Canine Remote Explosive Scent Tracing, Long Used in Europe for Screening Air Cargo, Continues to Be Tested in U.S.

Federal law mandates searching checked luggage, which may be done by canine teams, certain equipment, and other means, but luggage is not the only thing that goes into the hold of a plane. Air cargo also goes there. As recent events have made clear, cargo may not be screened as effectively as luggage. Although Congressional and Administrative policy has been to increase the number of explosives detection canine teams at U.S. airports, one of the more sophisticated explosives detection approaches awaits implementation in the U.S. despite widespread use in Europe.

A landmine detection methodology first developed in South Africa in 1985 (see blog of May 29, 2009) has in the last decade been adapted to sample air cargo for explosives. This method, called remote explosive scent tracing (REST) or sometimes remote air sampling for canine olfaction (RASCO), involves using dogs to sniff air samples at stations that are located in sterile rooms, much like those used in advanced scent identification procedures. The samples are extracted from cargo containers, or from under the plastic wrapping that holds a large number of packages together for shipment, using a suction device so that the sample presented to the dog comes from a confined airspace. An alert by a dog has a high probability of identifying the presence of an explosive among the items within the confined airspace.

Dogs are not the only animals used in REST work. One organization involved in removing landmines in Tanzania and Mozambique has had considerable success with rats.

Remote explosive detection is particularly useful with cargo because of the fact that unbundling materials being shipped together is both expensive and time consuming, and in some cases, such as with pharmaceuticals, can damage or destroy a shipment. About 12% of air cargo in the U.S. travels on passenger planes, but about 16% of air cargo coming into the U.S. reportedly comes on passenger planes. Air cargo operators in the U.S., such as FedEx and UPS, tend to have dedicated cargo fleets, and some passenger airlines, such as Northwest and United, also have dedicated cargo fleets. Overseas, about 22% of air cargo travels on passenger planes. It thus appears that over 80% of air cargo in the U.S. is not subject to the screening requirements that apply to cargo placed in the holds of passenger planes, even assuming the latter requirements are consistently met.

Use of REST in Europe
In 2004, a commercial system began to be used by agencies of the governments of France, and the UK approved it for screening cargo. The Netherlands Ministry of Justice and Military Police approved it in 2006. (See written question of Jeanine Hennis-Plasschaert, a member to the Dutch House of Representatives, to the EC, February 28, 2008.) REST is also used in the Amsterdam Schiphol and Johannesburg airports. The picture (courtesy DiagNose) shows a dog checking stations in a REST system.

In 2007, the Government Accountability Office published a report on aviation security, Federal Efforts to Secure U.S.-bound Air Cargo Are in the Early Stages and Could be Strengthened. The GAO discussed remote scent tracing:

"[T]wo European countries [presumably England and France] are currently using canines in a different manner than TSA to inspect air cargo for explosives. Specifically, these countries are using the Remote Air Sampling for Canine Olfaction (RASCO) technique, which involves the use of highly trained dogs to sniff air samples collected from air cargo or trucks through a specially designed filter. The dogs sniff a series of air samples to determine whether or not there is a trace of explosives and indicate a positive detection by sitting beside the sample. According to foreign government officials representing two of the countries that use this technique, tests to determine the effectiveness of this practice have shown that RASCO has a very high rate of effectiveness in detecting traces of explosives in cargo. According to foreign government officials, this inspection method can be used on cargo that is difficult to inspect using other methods, due to size, density, or clutter, and does not require the breakdown of large cargo pallets. Further, officials stated that the dogs used in RASCO do not tire as easily as dogs involved in searching cargo warehouses, and can therefore be used for a longer period of time…. According to TSA officials, while the results of previous agency tests of RASCO raised questions about its effectiveness, they continue to work with their international counterparts to obtain information on the feasibility of using RASCO to inspect air cargo. TSA officials stated that the agency has not yet determined whether RASCO is sufficiently effective at finding explosive in quantities the could cause catastrophic damage to an aircraft and whether this technique will be approved for use in the United states."

In a 2010 report on air cargo security, the GAO referred to RASCO again, but made no mention of its possible implementation in the U.S. The GAO did state that RASCO might "produce different results from TSA's screening standards," but it is not clear if this was a reference to any research TSA had conducted.

The Scientific Working Group on Dog and Orthogonal detector Guidelines (SWGDOG), which suggests industry standards on the training and uses of police dogs, said in its 2007 Guideline SC7-Research and Technology that independent scientific evaluations of the capabilities and limitations of the REST systems are essential. A 2010 proposed revision includes the same urgent recommendation. In Norway, Rune Fjellanger, the preeminent researcher on the method, reported 95% detection reliability eight years ago, thus meeting the U.S. military's standard for explosives detection dogs.

How Effectively Is Air Cargo Screened Before Going on Passenger Planes?
The bombs hidden in printer cartridges found at airports in East Midlands and Dubai last week contained PETN (pentaerythritol tetranitrate). East Midlands Airport is the UK’s busiest pure cargo airport, handling 300,000 tons of flown cargo every year. It is the UK hub for DHL and UPS, and it was in a UPS package that the disguised explosive device was found. News reports stated that the bombs had been on passenger planes during their journeys.

The Implementing Recommendations of the 9/11 Commission Act of 2007 (PL 110-53, August 3, 2007) contained provisions (§ 1602) on the screening of cargo carried aboard passenger aircraft, which required that, by August 2010, “the Secretary of Homeland Security shall establish a system to screen 100 percent of cargo transported on passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation to ensure the security of all such passenger aircraft carrying cargo.” Screening may include various technologies including “explosives detection canine teams certified by the Transportation Security Administration.” The Act also encouraged the use of blast-resistant cargo containers (§ 1609).

In 2008, the GAO reported that there were 370 TSA-certified explosives detection canine teams cross-trained to work in multiple aviation environments, including air cargo. Teams specializing in air cargo were located primarily at the 20 airports that receive approximately 65% of the air cargo transported in the U.S. In June 2010, the Transportation Security Administration issued a statement, 100% Air Cargo Screening: Path Forward, admitting that “screening 100 percent of cargo inbound to the US will not be attainable by industry by the August [2010] deadline, however TSA is committed to ensuring industry obtain that level of security as rapidly as possible.”

A Report to Congress in 2007 noted that it was not only the amount of cargo that was shipped on passenger airlines that was a problem for screening everything, it was also the complexity of the system. About 50 air carriers transport air cargo on passenger airlines from nearly two million shippers every day. Approximately 80% of the shippers use freight forwarders who operate about 10,000 facilities in the U.S. The TSA has, therefore, relied on a strategy of establishing databases of known shippers and freight forwarders and comparing shipments to entities labeled as approved in databases. When a match is not found, a targeted inspection can be initiated. The report stated that TSA policy is to “screen, inspect, or otherwise ensure the security of all-cargo aircraft is to be established as soon as practicable, but sets no specific deadlines or time frame for compliance.” When air cargo arrives in the U.S. from abroad and is transferred to a domestic passenger flight, TSA's policy is that this cargo "must be made available to TSA canine teams when these teams are present in cargo facilities."

