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TRANSCRIPT OF THE PUBLIC HEARING
ON NOTICES OF PROPOSED RULEMAKING

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Note:The Department of Justice has attempted to correct errors in format, spelling, extraneous letters and words, and omissions in text, to the extent it was possible to do so, in the draft transcript prepared by Caption First, Inc. , for the public hearing conducted on July 15, 2008, on the proposed regulations issued under Titles II and III of the ADA.

DEPARTMENT OF JUSTICE
JULY 15, 2008
9:00 A,M.
PUBLIC HEARING ON
NOTICES OF PROPOSED RULEMAKING

 

Captioning Provided by:
Caption First, Inc.
P.O, Box 1924
Lombard, IL 60148
800-825-5234

 

This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

 

List of Commenters

 

 

>> The Department of Justice hearing regarding the notices of proposed rulemaking on Titles II and III of the Americans with Disabilities Act is hereby called to order. We will start with a statement from Grace Chung Becker, the acting Assistant Attorney General for civil rights at the Department of Justice.

>> GRACE CHUNG BECKER: Good morning, everyone, thank you, and welcome to all of you who have joined us today and those of you who are watching us via the webcast. This is a very important hearing that we are having today at the Justice Department on our proposal to amend the regulations implementing the Americans with Disabilities Act. Since the issuance in 1991 the ADA regulations have been the cornerstone of our efforts. They provide specific guidance to state and local government officials, to the owners and operators of public accommodations and to the designers, builders and owners and their responsibilities under ADA. They are a blueprint for individuals with disabilities who seek to exercise their hard-won rights. The passage of the ADA in 1990 was a watershed event for persons with disabilities and an important milestone in this country's civil rights history. When President Bush signed the Americans with Disabilities Act into law, for the first time in our nation's history there was comprehensive federal legislation bestowing not just the legal rights but more fundamentally fairness and dignity for millions of people with disabilities. George W. Bush issued the new freedom initiative which was designed to build on the progress made by the ADA by committing federal resources to work on fulfilling the promise that people with disabilities would gain the freedom to work, play and participate as full members of their community. We in the civil rights division have taken the president's challenge seriously and have worked to implement the ADA vigorously. And the division achieves results for persons with disabilities through lawsuits, as we all know, also through settlement agreements, letters of resolution and successful mediations. As we approach the 18th anniversary of the enactment of the ADA we can look back and recognize that in the years since the ADA was signed into law a great deal has been achieved. The ADA has literally opened doors and torn down barriers that once prevented individuals from making full contributions to American life. Today we expect that measures will be taken to insure access to places of public accommodation and government services and we now have a common appreciation that to live a full and fulfilling life, one must have the opportunity to participate in all aspects of American life. And while there has been much progress since the enactment of the ADA, there is still more work to be done. As times change and with advancement in technology and other developments that enhance our quality of life, we must update our regulations to insure that individuals with disabilities have the opportunity for full engagement and involvement in our civic life. As a result, the department has published the proposed rules that are the subject of our hearing today and we call upon all of those affected by the regulations to participate in the comment period, to come together and to weigh the pros and the cons of the various proposals and to offer different perspectives on the department's proposal. Statistics tell us that 20 million American families have at least one individual with a disability. I certainly am among the 20 million. And among those, there are more than five million children with disabilities between the ages of 3 and 14. The proposed regulations will for the first time [establish requirements for the design of accessible public facilities, such as courtrooms,] and an array of recreational facilities including playgrounds and swimming pools, amusement parks and golf courses making it easier for individuals with disabilities to travel, enjoy sports and leisure activities, play and otherwise participate in society. Imposed rules will also adopt design standards consistent with parts one and three of the access board's 2004 ADA accessibility guidelines known as ADAAG. In proposing to adopt the ADAAG's regulations, the department seeks to give the force of law to the guidelines and to further the access board's mission to simplify ADA compliance and enforcement by harmonizing inconsistencies among federal, state and local and private accessibility standards and building codes. In addition to adopting the ADAAG as ADA standards, the department is proposing to require captioning of emergency announcements in large stadiums, provide requirements to insure that persons who are deaf or hard of hearing can receive and convey vital information in medical settings, insure that accessible hotel room features are identified and that such rooms may be reserved and guaranteed to the same extent that hotel guarantees reservations for others, insure that accessible seating in public venues remains available for purchase by persons with disabilities, reiterate the obligation of a covered entity to permit the use of service animals by persons with disabilities and highlight the distinction that a service animal must be a dog or other common domestic animal that is trained to perform specific tasks to assist its owner, allow for establishments to consider permitting the use of new technology devices such as Segways that may be used as an alternative to a wheelchair and establish the building elements that comply with the current ADA standards are not required to be retrofitted to meet new accessibility standards unless the element is being altered or replaced. As the department's initial ADA regulations the department has attempted to preserve the balance mandated by Congress when it passed the ADA insuring rights of individuals with disabilities to take part in mainstream society and avoid undue economic burdens on state and local governments and the private sector. Your comments today and throughout the public comment period are indispensable to the department and will help insure that we continue to strike the proper balance as we move toward publishing the final rule. We are grateful for those of you who have joined us today to share your views on these proposed regulations. I can assure you the department will give your comments full consideration as we are developing final rules.

>> LORETTA KING: Thank you very much, Grace. I would now like to introduce the other people sitting next to me. To my right, Pamela Barron who is counselor to the Assistant Attorney General. To my left is John Wodatch, and I'm Loretta King deputy assistant Attorney General in the Civil Rights Division.

We will be rotating officials throughout the day, so when you see people leave and come it's not personal, it's just that we have other responsibilities and we have to rotate, but Department of Justice officials will be taking all of your comments very seriously and they will be on the record, on the official record.

What I would like to do at first is go through some procedures with you. All comments, and this is very important, all commenters will be asked to report to the staging area, which is all the way in the back of the room at least 20 minutes before you are scheduled to testify. That is very important so you can receive appropriate instructions. A Department of Justice staff member will escort you to the appropriate table in the front of the room, either to table A or table B, and please follow their instructions. You will have five minutes to testify. To let you know when your testimony is to begin, I will state your name, someone will set the speaker time and you will be told to begin. There is a timer in front of you which will show a green light, when it's time to testify. A yellow light will come on to notify you that you have one minute remaining and a red light will come on to tell you that your five minutes is up. If you are blind or have local vision or if you are on a speaker phone, I will remind you when the yellow light comes on and when the red light comes on. You will also hear an audible sound. When you complete your testimony you are free to augment the testimony with documents that will be placed in the hearing record. All documents are to be logged in by the hearing clerk to my left. Please raise your hand, hearing clerk. There will be a Department of Justice staffer who will receive your comments to take them to the hearing clerk for logging purposes. This is also a very important point. If you plan to use PowerPoint in conjunction with your testimony, it is imperative that you describe the content of that PowerPoint, you read the text and describe the contents so people who are blind or have low vision will know exactly what you are referring to during your power point presentation.

>> LORETTA KING: With those instructions, we are ready to begin, and our first commenter will be Jerry Kerr who is on the board of directors of disability rights advocates for technology. Good morning, Jerry.

>> JERRY KERR: Today we all face extraordinary challenges - oh, sorry.

>> We face extraordinary challenges affecting every aspect of our lives. We are all looking to new and emerging technologies as a pathway to solutions to these challenges. This rulemaking process will have a dramatic and lasting impact on every person in 24 countries for decades to come. Laws alone cannot make men see right. We are confronted primarily with a moral issue. It is as old as the scriptures and clear as the American constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated, words spoken in 1963 by President Kennedy when addressing civil rights issues and relevant today as we address the challenges to rights of people with disabilities. And because there are those who chafe at the requirement of writing equal rights and opportunities to disabled Americans, regulations must be easily interpreted so their intent is clear and sufficiently broad as to provide a timeless standard. This rulemaking is dealing with solutions to issues of access that have long been delayed because of concerns regarding the financial impact upon the business community. By adopting regulations that foster an environment benefiting the continued development of universally designed technology solutions we will make America more accessible to all people at a cost which is sustainable. The Segway is representative of that which can be achieved in such an environment. Universal designs provide benefits to the society as a whole and integrates people with disabilities at the highest level possible. In 1991 when publishing the first ADA, Dick Thornburg made reference to the fact that there would be no exhaustive list of devices and services because any attempt to do so would eliminate the new devices that would become available with new and immerging technology. It is not in the public interest nor in the interest of people with disabilities and it is not consistent with federal law to favor a device designed solely for use by a mobility-impaired person. That is the medical model of disability that the rehabilitation act led us away from 35 years ago, not the social model we have embraced and expanded upon in this century. The Segway has been subjected to an atmosphere of lies and innuendo reminiscent of the Salem witch trials and there are those who have bought into these -- and reacted similarly to a cave man first encountering fire. There is no, absolutely no evidence that the Segway imposes additional risks over that of any other mobility device and the continued contemplation of the image of dangers has no basis in reality and cannot be supported by any scientific or engineering study in existence today. The department must adopt definitions in keeping with existing federal law and favored policy benefiting people with disabilities and our society. The 1973 rehabilitation act defines an assistive technology device as any item, piece of equipment or product system, whether acquired commercially, modified or customized which is used to increase, maintain or improve functional capabilities of individuals with disabilities. The proposed rules categorizing and defining assistive disability devices are fundamentally flawed. A device designed to be usable indoors and meeting the requirements of ADAAG this would include manual and power wheelchairs, scooters and EPAMD's, or a device with a designed purpose of outdoor use. For more than five years thousands of disabled Americans who use Segways have been subjected to discrimination and prejudices. Our segs-- our nation's heroes have been required to step down from their Segways and be pushed in wheelchairs by their wives. We ask the department to adopt regulations and policies which will put an end to this injustice. Thank you very much. And I do have --

>> LORETTA KING: Thank you very much. Would someone please accept Mr. Kerr's testimony from the department? Would you mind turning on your mic? Thank you. Our next commenter will be Mark Richert, director of public policy for the American foundation for the blind. Good morning. You may proceed.

