[NAGDU] Petition to exempt guide dog users from DOT attestation form requirements

[Al Sten-Clanton]

Thanks for this information.  What's the deadline for receiving comments?


Also, I wonder if the forms are usable via Linux.  I haven't tried to 
find out yet because I've happily had no reason to fly.


Best,


Al Sten-Clanton


On 1/31/24 15:14, Al Elia via NAGDU wrote:
> Dear listmates,
>
> On Monday, the NFB filed a petition to exempt blind passengers from 
> any requirements to complete attestation forms to travel by air  with 
> their guide dogs. Today that petition went up on regulations.gov at 
> https://www.regulations.gov/docket/FAA-2024-0286
>
> We would appreciate comments in support of our petition. you may file 
> comments at https://www.regulations.gov/document/FAA-2024-0286-0001
>
>
> Here is the text of the petition itself for your convenience. The 
> petition and supporting appendices can be downloaded from the 
> regulations.gov link above.
>
>
> January 29, 2024
>
> U.S. Department of Transportation
> Docket Operations
> West Building Ground Floor
> Room W12-140
> 1200 New Jersey Avenue, SE.
> Washington, D.C. 20590
>
> Re:     Petition for exemption from 14 C.F.R. §§ 382.27(b)(3), 75, and 79
> Submitted By:  Elizabeth Schoen, Sherry Gomes, and Will Simpson, blind 
> individuals; and the National Federation of the Blind (“NFB”), on 
> behalf of its members, including Elizabeth Schoen, Sherry Gomes, and 
> Will Simpson, representing a class of all blind individuals traveling 
> in the United States.
>
>       Pursuant to 49 C.F.R. § 5.3(a)(2) and 49 U.S.C. § 44701(f), 
> Elizabeth Schoen, Sherry Gomes, and Will Simpson, who are all blind 
> guide dog users, and the National Federation of the Blind, on behalf 
> of its members, including Elizabeth Schoen, Sherry Gomes, and Will 
> Simpson, petition the Federal Aviation Administration, through the 
> Department of Transportation (“DOT”), for the following exemption on 
> behalf of a class of all blind individuals on flights within, 
> departing from, or arriving in the United States:
> Beginning one hundred and twenty days from the date of this petition 
> and continuing indefinitely, all blind passengers seeking to travel by 
> air with a guide dog service animal shall be exempt from the 
> provisions of 14 C.F.R. §§ 382.27(b)(3), 75, and 79(a)(4).
>       This exemption is necessary as a reasonable modification, 
> pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 
> 794, to ensure meaningful access to DOT-funded and regulated air 
> travel by blind passengers who use guide dogs. Blind passengers who 
> are unable to independently access the U.S. Department of 
> Transportation Service Animal Air Transportation Form identified in 14 
> C.F.R. § 382.75(a) or the DOT Service Animal Relief Attestation Form 
> identified in 14 C.F.R. § 382.75(b) (collectively "DOT Forms"), either 
> in print or electronic form, are being dissuaded from air travel and 
> are even being denied passage on flights for which they have purchased 
> tickets. They are suffering that discrimination because they are 
> unable to complete and submit the DOT Forms independently in advance, 
> and because the current regulations do not require air carriers to 
> assist passengers like them in completing and submitting DOT forms in 
> advance.
>       Elizabeth Schoen, a blind college student, was not permitted to 
> fly from Minneapolis to Boston in April 2023 because she was unable to 
> complete and submit DOT Forms online. Ms. Schoen was obviously blind, 
> and her guide dog was performing an obvious service of guiding her, 
> but airline staff did not allow her to fly because she had not 
> submitted DOT Forms in advance of her flight.
>       Sherry Gomes has attempted to complete the DOT Forms, but was 
> unable to do so without the assistance of a sighted person. Because 
> she cannot independently complete the DOT Forms now required by 
> airlines, she is afraid of being turned away or being otherwise 
> mistreated at the airport because she uses a guide dog. She therefore 
> no longer travels by air despite a desire to do so in order to visit 
> friends and attend conferences.
