Gary Christopher Norman, Esq.
Maryland Area Guide Dog Users, Inc.
4145 Falls Rd.
Baltimore, MD 21211
(410) 241-6745
MDGuideDogs@hotmail.com
March 4, 2005
Norman Strickman
U.S. Department of Transportation
Docket Clerk
Department of Transportation
400 7th Street, SW., Room PL-401
Washington, DC 20590
Subject: Docket No. OST–2004–19482
INTRODUCTION
My name is Gary Christopher Norman, Esq. I am an attorney who works with a guide dog and serve as president of a new non-profit named, the Maryland Area Guide Dog Users, Inc (MAGDUI). I write on behalf of my board and general membership to furnish public comment pursuant to the Notice of Proposed Rule-making, which proposes to undertake certain amendments to the regulations at 14 C.F.R Part 382.
Before formally furnishing comment with proposed justifications or regulatory language that should comprise amendments, if any to the existing regulations, I desire to generally express the support of the board and membership of MAGDUI to ensure access to U.S. air carriers for guide dog teams. We also ardently support expanding the panoply furnished through the U.S. Air Carriers Access
Act (ACAA), as implemented through the regulations at Part 382 and any concordant DOT program guidance to cover international travel. Your department of the government will likely receive public comment from air carriers be crying, ludicrous as their claims may be, that the regulations should not undergo amendments to ensure the same level of access guaranteed to guide dog teams during U.S. travel to international flights. These air carriers, which are in large part, publicly funded corporations, will argue financial burden or the inability to allow guide dogs in their cabins because of prohibitions of foreign governments. Despite the myriad public comments your department of government will likely receive from U.S. air carrier trade associations; these will not be sufficient to counterpoise the well-reasoned comments of the guide dog community.
The board and membership of my newly formed non-profit, which is the leading organization in the Washington DC metropolitan area on guide dog issues, are in their predominant number blind or visually impaired persons partnered with specially bred and trained assistance dogs. I am among their number and am partnered with a guide dog named Langer. My partner in interdependent travel and enhanced quality of life style and I travel by and through flight in the range of ten (10) times a year. We desire to travel internationally. We will not travel to international destinations, however, because at the present time, U.S. air carriers disparately or intentionally facilitate and transfer the kind of discriminatory conduct in which they cannot generally engage within the national air system to international flights. I consequently write on behalf of my board and membership with particular focus towards and in support of amending the regulations at Part 382 to ensure access to guide dog teams in international travel.
PUBLIC COMMENT AND DISCOURSE ON AMENDING THE REGULATIONS
SOME GENERAL LEGAL PROVISIONS GOVERNING AIR ACCESS
The U.S. Department of Justice (DOJ) regulations incorporate the definition of service animals found in the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et seq. The meaning of a service animal under this law is, “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.[1]”
Access for the handlers of assistance dogs at U.S. airports and on airlines is governed by the U.S. Air Carriers Access Act (ACAA) and its implementing regulations at Part 382. Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, prohibits discrimination based on disability in federally assisted programs. In response to an U.S. Supreme Court decision holding that unsubsidized air carriers who did not receive federal assistance were not subject to the Rehabilitation Act of 1973,[2] Congress enacted the U.S. Air Carrier Access Act of 1986, which provides a prohibition against “…discrimination on the basis of disability by all air carriers, and authorizes DOT to issue regulations to ensure
nondiscriminatory treatment of qualified handicapped individuals consistent with safe carriage of all passengers on air carriers.[3]” The legislative history reflects an intent that “…all air carriers were to be bound by affirmative responsibilities similar to those set forth in…the existing regulation.” Second, the specific intent of the statute is to remedy “discriminatory, inconsistent and unpredictable treatment’ of air travelers with disabilities….[4]”
The general prohibitions against discrimination based on disability by U.S. air carriers are at 14 C.F.R. §382.7(a) (1)-(4) and 14 C.F.R. §382.31(a)-(c). Under the regulatory authority, both small and large air carriers must provide accessible boarding assistance to passengers with disabilities. Air carriers must provide to passengers with disabilities, information concerning facilities and services related to the provision of air travel.[5] This includes, among other responsibilities, the obligation of U.S. air carriers to inform passengers with disabilities of any limitations to providing accommodations and whether an accessible lavatory exists.[6] Air carriers also must train their staff on the regulation and how to implement their own policies and procedures for accommodating passengers who have disabilities.[7]
U.S. air carrier personnel may refuse the provision of air travel to passengers with disabilities based on safety or if their carriage would violate the Federal Aviation regulations. Air carriers, however, in exercising this authority cannot discriminate against a qualified person with a disability based on that individual’s disability. If an U.S. air carrier refuses the provision of travel to passengers with disabilities on the basis of their disabilities, said U.S. air carrier must provide in writing within ten (10) days of the flight why they believe the disability would be inimical to flight safety.[8] In addition, and under certain circumstances, air carriers may refuse transport to a passenger with a disability with a communicable disease, which poses a “direct threat”[9] to the “health or safety” of the flight.