>> MARK RICHERT: It's my privilege this morning to represent the consortium for citizens with disabilities, CCD, civil rights task force. As I think most if not all of you know CCD is perhaps the largest and certainly most comprehensive coalition of service provider professional and consumer courses representing all folks with disabilities, their families and their interests. I start with that because I want to emphasize this morning before getting into specific comments reflecting the point of view of the American foundation for the blind, the concern of the disability community generally about the extent to which there is opportunity for public comment. While we certainly appreciate an opportunity that we have today to make comments, over 41 corporations have now expressed directly to the Department of Justice their concern about the very limited period of time for making public comment. I think in an atmosphere where regulations that are as comprehensive as far-reaching as these that have been proposed are on the table, it seems to me we ought to be making every opportunity to expand possibilities for the public to comment and not to rush the process. These issues are far too important to simply limit the comment period to a 60-period of time. It seems to me the office of budget had at least six months if not a full year to review these proposed regulations and it seems to me there ought to be some reasonable opportunity for the disability community to comment. So we would strongly urge the department to consider extending the comment period substantially, at least twice the amount of time that's currently been provided. With respect to the American foundation for the blind and our concerns, I think, you know, looking at the proposed rules, they give and take away. With respect to the issue of service animals as someone who is blind or visually impaired myself and certainly representing an organization that has long been concerned about the extent to which the rights of folks who use dog guides are recognized, you know, I think there is a general sense that the way that the department has begun to craft the issues and the proposed rule makes a lot of sense. There probably are some, as there always are, opportunities for refinement. Let's talk a little bit about where the boundaries might be better drawn, but in terms of the overall approach, it seems to me that there is a certain amount of sensibility that's brought to the issue of service animals, having, frankly, a no Arachnid or no reptile rule is a sensitive thing in federal policy. Beyond that, though, when we look at the proposed rules, there is a substantial gap. These rules explicitly say that they are not going to be addressing the issues of equipment accessibility. While it certainly is valuable that the concept of electronic information technology is added to the overall concept of auxiliary aids and services as an example, these rules do not address a 21st century approach to providing accessibility to all people with disabilities. I am pleased that there are opportunities this morning to have audible recognition of when the green and yellow and red lights are taking place. Would that those kind of accommodations were provided a bit more regularly to folks with disabilities, but even better that, would that we were using technology that was truly designed universally for folks. It seems to me that these rules when they specifically say that they are going to these proposed rules, that they are specifically going to decline to take up the issue of equipment accessibility on the theory that existing rules already make appropriate provision for accessibility, that is a tremendous missed opportunity. So what are some examples?These rules talk about accessible to public accommodations such as hotels. Certainly those of us who have tried to belly up to a reservations counter only to find that there is nobody there physically to take your reservation or check you in, and are told to use an electronic kiosk for that purpose find that we are going to be playing with that kiosk in vain because there is no accessibility provided. In an age that relies more and more on independent access to technologies including access to public accommodations that do their work only on line, it seems to me we ought to be looking at ways to make such technology and internet access more widely available. Let me just conclude then with a couple of general comments. I said --

>> LORETTA KING: One minute.

>> MARK RICHERT: I said that these comments give and take away. It seems to me that one major area of grave concern is this whole business of the safe harbor. And other colleagues and friends from the disability community will comment on this a bit more, I'm quite sure. I'm not sure why we would ever say that we are simply going to impute compliance with the law simply on the basis of how much money you spend. These rules need to be much more explicit about how we judge whether or not the money that has been spent, has been effective in allowing and creating access. We simply can't have a situation where an accounting or presenting receipts for how much money you have spent to create, to eliminate access barriers is sufficient. So I would encourage the department to revisit that issue. There will be many, many more issues. I'm glad you all are here today. Thank you for taking our comments and thank you for allowing AFB to present this morning.

>> LORETTA KING: Thank you very much. I want to do a timer check. The three sounds, does that designate four minutes or five minutes? Thank you. Will there be a four-minute signal?

>> It will be once at one minute.

>> LORETTA KING: Thank you. Well, I see at the table is Sunny Patel even though he is not on my list, but that's quite all right. Mr.  Patel, good morning.

>> SUNNY PATEL:Good morning, my name is Sunny Patel, owner of hotel chains. My family moved to America in 1982 when I was a young person, and I have been educated here in America from middle school, high school, and I graduated from aeronautical university in 1992. And I entered hotel business in 1993 with my family and now also I have been appointed by Paul Patel as ambassador for Washington, D. C. district for Asian American hotel associations. Currently the association has 87 members, 22,000 hotels, and $60 billion in hotel assets, and we also have created over 1 million jobs in the organization. And concerning running and operating the hotels, we have 25 to 30% of our expenses are payroll, 10% of our expenses goes to franchise royalties, also 10 to 15% goes to travel agencies, nowadays most of our reservations are booked through third-party reservations. And also we are mandated by our franchise companies to renovate our hotels every five years to upkeep everything. And cost of making accessible hotel, accessible rooms these days in our estimate, the bathrooms to renovate accessibly to accommodate disabled guests would be 20 to $25,000 alone. And also, rooms with the fire alarm systems for disabled people, anywhere from $2,000 to $5,000. I personally built a hotel here in Maryland which is not too far. We built the sleep inn and we have placed area of refuge that was required at last-minute the day before we had to open the hotel by the town and that ended up costing maybe almost $30,000 which was unexpected. And regarding some of the other requirements by ADA for the pool areas, the lift chairs or electric lift chairs, those are very costly as well, and I have personally run six hotels in this area and we have about five indoor pools, and I have followed all of the ADA requirements before we opened. The requirement, one of the pool requirements that I personally had an experience with was the lift chairs, and in my experience for this nine years when we have these indoor pools not a single person has used that lift chair at our hotel in all of this time that I have been running these properties. I have followed all of my rules per requirement as all of our hotels do follow that, and fortunately I have never been hit with an ADA lawsuit, because we do take care of our guests. For example, just the other day our southern Maryland had a Dash tournament for disabled people on the Potomac and we had a guest staying at our hotel and he was disabled and he also had a way to get through to the -- he forgot something in his room and he passed me, he said, can you please help me, I don't want to take an hour getting out of my truck and going through all of these places and I -- he asked me that he forgot a charger or some other equipment in the room, and I personally got there and helped him, and he was very appreciative of me trying to help the guest, and it was a kind thing to do, and all of our guests in all of our hotels and our service staff is able to help any disabled people that comes to our hotels. The other thing is some of the costs that are involved here is the mandating this 1% net or 5% net of the gross. I think it's very difficult to calculate. Everybody's accounting system is different and how are you going to mandate it? It's going to be another legal cause, and also this --

>> LORETTA KING: You may finish.

>> SUNNY PATEL: The fitness centers, those are going to be difficult because franchise companies also mandate three to four machines and if we have to make that as disabled we will have to remove one or two equipments. And regarding the service animals, we are happy to take service animals, but we must see proof that they are certified so we can accept the service animals, and reasonable service animals. Things of that nature.

LORETTA KING:Your time is up. I do have one quick question. You said there was 20 to $25,000 to making an accessible room. Were you talking about one room?

>> SUNNY PATEL: One room, one bathroom only, not entire room.

>> LORETTA KING: Thank you very much. Our next speaker will be Stephanie Thienel. She represents the government relations and safety services manager for the international association of amusement parks and attractions. You may proceed.

>> STEPHANIE THIENEL:Good morning members of the Department of Justice. I'm Stephanie Thienel and I represent the international association of amusement parks and attractions. We represent more than 4,000 owners and operators of fixed site amusement parks, water parks and varied attractions worldwide as well as the companies that supply goods and services to those facilities. Thanks for this opportunity to provide public comment today. We have been directly involved in the U. S. access board's long process to develop the recreation rule in the new 2004 ADA, ABA accessibility guidelines. The process was limited in scope in that the access board did not consider issues including removal of architectural barriers. The Department of Justice provided an opportunity for public comment through the July 23rd, 2004 NRPM. I provided a lengthy written copy on this document. We considered material on issues related to alterations and events. Although some of the items raised in our comment are not referenced in this NPRM we hope the department will consider them in developing its final rule. We intend to submit written comments in response to the notice as well as written comments on the new proposal in question. We would like to remind the department that the amusement industry is at the height of its season. The comment period is too short. Our members do not have sufficient time to effectively communicate their areas of concern or support on the many issues brought forth in the Notice of Proposed Rulemaking. We request the public comment period be extended another 90 days. We have questions about the economic assessment on places of amusement. Many cost impacts are not included in the analysis such as those related to exterior facilities, retail space, food service establishments, pools, dry play areas, wet play areas, water park elements and ride vehicles. We believe the economic impact on places of amusement exceeds $100 million. We believe a parallel but separate economic impact occurs on family entertainment centers, water parks, miniature golf and other small businesses. We request the department acknowledge the core concepts that were built into the recreation rule for amusement attractions including the technical guidelines for amusement ride access were based on D. O. T. Wheelchair access through the facility exit is preferred and certain ride designs to avoid long ramps or dual elevators to get guests over ride tracks. In certain circumstances, wheelchair access through the exit to load and unload vehicle or I'm sorry to load and unload area provides for safer, more convenient environment for wheelchair users, access maneuvering, access to the right vehicle and for wheelchair storage. The changes to a ride vehicle or an [attraction’s theme] do not constitute a major modification resulting in an alteration. Several parts of amusement attractions may be unique such as fun houses and net climbs and cannot be weighed or judged against guidelines for play areas or generic facility guidelines. The accessible route criteria would create a fundamental alteration to amusement attractions. We request reconsideration of the Notice of Proposed Rulemaking's proposed six-month trigger date. We agreed with the Notice of Proposed Rulemaking's proposal for 18 months. We requested 24 months for miniature golf facilities and 37 to 60 months for amusement ride vehicles. These periods are necessary for the process of capital funding, design and construction that are required to meet the new rules. Recreation has not benefited from overall reduction costs for barrier removal assumed as a by-product of the harmonization of the building code and the 2004 access guidelines. The new accessibility standard has influenced recent design and construction activity in building and facilities but has had little, if any, impact on recreation facilities. This is the primary reason we requested an 18-month trigger time. Additionally we do not agree with the proposed start of construction trigger. We requested the existing ride vehicles be included in the same category of barrier removal exemption as pools play areas, spas, et cetera. Most ride vehicles are smaller than a two-person spa or hot tub. Requirements cannot include alterations of a ride vehicle as this could void warranties. Many members are qualified small businesses as well. You need to be aware that we do not agree that EPAM Segway's should be considered in the same category as wheelchairs. Thank you for your time today. And we hope to work forward with you to participate in this step to clarify accessibility in our businesses and for our guests.

>> LORETTA KING: Thank you very much. Our next speaker will be Carolyn Gray. I understand you will be using a power point presentation today. Please make sure to describe the content of that power point. Is your mic on?

