[NJAGDU] latest version of [NAGDU] Petition to exempt guide dog users from DOT attestation form requirements

[carcione at access.net]

I am re-sending this because the petition was withdrawn from the original
place and resubmitted to another.
Tracy


-----Original Message-----
From: NAGDU <nagdu-bounces at nfbnet.org> On Behalf Of Lauren Berglund via
NAGDU
Sent: Friday, February 2, 2024 1:17 PM
To: 'NAGDU Mailing List, the National Association of Guide Dog Users'
<nagdu at nfbnet.org>
Cc: Lauren Berglund <Lauren.Berglund at guidedog.org>; carcione at access.net
Subject: Re: [NAGDU] Petition to exempt guide dog users from DOT attestation
form requirements

It looks like the withdrawal was so the petition could be directed to DOT vs
FAA.

It was resubmitted on 2/1 under Document ID DOT-OST-2024-0014-0001.

Link to the Regulations.org page:
https://www.regulations.gov/document/DOT-OST-2024-0014-0001

Link to add comments to the active petition:
https://www.regulations.gov/commenton/DOT-OST-2024-0014-0001

Hope this clears up any concern/confusion!



Lauren Berglund | She/her/hers
Consumer Relations Coordinator | Graduate Support Guide Dog Foundation for
the Blind & America's VetDogs
371 East Jericho Turnpike, Smithtown, NY
11787<https://www.google.com/maps/search/371+East+Jericho+Turnpike,+Smithtow
n,+NY+11787?entry=gmail&source=g>
Cell: 516-479-4873 | Direct: 631-930-9055
Fax: 631-930-9075 | Office: 631-930-9000 x1175
www.GuideDog.org<http://www.guidedog.org/> &
www.VetDogs.org<http://www.vetdogs.org/>
Lauren.Berglund at GuideDog.org<mailto:Lauren.Berglund at GuideDog.org> or
Lauren.Berglund at VetDogs.org<mailto:Lauren.Berglund at VetDogs.org>
-----Original Message-----
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-M
anual-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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