Thursday, January 28, 2016

Labor Department Proposes Service-Animal Rules for Job-Training Agencies and Programs

The Department of Labor has shown little inclination to issue regulations regarding service animals. In the entire of Title 29 of the Code of Federal Regulations there is only one reference to a service animal and one to a guide dog, and both are in explanatory texts rather than in the regulations themselves. Thus, in describing mitigating measures that should not be taken into account in determining whether an impairment substantially limits a major life activity, the explanatory language to 29 CFR 1630.2(j)(1)(vi), gives a service animal as an example of a mitigating measure not to be taken into account.  In other words, blindness substantially limits a major life activity even if a guide dog allows the individual with a disability to function more close to normal, and deafness severely limits a major life activity even if a hearing dog allows the dog’s owner to respond to sounds in his or her environment.  Eyeglasses and contact lenses are an exception to this logic, so that if a person with vision impairment can function normally with glasses, he or she may not be categorized as having an impairment that substantially limits a major life activity. 

The reference to a guide dog in Title 29 comes only a few pages away and concerns 29 CFR 1630.2(o), a section that gives a number of definitions, including one for “reasonable accommodation.” The explanatory language states that it “would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee.” Thus, whether an employee should be able to have a service animal in a workplace is a matter that requires a reasonable accommodation analysis.  

Workforce Innovation and Opportunity Act

This dearth of regulatory attention to service animals by the Department of Labor has changed dramatically with the issuance of proposed regulations that would implement the Workforce Innovation and Opportunity Act (PL 113-128, abbreviated "WIOA"), signed into law by President Obama on July 22, 2014. This Act was designed to provide federal funds for workers to learn new skills to enable them to compete for jobs in growth sectors of the 21st century economy.  The Act prohibits agencies receiving federal funds for this purpose from discriminating on the basis of race, color, religion, sex, national origin, age, disability, or political affiliation or belief. Section 3(25) of the Act defines “an individual with a disability” as “an individual with a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).”  The proposed rules, published in the Federal Register on January 26, are open for comment until March 28, 2016.  (Department of Labor, Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, RIN 1291-AA36.  81 Fed. Reg. 4494, January 26, 2016)

The anti-discrimination provisions apply to recipients of federal funds provided under the Act.  A recipient is defined under proposed 29 CFR 38.4(zz) as an entity that receives assistance either directly or indirectly, such as a state or any of the following entities:

(1) State-level agencies that administer, or are financed in whole or in part with, WIOA Title I funds;
(2) State Workforce Agencies;
(3) State and local Workforce Investment Boards;
(4) LWIA [Local Workplace Investment Area] grant recipients;
(5) One-Stop operators;
(6) Service providers, including eligible training providers;
(7) On-the-Job Training (OJT) employers;
(8) Job Corps contractors and center operators;
(9) Job Corps national training contractors;
(10) Outreach and admissions agencies, including Job Corps contractors that perform these functions;
(11) Placement agencies, including Job Corps contractors that perform these functions;
(12) Other National Program recipients.

Thus, programs and activities that receive federal financial assistance under the Act cannot discriminate against participants with disabilities who use service animals. As to why DOL decided to deal with service animals in these proposed regulations, DOL says that the “Department’s discussions with recipients’ EO [Equal Opportunity] Officers demonstrate that there has been some confusion on the part of recipients as to what constitutes a service animal and what constitutes a pet.” 

Service Animals under New DOL Regulations

The regulations now proposed for 29 CFR Part 38 would replace final regulations published in July 2015 that were in question and answer form but which brought complaints from recipient agencies that found the format confusing and difficult to navigate.  Those regulations did not mention service animals.

Given that many covered entities are state-level agencies, it is not surprising that DOL has now chosen to rely on the DOJ service-animal regulations that apply to state and local governments.  There are differences between the service-animal rules of the two Departments, however, the major ones being (1) the inclusion of a provision on the presence of service animals in food preparation areas in the DOL rules, and (2) the absence of any mention by DOL of miniature horses as a category that, while not formally labeled service animals by DOJ, are at least provisionally covered by similar access provisions.  Those differences are highlighted in the table below, with the proposed rules of the Department of Labor on the left and the final rules of the Department of Justice on the right. 

Department of Labor
Department of Justice
29 CFR 38.4 Definitions.
***
(fff) Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship, without more, do not constitute work or tasks for the purposes of this definition.
28 CFR 35.104 Definitions.
***
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
29 CFR 38.16 Service animals. 

(a) General. Generally, a recipient shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(b) Exceptions. A recipient may ask an individual with a disability to remove a service animal from the premises if—
(1) The animal is out of control and the animal’s handler does not take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a recipient properly excludes a service animal under paragraph (b) of this section, the recipient must give the individual with a disability the opportunity to participate in the WIOA Title I-financially assisted service, program, or activity without having the service animal on the premises.
(d) Animal under handler’s control. A service animal must be under the control of its handler. A service animal must have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).
(e) Care or supervision. A recipient is not responsible for the care or supervision of a service animal.
(f) Inquiries. A recipient must not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A recipient may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A recipient must not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a recipient may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(g) Access to areas of a recipient’s facilities. (1) In general. Individuals with disabilities must be permitted to be accompanied by their service animals in all areas of a recipient’s facilities where members of the public, participants in services, programs or activities, beneficiaries, registrants, applicants, eligible applicants/registrants, applicants for employment and employees, or invitees, as relevant, are allowed to go.
(2) Use of service animals in food preparation areas. An employee, applicant or beneficiary with a disability who needs to use a service animal in a food preparation area must be allowed to do so unless the employer recipient, after an individualized assessment, can demonstrate, that the presence of the service animal presents a direct threat to health or safety that cannot be eliminated or reduced by a reasonable accommodation to the employee, applicant or beneficiary.
(h) Surcharges. A recipient must not ask or require an individual with a disability to pay a surcharge because of his or her service animal, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a recipient normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

29 CFR 35.136  Modifications in policies, practices or procedures.
(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—
(1) The animal is out of control and the animal's handler does not take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a public entity properly excludes a service animal under §35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
(d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).
(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.
(f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.
(h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
(i) Miniature horses. (1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(3) Other requirements. Paragraphs 35.136(c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.