>> CAROLYN GRAY:Good morning and thank you. I'm Carolyn Gray and I'm here on behalf of national retail federation. I bring you greetings from Malorie Dondan the senior vice president and general counsel of the federation regrets that a long-standing prior commitment precludes giving this testimony. The federation is the largest retail organization and it comprises department, discount, catalog, internet, independent stores. They have about 1. 4 million retail establishments in the country. We thank you also for the long and diligent hours that we know that are implicit in the notice for proposed rulemaking and the efforts taken to clarify both for individuals with disabilities and entities like federations members who are subject to the standards. Today's remarks we are going to focus on two issues that are of primary importance, the safe harbor for existing facilities and the application of reach ranges to the merchandise display apparatus. On the safe harbor, the federation appreciates the inclusion of the safe harbor applicable to existing facilities and we strongly encourage that be retained. Given that standards may be subject to further revision in the future, a safe harbor is necessary to avoid the creation of endless cycle of barrier removal for all of the covered facilities which to the extent such barrier removal is even structurally possible is a very expensive undertaking. The federation respectfully requests, however, that the department modify a safe harbor proposal so that existing facilities need only comply with the 1991 standards. As proposed by the department, a safe harbor applies to elements that currently comply with the 1991 standards, however, the safe harbor is lost if such elements are subsequently altered. The federation believes such an approach unnecessarily confuses and complicates the provision of accessibility. As currently proposed this created a quagmire for facilities given the prospect of continuing future revisions in the standards. In order to avail themselves of the safe harbor, covered entities will have to maintain detailed and meticulous documentation regarding all changes and maintenance of their facilities no matter how minor. This could be expensive, and time consuming, particularly for retailers with numerous locations. Moreover, the safe harbor is problematic given the on going uncertainty and the ambiguity of which constitutes an alteration. Under both the current and proposed regulation, there is uncertainty regarding the point, if any, at which a facility has altered a sufficient number of elements in a particular space that can be said to be altered as distinct from modifying only particular elements within that space. We strongly encourage the department to clarify the issue, both with respect to the safe harbor and the definition of alteration. Point two, and we are going to go in a minute to the power point, is the reach range to self service merchandise racks. The revised standards will be extremely problematic if applied to merchandise display racks and other apparatus. The federation requests that the department retain the current exception for all self service display fixtures regardless of type in mercantile settings and I trust that's in section 4. 1. 3. The exceptions set forth in proposed section 225. 2. 2 is limited only to self service shelving. The narrowing of this exception coupled with the reduction in the allowable side reach range from 54 to 48 inches above the finished floor is a significant logistical problem for retailers. And we are going into the power point now because shelving is merely one of a myriad methods of displaying merchandise for sale. The first picture that will come up hopefully will display a floor to ceiling combination. They have shelves below. You have shelves way up high which are not self-serving but in the interim we have display hooks that hang merchandise so that there is a variety of ways in which you can retrieve from the self-service shelving. The department and federation previously noticed in its written comments and advanced notice of proposed rulemaking and while various department officials and access board officials suggested the failure to exempt the display apparatus other than shelving was merely inadvertent. We find that the issue has not been addressed in the proposed rule. Both shelving and other types of display fixtures serve exactly the same function, and present the same challenges to accessibility. We can show another picture if we will and that will show a different type. Here is another look at shelving below the hooks and we will continue onto the next picture. Here you have the shelving below and you have wall hooks with small brackets that show shoes all the way up, and it goes all the way up into a vertical display, if you will. Again, not a shelf, but a bracket that is holding shoes. On the next picture, I think you will see, again, a different type, a rounder, if you will, that's used in retail establishments. These types of certain merchandise displays such as those for long coats, and we will go into the next picture, the long coats and dresses. Here you see those -- they must be higher than 48 inches. You can certainly see in this case that there are formal dresses that are already touching the floor. If in fact we reduce that top rod to 48 inches AFF we are going to have dresses, men's long overcoats dragging on the floor which will not only give the impression of poor merchandising, but it will probably damage the merchandise as well for those who walk or roll over it. For all of the foregoing reasons section 225. 2. 2 of the proposed rule should be clarified, please, so that the current exception under the 4. 1. 3. 12B which is also incorporated into the international building code is retained for all types of self-service merchandise display fixtures. We thank you very much and we will provide our full comments for today as well. Thank you.

>> LORETTA KING: Thank you very much. We hope that you will provide the slides. Could you put those in the record?

>> CAROLYN GRAY: We will indeed, Madame Chairman.

>> LORETTA KING: Thank you very much. Our next speaker is Richard Dolesh.

>> RICHARD DOLESH: Good morning, thank you. National recreation and park association is a national non-profit organization dedicated to advancing park recreation and conservation efforts through a network of 21,000 citizens and professionals and NRPA has a huge reach to counties throughout America. We believe that access to recreation opportunities improves quality of life for all Americans including those people with disabilities. Therefore, access and inclusion are part of what we do and what we stand for. NRPA has worked with the access board over a number of years to have guidelines for a variety of specialized guidelines including those in the department's NRPM. To provide the best comments we can, our public policy committee, our board of trustees appointed a task force composed of park and recreation professionals, experts in the field and citizen advocates to review this NPRM. Our testimony today addresses questions relating to six issues, the concept of safe harbor, the complaint process, golf course design, single rider golf cars, play areas and ticketing. We would like to note that due to the very short time frame since the NPRM was issued and the date of this public hearing our analysis and comments are not complete. Our working group will continue to review and analyze the proposed rule and will offer more complete comments in writing by the time of the deadline. Let me mention the concept of safe harbor. In the proposed rule the department asks about the concept of safe harbor. We believe the safe harbor clause is fair and appropriate. We believe it should be included in the final regulation. We would like to note the history of the application of this concept. When the access board published its final play area guideline in 2000 and final regulation guidelines in 2002, many units of local government began to use final guidelines as standards. NRPA believes that to now require agencies to redo projects which were completed in good faith would be unfair and a waste of scarce local government resources. Second, the streamlining of the complaint process, NRPA recognizes the need for prompt resolution of complaints with timely investigation of complaints and the need for discretion in the selection of which complaints to investigate. There is an important reason why we opposed the proposal. We are concerned that allowing designated agencies to exercise discretion in selecting Title II complaints for resolution fundamentally changes the rights of individuals who believe they have been discriminated against because of their disability by the local government which is supposed to serve them. Therefore, we believe each complaint should be investigated and streamlining should not allow for selective enforcement. Third, golf course design. NRPA believes the access board's final guideline for newly constructed golf courses is being adhered to by public government corporations, however we believe the department makes a mistaken assumption in regards to its Regulatory Impact Analysis relating to course design. It seems to assume that every putting green will need to be regraded to provide compliant routes, that is pedestrian routes to these features. This simply isn't true. The approaches to tees and greens at golf courses are relatively flat with little slope, especially those courses used by recreational golfers. Further, on the issue of single rider golf carts. One properly maintained single rider golf car should be made available at every golf course. NRPA believes that pooling arrangements between nearby golf courses to enable shared use of a single rider car will effectively meet the demands for such cars. Fifth, play areas. In answer to question 7 of the NPRM, NRPA recommends the Department of Justice provide clear direction regarding supplemental requirements for play areas and recreation facilities rather than determining accessibility in these facilities on a case by case basis as governed by case law. NRPA also believes that the standard of a reasonable number, but at least one, is not a sufficient working standard for determining the appropriate number of existing play areas that a public entity must make accessible for its program to be accessible is asked for in question 24. Clear, specific scoping standards and technical provisions outlining what constitutes an accessible play area program should be developed. NRPA is investigating options for a defined formula and hopes to provide further insight and suggestion in our written comments. Finally, on the issue of ticketing as proposed in questions 20 and 21, regarding the purchase of tickets by secondary purchasers, NRPA believes public entities should not be expected to accommodate individuals without sufficient notice. Public entities should be released from the obligation of having to provide accessible seating for those who may have purchased tickets on the secondary market. That concludes our remarks for today, but as I stated at the outset we would like to do more analysis and review of these and we will submit more complete comments. I appreciate the opportunity to testify and we applaud your efforts to move forward with the adoption of the access board's guidelines regarding state and local services. Thank you.

>> LORETTA KING: Thank you very much. Our next speaker is Kenneth Shiotani.

>> KENNETH SHIOTANI: Good morning, my name is Kenneth Shiotani senior staff attorney with the national disability rights network, national disability rights network is the membership association of the protection and advocacy agencies located in all 50 states, the District of Columbia, the native American community, Puerto Rico and the territories. The protection and advocacy programs are authorized and funded to provide legal representation and related advocacy services on behalf of persons with all types of disabilities in a variety of settings. The P & A system comprises the nation's largest provider of legally-based advocacy services for persons with disabilities. The P & A devoted considerable amount of time and resources to insure people with disabilities have full access to inclusive education, access to public accommodations and services and programs of state and local governments. The P & A's are in the front lines of receiving complaints from individuals with disabilities and their families when public accommodations and state and local governments fail to maintain accessible facilities, fail to provide auxiliary aids and services, refuse access to individuals because they have service animals or otherwise discriminate in violation of the ADA. And thus we appreciate many of the department's proposed regulatory changes that have immerged from the department's enforcement efforts. We are particularly -- so we have positive comments first. Praise first. We are particularly pleased the department's specific regulatory changes and guidance. We appreciate the explicit acknowledgment in the regulation that service animals include individual animals that do work or perform services for individuals with disabilities including psychiatric, cognitive, or mental disabilities. Also in light of some litigation by one of the P & A's, we appreciate the explicit clarification that service animals should have access to all areas in a hospital where members of the public are allowed including emergency rooms and other parts with only very narrow exceptions adopting the CDC recommendations. We are generally pleased with the effective communications regulations, we appreciate the new definition of a qualified reader, we also approve the explicit recognition that a disabled companion of an individual seeking state or local government services also has a right to an interpreter though we have some question about some of the language in that provision. We appreciate that the department is issuing in its Title II regulations language explicitly prohibiting a public entity from requiring an individual to bring an individual to interpret for him or her. We appreciate the explicit strong limitations on using an individual accompanying a person with a disability to interpret except in an emergency situation, and, again, we may have some further suggestions for that provision. We also applaud the provision or, I'm sorry, the prohibition on using children as interpreters as discussed in the notice of proposed rulemaking though I think it should be in the rule itself. We also -- I'm sorry, another positive development is the requirement of equal access to ticketing, the regulations regarding ticketing for theaters and sports arenas and other similar venues for people with disabilities. We particularly appreciate the proposed requirement to allow the purchase of three companion seats so that a person using a wheelchair can sit together with their family and friends. I see our time is running short. We do have a number of objections. Our strongest objection is in the Title II areas in the scoping and number or the dispersion of play and recreation areas, the reduction in scoping will mean that fewer playgrounds and pools would be made accessible to people with disabilities. There was no specific requirement for accessible and play regulations, recreational areas in the 1991 ADAAG and, therefore, much more is needed. The new 2004 requirements set out explicit requirements for play and recreational facilities, playgrounds, pools, saunas, steam rooms, and we particularly object to the reasonable number, but not less than one standard also referred to by the previous speaker. We believe that in evaluating what's a reasonable number, you must take into account the size and scope of the local government, the geographic area and the availability of public transportation as well as barriers that may exist between playgrounds. If there is -- between two different, one accessible playground and inaccessible playground, the fact they are a half a mile, you have to take a broad view of what's nearby and what's not nearby, and we believe that in the playground context, the standard of at least half may be acceptable, but the standard of at least one is certainly not. We are also extremely troubled by the proposal to completely exempt existing playgrounds under a thousand square feet and existing pools with less than 300 linear feet. Both exemptions would have the effect of maintaining significant numbers of inaccessible playgrounds and pools. The access board's assumption in the 2002 regulatory assessment for recreational guidelines assumed that 90% of swimming pools in public schools and 40% of swimming pools in public parks would be under the 300 linear feet standard. So by making that an exemption, the department will be denying huge numbers of high school students and individuals with disabilities to access to pools in their own schools or in their communities. We need to remember that the ADA is a civil rights statute that was carefully crafted to take into consideration the needs of both accessibility and balancing the burdens on state and local governments and we will be submitting further comments within the comment period. And thank you.

