Originally Posted by
Sykes
I think I agree with what you're saying, but I think it's also worth pointing out that it's not quite that simple. Regulations are more than guidance--they are law. While the DOT gets its authority from underlying statutes, ultimately the authority delegated by Congress is so broad that it isn't difficult to prove violation of an underlying statute. The airline doesn't need to actually deny boarding to a ESA to be fined here (IF the DOT wanted to do so).
My interpretation of the guidance the DOT recently released is that they intend to give airlines some pretty wide latitude on ESAs before pursuing enforcement action, but they are not significantly reinterpreting existing regulations (mostly because the regulations are pretty prescriptive so the only latitude they have is to decline enforcement in situations where the airline is acting reasonably while they go through the full rule-making process to fix the underlying problems).
These regulations are explicitly labeled guidance. This, they are not binding rules- there is no direct punishment for disobeying the guidance other than that it can be used as evidence of a statutory or regulatory violation.
If the DOT put it into the CFR that airlines are prohibited from asking about disabilities, there is no doubt that UA and the other airlines would have to obey it unless it is so unreasonable that it is thrown out in court. But mere guidance is not directly prohibitory. It is just guidance.