As to why DOL added a provision regarding service animals in food preparation areas, it is perhaps worth noting that the EEOC has a webpage, “How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employees.” This webpage does not define “service animal” but does refer to an ADA website for further information on service animals, as well as cross-referencing to service-animal provisions in the Food Code, a document discussed here in a prior blog.  Placing the burden of establishing a reason to exclude a service animal from a food preparation area on the recipient of funds, rather than on the individual using the animal, is appropriate and, if DOL is considering expanding its service-animal provisions to other areas where it has regulatory authority, it is to be hoped that this approach will remain consistent.

The lack of  any mention of miniature horses, either in the text of the regulations or in the preamble, is more puzzling.  Whether this is due to reasons similar to those given by the Veterans Administration in declining to allow miniature horses in VA facilities, as discussed here when those rules were finalized last August, or is rather explained by a total lack of agency experience with miniature horses, is unclear. It is to be hoped that those advocating the use of miniature horses as service animals will sooner rather than later find an effective lobbying voice and begin commenting on regulatory ignorance of their existence. 

Conclusion

It might be hoped that DOL’s willingness to follow DOJ’s lead on service animal issues will soon extend beyond just the recipients of federal funds under a single program.  Two footnotes in the regulatory release give pause to such speculation, however.  Both footnotes state that the “EEOC has not addressed whether or not this definition [i.e., the definition of “service animal” in proposed 29 CFR 38.4 in the table above] would apply to employers and employment agencies covered under Title I of the ADA or Section 501 of the Rehabilitation Act.”  While these footnotes acknowledge a deficit in regulatory coverage, they may not imply that this deficit will be addressed any time soon but rather may be intended to emphasize that no extension of the current proposal regarding service animals to other areas under DOL's purview is to be anticipated.

Tuesday, December 29, 2015

Airplane Access Regulations on Service Animals to Be Reconsidered by Transportation Department; Closer Alignment with Justice Department Possible

Additional Notes:  The comment period on the Department of Transportation's Reg Neg announcement was extended to January 21, 2016 by an announcement in the Federal Register (81 Fed. Reg. 193, January 5, 2016).  By that date, 68 comments were submitted, all of which have been posted (one seems to have been posted even though submitted late). Organizations submitting comments, many of which specifically offered to participate in the Reg Neg process, are Bark Busters, the Hawaii Disability and Communication Access Board, the Muscular Dystrophy Association, Psychiatric Service Dog Partners, All Wheels Up Inc., Tadsaw, Inc., Association of Flight Attendants--CWA (AFL-CIO), the National Council on Independent Living, the National Alliance on Mental Illness (by Alicia Smith), the National Federation of the Blind, Delta Air Lines, Inc., the Assistance Dog Advocacy Project (by Theresa Jennings), Los Angeles World Airports, Aerolineas Argentinas, the Disability Rights Education & Defense Fund, Assistance Dogs International, Open Doors Organization, Airlines for America, the Airline Passenger Experience Association, the Consortium for Citizens with Disabilities Transportation Task Force and Rights Task Force, the American Council of the Blind, and the International Air Transport Association (IATA).

The IATA, which represents 88 passenger carriers that fly into and out of the U.S., and Delta Air Lines, both feel that there are four areas on which a consensus may be difficult to achieve: inflight entertainment, inflight medical oxygen, accessible lavatories on single-aisle aircraft, and seating accommodations.  Service animals were not mentioned by the IATA, though some service-animal issues could be classified under the category of seating accommodations. Delta Air Lines specifically states that "the topics of (1) defining service animals and (2) developing safeguards to prevent pets being falsely claimed as service animals, would be amendable to a Negotiated Rulemaking."

Eight organizations--the Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Easter Seals, National Council on Independent Living, National Disability Rights Network, National Multiple Sclerosis Society, Paralyzed Veterans of America, and United Spinal Association--submitted a combined comment that speaks directly to some service animal issues:

According to the notice of intent, DOT is exploring whether a Reg Neg would be feasible in seeking to “[d]etermine the appropriate definition of a service animal” and “[e]stablish safeguards to reduce the likelihood that passengers wishing to travel with their pets will be able to falsely claim that their pets are service animals.” We hope that discussion of these issues would also include consideration of “whether certain changes should be made to provisions allowing carriers to require medical documentation and 48 hours advance notice from users of emotional support and psychiatric service animals.” The current policy presents barriers to individuals who use service animals for invisible disabilities. We hope that discussion of this issue would be framed in a manner that ensures individuals who use service animals and emotional support animals will be able to do so without the inappropriately restrictive criteria that currently apply. (footnote deleted)

Several of the eight organizations signing this letter also submitted individual comments. A group of organizations representing the deaf and hearing impaired also submitted a combined comment. These organizations were the National Association of the Deaf, Association of Late-Deafened Adults, California Coalition of Agencies Serving the Deaf and Hard of Hearing, Cerebral Palsy and Deaf Organization, Deaf and Hard of Hearing Consumer Advocacy Network, Deaf Seniors of America, Hearing Loss Association of America, Telecommunications for the Deaf and Hard of Hearing, Inc., and the Rehabilitation Engineering Research Center at Gallaudet University.