At present, when canine teams inspect cargo, the procedure primarily involves running a dog through a loading area or having it stand beside a conveyer belt where it sniffs the packages as they pass. One bomb dog handler advised me that sometimes air cargo facilities are concerned about a shipment wrapped in plastic but do not want the wrapping unbundled, so he slits the package on each side allowing the dog to sniff the air inside the wrapping. He acknowledged that a remote air scenting system would have been preferable.

In a 2009 report reviewing TSA’s progress in screening, the GAO said that there were only 37 canine teams dedicated to air cargo screening, but added that there would soon be 48 more, meaning that there are now somewhere around 100 dedicated air cargo sniffing dogs. The report said that TSA was attempting to identify peak cargo delivery times during which dogs would be most helpful for screening. This suggests that packages arriving at non-peak times may not be screened.

EU Requirements
The European Commission provides standards for aviation security in the EU. After April 2009, European Commission Regulation 272/2009 allows screening of passengers and employees at checkpoints to be performed by dogs, as well as cabin baggage and baggage carried at a checkpoint, hold luggage and other cargo and mail to be loaded into the hold. Vehicles and the aircraft themselves may also be searched by explosive detection dogs.

In Regulation 573/2010, the Commission elaborated considerably on explosive detection dog requirements. Dogs are to be single purpose dogs and are to be taught to give a passive response. The EDD and the handler must both be approved independently and in combination. Both are to receive initial and recurrent training. Recurrent training is to occur at intervals of no longer than six weeks. Recurrent training sessions are to be at least four hours long. Training records are to be kept on both the EDD and the handler. Finally, the Regulation provides that security screening may involve free running or remote explosive scent tracing. REST may also be used for screening cabin and carry-on baggage, vehicles, aircraft, in-flight supplies and airport supplies. Dogs used in REST work can have two handlers, presumably a recognition that dogs can do this work for longer periods than is the case in traditional sniffing assignments.

Where Does TSA Stand on Implementing REST?
A 2008 Report to Congress stated that TSA was working with the Department of Homeland Security on operational procedures to improve canine detection capabilities. The Report stated: "One technology being examined is Remote Air Sampling Canine Olfaction (RASCO) sensors, which can provide a concentrated sample from a container for a canine to inspect and has been used extensively in Europe. The DHS project plans to expand this concept to include chemical sensors carried on jackets worn by the canine that will be capable of transmitting data to remote monitoring stations."

Perhaps TSA's efforts to combine the dog's sniff with a chemical sniff explains the delay in implementing REST in the U.S.

The Technical Support Working Group, an interagency program for research and development into counter-terrorism measures, has posted a Combating Terrorism Technical Support Office 2009 Review. A section of the Review on "next-generation canines" indicates that TSWG is exploring "technologies that support and enhance canine detection." TSWG is under the Combating Terrorism Technical Support Office (CTTSO), which is under the Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict & Independent Capabilities. Proposals for RASCO testing were invited by CTTSO in October 2008 (Broad Agency Announcement 09-Q-4500). The following describes the tests that were sought:

"The performing organization will be required to design, develop and operate a RASCO test-bed for air cargo screening. This test-bed shall be a model of activities of an air-cargo facility which has deployed the RASCO screening process. A warehouse where cargo can be assembled into air shipping configurations and then arranged for sampling will be required. The warehouse shall also have a separate area for canine interrogation of the samples. The test-bed shall have separate storage areas for used and unused commodities and shall have storage facilities for bulk amounts of explosives. The investigating entity shall be fully licensed to receive, store, handle and ship bulk explosives. (This can happen up to two months after award if necessary). The site shall have the capability to accept and ship large amounts of air cargo commodities in their shipping configuration or broken down as required. The contractor shall have knowledge of U.S. air cargo screening requirements. The contractor shall procure and train canines to detect trace amounts of explosives using a government furnished protocol. Canines must be maintained for long periods of time at a location remote from explosive storage. It is noted that the training procedures for RASCO may not be the same as for other types of canine detection. These training procedures will be provided by the government. The training aids [generally samples of explosives] used shall be fabricated by the performer using established procedures. Adequate facilities shall be available for the formulation of training aids. The procedures for fabrication will be supplied by the government. The option to use the test-bed as a permanent facility for training and testing is desirable. Authentic air cargo samples must be taken and used for training purposes. The awardee must be able to supply these samples to the test-bed. A location near an air cargo hub is desirable."

It would seem then that testing is going on, and may have been going on for several years.

Conclusion
It is unlikely that the Transportation Security Administration would make a public statement regarding a specific commercial provider, but it should acknowledge the existence of the approach and place it in an advisory, if not a regulatory, context. REST has been tested by various countries and at various cargo facilities, both air and maritime (as well as for downloading air samples from trucks in some locations), and the risks associated with air and marine cargo argue for implementation as soon as is practicable.

Additional Sources: Fjellanger, R., Andersen, E.K., and McLean, I.G. (2002). A Training Program for Filter-Search Mine Detection Dogs. International Journal of Comparative Psychology, 15, 277-286. Fjellanger, R. (2002) REST—A Method for Detection of Explosive and Chemical Substances. Abstract in Proceedings, Vapor and Trace Detection of Explosives for Anti-Terrorism Purposes, Technological Centre, Russia. Uddqvist, A. and Roberthson, I. (2010). Improvement of Sampling System for Remote Explosive Scent Tracing. Bachelor’s Degree Project in Mechanical Engineering, University of Skovde, Sweden, Spring 2010. See also Fjellanger’s website; Meier, B. and Lipton, E. (2010). In Air Cargo Business, It’s Speed vs. Screening, Creating a Weak Link in Security. New York Times, November 2, A12 (citing the International Air Cargo Association that 16% of cargo carried into the U.S. comes on passenger planes); ICTS Europe Q1 Newsletter 2010 (canine trials at central search areas of East Midlands and other UK airports, indicating full implementation had not been approved); Elias, B., CRS Report for Congress: Air Cargo Security (updated July 30, 2007);TSA Air Cargo Programs Update (FY 2008 Q2) (showing that only 12% of U.S. air cargo goes by passenger aircraft. This was the TSA Air Cargo Programs Update describing the Certified Cargo Screening Program (CCSP)); Statement of Inspector General Kenneth M. Mead, DOT, Key Issues Concerning Implementation of the Aviation and Transportation Security Act, Report CC-2002-098 (February 5, 2002); Wickens, B. (2001). Remote Air Sampling for Canine Olfaction. IEEE 35th International Carnahan Conference on Security Technology, 100-102.

Addendum. I thank readers for sending me comments and additional leads regarding this subject since I first posted the blog two days ago. Perhaps the biggest advantage of an increased readership is that people are happy to point out errors and oversights. Even before I opened the New York Times this morning (November 11), I was directed to the story John Burns on A6, Yemen Bomb Could Have Gone Off at East Coast, stating that the package in Britain had been missed by sniffer dogs and explosives-detection equipment. I have been advised that there is no REST system at the East Midlands cargo facility, so if this is where dogs did not alert to the package, they must have been taken past it by a handler.

