TRANSCRIPT OF THE PUBLIC HEARING
ON NOTICES OF PROPOSED RULEMAKING


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 country, everyone, including people with sensory disabilities need access to visual information especially in public settings. Thank you for listening and your patience.

>> LORETTA KING: Thank you very much. Our next commenter is Lisa Parton.

>> LISA PARTON: Good morning, my name is Lisa Parton and I am here as the mother of a special girl. My daughter is not special because she is in a wheelchair. She is special because she is a beautiful, intelligent, highly motivated young woman. She has often been labeled as a special needs student. Her basic needs, however, are no different that than yours or mine. She needs success, she needs dignity and she needs respect. She has achieved a great deal of academic success. While she has certainly maintained her dignity it has been unfortunate that she has not been met with the same dignity and respect. My daughter is now 16 years old and will start her junior year of high school this fall. She has been an honors student her entire career. She has achieved success not only academically but socially as well being involved in excelling in extracurricular activities. It is disappointing to have to look back on successes with marred memories. >From the time she enrolled in school she has never missed making a single honor roll. An assembly for the whole school to attend was organized. Students got to walk across the stage and shake the hand of the principal and teacher while the others watched. One student, however, has always watched with nervousness and disappointment. Malorie was never able to get on stage. So instead for every single one of those six week ceremonies since she was five years old Malorie has waited and watched from the audience while a friend walked across the stage to pick up her ribbon. Malorie Parton is not disabled. She is a person who happens to have a disability. Her weakness is made more obvious because of the wheelchair she relies on, but don't we all have weaknesses if you think about it. Maybe they are not as apparent to the observer but the weaknesses are there. I know mine are and no one deserves to be treated with disrespect. No one. I sadly am here today with more examples of discrimination toward Malorie than time to convey them. One of the most relevant examples I can share with you involves changing the venue of a band concert from an inaccessible auditorium in order for Malorie to perform. The band director was not happy with the change and did not hesitate to complain about how inappropriate he felt the gymnasium was for such an event. It provided more of an athletic atmosphere we were told and would not garner the respect that a concert was entitled to. He informed us that a more formal setting was desired and people would not give it the attention it deserves. We were instructed on how acoustically imprecise the gymnasium was. Oddly enough acoustical precision was not enough when Malorie had to practice alone from the auditorium floor when everyone else played from the stage. This happened on different occasions when her dad was unable to miss work to lift her on and off of the stage. Malorie told us that a lot of times she would just act as if she was playing because the delay of the echoes from her drums made her embarrassed. That oversight wasn't a problem for anyone though, except Malorie. This was supposed to have been her night to shine. She was awarded the director's award by the junior high school band director, however, there was no celebrating for Malorie. She was embarrassed and ashamed at her Daddy carrying her down the stage and all she could do was cry. She begged me not to ever make her do that again. Make her do that. How did I ever make my child do that? Do you even know how horrible that makes me feel as a parent. She cried for over an hour that night and we lay there and cried with her explaining that she deserved to be there seemed hardly enough. We promised her then and there she would never have to perform from an inaccessible stage again. When the time came for the spring concert Malorie pleaded with us to let them have it at the auditorium. She didn't want to, she assured us and so we sat there in the audience with our child, her wheelchair blocking the aisle as there was no accessible seating for spectators either and we watched as her band mates played all of the songs that she too had memorized and perfected. We even applauded as the curriculum specialist from the board of education joined the band on stage and played as a tribute to his own musical education. Not surprisingly Malorie asked to drop band from her curriculum from the following year. She wasn't interested anymore, she said. We knew the truth and we still do. There had never been a place for Malorie in the band in the school system. An inaccessible auditorium, a band room that was not accessible and a stadium where Malorie wasn't able to sit with her band mates. If she wished she could sit on the ten yard lane on a concrete pad. I'm here today to ask you does Malorie not deserve the same praise and the same joy that is felt when one is recognized for their achievements. Malorie has never asked for exception with regard to her education. She is expected to master the exact same course work as her peers.

She is given the same homework, assigned the same projects, she has read and reported on the same books and she has -- I'm so close -- trying to condense this was torture. She has been tested on the same material as every other student in her class. In addition to maintaining academic honors she has won her school science fair and multiple awards at the regional science fair level. I could go on and on about her achievements but I have been given my five minutes.

I do come here today as a mother who is proud of her child's accomplishments but I am also here today as a mother who feels very much ashamed at having let her child done. The one constant in each and every one of these scenarios that I have mentioned to you and many that I have not, is that Malorie has never been given the recognition and respect for her achievements that she should have been given. She has either quietly and unknowingly sat in the audience and waited on her award to be brought to her or she has been humiliated by having to roll underneath the speaker. She has had to go outside and around the building on numerous occasions to be able to get inside to receive her award. Are these situations not reminiscent of a time long gone when we would say no more to discrimination?Through the efforts of the civil rights movement haven't we already as a nation decided that such behavior is immoral, intolerable and illegal in a country as ours. It is my understanding that part of your mission is to quantify the cost of mandating direct path access for people with disabilities. I can never even begin to tell you how to do that, but what I can tell you today without hesitation is that the cost of dignity and respect is priceless. Well the changes mandated be costly? I'm certain they will. Her equation is not based on a dollar value, yet she has paid many times over. Should not the expense of Malorie's dignity be added into your equation to justify the cost of direct path accessibility? I think it should. Thank you so much for your consideration and your patience.

>> LORETTA KING: Thank you very much and I note that Malorie and your husband are here. Thank you for coming.

>> LORETTA KING: Our next comment is Gary Wells. Mr. Wells, are you there?