>       Will Simpson booked travel online in advance for Thanksgiving 
> 2023. During the reservation process, he was not informed as to how to 
> indicate he would be traveling with his guide dog. After speaking with 
> the air carrier’s staff by online chat, he was informed that his guide 
> dog was known to the airline, and he would be able to travel. Instead, 
> he was denied at the airport because he had not previously completed 
> the DOT Form, and was only able to travel after arguing with the air 
> carrier’s airport staff for over an hour.
> Reasons for and benefits of exemption
>       This petition seeks an exemption from those sections of 14 
> C.F.R. Part 382 which allow air carriers to condition a passenger’s 
> travel with a service animal on completion and submission of DOT 
> Forms. The exemption is needed because, although certain blind 
> travelers may not be able to complete the forms, or submit them in 
> advance, the regulation does not require airlines to accommodate their 
> disability. In fact, airlines are expressly permitted to refuse to 
> provide such accommodations, as 14 C.F.R. §79(a)(4) specifically 
> states that an airline “may deny transport to a service animal … [if 
> t]he passenger with a disability seeking to travel with a service 
> animal in the cabin of the aircraft does not provide completed current 
> [DOT Forms] to the carrier when requested to do so.” Id. Petitioner 
> Schoen was denied permission to fly, by the private airline relying on 
> that regulation, because she did not complete the form on-line 48 
> hours prior to her flight, and the airline did not allow her to submit 
> alternative verification that her service animal is a trained guide 
> dog. This discriminatory denial of access is expressly permitted by 
> the regulation, but it violates Section 504 of the Rehabilitation Act.
>       Other sections of the ACAA regulations demonstrate DOT’s 
> awareness that individuals with disabilities may need air carriers to 
> provide them with assistance to ensure meaningful access to air 
> carrier services offered through electronic technology. For example, 
> air carriers “must assist prospective passengers who indicate that 
> they are unable to use [the air carrier’s] Web site due to a 
> disability and contact [the air carrier] through other channels (e.g., 
> by telephone or at the ticket counter).” 14 C.F.R. § 382.43(c)(4). 
> That requirement is in addition to a separate requirement that air 
> carriers’ websites must be accessible. 14 C.F.R. §§ 382.43(c)(1)-(3). 
> It goes on to require air carriers to disclose and allow booking of 
> web-based discount fares through those other channels, and to waive 
> any fees normally associated with use of those other channels. 14 
> C.F.R. §§ 382.43(c)(4)(i)-(ii).
>       The carrier requirements for provision and acceptance of the DOT 
> Forms also demonstrate DOT’s understanding that some passengers with 
> disabilities and service animals may not be able to use the electronic 
> DOT Forms, notwithstanding their accessibility to other passengers. 
> DOT’s regulations require carriers to make accessible electronic DOT 
> Forms available on their websites, but also require them to provide 
> paper copies of the forms upon request. 14 C.F.R. § 382.75(e). Those 
> regulations similarly require airlines who demand advance submission 
> of DOT Forms to not only accept them electronically, but also by hard 
> copy. 14 C.F.R. § 382.75(f). The requirement for paper copies to be 
> sent and accepted by mail demonstrates DOT’s recognition that some 
> persons with disabilities who use service animals may not have access 
> to and the skills necessary to use technology to obtain and submit 
> electronic DOT Forms. Despite this demonstrated awareness, and the 
> understanding shown by the telephone-ticketing requirement that 
> accessible technology is not a panacea, the DOT failed to require 
> non-technological alternative access for blind passengers unable to 
> complete the DOT Forms. That failure is inexcusable considering that 
> guide dogs are the prototypical service animal.
>       As discussed below, many blind guide-dog users cannot 
> independently complete DOT Forms. Because air carriers are not 
> required to assist such passengers in completing and submitting those 
> forms, those blind passengers face significant obstacle that impede 
> their access to air travel. The exemption sought herein will eliminate 
> airlines’ ability to condition travel on submitting DOT Forms that 
> those blind passengers cannot independently complete due to their 
> blindness. By removing that obstacle, the exemption will ensure that 
> all blind passengers who use guide dogs will have meaningful access to 
> air travel.