>> LORETTA KING: Thank you very much. Our next commenter is Day Al-Mohamed. Federal affairs officer for the American Psychological Association. Good morning to you.

>> DAY AL-MOHAMED: Good morning on behalf of the 148,000 members and affiliates of the American Psychological Association or APA, I would like to thank you for the opportunity to comment and provide this testimony on the proposed rule regarding the department's intention to revise the ADA regulations. We appreciate the time and effort that was dedicated to this and it's very comprehensive and complex. APA is the largest scientific and professional organization representing psychology in the United States and is the world's largest association of psychologists. Our group is comprised of researchers, educators, grad. students. We work to advance psychology as a science, profession and means of providing health, education and human welfare. APA has a long-standing commitment to promoting independence and integration of people with disabilities into the community and the work force and the optimal development and well-being of children with disabilities. Due to the complexity of the -- and the broad range of issues addressed, I think we would like to just talk about a very small part here today, and we will go into in more detail in our comments. What we wanted to talk about was about the idea that the proposed regulations will for the first time establish specific requirements for the design of accessible public facilities such as courtrooms and recreation facilities including playgrounds, swimming pools, golf courses. APA supports changes that make it easier for individuals with disabilities to travel, enjoy sports and leisure activities, play, and otherwise participate in society. The current program accessibility regulation requires a public entity's program and services be accessible when viewed in their entirety. The APA has concerns regarding the language that only a reasonable number, but at least one of the play areas will be required to undertake structural modifications to provide access for individuals -- children with disabilities. Our understanding of the term program access would also implicitly require at least one accessible facility. We have concerns that the reduction in scoping and exceptions proposed may negatively impact children with disabilities. Research has shown that the ability to play with other children and interact in an inclusive and integrated setting has a significant positive effect on the social growth and development of children including children with disabilities. APA supports the inclusion of additional factors for consideration regarding the number of play areas to provide access for children with disabilities, which, as I said, is probably the core of what we wanted to say today. We would like to add comments in support of the revised standards the department has proposed to adopt. We strongly support language in the proposed rule that expands the requirement for accessible routes, expands the protection of visual alarms in employee work areas, that increases the number of entrances required to be accessible and provides for knee and toe clearance at sale counters that provide on the forward approach. At this time, actually that's going to be the extent of our comments. Now, I know we will provide more detail later but we would like to applaud the department for its comprehensive review and detailed efforts to adopt actual enforceable accessibility standards under the ADA that are [in line] with minimum guidelines and requirements issued by the access board. I thank you for your consideration of our preliminary comments concerning the proposed regulations and we look forward to the opportunity to work with you in helping to address these provisions in the future.

>> LORETTA KING: Thank you very much. Our next commenter is Jennifer Conrad.

>> JENNIFER CONRAD:Good morning, my name is Jennifer Conrad I am the disability rights program manager for the equal rights center. The equal rights is a non-profit and civil rights organization that for 25 years has been dedicated to identifying, challenging and eliminating discrimination in housing, employment, public accommodation and government services through education, research, testing, counseling, enforcement and advocacy. The ERC is a membership organization, many of whose members are people with disabilities and we are dedicated to addressing individual complaints and systematic discrimination against people with disabilities on a national basis. Thank you for holding today's hearing on the proposed amendments of Title II and Title III of the ADA. We generally believe that the proposed regulations will be another tool in eliminating discrimination against people with disabilities. Today I'm here to comment on four specific areas of the proposed regulations. One, hotels, two, accessible seating in entertainment venues, three reach ranges, and lastly accessible public entrances. First, the availability of accessible hotel rooms is a great concern to ERC and our members. Many of our members have had difficulty obtaining accessible hotel rooms due to the poor reservation systems and lack of accessibility. Section 36. 320 attempts to address the issue of hotel reservations. The ERC supports clarification on the requirement for hotels to honor reservations for accessible rooms and to honor reservations for specific types of accessible rooms. Furthermore, the ERC supports additional clarification on the proposed standards, section 224. 5 regarding the requirements of hotels to disperse accessible rooms -- I'm sorry -- among a variety of classes and designs. Many hotels seem to believe that so long as they have an accessible room or rooms it is unimportant where the room is located or how its occupants will be accommodated. It is absolutely inconsistent with the hospitality afforded to guests without disabilities. The complaints the ERC has received regarding this is specific two scenarios. First, family members who have a member with a disability complain that many hotel rooms have no accessible rooms with two beds. Every hotel in these chains is inaccessible, not only to such families, but also to all people who require two beds in an accessible room such as those people with disabilities that have an attendant. Second, members who have requested an accessible room with a view are instead given hotels in the -- hotel rooms in the back of the hotel without a view because those are by design the only accessible rooms. This disparity in treatment should be addressed and prohibited by regulations. The ERC believes that the proposed regulations on stadiums, arenas, theaters and similar facilities to make additional tickets available in proximity to accessible seating is a much-welcomed change. By increasing the availability of ticketed seating adjacent to wheelchair spaces, it greatly increases the likelihood people with disabilities will be able to sit with people in their party. The ERC has received many complaints about people who use mobility devices that have to sit apart from their families or groups at entertainment facilities simply because a facility will not allow more than one seat adjacent to the wheelchair accessible seating. The ERC has also received complaints from law firms. This situation defeats whole purpose of attending events with one party or family. And further marginalizes people with disabilities. The ERC strongly believes that true integration of people with disabilities cannot and will not happen until equal access happens. Thank you. The third comment that we would like to talk about is the support of the controls from 54 to 48 inches. This change will insure that elements are accessible to people with disabilities, people of short stature and people who have limited use of their arms, which in turn creates a larger access to a larger portion of the disability community. My last and final most important comment is that we strongly support the proposed standard of requiring at least 60% of public entrances to be accessible. The importance of accessible entrances to public facilities cannot be overestimated. Without accessible entrances, people with disabilities are largely foreclosed from participating in governmental processes and services as well as the full scope of commercial opportunities offered to people without disabilities. The ERC receives multiple complaints each week from people -- I'm sorry. I will finish. The main thing is that we fully support that. And so thank you for holding this hearing and letting me testify today.

>> LORETTA KING: Thank you very much. Our next speaker will be John Caden, the president of RehaMed International.

>> JOHN CADEN: Good morning, I obviously have a lot of things to say which I will put in my written notes, but I will, since due to time constraints, I will just, you know, kind of paraphrase what I had planned to say. I want to speak specifically about serious reservations I have regarding your proposed changes relating to program accessibility and providing access to existing swimming pools that are under 300 feet in length. Both proposed changes seek to limit the availability of swimming facilities for people with disabilities and because the rationale for proposing changes are basically the same my comments will relate to both issues. There seems to be ambiguity relating to the issue of program accessibility. Throughout your document, there are significant push backs as to the intent of the original program accessibility provision of the ADA law. Here is the actual language of ADA35. 150. Quote, a public entity should operate each service, program or activity so that the service, program or activity when viewed in its entirety is readily accessible to and usable by people with disabilities. Then it says this paragraph does not, one, necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities. The key word in that statement is the necessarily. The next two paragraphs explain the circumstances when the public entity does not have to make these facilities accessible. Paragraph 2 talks about historical significance of the buildings, but paragraph 3 stipulates that the public entity does not have to take action that would result in undue financial burden so long as it can approve that existence of the burden. Now, moving to your document, when discussing safe harbor you talk there Title II does not require structural modifications in all circumstances in order to provide program access. As a result of this flexibility, the department believes program accessibility requirement as it is codified in current regulation may appropriately mitigate burdens on public entities. The circumstances cited here point back to Paragraph 3, the circumstances of the public entity's ability to demonstrate the undue financial burden. The proposed rule, however, creates flexibility that begins to remove the burden of proof from the public entity and moving down to the swimming pool section, only a reasonable number, but at least one such swimming pool would be required to undertake structural modifications. That section makes no mention of any qualification but rather makes a totally new ruling that only a reasonable number, but at least one swimming pool would need to be accessible to satisfy the program's accessibility requirements so the program access rule has evolved, it has moved from requiring all facilities to be accessible to creating this flexibility by talking, saying modifications aren't necessary in all circumstances without defining what those circumstances would be to invent a new argument that the entity has just one accessible facility within the jurisdiction and the entire facility would be considered accessible without the need to make any excuses why the rest of the facilities are not accessible. So these proposed changes would result in an environment of segregation with respect to accessible swimming pools. If every pool site within an entity does not have at least one accessible pool and if people with disabilities are unable to partake in a swimming activity at any pool they choose but are made to travel to the community's accessible pool then they would be effectively segregated from mainstream society. Imagine the repercussions if the program in question was school integration and the Department of Justice allowed a reasonable number but at least one integrated school to satisfy that program's requirements. In a D. O. J. publication dated January 26, 1992 when clarifying general provisions against discrimination you say, quote, integration is fundamental to the fundamentals of the ADA. So since I only have 40 seconds, I will jump into cost real quick, and one of the complaints is that the undue burden is cost. And the cost of the commercial swimming pool that's under 300 linear feet is probably about $1. 2 million. The cost of a pool lift to make that facility accessible is probably around $5,000. That's four-tenths of 1% of the cost of the swimming pool and I think that's a small price to pay for insuring access, for keeping with the intent of the Americans with Disabilities Act and protecting the civil rights of over 50 million of our fellow Americans. Thank you.

