28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Define "animal" or what qualifies certain species as "service animals." (Section-by-Section Analysis)

When the regulation was promulgated in 1991, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas.  One commenter suggested defining "animal" (in the context of service animals) or the parameters of acceptable species to reduce the confusion over whether a particular service animal is covered.  One service dog organization commented that other species would be acceptable if those animals could meet the behavioral standards of trained service dogs.  Other commenters asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks, so these animals would not be covered.  The Department has followed closely this particular issue (i.e., how many unusual animals are now claimed as service animals) and believes that this aspect of the regulation needs clarification.

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals:  Wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.  Many commenters asserted that limiting the number of allowable species would help stop erosion of the public's trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards.  The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as libraries or courtrooms.

In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild.  Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation.  The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury, and zoonotic [animal-to-human disease transmission] risks."  See the AVMA 2005 position statement, Nonhuman Primates as Assistance Animals, available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.

Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.

Question 10:  Should the Department eliminate certain species from the definition of "service animal"?  If so, please provide comment on the Department's use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.

Question 11:  Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?

Comfort animals. (Section-by-Section Analysis)

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular.  The increased use of comfort animals is primarily by individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.  Comfort animals are also used by individuals without any type of impairment who claim the need for such an animal in order to bring their pets into facilities of public entities.

The difference between an emotional support animal and a psychiatric service animal is the service that is provided, i.e., the actual work or task performed by the service animal.  Another critical factor rests on the severity of the individual's impairment.  For example, only individuals with conditions that substantially limit them in a major life activity qualify for coverage under the ADA, and only those individuals' use of a service animal will be covered under the ADA.  See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 35.104.  Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires a substantial limitation of a major life activity.  Traditionally, service dogs worked as guides for individuals who were blind or had low vision.  Since the original regulations were promulgated, service animals have been trained to assist individuals with different types of disabilities.  As a result, individuals with minor impair- ments [sic] may mistakenly conclude that any type of impairment qualifies them for ADA coverage.

Change "service animal" to "assistance animal." (Section-by-Section Analysis)

Some commenters asserted that "assistance animal" is a term of art and should replace "service animal."  While some agencies, like the Department of Housing and Urban Development (HUD), use the term "assistance animal," that term is used to denote a broader category of animals than is covered by the ADA.  The Department believes that changing the term used under the ADA would create confusion, particularly in view of the broader parameters for coverage under the Fair Housing Act (FHA)  (cf., HUD Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hudclips.org.) Moreover, the Department's proposal to change the definition of "service animal" under the ADA is not intended to affect the rights of people with disabilities who use assistance animals in their homes under the FHA.

In addition, the term "psychiatric service animal" describes a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability.  This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations, 14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on accommodation of service animals and emotional support animals on air transportation) and qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA.