The Department has now issued a draft of an Advisory Circular �designed to assist airports in complying with the laws and regulations regarding individuals with disabilities,� which includes a set of standards for SARAs. The draft Circular, AC 150/5360-14A, which will cancel and replace a prior Circular that was issued on June 30, 1999, adds significant granularity to the relief area requirements.
Before making the proposed draft final, the Department �invites interested persons, airport operators, guide dog trainers and handlers, consultants, industry representatives, and all other interested parties to review and comment on the draft.� Comments may be submitted until June 6 on the regulations.gov website. The specific reference to �guide dog trainers and handlers� may not be an atavistic throwback to the days when most service dogs were guide dogs, but may reflect the Department�s express interest in issues of particular importance to individuals who use guide dogs:
The FAA is also aware that it may be difficult for people with visual impairments to navigate within the SARA. To allow these people to familiarize themselves with the SARA�s layout before entering, the AC recommends placing special signs, maps, and other orienting cues at the entrance to the SARA. In addition, this AC defines the airport terminal for the purpose of helping airports decide on the number and locations of required SARA. To enhance SARAs, the FAA is seeking input on new concept cleaning technology; like nano technology as a potential for self-cleaning SARA.
The draft Circular deserves the attention of the service animal community, particularly when an airport wishes to place a SARA outside of the sterile area of a terminal. The draft states that when this is the case, the airport must obtain the agreement of a service animal training organization. Also, �the airport must � document and retain a record of this agreement, including when TSA prohibits location of the SARA in a sterile area.�
Proposed Standards for Service Animal Relief Areas
The draft SARA Standards in the Circular, printed in full in the Appendix at the end of this blog, provide that a relief area �must be located on an accessible route to each terminal.� Although 49 CFR 27.71(2) specifies that there must be �at least one relief area in each airport terminal,� the draft provides that �[o]ne relief area may serve two or more terminals if travel to and from it meets reasonable transit times�,� which means that the �transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min,� with �expected time using transportation vehicles and waiting time for an escort, wheelchair, or elevators� being included in total transit time.
The draft provides that in �busier locations, a relief area may be sized to accommodate more than one service animal at one time.� Presumably in smaller airports, therefore, relief areas may be so small as to only accommodate one animal at a time. Nevertheless that space would have to be large enough for a wheelchair user to enter and turn around.
Two Surfaces Required in Each Relief Area
A relief area is to have �at least two surfaces.� The draft elaborates:
One [surface] should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.
Fencing may be necessary, particularly for SARAs outside of buildings, which will often mean outside of sterile areas. Nevertheless, the draft suggests that outdoor locations are preferred because �some animals are trained not to relieve indoors.� Also, strong chemicals are often used to clean indoor relief areas, and some dogs may consequently balk at entering them. (Veronica Morris makes the interesting observation that "before 9/11, it was common for individuals with service animals to be allowed to go onto the tarmac from the gate and potty their animals on the tarmac or on nearby patches of grass, which actually worked out pretty well.")
SARAs cannot be co-located with a designated smoking area. Apparently the Department feared that some airports would try to combine troublesome smells by putting smoke and dog poop near each other.
SARAs cannot be co-located with a designated smoking area. Apparently the Department feared that some airports would try to combine troublesome smells by putting smoke and dog poop near each other.
Water Sources and Fake Fire Hydrants
A SARA �must include a sink and a faucet for hand washing,� with potable water as users can be expected to fill water bowls in the SARA. The SARA must have a separate water source for cleaning and must have adequate drainage so that water used in cleaning can run off. A SARA must include something like a rock or fake fire hydrant �to encourage urination by male dogs.� There must also be poop bags and a receptacle for them, and these must be placed so that wheelchair users can get to them. A sign should indicate that users should clean up after their animals (though as already noted the request for comments raised the possibility of self-cleaning SARAs).
The airport must have signage and maps indicating where SARAs are located. �Braille signing must be installed adjacent to the side of doors and gates opposite the hinges.� Airports are encouraged �to adopt state-of-the-art technology (e.g., smart phone applications) as it becomes available.�
Tweaking the Definition of Service Animal
Throughout the Federal Register 2015 release on service animal relief areas no definition of service animals was provided, and I did not think at the time that any definition was particularly needed. It could be assumed that someone at an airport who would be using a SARA would have a service animal that was going to enter the cabin of an airliner (as an animal going into a pressurized and heated hold would have been checked before the passenger entered the sterile area). Also, the Department acknowledged that pets and TSA dogs would be using SARAs along with service dogs:
The final rule also offers the benefits of improved convenience to nondisabled persons accompanied by an animal or pet while at the airport. Although these benefits are not encompassed by the rule�s purpose, individuals traveling with pets or security dogs trained to detect security threats may also find it convenient to use service animal relief areas located in the secure area of the airport.
