Cruise Lines Must Accommodate Service Animals but Department of Transportation Seeks Comment on Emotional Support Animals (with Air Carrier Addendum)

The Department of Transportation has issued final rules on transportation for individuals with disabilities traveling on passenger vessels.[1] The rules are effective November 3, 2010. Comments are sought by October 4.

In 1991, the Department of Transportation stated that the Americans with Disabilities Act covered passenger vessels, including cruise ships, but noted that cruise ships are a unique mode of transportation, consisting of “self-contained floating communities.” The Department described cruise ships as something of a hybrid between a transportation service and a public accommodation, and noted that virtually all cruise ships serving U.S. ports are foreign-flag vessels.[2] In Spector v. Norwegian Cruise Lines,[3] the U.S. Supreme Court held that ADA requirements regarding disabled passengers applied to a foreign-flag vessel. In 2007, the Department issued proposed rules regarding cruise lines and received hundreds of comments.[4] A public hearing was held in April 2008 in which additional views were expressed.

The final rules define “service animal” as follows:

"'Service animal' means any guide dog, signal dog, or other animal individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, alerting persons with seizure disorders to the onset of a seizure, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."[5]

This definition remains unchanged from the 2007 proposed rules and is identical to the definition under regulations issued by the Department of Justice and contained in 28 CFR 36. 104, though as discussed further below, DOJ has proposed changing this definition.[6]

The section devoted to service animals on ships, 49 CFR 39.91, contains some changes from the 2007 proposals. The proposals stated that a service animal must be able to accompany a passenger in all locations that passengers can use on a vessel, which the final rules confirm, but the latter add the phrase, “including lifeboats.” There can be no overall limitation on the number of service animals that can be bought on a voyage as this would be “tantamount to a number limit on passengers with a disability.”

A new subsection deals with food for the animal:

"You must permit the passenger accompanied by the service animal to bring aboard a reasonable quantity of food for the animal aboard the vessel at no additional charge. If your vessel provides overnight accommodations, you must also provide reasonable refrigeration space for the service animal food."[7]

The preamble specifies that vessels are not required to provide food for service animals, but must allow passengers to bring a reasonable quantity of food aboard at no additional charge. There must be refrigeration space for the animal’s food on ships going overnight, but the requirement does not apply to short-voyage ferries or water taxis.

The verification requirement remains unchanged from the proposal:

"You must accept the following as evidence that an animal is a service animal: Identification cards, other written documentation, presence of harnesses, tags, and/or the credible verbal assurances of a passenger with a disability using the animal."[8]

The proposed rules had provided that if a cruise line decided not to accept an animal as a service animal, the decision had to be explained in writing to the passenger. This requirement has not been included in the final rules.

The final rules contain a new provision dealing with the situation where a foreign government does not allow a service animal to disembark:

"If the legal requirements of a foreign government (e.g., quarantine regulations) do not permit a service animal to disembark at a foreign port, as a PVO you may require the animal to remain on board while its user leaves the vessel. You must work with the animal’s user to ensure that the animal is properly cared for during the user’s absence."[9]

The preamble notes that limitations on the ability of a service animal to leave the ship at a foreign port would be included in the information provided to potential customers inquiring about an upcoming cruise.[10] The vessel can insist that the animal not disembark at such a port, but the passenger should be able to get off without the animal. The vessel should work with the passenger to make sure the animal is cared while the passenger is on a lengthy excursion. Presumably this means that the vessel could charge for care of the animal in such a situation.

The preamble seems to waffle on emotional support animals:

"While this rule does not require it, the Department believes that it is a good idea to permit not only service animals, per se, but also emotional support animals (ESA) to accompany passengers with disabilities who use them. This can be beneficial to individuals who genuinely need the assistance of such an animal to enjoy fully travel and services aboard a vessel. We refer PVOs [passenger vessel operators] and passengers with disabilities to applicable provisions of the Department’s Air Carrier Access Act regulations and appendices (14 CFR part 382) for suggestions on how and in what circumstances it is appropriate to accommodate people using ESAs."

Thus, vessels are not required to accept emotional support animals. The Department acknowledges that this is inconsistent with air carrier access requirements and seeks comment on whether vessels should be required to accommodate emotional support animals. If this were required, the Department seeks comment on what safeguards vessels should be able to require to prevent abuse—such as “passengers attempting to pass off their pets as emotional support animals.”

Neither the new rules nor the preamble mention psychiatric service animals, unlike the 2008 final air carrier access rules,[11] which lump them with emotional support animals in allowing airlines to require advance notice and certain documentation. The preamble to the final air carrier access regulations saw psychiatric service animals and emotional support animals as providing some potential for abuse, but nevertheless referred to the two types of animals as two distinct categories.[12] The distinction in the air carrier access rules appears to be that an emotional support animal accompanies a person with a mental health-related disability listed in the Diagnostic and Statistical Manual of Mental Disorders, that accompanying the individual is necessary for the passenger’s mental health or treatment, and that this necessity and the condition have been assessed by a mental health professional who provides care for the passenger. A psychiatric service animal, for air carrier access, is trained by its owner or a professional trainer to perform tasks, such as fetching medications, reminding the user to take medications, or “acting as a buffer against other people crowding too close.”

