The Seeing Eye's Comments On Proposed DOT Regulations
Dear Seeing Eye graduates:
The U.S. Department of Transportation (DOT) issued a Notice of Proposed Rule Making (NPRM) concerning traveling by air with service animals. The NPRM was issued by DOT on January 22 and officially posted in the Federal Register on February 5. DOT is giving the public until April 6 to submit comments. After DOT reviews the public comments, they will issue final regulations.
The DOT regulations on Traveling by Air with Service Animals will have a significant impact on guide dog handlers. This is your opportunity to make your voice heard. Below are the comments submitted by The Seeing Eye on February 19. We urge all graduates to comment on the NPRM and to reference or use The Seeing Eye’s comments as you see fit. Below is a link to the site where you can read the NPRM, post your own comments, and review comments posted by the public:
We thank you in advance for your engagement in this important issue. Please do not hesitate to call us at 1-800-539-4425 or email advocacy@seeingeye.org if you have questions.
Melissa R. Allman
Senior Specialist, Advocacy and Government Relations
To: The U.S. Department of Transportation
From: The Seeing Eye, Inc.
Re: Docket No. DOT-OST-20180068, RIN No. 2105-AE63 - Traveling by Air with Service Animals, Notice of Proposed Rulemaking (NPRM)
The Seeing Eye has been providing specially bred and trained guide dogs for people who are blind or have low vision since 1929. Since that time, The Seeing Eye has worked tirelessly to advocate for the rights of guide dog handlers to have equal access to all modes of transportation including air travel. At present, there are approximately 1,700 active Seeing Eye graduates in North America and many of those people are regular air travelers. As Senior Advocacy and Government Relations Specialist at The Seeing Eye and a guide dog handler myself, I am submitting the below comments on behalf of our organization.
We commend DOT’s efforts to amend and clarify its Air Carrier Access Act (ACAA) regulations to ensure safe and equal access to air travel for all passengers including people who work with service animals. We also understand DOT’s need to balance the protection of civil liberties with safety concerns. Nonetheless, we urge DOT to take into consideration the burdens some of its proposed changes would impose on handlers of task-trained service animals like guide dogs. The position of The Seeing Eye on DOT’s proposed changes to 14 C.F.R. Part 382 is as follows:
1. Service Animal Species
The Seeing Eye is not opposed to DOT's proposal to define a service animal as "a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability" (NPRM, 23-24). The Seeing Eye recognizes the likely benefits of more closely aligning the definition of service animal in the ACAA regulations with the definition used by the Department of Justice (DOJ) in its Americans with Disabilities Act (ADA) regulations. The new definition would help alleviate the concerns of both air travelers and the airline industry about the growing number of animals traveling by air that are not trained to behave appropriately in public. The new definition would also eliminate the stress imposed on animals that are currently permitted to travel in the cabin without having been prepared or socialized to cope with the many stimuli that occur in public settings, let alone air travel.
2. Breed or Type Restrictions
The Seeing Eye applauds DOT's proposal to continue prohibiting airlines from placing restrictions on service animals based on a dog's specific breed or general type. The Seeing Eye agrees with DOT's current policy of requiring airlines to conduct "individualized assessments of particular service animals based on the animal's evident behavior or health rather than applying generalized assumptions about how a breed or type of dog would be expected to behave" (NPRM, 27). The Seeing Eye believes that an individualized assessment is adequate to ensure that aggressive animals are not allowed to travel by air. Banning an entire breed is simply not the answer. The Seeing Eye believes that if current DOT regulations are understood and applied correctly by airline personnel, they offer sufficient protections to passengers and airline employees without imposing unnecessary breed or type restrictions.
3. Emotional Support Animals
The Seeing Eye does not object to DOT's decision to adopt a definition of service animal that would not include any animals that are not trained to perform a task. If the proposed DOT rule is adopted, airlines would not be precluded from implementing policies that allow passengers to request to travel with an emotional support animal as an accommodation for their disabilities.
4. Psychiatric Service Animals
The Seeing Eye does not object to DOT's proposal to treat psychiatric service animals the same as other service animals since, like other animals encompassed by DOT's proposed definition of service animal, they are trained to perform tasks.
5. Large Service Animals
The Seeing Eye has concerns about DOT's proposed limitations on large breeds. It is our position that the current rule is sufficient to safeguard against larger dogs encroaching on the foot space of other passengers who do not wish to share space with a service animal. The current rule states that a service animal must be permitted to accompany a passenger with a disability "at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation" (14 C.F.R. §382.117(b)). If a service animal cannot be accommodated at the passenger’s seat, the airline is required to "offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated" (14 C.F.R. § 382.117(c)). The Preamble to the rule states that if a service animal cannot be accommodated at the passenger's seat or at another seat in the passenger's class of service where the animal will not obstruct an aisle or emergency exit, "the carrier should first talk with other passengers to find a seat location in the cabin where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal). The fact that a service animal may need to use a reasonable portion of an adjacent seat's foot space that does not deny another passenger effective use of the space for his or her feet by taking all or most of the passenger's foot space is not, however, an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat. Only if no other alternative is available should the carrier discuss less desirable options concerning the transportation of the service animal..." (73 Fed. Reg. No. 93, 27661 (May 2008)).