Los Angeles World Airports also specifically addressed service and emotional support animal issues, stating:

Los Angeles International Airport (LAX) has experienced an escalation in the number of passengers who falsely assert their pets are service animals.... Even though ... the ACAA states "airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation," this provision is ludicrous inasmuch as anyone can get fake documents online and often do.... The Committee [LAWA's Citizen Disability Committee] believes that the ACAA should not provide special status to emotional support animals.... The Committee is of the opinion that existing regulations tie airlines and others from making legitimate inquiries about the role a service animal perform in assisting a traveler with disabilities."

The American Council of the Blind "calls upon DOT to implement regulations that mirror the Department of Justice's regulations in line with Title II of the Americans with Disabilities Act," criticizing the failure of DOT's regulations "to apply the DOJ's more moderate and common-sense approaches to the kinds of animals that fall within the scope of ADA's protections...." This organization argues that the ACAA regulations, "by permitting the utilization of uncommon and exotic creatures ... exposes the use of service animals as a whole to ridicule and resistance by covered entities and the public generally...."

A number of organizations submitting comments in the last few days indicate that they have already had discussions with the convener appointed by the Department of Transportation to initiate the Reg Neg process described below.

The Department of Transportation is not the only agency presently considering conforming its service-animal regulations to those of the Department of Justice.  In proposed rules published in the Federal Register on January 26 (81 Fed. Reg. 4494), which would apply to recipients of federal funds under the Work Innovation and Opportunity Act, the Department of Labor defines a service animal, except for two words, identically to the way the Department of Justice defines the term.  As to the substantive requirements for service-animal access, DOL’s provisions are again almost identical except that (1) DOL includes a separate provision regarding the use of service animals in food preparation areas, and (2) DOL does not mention of miniature horses as being used in a manner similar to service animals.  It is to be hoped that the Department of Transportation will allow for the use of miniature horses in flights, even if other species are excluded by any revision of its airline access rules. Unfortunately, as I have noted before, the users of miniature horses do not appear to have yet formed an effective lobbying group and no comments focusing on the issue were submitted to the Department of Transportation. The comment of the American Council for the Blind made one mention of miniature horses, as did Tadsaw, Inc. and Monica  McClain, an individual commenter.

My original blog follows....

On November 7, 2015, the Department of Transportation announced “that it is exploring the feasibility of conducting a negotiated rulemaking (Reg Neg) concerning accommodations for air travelers with disabilities,” addressing, among other things, service animals, seating accommodations, and carrier reporting of disability service requests. By using the Reg Neg process, the Department will not follow the usual pattern of having its staff develop proposals, offer them for comment in the Federal Register, then weigh the comments received before issuing final regulations.  Rather, the Reg Neg approach means that parties interested in the issues involved--stakeholders--will be invited to serve on a committee that will propose revisions for the Department, and subsequently the public, to consider. Nondiscrimination on the Basis of Disability in Air Travel; Consideration of Negotiated Rulemaking Process.  RIN 2105-AE12.  80 Fed. Reg. 75953 (December 7, 2015). 

Reg Neg Process

The Department has hired a “convener,” Professor Richard W. Parker of the School of Law of the University of Connecticut, whose responsibility is “to undertake the initial stage in the Reg Neg process” and assist the agency in making an initial determination as to “whether an appropriate advisory committee can be assembled that will fairly represent all affected interests, negotiate in good faith, and offer a reasonable likelihood of reaching a consensus on the issues.”  The Department elaborates on the convener’s responsibilities:

The neutral convener will interview representatives of affected interests, including but not limited to, disability advocacy groups, airlines, and manufacturers of aircraft cabin facilities and equipment and determine whether other interest groups should be included. The convener will examine the potential for adequate and balanced representation of the varied interests on an advisory committee convened to negotiate the regulation and/or to reach consensus on specific issues. Based on these interviews, the convener will submit a written report of findings and recommendations to the Department, and the final report will be available to the public. The convenor’s [sic] report will provide a basis for the Department to decide whether to proceed with a Reg Neg, and, if so, to determine the scope of the issues the committee will address. In the alternative, the Department may also decide to forgo a Reg Neg and proceed with a traditional notice-and-comment rulemaking.

The concept of the convener is statutory (5 U.S.C. 566(3)), where the term is defined as “a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a particular rulemaking.”  (Note that although the statutory spelling is “convener,” in a number of instances and once in the 2015 Federal Register release, the term is spelled “convenor.")

The idea behind a negotiated rulemaking is to select representatives of different groups and perspectives who can interact cooperatively with those who have different viewpoints in a give-and-take process that will lead to a set of proposals that can reflect appropriate viewpoints and be practical to implement.  An advisory committee would be formed, according to the preamble, “to seek to reach consensus recommendations on the appropriate resolution of the issues before the committee.”  If the Department decides to go forward with the Reg Neg process, it will subsequently publish “a notice of intent to solicit comment on membership and to invite interested persons to apply for nomination to the committee.”  The operation of the negotiated rulemaking committee is described in the Negotiated Rulemaking Procedure Act (PL 114-38, codified at 5 U.S. Code Subchapter III), particularly at 5 U.S.C. 566.

The Department perhaps hopes to avoid having a public hearing where those favoring one point of view gather enough of their minions to drown out any other perspectives on various issues both essential and tangential.  If, however, the convener does not think the Reg Neg process will succeed, he can recommend, or the Department can decide on its own, to forget that and let the free-for-all occur.  As to the “neutral” aspect of the convener’s responsibilities, the Department’s release states:

The Federal Government will make no claim to the convener’s notes, memoranda, or recollections or to documents provided to the convener in confidence in the course of the convening process. The convener will not interpret Department policy, make decisions on items of policy, regulation, or statute, or take a stand on the merits of substantive matters under discussion.

