Trump administration obliges airlines to carry “service” pit bulls

But only pit bulls who “fit within handler’s foot space on the aircraft”

         WASHINGTON D.C.––Elaine Lan Chao,  U.S. Secretary of Transportation throughout the Donald Trump presidential administration and almost certain to soon leave office,  on November 30,  2020 introduced a revised Air Carrier Access Act regulation on the transportation of service animals by air which in many respects promises to make flying safer,  but obliges airlines to accept pit bulls as service dogs until and unless a specific pit bull actually demonstrate dangerous behavior.

In practical terms,  this means the pit bull must actively menace or even bite someone before the pit bull can be removed from a flight.

Should a pit bull attack occur aboard a flight,  the flight would have to land before the pit bull could be safely distanced from proximity to passengers and crew.

Only dogs allowed as “service” animals

The new Department of Transportation regulation “will be effective 30 days after date of publication in the Federal Register,”  Chao concluded.

The final rule “Defines a service animal as a dog,”  excluding all other species,  who “is individually trained to do work or perform tasks for the benefit of a person with a disability,”  according to a Department of Transportation summary.

It “no longer considers an emotional support animal to be a service animal,”  but “requires airlines to treat psychiatric service animals the same as other service animals.”

Pit bulls underfoot

Airlines will be allowed “to require forms developed by the Department of Transportation attesting to a service animal’s health,  behavior and training,”  to be submitted “up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time.”

The revised Air Carrier Access Act regulation “Allows airlines to limit the number of service animals traveling with a single passenger with a disability to two service animals.”

It also “allows airlines to require a service animal to fit within its handler’s foot space on the aircraft;  allows airlines to require that service animals be harnessed, leashed,  or tethered at all times in the airport and on the aircraft;  and “continues to allow airlines to refuse transportation to service animals that exhibit aggressive behavior and that pose a direct threat to the health or safety of others.”

These three provisions tend to protect passengers from so-called “service” pit bulls,  not least because most pit bulls would not “fit within its handler’s foot space on the aircraft.”

Ruled against Delta Airlines

But the new Air Carrier Access Act regulation “Continues to prohibit airlines from refusing to transport a service animal solely based on breed,”  a policy in effect since August 8,  2019,  when the Department of Transportation issued a 28-page “Guidance on Nondiscrimination on the Basis of Disability in Air Travel.”

The “Guidance” held that Delta Airlines may not enforce a year-old policy that it does “not accept pit bull type dogs as service or support animals.”

U.S. Department of Transportation deputy general counsel James C. Owens wrote at the time that,  “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.”

Marlin Tremaine Jackson

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.

            (See How the Americans with Disabilities Act has become the “Pit Bull Pushers Act”,  Will lawsuits slow use of dogs as “ambassadors” for dangerous breeds?,  and Pit bull advocate assault aboard jet upstages “support dog” attacks.)

“May be concerns that certain dogs may be dangerous”

Under pressure from organizations representing airlines and flight attendants,  Transportation Secretary Chao on January 22, 2020 cracked the door open slightly 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.

Said the 94-page Department of Transportation proposal to amend the Air Carrier Access Act enforcement regulations,  “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 a crowded airplane cabin”

“In particular,” the Notice of Proposed Rulemaking said,  “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.”

The 122-page Final Rule on “Traveling by air with service animals” includes similar language,  but opts in outcome for reconciling the Air Carrier Access Act enforcement regulations with those enforced by the Department of Justice rules under the Americans with Disabilities Act,  just as did August 8,  2019 “Guidance on Nondiscrimination on the Basis of Disability in Air Travel.”

(See Pit bulls win, victims lose in USDOT & South Dakota Supreme Court rulings.)

700 comments

“The Department received nearly 700 comments on whether airlines should be permitted to restrict service dogs based on breed or type,”  the Department of Transportation summary introducing the Final Rule said.

“Most commenters,”  rallied by pit bull advocacy organizations,  “supported the Department’s proposal,  opposing a departmental regulation that would categorically exclude any specific dog breed or type,”  the summary continued.

