After learning why agencies need power, Gwen and Marc now explain how they use it. This episode breaks down the Administrative Procedure Act’s notice-and-comment process — the backbone of modern rulemaking — through the Department of Transportation’s debate over emotional-support animals on planes. This episode follows the DOT’s 2020 service-animal rule to show how notice-and-comment rulemaking actually works.
Listeners see every stage: publishing a proposal in the Federal Register, inviting and reviewing thousands of comments (including a mass-comment campaign for miniature horses), and crafting a final rule with a detailed preamble explaining the agency’s reasoning. The hosts show why public comments must be substantive, not just popular, and how agencies balance accessibility, safety, and consistency with laws like the ADA.
The discussion extends to the backup-camera mandate and the “ossification” problem — how decades of added procedures have slowed rulemaking to a crawl. Still, notice and comment remains the most democratic tool in the administrative state: it forces agencies to justify decisions, consider real-world impacts, and show their work.
Key Concepts: Notice and Comment Rulemaking | Administrative Procedure Act | Federal Register | Mass Comment Campaigns | Preamble | Ossification | Public Participation Examples: DOT service-animal rule | Miniature horse debate | Backup camera mandate | Benzene rule timeline
Takeaway: Rulemaking may be slow, but it’s democracy in action — transparency and accountability woven into the machinery of expertise.
🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com
00:00:13 --> 00:00:16 Hello, and welcome to Administrative Remedies,
00:00:16 --> 00:00:18 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:23 College of Law. I'm Gwendolyn Savitz, an Associate
00:00:23 --> 00:00:25 Professor here at TU and the Associate Dean of
00:00:25 --> 00:00:28 Research and Intellectual Life. And I'm Mark
00:00:28 --> 00:00:30 Rourke. I'm the Dean of the College of Law. We'll
00:00:30 --> 00:00:32 be breaking down complex doctrines with real
00:00:32 --> 00:00:34 -life analogies and examples to demystify the
00:00:34 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:38 to understand how government actually works.
00:00:39 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:43 gets things done. and it's not through Congress
00:00:43 --> 00:00:45 for reasons we'll be addressing over the course
00:00:45 --> 00:00:49 of this series. So, Mark, before we start talking
00:00:49 --> 00:00:52 about today's topic, I want to play a fun little
00:00:52 --> 00:00:56 game. That was not what I bargained for on this
00:00:56 --> 00:01:00 podcast. Nevertheless, I'm going to give you
00:01:00 --> 00:01:03 a list of animals, and you can tell me which
00:01:03 --> 00:01:06 ones someone did not try to bring on an airplane
00:01:06 --> 00:01:09 as an emotional support animal. Okay. Ready.
00:01:09 --> 00:01:15 All right. Dog. Peacock. Pig, turkey, sheep,
00:01:15 --> 00:01:19 squirrel, or duck? I gotta go, it's either gotta
00:01:19 --> 00:01:25 be peacock or pig. I'm gonna go peacock. So actually
00:01:25 --> 00:01:28 it's sheep. Sheep is the one out of that list
00:01:28 --> 00:01:30 I was not able to find a documented instance
00:01:30 --> 00:01:33 of. So no one has tried to bring a sheep onto
00:01:33 --> 00:01:36 an airplane as an emotional support animal? To
00:01:36 --> 00:01:38 my knowledge. It's possible somebody's done that
00:01:38 --> 00:01:39 too. Have they tried to bring a sheep on a plane
00:01:39 --> 00:01:42 for other reasons? I would imagine there are
00:01:42 --> 00:01:44 reasons people need to fly sheep. Okay. Are there
00:01:44 --> 00:01:46 other animals that people have tried to bring
00:01:46 --> 00:01:48 on the planes as emotional support animals? There
00:01:48 --> 00:01:50 certainly are a lot of different emotional support
00:01:50 --> 00:01:54 animals. But the idea that people were bringing
00:01:54 --> 00:01:56 all of these different types of animals onto
00:01:56 --> 00:01:59 the plane led to a major rulemaking by the Department
00:01:59 --> 00:02:02 of Transportation in 2020. And it is a perfect
00:02:02 --> 00:02:03 example of what we're going to be talking about
00:02:03 --> 00:02:06 today, how agencies make rules. So we're going
00:02:06 --> 00:02:09 to see how this process works. Exactly. We've
00:02:09 --> 00:02:12 spent... a bunch of episodes so far talking about
00:02:12 --> 00:02:16 why we need agencies, how Congress delegates
00:02:16 --> 00:02:18 authority to them, why Congress needs to delegate,
00:02:19 --> 00:02:22 what the constitutional limits are. But now we're
00:02:22 --> 00:02:25 going to watch the process unfold from people
00:02:25 --> 00:02:28 should stop bringing peacocks on planes to here's
00:02:28 --> 00:02:31 the final rule about service animals. So buried
00:02:31 --> 00:02:34 in that rulemaking, is there a controversy? There
00:02:34 --> 00:02:37 absolutely is. It's not about peacocks. Virtually
00:02:37 --> 00:02:39 nobody thinks peacocks should be on planes. That's
00:02:39 --> 00:02:43 too bad. It's about miniature horses as service
00:02:43 --> 00:02:48 animals. Wait, like ponies? Not ponies. Miniature
00:02:48 --> 00:02:53 horses. Different thing. All right. I am so excited
00:02:53 --> 00:02:56 to hear about miniature horses as service animals.