>     The exemption is necessary because the DOT cannot provide any 
> other immediate remedy to address the barriers to air travel posed by 
> the DOT Forms. The DOT is responsible for remedying those barriers 
> because it alone bears responsibility for the DOT Forms and their 
> shortcomings; and for failing to ensure air carriers’ provision of 
> assistance to blind passengers in completing and submitting those 
> forms where such assistance is necessary due to their disability.
>       The public benefits when people with disabilities have 
> meaningful access to air travel, and when the government does not 
> impose barriers to such meaningful access for specific groups of 
> persons with disabilities. The public also benefits when government 
> agencies do not violate laws such as Section 504 of the Rehabilitation 
> Act. The exemption is consistent with the Congressional charge that 
> the “Federal Government play[] a leadership role in promoting … and in 
> assisting States and providers of services in fulfilling the 
> aspirations of such individuals with disabilities for … independent 
> living…” 29 U.S.C. § 701. Without the exemption, the regulation 
> violates 29 U.S.C. § 794’s mandate that “[n]o otherwise qualified 
> individual with a disability in the United States, as defined in 
> section 705(20) of this title, shall, solely by reason of her or his 
> disability, be excluded from the participation in, be denied the 
> benefits of, or be subjected to discrimination under any program or 
> activity receiving Federal financial assistance or under any program 
> or activity conducted by any Executive agency…” (Id. Emphasis added.)  
> The DOT actively regulates and provides funding to the airlines. By 
> promulgating the regulation, DOT created and bears direct 
> responsibility for its adverse impact on blind people who rely on 
> guide dogs.
>     There is no evidence to suggest that this exemption will 
> negatively affect public safety. Guide dogs have a long record of safe 
> travel, having been trained and used in the U.s. for more than 
> ninety-five years. “History of Guide Dogs,” International Guide Dog 
> Federation (available at 
> https://www.igdf.org.uk/guide-dogs/history-of-guide-dogs/ (last 
> accessed Jan 24, 2024)). The NPRM supporting the regulation 
> acknowledges that “dogs are the most common animal species used to 
> assist individuals with their disabilities, both on and off aircraft, 
> and that dogs have both the temperament and ability to do work and 
> perform tasks while behaving appropriately in a public setting and 
> while being surrounded by a large group of people.” (Traveling by Air 
> With Service Animals, 85 FR 79742-01). Guide dogs receive structured 
> socialization and behavior training not only by professional trainers 
> as part of their several months of guide training (See “Standard 5: 
> Dog Training and Behaviour,” Standards, International Guide Dog 
> Federation, October 5, 2023 (available on request from 
> enquiries at igdf.org.uk)), but also by their volunteer puppy-raisers 
> during the year leading up to that training. See, E.g., “Puppy Raising 
> Manual,” Guide Dogs for the Blind (available at 
> https://www.guidedogs.com/uploads/files/Puppy-Raising-Manual/Puppy-Raising-Manual-COMBINED.pdf).
>     Likewise, concerns about “fake” service animals don’t apply to 
> guide dogs. The DOT has never received a complaint that a passenger 
> fraudulently represented themself as a blind person using a guide dog, 
> nor has it received an assertion by any airline that a passenger has 
> fraudulently completed DOT Forms indicating as Such. An individual is 
> unlikely to attempt to pass off a pet or emotional support animal as a 
> guide dog, as opposed to passing it off as another type of service 
> animal for a less-obvious disability. Were they to make such an 
> attempt, it would be readily apparent that the dog is not actually 
> guiding the passenger, or that the passenger is not blind, or both.
>       Finally, there are an estimated 500,000 working service animals 
> of any type in the United States. See 
> https://share.america.gov/service-dogs-save-lives/. According to the 
> International Guide Dog Federation, a member organization of guide dog 
> training programs, there are only between 20,000 and 23,000 guide dogs 
> in service worldwide at any given time. See 
> https://www.igdf.org.uk/about-us/facts-and-figures/. Of those, only an 
> estimated 10,000 are in use as working guide dogs in the United 
> States. See, https://www.guidingeyes.org/guide-dogs-101/. As those 
> estimated 10,000 guide dogs represent a mere two percent (2%) of the 
> service animals in the United States, the regulatory requirements 
> related to DOT Forms will still apply to ninety-eight percent of 
> service animals and their users once this exemption is granted.
