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 had been submitted, but comments submitted as late as February 12 have also been posted and there are now 87 comments on the regulations.gov webpage for the announcement. 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, New Zealand Air, 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. 

7 comments:

  1. I believe in the concept of a "Reg Neg" approach in trying to approach this sticky wicket of a issue; intelligent but timely decisions seem the way to go. With assistance animals in our culture, emotions may threaten to overrule logic simply by level of volume or passion, and so a proper preventative approach is not just desired, but desperately needed, to keep people safe (even and especially from efforts to help them.) To have a committee of folks with experience in the field or families in honest need of safe services is more important than the financial details or clout of the proposed committee, it should be noted, as I believe that introducing money into this mix will disturb the delicate balance of an important decision. I'd love to see family members of children who are partnered with therapy or assistance dogs fairly represented in the mix. The field of autism assistance dogs is still emerging field and we should welcome more regulations to make a better case of recognizing therapy is an increasingly important avenue for a segment of the population that has been hidden away too long due to the social and emotional cost of venturing in public. A properly bred and trained autism assistance dog can help a child have access to places he may not have been able to go alone, and this mitigated need is enough to understand it is a matter of civil rights that the child is allowed this partner, but equally important is the fact that the person sitting next to this assistance dog is safe from harm as well. I've flown on hundreds of flights with my assistance pups in training in the past sixteen years and have many thousands of people happy and one gentlemen furious. He kept giving me dirty looks all the way from LA to Chicago, but I respected his right to make faces at me and he respected my right to be there as he made no attempt to have me removed. Tolerance is needed here, and a wise policy will help create a tolerant and thoughtful atmosphere to create new law. Proper breeding and documented work socializing and training an assistance dog is imperative if we are to trust an animal to work in public spaces, including the confined space inside a metal tube thousands of feet in the air and miles from a hospital. I have always respected dogs' power to harm, even as I've spent my life cultivating the gentlest of relationships between North Star dogs and the children they serve. At North Star, we have found great success in taking the team approach, with cooperative freedom and clear boundaries and sets of rules that guide, but do not dictate, future decisions. Remaining flexible to real time information is also key to not losing balance. Thank you for helping us to ride the roiling waves of progress, Mr. Ensminger and Professor Parker! ~ Patty Dobbs Gross, Founder & Executive Director, North Star Foundation, www.northstardogs.com, pattydobbsgross@gmail.com, "We help children find their way."

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  2. It is my belief ESA should continue to have equal status as any other service animal under the Air Carrier Access Act. While my adult son's service animal qualifies under the definition under DOJ's guidelines, it is equally important, if not more so, what his service animals brings to the table in the way of emotional support, both during flight and when we are at our second home. My hope is whether the regneg process is approved or the traditional process, those who may or may not be representing the "best" interest of persons with disabilities give great and serious thought on this issue. My concern and it is true, there will be many at the table with self-serving interests. Money is at the heart of some of these issues, and I know with certainty the issue of seat accommodations is of particular concern to the airline industry. Specifically the bulkhead as you mention in this posting. I will leave you with one example and perhaps some of you have or have not experienced this. Last summer, Hawaiian Airlines sent out a fleet of their Airbus aircraft which service the west coast to Hawai'i. HA created what they are calling "comfort seating". They've thrown in a few amenities one doesn't get in "regular coach" nor in what other airlines call economy plus, other than the 5-6 inches more legroom. Most airlines "waive" the fee associated with the bulkhead if they are accommodating that very narrow qualifying person with disabilities. However, what HA did by throwing in a few amenities, is they have been successful in getting DOT to advise the public that there is not anything DOT can do to Hawaiian Airlines for getting a bit creative in skirting around the intent of the ACAA. So, if one calls HA and you need a bulkhead seat to accommodate an immobilized leg, brace, cast, service animal, you are told that none exists in their new aircraft in "coach". As some of you may know, the regs currently state that if a bulkhead exists in the class of service you've purchased, then if the seat is available, you "must" be provided the bulkhead - for those narrow qualifying disabilities. HA advises that if you need the bulkhead, your only option is to upgrade into their "comfort seating", fly first class, and/or just not come along for the ride - take another aircraft. And, the airlines would very much prefer not to have to "block" seats in the bulkhead row. The reason is simple - these seats generate money. Currently, airlines do not have to "block" bulkhead seats in the first class cabin. It will not surprise me at all that if the airlines are successful in getting DOT and/or others to agree that premium economy plus is a "separate" class of service, the airlines will be advocating they not be required to "block" any of their "premium economy plus" seating as well. It was noted in this article that some are experiencing not having access to the bulkhead seats right now. That is a violation of the ACAA. So, if we are talking about potential "cheating" of the public, we have had to tell at least one major airline that you are not able to violate the very same law you yourself are violating. At least one major airline and another one was waiting in line to do the same, was excluding certain service animals from the bulkhead seats and DOT had to advise them they could not do this as the regs have not changed.

    Our family has taken to the skies every three months from Texas to the State of Hawai'i with my adult son and his service animal. Not one single time has there ever been any other animal in cabin on any segment, unless there was a family pet in a carrier, which most major airlines now permit. If a family pet was in the mix, they were just as quiet as my son's service animal.

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    1. Beverly, I encourage you to submit these thoughts on the regulations.gov website, as they are certainly relevant to the type of information that the advisory committee in the Reg Neg process will be seeking. I do not know what mix of individuals and organizations will be recommended for the committee by Professor Parker, but I believe that a number of individuals who have commented so far would be useful participants in this process. Thanks for posting.

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  3. John, thank you for posting my thoughts on these topics. Do have a question about the Reg Neg process and thinking you most likely have experience in how this works better than I. Was planning on making a comment at the reg.gov website, but then was told by one of the persons who has submitted a comment in behalf of a state agency, that at this moment, the "only" comments desired by DOT on this is whether or not we do or do not support this "Reg Neg" process or the traditional one. So, what we think about a particular item or items up for discussion and to comment on it would be "premature". As you've noticed, many persons are going right to the heart on some of the items. In your opinion, do we really need to wait to have our own voices raised on these items until after DOT determines if it will continue in the Reg Neg process? Thanks for sharing this information with others. It's greatly appreciated.

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    1. Beverly, It is correct that the primary objective at this stage of the Reg Neg process is to gather participants for the process, but a significant number of the commenters have given substantive recommendations that I am sure will be considered. Some commenters have done both, i.e., made suggestions and offered to participate. If the Reg Neg process proceeds, there will be an additional period in which comments on substantive proposals will be accepted, but I don't think comments presented at the current stage will be ignored. John

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  4. John, Mahalo nui loa (extra thanks with Aloha) Beverly

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  5. I do not mine Emotional Support Dog only in airplane as long as they are not in training.
    Emotional Support Animal like cats or bunnies ect should not be aloud airplanes like ESD and SD
    That is just my thought

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