Despite hefty penalty in Oregon civil rights case, expect more action, discussion on service animals

A $60,000 penalty levied against a Eugene businesswoman who refused to allow two service animals into her convenience store was meant to send a resounding message in support of Oregon’s public accommodations law, says state Labor Commissioner Brad Avakian.

But that doesn’t mean the case – or the confusion around it – is going away.

The store owner is certain to challenge the ruling. The Oregon Legislature is likely to revisit the issues surrounding service animals and treatment of their handlers. And a civil rights lawyer, speaking from personal experience, says there is more work to do on public education.

In a ruling last week, Avakian found that Kara Johnson, owner of the Duck Market Store in Eugene, violated Michel Hilt-Hayden’s civil rights when the woman entered the store with two dogs, seeking to buy milk, but was asked to leave.

Investigators for Avakian’s Bureau of Labor and Industries found “substantial evidence of disability discrimination” by Johnson in the April 17, 2013, incident and subsequent visits by Hilt-Hayden on the two following days.

On Wednesday, Avakian said that he ordered Johnson to pay compensatory damages for “emotional, mental and physical suffering” as a way of signaling that discrimination in public places won’t be tolerated.

“The message is the law is clear,” he said. “When an individual (business) is open to the public, they need to allow people free and equal access, and that includes people with disabilities. Service animals are a reasonable accommodation and, in this case, the store owner shut her doors to the customer not once, but three times.”

Avakian said he does not have authority to issue a civil fine under the state’s public accommodations law, but can award compensatory damages, as he did in this case.

Jill R. Fetherstonhaugh, a lawyer representing Johnson, said she will file a petition for judicial review with the Oregon Court of Appeals, seeking to overturn Avakian’s Nov. 6 final order.

The Eugene attorney alleges that by misinterpreting federal and state law on the issue, the Bureau of Labor and Industries is setting a precedent that “would allow any person to bring an untrained animal into a place of public accommodation.”

Confusion persists

Beyond this one case, it remains clear that much confusion persists among the public around the questions of what defines a service animal, what distinguishes them from a companion animal, and how business owners and public agencies are supposed to respond.

Bill Spiry, a Springfield attorney who practices employment, labor and civil rights law and who uses a guide dog himself, said the circumstances of the case pitting a store owner against a prospective customer are familiar to anyone who’s ever seen someone enter a business with an animal and wondered if it’s a legitimate assistance animal or merely a pet.

“There are plenty of examples of people bringing in their companion dogs and emotional support dogs to a business, and it’s really been stretched to the point of abuse,” Spiry said.

In the Eugene case, he said, Hilt-Hayden entered the store with two dogs on leashes but with no obvious identification that they were service animals. Johnson asked her to leave, apparently concerned that they shouldn’t be in a place that prepares food but unaware that people with disabilities may bring service animals into stores and other public places, Spiry said.

The 2013 Legislature sought to deal with such confusion by passing a law that defines a service animal as one trained to provide assistance to someone with a disability.

Sen. Jeff Kruse, R-Roseburg, said he sponsored the legislation (Senate Bill 610) to make it clear that not all animals are service animals and shouldn’t be allowed into some establishments.

“Because there was no definition,” Kruse said last year, “people were taking all sorts of critters into stores and into restaurants and saying they were service animals.”

Business owners, restaurant workers and others may ask only whether a dog is a service animal required because of a disability and what work or task the dog been trained for. Federal and state law forbid asking for more, such as specifics about a person’s disability or medical documentation, or requiring an identification card, training documentation or demonstration by the dog.

A legislative fix

Kruse said Tuesday he plans to introduce a bill in the 2015 legislative session to help provide greater clarity in two areas.

One, to ensure that people are getting what they pay for when they purchase a service animal. Kruse said members of the Blinded Veterans Association have come to him with stories of people selling dogs as service animals that aren’t trained.

Two, to help business owners determine what is and what isn’t a service animal without creating more hassle for people who use them.

“Is there a way we can get some certification?” Kruse asked rhetorically. “If you have a service animal with certification and you have it on the collar for everyone to see, to me, it’s simple – end of discussion.”

Kruse said he will work with BOLI staff, as he did in 2013, on the proposed reforms and Avakian said he welcomed the effort.

“I’m hoping we can get more clarity for business people, and for disabled people so they are treated with a higher level of respect,” Kruse said.

Need for public education

Spiry acknowledged that he provided expert testimony on behalf of Johnson in the BOLI case. But he said his main concern is one of public education “because it isn’t easy for people to deal with this.”

Spiry, 53, was diagnosed at age 14 with a genetic condition affecting his retina and in 1998 completely lost his eyesight. He graduated from law school at the University of Oregon two years ago after previously working in human resources. He uses a dog trained by Guide Dogs for the Blind, so it’s obvious from the animal’s harness that it’s a service animal, Spiry said.

He agrees that people with disabilities shouldn’t have to carry proof of their limitations, but he believes that “more respectful dialogue” would help all Oregonians. Discrimination against the disabled is a real thing, he said, but overall he’s seen a positive trend in the level of understanding and knowledge of the requirements of theAmericans with Disabilities Act.

