47902 Federal Register / Vol. 74, No. 180 / Friday, September 18, 2009 / Proposed Rules 

products identified in this rulemaking 

action. 

Regulatory Findings 

We have determined that this 

proposed AD would not have federalism 

implications under Executive Order 

13132. This proposed AD would not 

have a substantial direct effect on the 

States, on the relationship between the 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

For the reasons discussed above, I 

certify that the proposed regulation: 

1. Is not a ‘‘significant regulatory 

action’’ under Executive Order 12866; 

2. Is not a ‘‘significant rule’’ under the 

DOT Regulatory Policies and Procedures 

(44 FR 11034, February 26, 1979); and 

3. Will not have a significant 

economic impact, positive or negative, 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

We prepared a regulatory evaluation 

of the estimated costs to comply with 

this proposed AD and placed it in the 

AD docket. See the ADDRESSES section 

for a location to examine the regulatory 

evaluation. 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Incorporation by reference, 

Safety. 

The Proposed Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA proposes to amend 14 CFR part 

39 as follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

2. The FAA amends § 39.13 by 

removing amendment 39–11457 (64 FR 

69389, December 13, 1999) and adding 

the following new AD: 

McDonnell Douglas: Docket No. FAA–2009– 

0866; Directorate Identifier 2009–NM– 

074–AD. 

Comments Due Date 

(a) The FAA must receive comments on 

this AD action by November 2, 2009. 

Affected ADs 

(b) This AD supersedes AD 99–25–14. 

Applicability 

(c) This AD applies to McDonnell Douglas 

Model MD–11 and MD–11F airplanes, 

certificated in any category, as identified in 

Boeing Alert Service Bulletin MD11–28A140, 

dated November 6, 2008. 

Subject 

(d) Air Transport Association (ATA) of 

America Code 28: Fuel. 

Unsafe Condition 

(e) This AD results from reports that the 

wire assembly for the alternate fuel pump is 

missing a case ground wire, and the lightning 

protection wire braid for wire assemblies 

located in the empennage and number 2 

engine inlet are grounded improperly. The 

Federal Aviation Administration is issuing 

this AD to prevent insufficient grounding of 

the fuel pump, which in combination with an 

electrical failure within the fuel pump and a 

compromised electrical bond could cause a 

fuel tank ignition, resulting in consequent 

fire or explosion. 

Compliance 

(f) You are responsible for having the 

actions required by this AD performed within 

the compliance times specified, unless the 

actions have already been done. 

Restatement of Requirements of AD 99–25– 

14 With No Changes 

Inspection and Corrective Actions 

(g) Within 30 days after January 18, 2000 

(the effective date of AD 99–25–14), perform 

a one-time visual inspection of the wire 

harnesses of the tail tank fuel transfer pumps 

to determine if metallic transitions are 

installed, and to determine if damaged wires 

are present, in accordance with McDonnell 

Douglas Alert Service Bulletin MD11– 

28A101, dated August 24, 1998 (‘‘the service 

bulletin’’). 

(1) If all metallic transitions are installed, 

no further action is required by paragraph (g) 

of this AD. 

(2) If metallic transitions are not installed, 

accomplish the following: 

(i) Prior to further flight, accomplish the 

temporary repair in accordance with 

condition 2 of the service bulletin; 

(ii) Repeat the visual inspection thereafter 

at intervals not to exceed 2 years; and 

(iii) Within 5 years after January 18, 2000, 

permanently modify the wire harnesses in 

accordance with McDonnell Douglas Service 

Bulletin MD11–28–102, Revision 01, dated 

June 23, 1999. Accomplishment of this 

modification constitutes terminating action 

for the repetitive inspection requirements of 

this AD. 

Note 1: Modification of the wire harnesses 

accomplished prior to January 18, 2000 (the 

effective date of AD 99–25–14), in 

accordance with McDonnell Douglas Service 

Bulletin MD11–28–102, dated January 29, 

1999, is considered acceptable for 

compliance with the modification required 

by paragraph (g)(2)(iii) of this AD. 