>> LORETTA KING: Thank you very much. We have a commenter by telephone. It's Mr.  Scott Inson, the vice president of the National Council of Chain Restaurants available on the telephone. He may proceed.

>> SCOTT INSON: Good morning. My name is Scott Inson. NCCR is the leading trade association exclusively representing chain restaurants. Collectively these companies own and operate more than 50,000 restaurants and another 70,000 facilities through franchise agreements. In the aggregate our members and the franchises employ more than 3 million people. As such our members and the franchisers specifically impacted by Title III of the Americans with Disabilities Act as each restaurant is a place of public accommodation. For purposes of addressing the most important issues raised by the NPRM we sought feedback from our membership. When asked what are the three most important issues, one member responded retroactivity, retroactivity and retroactivity. I think this response demonstrates critical importance of this issue. The chain restaurant industry has spent millions of dollars to comply with its Title III obligations, and more specifically the accessibility guidelines created by the Access Board. Since another part of the department's current rule making will result in finalizing significant changes to the guidelines, we and our members are very concerned with the potential for retroactive application of the guidelines both directly and indirectly. The indirect application comes by virtue of the fact that both the department and the courts have historically looked at the accessibility guidelines as a reference point for determining what constitutes an architectural barrier for purposes of the barrier removal requirements. Therefore, it's critical that new guidelines and all changes contained therein not be allowed to become the reference point for the purpose of defining architectural barriers that exist prior to the finalization of the guidelines. In short, the goal posts are being moved and it would be inequitable to require public accommodations to remove barriers, unquote, in existing facilities that will now only be considered barriers by reference to the changed guidelines. It's important that places of public accommodation not be required to go back and apply guidelines to facilities that were newly constructed, altered or underwent barrier removal using old guidelines. Another issue of great importance is one involving where the line is to be drawn between the requirements of Title III and Title I. Specifically, we are greatly concerned over the proposal to extend the reach of Title III into employee work areas. Under current law, employee work areas must be designed and constructed so that individuals with disabilities can approach, enter and exit the employee work area. Accessibility within employee work areas has to date been left to the reasonable accommodationemployment provisions contained in Title I, however, under the newly proposed guidelines this long-standing separation between Titles I and III is being abandoned in favor of allowing Title III to encroach into employee work areas. The newly proposed guidelines will require the accessible common use circulation paths be incorporated into the design and construction of the employee work areas, while obviously well intended, the fact is that such a requirement will wreak havoc on the design of restaurant kitchens. Restaurant kitchens are designed to be compact, efficient employee work areas. The space and square footage devoted to the kitchen is minimized relative to the dining and customer service areas. Moreover kitchen layout and design is controlled by placement of kitchen equipment and individual work stations. In a modern commercial kitchen there is no excess square footage. As such, creating accessible circulation paths will be extremely difficult and will come only at the cost of taking away square footage from the customer areas of the restaurant. We are aware of the proposed exemption for employee work areas that are less than 1000 square feet and the suggestion that such an exemption will likely cover kitchens in quick service restaurants. However, only in the smallest of such restaurants would the kitchen be less than a thousand square feet. We will be asking that the exemption threshold be increased so it will have a meaningful impact on the chain restaurant industry. We would like to briefly comment on the proposal as it relates to dining surfaces. Under current law restaurants have been required to insure that at least 5% of fixed dining tables provide accessible knee and toe clearance. Under the proposal the 5% standard would be applied to seating and standing spaces. Again, we urge that there be no retroactive application of such a change. We also urge that the 5% standard continue to be applied to fixed dining tables not seating or standing spaces as it is the design of the table that provides the accessible knee and toe clearances. We intend to submit comprehensive written comments to the department during this rulemaking and we are most hopeful we can work with the department to improve upon the changes that have been proposed. Thank you.

>> LORETTA KING: Thank you very much. Our next commenter is Joe McInerney.

I'm sorry for mispronouncing the name.

>> JOE MCINERNEY: Good morning, I am the president and CEO of the American Hotel and Lodging Association. The AHLA is the national association representing all sectors and stakeholders in the lodging industry. Our members consist of a broad spectrum of lodging facility owners and operators including many small businesses. I want to thank the department for giving the association the opportunity to testify at today's hearing. The hospitality industry fully supports the department's efforts to insure that lodging facilities are accessible to individuals with disabilities. Our members have spent billions of dollars in the last 16 years complying with ADA's requirements. For that reason our members appreciate the department's recognition of this effort through the proposed element by element safe harbor. It would be highly unjust to require hotels that in good faith complied with the current standards to spend millions more in immediately retrofitting their presently compliant facilities to meet more stringent requirements when the final rule is issued. Although we are still in the process of reviewing the NPRM our initial impression is that it places a particularly heavy burden on the hospitality industry without providing adequate guidance on difficult issues that lodging owners and operators have grappled with for the last 16 years. For example, requiring presently compliant accessible guest room bathrooms and single user rest rooms to comply with the new standards when they are altered in the future will cost more than $500 million because virtually all of the bathrooms and electrical fixtures will have to be relocated when they would otherwise have been just replaced. This calculation seriously calls into question the department's determination that the impact of the entire new proposed regulation is only $315 million. We urge the department to look at this issue closely and make clear in the final rule that the hotels with accessible bathrooms that comply with the current standards do not have to move fixtures or walls in future alterations to comply with the proposed standards. The lodging industry is also very concerned about the department's failure to cover under the element by element safe harbor existing service counters that meet the height and width requirements of the current standards, but not the new depth requirement of the proposed standards. Currently compliant service counters must be explicitly covered by the element by element safe harbor. The department's position on accessible room dispersion continues to be an area of concern. Our members should not be required to bear the risk of interpreting the department's vague requirements and then be told after they have finished construction that they should have interpreted them differently. The propose of the regulations will make matters worse by adding additional factors such as views in whirlpools while providing no practical guidance on how rooms should be distributed. The department's new requirement that barrier removal must be done at the same standard that applies to alterations in new construction is another serious problem. Even though the ADA provides that barrier removal needs not be undertaken if it is not readily achievable, the department's recent enforcement actions make it clear that it does not recognize this exception for companies with resources. We do not believe that the Congress intended this result. The new proposed rules regarding hotel reservations also raise serious concerns. This is a very complex issue that should be further explored through working groups with all of the stakeholders. The 60-day comment period is not adequate to address these issues which require input and cooperation from on line reservations providers that may not be subject to ADA. Finally our members are, have very serious concerns about the qualified small business safe harbor. First, we do not believe that the safe harbor should be based on the percentage of business' gross revenue. Under this approach a business could be operating at a significant loss for many years and would still have to engage in barrier removal to be covered by the safe harbor. Second, we are concerned that the safe harbor creates a presumption that small businesses must spend up to a specified amount every year in order to comply with their barrier obligations. Third, we are concerned that the safe harbor calculations for small businesses will informally become the presumptive standard for the businesses that are not qualified small businesses. These are but a few of the concerns regarding the NPRM. We hope the department will give careful consideration to the comments in the issuing of the final rule. We, again, thank you for the opportunity to testify at this hearing today.

>> LORETTA KING: We look forward to your full comments. We are going to take a five-minute break.

>> LORETTA KING: We will now resume our hearing regarding the notices of proposed rulemaking under Titles II and III of the Americans with Disabilities Act. We are being joined by other department officials, that is Julie Warren. Our next speaker will be Faith Cristol by telephone. She is the vice president of work force and tax, retail industry leaders association. Miss Cristol, you may begin.

>> FAITH CRISTOL: I am the vice president of work force and tax at the Retail Industry Leaders Association or RILA. ADA members provide millions of jobs and operate more than 100,000 facilities and disability centers in Mexico and abroad. However, we have concerns with certain provisions that I will now discuss. One, effective date. We urge you to consider that covered entities must comply with proposed standards for construction that begin six months after publication of the final rule. We strongly disagree that this period provides sufficient lead time for businesses to comply. It is simply not realistic in terms of design or construction projects time line. The 18-month period is the least problematic for our members. Two, receipt retroactivity. Members identified as the most important issue the safe harbor provision. We need additional clarification regarding the scenario when the employer wants to define elements -- would the employer have to comply with requirements or may the employer -- the former scenario poses additional concern for switching out similar elements. Verification is also needed to determine how the safe harbor would apply to settlement agreements or consent decrees and whether safe harbor would be adequate to protect businesses from litigation or further litigation. The safe harbor should also encompass situations from compliance based on state or local code have been certified as equivalent to the 1991 standards irrespective of revised standards ever promulgated. Three, this is an issue of particular importance to the retail industry. We are asking that the proposed language clarifying display units are also excluded in this category for the same reasons that the shelving units are exempt. There is no logical reason why display apparatus should be required to comply with the new reach range requirements when other types of shelving units are exempt. Without specific mention of display apparatus in the exemption along with self service shelving and merchandise shelving there is confusion. Four, mobility devices. We would like other mobility devices defined and allow commercial facilities -- policies and practices with respect to other devices this would include the right to limit size, usage, et cetera. We would appreciate clarification on the following issues, A, whether Title III facilities are still only required -- utilizing common wheelchair specifications as a general standard guideline. We would also like confirmation that it will not be necessary to guarantee that all spaces be on the central -- accommodate the newly defined alternative personal mobility devices. Whether individual -- or that emit fumes or make disruptive noise. Five, service animals. We would like to see clear language stating it is acceptable to question individuals on the service or task provided by the service animal. This will help employees identify and distinguish individuals with legitimate disabilities as qualifying service animals from those requesting to bring their pets into the store as a guise of a therapy animal. We would like additional language -- service animal is not a service animal unless the animal is accompanying its handler in a manner that if needed would allow the animal to perform the task or function for which it was trained. Further, it would be helpful if the department would provide in the regulations that businesses may preclude customers from placing service animals inside of the shopping carts they provide. I would like to thank you for this opportunity to testifyby the August 18th deadline, but in the meantime please feel free to contact us with any questions.

>> LORETTA KING: Ms. Cristol, we had some difficulty understanding your testimony due to technical difficulties, so I would request that you submit your verbal statement as well as part of the report.

>> FAITH CRISTOL: No problem, I'm happy to do that.