Larger employers, with in-house legal counsel and greater resources to educate and train workers, have an advantage in this regard, Spiry said.

“It’s always been in the mom-and-pop shops and small restaurants (where conflicts arise),” he said. “There’s no question there’s a correlation.”

If there is a takeaway from the Duck Market Store case, said Spiry, it is this:

“This kind of challenge is hard for people to get it right and here you have government making an effort to help people understand how to do it right. That would be my silver lining: Take the opportunity to learn a little more.”

 

Read full article here: http://www.oregonlive.com/business/index.ssf/2014/11/despite_hefty_penalty_in_orego.html

Veteran Settles with Leasing Company Property Manager That Denied Rent Because of PTSD Service Animal Dog

Hank is more than a house pet to medically retired U.S. Army Sgt. Derek Kolb of Houston.

The greyhound/black cur mix is Kolb’s service dog—a confidant who both alerts him to unexpected encounters and wakes him from nightmares related to the PTSD he suffered during his 2005-06 deployment to Iraq, where he cleared road side bombs as an infantryman.

Hank is also the reason Kolb was denied housing—a violation of the Fair Housing Act and the Americans with Disabilities Act, which Kolb alleged in a complaint he filed late last year in a Houston U.S. district court.

The complaint alleged that a defendant leasing company denied renting Kolb a house after disclosing he would be living with his service dog. Kolb had sent the defendant a photograph of Hank, according to the complaint.

“They told him his dog was aggressive and they wouldn’t rent to him,” said Tyler VanHoutan, a patent attorney and partner in Winston & Strawn who handled Kolb’s case pro bono.

“They knew he was a veteran who required a service animal,” VanHoutan said of his client’s allegations in Kolb v. Willshow. “I don’t think a lot of people in the real estate market realize that they have to be accommodated.”

That case recently settled confidentially, VanHoutan said. And one of the conditions of that settlement was that the defendant completed a series of training sessions in which its rental agents are trained on fair housing law and why disabled veterans sometimes need the help of service dogs such as Hank, he said.

“He’s got anxiety issues,” VanHoutan said of Kolb, who suffered traumatic brain injury from a bomb explosion in Iraq. “And so the dog is a calming influence. He lets him know if people are coming up behind him. And it can even sense if he’s getting a migraine so he can go get his medication.”

Kolb and Hank later found substitute housing that was more expensive and farther away from where Kolb is attending school, VanHoutan said.

Mike Jacobellis, a partner in Lewis Brisbois Bisgaard & Smith who represents the defendant in the case, said his client denied the allegations in the complaint, noting, among other things, that Kolb did not inform the defendant he had PTSD. Still, his client agreed to settle, Jacobellis said.

“I mean, we agreed to have continuing education on the disability act. Nobody wants to go to trial against a disabled veteran,” Jacobellis said. “That’s the short and long of it.”

Jacobellis said that part of his client’s job as a rental property leasing company is making sure insurance policies on rent property are not canceled. Insurance companies will cancel the policy on a landlord’s property if they discover an “aggressive dog” on the property, he said.

“He did tell somebody it was a service dog,” Jacobellis said of Kolb. “He didn’t say he had PTSD, but he did say he had a service dog, and they were trying to get him in a house with a service dog.”

Read more: http://www.texaslawyer.com/id=1202676055637/Veteran-Settles-with-Leasing-Company-That-Denied-Rent-Because-of-Service-Animal#ixzz3ItlCa487

A military veteran claimed he and his service dog were asked to leave a VFW post

http://www.foxsanantonio.com/news/features/top-stories/stories/local-vfw-disputes-veterans-claim-service-dog-denial-6935.shtml#.VDXG2_ldWVE

(see video link above)

A veteran claimed he and his service dog were asked to leave a VFW post.

The Local Veterans of Foreign Wars, District 20, has issued the following response:

“The Veteran in question was not removed from the VFW Post because he had a service dog. At the time another person had entered the building with a dog that was not a service animal. The untrained pet became aggressive toward the Veteran’s service dog. To prevent more conflict the Veteran and his service dog were asked to move to another room while the person and pet dog were removed from the premises. Unfortunately the veteran with his registered service dog took offense and was also asked to leave for violating the post code of conduct.”

“The local VFW district, a major advocate for pro veteran legislation, hosted Gov. Rick Perry in June of last year when signing into law House Bill 489 to benefit returning wounded warriors and other disabled people who use service animals.”

“The Veterans of Foreign Wars of the U.S. is a nonprofit veterans’ service organization composed of combat veterans and eligible military service members from the active, Guard and Reserve forces. Chartered by Congress, the VFW is the nation’s largest organization of war veterans and its oldest major veterans’ organization. The San Antonio area, District 20, has more than 8,500 members and donates tens of thousands of dollars annually to community programs and scholarships to local middle and high school students. The VFW and its Auxiliaries are dedicated to veterans’ service, legislative advocacy, military, and community service programs worldwide. For more information visit our website at http://www.texasvfwdistrict20.org.”