New Requirements of This AD 

Modification 

(h) Within 72 months after the effective 

date of this AD, modify the case grounding 

for the alternate fuel pump of the tail tank, 

the leak detection thermal switch grounding 

for the number 2 engine, and wire braid 

grounding in the empennage and number 2 

engine inlet, in accordance with the 

Accomplishment Instructions of Boeing Alert 

Service Bulletin MD11–28A140, dated 

November 6, 2008. 

Alternative Methods of Compliance 

(AMOCs) 

(i)(1) The Manager, Los Angeles Aircraft 

Certification Office (ACO), FAA, has the 

authority to approve AMOCs for this AD, if 

requested using the procedures found in 14 

CFR 39.19. Send information to ATTN: 

Samuel Lee, Aerospace Engineer, Propulsion 

Branch, ANM–140L, FAA, Los Angeles ACO, 

3960 Paramount Boulevard, Lakewood, 

California 90712–4137; telephone (562) 627– 

5262; fax (562) 627–5210. 

(2) To request a different method of 

compliance or a different compliance time 

for this AD, follow the procedures in 14 CFR 

39.19. Before using any approved AMOC on 

any airplane to which the AMOC applies, 

notify your principal maintenance inspector 

(PMI) or principal avionics inspector (PAI), 

as appropriate, or lacking a principal 

inspector, your local Flight Standards District 

Office. The AMOC approval letter must 

specifically reference this AD. 

Issued in Renton, Washington, on 

September 11, 2009. 

Stephen P. Boyd, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. E9–22580 Filed 9–17–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

14 CFR Part 382 

[Docket No. OST–2009–0093] 

Nondiscrimination on the Basis of 

Disability in Air Travel 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Request for comments on 

petition for rulemaking. 

SUMMARY: An advocacy group 

representing users of psychiatric service 

dogs has petitioned the Department to 

eliminate a provision of the Department 

of Transportation’s Air Carrier Access 

regulation. The provision in question 

permits air carriers to require 

documentation and 48 hours’ advance 

notice for users of psychiatric service 

animals. In this document, the 

Department is seeking comment on the 

group’s petition and related questions. 

This document is not a notice of 

proposed rulemaking. The Department 

has not decided whether to grant the 

petition by initiating rulemaking action 

or to deny the petition and retain the 

provisions without change. The 

Department will publish a document in 


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the Federal Register regarding the 

determination of the petition. 

DATES: Comments in response to this 

request must be received by 

December 17, 2009. 

ADDRESSES: You may submit comments 

(identified by the agency name and DOT 

Docket ID Number OST–2009–0093) by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility: 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., between 

9 a.m. and 5 p.m. ET, Monday through 

Friday, except Federal holidays. 

• Fax: 202–493–2251 

Instructions: You must include the 

agency name (Office of the Secretary, 

DOT) and Docket number (OST–2009– 

0093) for this notice at the beginning of 

your comments. You should submit two 

copies of your comments if you submit 

them by mail or courier. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information provided and will 

be available to internet users. You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

www.DocketsInfo.dot.gov. 

Docket: For internet access to the 

docket to read background documents 

and comments received, go to http:// 

www.regulations.gov. Background 

documents and comments received may 

also be viewed at the U.S. Department 

of Transportation, 1200 New Jersey 

Ave., SE., Docket Operations, M–30, 

West Building Ground Floor, Room 

W12–140, Washington, DC 20590–0001, 

between 9:00 a.m. and 5:00 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001, Room W94–302, 202–366–9310, 

bob.ashby@dot.gov. 

SUPPLEMENTARY INFORMATION: 

The Current Rule 

On May 13, 2008, the Department of 

Transportation (the Department; DOT) 

issued a revision to its Air Carrier 

Access Act (ACAA) regulation (14 CFR 

Part 382). The regulation went into 

effect on May 13, 2009, replacing the 

previous version of Part 382 on that 

date. 