>> LORETTA KING: Thank you very much. Our next commenter is Nancy Hiteshue. Is she available? Thank you. Manager of the federal regulatory affairs American Institute of Architects. Welcome.

>> NANCY HITESHUE: Thank you and good morning. I'm Nancy Hiteshue, Federal Regulatory Affairs Manager for the American Institute of Architects. And on behalf of the more than 82,000 members of the AIA, we welcome the opportunities to submit comments in response to the Department of Justice's notice of proposed rulemaking. The original guidelines the ADA issued in 1994 have served to raise the level of accessibility and bring awareness to the forefront and the AIA welcomes proposed changes as being productive and positive. We appreciate the opportunity to provide continued input to the process of developing the rules governing accessibility. While we are still reviewing the notice of proposed rulemaking our submitted comments will be based on our members' extensive experience and knowledge of methods and means for applying ADAAG as adopted over a decade ago and our strong belief that the rules must contain clarity, consistency and certainty.

When the Department of Justice published advanced notice of proposed rulemaking in 2004 the AIA established a committee to examine not only proposed new rules but issues raised by Department of Justice in its notice, specifically the 59 questions that were proposed. In 2005, that group developed two documents as a result of their work in response to the Department of Justice's specific questions and an appendix to the document that included comments on the ADA accessibility guidelines itself and these documents were submitted at that time. We were pleased to note that Department of Justice in its notice of proposed rulemaking has shown it shares our concerns on the issues we raised in 2005. The timing of implementation of the new guidelines has a critical impact on existing buildings. Having complied with existing standards set by the current guidelines, the impact of the new revised regulations on these existing structures is significant. The addition after proposed safe harbor clause for such facilities was overwhelmingly supported by the AIA and we are pleased to see the department recognizes this issue. The AIA actively supports the development of comprehensive coordinated and contemporary standards for accessibility that can provide every American with a safe, healthy and productive environment. AIA believes that architecture shapes society and enhances quality of life for this and future generations. Architects must advocate for beautiful, healthy and equitable design that respects and accommodates society's diverse cultures and needs. Regulation of the construction industry shapes the environment. Without clarity and certainty in these guidelines and appropriate and understandable rules for the enforcement of them designers, builders and owners and the people who use the facilities face a no-win situation. Significant improvements have been made in many areas where prior standards were deficient and led to misunderstandings and thus resistance. Our hope and the reason for our participation in this process is to see that the new rules that Department of Justice will issue with this notice will allow architects to smoothly and effectively design the types of productive and positive environments envisioned by this law. To further that effort, the AIA has again convened the same group of experts with our profession to examine the proposed regulations from Department of Justice. From that review, we will be providing additional detailed feedback that reflects the perspective of our members on this critical issue prior to the August deadline. We believe that our profession, our clients and the general public will be well-served by the improvements represented in the new guidelines and we urge their implementation. Our coming recommendations regarding both the rules for adoption and the rules that implement the new ADA, ABA accessibility guidelines are intended to help the department best achieve the Americans with Disabilities Act. The AIA looks forward to continuing to work with the Access Board and the department to improve the equality of all people with disabilities to accessible environment. We appreciate the opportunity to comment on these important rules.

>> LORETTA KING: Thank you very much. I would like to take this opportunity to remind everyone of the rules. We need all commenters to be in the staging area which is in the very back at least 20 minutes before their testimony so we are aware who is going to testify next. And please follow instructions of the DOJ staff in that regard. I do not see, is Ms. Kearns available? Has she reported to the staging area? Oh, I'm sorry. Miss Kearns?

>> KAREN WISTER KEARNS: Yes. I'm on the telephone.

>> LORETTA KING: OK, Ms. Kearns. Good morning to you.

>> KAREN WISTER KEARNS: Good morning.

>> LORETTA KING: You may proceed.

>> KAREN WISTER KEARNS: Thank you. My name is Karen Wister Kearns and I'm a disabled person with mobility impairment who uses a service dog. Chloe is a miniature Schnauzer and although I have been disabled for 20 years I did not use a service animal until two and a half years ago. What I perceive to be an improved quality of life has become on many occasions a nightmare when I leave my home. At a glance, I do not look disabled. So how would one determine if I am disabled and need a service dog? I hear this question all of the time and you would not believe how cruel people are when they respond. Because my disability is not obvious, many assume, especially in the airline industry, that Chloe must be an emotional support dog despite the fact that I am physically disabled and challenged by many obstacles. I wear a glove when my hand is cold. And it also adds pressure to relieve my pain slightly. On one occasion in a convenience store my dog was thought to be a sign of danger and the cashier put up his hands and asked what I wanted. I said I wanted to pay for my sandwich and at that time state police arrived on the scene. Fortunately the police saw the handicap placard on my car. They greeted me with a smile as I left the store. I should be able to travel from Pennsylvania to Arizona where I have another home for medical reasons as needed and to doctors and hospitals throughout the country for treatment, independently. Unfortunately, I do not always -- I did not always have a service vest on the dog. I just had a service tag on the collar. I have a disability plaque for my car and examination card in my wallet that shows my name and the corresponding number on my plaque issued by the State of Pennsylvania. I have a note from my physician that says I'm a disabled person who travels with a service dog. Unfortunately 14CRF part 382.55.1 regarding service -- concerning service dogs and air transportation contains a punctuation error that I have been informed would take an act of Congress to amend to indicate that service dog identification -- we need to add a semicolon or colon. It's addressed in CRF section 38. 3624 where it states that the ADA does not require proof or certification. This, of course, creates a lot of confusion. Based on the question that some form of national identification for a service dog, we must find reasonable means of confirming that one is disabled and uses a service dog regardless of where they travel in this country for any purpose. Although we are not addressing the Carrier Access Act, we are trying to make the ADA rules under the Department of Justice more specific, perhaps the Department of Transportation should be doing the same. This is my primary purpose for making this statement here today. However, there needs to be some consistency between federal agencies that are mandated directly to the Americans with Disabilities Act. One possible source could be a disability card that is provided when one is issued a disability plaque for handicapped purposes. They can be easily verified by law enforcement. There must be a specific reason for which one must qualify. In my case I have partial use of one limb. I suffer from reflex sympathetic dystrophy or recently termed chronic regional pain syndrome. I have limited use of my hand and this causes me to drop things. The experience is very painful. Change affects me and in my case heat reduces the pain level. Nothing can -- often I need wheelchair assistance when traveling alone simply because I cannot ambulate and carry items with both hands. The issue of protection is relevant, not protection from a crime but the need to keep others from bumping my left hand or arm. When I have Chloe in her wheel carrier -- causing me physical and emotional pain for the lack of understanding there is no national service dog identification -- certification. In regards to advanced notification with airlines and listing her with me on the passenger list have consistently harassed me for physical and emotional harassment. I have filed a complaint with the Department of Transportation but I have been unable to do so with the Justice Department. The district attorney's office has been -- file charges against Philadelphia ground personnel from U. S. Airways. Therefore, I believe we need a list of accessible forms of identification for disabled people that have service dogs identification.

>> LORETTA KING:Thank you. Thank you very much. I ask that you submit your oral testimony by mail to the hearing as we were having technical difficulties and having trouble hearing all of your testimony.

>> KAREN WISTER KEARNS: Would I do that under the government documents?

>> LORETTA KING: At the post office box that is indicated in the notice of the public hearing.

>> KAREN WISTER KEARNS: And I can send other things along that support this?

>> LORETTA KING: Yes, please do so.

>> KAREN WISTER KEARNS: Thank you.

>> LORETTA KING: Thank you. Just so everyone knows we have heard that part of the audio problem with the telephone is that people are calling from either cell phones or speaker phones. So we are going to try to correct that for future testimony and we apologize for the technical difficulties. Our next speaker is Andrew Holliday. He is with the National Association of Home Builders. Welcome. You may proceed.

>> ANDREW HOLLIDAY: Good morning. Thank you for the opportunity to comment on this proposed rulemaking and on the section 610 analysis. My name is Andrew Jackson Holliday.

I am federal regulatory counsel for the National Association of Home Builders a trade association of approximately 235,000 members. We build 80% of the homes that are built in the United States every year. Historically home builders have not been greatly involved in ADA issues being regulated by the Fair Housing Act, however, we have a question and a request that are related to the rulemaking now and to some threads that run through Title II and Title III. Title II, as you know, does not regulate residences unless they are built by a public entity such as a public housing authority, but it does regulate streets and sidewalks being built by a municipality. These days the home builders building a subdivision typically build the streets and the sidewalks, and then deed them over to the city and thus making them subject to Title II compliance. Because of other federal laws and policies that compliance is becoming more difficult to achieve, regulations from FEMA require higher building pad heights than have been set before for flood protection, and policies favoring smaller lot size and more dense building have caused buildings to be built closer to the street than before. As a result, you have buildings being built higher, at a shorter distance from the street. As a result, the driveway has got to get steeper. This can be a problem when the driveway comes to the sidewalk because under ADAAG, sidewalks need to be essentially flat. When a steep driveway hits a flat sidewalk, a car could bottom out that could render the driveway unusable. Our question as we researched into this, is what the factual basis is for the 2% slope in the ADAAG. We can't find data in support of this slope. We have found some data that indicate that it is not an appropriate slope, but we haven't found any that say that this is an appropriate criterion. Our question then is what is the scientific basis for this data specifically adapted to the section 610 process but as also a requirement for just APA reasons to adopt a rule. Our other question relates to what is probably just some ambitious drafting in the ADAAG, and that's its scope over housing. Its applicability to housing, particularly the way section 233 of the ADAAG is written, it says facilities with residential dwelling units shall comply with 233. That's a very broad statement and we don't think that that's what the Access Board means. We don't think that's what the department of justice means and its regulation either. And we would like to make sure that that is clear. If you read the advisory language that accompanies that section and says that this section -- I guess I should read it, section 233 outlines the requirements for residential facilities subject to the Americans with Disabilities Act of 1990 which is a small segment of residential units, but it would be good if the regulation said that rather than just the advisories because advisories can be dismissed and have been dismissed as merely advisory language. Our request is that that language be clarified, and put into something that has definite regulatory force somewhere in the scope of part 35 and part 36 as adopted. That would clear up some of the circularity that seems to show up in the language, where it says in the ADAAG, for example, that this applies to the extent required by regulations issued by federal agencies, which basically says that you need to obey this rule. The Title III regulations say, begin by saying this applies to regulations that prohibit discrimination on the basis of disability by public accommodations and requires places of public accommodation and public facilities. I'm not sure what the beeping means.

>> LORETTA KING: That means your time is up. But I will give you another minute.