00:02:56 --> 00:02:59 Fantastic. So let's start with the hierarchy.
00:02:59 --> 00:03:02 We've talked about it before. What is the hierarchy
00:03:02 --> 00:03:05 of law? So we started the Constitution, which
00:03:05 --> 00:03:08 is a supreme law of land. The Constitution gives
00:03:08 --> 00:03:12 Congress the power to enact statutes in certain
00:03:12 --> 00:03:15 areas. And then agencies created regulations.
00:03:16 --> 00:03:19 So if a regulation conflicts with a statute,
00:03:19 --> 00:03:22 what happens to the regulation? I think the regulation
00:03:22 --> 00:03:25 would be null. Yes, exactly. The regulation is
00:03:25 --> 00:03:27 a lower level. If it conflicts with a higher
00:03:27 --> 00:03:29 level, it's invalid. Same thing if a statute
00:03:29 --> 00:03:31 conflicts with the Constitution or the regulation
00:03:31 --> 00:03:35 conflicts with the Constitution. However. In
00:03:35 --> 00:03:37 the absence of that, all three are legally binding.
00:03:37 --> 00:03:40 When the EPA sets a limit on particulate matter
00:03:40 --> 00:03:41 in the air, when the FDA defines what counts
00:03:41 --> 00:03:44 as milk, those aren't suggestions, they're law.
00:03:44 --> 00:03:47 Break them, you could be fined, shut down, or
00:03:47 --> 00:03:49 potentially prosecuted. But how does an agency
00:03:49 --> 00:03:52 go from Congress saying something broad, like
00:03:52 --> 00:03:54 make sure air travel is accessible to people
00:03:54 --> 00:03:58 with disabilities, to specific rules about which
00:03:58 --> 00:04:03 animals can fly, like miniature horses? That's
00:04:03 --> 00:04:06 where the APA comes in. This is what we talked
00:04:06 --> 00:04:08 about at the very beginning. This is the rules
00:04:08 --> 00:04:12 behind the rules. But what does the APA actually
00:04:12 --> 00:04:16 do? It tells agencies how they can make rules.
00:04:17 --> 00:04:20 It is the instruction manual. And most importantly,
00:04:20 --> 00:04:24 for our purposes today, it sets up the idea of
00:04:24 --> 00:04:26 notice and comment rulemaking. So why did we
00:04:26 --> 00:04:31 need a law about this in 1946? We've talked about
00:04:31 --> 00:04:33 the rise of the agencies. This really started
00:04:33 --> 00:04:36 in the 30s. By the 40s, people were concerned
00:04:36 --> 00:04:40 about how big the agencies had gotten and how
00:04:40 --> 00:04:42 much power they had. So this was an attempt to
00:04:42 --> 00:04:45 make sure that these unelected agency officials
00:04:45 --> 00:04:48 weren't just making up rules on their own. So
00:04:48 --> 00:04:51 this is about making sure agencies have to explain
00:04:51 --> 00:04:53 themselves to the general public. It's about
00:04:53 --> 00:04:55 making sure they have to explain themselves and
00:04:55 --> 00:04:57 making sure that the public has a voice in the
00:04:57 --> 00:05:01 process. So let's talk about how it works. Step
00:05:01 --> 00:05:04 one, the agency has to publish a notice of proposed
00:05:04 --> 00:05:07 rulemaking in the Federal Register. So what's
00:05:07 --> 00:05:10 the Federal Register? That is essentially the
00:05:10 --> 00:05:13 government's daily newspaper. Every day, they
00:05:13 --> 00:05:15 publish all sorts of proposed rules, final rules,
00:05:16 --> 00:05:18 agency notices, all sorts of official documents.
00:05:19 --> 00:05:21 It's how agencies and the government in general
00:05:21 --> 00:05:24 communicates with the public. Last year, there
00:05:24 --> 00:05:26 were over 100 pages in the Federal Register.
00:05:27 --> 00:05:31 This year, there'll be fewer. So that's step
00:05:31 --> 00:05:33 one. The agency has to publish the notice of
00:05:33 --> 00:05:37 proposed rulemaking. Step two, after that, we
00:05:37 --> 00:05:40 start the comment period. It's usually 30 to
00:05:40 --> 00:05:42 60 days. It can be longer in cases of big rules.
00:05:43 --> 00:05:44 Sometimes agencies will also go through and extend
00:05:44 --> 00:05:48 it. During this time, anyone can submit a comment.
00:05:48 --> 00:05:52 So this is sort of like whenever someone tries
00:05:52 --> 00:05:54 to build a house outside the zoning requirements.
00:05:55 --> 00:05:59 And the city gives you a notice that says you
00:05:59 --> 00:06:00 can show up for a hearing and give comments.
00:06:01 --> 00:06:04 Yes, it's like that, except on a huge scale and
00:06:04 --> 00:06:08 without the invitation. So anybody at all who
00:06:08 --> 00:06:09 wants to can comment. We would expect to hear
00:06:09 --> 00:06:12 from industries. We'll hear from individual citizens
00:06:12 --> 00:06:16 and advocacy groups. But literally anybody in
00:06:16 --> 00:06:18 the world can comment. If you are in Zambia and
00:06:18 --> 00:06:20 you have a really strong feeling about whatever
00:06:20 --> 00:06:21 the federal government has proposed, you can
00:06:21 --> 00:06:24 comment. And they have to read all of those comments?
