U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

GENERAL COUNSEL 

March 22, 2010 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Certified Mail - Return Receipt Requested 

Ms. Anita M. Mosner 

Ms. Sophy Chen 

Attorneys for Air Canada 

Holland & Knight LLP 

2099 Pennsylvania Avenue, N.W., Suite 100 

Washington, D.C. 20006-6801 

Dear Ms. Mosner and Ms. Chen: 

Re: Conflict of Law Wai ver Determination 

Request Concerning Provisions of 

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 of law waiver from these provisions with respect to flights 

covered by Part 382 for the reasons described below. 

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 passenger before 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 of harnesses, or any other of the indicia set 

1 The provisions of ATR § 149 are as follows: 

( I) Subject to section 151, an air carrier shall accept a service animal for carriage without charge if the animal is 

(a) required by a person for assistance: and 

(b) certified. in writing, as having been trained to assist 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, if the 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 "service dog." 
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 A TR § 149 in its 

equivalent negative form (i.e., "An air carrier shall NOT accept a service animal.. .if the animal 

is ... NOT certified, in writing, as having been trained to assist a person by a professional service 

animal training institution"). 

The Department is in agreement with Air Canada that A TR § 149 is a legally binding regulation 

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 of ATR § 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 of any compelling argument supporting Air Canada's assertion that A TR 

§ 149 conflicts with section 382.117, we must again deny the carrier's request for a waiver from 

the requirements of sections 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 passenger fails to provide credible 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 of training by a professional service animal training 

institution as a condition for transporting a service dog, however, would not be in compliance 

with Part 382. 

Air Canada further notes in footnote 4 of its reconsideration request the Department's statement 

in its letter of October 20, 2009, that A TR § 149 (2) does not prohibit carriers 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 harnessing provision of ATR § 149 (2). However, 

the carrier requests a waiver to the extent the Department determines one is necessary for the 

carrier to comply with 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 of harnesses, tags, or the credible verbal assurances of a qualified individual 

with a disability 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 

accompanying passenger with a disability are not credible. 
3 

The provisions of section 382.117(b) require carriers to permit a service animal to accompany a 

passenger with 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 

A viation Enforcement and Proceedings (Enforcement Office) has long interpreted this provision 

to mean that, in general, service animals should be transported in the cabin free of restraining 

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 of ATR § 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 We disagree, however, that the language of ATR § 149(2) on its face prohibits 

carriers from allowing a service animal that is not harnessed from accompanying the passenger at 

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's request for a waiver from section 382.117(b), which does not permit a carrier to require 

service animals to be routinely harnessed as a condition for accompanying a passenger on the 

aircraft on the floor at the passenger's seat. 

If you have any questions about this matter, please contact James Fisher, of my staff, or me at 

(202) 366-9342. You may also reach us by fax at (202) 366-7152. 

Sincerely, 

Assistant General Counsel for 

A viation Enforcement and Proceedings 

~ See supra note I.