DOT PUBLISHES INTERIM STATEMENT OF ENFORCEMENT PRIORITIES
July 5, 2018
On May 16, 2018, DOT published an Interim Statement of Enforcement Priorities in order to update industry and the public of its intended enforcement focus with respect to service animals. This document was prepared to inform interested parties about DOT’s plans for enforcing current rules while the rulemaking process occurs and was, at least in part, likely prompted by numerous U.S. carriers, including Delta and United, unilaterally tightening their policies with respect to the carriage of service and emotional support animals.
DOT will focus its enforcement on “clear violations” of the applicable regulation:
- Species and Number – U.S. carriers must continue to accept the most commonly used service animals (i.e., dogs, cats, and miniature horses) for travel. DOT does not intend to take action if an airline limits passengers to transporting one emotional support animal or a total of three service animals.
- Advance Notice – Current regulations prohibit carriers from requiring advance notice for passengers with disabilities, unless the rule specifically permits advance notice. DOT intends to pursue enforcement action against carriers that impose advance notice requirements on passengers with disabilities that exceed that which is allowed under Part 382.
- Proof – While airlines are required to accept items such as vests and harnesses as evidence of a service animal’s status, DOT has advised that it would be reasonable to also request the passenger’s credible verbal assurance to ensure the passenger is an individual with a disability who has a need for the service animal.
- Check-in Requirements – DOT will take action against an airline that requires a passenger with a service animal to check-in at the ticket counter, instead of giving them the option to use an automated kiosk.
- Documentation – DOT does not intend to pursue enforcement action against carriers that require proof of a service animal’s vaccination, training, or behavior so long as the documentation is not required for passengers seeking to travel with a service animal that is not an emotional or psychiatric service animal.
- Containing Emotional Support Animals in the Cabin – DOT does not intend to pursue enforcement action against carriers that restrict the movement of emotional support animals in the cabin, provided the restriction is tied to a concern for the safety of other passengers and crew.
Several entities filed comments in response to the Interim Statement of Enforcement Priorities, including Delta, United, Airlines for America, and the International Air Transport Association. Comments were predominately supportive of the Department’s efforts in tailoring its enforcement activities to certain portions of the service animal requirements, and acknowledging industry concerns on numerous issues.
Interest groups have also weighed in. The Asthma and Allergy Foundation of America (AAFA) filed comments on June 20th advising that more than 25 million Americans have asthma and 50 million have allergies. AAFA advocates a balanced policy where airline passengers at risk of severe allergic reactions be considered equally to those who rely on comfort animals. AAFA also argues that DOT’s Air Carrier Access Act definition of service animal is broader than that under the Americans With Disabilities Act (ADA) and that DOT’s definition should be limited to the ADA definition (only dogs and in some cases miniature horses).
DOT’s Interim Statement of Enforcement Policies is available at: https://www.gpo.gov/fdsys/pkg/FR-2018-05-23/pdf/2018-10814.pdf
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Alexander Matthews (amatthews@eckertseamans.com or 202-659-6633).
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