00:06:25 --> 00:06:29 They do. And for major rules, this could be thousands
00:06:29 --> 00:06:32 or even millions of comments. Let me ask a side
00:06:32 --> 00:06:34 question on that. Has anyone ever tried to game
00:06:34 --> 00:06:38 the comment period by logging down the comments
00:06:38 --> 00:06:42 with so many inane comments that the agency effectively
00:06:42 --> 00:06:45 can't do its job? We'll talk about when people
00:06:45 --> 00:06:48 are submitting duplicate comments later, but...
00:06:48 --> 00:06:50 The basic idea is if they're really duplicative,
00:06:50 --> 00:06:53 the agency doesn't have somebody who is sitting
00:06:53 --> 00:06:55 there reading the same thing over and over again.
00:06:55 --> 00:06:58 They'll functionally be informed that this comment
00:06:58 --> 00:06:59 was submitted and it was submitted by this many
00:06:59 --> 00:07:02 people. Got it. Step three, the agency reads
00:07:02 --> 00:07:06 the comments. Step four, the agency revises the
00:07:06 --> 00:07:08 rule if it needs to based on these comments and
00:07:08 --> 00:07:11 then publishes the final rule along with a preamble.
00:07:11 --> 00:07:14 So this sounds a little basic, but what's a preamble?
00:07:15 --> 00:07:18 The preamble is... where the agency tries to
00:07:18 --> 00:07:20 explain everything that's happened. It lays out
00:07:20 --> 00:07:22 what the legal authority for the rule is. It
00:07:22 --> 00:07:25 responds to the significant issues that the comments
00:07:25 --> 00:07:27 have raised. It explains changes between the
00:07:27 --> 00:07:30 proposed and final rule and explains why the
00:07:30 --> 00:07:33 agency made the decisions it did. And step five?
00:07:34 --> 00:07:36 Step five is when this actually becomes law.
00:07:36 --> 00:07:40 It's usually 30 days after publication, but they
00:07:40 --> 00:07:43 can go longer. There is generally a period of
00:07:43 --> 00:07:45 time between when the final rule comes out and
00:07:45 --> 00:07:47 when it will actually go into effect. Can these
00:07:47 --> 00:07:50 rules ever be challenged in court? Absolutely.
00:07:50 --> 00:07:52 We could think of that as step six. The person
00:07:52 --> 00:07:55 needs to have standing to challenge it. I'm sure
00:07:55 --> 00:07:57 we'll spend an entire episode at least talking
00:07:57 --> 00:08:00 about challenging them. But before we get to
00:08:00 --> 00:08:03 that, let's see the process in action. So going
00:08:03 --> 00:08:07 back to the peacocks and essentially everything
00:08:07 --> 00:08:10 in the world but sheep. The Department of Transportation
00:08:10 --> 00:08:13 regulates air travel under the Air Carrier Access
00:08:13 --> 00:08:17 Act. And that says that airlines can't discriminate
00:08:17 --> 00:08:20 against people with disabilities. So this means
00:08:20 --> 00:08:22 they need to allow them to have service animals
00:08:22 --> 00:08:25 in the cabin. So someone with a guide dog can
00:08:25 --> 00:08:28 bring the dog on the plane. Right. Which is good.
00:08:28 --> 00:08:30 We want people to be able to fly even if they
00:08:30 --> 00:08:33 need a guide dog. But the definition of service
00:08:33 --> 00:08:36 animal had gotten really broad. People were starting
00:08:36 --> 00:08:37 to claim that all these emotional support animals
00:08:37 --> 00:08:41 were service animals. And there were a bunch
00:08:41 --> 00:08:43 of reasons for this. Service animals were able
00:08:43 --> 00:08:47 to travel free. So you could choose to pay for
00:08:47 --> 00:08:50 your dog to come with you on the plane, or you
00:08:50 --> 00:08:52 could say your dog was an emotional support dog,
00:08:52 --> 00:08:55 in which case it could travel for free. Same
00:08:55 --> 00:08:58 with your emotional support peacock, although
00:08:58 --> 00:09:01 the airline tried to refuse that one. Part of
00:09:01 --> 00:09:03 the reason the airlines were raising complaints
00:09:03 --> 00:09:06 is because there were concerns about safety and
00:09:06 --> 00:09:10 sanitation. And so DOT decided to tighten up
00:09:10 --> 00:09:14 the rules. It did. In January 2020, they published
00:09:14 --> 00:09:16 a proposed rule. Can you read what their new
00:09:16 --> 00:09:19 definition of service animal was? Sure. Service
00:09:19 --> 00:09:22 animal means a dog that is individually trained
00:09:22 --> 00:09:24 to do work or perform tasks for the benefit of
00:09:24 --> 00:09:27 a qualified individual with a disability, including
00:09:27 --> 00:09:30 physical, sensory, psychiatric, intellectual
00:09:30 --> 00:09:33 or other mental disability. Emotional support
00:09:33 --> 00:09:36 animals, comfort animals, companionship animals
00:09:36 --> 00:09:39 and service animals in training are not service
00:09:39 --> 00:09:43 animals for the purpose of this part. So definitely
00:09:43 --> 00:09:46 that establishes that we're not. going to count
00:09:46 --> 00:09:49 emotional support animals, but notice that service
00:09:49 --> 00:09:53 animal is defined as just a dog. This means ducks,
00:09:53 --> 00:09:55 squirrels, and everything else will no longer
00:09:55 --> 00:09:58 qualify. I'm guessing this did not go over well.