Second Addendum. Steve Lord, Director of Homeland Security and Justice Issues with the Government Accountability Office, testifying before the Subcommittee on Transportation Security of the House Committee on Homeland Security, on March 9, said that the Transportation Security Administration had, as of February 2011, 113 dedicated air cargo screening teams working at 20 airports, but would be adding seven additional teams. He also stated that a pilot program at two certified cargo screening facilities (CCSFs) was testing the feasibility of using private canine teams to inspect air cargo. Certain air cargo is not screened by dogs, however, as is made clear from the following portion of Lord's statement:

"TSA has not approved or qualified any equipment to screen cargo transported on unit-load device (ULD) pallets or containers—both of which are common means of transporting air cargo on wide-body passenger aircraft—both domestic and inbound aircraft. Cargo transported on wide-body passenger aircraft makes up 76 percent of domestic air cargo shipments transported on passenger aircraft. The maximum size cargo configuration that may be screened is a 48-by-48-by-65-inch skid—much smaller than the large pallets that are typically transported on wide-body passenger aircraft. Prior to May 1, 2010, canine screening was the only screening method, other than physical search, approved by TSA to screen such cargo configurations. However, effective May 1, 2010, the agency no longer allows canine teams to screen ULD pallets and containers given TSA concerns about the effectiveness of this screening method for those cargo configurations."

Lord states that TSA is continuing to test other screening technologies for ULDs. It appears that cargo may remain the most significant hole in passenger airline security.

On March 14, 2011, DiagNose announced that its trademarked system is now in use at the Amsterdam Schiphol Airport.

Third Addendum. Attachment 12-H to Regulation 573/2010 specifies size limits for consolidated consignments for explosives detection dog screening. The Attachment reads as follows:

“When screening cargo (including the cargo consignments of express parcels), the consignment shall be made available for screening in a non-containerised packing. The height of consolidated consignments shall not exceed 130 cm in height and 100 cm in depth [just over 4 ft. x 3 ft. 3 in.], unless a single piece of consignment is exceeding such dimensions. The nature of each consignment shall be taken into account before the handler shall direct the EDD to each item and evaluate the reaction of the EDD. The EDD shall be able to access and sample odour from all pieces of cargo.”

This means that if a consolidated consignment can be sniffed from both sides, it can be up to 200 cm wide (about 6½ ft.). For consignments higher than 130 cm, a ramp can be used for the dog to sniff the top of the consignment.

At least one company providing canine services for cargo screening has requested additional guidance from the European Commission. The EU responded that existing EU legislation on explosive detection dogs can only be reviewed after it has been in place for a reasonable period of time, but if other industry stakeholders believed the need to be more urgent, the Directorate General on Mobility and Transport will investigate "at an earlier stage." So far this has not happened.

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Dispute Over $44 Million Contract Shows War Dogs Are Now Big Business

Contracts for providing the military with explosives, narcotics, and cadaver detection dogs, as well as patrol and sentry dogs, are becoming lucrative, with one contract reaching $44 million and another, just a month ago, $34 million, both going to the same contractor. With success comes competition, however, and with competition come disputes, with disputes come lawsuits, and lawsuits mean work for lawyers, unquestionably a good thing. (One must pay homage to one's guild from time to time.)

What the Army Expects from Dog Team Contractors
Contract working dogs (CWDs) are to be distinguished from military working dogs (MWDs) owned by the military. CWDs are provided by contractors as patrol dogs, narcotics detector dogs, and explosives detector dogs for work at Kandahar Airfield and throughout southern Afghanistan. There were at least 220 CWD dog teams in Afghanistan by July 2010, and the number is rapidly increasing. The picture shows a CWD team posted on an Army website.

To meet CWD contract requirements, dogs must be at least one year old and no more than seven years, and “similar in size to the German Sheppard,” though other breeds are permissible. Contractors are responsible for off-post kenneling, meaning that the U.S. Army Military Kennel Master does not provide kennel services. Each dog is to be deployed with a dog crate that can be used as a temporary kennel when necessary. Travel is paid for by the contractor, even on military planes. Naturally, such costs would be factored into contractors' bids.

Explosive detector dogs (EDDs) sent to Afghanistan must maintain a 95% proficiency rating in detecting a specified list of explosives:

• Commercial dynamite (Gelatin and Ammonium Nitrate)
• Military dynamite
• Water gel (TOVEX)
• TNT
• Smokeless powder
• C-4
• Detonating cord
• Potassium chlorate
• Sodium chlorate

Canine Explosive Scent Kits (CESKs) are provided by the Army. If other explosives come into common usage by enemy forces in Afghanistan, contractors have at least 30 days to attain detection proficiency once the explosives are identified. Certification of dogs to the 95% proficiency level is made by an Army official (CJTF-101 MWD Program Manager). In a Federal Claims Court case described below, it was revealed that in 2008 the Army had only one person acting as a canine certification authority in Afghanistan.

Narcotics detector dogs are to maintain a 90% proficiency level (5% lower than EDDs), and must be able to detect concealed marijuana, hashish, heroin, and cocaine.

Patrol dogs must be able to stay at heel off-leash and attack only on the command, GET HIM. They must be trained to attack a person wearing an arm protector positioned at least 40 feet away, using a bite and hold method. Dogs can attack without command if a subdued person attacks the handler or the dog itself. On the command OUT, the dog must cease pursuit and return to the handler if commanded to HEEL. The description of services provided to potential contractors states that a patrol dog’s ability to continue an attack despite gunfire is critical. The dog must be able to detect the scent of a person hidden 50 meters upwind and follow the odor to the person’s location, and must also be able to detect and respond to a sound made by a person 100 feet downwind.

Four hours of proficiency training are to be provided by the contractor to each team each week. There is to be one handler per dog and the contractor must “replace lost capability within 15 days.” Contractors are to have contingent teams to replace a working team no longer deployed due to death, injury, vacation, decertification, or any other reason. Dog teams must be able to operate in “Hostile Fire or Imminent Danger Areas.” Canine personnel can be required to work “in excess of 10-hours each day, 6-7 days a week based on mission need,” including federal holidays.

The description of services specifies that CWDs need a diet significantly different from that of pet dogs and states that dogs should be fed “a food the same as or similar to, Hills Science Diet, NSN: 8710-01-415-6950.” That seems like a plug a marketing department should be able to do something with.

The contractor’s kennel master is an important part of any proposal submitted by a contract bidder. This person must have at least six years prior experience as a senior military or civilian working dog handler and two years experience as a kennel master. The kennel master participates in strategy sessions and must have “a valid and current security clearance SECRET, minimum, in order to attend specific Government meetings.” Handlers assigned to work with U.S. or Canadian Special Forces are also expected to have “SECRET security clearance for access to classified information from US, Britain, Canada, and Australia (4 EYES).” Handlers are to be certified and proficient in both long and short-barrel weapons. The contractor is required to supply uniforms that distinguish handlers as its employees. Performance Work Statement (June 5, 2008).