Section 382.117(e) of the revised Part 

382, concerning service animals, states: 

If a passenger seeks to travel with an 

animal that is used as an emotional 

support or psychiatric service animal, 

the airline is not required to accept the 

animal for transportation in the cabin 

unless the passenger provides the 

airline current documentation (i.e., no 

older than one year from the date of the 

passenger’s scheduled initial flight) on 

the letterhead of a licensed mental 

health professional (e.g., psychiatrist, 

psychologist, licensed clinical social 

worker, including a medical doctor 

specifically treating the passenger’s 

mental or emotional disability). The 

documentation must state the following: 

(1) The passenger has a mental or 

emotional disability recognized in the 

Diagnostic and Statistical Manual of 

Mental Disorders—Fourth Edition (DSM 

IV); (2) the passenger needs the 

emotional support or psychiatric service 

animal as an accommodation for air 

travel and/or for activity at the 

passenger’s destination; (3) the 

individual providing the assessment is a 

licensed mental health professional, and 

the passenger is under his or her 

professional care; and (4) the date and 

type of the mental health professional’s 

license and the state or other 

jurisdiction in which it was issued. In 

addition, section 382.27(c)(8) provides 

that airlines may require a passenger 

using a PSA or ESA to give up to 48 

hours’ advance notice and check in one 

hour before the check-in time for the 

general public, in order to permit the 

carrier to review and verify the 

documentation. 

The entire purpose of the ACAA, and 

the Department’s rules implementing it, 

are to ensure nondiscriminatory air 

travel opportunities are available to 

people with disabilities. The service 

animal sections of the rule were drafted 

to carry out that purpose. In the 

preamble to the rule, the Department 

discussed issues concerning ESAs and 

PSAs two places. In the general 

discussion of service animal issues, the 

Department made the following 

statements: 

Another important issue that a number of 

commenters raised concerned ‘‘emotional 

support animals.’’ Unlike other service 

animals, emotional support animals are often 

not trained to perform a specific active 

function, such as path finding, picking up 

objects, carrying things, providing additional 

stability, responding to sounds, etc. This has 

led some service animal advocacy groups to 

question their status as service animals and 

has led to concerns by carriers that 

permitting emotional support animals to 

travel in the cabin would open the door to 

abuse by passengers wanting to travel with 

their pets. The Department believes that there 

can be some circumstances in which a 

passenger may legitimately travel with an 

emotional support animal. However, we have 

added safeguards to reduce the likelihood of 

abuse. The final rule limits use of emotional 

support animals to persons with a diagnosed 

mental or emotional disorder, and the rule 

permits carriers to insist on recent 

documentation from a licensed mental health 

professional to support the passenger’s desire 

to travel with such an animal. In order to 

permit the assessment of the passenger’s 

documentation, the rule permits carriers to 

require 48 hours’ advance notice of a 

passenger’s wish to travel with an emotional 

support animal. Of course, like any service 

animal that a passenger wishes to bring into 

the cabin, an emotional support animal must 

be trained to behave properly in a public 

setting. (73 FR 27614; May 13, 2008) 

In the preamble’s discussion of 

section 382.117, the Department added 

the following: 

There are new, more detailed procedures 

for the carriage of emotional support and 

psychiatric service animals. The carrier may 

require the passenger to provide current 

documentation from a mental health 

professional (e.g., a medical doctor that is 

treating the passenger’s mental or emotional 

disability or a licensed clinical social worker) 

caring for the passenger that the passenger 

has a specific, recognized mental or 

emotional disability and that the passenger 

needs to be accompanied by the specific 

emotional support or psychiatric service 

animal in question, either on the flight or at 

the passenger’s destination * * * [C]arriers 

can properly apply the same policies to 

‘‘psychiatric service animals’’ as they do for 

emotional support animals. This is because 

carriers and the Department have 

encountered instances of attempted abuse of 

service animal transportation policies by 

persons traveling with animals in both 

categories [e.g., in communications among 

carriers, passengers, and the Department’s 

aviation consumer protection staff]. Should 

the Department encounter a pattern of abuse 

concerning service animals in other 

categories, we can consider additional 

safeguards with respect to those categories as 

well. (Id. at 27655) 

