But rulemakers lean the other way. Pit bull advocates celebrate “victory” while the fight has just begun.
WASHINGTON D.C.––U.S. federal Department of Transportation secretary Elaine L. Chao on January 22, 2020 cracked the door open to allowing airlines to ban pit bulls and other dangerous dog breeds from passenger cabins, even if those dogs are claimed as service animals, who otherwise would be guaranteed transport in aircraft cabins under the Americans with Disabilities Act.
The Humane Society of the U.S. and other pit bull advocacy organizations spun the “Notice of Proposed Rulemaking” in exactly the opposite direction in the hours after Chao released it to media.
“The Department understands concerns about pit bulls”
But the 94-page Department of Transportation proposal to amend the Air Carrier Access Act enforcement regulations pertaining to air travel with service animals explicitly states, on page 27, that even though the department has received hundreds of comments from pit bull advocates opposing breed-specific restrictions, “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. The Department seeks comment on whether these concerns are valid.
“Unique environment of airplane cabin in flight”
“In particular,” the Notice of Proposed Rulemaking says, “The Department [of Transportation] seeks comment on whether, notwithstanding the Department of Justice rules under the Americans with Disabilities Act, 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 Air Carrier Access Act, even when those dogs have been individually trained to perform as service animals to assist a passenger with a disability.”
Victim advocates’ chance to testify
This affords dog attack victims and victim advocates, medical professionals, personal injury attorneys, and public health and safety advocates generally an unprecedented opportunity to provide written testimony to a federal agency about the uniquely severe risks presented by pit bulls, bull mastiffs, Rottweilers, and their mixes, especially in close quarters such as aboard aircraft and in boarding tunnels and passenger waiting areas.
Slow-moving lines of often highly stressed and jet-lagged people, swinging luggage up into overhead compartments, trying to soothe crying babies and bored toddlers, amid a vast array of unfamiliar sounds and odors, would be challenging for most dogs; but most dogs do not inflict a fraction of the harm typically inflicted within seconds when a pit bull, bull mastiff, Rottweiler, or similar type of dog detonates.
Little chance to escape
Further, aircraft passengers have little chance to escape from a dog attack, and airline personnel, even if trained to respond effectively to dog attacks, cannot move any more quickly through a crowded cabin than anyone else.
Complete instructions for responding to the Notice of Proposed Rulemaking pertaining to air travel with service animals are on page 2 of the 94-page notice, which may be downloaded in pdf form here: https://www.regulations.gov/document?D=DOT-OST-2018-0068-4724.
Existing policy requires “individualized assessment”
Notwithstanding the opportunity that the Notice of Proposed Rulemaking offers to dog attack victim advocates and others to make a strong case for breed-specific regulation of service dogs in air travel, the Department of Transportation “is proposing that airlines should continue to be prohibited from restricting service animals based solely on the breed or generalized type of dog.”
Explains the Notice of Proposed Rulemaking, “The Department’s policy has been to require airlines to conduct individualized assessments of particular service animals based on the animal’s evident behavior or health, rather than applying generalized assumptions about how a breed or type of dog would be expected to behave. Under this policy, the Department allows airlines to refuse transportation to dogs that exhibit aggressive behavior and that pose a direct threat to the health or safety of others regardless of breed, and we propose to retain that policy in our new service animal rule.”
Is “individualized assessment” adequate?
The Notice of Proposed Rulemaking mentions that the Department of Justice “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.”
However, the Notice of Proposed Rulemaking continues, “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.”
Irrespective of whether the Department of Transportation adopts breed-specific regulations, the Notice of Proposed Rulemaking “proposes to allow airlines to place size limitations on service animals to the extent that the animal must fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap.
“While the Department is sensitive to the fact that many large service animals, such as German shepherds, golden retrievers, and Labrador retrievers, tend to accompany individuals with disabilities, particularly individuals with mobility impairments, these animals are often trained to fit into small spaces,” the Notice of Proposed Rulemaking explains.
Dogs the size of most pit bulls, bull mastiffs, Rottweilers, Boerboels, Cane Corsos, and pit bull variants such as Presa Canarios, Dogo Argentinos, and so-called American bullies would not fit into the passenger foot space on most aircraft with any amount of training, nor would any mastiff variant.
“Guidance on Nondiscrimination”
The Department of Transportation “Notice of Proposed Rulemaking” comes six months after the department on August 8, 2019 published a 28-page “Guidance on Nondiscrimination on the Basis of Disability in Air Travel,” which held that Delta Airlines may not enforce a then one-year-old policy that it does “not accept pit bull type dogs as service or support animals.”
According to the August 2019 “Guidance,” signed by U.S. Department of Transportation deputy general counsel James C. Owens, “The Department’s disability regulation allows airlines to deny transport to an animal if, among other things, it poses a direct threat to the health or safety of others. However, 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.”
Owens was apparently able to make that statement only because the Delta policy prohibiting pit bulls was adopted after the comment period had already closed on a draft edition of the “Guidance.”
That left Delta with no opportunity to furnish evidence documenting the need for the policy, introduced on June 22, 2018, after “two Delta employees were bitten by a pit bull traveling as a support animal last week,” the airline said.
This followed the June 2017 mauling of Delta passenger Marlin Tremaine Jackson by an alleged service pit bull aboard a plane scheduled to fly from Atlanta to San Diego. Jackson, who was in a window seat with no opportunity to avoid a severe and allegedly totally unprovoked facial bite, sued Delta; the case at last report was still before the courts.
Service dog must be individually trained
In the January 22, 2020 “Notice of Proposed Rulemaking,” the Department of Transportation “proposes to define a service animal as a dog who 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.