Contract Dispute Reaches Federal Court
Disputes over a large contract began in October 2007 when the Army solicited bids for additional CWD services in Afghanistan (RFP # W91B4L-08-R-001). American K-9 was the incumbent contractor providing CWDs to the Army’s Special Forces in Afghanistan. EOD Technology, Inc. (EODT) also provided CWDs for use in Afghanistan, but not to the Special Forces. (According to a page on EODT’s website, the organization provides de-mining dogs for “local Afghan deminers.”) American K-9, EODT, and RONCO Consulting Corp. submitted bids. In December 2007, the Army awarded the contract to EODT. American K-9 and RONCO protested the award to the Government Accountability Office (Protests B-311008.1 and B-311008.2). RONCO has been mentioned in a prior blog (August 20, 2010).

Following the protests to the GAO, the Army terminated the contract with EODT and canceled the underlying solicitation, but then issued a new solicitation on February 10, 2008, this time specifying that in addition to the Army, the dogs would be supporting the NATO International Security Assistance Force Regional Command. The request sought two trained and certified patrol/narcotics detector dogs as well as explosives detector dogs (EDDs). The number of EDDs sought is redacted from the case where the dispute ended up, as are other facts perhaps deemed sensitive by the Army. Four offers were received to the February 2008 solicitation, The Army chose EODT (Contract # W91B4L-08-M-0232).

American K-9 again filed a protest with the GAO and again the Army stopped the contract, issuing a statement that it had become aware “of several problematic issues which threatened the viability of the solicitation.” Two days later, on March 28, 2008, the Army asked American K-9 to submit a proposal for a “sole-source, six-month bridge contract” to provide canine detection services. The Army entered a Justification and Approval for Other Than Full and Open Competition (FAR 6.302-2(a)(2) in the General Services Administration Federal Acquisition Regulations). The Army said that American K-9, as the incumbent contractor, was the only CWD supplier in a position to satisfy the immediate need “with no mobilization lead-time required.”

American K-9 was then awarded the contract on March 31, 2008, and EODT took its turning filing a protest with the GAO (GAO Protest B-311349.2). EODT’s protest triggered an automatic stay of performance on the contract, and on April 6, 2008, the Army issued a stop-work order to American K-9, but provided American K-9 with a three-month, sole-source “interim” contract. On April 8, the Army decided that the six-month, sole-source contract (W91B4L-08-M-0257) could proceed despite EODT’s GAO protest, saying that there were “urgent and compelling circumstances that significantly affect the interests of the United States and its Allies, and will not permit waiting for the GAO’s decision on the protest.”

EODT, seeing the GAO protest wasn’t working, filed suit in the Federal Claims Court.

The court began to sift through the evidence, including the history in the preceding paragraphs. It noted that after a certain redacted date, NATO would not be using CWDs in Afghanistan. Only the U.S. would be using these dogs. It was not explained why other forces would not be using CWDs, though the Federal Claims Court found that the need for CWD teams in Afghanistan was rising.

The legal issue boiled down to the Army’s ability to override a stay by the GAO, which required that the Army establish that the best interests of the United States outweighed Congressional policy. The Army argued that the CWD services could not lapse even for one day, noting that an EDD at one forward operating base had found a redacted but obviously high number of improvised explosive devices (IEDs) in the previous year. EODT, in protesting the award of the bridge contract to American K-9, noted that it also had CWD teams in Afghanistan and could provide the teams required by the Army Special Forces without any delay.

The Army, apparently forgetting its choice of EODT in December 2007, said that it only wanted to use one contractor and that bringing EODT or another contractor in while it was using American K-9 would “negatively impact mission effectiveness.” Further, it said that use of two or more contractors would “disrupt the integrity of the teams currently working together” and “elicit disruption and harmful competition.” Apparently, the handlers of the dogs, if not the dogs, would inevitably get in fights just as the corporations for which they worked were doing.

The Army also said that it had only one certification authority for dog teams in Afghanistan, a Sergeant First Class (name redacted, of course). The Army said that this soldier could only certify a redacted number of teams a week. It was not explained why this soldier could not certify teams from different providers as efficiently as teams from a single provider given that the certification standards are those of the Army, not of the providers.

The claims court decided not to override the bridge contract but said that it could not be expanded from its six-month bridge status to provide American K-9 with a longer-term contract without allowing other bidders to make offers. The Army would have to open up the bidding again. EOD Technology, Inc. v. U.S., 82 Fed.Cl. 12 (Ct.Fed.Cls. May 15, 2008)

Dispute Moves to GAO Turf
On June 13, 2008, a new solicitation was issued (RFP # W91B4L-08-R-0025) to obtain CWD services throughout Afghanistan for one year, with four option years. The Army anticipated needing 50 teams initially (Responses to Contractor Questions, June 24, 2008). EODT was awarded the contract in this round and American K-9 protested to the GAO on August 15 (B-400464, supplemented September 11), attacking the Army’s evaluation of the past performance of the bidders, one of the factors to be considered in awarding the contract. The Army agreed to reevaluate past performance. After receiving letters from the bidders, the Army affirmed its award to EODT.

American K-9, not to be deterred, protested again, saying this time that EODT had not satisfied the experience qualifications required by the solicitation. Among other things, American K-9 argued that the kennel master/project manager that EODT planned to use did not satisfy Army standards. The Army concluded that there was a deficiency but gave EODT the opportunity to update its proposal. The Army also asked American K-9 to update its proposal. EODT provided an updated resume for its proposed kennel master. Meanwhile, the Army also questioned American K-9’s proposed kennel master, saying it had “reason to infer” that the kennel master referred to in American K-9’s proposal was not the one that was going to do the work.

Whether the Army was questioning the qualifications of the kennel masters on its own, or whether some corporate espionage was going on between the bidders, is not clear from the documents publicly available. In any case, American K-9 protested to the GAO that the Army was conducting “results oriented” discussions because it wanted to give the contract to EODT regardless of the merits. The GAO dismissed this protest as premature. EODT had given a price of $38,350,935 for the work; American K-9’s bid is redacted, though said to be “approximately equal” to EODT’s. The Army again preferred EODT.

American K-9 protested yet again, persuading the GAO that the Army’s discussions had not always been meaningful. The Army had not talked to American K-9 about some of the deficiencies it found in the company’s offer. The GAO sustained American K-9’s protest of an award to EODT on May 5, 2009 (Protest B-400464.6) and recommended that the Army request final proposal revisions and make a new source selection.

American K-9 Wins (At Least for Now)
A U.S. contracting website lists the final award given to American K-9 as being for $44,775,558.79 (Award # W91B4N-10-C-5001 to RFP # W91B4L-09-R-0025), though the site contains a pdf of a contract signed by Mark Mahler, President of American K-9 listing the total award amount as $25,830,292.74 (Award # W91B4N-10-C-5001, dated December 11, 2009). The $44 million seems to be the amount most commonly used in press reports. A separate Defense Department website refers to the same award (at least by number) and states its amount as $15 million. The discrepancies may in part reflect guaranteed and extension amounts. Two news releases on American K-9’s website do not list the amount of the award but state that it was the largest CWD contract ever issued.