The ACAA final rule also included a 

guidance document concerning service 

animals, which made the following 

statements concerning emotional 

support animals (ESAs) and psychiatric 

support animals (PSAs): 

With respect to an animal used for 

emotional support (which need not have 

specific training for that function but must be 

trained to behave appropriately in a public 

setting), airline personnel may require 

current documentation (i.e., not more than 

one year old) on letterhead from a licensed 

mental health professional, including a 


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medical doctor that is treating the passenger’s 

mental or emotional disability or a licensed 

clinical social worker, stating (1) that the 

passenger has a mental health-related 

disability listed in the Diagnostic and 

Statistical Manual of Mental Disorders (DSM 

IV); (2) that having the animal accompany the 

passenger is necessary to the passenger’s 

mental health or treatment; (3) that the 

individual providing the assessment of the 

passenger is a licensed mental health 

professional and the passenger is under his 

or her professional care; and (4) the date and 

type of the mental health professional’s 

license and the state or other jurisdiction in 

which it was issued. Airline personnel may 

require this documentation as a condition of 

permitting the animal to accompany the 

passenger in the cabin. The purpose of this 

provision is to prevent abuse by passengers 

that do not have a medical need for an 

emotional support animal and to ensure that 

passengers who have a legitimate need for 

emotional support animals are permitted to 

travel with their service animals on the 

aircraft. Airlines are not permitted to require 

the documentation to specify the type of 

mental health disability, e.g., panic attacks. 

There is a separate category of service 

animals generally known as ‘‘psychiatric 

service animals.’’ These animals may be 

trained by their owners, sometimes with the 

assistance of a professional trainer, to 

perform tasks such as fetching medications, 

reminding the user to take medications, 

helping people with balance problems 

caused by medications or an underlying 

condition, bringing a phone to the user in an 

emergency or activating a specially equipped 

emergency phone, or acting as a buffer 

against other people crowding too close). As 

with emotional support animals, it is 

possible for this category of animals to be a 

source of abuse by persons attempting to 

circumvent carrier rules concerning 

transportation of pets. Consequently, it is 

appropriate for airlines to apply the same 

advance notice and documentation 

requirements to psychiatric service animals 

as they do to emotional support animals. (Id. 

at 27659). 

The PSDS Petition 

The Psychiatric Service Dog Society 

(PSDS) is an Arlington, Virginia, based 

organization that describes itself as a 

service and advocacy organization 

focused exclusively on the use of 

psychiatric service dogs by persons 

living with mental health disabilities. At 

the Department’s June 3, 2008, 

consumer forum concerning the revised 

ACAA rule, a PSDS representative 

expressed the organization’s objections 

to section 382.117(e). DOT staff 

responded that the organization could 

file a petition for rulemaking concerning 

the section, and the PSDS representative 

indicated that the organization would 

do so. 

Under the Department’s regulatory 

procedures, any person may file a 

petition to issue, amend, or repeal a rule 

(49 CFR 5.11(a)). The PSDS petition, 

dated April 13, 2009, has now been 

received by the Department. Interested 

persons can read the entire petition at 

DOT–OST–2009–0093. It consists of a 

three-page letter from PSDS and 32 

pages of letters or e-mails from 

constituents or supporters of the 

organization. In its petition, which 

meets the procedural requirements of 

section 5.11, PSDS requests that section 

382.117(e) be repealed. While the 

petition does not specifically refer to 

section 382.27(c)(8), we understand the 

petition to seek its repeal as well. 

The Department can take one of two 

actions with respect to the petition: It 

can grant the petition by initiating 

rulemaking action (e.g., publishing a 

notice of proposed rulemaking to repeal 

or modify the provisions in question) or 

it can deny the petition and retain the 

provisions without change. When the 

Department denies a petition, we send 

a denial letter to the petitioner 

explaining our reasons for the decision. 

In order to assist the Department in 

deciding which course to follow, we are, 

in this document, seeking comment on 

the issues PSDS raises in its petition. 

