Passengers seeking to travel with their service animals in the main cabin may soon face new restrictions from airlines, as the Department of Transportation (“DOT”) recently published a Notice of Proposed Rulemaking (“NPRM”) to alter existing DOT regulations. 85 Fed. Reg. 6448 (Feb. 5, 2020). The NPRM represents DOT’s latest effort to carry out the Air Carrier Access Act of 1986, 49 U.S.C. § 1705 (“ACAA”), which prohibits air carriers from discriminating against a qualified individual on the basis of physical or mental impairment. The NPRM arises, in part, from DOT’s stated desire to harmonize its regulations with rules promulgated by the Department of Justice to implement Titles II and III of the American’s with Disabilities Act.

The proposed rules, if implemented, would define the previously undefined term “service animal” to mean “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.” 85 Fed. Reg. at 6474. Whereas current DOT rules require airlines to recognize a variety of animals as “service animals,” this new definition specifically allows airlines to limit service animals to dogs. Id. at 6450. The NPRM states this limitation is in response to concerns from both airlines and disability advocates regarding attempts by passengers to fly with unusual species like ducks, pigs, and iguanas. Id. at 6450. Airlines would have the option to recognize other species as service animals, but would not be required to do so under the proposed rules. Id. at 6454.

Importantly for many travelers, the proposed rule goes on to state that “[e]motional support animals, comfort animals, companionship animals, and service animals in training are not service animals” under the regulations. 85 Fed. Reg. at 6474. This definition draws a clear distinction between “service animals” (which are trained to do work) and “emotional support animals” (which are not). The proposed rule would specifically allow airlines to treat emotional support animals as ordinary pets. This is a significant departure from DOT’s current regulations, which “require airlines to recognize emotional support animals as service animals” regardless of whether they have received any specialized training. Id. at 6450; see 14 CFR § 382.117(e).

Airlines would be required to allow a qualifying service animal to accompany a passenger with a disability, provided that the animal does not present a threat to health and safety or would otherwise violate FAA safety requirements. 85 Fed. Reg. at 6476. However, the airline may ask a passenger if the service animal must accompany the passenger due to a disability, and may also ask what work the animal has been trained to perform. Id. at 6475. The proposed rules would also allow airlines to use a standard form that requires a passenger to attest to the training and behavior of the service animal. Id. at 6464-66. Finally, airlines would be permitted to limit the number of service animals to two per passenger, and to require service animals to be leashed or harnessed while in flight. Id. at 6452.

The proposed rules would provide airlines with a safe harbor to restrict the presence of pets and service animals within the cabin. Airlines should be aware, however, that the NPRM represents a regulatory ceiling, rather than a floor. As the NPRM makes clear, air carriers “are not permitted to establish additional restrictions on the transport of service animals outside of those specifically permitted by the provisions in this Part,” unless required by applicable law. 85 Fed. Reg. at 6476.

The public comment period is currently open through April 6, 2020. Information on how to submit a comment can be found in the NPRM.