Starbucks plans to apologize to a woman denied service because of service dog

ROCHESTER, N.Y. — Starbucks plans to apologize to a Brighton, N.Y., woman who said she was denied service Sunday afternoon because she had her service dog with her.

Amy Kaplan, 24, posted a brief video on YouTube in which she asked an employee at the shop, “Are you denying me access because of my service dog?”

The employee replied, “No, I’m not. I’m telling you that you cannot come in with your service dog.”

Kaplan said she stopped at the shop around 3 p.m. Sunday after taking a long walk with the dog, a Malamute named Zero. Kaplan said she suffered a traumatic brain injury two years ago in a crash between a bus and the ambulance she was working on as an emergency responder, and that she also has a severe form of bipolar disorder.

The dog is trained to assist her with everything from coping with memory issues that stem from her brain injury, such as difficulty remembering where her car is parked or locating her apartment, to managing anxiety.

Under the Americans with Disabilities Act, businesses that serve the public are required to allow people with disabilities to bring their service animals inside. The federal government advises businesses to ask only if an animal is a service animal required because of a disability and what tasks it has been trained to perform.

People are not required to produce any documentation or identification verifying that a dog is a service animal or of their disability.

Kaplan said the employee told her the dog had no identification and was not wearing a vest. It’s not the first time she has run into questions or been asked to leave a business because she was with the dog, she said.

“This is a part of daily life when you’re a service dog handler,” Kaplan said. “Everywhere you go, nobody wants to let me in.”

Laurel Harper, a spokeswoman for Starbucks, said the company was trying to reach Kaplan on Monday to apologize.

“It’s unfortunate that this happened,” Harper said. “Ms. Kaplan did have an experience that’s absolutely inconsistent with our values and our service animal policy.”

Kaplan said an apology helps, but she wants Starbucks to better train its employees on service animals.

Harper said the company trains employees at hiring to simply ask if an animal is a service animal and to welcome customers who say yes without further questions, Harper said. The company sends out reminders about once a year, she said.

Robin Williams died from depression, yet some people still don’t take depression seriously

A MESSAGE FROM THE SERVICE ANIMAL REGISTRY OF AMERICA:

Robin Williams was a loving, talented man. He not only entertained the world, but gave back so much with his charitable activities. Yet we have lost him.

Why did Robin Williams take his life? We will never know exactly what went through his mind, but everyone agrees that depression played the major role. Whether or not his depression was made worse by his medication, the fact remains: Depression led to his death.

Many people still treat depression like a minor condition. Owners of emotional support animals and service animals who alleviate their owners’ depression symptoms sometimes find that the public is quick to judge and accuse the disabled owners of fraud, faking, or being weak. People sometimes say that depression is not a real disability, and not a legitimate medical condition. This is a disgrace. Depression is very real, and can be fatal.

To all the owners of emotional support animals and service animals whose animal makes it possible to combat the effects of depression, we say this: Thank goodness you have found a way to stay out of the dark, and fight the symptoms of depression. And Thank You to your loving companions who do so much for you, and keep you in the light.

Blessings to all emotional support animals and service animals; your assistance to your disabled owners is invaluable!

Share this message if you agree!

Publication on Psychiatric Service and Emotional Support Animals now available in Spanish, Korean, Chinese, and Vietnamese

Disability Rights California has released translations of it Psychiatric Service and Emotional Support Animals, Pub 5483.01 in the following languages noted below with pub number and language specific page. Please help any disabled friends and relatives whose native language is below access these documents!

Landlord broke law by demanding tenant pay pet fee for companion animal, lawsuit claims

Christina Hayes informed management at her Sherwood apartment complex that she was going to move a companion animal in and asked that the $650 pet deposit fee and $25 monthly pet fee be waived.

A lawsuit filed Thursday claims that management said “no,” even though Hayes told them she needed the animal for her disability.

The lawsuit, which seeks at least $10,000 from the Starcrest Manor apartments for alleged violations of fair housing laws, serves as a reminder that strict rules exist about tenants with disabilities and service animals.

Read the full story at http://www.oregonlive.com/portland/index.ssf/2014/05/landlord_broke_law_by_demandin.html

Iraq war veteran and his service animal dog Brady were denied an airline flight on American Airlines when AA said Brady was an emotional support animal

Josh Rivera, an Iraq war veteran who has served our country overseas, reports that American Airlines wouldn’t allow him to fly with his service dog Brady on the airplane, even though Rivera had called and checked with the airline a week before the date of air travel to make sure he had what he needed.

Rivera arrived at Tampa International Airport with his service dog Brady, a black lab who had recently graduated from Southeastern Guide Dogs. It was Rivera’s first public experience traveling with his service animal.

“At the gate I checked in, and notified them that I had a service animal with me, and they said there are no problems,” Rivera said.

However, the situation quickly changed.

“They called me five or ten minutes later back to the counter and they told me I wouldn’t be able to get on the aircraft because they believed I had an emotional support animal, and that they weren’t allowed to fly on the plane,” said Rivera.

An American Airlines spokesperson said this to a news reporter by phone: “Department of Transportation requires any passenger to advise the airline ahead of time and provide proper documentation for the service animal … Emotional support dog is not considered a service dog. It requires a different type of documentation.”