We note that taking action at this time 

to change the regulatory provisions in 

question would constitute a substantive 

amendment requiring us to issue a 

notice of proposed rulemaking for 

public comment. Because PSDS waited 

as long as it did to file its petition, the 

Department did not have time to take 

action before the May 13, 2009 effective 

date for the revised Part 382. Nor does 

the Department believe that immediate 

action to change the final rule would be 

prudent prior to an opportunity to 

review comments on issues concerning 

which a wide variety of parties may 

have an interest in. 

The main arguments that PSDS and 

its supporters cite as a basis for the 

repeal of section 382.117(e) are the 

following: 

• In terms of applicable procedures, 

the Department’s final rule does not 

draw distinctions between the two 

categories of animal. The PSDS petition 

appears to support drawing a sharp 

distinction between PSAs and ESAs. 

The former must be trained for public 

access and have basic obedience 

training as well as handler-specific 

behaviors to ameliorate or mitigate the 

effects of a mental health-related 

disability. The latter are rarely more 

than pets, requiring little or no training. 

Therefore, it is improper for the rule to 

apply the same procedural provisions to 

both categories of assistance animal. 

• By imposing additional procedural 

requirements on users of PSAs, which 

are not imposed on service animals used 

by individuals with other disabilities, 

the rule discriminates against and 

stigmatizes individuals with mental 

health-related disabilities who use 

PSAs. If DOT thinks it appropriate to 

impose these requirements on PSA 

users, then DOT should be amenable to 

imposing similar requirements on 

people with other disabilities who use 

service animals. 

• It would be easy for someone with 

a PSA to cheat, simply by claiming that 

his or her dog was a service animal for 

another disability, such as epilepsy, 

heart disease, diabetes, dementia etc. 

• Many people with mental healthrelated disabilities use general 

practitioners rather than specialists in 

mental health matters, and the 

Department’s rule appears not to allow 

for letters from general practitioners. 

• The rule violates the medical 

privacy of PSA users by requiring 

confidential medical information to be 

provided to airline personnel. Moreover, 

the rule makes no provision for the 

confidential treatment of this 

information once it gets into the 

airline’s hands, and fails to answer 

questions concerning the security, 

storage, or use of the information. PSDS 

expresses the concern that the 

Transportation Security Administration 

could gain access to the information and 

require additional security measures 

(e.g., secondary screening) for persons 

identified as having mental healthrelated disabilities. 

• It may be difficult or impossible for 

persons who do not have medical 

insurance or otherwise lack access to 

affordable medical care to obtain the 

medical documentation the rule allows 

airlines to require. In addition, the 

requirement that the documentation be 

no more than a year old could work an 

additional financial hardship on PSA 

users, because they would have to pay 

annually for the required 

documentation. This could result in the 

denial of air transportation to people in 

this situation. 

• The 48 hours’ advance notice 

provision would make it very difficult 

for PSA users to fly in the case of shortterm situation (e.g., a family or medical 

emergency) that did not permit them to 

provide 48 hours’ advance notice. 

• DOT does not have adequate 

evidence that there is a problem with 

people trying to sneak pets aboard 

aircraft, so as to justify imposing the 

procedural requirements on PSA users. 

• Under the Americans with 

Disabilities Act (ADA) and other laws 

concerning nondiscrimination on the 

basis of disability, users of service 

animals (including PSAs) do not have to 

comply with requirements like those in 

section 382.117(e). 


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• Some letters from supporters of the 

PSDS petition suggested that other 

provisions of Part 382, such as those 

concerning ‘‘direct threat,’’ 

‘‘fundamental alteration,’’ and general 

language concerning identification of 

service animals would be sufficient with 

respect to PSAs and ESAs, without 

including language like that of section 

382.117(e). 

Information and Questions Concerning 

the PSDS Petition 

To help highlight issues raised by the 

petition for commenters, the 

Department presents the following 

information and questions: 

Differences Between PSAs and ESAs 

The letters of support for PSDS’ 

petition mention that PSAs are trained 

for public access and obedience (which 

a number of letters assume or say is not 

true of ESAs). In fact, are ESAs trained 

to behave properly in public settings? 