> Fundamental barriers to the DOT Forms
>       The DOT Forms were intended to be accessible to passengers with 
> disabilities, including blind passengers. However, as a practical 
> matter the DOT Forms are only accessible to blind passengers who have 
> access to and skills to use both necessary technology and the 
> internet. This is because, the regulations only require carriers to 
> make accessible electronic DOT Forms available on their websites and 
> to accept completed forms electronically. Since paper is inaccessible 
> to blind passengers absent the assistance of carrier staff, and since 
> there is no provision requiring airlines to provide such assistance in 
> person or by telephone, only the website offers them the possibility 
> of access to the forms, and only electronic submission offers them the 
> opportunity to access and submit forms in advance. These both require 
> internet access, and both require access to and the skills to use the 
> technology necessary to read and complete the DOT Forms. That 
> technology is not available to all blind passengers.
>       “Fillable” PDF forms such as the DOT Forms can only be completed 
> with the aid of screen reading software on personal computers running 
> Microsoft’s Windows or Apple’s macOS operating systems. See 
> Declaration of Karl Belanger, attached as Appendix A. While it is 
> possible for a blind person to read accessible PDF documents – 
> including the DOT Forms – on other types of devices using screen 
> reading software, it is not possible for a blind person to 
> independently enter information on PDF documents and forms using 
> screen reading software on mobile devices, tablets, or ChromeBooks, 
> whether those devices are made by Apple, Google, Samsung, Amazon, or 
> another manufacturer. Id. This is because manufacturers and developers 
> have not yet built the capability to enter information on PDFs 
> non-visually using screen reading software when using those devices.  
> This is true even if the fillable PDF forms are otherwise accessible 
> and can be completed non-visually using a personal computer running 
> Windows or macOS. Id. Obviously, a blind person cannot independently 
> obtain electronic DOT Forms from DOT or carrier websites without 
> internet access. They can neither independently mark up a PDF using 
> visual marking tools, nor independently complete paper DOT Forms by 
> manually writing on them. As previously explained, the only technology 
> that currently offers them the possibility to independently complete 
> and submit DOT Forms is a personal computer. Courts have held that 
> being able to access a governmental program or service independently 
> is essential to meaningful access under the Rehabilitation Act. Nat’l 
> Fed. Of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016). According 
> to data from the latest American Community Survey (“ACS”) by the U.S. 
> Census, only 56.1% of blind Americans have access to both a computer 
> and the internet at home. See Declaration of Marlie Elia, attached as 
> Appendix C.   Accordingly, at least 43.9% of blind Americans entirely 
> lack meaningful access to the DOT Forms. Id.
>       This is not a speculative concern. As the following data shows, 
> a large percentage of blind guide dog users currently experience 
> barriers to using the DOT Forms, even if they have access to the 
> internet. This data demonstrates the need for the exemption sought in 
> this petition.
> Survey of Blind Guide Dog Users, and Extrapolation to Total U.S. Guide 
> Dog-Using Population
>       The National Association of guide Dog Users ("NAGDU"), a 
> division of the NFB dedicated to advocacy regarding the rights and 
> responsibilities of guide dog use, conducted an online survey from 
> June through August 2023. See, Declaration of Raul Gallegos, attached 
> hereto as Appendix B. That survey, in which 103 respondents 
> participated, provides insight into how blind guide dog users 
> experience air travel and what technology and comfort level they 
> possess for finding and attempting to complete the DOT Forms. Id.
>       It must be said at the outset that the survey undercounts blind 
> persons who do not use technology to access the internet, as nearly 
> all respondents said they did. This makes sense given that the survey 
> was conducted online. Nevertheless, nearly four percent of respondents 
> do not use technology to access electronic documents such as PDFs at 
> all. This and other survey data reflect that even blind individuals, 
> like Mr. Simpson and Mses. Schoen and Gomes, who might otherwise use 
> the internet, nonetheless face technology barriers that prevent them 
> from accessing the kind of electronic documents currently required to 
> fly with their guide dogs.
>       Despite its small sample size, the NAGDU survey comports with 
> the estimates of the much larger ACS. The ACS data indicates that 
> approximately 73.5% of blind people have access to the internet. 
