT. Over a dozen medical studies from Level 1 trauma centers since 2011 examining serious dog bite injuries, largely inflicted by pit bulls, is not enough evidence for DOT. Thus, there will never be enough evidence for DOT. "Revisiting" this issue is an empty promise.
The Cons of DOT Final Rule
By the Department harmonizing its definition of a service animal with the ADA, psychiatric service animals (PSAs) no longer require a letter from a licensed mental health professional. That is good news for a qualified person with a disability, but bad news for service dog fraud. Many Americans have witnessed a dog owner claiming to have a service dog for "PTSD." Recall that DOT allows two service dogs per person as well. Thus, a pair of fake PTSD service pit bulls is foreseeable.
"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." - DOT final rule, 12/02/2020
Airlines had concerns about this too, stating in public comments, "the extensive fraud that airlines have experienced involving individuals who do not have a disability but falsely claim that their pet or other animal is a service animal will migrate to another service animal category (e.g., PSA or seizure-alert animal)." DOT promised to "monitor," by some mechanism, "whether unscrupulous individuals are attempting to pass off their pets as service animals for non-apparent disabilities."
The Breed Discussion
The "breed" discussion starts on page 34, where DOT suspends its commitment to treating traveling by air different than the DOJ's ADA regulations, which govern public ground facilities. DOT cites the "ancient," American Temperament Test, which lacks random sampling, as part of the reason why airlines should not be able to ban pit bulls. DOT also cites false information claiming that the American Pit Bull Terrier (e.g., UKC, ADBA) has no clear set of characteristics.
"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) … 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." - DOT final rule, 12/02/2020
Delta did not ban pit bulls due to properly trained pit bull service or support dogs. They banned them due to service dog fraud. "We must err on the side of safety … We struggled with the decision to expand the ban to [pit bull] service animals, knowing that some customers have legitimate needs, but we have determined that untrained, pit bull-type dogs posing as both service and support animals are a potential safety risk," Delta said in a statement to People in June 2018.
As we reported in April, the majority of airlines submitted comments stating they should be given discretion to make breed restrictions, as "carriers have ultimate responsibility for the safety of passengers and employees;" 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.
"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. 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.” 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. 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. 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." - DOT final rule, 12/02/2020
Consider the inconsistency presented by DOT thus far: Airline staff cannot visually identify a pit bull (not even veterinarians can, cites DOT), but airline personnel, who lack animal behavior expertise, can make an "individualized assessment" of a service animal's behavior -- how the dog will behave while flying in a crowded cabin at 35,000 feet -- while the dog is at the boarding gate. If a mistaken assessment is made with a pit bull service dog, the ramifications could be disastrous.
"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 [in a study funded by the Pit Bull Lobby3], 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…" - DOT final rule, 12/02/2020
Next, DOT rattles off multiple countries with strict entry bans for fighting breeds, but does not question why. Nor does DOT acknowledge that "airline employees are not veterinarians" and that assessment tests have a low predictive value, even when conducted by "experts." Instead of a breed ban, DOT states that "airlines are permitted to make an individualized assessment" of a service animal's behavior to determine if it "poses a direct threat" to the health or safety of others.
DOT concludes the breed discussion with a mixed-message and an empty promise to "monitor" studies that will likely never be funded or produced. While there may be a peer-reviewed study that examines the "best" breeds for service dogs, there will not be one that focuses on high-risk fighting breeds. It seems unlikely there would ever be an unbiased study about any dog breeds that examines the "heightened threat to the health and safety of people in close proximity" either.
"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." - DOT final rule, 12/02/2020
Faulty Logic Prevails
DOT compromised on fighting breeds based on error in logic. DOT states, "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." Then states, "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." Then fails to tie the two together.
Factor in the fact that 42 countries worldwide already have strict entry bans for fighting breeds, which DOT had to address separately (by allowing airlines traveling to those countries to ban those breeds in the cabin), along with the fact all three U.S. military divisions ban pit bulls from privatized housing and one is looking at a fallacy of major proportions. Recall DOT agreed to allow airlines to require leashing based on comments alone, none of which cited studies in the area.