>> GARY WELLS: Yes, I am. I'm chief Gary Wells. Today I'm testifying on behalf of the 13,000 members of the international association of fire chiefs. We represent the leadership of the America's fire, rescue and emergency medical service including rural fire departments and metropolitan career fire departments. Before I go further I would like to thank the U. S. Department of Justice for the opportunity to testify about Title II of the Americans with Disabilities Act and how it affects our nation's fire service. Currently Title II of the ADA requires that all activities, services and programs of public entities including fire departments eliminate barriers that exclude disabled individuals from equal participation. This is important to acknowledge fire stations are public facilities that must be open and inviting to the general public. We believe that the general public and administrative staff should have access to all areas of a fire station including the use of an elevator in the multiple stories of a fire station. These regulations do no account for the unique characteristics of fire stations in the manner in which fire stations are used and occupied. While there are models for delivering staffing for fire and E. M. S. staffs across the country, the typical schedule requires 24 hour shifts. Most fire stations have specifically designated locations for crew members to live and sleep on site. These crew quarter areas are separate from the common areas used by the general public and include sleeping areas, bathrooms and kitchens. These live-in areas make these public buildings unique. In order to meet ADA requirements fire stations must insure that crew quarters are accessible. Showers and sinks must be ADA compliant even though able bodied firefighters use them. In many cases these present cost challenges for fire departments. Lowered sinks and countertops may cause low back strain for firefighters that use them. In terms of cost we estimate that it could require up to an additional $100,000 to make a newly constructed fire station's crew quarters fully ADA requirement. This burden, cost burden falls especially hard on the thousands of small volunteer fire departments who have limited tax base to operate on. Based on the safety and cost concerns we would like to request the narrow exemption to the ADA for these crew quarters only occupied by able bodied firefighters. Before offering our specific proposal it is important to explain why only able bodied individuals can serve as fire fighting. The physical and mental characteristics are established by standards. The standards of. The NFP standards make it clear that a firefighter has to be able-bodied. For example, standard on the comprehensive occupational medical program for fire departments requires a firefighter to climb six or more flights of steps while wearing breathing apparatus. NFPA1001 standard requires basic level firefighters to Don personal breathing apparatus, operate power equipment and carry and raise ladders. I would like to make it clear that disabled firefighters should not be accessing crew quarters. They should be assigned to light duties away from the regular fire station to protect and their fellow firefighters. Clear and precise exemption web site made for fire station crew quarter areas. The areas would include sleeping quarters or bunk rooms, the crew kitchen, day room, rest rooms, the exercise rooms, bathing facilities, lockers and locker rooms and other operational spaces within fire stations.

>> LORETTA KING: You have one minute.

>> GARY WELLS: These areas are not open to public use and will only be used or occupied by able bodied personnel. Parts of the fire station that are used by the public should be ADA client and accessible. These with include assembly areas. They should have accessible entrances passageways and exits to allow disabled individuals to participate in educational opportunities. Thank you again for the opportunity to address the panel on this important topic. We will be submitting normal written comments before the end of the formal comment period on about half of the fire and EMS chiefs we would like to work with you to develop a common sense exemption for fire crew quarters that meets the statutory requirements and spirit of this important law.

>> LORETTA KING: Thank you very much we look forward to your formal comments.

>> GARY WELLS: Thank you.

>> LORETTA KING: The next speaker, just before lunch I think we have a few moments to get on the telephone will be Ruthee Goldkorn.

>> RUTHEE GOLDKORN: Good morning and good afternoon.

>> LORETTA KING: Good morning and good afternoon to you as well. We look forward to hearing your testimony. Please proceed.

>> RUTHEE GOLDKORN: I appreciate that. Thank you. Equality and equity are the purpose and meaning of all three civil rights acts. The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Americans with Disabilities Act of 1990. We are far from reaching the missions and goals of all three acts. I would like to return to the comments of Ms.  Lumpkin's testimony she is citing usage data to justify accessible viewing areas which are not based in fact because the usage standard is not as equal as the accessibility requirements and to use a usability standard and data is a skewed perspective. Most of the time we can't even buy tickets, so the fact that she sees empty wheelchair, I call them parking spaces in her venue, is not accurate. We are also looking at a perspective from standing up. Usability is from sitting down is a much different standard. When my daughter, Shasha, was little the opposite was true where she was alone because playgrounds did not allow me to be near her. At one location she was assaulted and I could do nothing about it. The alone standard is what needs to be looked at because that is the usability. We are a basketball family. Shasha now 22 years old and a college ball player started playing competitively at age 9. I sat alone. We go to WNBA, I sit alone. We are UCLA Bruins, we go to Polly pavilion. I sit alone. We go to the rose bowl for football games. I sit alone. We go to movies, I sit alone. We go to the theater, I sit alone. Ms.  Lumpkin seems to believe that because we do not come to her stadium she does not need to have the required number of wheelchair parking spaces because, well, we are not there. We don't come because we are alone. Teenagers sit alone rather than with their dates or their group of friends. We need to sit together. We do have families. We do have children. We, parents with disabilities, are at a significant disadvantage. We want to go where everyone else goes. We go on e Harmony. We go to match. com. We go on dates. We want to sit with our spouses, our partners, our friends, our dates or children, the friends of our children. To look at the number of spaces from the usability data gathered by Ms.  Lumpkin is skewed. The usability standard needs to be as carefully assessed in family recreation as the actual number of spaces that are required for people with disabilities it should be -- the usability standards should be more strict because if you are not providing usability, I do not go because I will not sit alone. It is unfair. It is unequal, it is not equitable. The Americans with Disabilities Act is the third most landmarked civil rights legislation in this country and it was designed to include people with disabilities as equal and equitable participants in America, and around the world.

>> LORETTA KING: You have one minute.

>> RUTHEE GOLDKORN: Thank you. It is incredibly important for not only the physical standards of how many hotel rooms, how many bathrooms, how many stalls, how many varieties of locations in entertainment venues have to be there, but what is the usability?I go with my family and because I sit alone, I don't go. So I sit alone at home. That's not equitable. That's not equality. I have no value. I'm tired of fighting with businesses, throwing my money at them. Take my money, please. It's all about money. You want to bring it down to dollars and non-sense, it's all about money. Take my money. Let me in. Thank you very much for this opportunity. I appreciate it.

>> LORETTA KING: Thank you so much. We will adjourn until 1:00 p. m.

[Hearing adjourned until 1:00 p.m.]

>> LORETTA KING: Good afternoon, the public hearing will now resume. We thank you for returning. I'm going to once more review the rules very quickly for those of you who may not have been here this morning. I also would like to introduce the new people from the Department of Justice who have joined us. To my left I have Patrick Bumatay from the associate Attorney General's office in the department of justice. To my immediate right I have Laurence Rothenberg from the office of legal counsel-- policy, apologize. To my right is Christina Galindo-Walsh andColeen Kane who is from the disability rights section from the Department of Justice. As I announced earlier today, all commenters are to report to the staging area at the immediate rear of the ballroom about 20 minutes before your scheduled to time to testify and it's important for you to follow instructions of the staff. You should follow their instructions. Each commenter will have five minutes to testify and what you will find is that there will be a light, a green light will go on in front of me when your testimony begins at four minutes, you will hear an audible sound and then a yellow light will appear and at five minutes you will hear three sounds and a red light will come on. If you are about to conclude your testimony we will give you additional time to do that. Those commenters on the telephone, I would remind you when those periods of time transpire when you have one minute left and then no minutes at all, you should feel free to augment your testimony by giving it to a Department of Justice staffer who will give it to the hearing clerk who will log it in. Finally, if you are using a power point presentation, it is important for purposes of making sure the people who are blind or have low sight, that you describe specifically what appears in that power point presentation.

If you forget, I will remind you. We will get started with G. Kenrick Macdowell, vice president and general counsel of the national association of theater owners.

>> G. KENRICK MACDOWELL: Good afternoon. My name is Kenrick Macdowell and I am vice president and general counsel of the national association of theater owners, what we like to call the original NATO headquartered in Washington, D. C.

NATO is the trade association of the motion picture theater industry. Our members operate 39,000 motion picture screens in the United States. NATO's members include all of the largest circuits as well as smaller motion picture theater operators. NATO will be, of course, filing extensive comments addressing the questions raised in the notice of proposed rulemaking and the effects of the proposals and questions on our industry. I won't try to telescope that written testimony in miniature, instead I would like to identify the greatest single concern, and that is the question of retroactivity. More specifically the question of retroactivity arises with respect to the never definitively resolved issue of wheelchair seating. We are looking at a potentially industry bankrupting proposition and we respectfully request that the department clarify its intention to provide

Prospectively only. The stakes being of such magnitude, however, we seek the department's assistance here in eliminating ambiguities that could prove disastrously expensive. Despite being a champion of the original ADA and vocal advocate since 1999, our industry has spent a tremendous amount of money and litigation on wheelchair seating. The federal courts have not resolved the issue or have resolved it in conflicting ways. We do not wish to spend more money in litigation. We appreciate the good faith resolution of this matter. In the introduction to section 36. 40699(f) states the department is proposing a new section 36. 40699(f) to supplement the assembly area requirements in the proposed standards. Indeed section 46. 406 itself in the proposed regulations is entitled, quote, "standards for new construction and alterations. "

Thus, it does appear that the department intends that this is a regulation to cover new construction, not existing facilities. Subsection 4 deals specifically with stadium style motion picture theaters and establishes two bright line tests to determine whether wheelchair locations in these theaters comply with the Department of Justice standards. NATO has publicly advocated a bright line test since 1999. At that time NATO filed a petition requesting that new regulations be formulated including a prospective bright line test for wheelchair locations in motion picture theaters. NATO agrees that establishing a prospective bright line test is necessary and appropriate to eliminate the confusion caused by the existing standard section 4. 33. 3 of the ADAAG and insure that individuals with disabilities and theater operators understand exactly what is required under the law. However, in the preamble to the NPRM the department suggests that sections 221 and 802 of the 2004 ADAAG are not a change in the original ADAAG and at page 34,546 the department states that proposed section 34. 406 provides more precise guidance for stadium style theaters. The two-pronged sight line test existed under the old standard. We request that the department make unambiguously clear that section 36. 40699(f) is a new standard that applies to new construction only and that existing stadium style theaters that provide wheelchair seating access not be required to bear the enormous financial burden of retrofitting. We believe ours is a good history of accommodation to our disabled patrons who we wish to have a positive experience when they come to the movies. The relationship need not be adversarial. Thank you for the opportunity to present our views. We look very much forward to participating further in the department's initiative on this important proceeding for your industry and our disabled patrons.

>> LORETTA KING: Thank you very much. We look forward to getting your complete testimony.

>> G. KENRICK MACDOWELL: Thank you.

>> LORETTA KING: I don't see anyone at the tables.

>> LORETTA KING: Our next speaker will be Jim Andrews. He is owner of Andrews consulting services. Take your time to get settled, Mr.  Andrews. You may proceed.

>> JIM ANDREWS:As you mentioned, I'm Jim Andrews of Andrews consulting services located in Maryland. The proposed rule will significantly undercut the original 1990 compromises, and will impose numerous regressive restrictions. Many of the proposed rules will insure that full accessibility will be at best postponed indefinitely. I'm going to comment on Title II requirement of program accessibility when viewed in its entirety, and the Title III requirement for removal of readily achievable barriers from existing facilities. With regard to Title II, existing play areas and recreation facilities only a reasonable number, but at least one of such play areas would be required to undertake structural modifications to provide access for individuals, for example, children with disabilities. The reasonable number, but at least one rule applies also to swimming pools and state parks. Wouldn't public entities shoot for the minimum, one, regardless of the changes that might make many or all of the play areas accessible. The Department of Justice asks if play areas should have a safe harbor from compliance with the applicable requirements in the 2004 ADAAG. Would Department of Justice have proposed a safe harbor to indiscrimination based on race? Gender?How can there be a safe harbor that perpetuates discrimination?

Regarding safe harbor, as the Department of Justice questioned what is the tipping point at which the cost of compliance would be so burdensome that the entity would shut down the playground. New construction and subrehab accessibility inclusion is not cost prohibitive. Routine equipment replacement is not cost prohibitive. Department of Justice also asks if existing play areas less than 1,000 square feet should be exempt from accessibilities requirements. My answer is no. This is basically this provision is based on areas -- 20% of play areas located in public schools. Disabled children in those schools could be effectively kept off the playground, presumably like they are now being kept in some cases out of mainstream classrooms. Every small neighborhood tot lot would be exempted and thousands of disabled children excluded from playground use . . .

Regarding Title III for private entities and businesses and so forth. The current regulation requires removal of the barriers [in] public accommodation[s] when it is readily achievable to do so. Here too there is a safe harbor proposed. Safe harbors will exempt from barrier removal even though situations that are readily achievable to be made accessible. There should be no safe harbor that perpetuates discrimination of people with disabilities.