There are different requirements for service animals versus emotional support animals, although both types of assistance animals are entitled to travel with their disabled owners. For service animals, only the disabled owner’s credible statement that the animal is a service animal and mention of what the animal is trained to do are required. For an emotional support animal, there is an additional requirement: The documentation required for an emotional support animal includes a note from a doctor dated within 12 months prior to travel.

The dispute between Rivera and AA arose due to a disagreement over which type of assistance animal Brady is. Rivera disputes that Brady is an emotional support dog, and asserts that Brady is a service animal. Rivera says he tried to explain that to American Airlines supervisor Mike Stafford, but to no avail.

“He wasn’t listening,” says Rivera. “He wouldn’t have it. He said that the animal wouldn’t be able to get on the plane with me, and I was prevented from boarding the plane.”

AA wouldn’t budge. But Rivera was able to fly home after all, just on a different airline, Southwest Airlines.

Hotel illegally tells woman with a service animal that she cannot stay there because no dogs are allowed

April Lynn Elder says Spanish Trails Inn & Suites in Durango, Colorado, violated the Americans with Disabilities Act by denying her and her family housing because of her service dog.

Her family and her service dog, Tevah, were denied services at Spanish Trails Inn & Suites. A supervisor at the hotel says the denial was due to the hotel employees’ unfamiliarity with the ADA (Americans with Disabilities Act).

The hotel’s actions, if true, are a violation of the ADA. Under ADA, privately owned businesses that serve the public … are prohibited from discriminating against individuals with disabilities. The ADA requires these businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed.

Elder, said the hotel’s property manager rejected her, her husband, their two children, and their service dog as tenants. When Elder protested the manager’s decision to deny them a room due solely to the fact they had their service animal and that all of the pet-freidly rooms were already taken, Elder insisted that her dog, Tevah, is a service animal, and not a pet. The hotel manager responded by telling Elder: “‘I don’t care if you have a service dog. I don’t want dogs in here.”

A recorded conversation the next day is reported as containing the following exchange between Elder’s husband and the hotel clerk:

“It’s that it’s a dog, not that it’s a service dog. It’s a dog,” the clerk said.

“It’s illegal. I have paperwork saying that. You cannot say that,” Elder’s husband responded.

“We’re allowed to say ‘no’ to dogs,” she said.

“You’re not allowed to say ‘no’ to service dogs,” he replied.

“It’s a dog,” she said.

Elder suffered a snowmobile accident when she was a teen, suffering a crushed ankle, fractured tibia and broken femur. She’s undergone more than 15 surgeries since that time.

Elder reports she adopted Tevah, her black pit bull and boxer mix, and relies on Tevah to get her through nights and days of excruciating pain, ad to wake up Elder or Elder’s husband when Elder has a seizure.

Hotel staff explained she probably would have rented the Elders a pet-friendly room if “he’d provided dog papers for service animals. But he never once showed me dog papers. He had a handicapped sticker that goes into a car, and that’s all he brought in,” she said.

However, despite the fact that businesses often demand such paperwork, the ADA states that establishments can’t require people with disabilities to provide certification or registration that their service animals are service animals.

The hotel should have accommodated the Elders, whether or not the Elders showed any paperwork for their service animal.

Special Regulations; Pets and Service Animals: Olympic National Park and Isle Royale National Park

This Proposed Rule document was issued by the National Park Service (NPS)

For related information, Open Docket Folder  


Action

Proposed rule.

Summary

The National Park Service is proposing to define and differentiate service animals, from pets, domestic animals, feral animals, livestock, and pack animals, and describe the circumstances under which service animals would be allowed in a park area. Special regulations for Olympic National Park and Isle Royale National Park would be amended to conform with the proposed service-wide rule.

Dates

Comments must be received by June 17, 2014.

Addresses

You may submit your comments, identified by Regulation Identifier Number (RIN) 1024-AE06, by any of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions forsubmitting comments.
  • Mail to: A.J. North, Regulations Program, National Park Service, 1849 C Street NW.,MS-2355, Washington, DC 20240.

Instructions: All submissions received must include the agency name and RIN for this rulemaking. All comments received will be posted without change to http://www.regulations.gov,including any personal information provided. For additional information, see the Public Participation heading of theSUPPLEMENTARY INFORMATIONsection of this document.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

For Further Information Contact

A.J. North, National Park Service Regulations Program, by telephone:202-513-7742 or email: service_animals@nps.gov.

Supplementary Information

Background

General Authority and Jurisdiction

In the National Park Service Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq.), Congress granted the National Park Service (NPS) broad authority to regulate the use of areas under its jurisdiction, but the associated impacts must leave the “scenery and the natural and historic objects and the wild life [in these areas] unimpaired for the enjoyment of future generations.” Section 3 of the Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks.”

The NPS protects park resources and visitors by regulating pets and other domestic animals within park areas. The regulations governing pets (36 CFR 2.15) were last amended in 1983. Since 1983, federal statutes governing accessibility for persons with disabilities, as well as the use of service animals, have changed significantly. In response to these changes, the NPS is proposing to amend its regulations to ensure that we provide the broadest possible accessibility to individuals with disabilities.