Specifically regarding relief areas, as discussed infra, we understand the DOJ applies the “readily achievable” standard to entities the size of airports to encourage, if not require, furnishing relieving areas for handlers of assistance dogs. In 2000, Congress amended the ACAA to require foreign air carriers to comply with U.S. accessibility standards and strengthen enforcement by DOT.
THOSE EMOTIONAL SUPPORT ANIMALS – ASSISTANCE DOGS?
Like our parent non-profit, which is named Guide Dog Users, Inc. (GDUI), the board and membership of MAGDUI fervently believes and argues that access to the streams of inter-state and international commerce must be broadly accessible to the disabled and able-bodied public. We understand that an issue that has been of concern in the service animal community as of late could bear itself in potential amendments to the regulations. Efforts have been afoot by the subpopulation of persons with disabilities who suffer with mental disabilities to expand the definition of service animals to cover “emotional support animals.” Like our parent organization, we behold concerns about the inclusion of emotional support animals within the gambit of the definition of service animals, particularly as it applies to allowing these emotional support animals in the cabins of U.S. air carriers.
Since emotional support animals are not necessarily bred and trained to meet the same standards as are assistance dogs, the board and membership of MAGDUI recommend that the regulations not receive amendment to include emotional support animals within its gambit of legal protection.
The demarcation between emotional support animals and the household pet is foggy at best. To the extent, however, that it can be demonstrated either now or in the future these emotional support animals benefit from the same level of breeding and training as are assistance dogs, (e.g., guide dogs), and, therefore, can legitimately fall within the gambit of the definition of service animals, as was intended under this landmark civil rights statute, then we recommend that the issue of emotional support animals would best be managed through the flexibility fostered through the issuance of program guidance. In this guidance, flexibility should be given to U.S. air carriers to determine upon provision of credible proof that emotional support animals are specially bred and trained assistance dogs. This approach is particularly advisable in view of the lack of universal acceptance by other foreign sovereigns of animals other than assistance dogs accompanying individuals in passenger cabins. Categorizing emotional support animals as assistance dogs will only continue to addle flight crews in the U.S. Any amendments that would include emotional support animals in the gambit of protections under ACAA would have the potential to worsen the experience of disabled passengers who travel with appropriately bred and trained assistance dogs. The board and membership of MAGDUI favors the provision, which allows U.S. air carrier personnel to ask for documentation when a clear question as to whether a particular animal constitutes an assistance dog exists.
Another justification for not amending the regulation at Part 382 to include emotional support animals within the purview of its protection is to protect the rights of a disabled passenger traveling with a guide dog in instances where seating on a plane is limited. The on board presence of myriad animals that could fall into either pets or emotional support animals, all of whom may not possess the same standards as assistance dogs; this could compromise the ability of guide dog teams to securely travel.