00:09:58 --> 00:10:02 That would be an understatement. So they published
00:10:02 --> 00:10:04 a proposed rule. Next step is the comment period
00:10:04 --> 00:10:08 opens and people had very strong opinions. Before
00:10:08 --> 00:10:10 we look at the actual comments, let's talk about
00:10:10 --> 00:10:13 what makes a comment effective. Not all comments
00:10:13 --> 00:10:16 are effective. So what do you mean? So you could
00:10:16 --> 00:10:18 think of it like we're in a town hall meeting.
00:10:18 --> 00:10:20 The mayor's proposed a new parking rule for Main
00:10:20 --> 00:10:23 Street. And one person stands up and says, this
00:10:23 --> 00:10:26 is stupid and I hate it. Whereas another person
00:10:26 --> 00:10:28 stands up and says, this isn't going to work
00:10:28 --> 00:10:30 because of the street cleaning schedule on Tuesdays.
00:10:30 --> 00:10:32 And there's only one loading zone for the grocery
00:10:32 --> 00:10:34 store, which will create problems for deliveries.
00:10:35 --> 00:10:37 Which comment is the mayor more likely to address?
00:10:37 --> 00:10:39 The second one, because it has more specifics.
00:10:40 --> 00:10:42 Yeah, it has actual reasoning. It's presenting
00:10:42 --> 00:10:45 specific problems with the proposal. It's not
00:10:45 --> 00:10:47 just saying that they like it or don't like it.
00:10:47 --> 00:10:50 Same thing with comments for agencies. They're
00:10:50 --> 00:10:52 looking for comments that are specific, that
00:10:52 --> 00:10:54 are supported by evidence, that focus on the
00:10:54 --> 00:10:57 impact. And especially if there's an issue that
00:10:57 --> 00:10:59 the agency has overlooked, that's some of the
00:10:59 --> 00:11:01 most important stuff to put in a comment. It's
00:11:01 --> 00:11:04 not a vote. If a million people submit comments
00:11:04 --> 00:11:06 saying they don't like the rule, the agency doesn't
00:11:06 --> 00:11:09 have to change it. Right. It's really important.
00:11:09 --> 00:11:12 This is absolutely not a vote. The agency isn't
00:11:12 --> 00:11:14 doing a poll. They're really looking for information
00:11:14 --> 00:11:16 they might have missed. And part of that information
00:11:16 --> 00:11:19 might be that a bunch of people really don't
00:11:19 --> 00:11:21 like the decision the agency is taking. But that
00:11:21 --> 00:11:23 doesn't mean that they need to follow whatever
00:11:23 --> 00:11:26 those people want. All right. Let me show you
00:11:26 --> 00:11:29 something from this rulemaking. Read the comments.
00:11:29 --> 00:11:32 I've substituted in our dog's names for the actual
00:11:32 --> 00:11:37 people. OK, so my name is JP. I thank you for
00:11:37 --> 00:11:38 the opportunity to make a public comment on proposed
00:11:38 --> 00:11:42 amendments to the Air Carrier Access Act. I am
00:11:42 --> 00:11:45 asking that the ACAA continue to recognize miniature
00:11:45 --> 00:11:48 service horses and give them the same protections
00:11:48 --> 00:11:50 in the air that the ADA gives them in public.
00:11:51 --> 00:11:53 I understand that one of the biggest concerns
00:11:53 --> 00:11:56 regarding the miniature service horses is whether
00:11:56 --> 00:11:58 they can be potty trained. Miniature service
00:11:58 --> 00:12:01 horses, like service dogs, can be trained to
00:12:01 --> 00:12:03 eliminate on cue, which is a requirement for
00:12:03 --> 00:12:06 them to be recognized as a service animal per
00:12:06 --> 00:12:09 the ADA guidelines. All right, stop there. So
00:12:09 --> 00:12:12 now we're going to look at another comment. This
00:12:12 --> 00:12:15 one is from a person we're going to call Molly.
00:12:15 --> 00:12:18 Can you read this one? Sure. My name is Molly.
00:12:18 --> 00:12:20 I thank you for the opportunity to make the public
00:12:20 --> 00:12:22 comment on the proposed amendments to the Air
00:12:22 --> 00:12:26 Carrier Access Act. I am asking the ACAA continue
00:12:26 --> 00:12:28 to recognize miniature service horses and give
00:12:28 --> 00:12:31 them the same protections in the air that the
00:12:31 --> 00:12:33 ADA gives them in public. I understand that one
00:12:33 --> 00:12:35 of the biggest concerns regarding the miniature
00:12:35 --> 00:12:38 service horses is whether they can be potty trained.
00:12:38 --> 00:12:41 Wait, this is the exact same comment word for
00:12:41 --> 00:12:44 word. It is. This was an example of a mass comment
00:12:44 --> 00:12:47 campaign. Someone creates a template, distributes
00:12:47 --> 00:12:49 it, and... In this case, hundreds, but it can
00:12:49 --> 00:12:52 be thousands or millions of people submit the
00:12:52 --> 00:12:54 exact same text, somehow changing their name.