American K-9’s ability to land government contracts for CWDs continued in 2010. In August, the company was awarded a contract to provide cadaver/human remains detection dog teams to Iraq. In September, it got a similar contract for Afghanistan. Also in September, a contract from the Navy was awarded to American K-9 at $18,426,926, which with contract extensions could reach $34,659,851.

The price for dogs may seem high, but working in danger areas is costly in many ways. EOD Technology had 34 deaths in U.S. government contract work between September 1, 2001, and June 30, 2010. EOD Technology was the subject of some negative attention in a Senate Armed Services Committee Report issued September 28, 2010. Whether this had any effect on EODT's efforts to get canine contracts is unclear.

Additional sources: Abby Brown, Discussions Were Improper When ‘Discussion’ Questions to One Offeror Seemed ‘Contrived’ (June 8, 2009); Kara M. Sacilotto, Is the Game Worth the Candle? The Fate of the CICA Override, The Procurement Lawyer, 45(1), 3 (Fall 2009) (discussing the Federal Claims Court decision and other cases). To see what roadside bomb detection actually looks like, see the excellent video on the website of DiagNose.

Additional Notes. The Associated Press reported on March 17, 2011, that the State Department ended a $274 million agreement with EOD Technology to provide protection for the U.S. Embassy in Kabul because the company was not going to be able to begin performing its functions by May 1. EOD had been selected to replace ArmorGroup North America, whose guards had been caught drinking excessively and engaging in lewd behavior at barracks a few miles from the embassy. ArmorGroup's contract is to be extended until September 2011. The Senate Armed Service Committee has been investigating the role and oversight of private security contracts in Afghanistan.

On December 14, 2010, the Defense Department announced that K2 Solutions, Inc., of Southern Pines, North Carolina, was being awarded a $24 million firm-fixed-price contract for IED detector dog procurement, training, sustainment and conditioning, and handler training. The contract is also to include kenneling and basic care of the dogs. The Marine Corp will designated "team integration training venues," perhaps at Twentynine Palms, near Indio, California. Team integration occurs prior to deployment.

On October 4, 2011, K2 Solutions won an award for providing the Marine Corps with approximately 359 improvised explosives device detector dogs, along with training of 647 Marine Corps personnel annually. The contract (M67854-11-C-3015) award dollar amount was listed as $34 million, but the contract includes options, which if exercised will bring its cumulative value to $91 million. Training will be performed in Southern Pines, North Carolina, Twentynine Palms, California, and overseas. If options are exercised, work will be completed March 2014.

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Don't Gibber While You Train

This is me in one of my first obedience classes with Chloe:

“All right, we’re going to do this, aren’t we? We’re going to listen to daddy and do this right and Rick will be impressed, won’t he. We want Rick to be impressed even if we don’t care what daddy thinks, do we. All right, here goes, are you listening? SIT!”

Rick Manley of the Phoenix Field and Obedience Club scowled at me. “Ensminger, what are you telling the dog to do? If I can’t tell, the dog probably can’t either. Stop gibbering.”

I thought he was being a bit sensitive. It couldn’t have been that confusing. After all, I said SIT in a different and louder tone than everything else and I paused for a second or two before saying it. The gibbering was only my way of keeping the frustration of those early classes from getting to me. I also thought that the monologue might keep Chloe’s attention on me, something that didn’t come naturally to her back then.

Now there is scientific proof Rick was right.

Two researches videotaped 56 handlers giving the SIT command to see how verbal and nonverbal factors affected the dog’s response. The videotapes were made during obedience and agility classes in Switzerland and England. Dogs ranged from four months to nearly ten years old, but the mean age was two. A broad range of breeds were involved. Handlers were also of all ages.

The videotapes were studied to see whether the dogs watched the handlers giving the commands, whether the handlers watched the dogs, whether the handlers spoke other words or mumbled while giving commands, what movements the handlers made while giving commands, whether treats were given or handlers made motions suggesting they would give treats, and so on. As to the dogs, the researchers recorded whether the licked their lips, blinked, yawned, scratched, sniffed, turned their heads away from the handler, shook themselves, and so on. Even “proxemics” were recorded—a new word to me referring to the orientation and distance of the dog and handler.

The researchers recorded whether a command was obeyed, and whether it was repeated. They were particularly interested in the information conveyed to the dog in the few seconds before a command was actually given. Two factors were found to reduce a dog’s obedience: the animal not paying attention (no surprise), and the handler saying things other than the command before actually giving the command.

The researchers designed a separate study to look at the second finding, that additional verbiage reduced a dog’s obedience. Handlers were told to stand with their hands behind their backs and look straight ahead while giving a command to the dog, which was seated to the handler’s left. The handler was to do one of three things: (1) use the dog’s name followed immediately by the command, (2) use the dog’s name, pause for two seconds, then give the command, and (3) use a word the dog did not know (“banana”), followed by the command. The commands could be DOWN, PAW, or UFF (telling the dog to jump onto an elevated surface). Some dogs knew the commands they were given; for others, the commands were being taught.

Many handlers chat with their dogs “in quite a complex way,” like my gibbering. The researchers found that the name + two second pause and the novel word + command significantly decreased the correct response to the command. However, if the dog had fully learned the command, the use of the dog’s name, with or without a pause, did not significantly reduce the number of correct responses. Only the new word did. Thus, dogs found it particularly difficult to deal with a command they did not fully know when there was a new word preceding it. The researchers concluded that “responsiveness may be affected by non-informative verbiage preceding important information.” In layman's terms, don’t gibber before a command.

I’ve only summarized part of this interesting study. The researchers also concluded that dogs found changes in location difficult in learning new commands. They summarized: “Dog handlers should be aware of how different types of verbal information and the change of context can influence their dog’s responsiveness and of the extent to which dogs need to be taught to generalize command stimuli to novel contexts.” Braem, M.D., and Mills, D.S. (2010) Factors Affecting Response of Dogs to Obedience Instruction: A Field and Experimental Study. Applied Animal Behavior Science 125, (1-2), 47-55.

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Early Police Dogs in Belgium and New York

There could be said to be two strands in the origin of police dogs in the United States. Primarily in southern states, dogs were used for tracking escaped convicts and criminals after the Civil War, reaching judicial attention by the 1890s. These dogs, mostly bloodhounds, bayed at a suspects if they found them at the end of the trail, generally without biting. Bloodhounds were not then owned by the police departments, but rather were the property of private individuals, sometimes of prison authorities, and were borrowed for police work as cases required.