The proposed rule would define and differentiate service animals from pets, domestic animals, feral animals, livestock, and pack animals and describe the circumstances under which service animals would be allowed in a park area. The rule also ensures NPS compliance with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended, and better aligns NPS regulations with the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12111-12117) and the Department of Justice (DOJ) service animal regulations (28 CFR part 35 and 36). Section 504 of the Rehabilitation Act states,

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or . . . conducted by any Executive Agency . . . (29 U.S.C. 794)

This law requires the NPS to provide persons with disabilities access to park programs, services, and facilities, and the opportunity to receive as close as possible the same benefits as those received by other visitors.

The ADA, which does not apply to the federal government, extends a legal mandate similar to the coverage of Section 504 of the Rehabilitation Act to all state and local governments and to places of public accommodations and commercial facilities. Although the NPS is not governed by the ADA, NPS policy, as expressed in NPS Director’s Order #42, is to align its regulations with the ADA and make NPS facilities, programs, and services accessible to and usable by as many people as possible, including those with disabilities. It is also NPS policy to follow, as appropriate, the DOJ regulations that implement title II and III of the ADA.

History of Service Animal Regulation in the Parks

NPS regulations first addressed the predecessor to service animals in 1966, when the existing rule at 36 CFR 2.8(b) prohibiting pets in “public eating places, food stores and on designated swimming beaches” was revised to include an exception for “Seeing Eye dogs” (31 FR 16650). This exception was expanded in 1983 to encompass “guide dogs accompanying visually impaired persons or hearing ear dogs accompanying hearing-impaired persons” (48 FR 30252). Because these dogs provide direct services for persons with disabilities, they are not considered pets under NPS regulations. Accordingly, guide dogs and hearing ear dogs have been allowed to enter park areas where pets are prohibited.

In 1991, after the passage of the ADA, the DOJ expanded the definition of service animals to include “any guide dog, signal dog, or other animal trained to do work or perform tasks for the benefit of an individual with a disability” (56 FR 35544). After the DOJ broadened the definition of service animal, a number of parks began receiving requests from the public to bring a variety of service animals into the parks, including, but not limited to: dogs, cats, horses, primates, goats, birds, rodents, and reptiles. Over the years, this has resulted in some confusion within the NPS, because the regulations at 36 CFR 2.15(a)(1) recognize only guide dogs and hearing ear dogs as exceptions to the prohibitions on pets in certain public areas. These requests have also caused park personnel to voice concerns regarding threats to wildlife if other species of animals were allowed into areas where pets are prohibited.

NPS Interim Guidance on Service Animals

On September 5, 2002, the NPS Director issued a Memorandum providing interim guidance on the use of service animals in units of the National Park System while the NPS began the process of amending its regulations to adopt the broader range of service animal as specified in the 1991 DOJ regulations (28 CFR 36.104). According to the Memorandum, service animals were not to be considered pets, and in general, when accompanying a person with a disability (as defined by Federal law and DOJ regulations), service animals were to be allowed wherever visitors were allowed. Due to the concern for visitor safety and wildlife protection, park superintendents retained authority to close an area to the use of service animals if it was determined that the service animal posed a threat to the health or safety of people or wildlife. The NPS immediately implemented the interim guidance. However, park superintendents continue to express concerns regarding the appropriateness of allowing certain types of animals declared to be service animals in parks.

DOJ Revised ADA Regulations

On September 15, 2010, the DOJ published revised regulations implementing title II and III of the ADA, including a new definition of service animal that limits service animals to dogs. Under the revised DOJ regulations, a service animal is defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” (28 CFR 35.104 and 36.104). The revised definition states that other species of animals are not service animals.

The DOJ revised regulations also state that “[t]he work or tasks performed by a service animal must be directly related to the individual’s disability.” (28 CFR 35.104 and 36.104). Examples of the appropriate work of service animals include, but are not limited to, assisting individuals who are blind with navigation, alerting individuals who are deaf to the presence of sounds, pulling a wheelchair, alerting individuals to the presence of allergens or the onset of a seizure, retrieving items, and providing physical support and assistance to individuals with mobility disabilities. The DOJ regulations state that, “[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

According to the DOJ regulations, a public entity may require an individual with a disability to remove a serviceanimal from the premises if: (a) The animal is out of control and the animal’s handler does not take effective action to control it; or (b) the animal is not housebroken (28 CFR 35.136(b)). If a service animal is excluded for these reasons, the public entity must give the individual with the disability the opportunity to participate in the service, program, or activity without having the service animal on the premises (28 CFR 35.136(c)).