It will, on the other hand, be interesting to see which parties Professor Parker designates as appropriate participants in the Reg Neg process.  If face-to-face meetings are held, this will likely occur in Washington, DC.  Although Professor Parker is with the University of Connecticut, he is the director of the law school’s Semester in DC Program and has an office in the Capitol. His UCONN webpage states: 

Professor Parker has published major articles or book chapters on international regulatory harmonization and cooperation….  He also has contributed to expert panels developing recommendations to strengthen public participation and agency analysis in rulemaking. In 2011, Professor Parker served as a convenor and facilitator for a Department of Energy negotiated rulemaking on energy efficiency standards for distribution transformers. He is currently serving as co-chair of the American Bar Association Administrative Law Section’s Committee on Environment and Natural Resources and vice-chair of the Section’s Committee on Collaborative Governance. (emphasis added)

Thus, he has done this before, though for the Department of Energy, and seems rather uniquely qualified to the task the Department of Transportation has given him.

ACAA Regulations on Service Animals

In 2008, the Department issued final regulations under the Air Carrier Access Act (73 Fed. Reg. 27614, May 13, 2008), with extensive discussion of service animal access, as described in Service and Therapy Dogs in American Society and subsequently as to specific issues in a number of blogs on this site.  The current release indicates that the “Department anticipates that the interested parties may include disability advocacy organizations, airlines, airports, airline vendors providing wheelchair assistance, aircraft manufacturers, IFE system manufacturers, movie studios, other IFE content providers, service animal training organizations, and other Federal Agencies,” including the Department of Justice.  Service animal trainers should take note of this. 

The current release refers to the preamble to the 2008 regulations as mentioning possible additional rule-making regarding various topics, including service animals.  This apparently refers to the following paragraph in the 2008 preamble:

While it is possible that foreign air carriers may have safety-related reasons for objecting to service animals other than dogs, even ones that have been successfully accommodated on U.S. carriers, these reasons were generally not articulated in their comments to the docket. Nevertheless, to give foreign carriers a further opportunity to raise any safety-related objections specific to foreign airlines to carrying these animals, the final rule does not apply the requirement to carry service animals other than dogs to foreign airlines. However, foreign carriers could not, absent a conflict of laws waiver, impose certification or documentation requirements for dogs beyond those permitted to U.S. carriers. We intend to seek further comment on this subject in the forthcoming SNPRM. (73 Fed. Reg. 27636)

The preamble to the current release states that the “Department is now planning to address … transport of service animals….”  Thus, the Reg Neg process will pay some attention to how foreign carriers have dealt with service animals, and the airlines and airports that will volunteer or be asked to participate in the rule-making process may well include foreign air carriers and airports. (This likely explains why Professor Parker met with representatives of the International Air Transport Association before the comment period closed, as mentioned in the Additional Note at the beginning of this blog.)

Definition of Service Animal

The current preamble also mentions that “airlines and disability organizations have raised concerns with the Department of passengers falsely claiming that their pets are service animals.”  A footnote to this sentence specifically identifies the Petition for Rulemaking filed by the Psychiatric Service Dog Society in April 2009.  The Department’s discussion on service animals then raises a major concern regarding service animals that has been raised by the Psychiatric Service Dog Society and other organizations: “These groups have also pointed out the inconsistency between the Department of Justice definition of a service animal and the Department of Transportation’s definition of a service animal.” The Department then states that part of the reason for exploring a Reg Neg as a means of gathering information for a rule revision is to “[d]etermine the appropriate definition of a service animal.”  This may well mean that the Department will consider aligning its use of the term with the definition provided by the Department of Justice.

In addition, the Department now states that rules may be appropriate to “[e]stablish safeguards to reduce the likelihood that passengers wishing to travel with their pets will be able to falsely claim that their pets are service animals.”  This possibility will appeal to a broad range of service animal organizations as well as many individuals with legitimate service animals who have encountered difficulty in getting those animals onto airplanes because so many gate personnel have been excoriated for allowing bogus service animals into cabins where they have become disruptive and sometimes dangerous.  As someone who regularly gets emails from service animal users, I would suspect that I have received more complaints about the consequences of bogus service animals than any other issue facing this community. 

Finally, a very specific service animal issue is described:

Various disability organizations have reported to the Department that their members are unable to obtain bulkhead seating while traveling with a service animal as the bulkhead seats are now primarily located in what has been designated by airlines as the premium economy section.

This inevitably creates a conflict with the notion that a service animal user cannot be charged extra for bringing a service animal onto the plane. 

Service animals are only one of the issues that the Department wants to put on the table for revision.  Others include inflight entertainment, supplemental medical oxygen, accessible lavatories on single-aisle aircraft, seating accommodations, and carrier reporting of disability service requests. Although the last two would overlap with service animal issues, the others would generally not.  The solution under the Reg Neg process may be to have several advisory subcommittees, as was the case in the Department of Energy Reg Neg process that occurred in the Department of Energy with Professor Parker’s help in 2011. Thus, one possibility here would be to create a service animal working group that would focus on the issues of concern to the Department and the service animal community.  One working group in the 2011 DOE Reg Neg process consisted of 25 participants, so the number of organizations represented can be high. 

Comment Period

In its December 7 release, the Department provided a one-month comment period, meaning that comments on the Reg Neg proposal were to be received no later than January 6, 2016.  The usual methods of commenting were provided, with the easiest being via the regulations.gov website, where one could be taken to the docket folder by typing in DOT-OST-2015-0246.  Comments have been received on many other issues than just service animals, but a number of service animal users have commented, many recommending conformity between the Department of Justice and Department of Transportation rules regarding service animal definitions and access.  Psychiatric Service Dog Partners, created by certain former participants in the Psychiatric Service Dog Society, in its comment has appropriately advanced itself as an ideal participant in the Reg Neg process.