00:12:54 --> 00:12:57 So does that work? It really doesn't. Like we
00:12:57 --> 00:13:00 said, this isn't a popularity contest. The agency
00:13:00 --> 00:13:03 views this as essentially one comment with 400
00:13:03 --> 00:13:07 signatures, not 400 separate comments. Any argument
00:13:07 --> 00:13:10 that's raised, they would respond to once. They
00:13:10 --> 00:13:14 wouldn't be responding to individually. If the
00:13:14 --> 00:13:16 template makes a good argument, that is something
00:13:16 --> 00:13:18 the agency is going to have to consider, but
00:13:18 --> 00:13:20 it would also be something they would have to
00:13:20 --> 00:13:22 consider if it just received it once. Okay, so
00:13:22 --> 00:13:25 what were the arguments? Let's keep reading the
00:13:25 --> 00:13:28 JP comment. All right. Miniature horses can be
00:13:28 --> 00:13:32 trained to, one, go on cue, two, into a bag,
00:13:32 --> 00:13:35 so on longer flights, the miniature service horse
00:13:35 --> 00:13:38 can eliminate hygienically, and three, use the
00:13:38 --> 00:13:40 same service animal areas in the airports provided
00:13:40 --> 00:13:43 for service dogs. Miniature horses, just like
00:13:43 --> 00:13:45 service dogs, can be trained to be able to go
00:13:45 --> 00:13:49 through TSA checkpoints safely and without any
00:13:49 --> 00:13:51 gear on, and they can also be trained to lay
00:13:51 --> 00:13:53 down on command for emergency situations in flight.
00:13:54 --> 00:13:56 I understand the thought of the size of the miniature
00:13:56 --> 00:13:59 horse can be daunting, but because the ADA states
00:13:59 --> 00:14:01 the height of the miniature service horse should
00:14:01 --> 00:14:05 be generally 34 inches or shorter, in most cases,
00:14:05 --> 00:14:07 a Great Dane will be larger and take up more
00:14:07 --> 00:14:10 room than a miniature service horse. So that's
00:14:10 --> 00:14:13 part of the argument. So more about why somebody
00:14:13 --> 00:14:15 might specifically want a miniature horse instead
00:14:15 --> 00:14:19 of a dog. Most people don't understand what tasks
00:14:19 --> 00:14:22 a miniature service horse can perform for people
00:14:22 --> 00:14:24 with disabilities and that in some cases miniature
00:14:24 --> 00:14:27 service horses can be better suited than dogs
00:14:27 --> 00:14:30 for specific service tasks. For example, miniature
00:14:30 --> 00:14:32 horses make excellent diabetic alert service
00:14:32 --> 00:14:35 animals as they already naturally detect glucose
00:14:35 --> 00:14:38 levels in grass. Since they are already sensitive
00:14:38 --> 00:14:41 to registering glucose levels, they have an advantage
00:14:41 --> 00:14:44 when learning to alert to high or low glucose
00:14:44 --> 00:14:49 in their handler's saliva. While it takes roughly
00:14:49 --> 00:14:51 the same amount of time to train a mobility service
00:14:51 --> 00:14:54 dog as a mobility miniature service horse, about
00:14:54 --> 00:14:56 two years, a miniature service horse can be in
00:14:56 --> 00:14:59 active service with their handler 25 plus years.
00:14:59 --> 00:15:02 This is in contrast to a mobility service dog,
00:15:02 --> 00:15:05 which are often large or extra large breed dogs
00:15:05 --> 00:15:07 and are most often retired after five to seven
00:15:07 --> 00:15:10 years of service. So there are some important
00:15:10 --> 00:15:13 points they're bringing out here. Yeah, it's
00:15:13 --> 00:15:15 actually interesting. I didn't know that horses
00:15:15 --> 00:15:19 could do all that. This is a pretty substantive
00:15:19 --> 00:15:21 comment, especially for part of a mass comment
00:15:21 --> 00:15:24 campaign. It's making specific claims about their
00:15:24 --> 00:15:26 capabilities and talking about the longevity
00:15:26 --> 00:15:29 issue. If you're going to get a service animal,
00:15:29 --> 00:15:32 one that lives 25 years is certainly going to
00:15:32 --> 00:15:33 have an advantage over one that lives five to
00:15:33 --> 00:15:36 seven years. So did the agency change the rule?
00:15:37 --> 00:15:40 Let's look at what the agency said. In the preamble,
00:15:41 --> 00:15:42 this is where the agency needs to respond to
00:15:42 --> 00:15:44 the comments that they got. Can you read what
00:15:44 --> 00:15:46 they said about the support they received for
00:15:46 --> 00:15:50 miniature horses? More than 400 individual commentators
00:15:50 --> 00:15:53 supported also including miniature horses in
00:15:53 --> 00:15:54 the department's definition of a service animal.