Note that, under the ACAA rules, 

airlines are never required to carry in 

the cabin an animal—even one that is 

assisting a person with a disability—that 

is not behaving appropriately in a 

public setting. 

The letters of support for PSDS’ 

petition state that PSAs are trained to 

provide medically necessary, 

therapeutic, or other services for their 

users. However, the letters do not 

specify what any of these services are. 

What are these services, and how, if at 

all, are they relevant to the use of a PSA 

during the user’s air travel or activities 

at the user’s destination? With respect to 

travel on an aircraft, how do these 

services differ from those that would be 

provided by an ESA during a flight or 

at the passenger’s destination? How, if 

at all, would any such differences justify 

treating ESAs and their users differently 

from PSAs and their owners in the 

context of air transportation? What, if 

any, distinctions have airlines drawn or 

attempted to draw between the two 

categories of animals, and what is the 

basis for any such distinctions? 

It appears from some material in the 

supporting letters that PSAs do, in fact, 

provide services related to emotional 

support. For example, one letter from a 

PSA user related the following about her 

dog: 

* * * [H]e gives me unconditional love no 

matter what I look or feel like that day. He 

is there right by my side even when I don’t 

ask him to, lying at my feet because he knows 

that helps me. He helps me when no nothing 

or no one else will. He is very reliable. I 

never have to worry if he is going to be 

‘‘busy’’ that night like I would friends or 

family. He is never angry if I talk too much 

or pet him too much * * *. He gives me 

better hugs than my husband * * *. 

Another letter, from a therapist, said 

that an assistance animal enabled her 

clients to ‘‘get out of the house and go 

places without the fear and panic they 

had before. It is so helpful for them to 

have their dog with them in all 

environments to reduce dissociation, 

panic, and anxiety.’’ Do these obviously 

significant functions that dogs called 

PSAs perform for their owners differ 

from those that would be performed for 

their owners by dogs called ESAs in a 

way that would support different 

treatment for the two groups in airline 

travel? We note that over the years, 

many individuals who travel with ESAs 

have stated that their service animals, in 

addition to being trained to behave 

properly in public settings and 

providing needed emotional/mental 

health support without which they 

cannot travel, do in fact perform specific 

physical tasks related, for example, 

helping lessen anxiety in stressful 

situations. 

Need for Procedural Requirements 

We seek comments from airlines and 

other interested persons about their 

experience with passengers attempting 

to pass off pets as service animals, 

especially as it may relate to ESAs and 

PSAs. Are there problems that air 

carriers have encountered in 

distinguishing pets from animals that 

provide services to passengers with 

disabilities? What procedures do 

airlines use to draw this distinction, and 

how well do these procedures work? 

How pervasive are any such problems? 

What, if any, experience do airlines 

have with people attempting to bring 

pets on board on the basis of claims that 

the animals are service animals for 

disabilities that are not readily apparent 

other than mental health-related 

conditions, such as seizure disorders, 

heart conditions, diabetes, etc? What, if 

any, problems are created for airlines 

when people have attempted to bring or 

have succeeded in bringing pets into the 

cabin under the guise of being service 

animals? Do airlines have any statistics 

or compilations of experience with 

people attempting to pass off their pets 

as service animals that they could share 

with the Department? 

Do the procedural provisions of 

section 382.117(e)—and the previous 

provisions of DOT guidance concerning 

ESAs—help airlines distinguish 

between service animals and pets? If, as 

the petition requests, paragraph (e) were 

deleted, would airlines have sufficient 

other, arguably less burdensome, means 

of making these determinations? What 

would be the effect, if any, on the ability 

of airlines to make reasonable 

determinations in these matters if the 

provisions of paragraph (e) remained in 

effect for users of ESAs but not users of 

PSAs? Are there problems that airlines 

have encountered in the past with 

passengers initially claiming that their 

animal is an ESA and later 

characterizing that same animal as a 

PSA? If so, please describe such 

problems. The Department’s rule is now 

in effect: Have passengers or airlines 

encountered any actual problems 

concerning the implementation of the 

provisions in question in this context? 