Police dog units existed in Europe by the end of the 19th century, beginning in the Belgian city of Ghent. A report in the New York Times, "The Police Dogs of Ghent, How They Are Trained to the Duties of Town Constables," says that there were 16 dogs by 1902, mostly Belgian shepherds. The dogs accompanied police on night shifts and were kenneled during the day. The Times article describes a four-month training program in which dogs were taught to seek, attack, seize, and hold "but without hurting seriously." Dogs were first trained to attack dummies put in positions of men trying to conceal themselves. After the dummy, a person was used, initially the dog's trainer so that it could be called off easily. The dog was muzzled at first to avoid serious injury. Bite suits, which began as thick clothing, soon became specialized training gear, as indicated in the photo dated 1911. The Times article reports that the dogs at the Ghent school were also taught to scale walls and even to jump into water to save people from drowning.

In his book, War, Police and Watch Dogs, published in 1910, Edwin H. Richardson includes a letter from Mayor van Wesenmael of Ghent requesting permission (from an unnamed authority) to obtain funds for police dogs. The mayor argues that the dogs would be particularly useful at night in patrolling "the outer zone and wood quarters." He notes that increasing the number of police for such patrols would be much more expensive than obtaining dogs, then states:

"I am not certain that a night policeman, who is acting in the suburbs, far from any help whatever, dare intervene when he sees a crime committed by several criminals. He cannot go as far and as fast as criminals, after being on duty for several hours. The criminal who has been meditating a crime dresses himself in a manner to be working as lightly as possible in case of flight. A dog works a long time on duty cheerfully, and he is able to follow a fugitive much more rapidly than a man. http://www.blogger.com/img/blank.gifThe dog is equipped with qualities of scent and hearing and can easily get into any place and examine it without his presence being suspected, and thus surprise the criminal, when the policeman in searching would probably be heard. If the burglar, thanks to his agility, succeeds n jumping over an obstacle or swimming away, a dog can stop him; the policeman would be hampered because of his heavy uniform, and perhaps he could not swim."

The mayor requested funds for ten dogs, but only expected to put three into service in the first year. Richardson visited police dog programs in Belgium, France, and Germany in 1909 and noted that while tracking dogs were being used in Germany, police dogs in Belgium and France were at the time largely used in patrol work. The picture of the police dog kennel at Ghent is taken from Richardson's book. The last picture, also from Richardson, shows a police handler from Ghent with a dog fitted with a raincoat.

A 1907 report of the U.S. Consul General in Antwerp, H.W. Diederich, says that by that year the police in Antwerp had seven dogs used to patrol a dangerous section of the city around the docks and basins. Also in 1907, the police departments of New York City and South Orange, New Jersey, began assigning dogs to policemen. These dogs were primarily used to protect officers on patrol and to apprehend suspects, mostly by what would now be called a “bite and hold” method. The New York City police dog program was in part based on the Ghent program. A Lieutenant Wakefield of the NYPD visited Ghent to study the city's experience and returned to New York with two dogs purchased from the Ghent police force. By 1910, German trainers knew of the American use of dogs to track slaves over long distances, but in training often used trails of 300 meters or less.

Sources: Hodge v. Alabama, 98 Ala. 10, 13 So. 385 (1893); C. George and L. George, Police Dogs, 10 (Capstone Press 1998); Science Siftings, The Police Dogs of Ghent, The New York Times (November 9, 1902); Police Dogs at Antwerp, The School Journal, 344 (October 19, 1907); F. Schmidt, Vebrecherspur und Polizeihund (Augsberg 1910); Polizeihund-Erfolge und Neue Winke fur Poizheihund-Furher, Liebhaber under Behorden (Augsberg 1911) (at 42: "aufstandige un dem Sklavendienst entfliehende Neger bedieten"); S.G. Chapman, Police Dogs in North America (CC Thomas 1990); Belgische Schaferhund (www.altedeutscherhutehund.websnadno.cz/Belgischer-Schaferhund.html); E.H. Richardson (1910), at 11 et seq.,37. War, Police and Watch Dogs. William Blackwood and Sons. Edinburgh and London; Axel Van der Borght (personal communication, October 25, 2010); T.F. Jager (1917). Scout, Red Cross and Army Dogs (Arrow Printing Co. New York) (noting, at 45: "Police dogs were first tried out and the idea seems to have originated in the town of Ghent, Belgium, the idea first being merely to have a dog accompany the officers on their rounds at night, probably more as a companion than anything else, although the dogs were trained to attack any one upon whom they were set by the officer.").

Addendum. The comment below is correct. An article from the New York Times of January 19, 1908, The Five Canine Candidates for Police Honors, Who Have Been Absorbing Wisdom in a Select School, are Ready for Business and Promise to Make Things Lively for Criminals, describes Wakefield's travel to Ghent and his efforts to bring back dogs. The article can be retrieved by searching the New York Times archives. The commenter may have additional information but comments to the blog do not come in with email addresses. I can be reached directly at jensminger@msn.com.

Thanks to Axel Van der Borght for several sources used here, and to Jeff Meyer for connecting me with Mr. Van der Borght.

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Should a Bomb Dog's 'Interest' Give Probable Cause to Search A Car Near Protests at an International Conference?

In November 2003, 34 nations gathered in Miami for a summit of the Free Trade Area of the Americas (FTAA). Expecting mass demonstrations, the Miami Police Department (MPD) closed roads and businesses and solicited the assistance of dozens of other law enforcement agencies. MPD had reason to worry. Two years before an FTAA summit in Quebec had resulted in injuries to 101 police officers. MPD had received over 30 bomb threats related to the summit.

On November 19, 2003, David Lippman, a freelance reporter, parked his Nissan pickup in a parking garage at 190 Northeast Third Street near a concentration of government buildings. The police regarded the location as a potential bomb target. An explosives detection dog showed interest in the vehicle without performing a full alert. A sergeant in the bomb squad team decided that in light of the high security environment for the FTAA event, probable cause and exigent circumstances justified a search of the vehicle. An FBI robot was used and an explosives detection expert also put on an 80 lb. protective bomb suit to assist in the search. No bombs or improvised explosives devices were found and an all-clear announcement was made.

Lippman’s vehicle was suspected because Lippman had been seen running from it and then hailing a taxi. Lippman later explained that he was trying to get to a particular FTAA panel discussion that was about to begin. The federal district court determined that there was no arguable probable cause to search the vehicle and no emergency justifying searching the vehicle without a warrant.

“As a matter of law, the Court finds that it is not reasonable for an officer to conclude that a K-9 unit showing interest in a vehicle is equivalent to an alert by a trained dog. To begin, the caselaw holds that an alert is the trained response by a dog when confronted with the presence of the target odor, whereas an interest is a lesser behavior change.” See, e.g. U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). The court said that a behavior change, such as showing interest, might be combined with other evidence to provide probable cause, citing U.S. v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008) (defendant wearing overly large boots which bulged added to drug dog’s interest to provide probable cause to detain). Here, the only evidence the police had to add to the dog’s interest were general concerns about the FTAA summit, and the fact Lippman had an unrelated criminal history.