If a small business spends in a given year 1% of its gross revenues on barrier removals it will receive safe harbor. How are advocates and people with disabilities going to argue about a business' gross revenues in a given year?What if the business received a tax credit for the barrier removal?

If it claims it did, should the advocate take their word or request to read their 1040s?

This will be impossible to monitor and result in businesses manipulating any cost of renovations to their benefit. This concept is unverifiable, plus then you have to come back the next year and go through the whole routine again on another inaccessible element. The proposed regulation also questions whether to fully enforce the access board's guidelines for assistive listening systems, golf courses, service animals, golf cars, mobility devices, auxiliary aids captioning, video interpreting services and other areas. Yes, the guidelines should be fully enforced, otherwise it's like asking do you want to discriminate against people with disabilities or not. Thank you for this opportunity to provide these comments.

>> LORETTA KING: Thank you very much.

>> TIFFANY HUGGARD-LEE: Good afternoon, my name is Tiffany Huggard-Lee and I am a mobility dog user. I would like to comment on a few of the proposed changes to the service animal regulations into Titles II and III of the ADA. At first I would like to express my support for the addition of service animal guidance and regulations in Title II which would provide service animal users the same level of protection when interacting with governmental agencies as when interacting in places of public accommodation. I hope this addition will limit the unpleasant and far too common occurrence of having law enforcement ask for certification of the animal and provide proof of it before being allowed into a public building. These officers usually avoid repercussions for their action by stating that as a Title II entity, they can require anything they want because they are not subject to restrictions in the Title III. I would also like to state my support for the restriction on certain types of animals allowed to be service animals. I feel the proposed restriction goes too far by excluding types of animals that are known to be providing essential services to individuals with disabilities such as miniature horses being used as guide animals and certain types of captive bred monkeys that provide services. These task trained animals have provided essential services to their handlers for many years and prohibiting them would unnecessarily restrict the independence of their handlers. Finally I would like to express my concern over the lack of guidance provided for public accommodations which choose to ask about the tasks a service animal performs to determine the legitimacy of a particular service animal. While I support the addition of this question and feel it further emphasizes task training as the mark of a legitimate service animal, I also feel that without further clarification that -- further clarification that this could be used to exclude service animals. This proposed regulation does not provide guidance on whether any answer to that question and any task must be accepted or if the public accommodation is given the ability to decide for themselves if they feel a service animal's tasks are legitimate and on what basis they ought to make this decision. The current wording of the proposed regulation could easily, if left as it is, encourage public accommodations to deny access to service animals based on their personal beliefs on the range of tasks a service animal can perform and instead of providing greater protection, it would increase the likelihood of being improperly denied access to public accommodations by people who are simply looking for any way to exclude animals in general or a particular service animal. Thank you.

>> ALAN MACCINI: Good afternoon, thank you for allowing me to give my comments today. On November 21st, 2004 a slip and fall left me with a severe spinal cord injury. The original prognosis was not good. An incomplete paraplegic with a side order of quada equina syndrome.

As my health improved, we looked for other options, my doctors and my physical therapists and myself, for my long term and long distance mobility. One of my physical therapists suggested I try a Segway. He also had a patient, an M. S. patient, that was using a Segway and it proved very beneficial for the quality of life. In my case, it was going to take care of my biggest problem, long term sitting with a low level injury.

Sitting is my most painful position and to do it for any period of time requires large quantities of narcotic drugs. I pride myself for getting through most of my therapy with minimal drugs. The Segway, as it turns out, pleases both myself and my doctors as it turned out to be a solution for the long term sitting. I have had the opportunity of using my Segway at many events, superbowl 39, St. Patrick's Day in New York City,Newark international airport on a holiday weekend which may be one of the craziest places on the planet, and also at universal studios theme parks, not to mention going about my day to day life. All of this was possible by having the Segway take over where my legs had failed. The biggest benefit for me and for many is the ability to remain upright for the time being. Sitting for any period of time, as I said, is painful. If we stay seated for too long, we are back on the drugs. So we look to avoid that at all costs. Other benefits are it prevents atrophy, helps my muscle strength, it's very good with the secondary issues of spinal cord injury, bladder, bowel issues. It also fights off osteoporosis, not to mention, again, it keeps me on my feet. The longer I'm on my feet, the more chance there is that I will remain that way for awhile. My doctors were thrilled with the outcome of my Segway use. My quality of life improved dramatically. I function now with minimal medications, a little Motrin, things like that. My doctors feel that the lack of having to take these medications and to keep my body moving is going to lead to a longer, healthier life. They also feel that the Segway for my condition is a regenerative tool as opposed to a degenerative one, again, based on my problem with long-term sitting. I urge the Department of Justice to protect the rights of those that have no other choices and there are really no other choices for someone that can stand but not walk any great distance. The use of the Segway by people with qualifying disabilities must be protected under the ADA the same way a wheelchair is. I thank you all again for the opportunity to speak to you today. I don't want to take up too much of your time. I hope to visit the heart of our great democracy again soon and I hope to do it on my Segway. May God keep you and all in good health. God bless America and thank you for your time.

>> LORETTA KING: Our next person will be Richard Bohnhoff. Are they on the telephone?While we are waiting I want to remind everyone to please silence your cell phones and black berries. Our next commenter will be Richard Bohnhoff and Jacque Nielson diplomat of the American College of Veterinary Behaviorists.

