U.S. Department of Transportation Office ofthe Secretary ofTransportation GENERALCOUNSEL March 22, 2010 1200 NewJerseyAvenue, SE Washington, DC 20590



### CertifiedMail

- Return ReceiptRequested

Ms. AnitaM. Mosner Ms. SophyChen Attorneys for AirCanada Holland & Knight LLP 2099PennsylvaniaAvenue, N.W., Suite 100 Washington,D.C. 20006-6801

DearMs. Mosnerand Ms. Chen: Re: Conflict ofLaw Waiver Determination Request ConcerningProvisionsof 14 CFR 382.117

This letter concerns Air Canada's November 10, 2009, request for reconsideration of the Department's October 20, 2009, decision to deny the carrier's request for a limited waiver from certain requirements of section 382.117 of Part 382 relating to the accommodation of service dogs. We have reviewed Air Canada's reconsideration request and are again denying the carrier's request for a limited conflict oflaw waiver from these provisions with respect to flights coveredbyPart 382 for thereasons describedbelow.

Air Canada's reconsideration request reiterates its view that section 149 of the Canadian Air Transportation Regulations (ATR 149)1 imposes a nondiscretionary obligation on the carrier to obtain written certification that an animal has been trained by a professional service animal institution to assist a passengerbefore accepting the animal for carriage.2 The carrier maintains that this legal mandate prevents it from accepting a service animal solely on the basis of the passenger's (credible) verbal assurances, the presence ofharnesses, or any otherofthe indicia set

1The provisions ofATR § 149 are as follows: ( I) Subjectto section 151, an aircarrier shall accept a service animal for carriage withoutcharge ifthe animal is (a) required by aperson for assistance: and (b) certified. in writing, as having been trained toassist a person by a professional service animal institution. (2) Where an air carrier accepts a service animal for carriage pursuant to subsection (I). the air carrier shall permit the animal, ifthe animal is properly harnessed in accordance with standards established by a professional service animal institution, to accompany the person on board the aircraft and to remain on the floor at the person's passenger seat.

2 In accordance with section 382.1 17(I). the obligation of foreign air carriers to accommodate service animals on covered tlights is limited to service dogs: therefore the use of the term "service animal" in this letter effectively

means "servicedog."2

forth in section 382.117(d).3 Air Canada suggests that the Department has misunderstood Canadian legal drafting and may find it helpful to consider the mandate of ATR § 149 in its equivalent negative form (i.e., "An air carrier shall NOT accept a service animal...ifthe animal is

...NOTcertified, in writing, as having been trained to assist a person by a professional service animal traininginstitution").

The Department is in agreement with AirCanada that ATR § 149 is a legallybindingregulation that imposes an obligation on carriers to accept without charge a service animal required by a person for assistance and certified, in writing, as having been trained to assist a person by a professional service animal institution. We disagree, however, that the language ofATR § 149 which creates a clear and affirmative obligation for carriers to accept service animals that meet the stated conditions, restricts carriers in any way from accepting service animals that comply with the conditions outlined in section 382.117 of Part 382. We are not persuaded that the suggested negative form of the regulation clarifies its intended meaning; on the contrary, the suggested negative form conveys the exact opposite of the plain meaning of the regulation as written. 

### In the absence ofanycompellingargument supportingAirCanada's assertion thatATR § 149 conflicts with section 382.117, we must again deny the carrier's request for a waiverfrom therequirements ofsections 382.117(d) and (e).

As Air Canada noted in its request for reconsideration, section 382.117 does allow a carrier to require documentation in limited circumstances as a condition for permitting a service dog to accompany the passenger in the cabin. Under section 382.117(d), documentation may be required when the passengerfails to providecredible answers in response to inquiries concerning how the dog assists with the passenger's disability and how it has been trained to behave appropriately in a public setting. A carrier may also require documentation meeting the criteria specified in section 382.117(e) as a condition for permitting emotional support and psychiatric service dogs to accompany their owners in the aircraft cabin. A carrier that routinely requires passengers to provide written certification oftraining by a professional service animal training institution as a condition for transporting a service dog, however, would not be in compliance with Part 382.

AirCanada further notes in footnote 4 ofits reconsideration request the Department's statement in its letterofOctober20, 2009, that ATR § 149 (2) does not prohibitcarriers from permitting a service animal to accompany a passenger on board an aircraft without a harness. The carrier indicates that it did not request relief from this ATR provision in its original waiver request because section 382.117 contains no conflicting requirement that would prohibit carriers from requiring service animals to be harnessed. The carrier states that it does not believe a waiver from Part 382 is necessary with respect to the harnessingprovision ofATR § 149 (2). However, the carrier requests a waiver to the extent the Department determines one is necessary for the carrierto complywith ATR § 149 (2).

3 Section 382.117(d) requires carriers to accept as evidence that an animal is a service animal. identification cards, other written documentation, presence ofharnesses, tags, or the credible verbal assurances ofa qualified individual with adisability using the animal. The Department has long interpreted this provision to mean that carriers must not require documentation as evidence that the animal is a service animal unless the verbal assurances of the accompanyingpassenger with adisability are not credible.3

The provisions ofsection 382.117(b) require carriers to permit a service animal to accompany a passengerwith a disability in any seat in which the passenger sits unless the animal obstructs an aisle or other area used to facilitate an emergency evacuation. The Department's Office of Aviation Enforcement and Proceedings (Enforcement Office) has long interpreted this provision
to mean that, in general, service animals should be transported in the cabin free ofrestraining devices while accompanying users at their seats in accordance with applicable safety requirements, and prohibits carriers from otherwise mandating conditions or restrictions not stated in section 382.117. Again, the language ofATR § 149(2) creates a clear and affirmative obligation for carriers that have accepted a service animal for transport to permit an animal, if properly harnessed in accordance with standards established by a professional service animal institution, to accompany the passenger on board the aircraft and to remain on the floor at the passenger's seat.4 Wedisagree, however, that the languageofATR § 149(2)onits face prohibits carriersfrom allowing a service animal that is notharnessedfrom accompanyingthe passengerat his or her seat. Once again, we are not persuaded that the suggested negative form of the regulation clarifies its intended meaning. Having found no conflict of law, we must deny Air Canada'srequestfor awaiverfrom section 382.117(b),which does not permitacarrierto require service animals to be routinely harnessed as a condition for accompanying a passenger on the aircraft onthefloor atthepassenger's seat.

Ifyou have any questions about this matter, please contact James Fisher, ofmy staff, or me at (202) 366-9342. You mayalsoreach us by fax at (202) 366-7152.

Sincerely,

AssistantGeneral Counsel for

AviationEnforcement and Proceedings**~** Seesupra note I.