The district court denied most of the defendant officials’ motions to dismiss and ordered that the action proceed. Lippman v. City of Miami, 2010 WL 2836713 (S.D.Fla. 2010).

The court relied on law from drug dog cases in reaching its conclusion. A policy question might be asked as to whether there could be a different probable cause threshold when a bomb dog shows interest as opposed to a drug dog. Airline luggage that is checked is to be screened by an explosive detection system or other technology, by a manual search, by a bag-match program, or by a canine explosive detection unit “in combination with other means.” 49 U.S.C. 44901(e). No such legislative requirement exists for screening luggage for narcotics.

Explosives detection dogs are expected to meet rigorous standards (often 95% proficiency as compared to 90% for narcotics detection), yet are also expected to work in very difficult environments. The grainy photograph shows one of the first experimental bomb dogs being trained in the snow in Minnesota in 1972. I would hate to be in charge of a police unit when thousands of lives are at stake and a dog’s behavior is unclear. A drug dog trainer once told me, “Sometimes you just wish the damn dog would make up his mind.” Most detection dog handlers probably feel the same way from time to time.

Addendum. I've received several emails criticizing this post for (1) not answering the question posed by the title, and (2) suggesting the answer is that some lower probable cause threshold should apply to explosives detection dogs than applies to narcotics detection dogs. I admit to these failings. I do not believe there should be a different threshold for explosives detection, though I think an argument can be made that reliance on a dog's behavior can vary depending on factual circumstances, as the court acknowledged. That said, if I were a police supervisor in the situation that arose here, barely two years post 9/11, and I had any suspicion that the dog's interest was due to careful packaging of the explosives, I would probably open the car and hope that immunity would limit the liability on my employer, my staff, and last and least, myself. A headline reading "Police Suspected Bomb Laden Car but Feared Violating Owner's Rights" would not be the sort of clipping posted proudly on the lunchroom wall.

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Will Complying with Federal Rules for State Services Encourage States to Drop Separate Laws on Service Animals?

Thirty years ago I practiced as a civil rights lawyer and sometimes still hear from those who knew me in that world. Last week one of my former colleagues asked me why I hadn’t seen that the new Department of Justice rules on service animals will bring about a sea change in state laws about service animals—basically making them irrelevant. He argued that Justice’s rules under Part 35 (not the rules under Part 36 that I blogged about on September 15) mean that federal rules now cover the waterfront of service animal access law.[1]

It seemed to my former colleague that the Obama administration had effectively federalized the regulation of service animal access rules. First, even if there is truth to this, and there is some, the rules were proposed during the Bush administration (on June 17, 2008), to give credit where credit is due.[2] Democrats cannot take sole credit for helping the disabled, nor should they take all blame for creeping federalism.

Second, there are aspects of state law that are not covered by federal rules. State laws, for instance, often allow access to trainers of service animals, an issue seldom mentioned in the federal rules.[3] (This is true of more than half the states. See Chapter 15 of Service and Therapy Dogs in American Society.) Nevertheless, as I’ve noted several places, many states have tended to adopt federal rules, and even where they have not specifically adopted them, will cite them with state statutes in enforcement procedures. The inclusion of service animal rules in Part 35 is likely to increase this tendency to merge federal philosophy into state enforcement.

Let us look at what the new rules that apply to state and local governments will actually mean for them and the users of service animals.

The definitions section of Part 35 adopts the same definition of “service animal” provided in Part 36 and is worth quoting in full:

Service animal means 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. 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 definition.[4]

The Part 35 provision on access to areas of a public entity refers to “participants in services” rather than “program participants” or “clients,” but the intent is identical. Miniature horses get the same break as well when coming into public entities.[5]

In the preamble to the Title II (Part 35) changes, the Department of Justice notes that although Title II regulations did not refer to service animals previously, “title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary in order to avoid discrimination on the basis of disability….”[6] Thus, the Department may see the obligations of state and local governments regarding service animals as already existing and only confirmed by the final rules now issued. If so, this could not easily be gathered from the regulations that apply to public accommodations. The preamble to the 1991 DOJ rules on public accommodations explicitly stated that “[p]ublic entities are excluded from the definition of private entity and therefore cannot qualify as public accommodations under this regulation.”[7]

Public Entities

Although referring to state and local governments in the title to the release, the rules apply to public entities and facilities which are operated or owned by such governments, not to everything state and local governments may themselves regulate. Thus, if state law on service animals is inconsistent with federal law, as is true in many cases,[8] the governments may have different obligations as to entities they operate as opposed to entities they regulate. (Aside from the previously mentioned tendency to merge federal and state rules in state enforcement proceedings.)

A public entity is defined as:

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation [Amtrak], and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).[9]

Thus, state and local governments and anything they run are required to comply with the new service animal requirements. This could include parks, courthouses, government office buildings open to the public, public recreation facilities and play areas, etc.

Breed Limitations and Inconsistent Local Laws

As noted in my blog of September 15, the Department of Justice did not accept breed limitations for dogs. This is true in both Parts 35 and 36. This does not mean that a public entity must accept aggressive animals. The Department changed some wording in its proposals to make this clear. The proposal had allowed, as had the 1991 regulations on public accommodations, for a dog that provided “minimal protection.” This was changed to “non-violent protection” in the final rules. Alerting to “intruders,” also in the language of the 1991 public accommodation regulations and specifically concerning hearing or signal dogs, was changed to “the presence of people or sounds,” to clarify that a dog that might attack intruders was not what the Department had in mind.

Thus, an individual with a pit bull service animal does indeed have a service animal and the public entity, despite being operated by a state or local government with a pit bull ban, would have to accept the animal. The regulation would, however, not preclude the state or local entity from excluding pit bulls that are not service animals, or for that matter, excluding pit bulls that are service animals but are out of control.

Out of Control. Commenters to the 2008 proposed rules had noted that excluding a service animal that is out of control might be unfair where the animal has been provoked. The Department acknowledged that “misbehavior in response to provocation is not always unreasonable.”[10] This creates a certain duty on the public entity:

In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public entity must give the handler a reasonable opportunity to gain control of the animal. Further, if the individual with a disability asserts that the animal was provoked or injured, or if the public entity otherwise has reason to suspect that provocation or injury has occurred, the public entity should seek to determine the facts and, if provocation or injury occurred, the public entity should take effective steps to prevent further provocation or injury, which may include asking the provocateur to leave the public entity.[11]

State and local governments will have an obligation to explain how these rules create responsibilities for government employees, responsibilities that may not exist under state statutory law. Some states criminalize interference with a service animal, and state employees will sometimes have an obligation to inform law enforcement authorities about such instigators.

The preamble to the 2010 rules notes that commenters had argued that public entities should be careful in asserting a “fundamental alteration” as a reason for excluding a service animal. Thus, an animal should not be excluded for barking in an environment where noise is tolerated, such as a rock concert. The preamble states that “the appropriateness of an exclusion can be assessed by reviewing how a public entity addresses comparable situations that do not involve a service animal,” presumably agreeing with that a city-owned rock concert venue should not be able to exclude a dog that barks since it will not exclude a fan who yips, barks, and makes other ridiculous noises. (I am showing my age here.)