>> RICHARD BOHNHOFF: I am a disabled veteran and I train and utilize a service animal. Dr.  Nielson certifies all of the service animals I train and she is unable to testify today but she will be sending in written comments. The most disturbing thing that I found about the proposed regulations regarding service animals is a requirement that they be on leash. In the proposed rules there is no factual or legal basis for having assistance dogs on leash. The Michigan University College of law has an animal lawsuit. They have a detailed briefing on leash laws. All states have laws protecting assistance animals. No state laws requires that assistance animals be on leash. Only two states require any dog to be on leash, and there is only 12 states that allow local government entities to write regulations on there. The American Veterinary Medical Association, the National Humane Societies have a model dog and cat control ordinance. This ordinance has been recommended since 1975. It does not require that any dog be on leash. Okay. Assistance dog international, which is the organization that represents the schools that train assistance dogs in their literature, they make no mention or requirement that a dog be on leash. They do say that assistance animals should obey local leash laws which are virtually non-existent. The Psychiatric Service Dogs Society also has extensive literature or position on leashes in that it's very important that dogs, assistance dogs be trained off leash. I would not be able to utilize or train dogs with that requirement. We have two off leash parks where I live in Bend, Oregon, one is a public entity, one is a private entity. The proposed rule would bar me from using those facilities. The other problem I have is with the exclusion of emotional support dogs. Okay. That term is well defined in federal regulations, specifically with D. O. T. and the regulations for housing and urban development, or, excuse me, housing and urban development. Those terms are also very, very emotional support animals are also -- there is a lot of case law, federal and state, that addresses that issue. So the exclusion of the emotional support animals, you know, has no basis in fact or law. I will be sending additional written comments on the subject. I'm finished. Thank you.

>> LORETTA KING: Thank you very much. Our next commenter will be Robert Coward of the capital area adapt direct action. Good to see you again.

>> ROBERT COWARD: Good afternoon and thank you for having me. I won't take up all of the time. I will take some time. My name is Robert Coward, you can call me Bobby. I'm the chairman and spokesman for Adapt. Adapt is a national linked advocacy group network that is leading organizing and implementing a campaign for disability rights integration and empowerment of people with disabilities into mainstream society. The need to develop a national comprehensive strategy that focuses on access for people with disabilities in the United States is clear. I am very honored to take this occasion to testify on access issues that affect literally millions of people with disabilities in the United States. I also take the opportunity to thank the Department of Justice for the invitation to discuss the notice of proposal for rulemaking to conduct a comprehensive review of ADAAG. I offer my testimony today at a most critical moment for people with disabilities, a time in which the U. S. Congress are at complete odds with the U. S. courts are at complete odds with Congress. So the nation has clearly mandated that our public policies and resources encourage and support the full participation of individuals with disabilities in mainstream of our society as evidenced by the enact of the Americans with Disabilities Act. The ADA is a most far reaching civil rights law since the 1964 civil rights law. The ADA was meant to be the emancipation of people with disabilities. Title II of the ADA prohibits discrimination against individuals with disabilities on the basis of disability and disability and programs, activities and services of public entities. Public entities included state and local government and their departments and agencies. Individuals from the -- individuals with disabilities from diverse cultures continue to grow in proportion and be a contributor to mainstream society. Disability has been placed on the American agenda as evidence of -- new freedom initiative. With the growing interest in disability disparities that demand barrier removal from equal access costs continue to grow. And based on classification of special or reasonable accommodation. This is the strategic time to explore restructuring and inclusive standard design development by imposing cost caps to contractors and developers as well as tax credits incentives to cover the additional cost of meeting the accessibilities requirements determined by the national, by the American national standard institute and the access board. And also implement public policies -- I can't see -- there we go, public policy for greater oversight in regulation of spending and penalties for strengthening the capacity for inclusive design for failure to comply. There is a continuum for clear resource materials that explain the key issues concerning developers and the need for guidance to insure that developers are doing what they are doing, mainly that there is, you know, I need for the developer to know what the guidelines are. So we need to put material out there in a guidance book, okay. Licensing requirements, I think, are criteria for contractual recipients of federal funds would provide for better understanding of their responsibilities, contractors and developers will encompass a better capability to conduct their access design and programs in a way that maximizes full participation by people with disabilities. Now, based on my personal encounters, I will tell you about the affiliates, I will talk about personal encounters.

>> LORETTA KING: One minute.

>> ROBERT COWARD: As a parent, I tried to join the P. T. A. and there was -- during the P. T. A. , the event was held at school auditorium which I had to speak from the stage level. Other parents had access to the stage. I had to stay on the floor which limited my access of line of sight and my participation. Also when I led a demonstration at the Supreme Court, members of Adapt had to, you know, we got out of our wheelchairs and crawled up the steps but we attended the hearing. We did not have access. So we were placed in the back of the courtroom behind the pillars which limited our sight. We had a young woman who was hearing impaired and listening impaired. She could not see the justice at the bench nor could she hear and when we asked for assistive listening device the court had no knowledge of that. They finally found out what we were talking about, the court proceedings was over with. Also when we sued the district public housing authority for failure to comply with 504 in the federal court, judge Roberts we were like 20 wheelchairs were in the aisle of the courtroom, we were told to move. We had nowhere to go. So we insisted that this would turn into a demonstration if we don't get any direction where to position ourselves. Judge Roberts allowed us to sit up front where the lawyer stands was and I also sat underneath the bench to give my testimony which basically restricted my line of sight. I have one testimony.

>> LORETTA KING: Please conclude your testimony.

>> ROBERT COWARD: I want to conclude by talking about the need for emergency evacuation plan. Again, I was in a public building and there was a drill. I asked the staff where was the designated shelter area. No one had a clue, no plan was developed so, again, that's life-threatening. So that's the end of that one. And housing, so I conclude. I'm sorry, I had more but I ran out of time.

>> LORETTA KING: That's not a problem. If you would like you may submit that testimony to the hearing clerk.

>> ROBERT COWARD: I got copies I would like to submit it.

>> LORETTA KING: Thank you. Our next commenter will be Mr.  Madden.