The Department, the service animal 

community (e.g., handlers, 

organizations), and the airlines all share 

the goal of stopping the abuse of service 

animal access rights by passengers who 

fraudulently assert that their pets are 

service animals. The Department is 

interested in identifying effective 

alternative methods to prevent such 

fraud. We, therefore, invite members of 

the public, and in particular members of 

the service animal community, to 

propose methods for preventing/ 

detecting fraud that they believe are 

feasible alternatives to the current 

medical documentation requirements. 

Medical Privacy 

With respect to the medical 

information provided to airlines under 

paragraph (e) and other provisions of 

Part 382 concerning medical 

documentation, the Department has 

issued the following guidance: 

Q. What should carriers do to safeguard the 

personal medical information (e.g., 

physician’s statements, medical certificates 

and documentation from licensed mental 

health professionals for emotional support 

and psychiatric service animals) that they 

require of passengers in order to provide 

certain accommodations? 

A. When a carrier requires a passenger to 

provide personal medical information as a 

condition for obtaining disability 

accommodations, we recommend that the 

carrier take steps to safeguard this 

information, such as maintaining it in a 

separate confidential file for the same period 

of time it retains that passenger’s reservation 

record for the flights involved. 

Does this guidance sufficiently address 

medical privacy concerns arising from 

the operation of paragraph (e)? If not, 

should the Department amend its 

regulations to provide additional 

protections? If so, what should such 

amendments provide? Should there be 

additional language concerning such 

matters as how confidentiality is 

maintained, who has access to records 

and for how long, how are records 

disposed of, or whether a particular 

record retention period should be stated 

in the rule or guidance? 


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Family and Medical Emergencies 

Part 382 provides that, when a 

passenger does not provide advance 

notice for accommodations to which a 

carrier may apply an advance notice 

requirement, the carrier must provide 

the accommodation if it can do so by 

making reasonable efforts, without 

delaying the flights (see section 

382.27(g)). The Department’s rule is 

now in effect: Have passengers or 

airlines encountered any actual 

problems concerning the 

implementation of the provisions in 

question in this context? 

The Department has issued the 

following FAQ discussing this principle 

in the context of the procedural steps of 

section 382.117(e): 

Q. When must a carrier accommodate a 

passenger accompanied by an emotional 

support or psychiatric service animal who 

has not provided 48 hours’ advance notice? 

A. Carriers must accommodate a passenger 

accompanied by an emotional support or 

psychiatric service animal who has not 

provided 48 hours’ advance notice if the 

carrier can do so by making reasonable 

efforts, without delaying a flight. The carrier, 

at its discretion, may waive its 48 hours’ 

advance notice requirement in order to 

expedite the emergency air travel of a 

passenger accompanied by an emotional 

support or psychiatric service animal. 

Does this guidance adequately handle 

the situation of ESA or PSA users with 

a family or medical emergency requiring 

short-notice travel? Should air carriers 

be able to require documentation of the 

emergency from someone seeking to 

travel with a PSA or ESA who cannot 

provide 48 hours’ notice? Are there 

additional regulatory or guidance 

statements the Department should make 

on this matter, such as criteria for when 

and on what basis the 48 hours’ advance 

notice period should be waived? 

Lack of Medical Insurance or a Mental 

Health Care Provider 

In the absence of recent 

documentation from a mental health 

professional, how is an air carrier to 

determine whether a passenger has a 

current need for an ESA or PSA? Would 

anyone using a PSA or ESA have had a 

medical recommendation for the use of 

such an animal at some time in the past 

that could be documented? If not, what 

information could establish a basis for 

the individual’s claim that he or she 

needs a service animal? The Department 

has issued the following FAQ 

discussing this principle in the context 

of the procedural steps of section 

382.117(e): 

Q. May a carrier accept documentation 

from a licensed mental health professional 

concerning his or her need for a psychiatric 

or emotional support animal if the 

documentation is more than one year old? 

