[NJAGDU] FW: [NAGDU] Petition to exempt guide dog users from DOT attestation form requirements
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From: NAGDU <nagdu-bounces at nfbnet.org> On Behalf Of Al Elia via NAGDU
Sent: Wednesday, January 31, 2024 3:15 PM
To: NAGDU Mailing List, the National Association of Guide Dog Users <nagdu at nfbnet.org>
Cc: Al Elia <al.elia at aol.com>
Subject: [NAGDU] Petition to exempt guide dog users from DOT attestation form requirements
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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