>> ANDREW HOLLIDAY: Okay, I didn't get my one-minute warning. I can stop because I have come to the end of my text, but I would add that if I do have this minute for free that we will be filing written versions of this testimony. We will be filing written comments, but we would like the comment period extended at least to give us time to get full reflection of the Regulatory Impact Analysis. Thank you.

>> LORETTA KING: Thank you very much. Our next commenter is Carol Lumpkin. She is with K&L Gates Law Firm and she is retained by the Dolphin Stadium in Miami. Welcome and you may proceed.

>> CAROL LUMPKIN: Thank you, Ms. King. I am a partner at the law firm of K&L Gates, and I am here on behalf of Dolphin Stadium in Miami, Florida. On behalf of the stadium, I wish to thank the department for this opportunity to comment on the department's proposed revisions to Title III regulations and ADA standards for accessible design. The proposed revisions will significantly impact the operation of assembly areas such as Dolphin Stadium. Specifically, I would like to briefly address two issues affecting assembly areas, accessible wheelchair locations and assistive listening devices. We appreciate that the revised standards will reduce the number of accessible wheelchair locations required in larger assembly areas. During the Access Board's rulemaking to amend the ADA accessibility guidelines Dolphin Stadium, at that time known as Pro Player Stadium, participated in an industry effort to collect and submit to the government data regarding actual usage of wheelchair locations. That data established that the current requirement for 1% wheelchair seating substantially exceeds actual usage, and is more than adequate to meet anticipated demand for many years to come. As a side note for Dolphins Stadium at the time that we collected data, the usage was two-tenths of 1%, and that was only for major events. We are grateful that the revised standards will reduce the required number to roughly .5% for assembly areas. We respectfully encourage the department to maintain this reduced level in the final rule. As for the second issue, we are pleased the revised standards will reduce the number of assistive listening devices that larger assembly areas must maintain. Our information shows that these devices are rarely requested by patrons and that the actual demand for these devices does not approach even the reduced scoping of approximately 1%, but we acknowledge that this is a significant reduction from the current requirement of 4%. We appreciate the department's recognition that the current requirement may be excessive. In closing, we noted that the proposed rules contain several new and extensive provisions addressing ticket policies and procedures, companion seating and scoreboard captioning. These are all issues which will affect the operations of assembly areas. We are carefully reviewing these provisions and will be submitting written comments on them. Again, thank you.

>> LORETTA KING: Thank you very much. Our next commenter is on the telephone, Terry Forest from the independent disability advocate. Is Mr. Forest available?

>> TERRY FOREST: Yes. Good afternoon, this is Terry Forest. I have concerns about accommodations, especially with multiple disability issues and public or federal housing accommodations. There is issues being -- where a provider has to -- connected issues to a primary disability especially if there are physical issues that supersede mental health issues. And when the providers are not knowledgeable on how to write the medical necessity letters, the individuals should not be penalized and have their health deteriorate rapidly due to the providers not knowing how to write the information. And there should be more training for the providers and more training on ADA sensitivity issues with landlords and the need for providing accommodations. There should also be more enforcement options for agencies and individuals who target individuals with mind games and hate crimes so that they can include you so you will be protected under the Americans with Disabilities Act. We have been told here in Massachusetts that you are not eligible for these services yet, but by the time we get through with you, you will be. And this is the only way that these providers know how to get the assistance for individuals, which is more of a neglect of education and really causes a lot of problems with people with disabilities, mental health issues. There is also issues where personal medical documentation needs to be provided to the housing providers which should not be handed down to other individuals who are contracted out or to other individuals who are not directly working with an individual, should not be shared with other community members and other outside entities. There should be an increase in the ADA tax incentives with the I. R. S. for providing accommodations. When an elevator needs to be put in to provide access, it costs around $50,000 roughly. The ADA tax incentive under the internal revenue code section 190 is only $15,000 a year for businesses with tax receipts over a million dollars. Section 44 only provides $5,000 tax deductions for small businesses and it isn't fair nor equitable for businesses to be able to help disabled individuals. There needs to be more of an incentive. We need a time line for compliance with ADA accommodation requests, and we should no longer permanently protect business from not complying with the law requirement. More training needs to be provided and role playing, whether it's interacting with a cognitively challenged individual or walking through assistance to request an accommodation or one of the trainings put on by the Department of Mental Health which is put yourself in my shoes which will allow somebody to sit in a wheelchair and maneuver throughout the day or through other types of access to disabilities that they wouldn't normally come across. There needs to be more clear definitions to make the distinction between human rights and disability rights, especially with trainings with human rights officers and disability rights officers under the protections and accommodations that must be provided to disabled individuals.

>> LORETTA KING: You have one minute.

>> TERRY FOREST: We also need to have ADA coordinators posted on the web sites, especially the Social Security Administration when they say that they do not have to provide accommodations for people with disabilities, they are telling us that they have an ADA coordinator that only works with employees that they do not provide accommodations for people with disabilities. And this has happened many times over the course of five or six years with different individuals from the Social Security Administration. And there also needs to be a change of definition of primary care givers. It needs to include doctors, PCA's, home health aides and rehabilitation programs that are providing services but neglect or they help in aiding the deterioration of a person's health.

>> LORETTA KING: Have you concluded?Because your time is up.

>> TERRY FOREST: Yes, I have.

>> LORETTA KING: Thank you, very much, Mr.  Forest.

>> TERRY FOREST: You have a good day now.

>> LORETTA KING: Our next commenter is Leonard Timm. Good afternoon or good morning. And you may proceed.

>> LEONARD TIMM: I'm a Segway and wheelchair user on a daily basis. This NPRM contains statements about Segways also known as EPAMD's. My goal is to correct fallacies and show how functional definitions are superior to definitions that restrict innovation. Speed is not a legitimate safety concern because a Segway can be operated as slow as an individual can walk. Operating at speeds that are safe for a given environment is governed not by the device, but by the behavior of the individual. It is incorrect and unfair to compare maximum speeds to average speeds as the NPRM has done, comparing maximum speeds across the board would like this. The fastest humans can run like 25 miles per hour. The fastest electric wheelchairs have a maximum speed of 12 miles per hour. The fastest mobility scooters have maximum speed of 15 miles per hour and I personally have exceeded 30 miles an hour in a manual wheelchair. Size is mentioned as a problem. The footprint of the Segway is smaller than wheelchairs and mobility devices. The NPRM states concerns about the safety of height of an individual using a Segway. However, being at or about average height is far superior for visibility and safety than being only waist high while sitting in a wheelchair. Safety is a question of fact. The ADA already stated 36. 208 when the individual poses a direct threat to the health or safety of others, end quote, the individual may be denied benefits of accommodation. It is a fact that some physicians with mobility impairments use Segways while rendering patient care. Segways are being used at the physical therapy departments of the top military hospitals caring for wounded servicemen and women. This alone shows reasonable judgment that relies on current medical knowledge and or the best objective evidence that the Segway is safe. The language used in this NPRM is not written with the broad intent and spirit of the ADA. Remember, clarification and restriction are not synonymous. Don't repeat the mistakes of the past. The Access Board defining a common wheelchair having three or four wheels was not necessary. The majority of wheelchairs have five or six wheels. The definition might sound like this a device used to enhance mobility impaired person's locomotion. It must be able to fit in a space that is 30 by 48 inches, and the device and the individual must weigh no more than 600 pounds. Transit agencies only needed the device's maximum dimensions and weight to design a lift. The number of wheels or whether it had wheels was irrelevant. The NPRM states the fact that the device is not designed -- use by or marketed primarily to individuals with disabilities and are used primarily by people with disabilities complicates the question of whether individuals with disabilities should be allowed to bring them in areas and facilities where other powered devices are not allowed. Now, repeat that statement by substituting the word dog for device. Many people with varying disabilities use dogs but the majority of dogs are not owned or marketed to people with disabilities. Should dogs as service animals be dropped from protection simply because other people own dogs? Should all dogs be allowed into a vehicle?

The answer to both questions is no. It is the use of the dog as well as the use of the device that is the determining factor. The fact that other people use the device is totally irrelevant. The fact that a person with a mobility impairment is using a safe device as a -- using a safe device as their mobility device makes it protected under the ADA. Making erroneous rules that exclude people with disabilities from using devices and products that are not, quote, designed solely for them, is unfair and prejudicial. It stifles personal choice and innovation. It increases the cost of items for people with disabilities because now they must use specially designed devices instead of universally designed devices. This restriction is the antithesis of the concept of universal design. The ADA does not say that individuals must use FDA approved devices to be fully protected from discrimination. I am sure if Congress had intended this restriction they would have stated so and the ADA would have authored it. I would like to thank you guys for having me here today. I would have said that up front, but I knew I would run out of time if I did.

>> LORETTA KING: Thank you very much. Our next commenter is R. Bruce Dickson.

>> R. BRUCE DICKSON: Thank you. I'm also a practicing attorney here in Washington and I'm disabled. I can't walk. I initially used a wheelchair several years ago and then five years ago I began to use a Segway and today I address the question of whether public facilities should be required by the Department of Justice's rules to treat Segways as wheelchairs. I think the law is crystal clear. It requires no less the alternative to require that a disabled person like myself use a wheelchair which is often the universal symbol of disability, rather than a Segway is itself to discriminate against that person in violation of the ADA. Section 3 of the ADA defines disability as either one of physical or mental impairment that substantially limits a major life activity. Two, a record of such impairment, or, three, being regarded as having such an impairment. At the time that this bill passed the house report said Congress acknowledged that society has accumulated myths and fears about disability and diseases are as handicapping as the physical limitations that flow from actual impairment. That's why simply being regarded as having an impairment is itself a disability. For me, to be forced by a public authority to use a wheelchair either by mistake or because of an erroneous fear of the Segway is itself an unlawful discrimination. It's imperative that your regulations outlaw that sort of discrimination except where absolutely necessary. To tell your, to tell you my concern, I would like to give you two examples that really demonstrate the point. Example number one, last year I took a group of five clients over to EPA. When I entered the EPA building with my clients the EPA. guards stopped me and told me I could not enter the building with my Segway. Instead, I was told that I could borrow a wheelchair from a secretary who happened to need it and I could be pushed up to the meeting on the eighth floor. They had to take the wheelchair back because the woman may need it in the course of the meeting and then at the end of the meeting they brought the wheelchair back up and took me down from the meeting. That's because in the eyes of the guards, a wheelchair based recreational device, I mean a Segway was a recreational device and if I couldn't walk I had to use wheelchair no ifs, ands or buts. Example two, tomorrow I will be teaching a class in Philadelphia, and I had planned to actually, as an effort to get new clients for the legal area in which I practice I had planned to take Amtrak to Philly tonight, but Amtrak has a new policy. I have been using Segway on the Amtrak for the last five years but the new policy is that they do not allow the disabled to take a Segway on the train. Subsequently, they require that I use a wheelchair, not only getting to my meeting in Philadelphia, but obviously since I can't take a Segway with me, I will have to use wheelchair throughout the meeting tomorrow. I think it's grossly unfair to require that someone like myself use a wheelchair. And in fact, to me, what Amtrak is doing is forcing me to teach my course in a way that I will be regarded as having an impairment, one of the definitions of disability in the law, and that's because the regulations are not clear and I don't think the proposal is all that clear that a Segway used by the disabled should be treated as a wheelchair and should be allowed. It was the absence of a clear rule from justice that enabled Amtrak and EPA to force me into a wheelchair in order to use the facilities. And I think that is a discrimination. As someone who once used a wheelchair, I can tell you how liberating it is to use a Segway. I was an occupant of a wheelchair, the non-disabled very often looked at me or didn't even look at me, they looked away, they talked to other people very often don't even address someone in a wheelchair, but in a Segway, people don't even notice the disability. People have -- are very interested in the Segway and in the device, and it's really up to you at justice to make the rule clear. Don't allow authorities like Amtrak or EPA or anyone else to force someone like me to essentially to where a mobility impaired sign around my neck which ultimately would be the result of forcing me to use a wheelchair. And that fits within that third definition of disability under the law. Thank you.