00:15:55 --> 00:15:57 These commentators noted that some individuals
00:15:57 --> 00:16:00 with disabilities may not be able to use dogs
00:16:00 --> 00:16:03 to accommodate their disability because of allergies
00:16:03 --> 00:16:06 or religious and or cultural reasons. Furthermore,
00:16:06 --> 00:16:09 these commentators note that excluding miniature
00:16:09 --> 00:16:12 horses runs counter to DOT's mission of promoting
00:16:12 --> 00:16:15 consistency among federal regulations, as DOJ
00:16:15 --> 00:16:18 requires regulated entities in certain circumstances
00:16:18 --> 00:16:21 to recognize miniature horses as a reasonable
00:16:21 --> 00:16:24 accommodation under the ADA. So they acknowledged
00:16:24 --> 00:16:26 some of the arguments in the comment. They also
00:16:26 --> 00:16:30 talked about opposing comments. Keep going. Airlines
00:16:30 --> 00:16:33 and other industry stakeholders who oppose the
00:16:33 --> 00:16:36 inclusion of miniature horses argued that miniature
00:16:36 --> 00:16:38 horses are too big to be accommodated in the
00:16:38 --> 00:16:41 cabin of an aircraft, and that potential safety
00:16:41 --> 00:16:43 concerns could arise from transporting miniature
00:16:43 --> 00:16:48 horses in the aircraft cabin. A4A asserted that
00:16:48 --> 00:16:51 a miniature horse's size, weight, and inability
00:16:51 --> 00:16:54 to curl up in a passenger's allotted foot space
00:16:54 --> 00:16:57 would pose a serious risk of injury to passengers
00:16:57 --> 00:17:00 and crew during a moderate to severe turbulence
00:17:00 --> 00:17:03 or an emergency situation due to the animal's
00:17:03 --> 00:17:06 weight and size. American Airlines likewise commented
00:17:06 --> 00:17:08 that miniature horses have hooves or are unable
00:17:08 --> 00:17:11 to manage their elimination functions the way
00:17:11 --> 00:17:14 a train service dog can, and that a miniature
00:17:14 --> 00:17:16 horse's hooves could puncture an aircraft evacuation
00:17:16 --> 00:17:20 slide in the event of evacuation, potentially
00:17:20 --> 00:17:23 disabling it. Notice in this, they are raising
00:17:23 --> 00:17:26 an issue that that mass comment didn't address,
00:17:26 --> 00:17:28 which is what will happen if we get these hooves
00:17:28 --> 00:17:32 on one of these inflatable slides. Yeah, so these
00:17:32 --> 00:17:34 seem like they're specific practical concerns.
00:17:35 --> 00:17:38 A hoof, punch ring, and evacuation slide is not
00:17:38 --> 00:17:41 something I would have thought of, but that does
00:17:41 --> 00:17:44 seem like a legitimate safety issue. Yes, this
00:17:44 --> 00:17:46 is where the agency's expertise come in. They
00:17:46 --> 00:17:48 have to weigh these competing concerns. It does
00:17:48 --> 00:17:50 make sense that we would want to allow people
00:17:50 --> 00:17:53 who have a horse to travel, but it also makes
00:17:53 --> 00:17:55 sense that if there's a lot of turbulence, you
00:17:55 --> 00:17:58 probably don't want a miniature service horse
00:17:58 --> 00:18:01 landed on you. So what did they decide? You want
00:18:01 --> 00:18:03 to read the final rule definition for a service
00:18:03 --> 00:18:06 animal? Yeah. So service animal means a dog,
00:18:06 --> 00:18:08 regardless of breed or type, that is individually
00:18:08 --> 00:18:11 trained to do work or perform tasks for the benefit
00:18:11 --> 00:18:14 of the qualified individual with a disability.
00:18:14 --> 00:18:18 So miniature horses are out. Yes, they're out
00:18:18 --> 00:18:20 despite the fact that there were 400 comments
00:18:20 --> 00:18:23 supporting them. This is, again, the notice and
00:18:23 --> 00:18:27 comment process is not a vote. If we viewed it
00:18:27 --> 00:18:31 as 400 votes for miniature horses and a handful
00:18:31 --> 00:18:33 of votes from the airlines against miniature
00:18:33 --> 00:18:35 horses, it might seem like they should have won.
00:18:35 --> 00:18:37 But that's not what the agency is looking at.
00:18:37 --> 00:18:40 The agency is looking at what should we require.
00:18:40 --> 00:18:43 That doesn't mean that individual airlines can't
00:18:43 --> 00:18:46 decide they will allow horses on, just that they're
00:18:46 --> 00:18:48 not required to. But if DOT decided that safety
00:18:48 --> 00:18:51 concerns were dispositive, why didn't they just
00:18:51 --> 00:18:53 ignore the comments altogether? Why go through
00:18:53 --> 00:18:56 this whole process? The point of the process
00:18:56 --> 00:18:58 is that it's forcing them to confront arguments
00:18:58 --> 00:19:01 they might not have fully considered. So in this,
00:19:01 --> 00:19:03 we had a bunch of disability advocates who made
00:19:03 --> 00:19:06 the point that excluding miniature horses conflicted
00:19:06 --> 00:19:09 with the ADA, which allows them in public accommodations.