> Appendix C, Exh. 1. The NAGDU survey data indicates that, of those who 
> do use the internet to access electronic documents like the DOT Forms, 
> approximately 77.6% use a macOS or MS-Windows computer to access PDFs. 
> Appendix B, Exh. 1. Combining those two indications yields an 
> estimated 57% of blind people who have access to both the internet and 
> a personal computer, which comports with the ACS 56.1% estimate of the 
> same. The NAGDU data shows that 22.4% of blind people who use the 
> internet to access electronic documents can only
> do so using technology that currently affords them no way to 
> independently complete fillable PDF forms such as the DOT Forms. Id.
>       Beyond the absolute barriers currently presented by mobile and 
> other non-macOS/MS-Windows technology, respondents encountered 
> additional barriers regarding the DOT Forms that demonstrate the need 
> for an alternative such as carrier assistance. For example, 29.4% were 
> unable to identify what information the forms require a passenger to 
> provide, 52% were unable to independently complete them, and 5.9% were 
> unable to open them at all. Id. In fact, only 42.2% of respondents 
> were able to independently fill out DOT Forms. Id.
>
>
>       As to their air travel experiences, 34.3% of respondents have 
> actually “experienced difficulty flying with a guide dog, such as 
> being harassed by airline staff or being denied a flight due to not 
> following airline pre-flight procedures for bringing a service 
> animal," and 4.9% of respondents, Have never used a guide dog and are 
> hesitant to do so due to the requirements for flying with a guide dog. 
> Id.
>       As discussed above, there are approximately 10,000 working guide 
> dogs in use in the United States. See, 
> https://www.guidingeyes.org/guide-dogs-101/. Based on the ACS, only 
> 73.5% have internet access. The NAGDU survey indicates that of those, 
> only 42.2% are able to independently complete DOT Forms. That means 
> that 69% of guide dog users in the U.S. are currently unable to 
> independently access the DOT Forms; or six thousand nine hundred 
> American guide dog users who lack meaningful access to the DOT Forms, 
> and to air travel, because of their disability. DOT failed to ensure 
> that blind passengers who use guide dogs would have such meaningful 
> access, despite having demonstrated elsewhere that it understood the 
> need and means to so ensure. As shown above, the petition should be 
> granted.
> Jurisdiction of exemption
>       This exemption will only apply within the jurisdiction of the 
> United States. It will therefore only apply outside of the United 
> States where a flight departs from or arrives in the United States.
> Summary for federal register
> The provisions of 14 C.F.R. §§ 382.27(b)(3), 75, and 79(a)(4) shall 
> not apply to any blind passenger seeking to travel by air with a guide 
> dog service animal. This means that no air carrier may require such a 
> blind passenger to complete or provide forms as set forth in 14 C.F.R. 
> § 382.75(a) or (b), nor may an air carrier condition transport of such 
> a guide dog service animal on the provision of any such forms.
>
> Respectfully submitted,
>
> s/ Albert Elia
> Albert Elia D.C. Bar No. 1032028
> Civil Rights Education and Enforcement Center
> 1245 East Colfax Avenue
> Suite 400
> Denver, CO 80218
> 303-757-7901
> aelia at creeclaw.org
>
> s/ Cynthia L. Rice
> Cynthia L. Rice
> Civil Rights Education and
> Enforcement Center
> 131 Stuart Street
> Suite 400
> San Francisco, CA 94105
> 303-551-9389
> crice at creeclaw.org
> Attorneys for Elizabeth Schoen, Sherry Gomes, Will Simpson, and NFB
>
>
> CERTIFICATION
>     I, Mark Riccobono, in my individual capacity and as the President 
> and authorized representative of National Federation of the Blind, 
> have not in any manner knowingly and willfully falsified, concealed or 
> failed to disclose any material fact or made any false, fictitious, or 
> fraudulent statement or knowingly used any documents which contain 
> such statements in connection with the preparation, filing or 
> prosecution of this petition. I understand that an individual who is 
> found to have violated the provisions of 18 U.S.C. section 1001 shall 
> be fined or imprisoned not more than five years, or both.
>
>       MARK RICCOBONO
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