The DOJ revised regulations also include a provision that requires covered entities to make reasonable modifications to policies, practices, or procedures to permit the use of a miniature horse by a person 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. Although the miniature horse is not included in the DOJ’s definition of service animal (which is limited to dogs), miniature horses can be trained in ways similar to dogs to provide a wide array of services to their handlers, such as guiding individuals who are blind or have low vision, pulling wheelchairs, providing stability and balance for individuals with disabilities that impair the ability to walk, and supplying leverage that enables a person with a mobility disability to get up after a fall. Miniature horses may also serve as viable alternatives to dogs for individuals with allergies, or for those whose religious beliefs preclude the use of dogs. Miniature horses commonly are sized similar to a large dog at heights of 24 to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds. However, because miniature horses can vary in size and be larger and less flexible than dogs, the revised DOJ regulations allow entities to exclude miniature horses if the presence of the animal results in a fundamental alteration to the nature of the programs, activities, or services provided.

Proposed Rule

Although the NPS is not a regulated entity under the ADA, the NPS intends to allow qualified individuals with disabilities to bring working service animals and miniature horses to the parks in the manner as provided for in the DOJ title II and III regulations governing service animals. Consistent with DOJ regulations, the proposed rule would define a service animal as a dog that is individually trained to do work or perform tasks for persons with disabilities. Other species of animals, whether wild or domestic, trained or untrained, would not be considered service animals. The work or tasks a service animal is trained to perform must be directly related to the person’s disability. A dog utilized solely for comfort or emotional support would not be considered a service animal and would be subject to the regulations governing pets.

Revision of NPS Regulations at 36 CFR 1.4

Section 1.4 would be amended to add the terms disability and service animal and to modify the term pet. These definitions would distinguish pets used primarily for companionship from service animals trained to assist a person with a disability.

The term domestic animal would be added and defined to mean an animal tamed to live in the human environment. The term feral animal would be added and defined to mean a domestic animal that is existing in a wild or untamed state. The definition of pack animal would be revised and would no longer be limited to “horses, burros, mules, or other hoofed animals.” The existing language may unnecessarily exclude consideration of certain types of pack animals that do not have proper hooves, including alpacas, llamas, and camels. Instead, the term pack animal would mean a domestic animal designated as a pack animal by the superintendent. This gives the superintendent the authority to adjust rules about the use of particular pack animals after considering the impact from this use on the park environment. The definition of the term livestock would be added to distinguish farm animals utilized for agricultural use from pets, service animals, and pack animals.

Amending § 1.4 to differentiate pets, service animals, pack animals, and livestock from each other would clarify the regulations governing domestic animals in the National Park System. For example, if a visitor wishes to bring a goat into a park, the park would first look to the purpose or function of the goat. If the goat would be used to transport equipment on designated routes, and the superintendent has designated goats as pack animals, the goat would be considered a pack animal subject to 36 CFR 2.16. If the goat was being used primarily for the production of milk, it would be livestock subject to 36 CFR 2.60. If the goat was tamed to live in the human environment as a domesticated animal and not being used as a pack animal or livestock, the goat would be considered a pet subject to 36 CFR 2.15. Because the goat is not a dog trained to do work for the benefit of a person with a disability, the goat could not be a service animal and thus would not be allowed in areas of the park where pets, livestock, or pack animals are prohibited.

Revision of NPS Regulations at 36 CFR 2.15

Service animals would be allowed in all NPS areas accessible to the public or employees except in those circumstances where the superintendent determines the presence of a service animal in a specific area would pose a threat to the health or safety of people or wildlife. In this case, the superintendent may impose additional conditions or restrictions or close the area to service animals. If the need for conditions or closures arises, the superintendent must prepare a written determination based on objective evidence of the threat that explains why a less restrictive measure will not suffice. If an area is closed to service animals, then that area must also be closed to pets.

After consultation with the U.S. Public Health Service’s Wildlife Health Branch on the serious potential for disease transmission between service animals and wildlife, the NPS has determined that a superintendent may use this authority to require individuals wishing to bring a service animal into an area where the service animal is likely to pose a threat to the health of wildlife to demonstrate proof of the service animal’s current vaccinations for diseases such as, but not limited to, rabies, distemper, parvovirus, and adenovirus, and proof of current treatment for intestinal parasites and heart worms. A superintendent may also require similar proof for miniature horses, such as, but not limited to, demonstration of a rabies vaccine and negative Coggins test for equine infectious anemia. An individual could demonstrate proof by showing a copy of a veterinarian bill for the required vaccines and treatments, a state-issued rabies tag, and/or a state health certificate, provided that the state vaccination requirements for the state health certificate mirror those established by the superintendent.

To protect park resources and the safety of visitors, the proposed rule would subject the use of service animals to certain standard rules that also govern pets. Service animals may not be left unattended, may not make unreasonable noise or exhibit aggressive behavior, and handlers must comply with excrement disposal conditions established by the superintendent. Service animals must be under control at all times while in the park. Acceptable means of restraint would include a harness, leash, or tether.However, the NPS acknowledges that in some instances, a disability may limit a person’s ability to exert physical control of a service animal. Further, some devices may interfere with the service animal’s safe, effective performance of its work or tasks. In these cases, voice commands, signals, or other effective means would be required to control the service animal while it is performing its work or tasks.

Law Enforcement and Emergency Service Dogs

The proposed rule would retain the current exception authorizing dog use by law enforcement officers and also allows a park superintendent to authorize dog use for search or recovery operations.

