[NAGDU] CREEC comments on the ACAA Forms renewal

[Al Elia]

Dear fellow NAGDU members. The Civil Rights Education and Enforcement Center, which is the  non-profit legal center I work for, submitted comments on the DOT’s request to renew the ACAA attestation forms this afternoon. Our comments are pasted below.

/Æ

January 12, 2024



The Honorable Pete Buttigieg

Secretary

United States Department of Transportation

1200 New Jersey Avenue, SE

Washington, DC  20590



RE: Docket No. DOT-OST-2018-0068



Dear Secretary Buttigieg:



The Civil Rights Education and Enforcement Center (“CREEC”) strongly opposes the Department of Transportation’s (the “Department”) renewal of the Service Animal Behavior and Health Attestation Form and the Service Animal Relief Attestation Form. We believe these forms are burdensome and unnecessary for passengers with disabilities who need to fly with service animals. All passengers are required to understand the law and their obligations. For passengers with disabilities, that includes keeping their dog under control and ensuring that there will be no relief incidents while on significantly long flights of eight hours or more. Yet, DOT imposes additional obligations on disabled passengers to, in essence, affirm that knowledge. These forms are discriminatory towards passengers using service animals, implying they are uniquely unaware of their legal obligations to always keep their service animals under control.



The forms also go beyond the scope of the Paperwork Reduction Act’s allowance for the collection of information “by or for an agency,” because, by the Department of Transportation’s own admission in its applications for Office of Management and Budget (OMB) Control Numbers, the forms “would be submitted directly to the airlines from passengers and not the Department.” The Department would only “review these forms if airlines assert that passengers have fraudulently completed the forms to determine if the matter should be referred to the Department’s Office of Inspector General [or] if it receives complaints from passengers alleging airlines’ documentation requirements for travel with a service animal was not consistent with these forms.” According to a conversation with Department representatives in May 2023, no such assertion has ever been made by any airline. The collection of the information on these forms thus has no practical utility and is unnecessary for the proper performance of the functions of the Department. The burden of these forms on passengers with disabilities is therefore unwarranted and inconsistent with the law.



While CREEC maintains that these forms are an unwarranted and unlawful burden on guide dog users, it would support an airline-funded, Department-managed Known Traveler Number program for passengers with service animals similar to the TSA Pre-Check program. Such a program should allow passengers with service animals to register for, obtain, and renew a Known Traveler Number at no cost to them, and allow airlines to confirm the number’s validity. Through this program, passengers could attest to the same information included in the forms one time without having to re-attest for each flight. Passengers should be able to enter that number either in their frequent-traveler airline program profile or provide it when booking flights. Such a number could be renewed upon renewal of vaccinations (typically every three years). 



The Department should also implement a dedicated accessibility phone number to provide accommodations for passengers who require such assistance applying for and renewing a service-animal known traveler number due to their disability. Irrespective of whether the Department implements a known-traveler program for service animal users, it should still implement such a phone service to provide those passengers with assistance in completing and submitting the health and behavior and relief forms. 



Should the Department continue with forms, they should not be expanded as the Department asks. Rather than increase the burden of the health and behavior form to include additional fields regarding training, the form should be reduced to have only a checkbox to be checked if the passenger requires the use of a service animal due to a disability, and a text field for what task the service animal is trained to perform. All of the other information is superfluous and can be summarized without identifying information. The passenger can attest and agree to all of that summarized information with their signature.



If the health and behavior form is renewed largely in its current or modified form, we suggest that it must contain a non-mandatory release of privacy claims to allow a recipient of the form to verify the information with the persons identified on the form. No version of the form has had any such release or any indication that recipients were permitted to verify information, despite DOT’s assurance in seeking OMB approval for the form that information would be kept confidential and its admission in the same application that information about a passenger’s service animal is sensitive in nature. The Department’s renewal application acknowledges the need for such a release, as it states that the updated form “puts passengers on notice that an airline or its contractor may independently verify the training-related information submitted by the passenger on the form.” However, no such notice appears on the updated form published in the federal register. If that notice was omitted because the Department or OMB recognized that such verification involved the non-confidential disclosure of sensitive information, the form should state that such verification is prohibited, putting airlines on notice that the Department’s prior assurances to the airlines that they could verify the information was wrong.



We also suggest that the form include language to the effect that it shall be considered completed on the vaccine-expiration date entered on the form, irrespective of the date it is signed. This would further reduce the burden of the forms on passengers with service animals because they could store a current electronic or physical copy of the form, instead of having to fill out the form for each and every flight with exactly the same information save for the date of signature, as is currently required due to 14 C.F.R. § 382.75(a)’s requirement that forms be "completed on or after the date the passenger purchased his or her airline ticket.” This small change to the form would define “completed” such that saved forms could be re-used without a new rule-making.



The Department also severely underestimates the burden of the proposed information collection. It does not take into consideration any accommodations that may be required for an individual with a disability to find, download, and complete the form. As any person with a service animal is, by definition, an individual with a disability, The Department’s failure to take such accommodations into account is inexcusable. Individuals with disabilities are routinely granted time accommodations of between fifty and one-hundred percent extra time to complete standardized and other tests roughly comparable to the tasks the Department includes in its estimate, but no such extra time is built into the Department's calculation of the burden.  Beyond underestimating the time to complete those tasks, the Department does not include the time needed to determine how to submit the information to a particular airline in advance, nor does it include the time needed to actually submit the forms by whatever process each airline requires. The time estimate also does not include the time spent checking whether an airline received the forms and approved the passenger’s travel with their service animal. In addition, the estimated dollar burden does not include the stress felt by passengers with disabilities resulting from the fear that their travel with their service animal will be denied, either in advance or at the airport by airline staff, due to any issues arising from the use of the forms.



Finally, the Department stated in its application for renewal that “the form makes clear that passengers can seek assistance from the airline to complete the form if needed.” No such clarifying language appears on the updated form. Instead, the Department says in its request for comments that it will explore that at the next Air Carrier Access Act Committee meeting. This clarifying language is crucial, not just for passengers, but to put the airlines on notice that, pursuant to 14 C.F.R. §§ 382.13(a)-(b), they must assist passengers in completing this form, even if that means providing assistance by phone should the airline require the advance submission of the form as permitted under 14 C.F.R. § 382.75(g)(1). Without such assistance, passengers with disabilities who cannot independently complete the form due to their disability will continue to suffer discriminatory denials of their right to fly accompanied by their service animals.



We appreciate the Department allowing comments regarding this topic. We hope you will take our concerns into account and eliminate the health and behavior and relief attestation forms, possibly substituting a Pre-Check-like Known Traveler program for service animal users. Should the Department continue to allow airlines to use those forms, we hope you will make the modifications we recommend to lessen the burden on passengers with service animals, and to conform with all legal requirements and obligations to protect the rights of passengers with disabilities.



Sincerely,

 

Cynthia L. Rice, Legal Director

Albert Elia, Staff Attorney

Civil Rights Education and Enforcement Center















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