There is a chance that the comment period will be extended.  A group of 11 organizations has submitted a letter to the Department of Transportation complaining that a 30-day comment period at the end of the year means the actual period available for these organizations “is effectively reduced to nearly two weeks.”  The groups signing the letter are sufficiently powerful that their request for an extension may well succeed.  They are: Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Disability Rights Education & Defense Fund, Easter Seals, National Association of the Deaf, National Disability Rights Network, National Federation of the Blind, National Multiple Sclerosis Society, Paralyzed Veterans of America, The National Council on Independent Living, and United Spinal Association. A number of these groups have taken positions on service animal issues and may be intending to do so in the ACAA context if recommended for an advisory committee. (Most of the 11 organizations requesting an extension to the comment period submitted a combined comment, as noted in the Additional Note at the beginning of this blog.)

Conclusion

Bringing airline access closer to public accommodation access for service dogs makes some sense.  An airline cabin was always an odd location to allow an untrained and potentially raucous emotional support animal, given that unlike a restaurant or a movie theater it is not possible to remove the animal and its owner from the environment and a problem situation may sometimes continue unabated for hours.  On the other hand, there are owners whose emotional need for an animal during the stress of flight may be so high as to prevent them from flying at all without that comfort. Different environments often argue for different verification procedures, and the requirement for letters from mental health professionals has not always been effective in keeping bogus service animals out of cabins, in part because some professionals have been signing form letters provided to them by patients, as Dr. Thomas and I noted nearly three years ago.

The current status of the Reg Neg process is not one of formulating concrete recommendations to resolve such complexities, though some commenters have already made important suggestions, but rather of identifying stakeholders who may be able to provide input as to what issues should be considered in developing proposals.  Inevitably, any advisory committee created to assist the Department of Transportation in overhauling its animal access regulations will have its hands full. Nevertheless, I encourage any organization interested in changing the airline access rules on service animals to contact the Department through the regulations.gov website and put itself forward as a potential participant in the Reg Neg process.

Thanks to Brad Morris, Veronica Morris, Dr. J. Lawrence Thomas, Alli Spotts-De Lazzer, and Leigh Anne Novak for suggestions and corrections. 

Wednesday, December 9, 2015

FDA Food Production Rules Grant Access to Guard and Pest-Detection Dogs, but Why Are Guide Dogs the Only Service Animals Allowed into Some Buildings and Facilities?

The Food and Drug Administration has thousands of pages of regulations regarding the growing and manufacturing of food for human consumption, among which are rules about animal waste, which is a concern because of the possibility that, if found in human food, such waste can cause disease (Salmonella, E. Coli, Cryptosporidium, etc.). Two new sets of rules issued in September, concerning food manufacturing procedures, and November, concerning fruits and vegetables, add nearly five hundred pages to the total, and raise certain access issues as to specially trained canines that will be discussed here (Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, 80 Fed. Reg. 55908, September 17, 2015; Standards for the Growing Harvesting, Packing, and Holding of Produce for Human Consumption, RIN 0910-AG35, 80 Fed. Reg. 74354, November 27, 2015).

General  FDA Policies on Reducing Animal Contamination Risks

In order to reduce the threat of contamination as much as possible, animals are generally prohibited to the extent practical from being in environments where food is grown, harvested, stored, processed, packaged, and otherwise altered before reaching retail outlets. Not all animals can be excluded, however. Grazing animals may be on farms where plants are being grown for human food. Livestock herding and guarding dogs may have to protect these grazing animals from predators. Guard dogs may be needed to protect buildings where food is processed and stored.  Pest-detection dogs may be needed to identify and eliminate various pests and infestations both in fields and pastures and inside of structures. Farm pets may run through fields and barns. Individuals with disabilities may work in food-producing environments and may require the assistance of service dogs. 

The FDA regulations in Title 21 of the Code of Federal Regulations recognize all these types of animals, except service dogs. Rather, the regulations recognize guide dogs only, most probably a legacy of that period where the only dogs with access greater than pets under disability law were guide dogs for the blind and visually impaired. The earliest references to guide dogs in FDA regulations date from 1986, before the 1991 regulations under the Americans with Disabilities Act fleshed out access provisions for service animals. The reason the FDA has not taken service animals into consideration is probably administrative inertia in continuing to use the first rule (21 CFR 110.35) as a template for later rules.  Also, apparently in none of the subsequent regulatory proposals did anyone with a service animal comment on the restrictive language, nor that I can find did any service animal organization submit comments. I must acknowledge that I also failed to notice when proposals only mentioning guide dogs, not service animals, were published in the Federal Register in 2013. It is too late to submit comments on the proposals as they have been made final, but, fortunately, there is a way to raise the issue outside of the regulatory process. 

The concept of service animals is not, however, foreign to the FDA as the 2013 Food Code, a document issued jointly by the FDA, the Centers for Disease Control and Prevention (CDC), and the Food Safety and Inspection Service of the U.S. Department of Agriculture (USDA), uses the term multiple times. 

Locations with Animal Access Restrictions under FDA Regulations

Before discussing the various types of dogs that may be present in agricultural and food production operations, it might be helpful to list general locations where specific types of dogs and other animals are permitted. This table generally moves from the more confined locations (buildings and manufacturing plants) to more open locations (water sources, growing areas, and farms). As is evident in the table, and further explained below, the more restricted areas are generally only supposed to be open to certain dogs with specialized training and skills, while more open areas such as fields and farmyards are accepted as inevitably having more types of animals, even grazing and wild animals, under less or no control.   