Nevertheless, the draft Circular now provides a definition of service animal:
Service Animal.
Any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, providing emotional support, pulling a wheelchair, or fetching dropped items. (49 CFR � 37.3)
One would expect from the parenthetical at the end of the definition that it follows 49 CFR 37.3 word for word. It does not. The regulation does not contain the italicized phrase, �providing emotional support.� The 1999 Circular that is being replaced had used the exact definition from 49 CFR 37.3, i.e., without that phrase.
The reference to emotional support appears to have been inserted by the drafters of the proposed Circular not from 49 CFR at all but rather the Air Carrier Access Act releases of the Department. For instance, in policy guidance issued in 2003, a service animal was defined, for purposes of assisting airline employees in determining whether an animal qualifies, as �[a]ny animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well being of a passenger.� (68 Fed. Reg. 24878, May 9, 2003) In that definition, however, and generally in the Department�s ACAA guidance, there is no presumption that emotional support requires training.
The reference to emotional support appears to have been inserted by the drafters of the proposed Circular not from 49 CFR at all but rather the Air Carrier Access Act releases of the Department. For instance, in policy guidance issued in 2003, a service animal was defined, for purposes of assisting airline employees in determining whether an animal qualifies, as �[a]ny animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well being of a passenger.� (68 Fed. Reg. 24878, May 9, 2003) In that definition, however, and generally in the Department�s ACAA guidance, there is no presumption that emotional support requires training.
The phrase is, in any case, inconsistent with the approach of the Department of Justice, which provides in its basic definition in 28 CFR 36.104 that �the provision of emotional support [does] not constitute work or tasks for the purposes of this definition.� The definition in 49 CFR 37.3 was not original with the Department of Transportation, which adopted it in September 1991 (56 Fed. Reg. 45624, September 6, 1991), but rather was the definition of service animal in the first ADA regulations issued by the Department of Justice in July 1991 (56 Fed. Reg. 35544, July 26, 1991), a definition that for DOJ was superseded in 2010. Thus by adding the emotional support phrase to a now outdated DOJ definition, the draft Circular has created an illogical hybrid that requires training but allows providing emotional support as sufficient to qualify an animal as a service animal.
Miniature Horses
This effort by the drafters of the proposed Circular to modify the definition of service animal presents another problem, though this one may be temporary. The problem comes from a footnote to the tweaked definition, which states the following:
This effort by the drafters of the proposed Circular to modify the definition of service animal presents another problem, though this one may be temporary. The problem comes from a footnote to the tweaked definition, which states the following:
A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. (28 CFR � 35.136).
Thus, the Department would acknowledge, as did the Department of Justice in 2010, that a miniature horse may, much like a dog, fulfill service animal functions, particularly as a guide (28 CFR 36.302(c)(9), as finalized by DOJ in 75 Fed. Reg. 56236, September 15, 2010).
The Department of Transportation indicated as far back as 2011 that it might have to consider revising its definition of service animal in light of the revisions made by the Department of Justice in 2010, saying that the �Department will consider whether, in the future, to propose changes to part 37 to parallel the new DOJ definitions. Meanwhile, the existing DOT definitions continue in effect.� (76 Fed. Reg. 57924, September 19, 2011) That may be changing, however.
Neither of the Department of Transportation�s definitions of service animal has a species limitation�either the one in the 2003 ACAA guidance or the one in 49 CFR 37.3. Referring to miniature horses as an exception only makes logical sense if the Department of Transportation has a species limitation on service animals, which it does not. In issuing its 1991 rule defining service animals, DOT specifically stated that �[o]ther animals (e.g. monkeys) are sometimes used as service animals as well�. the entity must permit the service animal to accompany its user.� The Department accepts that not all service animals need to be admitted to an airplane cabin, however, and stated the following in 2008:
[T]he Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. (73 Fed. Reg. 27636, May 13, 2008)
The reason any confusion here may be temporary is that the Department of Transportation has begun a process of revising its service animal airplane access rules, and the possibility of conforming its rules to those of the Department of Justice is clearly on the table. The Department of Transportation�s initiative with regard to service animal access has been discussed extensively in several blogs on this site. Thus, as with the Department of Justice, the Department of Transportation may be moving towards recognizing only dogs, and perhaps miniature horses, as service animals and the footnote reference to miniature horses may be an indication of where the Department expects its revision process to go in this regard.
Meanwhile, however, the occasional monkey, pot-bellied pig, or miniature horse may, if trained to do so, make use of a SARA.
Conclusions
No specific mechanism is provided for service animal organizations to engage with airports on the design and implementation of service animal relief areas. The regulations may consider it the responsibility of an airport to find a guide or service dog organization that will be willing to give a perspective on or approve plans the airport is considering. Individuals with vision impairments and individuals who use wheelchairs will have somewhat different needs when it comes to design of relief areas, so it is to be hoped that a range of organizations will be able to participate in relief area designs.