>> TURNER MADDEN: Good afternoon, my name is Turner Madden I serve as the outside general counsel for the international association of assembly managers which includes 4,000 managers of stadiums, arenas, performing arts centers and convention centers in the country. First of all, I'd like to thank the Department of Justice and the access board for the reduction in scoping for wheelchair seating. We think it was across the board every manager thought it was necessary, required, and, of course, we will still accommodate every wheelchair user that comes to our facilities. While increasing our conventional seats. So this is -- this is a major plus for our industry. Thank you again. If we -- we have -- and we are going to comment in detail in writing to the department of justice, but we have some general concerns about ticketing. We believe that the increasing the number of companion seats will definitely increase fraud in our industry. Even though you have provided a provision to look into fraud, we would encourage the Department of Justice to bolster that provision. And we have a task force that we put together across the country of different types of venues, different managers, general counsels and so on, and we will come back to you in our comments with detailed comments especially about ticketing. Concerning -- I'm going to jump around a little bit. Concerning Segways, we believe that the speed, size, control and liability concerns are factors to consider when allowing Segways into our facilities. One, they do not meet the -- of course, the size requirements of a wheelchair, plus we believe that they are safety concerns especially when we have fans, patrons that may leave the stadium in a hurry come to the stadium in a hurry and are shoulder to shoulder. You know, some facilities we have our hundreds of thousands of people, I mean, you look at NASCAR. We will go to the question ten, should the department eliminate certain species from the definition of service animal? We agree that they should. We only have so much space if you think about a stadium or stadium seat or performing arts center seat, there is only so much space between the patron's feet and that's where that service animal sits during the performance. So great Danes, ponies, things like that just don't fit in our facilities. And there is not -- there is not really a way to change that now. Question number 20, if the individual resells a ticket for accessible seating to someone who does not need accessible seating should the secondary purchaser be required to move if the space is needed for someone with a disability. We believe the answer is, yes, the person should be able to move. In fact, most facilities have in their license agreements with the patrons, the ticket is the contract with the patron. And a lot of facilities have that if that seat, conventional seat is needed for a disabled person, or if -- I'm sorry, if the wheelchair position is needed for a disabled person, we can move them. That's in the contract [usually]. And I have encouraged all facilities to include that in the ticket. Question 21, are there particular concerns with the obligation imposed by the proposed rule in which public accommodations must provide accessible seating. That all depends on the time. If the person purchased the ticket late and comes at the last minute and we have filled the last seat, we believe that person should not be able to -- should not be accommodated. That's why there is all of these other regulations that you have come up with. Putting the seats on line, identifying where they are, how to get them. So it takes preplanning when you only have a limited number of seats and then you are asking us to fill a lot of those seats with companion users. So it's very difficult, especially for sold out events. I mean, if you take the New England patriots, for example, their stadium is -- they sell most of their tickets through season tickets. So -- and we have to find a -- we try to accommodate, and I know most of the managers around the country, they try to accommodate as many wheelchair users and disabled as they possibly can. It's only good for them. It's only good for business. And so--

>> LORETTA KING: Mr.  Madden, your time is expired. Are you almost completed?

>> TURNER MADDEN: I had two more things.

>> LORETTA KING: Quickly, please.

>> TURNER MADDEN: The small business exemption, if you can see if you can apply that to the Title II, I'm not sure if it applies to Title II. I just saw in Title III. The part about the section 36. 308A1 and B, we are very concerned about the definition of average viewing angle. We think -- we think that that -- by that vague term, we believe that you are going to encourage litigation. And the remaining comments we will submit to you in writing. Thank you.

>> LORETTA KING: Thank you very much. I look forward to getting those comments. Next on the phone we should have Rose Daly-Rooney who is Assistant Attorney General from the Arizona Attorney General's office. Welcome, Ms.  Daly-Rooney. Are you there?

>> ROSE DALY-ROONEY: Yes, I am. Thank you.

>> LORETTA KING: You may proceed.

>> ROSE DALY-ROONEY: The scope of our comments address movie theaters' obligations to install auxiliary aids and services to provide captioning and description of movie for people with sensory disabilities. We firmly believe Department of Justice's proposal is consistent with congressional intent that the ADA eliminate discrimination and integrate people with disabilities into the social mainstream of American life. Going to the movies is a vital part of this social mainstream as the falling statistics from the national association of theater owners demonstrates. Between 2001 and 2007 average admissions to movie theaters rose to $1. 4 billion per year. Movie theaters remain the least expensive form of entertainment and people go to the movies even during economic downturns during the last seven recession years box office admissions increased in five of those. Consequently the Arizona Attorney General's office concurs with Department of Justice's proposed rulemaking that number one movie theaters must install auxiliary aids and equipment that all movies available with captions and descriptions from the film studios exhibited in the theater owners' screens are shown with captions and descriptions. This regulation will mirror the existing obligation under the ADA -- theater owners. Movie theaters are places of public accommodation and Title III applies to them the same as every other public accommodation. Thus it is unlawful for them to deny people full and equal enjoyment in the viewing of movies. As Department of Justice proposes to articulate captioning and descriptions fall squarely within the ADA's definition of auxiliary service ADA does not contain any exception for movie theater owners. While Congress may not have originally contemplated the development of closed caption technology, open caption on demand and descriptive narration of movie theater venues, the ADA was written so it could keep paces with technology. Although we firmly believe movie theater owners became obligated to provide auxiliary aids for captioned and described movies when they became commercially available. We recognize the D. O. J. may wish to provide this one-year period to help movie theaters to come into compliance with existing requirements. Department of Justice's proposed standard for all movies is consistent with ADA's full and equal enjoyment standard and we applaud it. There is no need to be concerned about adding something for cost. The ADA does that. We have the existing undue burden defense. It is available to all public accommodations. Therefore, we urge the Department of Justice to reject proposals that set across the board limits, percentages or numerical limits. Second, we agree that the Department of Justice, with Department of Justice that movie theater owners should retain the discretion. Choice will lead to more options for people with disabilities as they are unlikely to be universal preferences, however, it must be clear that choice be from among effective auxiliary systems for captioning and description, and the public would benefit from Department of Justice enumerating factors to guide in the movie theater operators in the selection of effective systems. As new systems are developed movie theaters -- be encouraged to consult with people with disabilities. Third, we firmly believe that the auxiliary services to show caption described films must not be delayed or conveyed to digital cinema. This is because there are options under both film and digital cinema for captioning and descriptions. The time is now, not later. Tying a regulation to digital means unnecessary delay as according to the national association of theater owners, as of May 2008, only 4,675 screens out of 38,794 were equipped with digital cinema. People with sensory disabilities will continue to be relegated to a lesser inferior service at movie theaters than the non-disabled public. No American wants to pay 7 to $10 to the movie without access to the visual elements. We applaud the Department of Justice and we thank you for this opportunity to present our comments.

>> LORETTA KING: Thank you very much. Our next speaker will be Karen Harned. She is the executive director of the national federation of independent businesses.