A. Carriers may, at their discretion, accept 

from the passenger documentation from his 

or her licensed mental health professional 

that is more than one year old. We encourage 

carriers to consider accepting ‘‘outdated’’ 

documentation in situations where a 

passenger with a disability provides a letter 

or notice of cancellation or other written 

communication indicating the cessation of 

health insurance coverage, and his/her 

inability to afford treatment for his or her 

mental or emotional disability. 

Does this guidance successfully address 

the situation of persons with mental 

health-related disabilities who may 

currently lack medical insurance? What 

is the experience of airlines and 

passengers with the existing rule and 

guidance, which are now in effect? 

Should the guidance or underlying 

regulatory provisions be changed (e.g., 

to eliminate the requirement, change the 

period of one year to something else, 

require airlines to include alternate 

documentation in some cases)? 

Use of General Practitioners 

The Department has clarified in the 

regulatory text of section 382.117(e), 

quoted above under ‘‘The Current 

Regulation,’’ that among the individuals 

authorized to provide documentation 

concerning the need for ESAs or PSAs 

include medical doctors who are 

specifically treating a passenger’s 

mental or emotional disability. Does this 

clarification successfully address the 

concern about the types of doctors who 

can provide the documentation that the 

rule now requires? If not, what 

additional provisions would 

commenters recommend? 

Americans With Disabilities Act (ADA) 

Analogy 

The Department notes that the ACAA 

is a separate statute from the ADA. The 

ACAA is a specialized statute dealing 

only with transportation by air, in an 

environment in which a large number of 

people are confined within a limited 

space for what may be a prolonged 

period of time. The Department has long 

taken the position that accommodations 

for persons with disabilities, and DOT 

requirements for them, may justifiably 

differ between the air travel context and 

other contexts, such as places of public 

accommodation regulated by the 

Department of Justice under its ADA 

regulations. We seek comment on the 

application of this principle in the 

matter of PSAs and ESAs. 

Alternatives for Consideration 

After reviewing comments on this 

notice, the Department could make a 

number of different decisions with 

respect to the issues involved. The 

following are examples of actions the 

Department could take: 

1. Leave the rule unchanged. 

2. Leave the basic provisions of the 

rule (i.e., concerning documentation 

and advance notice) unchanged, but add 

provisions relating to specific concerns 

about the implementation of these 

provisions (e.g., with respect to medical 

privacy or other matters now addressed 

by FAQs). 

3. Eliminate documentation and 

advance notice provisions for all types 

of animals assisting passengers with 

disabilities. 

4. Eliminate the documentation and 

advance notice provisions for PSAs, but 

leave the provisions in effect for ESAs. 

5. Leave the existing documentation 

and advance notice provisions for 

passengers with disabilities who wish to 

bring service animals on board an 

aircraft but whose types of disabilities 

are not readily apparent. 

6. Leave the existing documentation 

and advance notice provisions in effect 

for ESAs and PSAs, but add parallel 

provisions for all passengers with 

disabilities who wish to bring service 

animals on board an aircraft. 

7. Substitute an alternative method of 

preventing ‘‘cheating’’ that would allow 

airlines to distinguish service animals 

from pets but that did not involve the 

current documentation and/or advance 

notice provisions. 

The fact that an idea is on this list 

does not mean that the Department 

necessarily supports it or believes that 

it would be good policy; the list merely 

sets out a range of possible approaches 

to the issues raised by the PSDS 

petition. Nor is the list exhaustive; the 

Department solicits other ideas for 

addressing these issues as well. 

Issued this 27th day of August 2009, at 

Washington, DC. 

Christa Fornarotto, 

Acting Assistant Secretary for Aviation and 

International Affairs. 

[FR Doc. E9–21351 Filed 9–17–09; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 110 

[Docket No. USCG 2008–1082] 

RIN 1625–AA01 

Anchorage Regulations; Port of New 

York 

AGENCY: Coast Guard, DHS. 


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