"The use of fallacies is common when the speaker's goal of achieving common agreement is more important to them than utilizing sound reasoning. When fallacies are used, the premise should be recognized as not well-grounded, the conclusion as unproven (but not necessarily false), and the argument as unsound." - Wikipedia, 12/21/20
DOT did not err on the side of safety when traveling by air. They erred on the side of a tiny population that seeks out pit bulls as service dogs (fake or valid) to advocate for the breed. There is no other reason to choose a pit bull as a service dog. Even Tia Torres of Pit Bulls and Parolees admits this. Torres will not adopt one of her pit bulls to an individual "if your plans are to make it a service dog." Torres does not want one of her dogs placed into a situation that it is unqualified for.
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.
U.S. airlines no longer need to freely transport emotional support animals (ESAs) in the cabin. This is a major victory for airlines, passengers and public safety. However, ESA fraud may migrate to psychiatric service animals (PSAs). Passengers with PSAs are no longer required to have a letter from a licensed mental health professional either. DOT will monitor this situation, but the final rule did not explain how. Only that the ACP office is currently accepting input on this issue.
Airlines can now also require the harnessing or leashing of service animals at all times while onboard -- even if this interferes with the service animal’s work. Another "self-evident" public safety measure that previously was not required, along with DOT reducing the number of service dogs per passenger from three to two. Passengers with service animals must also submit a signed form attesting to their dog's good behavior and health that comes with a Federal crime warning.
DOT emphasized numerous times that carriers are permitted to require a service animal fit on their handler's lap or within its handler's foot space (as even larger dogs are trained to fit into small spaces). DOT provided no "weight" for a "lap-held" service animal, but FAA regulations mandate that lap-held service animals can be "no larger than a lap-held child," (Section 3-3576) which is limited to about 30-pounds. This means that no service pit bull can ever be on a passenger's lap.
Despite these new safety measures, which are highly welcomed, DOT reasoned they were enough to stop passengers from bringing pit bulls onboard posing as service dogs, especially, posing as psychiatric service dogs. We believe DOT is mistaken. Real service dogs and people will pay the price too. Again, DOT did not err on the side of safety. They erred on the side of a tiny population that seeks out pit bulls as service dogs (both fake and valid) to advocate for the breed.
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Ronald Kevin Mundy, Jr., then a 24-year old active Marine Corps member, was holding a 50-pound psychiatric service animal (PSA) on his lap before the dog repeatedly attacked Jackson in the face. Mundy could not stop his dog from attacking the first or second time, nor did Mundy heed the warnings Jackson asked him multiple times before the attack: "Is your dog going to bite me?" Mundy claimed his PSA was "issued to him for support," but the military does not "issue" or even fund PSAs.4 After the attack, Mundy was seen at the gate area cradling the dog and weeping, repeatedly saying, "I know they're going to put him down." | Review the new DOT form
What is the real result of lying on the form? Though this is undetermined, it seems likely that all the owner will have to say is, "My dog has never done this before." Welcome to Dog Bite Law 101.
2Each "trip" means each round-way trip. So if a passenger with disabilities takes three round trips to Denver in one year, he or she will be required to complete the DOT's animal behavior and health form three times.
3This particular study that was at least in part authored and funded by the Pit Bull Lobby was recently called out in American peer-reviewed literature, along with three other similar studies, for the authors' failure to disclose conflicts of interest. "As a result, some of the most influential literature has received authorship from persons who have a high risk of bias, yet this is not disclosed."
Voith VL, Trevejo R, Dowling-Guyer S, et al. Comparison of visual and DNA breed identification of dogs and inter-observer reliability. Am J Socio Res. 2013;3:17–29.
4In 2012, the Department of Veterans Affairs (VA) stopped funding PSAs because the agency is authorized to only pay for evidence-based therapies. Since then, the VA has stopped and started a study regarding whether a service or emotional support dog can assist a veteran with PTSD multiple times. The results are still not out.
04/08:20: Traveling by Air with Service Animals - Public Comments from DogsBite.org
04/13/20: Traveling by Air with Service Animals - Comments from Airlines and Associations
08/31/15: Who Can Identify a Pit Bull? A Dog Owner of 'Ordinary Intelligence' Say Courts