The preamble to the final passenger vessel rules states that they are consistent with proposed rules of the Department of Justice amending Title II and Title III, but DOT seeks comment as to whether emotional support animals are an area where different rules might apply to vessels[13] The 2008 proposed regulations of the Department of Justice distinguished between emotional support and psychiatric service, stating:

"The Department is proposing new regulatory text in § 36.104 to formalize its position on emotional support/comfort animals, which is that '[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional wellbeing are not service animals.' The Department wishes to state, however, that the exclusion of emotional support animals from ADA coverage does not mean that individuals with psychiatric, cognitive, or mental disabilities cannot use service animals. The Department proposes specific regulatory text in § 36.104 to make this clear: 'The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities.' This language simply clarifies the Department’s longstanding position and is not a new position." [14] (emphasis added)

Thus, following the same language as now defines “service animals” for passenger vessels, DOJ has had a “longstanding position” of recognizing service animals with functions related to mental disabilities. However, since there is no mention of psychiatric service animals in the final (nor the proposed) passenger vessel regulations, it is not clear if DOT considers that they are covered. A strong argument could be made that the claim for consistency with the proposed DOJ regulations must mean that they are covered (as distinguished from emotional support animals) but the matter should be clarified. It would be anomalous if DOT, having distinguished psychiatric service animals from emotional support animals for air carrier access purposes were now to be suggesting that they are not to be distinguished for passenger vessel access purposes. It would also mean that DOT and DOJ have a considerable, and probably illogical, rift on this matter, which seems unlikely.

The preamble indicates that subsequent rules addressing accessibility standards will describe relief areas for service animals. This was an area that DOT sought comment on in the 2007 proposed regulations.[15] DOT noted in 2007 that cruise operators typically provide such areas, so the agency may not see this as one of the issues it needs to resolve quickly.

The Department of Transportation is to be commended for clarifying many issues regarding service animals aboard cruise vessels. The failure to specify the treatment of psychiatric service animals is unfortunate, since there are a good many people taking these animals into public accommodations. It would be best to clarify the status of such animals as soon as possible.

Addendum for Federal Register Posting of July 30, 2010. The Department of Transportation posted some corrections to air carrier access regulations on July 30. The only one having to do with service animals is a correction to 14 CFR 382.111(e), which provides that airlines must provide assistance in stowing and retrieving "carry-on items, including mobility aids and other assistive devices stowed in the cabin (see also Sec. 382.91(c))." The parenthetical reference to 14 CFR 382.91(c) was a mistake, since that section refers to relief areas in air terminals. The cross-reference was supposed to be to 14 CFR 382.91(d), which has to do with helping passengers who cannot carry their carry-on luggage get it on the plane. The correction has been made. The mistake might have convinced some people (quite reasonably so) that service animal relief areas were to be provided inside cabins, since the referring provision refers to helping people stow items in the cabin. It would not have been an impossible argument. The Department does not state whether anyone actually made such a case to an airline. Department of Transportation, Correcting Amendments, 75 Fed. Reg. 44885 (July 30, 2010).

Addendum re Comments on Department of Transportation Rules. The Psychiatric Service Dog Society submitted comments regarding these rules on September 21, 2010. I wrote the initial draft of the comments. The comments have been posted by the Department of Transportation.

[1] Department of Transportation, Transportation for Individuals with Disabilities: Passenger Vessels, RIN 2105-AB87, 75 Fed. Reg. 38878 (July 6, 2010).
[2] 56 Fed. Reg. 45599-45560 (September 6, 1991).
[3] 545 U.S. 119 (2005).
[4] 72 Fed. Reg. 2833 (January 23, 2007). The reference to hundreds of comments is contained in the preamble to the final rules (75 Fed. Reg. 38879). A search of the website where comments are posted (www.regulations.gov) did not produce nearly that many, though I acknowledge that I may not have fully understood the operation of the site.
[5] 49 CFR 39.3.
[6] Although the definition of service animal would be different under proposed rules issued by the Department of Justice in 2008, DOJ noted that the inclusion of psychiatric service animals in the definition of service animal was not a change in regulatory position, but rather a clarification of “the Department’s longstanding position” regarding the status of psychiatric service animals. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, RIN 1190-AA44, 73 Fed. Reg. 34508, 34516 (June 17, 2008). Since the Department of Transportation sees its final regulations as consistent with these proposals, it would appear that psychiatric service animals should also be accepted under the rules now applicable to passenger vessels.
[7] 49 CFR 39.91(c).
[8] 49 CFR 39.91(d).
[9] 49 CFR 39.91(e).
[10] 49 CFR 39.53(e).
[11] Nondiscrimination on the Basis of Disability in Air Travel, RINs 2105-AC97, 2105-AC29, 21050AD41, 73 Fed. Reg. 27614 (May 13, 2008).
[12] 73 Fed. Reg. 27655.
[13] 75 Fed. Reg. 38890.
[14] 73 Fed. Reg. 34508, 34516 (June 17, 2008). On January 21, 2009, the Department of Justice notified the Office of Management and Budget that it was withdrawing draft final rules under Titles II and III, leaving further regulatory modification to the then incoming Obama administration.
[15] 72 Fed. Reg. 2841.