Service Animals in Training

Service animals in training are not yet trained, and thus do not meet the legal definition of service animal. To protect park resources and the safety of park visitors, the rule would restrict the use of service animals in training to areas that are also open to pets.

Miniature Horses

Miniature horses are not included in the DOJ definition of service animal, but they were included in the authorizing section of the DOJ regulations for service animals. The DOJ regulations require that an 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(i)(1) and 36.302(c)(9)(i)). Under this proposed rule, the superintendent may permit the use of a miniature horse by an individual with a disability in accordance with the assessment factors outlined in the DOJ regulations at 28 CFR 35.136(i)(2) and 36.302(c)(9)(ii). The use of miniature horses would be subject to the same requirements that govern the use of service animals.

Proposed Revisions to 36 CFR 7.28 and 7.38

Two units of the National Park System, Olympic National Park and Isle Royale National Park have park-specific special regulations that use the term “guide dog.” Olympic National Park is proposing to drop its current regulation on dogs and cats in favor of regulating where visitors may take these animals and service animals under the proposed service-wide rule.

Isle Royale National Park is an isolated island whose wilderness ecology is defined through predator-prey systems. There, concerns that nonnative mammals (and in particular those which might be brought as pets) could alter those systems by transmitting disease to the wild canids of the park (the Eastern Timber Wolf and the Red Fox), led to a regulatory prohibition. (42 FR 21777). That prohibition excepted “guide dogs accompanying the blind.” Isle Royale is proposing to retain the general prohibition on mammals and to replace the guide dog exception with the proposed service-wide definition and § 2.15(b) provision for service animals.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.)

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (UMRA)

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under theDepartment’s consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department’s tribal consultation policy is not required.

Paperwork Reduction Act (PRA) (44 U.S.C. 3501

This rule does not contain information collection requirements. The Paperwork Reduction Act’s implementing regulations define “information” as “statement or estimate of fact or opinion, regardless of form or format, whether in numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic or other media.” 5 CFR 1320.3(h). However, “information” does not include “facts or opinions obtained through direct observation by an employee or agent of the sponsoring agency or through nonstandardized oral communication in connection with such direct observations.” 5 CFR 1320.3(h)(3) (italics added). In the proposed rule, an authorized person may need to determine a number of facts, such as the tasks that a service animal is able to perform (2.15(b)(1)(i), 2.15(b)(3)(iii)); the type, size, and weight of the animal (2.15(d)(i)(A)); and whether the animal is housebroken. These facts will be determined by the authorized person via direct observation of the animal. Because these facts are obtained through direct observation, they are not considered information for the purposes of the PRA, and a submission to the Office of Management and Budget under the PRA is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA of 1969 is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of administrative, legal, and technical nature (43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

Clarity of This Rule

We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Drafting Information: The primary author of this rule is C. Rose Wilkinson, National Park Service, Regulations and Special Park Uses, Washington, DC.

Public Participation

It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in theADDRESSESsection. All comments must be received by midnight of the close of the comment period. Bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted.

Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

List of Subjects

National parks, Penalties, Reporting and recordkeeping requirements, Signs and symbols.

Environmental protection, National parks, Reporting and recordkeeping requirements.

National parks, Reporting and recordkeeping requirements.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR Parts 1, 2, and 7 as set forth below:

Part 1 General Provisions

1. Revise the authority citation for Part 1 to read as follows:

Authority

16 U.S.C. 1, 3, 9a, 460 1-6a(e), 462(k); DC Code 10-137 (2001), 50-2201 (2001).

2. In § 1.4 amend paragraph (a) by:

A. Adding the terms “Disability”, “Domestic animal”, “Feral animal”, “Livestock”, and “Service animal”

B. Revising the terms “Pack animal” and “Pet”

The additions and revisions to read as follows:

§ 1.4
What terms do I need to know?

(a) * * *

Disability means a physical or mental impairment that substantially limits one or more of the major life activities of an individual.

* * * * *

Domestic animal means an animal that has been tamed to live in the human environment.

* * * * *

Feral animal means a domestic animal that is existing in a wild or untamed state.

* * * * *

Livestock means any domestic animal raised for the production of food or other agricultural-based consumer products.

* * * * *

Pack animal means any domestic animal designated as a pack animal by the superintendent and used to transport people or equipment on designated routes.

* * * * *

Pet means any domestic animal that is not a service animal, pack animal, or livestock.

* * * * *

Service animal means any dog that has been individually trained to dowork or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition.

* * * * *

Part 2 Resource Protection Public Use and Recreation

3. The authority citation for Part 2 continues to read as follows:

Authority

16 U.S.C. 1, 3, 9(a), 462(k).

4. Revise § 2.15 to read as follows:

§ 2.15
Pets and service animals.

(a) Pets. (1) Pets are not allowed in public buildings, public transportation vehicles, any location designated as a swimming beach, or any area the superintendent has closed to the possession of pets.

(2) Pets must be crated, caged, restrained with a leash no longer than six feet in length, or otherwise physically confined at all times.