Service Animals as Dogs (and Miniature Horses)

In writing about the Part 36 regulations on September 15, I said that monkeys lost. In the preamble to the Part 35 regulations, the Department notes that under the Fair Housing Act, an individual with a disability may have a right to have an animal other than a dog in his or her home. The Department notes that this may conflict with state or local law, but that a request for reasonable accommodation under state or local law must be made under the Fair Housing Act (administered by the Department of Housing and Urban Development).

Zoning law, for instance, might preclude a pot-bellied pig from being in a neighborhood if the pig is classified as livestock not allowed in a residential area. If the pot-bellied pig were to be brought into a public entity, the owner could be excluded under Justice’s rules because only a dog is a service animal (and a miniature horse is something like a service animal). If state law is more expansive as to breeds that can be service animals, the zoning ordinance might also be attacked under that law. This is one case where separate state laws still have a function when they differ from federal rules.

Emotional Support Animals

In distinguishing emotional support animals from psychiatric service animals (which it sees as service animals), the Department of Justice notes that it “believes … that the presence of [emotional support] animals is not required in the context of title II entities such as courthouses, State and local government administrative buildings, and similar title II facilities.”[12] Thus, although you can take your emotional support animal on a plane, you can’t take it to the courthouse or local park with a no-pets rule, again unless some relief is provided under state or local assistance animal law.

As already noted, states that have restricted the definition of service animal to functions involving physical disabilities will now have to apply, in public entity contexts, federal rules treating psychiatric service animals as full-fledged service animals. This is likely to be the most significant change brought about by the Part 35 amendments.

Airports

The preamble to Justice’s 2010 rules states that “[a]irports operated by public entities are not subject to DOT’s ADA regulation, but they are subject to subpart A of title II and to this rule [i.e., to 28 CFR Part 35].”[13] Of course, this is why a person with a service monkey might be able to take it onto an airplane (under DOT Air Carrier Access Act rules), but not into a facility in the airport (because it is not a service animal under DOJ rules). This also means that airports owned by a state or local government are obligated to accept psychiatric service animals into their facilities.

Rail and Bus Transportation

The Americans with Disabilities Act, subchapter II, covers public services.[14] Part A of subchapter II provides rules as to public entities, while Part B applies to public transportation provided by public entities. Public entities include Amtrak and any commuter authority (as defined in section 24102(4)[15] of title 49).[16] The 1991 DOJ regulations provided that to “the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements of this part.”[17] The preamble to the 2010 regulations explains that this means that public transportation services under 49 CFR Part 37 are not covered by the Justice rules of 28 CFR Part 35.

The preamble to DOJ’s 2010 rules elaborates that the “DOT rules apply only to the entity’s transportation facilities, vehicles, or services; the DOJ rules may cover the entity’s activities more broadly.”[18] An example of what this means was provided in the 1991 regulations.

For example, if a public entity operates a transit system and a zoo, DOT's coverage would stop at the transit system's edge, while DOJ's rule would cover the zoo as well.[19]

This presumably would also apply to any facilities run by public entities inside of train stations. Some rail and bus systems are publicly owned and the transportation authorities will often have to enforce service animal rules of both the Departments of Transportation and Justice for different aspects of their operations.

Unusual Service Animals. In the preamble to the 1991 release which contained the original service animal requirements under 49 CFR Part 37, DOT elaborated:

Service animals shall always be permitted to accompany their users in any private or public transportation vehicle or facility. One of the most common misunderstandings about service animals is that they are limited to being guide dogs for persons with visual impairments. Dogs are trained to assist people with a wide variety of disabilities, including individuals with hearing and mobility impairments. Other animals (e.g., monkeys) are sometimes used as service animals as well. In any of these situations, the entity must permit the service animal to accompany its user.[20]

Thus, in enforcing rules in transportation facilities they operate, state and local governments are going to have to determine which federal law must be complied with. Because the Department of Transportation has been more accepting of unusual service animals, such as monkeys, state officials may have to consider that someone getting off a train may be entitled to have the monkey, even if she need not be admitted to a restaurant in the station covered by Department of Justice rules.

Conclusion

My friend from my civil rights era had a good point, and I acknowledge that I was slow to see the full significance of it. State governments are likely to see maintaining separate laws on service animals as something of a burden in the face of the federal rules applying to state and local government services. On the other hand, since only those laws that are more expansive than the federal rules can be enforced in most contexts, state governments may determine that they will, for instance, allow service monkeys into their facilities. Since this does not narrow the federal mandate, it is acceptable. A state could not, however, preclude psychiatric service animals from access to its services even if state law only recognizes service animals as serving individuals with physical disabilities. That would be more restrictive than federal rules allow.

Some states may decide to conform state statutory language to federal rules, but others may leave their laws in place and enforce them when it seems appropriate. I would appreciate any observations from readers about state enforcement actions as the application of Justice’s rules begins to unfold in March 2011. Email me directly at jensminger@msn.com.

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[1] Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services. 75 Fed. Reg. 56164 (September 15, 2010).

[2] 73 Fed. Reg. 34466 (June 17, 2008).

[3] See 41 CFR 102.74 (animals may not be brought onto federal property for other than official purposes, except a disabled person may bring a seeing-eye or guide dog, “or other animal assisting or being trained to assist that individual”) (emphasis added). The language may mean that only the individual who will ultimately use the dog in training can bring it onto federal property. State laws sometimes criminalize exclusion of service animals or causing injury to guide dogs or service animals. Although such laws are not made redundant by the federal rules, they could easily be adapted to cover the definition of service animal provided by the Department of Justice.

[4] 28 CFR 35.104; see also 28 CFR 36.104.

[5] 28 CFR 35.136 and 28 CFR 36.302(c).

[6] 75 Fed. Reg. 56191.

[7] 28 CFR Part 36, Appendix B (56 Fed. Reg. 35546, July 26, 1991).

[8] Ensminger, J. and Breitkopf, F. (2010). Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules. Journal of Animal Law, 6, 1. Some states, for instance, include monkeys in the definition of service animal.

[9] 42 U.S.C. 12131(1); 28 CFR 35.104.

[10] 75 Fed. Reg. 56197.

[11] Id.

[12] 75 Fed. Reg. 56195.

[13] 75 Fed. Reg. 56167.

[14] 42 U.S.C. Chapter 126, subchapter II.

[15] 42 U.S.C. 24102(2) defines “commuter authority” as “a State, local, or regional entity established to provide, or make a contract providing for, commuter rail passenger transportation.”

[16] 42 U.S.C. 12131(1)(C).

[17] 28 CFR 35.102.

[18] Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45584, 45736 (September 6, 1991).

[19] 56 Fed. Reg. 45736.

[20] Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45755 (September 6, 1991). See also the extensive discussion of monkeys and other “unusual service animals” in the 2008 Air Carrier Access Act regulations. 73 Fed. Reg. 27636.

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