The proposed rule would categorically deny passage to service animals that are too large to fit on the handler's lap or within the foot space of the handler unless the handler can be reseated next to an empty seat where the animal can be accommodated. Otherwise, the handler would be offered the opportunity to travel on a later flight or place the service animal in cargo free of charge. Unfortunately, the likelihood that a commercial aircraft will be booked to capacity continues to increase, while the size of airline seats and the amount of foot space afforded to passengers continues to decrease. These conditions have significantly diminished the likelihood that airline personnel will have the flexibility to reseat a service animal handler with a larger dog next to an empty seat. Thus, handlers with larger dogs could be, more often than not, faced with choosing between traveling at a later time that may not meet their needs or placing their service animal in cargo. Placing a service animal in cargo is fraught with problems, among which are the handler's separation from the animal and the inherent risks to the animal's safety.
In proposing this change to the rule, DOT seems to be relying on sparse anecdotal data provided by airlines about passengers feeling pressured to share foot space with service animals. In the NPRM, DOT indicates that the current guidance does not require passengers to share foot space with an animal if they do not wish to do so (48). What is more, most legitimate service animals are trained to curl up at the feet of the handler in the space allotted to them even if they are large breeds. The Seeing Eye, which matches people with German shepherds, Labrador retrievers, and golden retrievers, is troubled by a rule that would allow airlines to place more restrictions on the space allotted to these dogs. A more effective solution would be to better educate airline personnel about how to accommodate people with service animals while considering the needs of other passengers.
Furthermore, The Seeing Eye urges DOT to consider the lack of clarity around the concept of passenger foot space. The boundaries between one passenger's foot space and that of another can be very hard to determine, for example, on smaller aircrafts or in bulkhead seating. That said, the proposed changes to the rule appear to focus more on accommodating the hypothetical uncomfortable passenger adjacent to a service animal than on providing equal access to people with disabilities as these regulations are intended to do.
6. Number of Service Animals per Passenger
The Seeing Eye does not take a position on DOT's proposal to limit the number of service animals per passenger to two. We do, however, maintain the position we took in our comments on the ANPRM that a handler's ability to control their service animals is likely to diminish as the number of service animals they are handling increases.
7. Service Animal Restraints
The Seeing Eye agrees with DOT’s proposal to allow airlines to require that service animals be harnessed, leashed, tethered, or that other effective means be used to maintain control of the service animal. The Seeing Eye stands by the position we took in our comments on the ANPRM. Service animals should be leashed or otherwise under the handler’s control at all times. There are times during air travel when it may be appropriate for a passenger using a guide dog to remove its harness for the comfort and safety of the dog. However, the guide dog handler still has control over the dog in these limited circumstances because the leash is the means of control.
The Seeing Eye does, however, have some concerns about DOT's proposed definition of "handler." DOT proposes to define "handler" as "a qualified individual with a disability who receives assistance from a service animal(s) that does work or performs tasks that are directly related to the individual's disability, or a safety assistant, as described in section 382.29(b),96F97 who accompanies an individual with a disability traveling with a service animal(s). The service animal handler is responsible for keeping the service animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding" (NPRM, 57). Although current ACAA regulations do not protect the rights of service animal trainers to travel with the animals they are training in the cabin free of charge, most airlines allow credentialed trainers from organizations such as The Seeing Eye to fly with guide dogs. A more restrictive definition of the term handler may give airlines incentive to tighten their policies to a degree that compromises the ability of guide dog schools such as The Seeing Eye to provide necessary services to qualified people with disabilities throughout the areas they serve. If DOT is intent on defining "handler," The Seeing Eye requests that DOT expand the definition to include credentialed service animal trainers.
8. Service Animal Documentation and Early Check-in
The Seeing Eye is strongly opposed to DOT's proposal to allow airlines to require that passengers, as a condition of traveling with a service animal, submit to the airlines forms concerning the animal's behavior, training, and health, as well as requiring passengers with service animals to check in an hour before the general public so the forms can be processed. One of the three forms DOT proposes to allow airlines to require is a "DOT Air Transportation Service Animal Behavior and Training Attestation Form." This form would be completed by the passenger and would provide assurances that the animal "has been individually trained to do work or perform tasks for the benefit of the passenger with a disability and has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times" (NPRM, 65). The Seeing Eye is not persuaded that this form would be effective enough to justify the burden it would impose on passengers with service animals. Passengers who are motivated enough to obtain documentation online misrepresenting their pet as a service animal will likely be equally motivated to submit an attestation form. A passenger could complete and submit the form knowing full well that their animal is not trained to behave appropriately in an airport setting and may be undeterred by the fact that they are falsifying a federal form. As a practical matter, the animal's potential misbehavior in the airport or on the aircraft would occur well before any action could be taken against the passenger for falsifying a federal form. Meanwhile, a law-abiding passenger with a task-trained service animal who flies frequently and on multiple airlines would be required to complete the form multiple times.