>> KAREN HARNED: Nice to see you. Thank you for holding this hearing today. NFIB represents 350,000 small businesses. The average member has six employees and almost 90% of NFIB's membership has fewer than 20 employees. Our average member nets 40 to $60,000 annually and has gross receipts of 350 to $500,000. Small business owners are proud of the commitment they have made to accommodate the disabled. Since the passage of the ADA NFIB members have spent millions of dollars on businesses to remove barriers and provide accessible public accommodations. NFIB acknowledges the modifications that Department of Justice has made to the proposed rule in an attempt to lessen the burdens associated with these regulations on small business. In particular, we were pleased to see the element by element and path of travel safe harbors as well as the reduced scoping for certain newly covered elements. However, NFIB and small business continue to have significant concerns with the costs and the complexity associated with the proposed rule. NFIB objects to the qualified small business safe harbor in its current form. Under this safe harbor a small business would be deemed to have met its ADA obligation if it has spent at least 1% of gross revenue on barrier removal. Although small business does request a bright line rule, this proposed safe harbor we are concerned does not help small business. NFIB believes small businesses operating at a loss should be exempt from barrier obligations, barrier removal obligations for that year. We are concerned under the current proposal small businesses that are losing money would still need to bear this added regulatory expense to insulate them from possible regulatory and legal action. We are also concerned that the qualified small business safe harbor will create an inappropriate presumption that a business spending less than 1% of its gross revenue has not met its ADA compliance obligations. We believe this presumption is contrary to the ADA. It is further complicated by the fact that Department of Justice is moving further from the language and intent of the statute by defining a barrier in an existing facility as an element -- which does not comply with standards for alterations and new construction. Moreover the qualified small business safe harbor presumes that a business would essentially be required to make a expenditure for barrier removal every year for an unlimited time period. This is a presumption that we never envisioned. Under the proposed safe harbor the only time it would not apply is when the establishment is 100% compliant with whatever ADA guidelines exist at that time. Since guidelines do change it is not unreasonable to believe that a business could incur this 1% gross revenue regulatory tax for years on barrier removal. It is clear that Department of Justice did not foresee the result that this regulatory tax would be imposed in perpetuity. The significant costs associated with that annual expenditure are not reflected in Department of Justice's economic impact analysis. Although the element by element and path of travel safe harbors in the proposed rule will reduce some cost of complying with the ADA, Department of Justice has not taken into account the cost a small business will incur to determine how to comply with these complex regulations. Because the guidelines are very technical and not easily discernible by a lay person, the reality is under both the existing guidelines and proposed modifications, small business owners can only be assured they are complying with the guidelines by paying a consultant to come into their place of business and evaluate it. Department of Justice's proposal only adds to those costs. In order to understand what elements must be retrofitted either immediately or in future alterations, small businesses will have to know and understand the 91 and'04 guidelines as well as safe harbor rules. It is certain that small business owners will have to pay attorneys or consultants specializing in the ADA to assist in compliance. Similarly new operational requirements like the requirement that businesses adopt policies meeting specified criteria if they want to limit the use of powered mobility devices in their facilities or the new requirements for hotel reservations would require small business owners to retain outside counsel or consultants to draft written policies and train employees. NFIB remains concerned that the estimated costs of this rule do not accurately reflect what the actual cost of compliance will be for small business. We will be submitting comments further detailing our cost concerns and describing our other objections with the proposed rule. Thank you for your time.

>> LORETTA KING: Thank you very much. I look forward to your additional comments. We are going to take a moment for our Department of Justice officials to change places.

>> LORETTA KING: I'd like to introduce our now Department of Justice officials. To my far right is Jesse Witten. He is with the Associate Attorney General's Office at the U.S. Department of Justice. And to his left is Lisa Krigsten, who is the principal deputy assistant attorney general in the civil rights division. We will continue our testimony with Randel Johnson. He is the vice president for labor immigration and employment benefits at the U. S. Chamber of Commerce.