But the discussion section accompanying the part of the Final Rule that forbids airlines from refusing to transport “service” pit bulls and other “service dogs” of known dangerous breeds included in full,  as an attachment,  the objections raised by Graham C. Keithley,  assistant general counsel representing Airlines for America;  William L. Whyte,  vice president for aviation operations and technical services with the Regional Airline Association;  and Paul Doell,  vice president for government Affairs and security policy for the National Air Carrier Association.

“No opportunity for egress”

American Airlines,  the Final Rule discussion section summarizes,  reminded the Department of Transportation rule makers that aircraft “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.”

“Some airlines argued that individualized assessments are not enough,”  the Final Rule discussion section acknowledged.  “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.”

Exemption for some international flights

Further,  the Final Rule discussion section recounted,  “Foreign airlines and commenters raised concerns about jurisdictions outside of the United States that impose entry restrictions on certain dog breeds.

“Deutsche Lufthansa Airlines urged the Department of Transportation to consider allowing airlines to restrict service animals of specific breeds because,  with respect to international travel from the United States,  there are additional foreign regulations to comply with concerning the transport of animals.

“Specifically,  Lufthansa noted that France and Germany,  for example,  have implemented strict entry bans for specific breeds of dogs,  such as Staffordshire bull terriers,  American pit bull terriers,  mastiff type dogs,  and Tosa Inu (France);  and pit bull terriers, American Staffordshire terriers,  Staffordshire bull terriers,  and bull terrier (Germany),  and that requiring airlines to transport all breeds may present a conflict of laws that would cause severe disruption,  not only to the airline but also to passengers.”

“To address this concern,”  the Final Rule discussion section said,  “the Department [of Transportation] has included language,  in section 382.79(a)(3),  that makes clear that an airline may deny transport to a service animal if the animal’s carriage would violate applicable health or safety requirements of a foreign government.”

ANIMALS 24-7 response attached in full

The Final Rule discussion section pertaining to “service” pit bulls also included in full,  as attachments,  submissions from Dogsbite.org and from ANIMALS 24-7.

(See Pit bulls on aircraft: ANIMALS 24-7 responds to federal proposal.)

Concluded the Final Rule discussion pertaining to pit bulls,  “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.”

Trump administration has favored pit bulls

Meanwhile,  the Department of Transportation decision came down,  as have all federal administrative rulings during the Donald Trump presidency,  in favor of pit bull advocates and owners.

This is consistent with pit bull advocacy positions taken by Lara Trump,  wife of Donald Trump’s son Eric.

U.S. Transportation Secretary Elaine Lan Chao,  wife of U.S. Senate majority leader Mitch McConnell since 1993,  was among the first cabinet appointments made by Donald Trump,  named to her position on January 31,  2017.

Chao,  67,  was previously Secretary of Labor,  2001-2009,  under President George W. Bush.

Compare to inaction on COVID-19 & aircraft

         The speed with which the Department of Transportation moved to oblige airlines to carry “service” pit bulls in passenger cabins,  accomplished within the same time frame that pit bulls killed 47 Americans,  contrasts with the the department’s inaction pertaining to preventing the spread of the COVID-19 coronavirus aboard aircraft.

         “Under the Trump administration,”  summarized Victoria Knight on November 20,  2020 for the Kaiser Health Network,  “government agencies such as the Federal Aviation Administration and the Centers for Disease Control and Prevention have failed to issue and enforce any national directives for air travel.

“The airline industry pins its safety clearance to a study funded by its leading trade group, Airlines for America,”  explained Knight,  “conducted by Harvard University researchers,  as well as one [study] headed by the Department of Defense,  with assistance from United Airlines.

54 straight hours?

“Both reports modeled disease transmission on a plane,  assuming all individuals were masked and the airplane’s highly effective air filtration systems were working.  The Harvard report concluded the risk of in-flight COVID-19 transmission was ‘below that of other routine activities during the pandemic,  such as grocery shopping or eating out,’”  Knight summarized,  “while the DOD study concluded an individual would need to,  hypothetically,  sit for 54 straight hours on an airplane to catch COVID-19 from another passenger.”

The International Air Transport Association,  Knight continued,  said that “out of the estimated 1.2 billion people who have flown so far in 2020,  only 44 cases of COVID-19 have been associated with air travel.”

But as Knight pointed out,  this very likely understates the risk,  because few COVID-19 cases are traceable to specific sources.

COVID-19 has to date killed nearly 280,000 Americans.

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