The Seeing Eye does not dispute assertions by airlines that airline personnel are often not in a position to observe and assess whether an animal poses a direct threat to the health or safety of others in the airport environment. It seems that airline personnel do not receive the training they need to make these assessments. At a minimum, airline employees should be familiar with existing DOT guidance on this issue. The Preamble to the current rule states, "Service animals are trained to behave properly in public settings. For example, a properly trained guide dog will remain at its owner's feet. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons on the aircraft, bite or jump on people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior shows that it has not been successfully trained to function as a service animal in public settings. Therefore, airlines are not required to treat it as a service animal, even if the animal performs an assistive function for a passenger with a disability..." (73 Fed. Reg. No. 93, 27659). Instead of unfairly burdening passengers with service animals, DOT should mandate that airlines provide more comprehensive training for their employees on how to make these assessments.
The second form DOT proposes to allow airlines to require is a Service Animal Health Form completed by a veterinarian describing the animal; confirming that the rabies vaccination is up to date and whether the animal has any diseases; and stating whether the veterinarian is aware of any aggressive behavior by the animal. DOT proposes that the form be valid for one year. The Seeing Eye is strongly opposed to DOT allowing airlines to require this form for traditional, task-trained service animals. The burden it would impose on service animal handlers far outweighs the value it would have for airlines attempting to assess whether a service animal poses a threat. Any service animal handler flying after the proposed regulations take effect would either have to anticipate the possibility of air travel and ask their veterinarian to complete the form at an already-scheduled office visit, or incur the cost of an additional office visit so the form could be completed. A service animal handler who must fly on short notice due to an emergency, professional engagement, or any other reason for that matter, would be unable to fly if they could not have the form completed beforehand. Even if the form is standardized and can be used for multiple airlines, the handler would have to physically provide or upload the form each time they fly with an airline for the first time during the year the form is valid and may have to provide it again for every trip unless the airline is required to retain the records. Furthermore, many veterinarians may be unwilling to make any assertions about whether they have observed aggressive behavior by the animal for fear of either exposing themselves to liability or providing an answer that would jeopardize their client’s ability to fly with the animal, especially given the fact that dogs are often stressed in veterinary offices.
The form would also not be effective in protecting passengers from injury or ensuring that they would not contract rabies if bitten. First of all, if a passenger or airline employee is bitten by an animal, a document attesting to the animal's health and non-aggressive tendencies does not undo the injury. The animal's observable behavior before an injury can take place is a far better indicator of what its behavior is likely to be. In addition, the Center for Disease Control characterizes the possibility of a healthy appearing dog being sick with rabies as "remote."
In the NPRM, DOT agrees with airlines that "requiring proof of rabies vaccinations should be permitted to help ensure that the animal does not pose a direct threat to the health and safety of others" (68). At least one airline is currently requiring passengers to travel with a current rabies certificate and DOT has taken no action against this airline pursuant to its current enforcement priorities. The Seeing Eye does not agree that proof of rabies vaccination will, in and of itself, ensure that an animal will not pose a threat. However, The Seeing Eye also acknowledges that service animal handlers are, like pet owners, bound by state and local laws requiring vaccination. If DOT is firmly convinced of its position on this matter, The Seeing Eye strongly urges DOT not to require more than a rabies certificate from passengers with service animals. Any additional requirements such as the proposed health form would be unduly burdensome, especially for service animal handlers taking domestic flights to locations other than Hawaii.
DOT is also proposing to amend its current rule allowing airlines to require service animal handlers to attest that their animal can refrain from relieving itself on flight segments lasting 8 hours or more or do so in a sanitary way. Currently, airlines that have this requirement can create their own forms in order to obtain this information. As a result, some airlines use forms that request information in a manner that is not consistent with current ACAA regulations. In some cases, the forms are not accessible to people who use screen readers. The Seeing Eye does not object to DOT requiring airlines to use a standard DOT Service Animal Relief Attestation form to obtain this information so long as the form is accessible to people using screen readers.