Locations Where FDA Rules Specify Limitations on Animal Access
Location/type of food
Animals allowed (dogs)
Provision/effective date
Buildings and facilities used in manufacturing, packing, or holding human food (Part 110)
Guard and guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
21 CFR 110.35 Pest control (removed after 9/17/2018, but effectively replaced by 21 CFR 117.35 on 11/16/2015; this replaces a non-binding provision with a binding provision.)
Physical plant and grounds used in manufacturing, packaging, labeling, or holding operations for dietary supplements  (Part 111)
Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces.
21 CFR 111.15, effective since 2007.
Fully-enclosed buildings used in growing, harvesting, packing and holding of produce (fruits and vegetables) for human consumption (Part 112)
Domesticated animals must be excluded from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed, unless such animals can be separated from such activities in the fully-enclosed building by “location, time or partition.”  However: “Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.”
21 CFR 112.127, effective 1/26/2016, with different compliance dates depending on the size of the business (an income determination).
Areas of a plant used for manufacturing of human food (Part 117)
Guard, guide, or pest-detecting dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
21 CFR 117.35, effective 11/16/2015 (as noted above replacing non-binding provision of Part 110 with binding provision in Part 117).
Water sources, water distribution system, and pooling of water used in growing, harvesting, packing and holding of produce (fruits and vegetables) for human consumption (Part 112)
Water sources must be kept free of domesticated animals.
21 CFR 112.42, effective 1/26/2016.
Areas, including growing areas where” there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate” produce (fruit and vegetables) (Part 112)
Grower must evaluate whether produce can be harvested without reasonable likelihood of contamination. Working animal is defined broadly to include “dogs, cats, or chickens” used to deter pests in growing areas, as wells as “guard dogs used to keep other animals out of fields.”  This would seem to include livestock guarding dogs used to deter predators.
21 CFR 112.83, effective 1/26/2016.

Guide, Guard, and Pest-Detecting Dogs

A rule added to 21 CFR Part 110 (Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food) in 1986 (51 Fed. Reg. 22475, June 19, 1986) contained a provision on pest control (21 CFR 110.35) that included the sentence: “Guard or guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.”  The wording of this sentence has continued to the present, though the provision will now be moved to new 21 CFR 117.35, where it will be modified to add a reference to “pest-detecting dogs.” (There will be a nearly two-year interval where both provisions will technically be effective because of staggered effective dates, though because of the identical language, this will present no additional burden.)

Guide dogs are also mentioned in 21 CFR Part 111 (Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements), at 21 CFR 111.15, which includes a sentence which differs from that in 21 CFR 110.35 only by the italicized words:

Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces.

The difference, of course, is that Part 111 deals only with manufacturing practice regarding dietary supplements.  This provision was proposed in 2003 (60 Fed. Reg. 12158, March 13, 2003) and finalized in 2007 (72 Fed. Reg. 34752, June 25, 2007), well within the modern era of ADA regulation, but no service dog user or organization commented on the restrictive reference to guide dogs only.  The “physical plant” includes the “building, structure, or parts thereof, used for or in connection with the manufacturing, processing, packing, or holding of human food” (80 Fed. Reg. 55938, September 17, 2015; 21 CFR 117.3).

New Part 112, Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, added in 2015 (80 Fed. Reg. 74357, November 27, 2015; proposed 2013), also mentions guide dogs along with guard dogs. Under 21 CFR 112.127:

(a) You must take reasonable precautions to prevent contamination of covered produce, food contact surfaces, and food-packing materials in fully-enclosed buildings with known or reasonably foreseeable hazards from domesticated animals by:
(1) Excluding domesticated animals from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed; or
(2) Separating domesticated animals in a fully enclosed building from an area where a covered activity is conducted on covered produce by location, time, or partition.
(b) Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.  (emphasis added)

Because the provision is not merely a manufacturing provision, but also covers the growing and harvesting of produce within an agricultural operation, the precautions that must be taken include taking such steps as are reasonable with regard to animals such as livestock, which might contaminate areas where produce (fruit and vegetables) are being grown or harvested. Thus, putting up a fence to keep cattle out of a corn field might be expected.   

As mentioned in the first paragraph under this heading, some of Part 110 is being moved to new Part 117, Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, and new 21 CFR 117.35 will continue the guard and guide dog reference for manufacturing of food (except for Part 111, concerning dietary supplements), with the addition of “pest-detecting dogs.”  There appears no logical reason why pest-detection dogs were not added to the parallel provisions mentioning guard and guide dogs in Parts 111 and 112. 

Working Animals

Under new 21 CFR Part 112, references to “working animals” can include dogs.  Subpart I of Part 112 concerns domesticated and wild animals, and 21 CFR 112.83(a) states: 

You must take the steps set forth in paragraph (b) of this section if under the circumstances there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate covered produce. 

There are additional references to working animals in 21 CFR 112.32 stating that hygienic practices require avoiding contact with animals other than working animals and requiring steps to minimize the likelihood of contamination from contact with working animals including washing hands after contact.

“Working animal” is not defined in the regulations but the preamble describes this category as including “horses, dogs, cats, and chickens” (80 Fed. Reg. 74481), and another passage refers to “using dogs, cats, or chickens to deter pests in growing areas…” and “using guard dogs to keep other animals out of fields” (80 Fed. Reg.  74480-1). This would seem to be broad enough to include livestock guarding dogs, and should probably include livestock herding dogs. Yet another passage in the preamble distinguishes working animals from “grazing animals” (80 Fed. Reg. 74370).

Domesticated Animals

Yet another term found in the regulations just finalized that can include dogs is “domesticated animal.” This term also is not formally defined, though the preamble contains a parenthetical to the term “domesticated animals (such as livestock, working animals, and pets)…” (80 Fed. Reg. 74478).  (It is probably not too much of a stretch to argue that since the parenthetical does not mention guide or guard dogs, these also fit within the category of working animal.)  New 21 CFR 112.42 requires keeping water sources “free of … domesticated animals, and other possible sources of contamination of covered produce to the extent practicable….” 