00:19:09 --> 00:19:11 There's a consistent argument that DOT had to
00:19:11 --> 00:19:14 address. They also had to explain why the airline
00:19:14 --> 00:19:18 context is different. They did that. They explained
00:19:18 --> 00:19:20 that there are unique considerations in an aircraft
00:19:20 --> 00:19:23 cabin. So even though the miniature horse advocates
00:19:23 --> 00:19:26 lost, their comments forced the agency to justify
00:19:26 --> 00:19:29 its decision more thoroughly. Yes. And those
00:19:29 --> 00:19:30 justifications matter because when somebody tries
00:19:30 --> 00:19:34 to challenge the rule in court, one of the things
00:19:34 --> 00:19:36 the court will be looking at is, did the agency
00:19:36 --> 00:19:39 consider the relevant factors? And did the agency
00:19:39 --> 00:19:41 provide a reasoned explanation for the choices
00:19:41 --> 00:19:45 that it made? Let's pause for a decoder ring
00:19:45 --> 00:19:47 moment. We've thrown around a lot of terms. One
00:19:47 --> 00:19:49 was the Federal Register. This is the official
00:19:49 --> 00:19:52 daily publication where agencies publish all
00:19:52 --> 00:19:56 of these proposed final rules, etc. This is something
00:19:56 --> 00:19:59 that virtually everybody accesses online now
00:19:59 --> 00:20:01 that didn't used to be the case. It used to be
00:20:01 --> 00:20:03 that you needed to have access to a paper copy
00:20:03 --> 00:20:04 of the Federal Register to see what the government
00:20:04 --> 00:20:07 was doing. We also talked about a notice of proposed
00:20:07 --> 00:20:10 rulemaking. This is what agencies publish that
00:20:10 --> 00:20:12 officially starts the process. And we talked
00:20:12 --> 00:20:15 about the preamble. This is the explanation that's
00:20:15 --> 00:20:17 accompanying the final rule where the agency
00:20:17 --> 00:20:19 responds to the comments, explains its reasoning,
00:20:19 --> 00:20:22 and justifies its decisions. In other words,
00:20:22 --> 00:20:26 agencies have to show their work. Exactly. Let's
00:20:26 --> 00:20:28 talk about a thing that you probably interact
00:20:28 --> 00:20:31 with every day. And that is the backup camera
00:20:31 --> 00:20:34 in your car. I mean, I'd like to think I interact
00:20:34 --> 00:20:37 with miniature horses every day, but that's...
00:20:37 --> 00:20:39 Clearly not the case. But yes, I do use my backup
00:20:39 --> 00:20:42 camera quite often. I know. They are fantastic.
00:20:42 --> 00:20:46 So the reason they're in all cars now is because
00:20:46 --> 00:20:48 in 2014, the National Highway Traffic Safety
00:20:48 --> 00:20:50 Administration finalized a rule that required
00:20:50 --> 00:20:53 all new cars to have rear view cameras. That
00:20:53 --> 00:20:56 rule went through notice and comment. Auto manufacturers
00:20:56 --> 00:20:59 commented on cost. Safety advocates comment on
00:20:59 --> 00:21:01 the life saved. Consumer groups complimented
00:21:01 --> 00:21:03 on how quickly it should be implemented. Why
00:21:03 --> 00:21:07 you would want a backup camera. Oh. So that you
00:21:07 --> 00:21:12 don't run over people behind you. Yes, because
00:21:12 --> 00:21:14 the thing about little kids is that they're little
00:21:14 --> 00:21:16 and they're really hard to see if they happen
00:21:16 --> 00:21:19 to be standing right behind a car. So a backup
00:21:19 --> 00:21:22 camera is what lets you see the kid and not run
00:21:22 --> 00:21:25 over the kid. A really great thing. Yeah, that's
00:21:25 --> 00:21:30 a positive innovation. It is, but it still took
00:21:30 --> 00:21:34 years. This was first proposed in 2010. There
00:21:34 --> 00:21:37 were thousands of comments. They revised the
00:21:37 --> 00:21:40 rule and proposed it again and didn't eventually
00:21:40 --> 00:21:43 finalize it until 2014. Why did it take so long?
00:21:45 --> 00:21:48 Because the APA says that the agency has to do
00:21:48 --> 00:21:51 things properly. They have to go through the
00:21:51 --> 00:21:52 comments. They have to look at costs and benefits.
00:21:53 --> 00:21:55 They have to coordinate with other agencies.
00:21:55 --> 00:21:58 If it's an economically significant rule with
00:21:58 --> 00:22:00 impact over 100 million and backup cameras would
00:22:00 --> 00:22:02 be an economically significant rule, they have
00:22:02 --> 00:22:04 to get approval from the Office of Information
00:22:04 --> 00:22:06 and Regulatory Affairs in the White House. So
00:22:06 --> 00:22:08 there's more process than just notice and comment.