Since the Department seeks input from interested parties on the Circular, though allowing only a month to submit comments on the regulations.gov website (by entering Docket No. FAA-2016-4716), a guide dog or service animal organization wishing to be involved in the design and creation of relief areas in an airport should consider submitting a comment expressing this interest and thereby put the airport (through the FAA) on notice of its availability. As previously noted, this must be done by June 6.
Since the Department seeks input from interested parties on the Circular, though allowing only a month to submit comments on the regulations.gov website (by entering Docket No. FAA-2016-4716), a guide dog or service animal organization wishing to be involved in the design and creation of relief areas in an airport should consider submitting a comment expressing this interest and thereby put the airport (through the FAA) on notice of its availability. As previously noted, this must be done by June 6.
It appears the drafters of the Circular inside the Department of Transportation are hedging their bets by massaging the definition of service animal to take into account changes that may be coming to the Department�s longstanding acceptance of a broad range of species as service animals. At the moment, however, a service animal relief area cannot be presumed to be one that will only be used by dogs, or even just by dogs and miniature horses. (No miniature horse lobbying group put itself forward to participate in the Reg Neg process for revising the ACAA rules on service animals, though a capuchin monkey group did submit a comment. I am told by someone associated with this group that service monkeys generally wear diapers during flights and do not require a service area.)
Thanks to Brad Morris for careful review and correction of the legal issues.
Thanks to Brad Morris for careful review and correction of the legal issues.
APPENDIX: STANDARDS FOR SERVICE ANIMAL RELIEF AREAS
A.1 General.
The SARA standards below have been developed in collaboration with nationally recognized service animal training organizations and groups of users of service animals.
A.2 Number.
SARA must be located on an accessible route to each terminal. One relief area may serve two or more terminals if travel to and from it meets reasonable transit times as defined in paragraph A.3.
A.3 Transit time.
The design transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min. Any expected time spent using transportation vehicles and waiting time for an escort, wheelchair, or elevators is included in this total transit time.
A.4 Size and shape.
The SARA may be of any shape, but must be designed to accommodate a person using a wheelchair handling a service animal on a six-foot leash. In busier locations, a relief area may be sized to accommodate more than one service animal at one time.
A.5 Surfaces.
A relief area should have at least two different surfaces. One should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.
A.6 Fencing.
Fencing or another suitable barrier, with an accessible gate/entrance, adequate to contain service animals must be provided.
A.7 Plumbing.
The SARA must include a sink with a faucet for hand washing. Water must be potable, as it will often also serve as a drinking water supply to fill bowls supplied by service animal handlers. A separate water supply must be included for use in cleaning the surface. The surface must be constructed with adequate drainage to facilitate regular cleaning.
A.8 Location.
Outdoor locations are preferred, as all service animals are trained to use outdoor relief areas. While some service animals are trained not to relieve indoors, at some terminals it may not be feasible to establish an outdoor relief area within the sterile area. In such cases, the relief area will have to be constructed indoors. SARA must not be co-located with a designated smoking area.
A.9 Weather protection.
Outdoor SARA must include weather protection from sun and precipitation. If the SARA is close to operating aircraft, protection from jet blast and prop wash must be provided.
A.10 Scent.
The sense of smell is much more acute in animals than in humans. This can be a help or a hindrance in encouraging service animals to use a relief area. Pheromone-scented surfaces or devices can be beneficial, while disinfecting chemicals with strong odors can be detrimental.
A.11 Accessories.
The SARA, at a minimum, must include:
1. A three-dimensional device (e.g. rock or fake fire hydrant) to encourage urination by male dogs.
2. Animal waste bags.
3. A waste receptacle.
Note: The disposal bags and receptacle must be located just inside the entrance to the SARA on an accessible route and at a height reachable by wheelchair users.
A.12 Wayfinding and Signage
A.12.1 Signage Standardization is desirable.
The sign shown in Figure A-1, with or without accompanying text, may be used with directional arrows to guide users to the SARA. The signage, when used, must be included in airport layout maps and in wayfinding instructions provided throughout the airport. In addition, signing at the SARA should indicate the following:
1. The need for handlers to clean up after animals;
2. The location of waste disposal bags, and waste receptacles, hand washing facilities, and any other facilities (e.g. automatic flushing controls);
3. Instructions for the operation of any facilities; and
4. Contact information for maintenance and assistance.
A.12.2 Other guidance.
Signage should be supplemented with means, including auditory announcements, to guide people with vision impairments. Braille signing must be installed adjacent to the side of doors and gates opposite the hinges. Airports are encouraged to adopt state-of-the art technology (e.g., smart phone applications) as it becomes available.
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