DOT's proposed rule does not stop at allowing airlines to require passengers with service animals to complete these forms. DOT further proposes to allow airlines to require service animal handlers to check in at a designated location in the airport an hour before check-in for the general public so the forms can be submitted and so that airline personnel can observe the animal. DOT states that airlines would be allowed to impose this requirement "so long as the airline similarly requires advance check-in for passengers traveling with their pets in the cabin" (NPRM, 75). It is The Seeing Eye's position that this requirement would be extraordinarily burdensome to passengers with service animals and would deprive them of equal access to air travel. It is also irrelevant whether people choosing to travel with their pets in the cabin are required to check in an hour early. Service animals are not pets. People with disabilities traveling with service animals are entitled to receive treatment equal to that of other passengers -- period. Imposing the same restrictions on passengers with disabilities who need to travel with service animals as those imposed on people who wish to travel with their pets is inconsistent with the letter and spirit of these regulations.
Currently, passengers have the ability to check in online or by using an airline's phone app, regardless of whether or not they are a person with a disability traveling with a service animal. The proposed rule would take this option away from people with service animals. Passengers without service animals would continue having the option to check in online or at curbside, undergo security screening, and proceed to the gate. The scenario for passengers with service animals would be quite different. They would have to arrive at the airport an hour earlier than the general public, go to the airline's designated area for people traveling with service animals, wait in line regardless of whether or not they are checking bags, have their service animal forms processed by an airline employee, receive a boarding pass, undergo a security screening, and then proceed to their gate.
The NPRM is not clear about whether service animal handlers would be required to check-in at the same designated location as people traveling with their pets. If that is the case, people with task-trained animals such as guide dogs would have to wait for processing in close quarters with animals that may ultimately not pass muster under the DOT's definition of service animal because of their behavior or lack of training. Guide dog handlers are already experiencing increased interference from other poorly managed dogs in airports. This interference can compromise a guide dog's ability to do its work, put it at risk of physical harm, and potentially end a partnership forever if such harm occurs. Forcing guide dog handlers to wait in an area specifically designated for screening animals to determine whether their training and behavior is acceptable for travel in the cabin is an invitation for this type of interference.
It is not known whether DOT considered the burden imposed on the service animals that will be required to refrain from relieving themselves for an increased period of time as a result of the early check-in requirements. The Seeing Eye urges DOT to consider the potential ramifications of requiring passengers with service animals to wait in the airport for an increased length of time in close quarters with other animals without adequate relieving areas in proximity.
DOT explains its rationale for allowing the forms and early check-in as follows: "The Department recognizes that these forms go beyond what DOJ allows in its ADA service animal regulations, but the Department believes that air transportation, which involves transporting a large number of people in a very confined space thousands of feet above the ground, is unique in comparison to airports, libraries, and other locations covered by Title II or Title III of the ADA. For this reason, the Department believes that a proposal allowing airlines to require all service dog users to provide these forms to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others is appropriate" (NPRM, 75).
The Seeing Eye respectfully disagrees with DOT's rationale concerning the forms and early check-in and urges DOT to reconsider its position. First of all, aircrafts thousands of feet in the air can hardly be compared to tranquil settings like libraries. Nonetheless, The Seeing Eye understands that passengers cannot escape an uncontrolled animal in an aircraft the way they could on the ground. The Seeing Eye also realizes that DOT is attempting to adopt regulations that will provide clarification and fairness in what has become a very confusing climate for air travelers and airlines. The Seeing Eye commends DOT on these efforts, but allowing airlines to impose burdens on service animal handlers that are not imposed on other passengers is not the solution. If DOT adopts its proposed definition of service animal, the only service animals traveling by air will be dogs trained to perform tasks. The drastic increase in various species of animals traveling in the cabin did not begin to occur until after the broader definition of service animal was adopted in the existing regulations. For decades before the current regulations took effect, people with task-trained animals such as guide dogs had been traveling by air routinely. Guide dog handlers are not responsible for the circumstances that led to the need for this NPRM and The Seeing Eye strongly believes they should not be burdened as a consequence.
9. Codeshare Flights
The Seeing Eye takes no position on whether DOT should include language in the final rule making it clear that U.S. airlines are not responsible for the failure of their foreign carrier codeshare partners to transport animals other than dogs. That said, The Seeing Eye notes that if the proposed definition of service animal is adopted, the species requirements for service animals will be the same for U.S. carriers and foreign codeshare partners, thereby eliminating the need for any clarifying language.
In closing, The Seeing Eye expresses its appreciation to DOT for the opportunity to comment on this NPRM. Please feel free to contact The Seeing Eye If we can provide any further assistance or information on issues raised in this NPRM given our areas of expertise.
Melissa R. Allman
Senior Specialist, Advocacy and Government Relations
The Seeing Eye, Inc.
P.O. Box 375, Morristown, NJ 07963-0375 (mail)
1 Seeing Eye Way, Morristown, NJ 07960-3412 (deliveries)
973-539-4425 ext. 1724, Fax: 973-525-1081, email: advocacy@SeeingEye.org