00:22:09 --> 00:22:12 There is. There are a lot of things. We talked
00:22:12 --> 00:22:15 about kind of a streamlined, simplified version
00:22:15 --> 00:22:19 of this. But all of these requirements mean that
00:22:19 --> 00:22:21 people have talked about the ossification of
00:22:21 --> 00:22:23 the rulemaking proxy. First, do you know what
00:22:23 --> 00:22:28 ossification means? No, I don't. Ossification
00:22:28 --> 00:22:32 is bone formation. So we're talking about the
00:22:32 --> 00:22:35 fact that the rulemaking process. has become
00:22:35 --> 00:22:39 so calcified with different requirements that
00:22:39 --> 00:22:42 it is hardening into bone. I was going to say
00:22:42 --> 00:22:46 the creation of rust on metals, but then that's
00:22:46 --> 00:22:50 the oxidation process. So yes, I did not know
00:22:50 --> 00:22:55 ossification was the bone problem. So on one
00:22:55 --> 00:22:57 hand, we want thoroughness. We want agencies
00:22:57 --> 00:22:59 to think about the consequences, consider different
00:22:59 --> 00:23:02 perspectives, but... When the process gets too
00:23:02 --> 00:23:05 burdensome, agencies avoid the rulemaking process
00:23:05 --> 00:23:08 altogether. So what do they do instead? We'll
00:23:08 --> 00:23:10 have to go into more detail on another episode,
00:23:10 --> 00:23:14 but they can issue guidance documents or do interpretive
00:23:14 --> 00:23:17 rules, other things that tell regulated parties
00:23:17 --> 00:23:19 what the agency is thinking without making it
00:23:19 --> 00:23:23 a legally binding requirement. So they're avoiding
00:23:23 --> 00:23:26 the public processes. They are, and that can
00:23:26 --> 00:23:28 mean that they're not getting the feedback they
00:23:28 --> 00:23:30 would be. So we've created this elaborate process
00:23:30 --> 00:23:33 to ensure accountability, but it's so elaborate
00:23:33 --> 00:23:36 that agencies avoid it, which reduces accountability.
00:23:37 --> 00:23:41 Yes, that's one of the central dilemmas in modern
00:23:41 --> 00:23:43 administrative law. There isn't an easy solution
00:23:43 --> 00:23:46 here. Efforts that we take to streamline the
00:23:46 --> 00:23:47 process means that we're not putting in place
00:23:47 --> 00:23:50 some of these protections that other people really
00:23:50 --> 00:23:53 want to see. So how long does this actually take?
00:23:53 --> 00:23:57 For major rules, it can take years. A decade?
00:23:59 --> 00:24:01 Yeah. For the benzene rule, the one we were talking
00:24:01 --> 00:24:04 about earlier, it took over a decade from the
00:24:04 --> 00:24:06 initial proposal to the final rule. And that
00:24:06 --> 00:24:08 was partly because of all the legal challenges.
00:24:09 --> 00:24:11 So these legal challenges and the preparation
00:24:11 --> 00:24:14 that the agency has to make for the legal challenges
00:24:14 --> 00:24:16 are part of the way we get this ossification
00:24:16 --> 00:24:19 problem. But they can also go quite fast. The
00:24:19 --> 00:24:22 service animal rule was enacted in less than
00:24:22 --> 00:24:25 a year. Yes. It went from a proposed rule in
00:24:25 --> 00:24:28 January 2020 to a final rule in December 2020.
00:24:28 --> 00:24:31 That is less than a year. It probably moved quickly
00:24:31 --> 00:24:33 in part because they were responding to what
00:24:33 --> 00:24:36 was viewed as a pressing problem. But it was
00:24:36 --> 00:24:40 also because this was barely contained. When
00:24:40 --> 00:24:42 we're talking about backup cameras, it's going
00:24:42 --> 00:24:44 to affect all of the car manufacturers and everybody
00:24:44 --> 00:24:46 who's buying a car. When we're talking about
00:24:46 --> 00:24:48 service animals, the group of people affected
00:24:48 --> 00:24:51 is going to be a lot smaller. So agencies can
00:24:51 --> 00:24:53 move faster when they need to. They can, but
00:24:53 --> 00:24:56 it can still be risky. If they move too fast
00:24:56 --> 00:24:58 and don't consider issues, courts can strike
00:24:58 --> 00:25:01 down the rule. Why does all this matter? The
00:25:01 --> 00:25:04 bottom line here is that notice and comment rulemaking
00:25:04 --> 00:25:07 is how democracy works in an administrative state.
00:25:07 --> 00:25:11 It's not perfect. It's slow. Sometimes it feels
00:25:11 --> 00:25:13 like agencies have already made up their mind.
00:25:13 --> 00:25:15 But this is the best way we have for regular
00:25:15 --> 00:25:18 people as well as advocacy groups and industry.
00:25:19 --> 00:25:21 To have a chance to influence rules before they
00:25:21 --> 00:25:24 actually become law. Even if the outcome isn't
00:25:24 --> 00:25:27 what commenters wanted. Even then, because it
00:25:27 --> 00:25:29 at least forces agencies to explain themselves
00:25:29 --> 00:25:32 and to consider the perspective of that commenter,
00:25:32 --> 00:25:34 which they might not have been doing before.
00:25:34 --> 00:25:37 So it's transparency. It is transparency and
00:25:37 --> 00:25:41 accountability and the agency's expertise. They're
00:25:41 --> 00:25:43 bringing their technical knowledge, but the public
00:25:43 --> 00:25:45 is pointing out potential practical problems
00:25:45 --> 00:25:47 and local knowledge so that we can get a better
00:25:47 --> 00:25:49 rule than we would if the agency was just trying
00:25:49 --> 00:25:52 to go it alone. So this is the process that agencies
00:25:52 --> 00:25:54 are going to have to use when they create rules,
00:25:54 --> 00:25:57 but there are also different kinds of agencies.
00:25:58 --> 00:26:00 Next time, we will be talking about independent
00:26:00 --> 00:26:02 versus executive agencies.