(3) The following are prohibited: (i) Leaving an unattended pet tied to an object, except in designated areas or under conditions which may be established by the superintendent;

(ii) Allowing a pet to exhibit aggressive behavior or make noise such as barking or howling that is unreasonable considering location, time of day or night, impact on park users and other relevant factors, or that frightens wildlife; or

(iii) Failing to comply with pet excrement disposal conditions which may be established by the superintendent.

(4) Pets may be kept by residents of park areas consistent with the provisions of this section and in accordance with conditions which may be established by the superintendent.

(5) In park areas where hunting is allowed, dogs may be used in support of these activities in accordance with applicable Federal and State laws and in accordance with conditions which may be established by the superintendent.

(6) This paragraph does not apply to the use of dogs by authorized Federal, State, and local law enforcement officers, or emergency personnel authorized by the superintendent.

(b) Service animals. (1) A service animal may accompany an individual with a disability in a park area where members of the public are allowed or may accompany an employee with a disability in a park area where employees are allowed.

(i) The work or tasks the service animal is trained to perform must be directly related to the individual’s disability. In making this determination, an authorized person may observe the animal and ask if the animal is required because of a disability and what work or task the animal has been trained to perform. Authorized persons must not ask about the nature or extent of a person’s disability, nor may they require documentation of the disability or proof that the animal has been certified, trained, or licensed as a service animal.

(ii) The crime-deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this provision.

(2) A service animal must be controlled at all times with a harness, leash, or other tether, unless the restraint device would interfere with the service animal’s safe, effective performance of work or tasks or the individual’s disability prevents using these devices. In those cases, the disabled individual must be able to recall the service animal to his or her side promptly using voice, signals, or other effective means of control. This must be demonstrated when requested by an authorized person.

(3) An individual may be asked to remove a service animal from an area closed to pets if:

(i) The animal is out of control and the animal’s handler does not take effective action to control it;

(ii) The animal is not housebroken; or

(iii) It is not readily apparent and the individual with a disability is unwilling or unable to articulate or demonstrate the work or task the animal has been trained to perform, consistent with paragraph (b)(1)(i) of this section.

(4) The prohibitions in paragraph (a)(3) of this section also apply to the use of a service animal.

(5) Upon determining that the use of service animals in a specific area poses a threat to the health or safety of people or wildlife, the superintendent may require proof of current vaccinations, impose additional conditions or restrictions, or close the area to service animals. Any area closed to service animals must be closed to pets. In determining whether the use of service animals poses a threat under this paragraph, the superintendent must:

(i) Make a written determination based on objective evidence evaluating the nature, probability, duration, and severity of the threat; and

(ii) Explain in the written determination why less restrictive measures will not suffice.

(c) Service animals in training. Service animals in training are regulated as pets under the conditions in paragraph (a) of this section.

(d) Miniature horses. (1) The superintendent may allow the use of a miniature horse by an individual with a disability if the miniature horse has been trained to do work or perform tasks for the benefit of the individual with a disability and after observing and assessing the following factors:

(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(ii) Whether the handler has sufficient control of the miniature horse;

(iii) Whether the miniature horse is housebroken; and

(iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(2) If authorized by the superintendent, miniature horses are regulated in the same manner as service animals under the conditions in paragraph (b)(1) through (4) of this section.

(e) Animals running at large. (1) Domestic or feral animals running at large may be impounded, and the owner of a domestic animal may be charged reasonable fees for kennel or boarding costs, feed, veterinarian fees, transportation costs, and disposal. An impounded animal may be put up for adoption or otherwise disposed of after being held for 72 hours from the time the owner was notified of capture or 72 hours from the time of capture if the owner is unknown.

(2) Domestic or feral animals running at large and observed by an authorized person in the act of killing, injuring, or molesting humans or domestic animals or taking wildlife may be destroyed if necessary for public safety or protection of wildlife, domestic animals, including livestock, or other park resources.

(3) This paragraph (e) does not apply to livestock, which are governed by § 2.60 of this chapter.

(f) Violating a closure, condition, or restriction established by the superintendent under this section is prohibited.

Part 7 Special Regulations Areas of the National Park System

5. The authority for Part 7 continues to read as follows:

Authority

16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 50-2201.07 (2001).

6. In § 7.28, remove and reserve paragraph (c) to read as follows:

§ 7.28
Olympic National Park.

* * * * *

(c) [Reserved]

* * * * *

7. In § 7.38 revise paragraph (c) to read as follows:

§ 7.38
Isle Royale National Park.

* * * * *

(c) Mammals. Dogs, cats, and other mammals may not be brought into or possessed in the park area, except for service animals under § 2.15(b) of this chapter.

Dated: March 14, 2014.
Michael Bean,
Acting Principal Deputy Assistant Secretary, for Fish and Wildlife and Parks.
[FR Doc. 2014-08563 Filed 4-17-14; 8:45 am]
BILLING CODE 4312-EJ-P
VISIT THE GOVERNMENT WEBSITE FOR MORE INFORMATION:
http://www.regulations.gov/#!documentDetail;D=NPS-2014-0002-0001