Specifically as to pets, the FDA states:

You are permitted to have cats or dogs on your covered farm, provided that … you (1) adequately control their excreta and litter and (2) maintain a system for control of their excreta and litter. These measures are necessary to prevent contamination of covered produce, food-contact surfaces, areas used for a covered activity, agricultural water sources, and agricultural water distribution systems with waste from your cats or dogs.  (80 Fed. Reg. 74495; see also new 21 CFR 112.134.) 

Thus, a covered farm, one that grows food and produce for human consumption, need  not exclude its own pets, but might want to restrict visitors from brining in large numbers of pets. 

Why Were Service Animals Not Considered by the FDA?

None of the commenters on the 2013 proposals mentioned service dogs or service animals.  In contrast, the Pennsylvania Vegetable Growers Association (comment of Brian Campbell, President) noted that “dogs are sometimes used to control animal intrusions into fields…,” an observation which the drafters of the regulations adapted in the preamble.  Dr. Richard Bonanno, President of the Massachusetts Farm Bureau Federation, noted the need for the “intermittent presence of service animals, such as dogs to scare away wildlife or geese that may eat weeds….” George Greig, Secretary of the Pennsylvania Department of Agriculture noted that dogs and cats are used “for pest control and/or keeping other animals out of fields and outbuildings.” Thus, pest-detection dogs were recognized in the final rules, but service animals were not. 

It may be that if the issue of a non-guide service dog ever arises in a food production context, the relevant authorities will consider that such service dogs are to be treated the same way as guide dogs.  A personal communication with someone who has worked in agricultural settings has confirmed that this has been the case in her experience, and the references to service animals in the Food Code, discussed next, would certainly support such an argument. Nevertheless, in an email communication with an official of the FDA, the official suggested that the service animals would be in the same category as domesticated animals, i.e., in no better position for access than grazing animals. 

2013 Food Code

As stated at the beginning, the 2013 Food Code (“Code”) issued by three agencies, including the FDA and the CDC, both inside the Department of Health and Human Services, and the Food Safety and Inspection Service inside the USDA, makes numerous references to service animals.  The Code (p. 20) defines a service animals as “an animal such as a guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.” Employees are to “clean their hands and exposed portions of their arms” after “caring for or handling SERVICE ANIMALS or aquatic animals….” (2-301.14, p. 47).  Service animals controlled by a  “disabled EMPLOYEE or PERSON” may be in “areas that are not used for FOOD preparation and that are usually open for customers, such as dining and sales areas … if a health or safety HAZARD will not result from the presence or activities of the SERVICE ANIMAL.”  The following general statement is made (p. 537) regarding food employees with service animals:

Decisions regarding a food employee or applicant with a disability who needs to use a service animal should be made on a case-by-case basis. An employer must comply with health and safety requirements, but is obligated to consider whether there is a reasonable accommodation that can be made.

For additional information, the Code lists a number of releases of the Department of Justice regarding service animals, as well as the ADA website. It is clear that some officials inside the FDA are familiar with service animals, though perhaps the use of the more modern term in the Code is to be credited to one of the other agencies involved.   

Telling the FDA about a Service Animal

There is one way that service dog users can bring this issue to the FDA’s attention, should they wish.  The FDA has a system, the FDA Technical Assistance Network, which has an icon, “Submit Inquiry,” where a question may be posed to the FDA and which will, I am assured, be directed to the correct official inside of the agency. Those who have service animals who may be affected by these rules should consider sending a comment to this effect, along with any questions about the reach of the rules, through this mechanism.  I submitted the following comment by this means:

Although it is too late to submit formal comments regarding the recent Food and Drug Administration rules that discuss various types of trained dogs, pets, and other animals in food production environments (21 CFR 112.127; 21 CFR 117.35), I should like to note that the FDA’s regulatory limitation of service animals to guide dogs is contrary to recent legal developments regarding animals that are used by people with various types of disabilities other than blindness and vision impairment, and is also more limiting than the positions of the FDA itself as contained in the 2013 Food Code. 

In this connection, I believe that, in future revisions of 21 CFR 111.15, 112.127, and 117.35 (the latter replacing 21 CFR 110.35), the FDA should replace the term “guide dog” with “service animal.” Should it be deemed appropriate to define the term “service animal,” I suggest that the definition provided by the Department of Justice in 28 CFR 36.104 be used: “Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” The 2013 Food Code (6-501.115, p. 536) refers to 28 CFR 36.104 as the source of that document’s definition of service animal (though using a now outdated version of the Title 28 provision).  In this connection it is perhaps also worth noting that the Department of Justice recognizes that miniature horses have been trained to perform functions similar to those provided by guide dogs and therefore are allowed similar access to public accommodations (see 28 CFR 36.302(c)(9)). I accept that miniature horses would involve considerations that apply to certain grazing animals in the FDA regulations.    

Thank you for considering these observations.... 

The only response I have received so far was an unsigned email to my "FCIC Inquiry" advising me to submit my comments to "your local or state health department." This was either computer-generated (or at least mindlessly generated) as no state or local health department would have the authority to consider, much less correct, negligent drafting of federal regulations.  It must be hoped that, if more comments along the lines of what I have submitted are received, the issue will begin to be addressed by some higher intelligence inside the FDA. 

Conclusion

The actual level of inspection of farms and food-production facilities has dramatically decreased under the Obama administration according to experts in the area. (See, for example, Joe Ferguson, “Retired USDA Inspectors Share Concerns about HIMP Project,” Food Safety News, November 16, 2015; Tony Corbo, “USDA Continues to Deceive on Meat Inspections,” Food & Water Watch, April 17, 2014.)  So, admittedly, the chance that an inspector might actually raise an issue with regard to a non-guide service dog in an agricultural setting is not very likely.