SHOULD U.S. AIRPORTS BE REQUIRED TO FURNISH AT LEAST ONE, IF NOT MORE PLACES FOR RELIEVING DOGS?
We acknowledge that in the spirit of good faith, handlers of assistance dogs must resolve all implementation issues regarding availability of relief areas, escort assistance, and security measures, through dialogue that balances the concerns and interests of all the parties. We emphasize the joint responsibilities of handlers and U.S. airports to maintain relief areas.
Many handlers report difficulties with toileting their assistance dogs or service animals at U.S. airports because:
There is a general absence of conveniently located relief areas at U.S. airports. Many U.S. airport and airline personnel do not know the locations of existing relief areas.
Airport personnel frequently do not know how to direct handlers of assistance dogs to informational resources for airport accommodations, or to policies for serving passengers with disabilities.
U.S. Airport staff state that they encounter relatively few assistance dogs, and relief areas are therefore not a priority.
U.S. Airport representatives are uncertain whether informing or escorting handlers of assistance dogs to relief areas fall within their legal obligations.
Whether designated, most areas provided by U.S. airports for assistance dog relief are either grass or paved, and may have trash receptacles located nearby. Few U.S. airports allow handlers to relieve their animals in the same areas used by airport security dogs. Of particular concern is whether U.S. airports provide relief areas within secure locations available after screenings at the “security checkpoints.”
U.S. airport security requirements and restrictions affect the availability of and timely access to relief areas. Need clearly exists for an expansion of relief areas inside and outside of the secure zones of airports.
We emphasized that the airport relief areas should be accessible, clean, and free of vehicular traffic, in areas where the noise levels are safe and, if feasible, afford privacy. We recommend that these relief areas, if any, should also provide receptacles for the disposal of dog defecation. We recommend that U.S. airports provide or post information concerning relief areas in accessible formats.
We understand that U.S. airports differ as to the maintenance of relief areas. Cleanliness of relief areas is an important health and safety issue. We recommend enhanced education of U.S. airports and handlers on maintaining relief areas.
Handlers have noted that appropriate escort assistance is not always available when needed and duly requested. U.S. airports and airlines that do furnish escort assistance may rely upon contractors for this task. Contractors or “sky caps” may neither know the location of relief areas nor speak English. They may also fret when assistance dogs are near.
It is the responsibility of handlers to train their guide dogs in alternative relief methods for emergency and other unusual situations. Handlers of assistance dogs, (e.g., guide dogs), should be prepared to rely upon alternative relief methods, such as placing a disposal diaper on the floor of an approved limited area, and other methods when necessary. Handlers who have difficulty with waste disposal when using designated relief areas, or using an alternative relief method when necessary, can obtain volunteer or paid assistance.
We reiterate the importance of U.S. airports furnishing outside relief areas within airport secure zones. One issue that arises when handlers exit the building or terminal to visit a relief area is how they must re-proceed through security screening measures. We understand that when handlers rely on airport or airline escort assistance to leave secure airport zones and visit relief areas located outside those said secure zones, the handler and escort are occasionally permitted to proceed to the front of the security check-in-line. We understand when a handler without airport or airline escort assistance leaves secure airport zones to visit a relief area located outside of those said secure zones, the handler must return to the rear of the check-inline to be re-screened. Cooperation is needed from the Transportation Security Administration (TSA) to develop and implement a consistent policy so that handlers do not miss flights or become subject to unnecessary additional security screens because of their disabilities.
We believe that responsibility rests upon handlers to undertake appropriate action, when possible, to reduce the likelihood that a service animal will require relief while in transit via an airline. However, this may not always be possible. As such, we are in favor of amending the regulation at Part 382 to require U.S. airports to provide accessible relieving areas. We are equally in favor of accomplishing the same requirement through the issuance of program guidance, if your department of the government deems that the best approach.
Appropriate surface for relief may consist of any of the following: grass, dirt, sand, or paved surface such as asphalt or concrete. A safe relief area is free of vehicular traffic and of noise levels damaging to hearing. Relief areas should be equipped with trash receptacles to maintain cleanliness.