“Furthermore,” the Notice of Proposed Rulemaking adds, the Department of Transportation “proposes to allow airlines to recognize emotional support animals as pets rather than service animals.”
This proposal by itself would appear to exclude substantially more than 90% of all pit bulls, bull mastiffs, Rottweilers, and their mixes, who have been flown free of charge in passenger cabins under the present regulations, from continuing to receive that privilege.
Potty-training & rabies vaccination
Few if any recognized agencies that train guide dogs, hearing dogs, and other dogs to perform specific services for disabled persons, as recognized by the Americans with Disabilities Act, accept for training any dogs of breeds that tend to be highly reactive, aggressive toward either humans or other animals, easily distracted, or easily capable of pulling down a disabled person with a sudden lunge.
The Notice of Proposed Rulemaking also “proposes to allow airlines to require all passengers with a disability traveling with a service animal to complete and submit to the airline forms developed by the Department of Transportation attesting to the animal’s training and good behavior, certifying the animal’s good health,” including requiring proof of vaccination against rabies, “and attesting that the animal has the ability either not to relieve itself on a long flight or to relieve itself in a sanitary manner.”
“Harnessed, leashed, or otherwise tethered”
In addition, the Notice of Proposed Rulemaking “would allow airlines to set policies to limit the number of service animals that one passenger can bring onboard an aircraft,” and would “generally require service animals,” a category which would be narrowed to include only dogs, “to be harnessed, leashed, or otherwise tethered.
Further, the Notice of Proposed Rulemaking “proposes requirements that would address the safe transport of large service animals in the aircraft cabin and would clarify when the user of a service animal may be charged for damage caused by the service animal.”
The Notice of Proposed Rulemaking notes that the Department of Justice “does not recognize emotional support animals as service animals because they are not individually trained to do work or perform tasks for the benefit of an individual with a disability,” and already limits the definition of service animals to dogs.
No more mini-horses in passenger cabins
The Americans with Disabilities Act recognizes the use of miniature horses as service animals, but allows exceptions to be made to the usual rules requiring service animal access to public places where public safety is an issue. Therefore, explains the Notice of Proposed Rulemaking, miniature horses would no longer be allowed in aircraft cabins as service animals.
“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,” the Notice of Proposed Rulemaking acknowledges. “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.”
“Emotional support animals” up, paid pet fares down
Describing the need for the new regulations included in the Notice of Proposed Rulemaking, the notice mentions that “American Airlines commented that it experienced a 48% increase in the number of emotional support animals carried in 2017 compared to 2016 (105,155 in 2016 and 155,790 in 2017). American Airlines also commented that it experienced a 17% decline in the number of requests to transport pets for a fee in 2017 in comparison to 2016.”
The airline industry organization Airlines 4 America “estimates that airline carriers transported 751,000 emotional support animals in 2017, a 56.1 percent increase from 2016,” the Notice of Proposed Rulemaking continued. “This number nearly equals the 784,000 pets transported in 2017. Airlines charge as much as $175 to transport pets on a one-way trip, giving passengers an incentive to claim their pets as emotional support animals.”
“Peacock, ducks, turkeys, pigs, iguanas”
Meanwhile, the Notice of Proposed Rulemaking adds, “U.S. and foreign airlines reported receiving 3,065 service animal complaints directly from passengers in 2018, 2,473 complaints in 2017, 2,433 in 2016, and 1,629 in 2015, compared with 1,010 such complaints in 2014 and 719 in 2013.
“Passengers have attempted to fly with many different unusual species of animals,” the notice continues, “such as a peacock, ducks, turkeys, pigs, iguanas, and various other types of animals as emotional support or service animals, causing confusion for airline employees and additional scrutiny for service animal users.
“Disability advocates have voiced concerns that the use of these unusual service animals on aircraft erodes the public’s trust and confidence in service animals.
“Airlines, meanwhile, have expressed concern about the heightened attention these animals have received and the resources airlines expend each time an unusual or untrained animal is presented for transport on an aircraft.”
Describing an issue commonly involving pit bulls, the Notice of Proposed Rulemaking acknowledges that “Passengers wishing to travel with their pets may be falsely claiming that their pets are service animals so they can take their pet in the aircraft cabin, or avoid paying pet fees charged by most airlines, since airlines cannot charge service animal users a fee to transport service animals.
“There have also been reports of some online entities that may, for a fee, provide individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that the animal is an emotional support animal or psychiatric service animal, when in fact it is not.”
Current Department of Transportation rules allow airlines “to require documentation from a licensed mental health professional for the carriage of emotional support animals,” the Notice of Proposed Rulemaking notes, but “the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals.”
Many of the concerns addressed by the Notice of Proposed Rulemaking respond to Congressional directives included in the Federal Aviation Administration Reauthorization Act of 2018.
This Act required the Department of Transportation to tighten “the definition of the term service animal and to develop minimum standards for what is required for service and emotional support animals.”
Further, the Notice of Proposed Rulemaking recounts, “Congress directed the Department to consider measures to ensure that pets are not claimed as service animals,” including “photo identification for service animals, training documentation, medical documentation indicating the tasks the animal performs to assist its user, and whether more than one service animal should be permitted to accompany a passenger.”
No capuchins as they “may exhibit unpredictable aggressive behavior”
The Notice of Proposed Rulemaking adds that, “The Department considered, but decided against,” including capuchin monkeys within the definition of service animals who must be allowed in the passenger cabins of aircraft.
“Although trained capuchin monkeys can assist persons of limited mobility with their daily tasks, we are not proposing to recognize capuchin monkeys as service animals,” the Notice of Proposed Rulemaking explains, “because they may present a safety risk to other passengers as they have the potential to transmit diseases and may exhibit unpredictable aggressive behavior.”