The FDA is to be praised for taking pest-detection dogs into consideration with regard to manufacturing plants (Part 117), and should probably expand their usage to fully-enclosed buildings (Part 112) and manufacturing plants for dietary supplements (Part 111).  References to guide dogs should be expanded to service dogs, as it is as likely that people with disabilities other than vision impairments are working in the food industry.  Where dogs may be in fields and around grazing animals, references to guard dogs should clarify that in some of these environments the dogs might be livestock herding and protection dogs.  Since there are no open regulatory projects on which comments are still being received, such modifications may have to wait, but those interested in these issues should take advantage of the portal within the FDA Technical Assistance Network. 

Thanks to Sarah Bell for bringing to my attention the fact that under the Obama administration food inspection personnel have been reduced considerably, all but eliminating an important safety threshold on the food we eat. Thanks also to Veronica Morris, Brad Morris, and Chanda Hagen for suggestions and information regarding service animals used in agricultural settings. Thanks to Emma Ertinger of the National Sustainable Agricultural Coalition for information concerning FSMA rules and FDA procedures.
© John Ensminger 2015

FDA Access Rules Regarding Dogs and Other Animals in Food Production Environments
(Comprehensive Table of CFR Title 21 References)
Dog or animal category
CFR section
Relevant regulatory text
Status/Notes
Guard dog (note reference under “working animal” below to using “guard dogs to keep other animals out of fields” (80 FR 74481))
(see 21 CFR 100.35(c) and 21 CFR 100.15(d) below)


Guide dog
Part 110—Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food
Subpart B—Buildings and Facilities
21 CFR 110.35 Sanitary operations…
(c) Pest control.
… Guard or guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
51 FR 22475, June 19, 1986; amended 54 FR 24892, June 12, 1989;
Part 110 removed and reserved, effective September 17, 2018 (80 FR 56144, September 17, 2015); FDA is re-establishing “certain non-binding provisions of part 110 in part 117 as binding provisions.” (80 FR 55939)
Part 111-Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements
Subpart C—Physical Plant and Grounds
21 CFR 111.15 What sanitation requirements apply to your physical plant and grounds?
(d). Pest control.
(1) …  Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces….
Proposed March 13, 2003, 68 Fed. Reg. 12158; finalized June 25, 2007, 72 Fed. Reg. 34752.
Part 112—Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
Subpart L—Equipment, Tools, Buildings, and Sanitation
21 CFR 112.127 What requirements apply regarding domesticated animals in and around a fully-enclosed building?
(a) You must take reasonable precautions to prevent contamination of covered produce, food contact surfaces, and food-packing materials in fully-enclosed buildings with known or reasonably foreseeable hazards from domesticated animals by:
(1) Excluding domesticated animals from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed; or
(2) Separating domesticated animals in a fully=enclosed building from an area where a covered activity is conducted on covered produce by location, time, or partition.
(b) Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.
Effective January 26, 2016 (80 FR 74357, 74528, November 27, 2015; proposed 78 Fed. Reg. 3504, January 16, 2013), but different compliance dates depending on the size of the business (an income determination). 
Part 117—Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food
Subpart B—Current Good Manufacturing Practices
21 CFR 117.35 Sanitary operations
(c) Pest control.
… Guard, guide, or pest-detecting dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
Effective November 16, 2015 (80 FR 56131, September 17, 2015); note that there appear to be dates where both the requirements of Part 110 and Part 117 apply, though the identity of language makes this irrelevant.
Pest-detecting dog
(see 21 CFR 117.35 above)


Domesticated animals (which can include “livestock, working animals, and pets” (80 FR 74478); the absence of reference to guide dogs here suggests that in this connection at least a guide dog is a working animal)
(see 21 CFR 112.127 above)
Subpart E—Agricultural Water
21 CFR 112.42 What requirements apply to my agricultural water sources, water distribution system, and pooling of water?

(c) You must adequately maintain all agricultural water sources to the extent they are under your control (such as wells). Such maintenance includes regularly inspecting each source to identify any conditions that are reasonably likely to introduce known or
reasonably foreseeable hazards into or onto covered produce or food contact surfaces; correcting any significant deficiencies (e.g., repairs to well cap, well casing, sanitary seals, piping tanks and treatment equipment, and control of cross-connections); and keeping the source free of debris, trash, domesticated animals, and other possible sources of contamination of covered produce to the extent practicable and appropriate under the circumstances.


21 CFR 112.134  What must I do to control animal excreta and litter from domesticated animals that are under my control?
(a) If you have domesticated animals, to prevent contamination of covered produce, food contact surfaces, areas used for a covered activity, agricultural water sources, or agricultural water distribution systems with animal waste, you must:
(1) Adequately control their excreta and litter; and
(2) Maintain a system for control of animal excreta and litter.
(b) [Reserved]

Working animal (which can include “horses, dogs, cats, and chickens” (80 FR 74481, November 27, 2015); distinguished from “grazing animals” (80 FR 74370, 74481); “using dogs, cats, or chickens to deter pests in growing areas, or prevent farms from using guard dogs to keep other animals out of fields” (80 FR 74480-1); “working animals such as horses used for tilling and harvest activities and transporting produce” (80 FR 74480))
Part 112—Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
Subpart I—Domesticated and Wild Animals
21 CFR 112.83 What requirements apply regarding grazing animals, working animals, and animal intrusion?

(a) You must take the steps set forth in paragraph (b) of this section if under the circumstances there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate covered produce. 
(b) You must:
(1) Assess the relevant areas used for a covered activity for evidence of potential contamination of covered produce as needed during the growing season (based on your covered produce; your practices and conditions; and your observations and experience); and
(2) If significant evidence of potential contamination is found (such as observation of animals, animal excreta or crop destruction), you must evaluate whether the covered produce can be harvested in accordance with the requirements of § 112.112 and take measures reasonably necessary during growing to assist you later during harvest when you must identify, and not harvest, covered produce that is reasonably likely to be contaminated with a known or reasonably foreseeable hazard.
See notes on 21 CFR 112.127 above.