All handlers of guide dogs agree that the handler is responsible to assure that the animal waste is removed and disposed, even if the handler needs volunteered or paid assistance. We recommend that U.S. airports will need to draft and implement a policy to ensure that the area is kept clean in the event that some handlers fail to follow through with clean-up. We speculate as to the possibility of U.S. airports collaborating with their local assistance dog training or handler organizations to select locations and devise a maintenance plan for relief areas.
EXPAND THE COVERAGE OF THE PANOPLY TO ENSURE THAT GUIDE DOGS CAN FLY INTERNATIONALLY
We vehemently advocate for the rights of disabled individuals to be the ones who determine whether or not their assistance dogs can successfully travel on long-duration flights within or without the United States. Many active guide dog teams have repeatedly negotiated these flights without negative effects establishing a successful track record and should not be denied the opportunity to fly. We further recommend that all U.S. carriers be required to transport disabled handlers and their appropriately bred and trained assistance dogs in passenger cabins to all destinations, where these individuals are legally entitled, whether through civil rights statutes and regulations of other foreign nations, or international treaties, or compacts or declarations. For example, the United Kingdom has established legal provisions allowing assistance dogs to fly into and visit their nation.
In justification of amending the existing regulations to cover foreign air travel, we refer to the language of the regulation at 14 C.F.R. §382.5, which define respectively “air carrier” and “air transportation” as, “Air carrier means any citizen who undertakes…to furnish air travel. Air transportation means interstate, overseas, or foreign air transportation….” In 2000, Congress amended the ACAA to require foreign air carriers to comply with U.S. accessibility standards and strengthen enforcement by DOT.
As such, we contend that the justification for amending the regulatory structure to ensure access to foreign air travel exists in the very Part 382 presently subject to public comment. We desire to propose a new section to cover access to foreign air travel.
Air carriers, in accordance with the general prohibitions set forth in this Part, shall not discriminate against a qualified individual with a disability in flying to foreign destinations. Among the other actions in which air carriers may not engage is requiring assistance dogs to be crated in the stowage compartment of the air craft.
If a foreign sovereign has law or policy that prohibits access to guide dog teams, then the air carrier shall work with the qualified individual with a disability to furnish the highest level of service possible and ensure reasonable accommodations to such qualified individual with a disability. Air carriers are presumed to be in the best position to know whether the foreign destinations to which they travel have law and policy, which favors access to persons with disabilities. If a qualified individual with a disability, through no fault of his own has purchased a ticket to fly to a foreign destination, and the air carrier later informs such qualified individual with a disability that the assistance dog must be crated in the stowage compartment of the air craft, the air carrier shall give the qualified individual with a disability the option of a refund.
In the circumstance where a foreign sovereign has laws or policies adverse to the access of qualified individuals with disabilities to their nation, air carriers shall revisit and alter any internal policies governing the stowage of assistance dogs in their air craft when a qualified individual with a disability furnishes credible proof that a foreign sovereign has amended their laws or policies regarding the admittance of an assistance dog to their nation.
WHERE SHOULD LANGER SIT AND SNOOZE DURING THE FLIGHT
We recommend that Part 382 sustain no amendment that would allow U.S. air carriers to charge handlers of assistance dogs the price of a seat to transport their said assistance dog in the cabin of the aircraft. The ADA prohibits charging service animals a surcharge fee. Likewise, we note the Final Rule published at 61 F.R. 56421, Question No. 12, (Nov.1, 1996), which states:
The ACAA prohibits special charges, such as deposits or surcharges, for accommodations required to be made to passengers' disabilities. This is true even if such charges are routinely required to transport pets. However, an airline can charge passengers with disabilities if a service animal causes damage, so long as it is the regular practice of the airline to charge non-disabled passengers for the same types of damages. For example, the airline can charge passengers with a disability for the cost of repairing or cleaning seats damaged by a service animal if it is the airline's policy to charge when non-disabled passengers cause similar damage.
