Emotional support peacocks, ducks, and squirrels have all made headlines in recent years as unusual travel companions. While the public may love reading about the kookiest animals to take to the skies, these loosely regulated animals cause headaches for airlines, passengers, and other service animals. But exotic animals getting a free ride in coach may soon be a thing of the past. On February 5, 2020 the Department of Transportation ("DOT") published a notice of proposed rulemaking seeking to amend its regulations implementing the Air Carrier Access Act ("ACAA")—the law that prohibits air carriers from discriminating based on disability—that would drastically limit the definition of "service animals" that are permitted to fly for free with travelers.

The DOT seeks to amend the definition of "service animal" to "a dog that is individually trained to do work for or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." The current definition of "service animal" has no species restriction, with the exception of unusual species (think spiders and rodents), and includes "any animal shown by documentation to be necessary for the emotional well-being of a passenger," i.e. emotional support animals. Thus, the new definition would dramatically reduce the scope of service animals protected by the ACAA by limiting service animals to dogs and removing protections for emotional support animals.

The DOT explains that it limited the definition of "service animal" to dogs because "dogs have both the temperament and ability to do work and perform tasks while behaving appropriately in a public setting while surrounded by a large group of people." The DOT considered allowing other species of service animals, such as capuchin monkeys and miniature horses, but the DOT determined that these animals were not well suited to air travel. Capuchin monkeys may transmit disease and can exhibit unpredictable and aggressive behavior, and miniature horses are too big for aircraft.

The new definition of service animal would also permit airlines to treat emotional support animals like any other pet. The DOT argues that this approach is more in line with the Department of Justice's regulatory definition of "service animal" under the Americans with Disabilities Act, which does not recognize emotional support animals as service animals. The DOT's decision to remove protections for emotional support animals is based in part on comments from airlines indicating that emotional support animals jeopardize the safety of passengers, crew, and service animals. Moreover, there is concern that the proliferation of cheap and easy phony credentials has resulted in a rise in fraudulent claims that house pets are emotional support animals. For example, American Airlines reported a 48-percent increase in the number of emotional support animals on its flights between 2016 and 2017 and a 17-percent decline in the number of requests it received to transport pets for a fee during the same period. The DOT notes that airlines could still elect to recognize emotional support animals and transport them for free.

Other changes proposed by the DOT include a rule permitting airlines to place size limitations on service animals, a rule permitting airlines to require a service animal to be harnessed, leashed, or tethered, a rule permitting airlines to require travelers with a service animal to provide documentation of the animal's behavior, training, health, and, in the case of flights over eight hours, documentation that the animal would not need to relieve itself during the flight, and a rule prohibiting airlines from restricting service animals based solely on breed or generalized type of dog.

The DOT is accepting comments on the proposed rule until April 6, 2020. Traveling by Air with Service Animals, 85 Fed. Reg. 24 (Feb. 5, 2020) (to be codified at 14 C.F.R. pt. 382).

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