[Cagdu] Fwd: The Seeing Eye's Comments On Proposed DOT Regulations

[Shannon Dillon]

---------- Forwarded message ----------
From: The Seeing Eye <advocacy at seeingeye.org>
Date: Thu, 20 Feb 2020 14:35:10 -0600
Subject: The Seeing Eye's Comments On Proposed DOT Regulations
To: Shannon Dillon <shannonldillon at gmail.com>

The Seeing Eye



Dear Seeing Eye graduates:

As you likely already know, 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; you can also view our comments on our
website at
http://support.seeingeye.org/site/R?i=05NhLsvpmo7qPMgzpUR1xw .

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:

http://support.seeingeye.org/site/R?i=tVQU9uyZzzIqEYNjzBOb3Q

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 at 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 at SeeingEye.org



The Seeing Eye
10 Washington Valley Road
Morristown, NJ 07960
ph (973) 539-4425
e info at seeingeye.org

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SHANNON L. DILLON
Secretary and Legislative Coordinator
National Federation of the Blind
of California
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friends who believe in the hopes and dreams of the nation’s blind.
Every day we work together to help blind people live the lives they
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