Clearly, even under the language of this Final Rule, which published in the Federal Register in order to apply certain guidance that the DOJ had issued regarding service animals, charging a fee is prohibited in the context of airlines. Therefore, any charge by an U.S. air carrier to an assistance dog or service animal team for the price of a seat is prohibited by the ACAA.
I have never been charged a fee or price of a seat to transport my assistance dog or service animal in the cabin of aircraft on any of the two U.S. carriers I predominantly fly. Any amendment that would allow U.S. air carriers to charge the price of a seat to teams to transport their assistance dog or service animal in the cabin of the aircraft would constitute a potential financial hardship. We also note the extensive discussion about seat accommodations in the Final Rule.
Anecdotally, I have found it best, when not flying First Class to sit in the bulkhead section of the “coach cabin” of aircraft. It might be best to work with the service animal community to issue guidance in this regard. I recommend that when ever possible, service animal teams sit in the bulkhead if they fly in the “coach cabin” of aircraft. I have similarly flown in the bulkhead section of First Class. In either circumstance, the bulkhead appears to provide the widest depth of space on the floor for my guide dog.
NOTIFICATION ISSUES
We recommend a deletion to the language of the regulation at 14 C.F.R. §382.33(b) (7) as to guide dog teams who travel as a group. We also recommend clarification to the language of the regulation at §382.33(f).
PRIVATE RIGHT OF ACTION
We concur with the well-reasoned policy statement of the National Council on Disability dated July 8, 2004, which posits that the ACAA should sustain amendment to furnish a private right of action to persons with disabilities.
CONCLUSION
Despite the heightened attention that DOT has focused towards enforcement of the rights of qualified individuals with disabilities to fly equally as their able-bodied peers, much work remains. Concern exists among the handlers of guide dogs that the regulations sustain a certain expansion to include emotional support animals. We support amending the regulation at Part 382 to remedy, among other issues that qualified individuals partnered with assistance dogs not be discriminated against when flying to foreign destinations. It appears that Congress will need to legislatively amend the statute to provide for a private right of action. To the extent, however, your department of the government can parlay the tool of regulatory promulgation or the issuance of program guidance to initiate favorable progress towards furnishing a private right of action to allow aggrieved individuals with disabilities to seek redress, we recommend amending the regulation at Part 382 to provide for a private right of action, or in the alternative, language to that effect, which while not exceeding the scope of the statute, as presently amended, would evidence the intent of the agency that qualified individuals with disabilities have access to such right. Likewise, if this could implement by and through the issuance of program guidance, then we support that agency action.
[1]http://www.usdoj.gov: 80/crt/ada/qasrvc.htm.
[2]See National Council on Disability, Unequal Protection under Law: An Independent Assessment of Federal Enforcement of the Air Carrier Access Act. ENFORCING THE CIVIL RIGHTS OF AIR TRAVELERS WITH DISABILITIES: RECOMMENDATIONS FOR THE DEPARTMENT OF TRANSPORTATION AND CONGRESS, (Feb. 26, 1999), citing DOT v. PVA, 477 U.S. 597 (1986).
[3]See id. citing Air Carrier Access Act of 1986, PL 99-435, 100 Stat. 1080,49 USC 1374(c) (1986).
[4]See id. Citing 132 Cong Rec. 21770 (daily ed. August 15, 1986).
[5]See 14 CFR 382.45.
[6]To the extent airports argue they have no legal obligation to inform handlers about or escort them to relief areas may be countered by a factual or legal argument. It can be argued, for example, that since regulatory authority requires providing information about accessible lavatories, and handlers and their animals are functional teams that regulation also extends to informing about and making available accessible relief areas.
[7]See 14 CFR 382.61.
[8]See 14 CFR 382.31(d), (e).
[9] Direct threat is an affirmative defense to an allegation under the Americans with Disabilities Act of 1990), 42 USC 12101et seq.