>> LORETTA KING: Thank you very much. Our next speaker is on the phone, Laura Williams. Good afternoon, Ms.  Williams.

>> LAURA WILLIAMS:Are you ready for me to speak?

>> LORETTA KING: Yes.

>> LAURA WILLIAMS: Good morning, thank you very much for allowing this.

I'm speaking today as an individual even though I am president of Californians for Disability Rights, but our organization has not yet had time to do a group vetting of all of this volume and scope of regulatory changes. And the first comment is please provide at least an additional 60 days so that we can adequately address the scope and volume of these regulations we need to comment on. Secondly, there are several areas of concern, and the very first is that there is a lack of clear definition in the proposed regulation for an accessible path of travel from a sidewalk or street area to a semi-enclosed strip or mall shopping areas in our community. The proposed rule allows an exception that when the only access is vehicular, that a pedestrian path or a wheelchair path of travel need not be provided, but they don't make it clear that -- clear enough in the regulation that you are talking about lengthy extended drives into the area and not just the fact that your common mall or strip shopping area has primary vehicular access into the area, and that leaves persons in wheelchairs unfortunately playing in traffic. And let me be very clear. People with disabilities are killed every year from being required and necessitating traveling in vehicular paths because there is no pedestrian or wheelchair path of travel that has been made available. It is not safe and we need to be very clear on what is required for access. Thirdly, having access as a -- basing access on cost constraints of 1% is just not equal opportunity for access. The safe harbor provisions will act to place segregation as the hallmark of this proposed rule change and that would be a shame. Those safe harbors and cost constraints really need to be revised because they legitimatize segregation. The proposed rule to define mobility devices will discriminate those who use or choose new technologies and newer selections of assistive devices and needs to be revisited. Six, the proposed rule defining service animals is a step in the right direction, but goes too far. Canines are not the only valid animal providing service for people with disabilities. There exist groups and persons that appropriately train and utilize service -- the service of small ponies or primates, and the longer life expectancy of these animals other than canines should be recognized as a valuable trait. Additionally the inclusion of requiring a leash or tether will require many persons that lack hand or motor ability to be able to utilize a service animal to control their service animal. That requirement needs to be changed to state that the person must be in total control of their service animal at all times without the inclusion and requirement of a leash or tether. That using the leash or tethers just for the sake of having a leash or tether actually places the service animal at risk of harm and injury as they can -- they could be injured if something is happening to the chair or there is insufficient room. They cannot get away from that.

>> LORETTA KING: You have one minute.

>> LAURA WILLIAMS: Thank you. Seven, the exemption for the pool and playground access is the most egregious rule exception. This rule will exclude countless children with disabilities from the mainstream environment that civil rights advocates have fought so hard to have. Our children after nearly 20 years of intent to provide access, our children deserve full inclusion and integration. Please revisit this arbitrary exemption and finally, much of today's testimony is by organizations seeking to legitimatize solution, segregation and exclusion for people with disabilities. Their attitudes explain much as to why after 18 years much of America remains largely inaccessible and unusable by people with disabilities. Thank you very much for allowing us to speak today.

>> LORETTA KING: Thank you very much. Our next commenter is Fred Kaplan. Good morning. And please proceed.

>> FRED M. KAPLAN: Good morning. I'm a gadget guy and I bought a Segway when they first came out. About the same time, my daughter was diagnosed with multiple sclerosis. Like many Americans I never thought about disability rights then. Obviously by being here today, I do now. My daughter should be allowed to go to any supermarket, shopping mall or any other public accommodation on a Segway, including amusement parks. I met Eileen Wolf from the San Francisco area who also has multiple sclerosis. Before her Segway she was in a wheelchair. With her Segway she was able to, as she says, walk her children to her neighborhood school for the very first time. She was able to visit the San Diego zoo on her Segway which she was able to use in a safe manner in an amusement park that she had never been to before, but even though it is built on a steep hillside, the slopes were not steeper than those that she encounters in San Francisco, none of which are too steep for a Segway to safely and in a fully controlled manner go either up or down. Cindy Pickern was born without any sense of balance. She can only stand by holding onto something rigid. Through high school she used a mobility scooter. She had discovered the Segway's handlebars gave her enough rigidity that she could stand and travel for the very first time. She bought her first Segway as a student at UC Santa Barbara. Her health has improved due to the Segway, better muscle strength, circulation and she even feels her memory has improved. Her mother told me that on her Segway, it is the very first time in her life that strangers do not know that she is disabled. She asked me to ask you to never make her sit down. Let me read a letter that I received from Susan Seizer, she writes, "I'm a college professor and a mother of two small children and I have had multiple sclerosis for 15 years. In 2001, my walking deteriorated to the point that I began using a wheelchair. Doing so affected my lower back negatively. We all know that too much sitting is bad for backs and in 2005 a disk in my lumbar spine herniated making my life miserable and painful. The best thing for herniated disk all too ironically is not to sit. What was I to do? I knew that further sitting would make full recovery impossible but I was in a real bind. I cannot walk much at all due to the MS. I use a walker around the house but move very slowly and cannot walk far. I cannot sit long due to the disk herniation. Then I found the perfect solution. I tried a Segway and realized that I could use it as my main mobility aid. As I am able to stand for relatively long period of times, at work I regularly lecture standing at a podium but cannot walk effectively, the Segway is the perfect tool for me. It allows me to stay upright and maintain healthy posture for my back while making it possible for me to be mobile in a world of walking or working people. I currently travel from my home to my office and from there directly into the classroom where I teach all on the Segway." John Haney is another user of the Segway. His spinal injury has rendered him unable to sit without excruciating pain. To conclude, I cannot help my daughter regarding the prognosis of her multiple sclerosis but I am here to make sure that whether it is my child or anyone else's that has a qualified disability that can benefit from a Segway that your organization, the Department of Justice, Civil Rights Division gives them rights similar to a person utilizing a wheelchair. Thank you so much.

>>LORETTA KING: Our next witness is Elisabeth Axel. She is founder and president for education for the blind.

>>ELIZABETH AXEL: I speak for a nation-wide network of institutions, educators and arts and museums professionals who for over 20 years have been creating meaningful ways for people who are blind or have vision loss to access museums and visual culture. This proposed revision to the ADA regulations presents an opportunity to increase access to some of our most significant cultural institutions. It's especially important that public institutions such as museums and art centers in many cases supported by taxpayers through government funding to set standards for physical accommodations and accessible programming. I am going to comment on the need to address specifically museum accessibility and the proposed regulation. This change will provide true access to the over 17,000 museums in this country. Research over the past 15 years shows that even congenitally blind people can form, retain and represent mental images. Here are a few examples. John Kennedy of the University of Toronto shows us blind people can draw two dimensional images with no prior training. The Harvard medical neuro science lab used MRI to show that the brain's visual cortex can be activated through touch as well as vision. In recent years tactile graphics have become integral to the education of blind students. Students at 50 schools for the blind around the country and now around the world are using art education for the blind's tactile art encyclopedia. These students can now enjoy art, study art history, discuss their cultural heritage and express themselves creatively. Museums and school educators report that multimodal learning tools help not only students with vision loss, but also students with learning disabilities such as attention deficits, dyslexia and autism. Therefore, museums ignore accepted educational practices when they do not use tactile maps and images and other tactile experiences. Art, science, history museums and other culture institutions shall incorporate tactile tools into the way they assist visitors. If you grew up listening to radio announcers describe baseball games and other sports, you know it's possible to create an image in the mind's eye. Today we can use the technique the verbal description to make our science, art and history museums accessible to all. We applaud the Department of Justice's efforts to make popular hit films and movie classics accessible through audio description. We think the practice should extend to museums and their major exhibitions that capture public imagination. Museums can offer verbal descriptions of painting, sculpture and architect. Tactile images can help children with vision loss. They can be more helpful to millions of older Americans, especially museum goers and lovers of art who begin losing their sight later in live. The ADA has made museums physically accessible to people, but getting through the front door is just the first step. We should continue this progress by producing museum experiences for visitors with vision loss that are comparable to the experiences of sighted visitors. Therefore, it's crucial that the proposed ADA regulations reflect this fact. Visiting a museum is an interactive experience of exploration and dialogue. It's not a passive or receptive experience like going to a movie. A museum can use tactile graphics, touch models and verbal descriptions to make accessible the museum space. The highlights of its permanent collection and special exhibits. It's crucial that the disabled public has access to the core content of the museum's collection as identified by curators not just random exhibits. The costs are minimal and do not involve an expensive technology. We are talking about establishing verbal description programs, developing tactile tours and training staff. In conclusion, we hope you will support an approach to museum program that is multimodal and multisensory. It is an approach that will serve people with a variety of disabilities including vision loss, dyslexia, and attention disorders. Anyone who learns through an alternative style will be helped by such an approach. We recognize the significance of the Department of Justice's recent settlement with the international spy museum. It publicly acknowledges the need for programmatic access and we hope the settlement will be to a set of ADA guidelines. Society is increasingly driven by images so to be fully functioning citizen of this cou