>> RANDEL JOHNSON: Thank you for this opportunity to --. We are the largest trade association representing about 3 million businesses across all sectors of the economy all across the nation. I do want to emphasize perhaps the obvious to those of us who are relative experts in the room. The breadth of this regulation in the sense of there are no exemptions for small businesses which is different than most civil rights laws which would typically kick in at the 25 employee level. That's important to emphasize here as you guys go forward to keep in mind that as we are looking at regulatory requirements such as what is appropriate are readily achievable or how broad so the grandfathering clause be to keep in mind the smallest of the small members covered by this regulation. As a personal note, I would like to say that I was involved as counsel of the house labor and education committee on the original negotiations which led to the enactment of the 1990 Americans with Disabilities Act and more recently in the bipartisan negotiations leading to the compromise on the ADA restoration act which was recently passed by the house. And I certainly hope that this rulemaking as it goes forward will be equally characterized by the bipartisanship nature of those negotiations and how the group's involved business community, disability community worked together with people on the hill in this case regulators to form a compromise that we all found acceptable. Ideally, that would be the great result in the end here and hopefully we can avoid going to court. Now, my testimony today, I do want to emphasize we did submit extensive comments on the NPRM. I will focus on four or five issues that characterize general industry and lead to later on more comments as the deadline approaches. I do want to just, as a general matter, often in these kinds of hearings, we become very focused on the regulation in question, but I would like to just plead, and I will use the word plead, because having spent ten years at the Department of Labor, I know of the awesome power of regulators, but businesses are confronted with not just this regulation, of course, but literally hundreds of thousands of others with the compliance burden of over a trillion dollars generally across the public. We look at these regulations in isolation, but hopefully I'm pleading with you as you go forward, keep in mind the awesome challenges that business you face generally, but particularly small businesses as they go forward to not only learn the details of this regulation, but comply with many others. I often wonder how many people in hearings like this would ever have the, frankly, courage to open up a small business if they knew exactly what that small business was going to encounter once they opened that business and the many regulations that they are supposed to be completely in compliance with. Now, let's go to the grandfathering clause or the so-called safe harbor on existing facilities or rather existing elements. I'm sure you have heard testimony on this so I won't beat a dead horse. There is two points one is that it should be as broad as possible. That's exhibit with the original intent of the Americans with Disabilities Act, Congress knew this was going to be applicable to small businesses, hence the low threshold of requirements under readily achievable, i. e. , minimal difficulty or expense. So for the Justice Department to go forward with a broad reading of the so-called grandfathering or non-retroactivity we think is totally consistent with what Congress intended with the original ADA and Title III generally. Now, there are various points in there we make in written testimony, but one in particular comes to the fore. Litigators tell us that private plaintiff's attorneys look at existing guidelines to define readily achievable. We would argue that if that's in fact true, you will wall off the impact of the new guidelines in determining what is readily achievable so that the two are not intermixed. And I go into that in detail. With regard to the 1%, I associate my comments with the prior speaker NFIB. We are concerned about the gross revenue level, obviously gross revenue means nothing about profit. It tells you nothing about profit and operating margins and what you can use to apply to changing facilities. We are also concerned about the so called defacto that this may turn into not just a floor but also a ceiling. That is courts and Department of Justice will look at this as the minimum and maximum amount that an employer should expend. Clearly that's not the intent but if needs to be cleared in the NPRM and the final rule. With regard to employee work areas we may confuse what is actually driving this and the importance of going forward with this. Two points one we know it only kicks in with regard to when alterations kick in, i. e. , not existing facilities or elements, but when does an alteration begin and an existing facility end?We would urge that you make that as clear as possible. It permeates the entire rulemaking, existing facility, alterations to new construction on a continuum when do alterations kick in and when can they be distinguished from existing facilities. We do continue to believe that workplace ought to be governed by Title I. Lastly, with regard to expenses I will wrap it up and say I compliment the Department of Justice in the extensive analysis it's done on cost benefit. It certainly puts the department of homeland security to shame on regulations which we have been in court on and challenging what they have done on the regulatory flexibility act. And we thank you for that. There are certain areasin here where the benefits do see disproportionate to the cost such on the side reach requirement and single user toilet rooms. How you calculate that into your final requirements I'm not sure. I bring that to your attention. The constant problem of drive-by lawsuit. This will lead to increase litigation. We think that is part of the costs that have been ignored in the cost analysis. We would ask the Department of Justice to take that into consideration and consider steps to head off litigation. One might be to have the Department of Justice reimburse small businesses if they successfully defend themselves against a Department of Justice enforcement proceeding, therefore, heading off what might be frivolous lawsuits by the Department of Justice, therefore, reducing litigation costs. The other one will be somewhat of an old chestnut but still reasonable is the right to correct, i. e. , shouldn't a small business if it's not a willful violation have one chance, one right to correct the alleged violation before going to court and paying attorneys fees, et cetera. Thank you Madame for your time and I apologize for going over.

>> LORETTA KING: Thank you, Mr. Johnson. We now have Dr. Donna Garren who is the vice president of health and safety regulatory affairs at the National Restaurant Association. Welcome. You may proceed.

>> DR. DONNA GARREN: Thank you. Good afternoon. I am representing the National Restaurant Association. Founded in 1919, the National Restaurant Association is the leading business association for the restaurant industry together with the National Restaurant Association Educational Foundation. The association's mission is to represent, educate, promote and rapidly grow an industry comprised of $1,945,000. We appreciate the opportunity to present comments regarding regulations. These regulations in this public forum. It is our continued hope that the agency will consider the special challenges the industry would face under the revisions. We are working with members to develop more defined comments which will reflect their concerns regarding key provisions of the revised guidelines. We would request an extension of this comment period to fully assess our members' questions and concerns. As a leading member of the hospitality industry, restaurants have a long standing commitment to offer a warm welcome to all customers with and without special needs. As such, the restaurant industry in the U. S. has made a multimillion dollars investment in improving access and eliminating barriers to persons with special needs. The substantial economic commitment and hard work continue today in all restaurants across this nation. The architectural progress to build facilities and modify existing buildings and eliminate barriers for our customers has been particular rapid given the life expectancy for new buildings. In 1992 the national restaurant association in cooperation with the Department of Justice developed educational informational materials based on the current standards to rapidly and accurately disseminate access information to the restaurant industry. The publication and materials have assisted hundreds of thousands of restaurants in the identification and of barriers to our customers. We believe is typifies the hospitality industry's attitude for customers with special needs. We want to applaud the Department of Justice for recognizing the significant cost burden on restaurant that's have pried with the ADA standards. Department of Justice and others may -- must also be fully aware that technical or other changes to the existing ADAAG bench marks which have the potential to create essential cost burdens and business disruptions to restaurants may not result in substantially improved access for persons with special needs. We are particularly concerned with economic and operational effect of changing dimensional bench marks and definitions and the effect on existing restaurants that have already made significant investment to comply with current standards. We appreciate the [inclusion] of the safe harbor provision, however, the application to existing facilities would impose substantial costs and we would request the agency allow existing facilities that already comply with current ADA standards should not have to comply with revised standards. These standards should not be applied retroactively, nor should they be used as a standard for barrier removal. Clearly my mandate for retrofitting of existing facilities would be undue burden across the spectrum of the restaurant industry. This would expand coverage of Title III and include areas clearly covered in Title I. This type of requirement would fundamentally change the definition of the work area and would appear to be an initial attempt to force a one size fits all employee accommodation model and pose potential ergonomic productivity and safety concerns. While the ADA improved access for many people with disabilities, the law continues to present challenges for small businesses. The new requirements proposed by the Department of Justice could make it even more difficult and expensive for businesses to comply with the ADA. We are not opposed to the reasonable changes or clarifications, however, we encourage the Department of Justice to consider cost benefit relationship of proposed changes. Thank you for this opportunity to present our industry's concerns and the national restaurant association believes it is our best interest to with businesses, interest groups and government officials to remove barriers to any potential restaurant customers.

>> LORETTA KING: Thank you very much. I look forward to your further testimony. Our next presenter is Matthew Famiglietti.

>> MATTHEW FAMIGLIETTI: That's fine. My name is Matthew Famiglietti, I just want to make general comments. I just walked in here about 30 minutes ago. I didn't know there was a public hearing being held today. I'm an attorney in D.C. and I was downtown for another meeting and just walked by and saw the sign. I do quite a bit of ADA work in my law practice. I'm also a former advocate for South Carolina second quarter protection advocacy and former congressional candidate from northern Virginia and I am stunned and amazed at what I have heard while I have sat here for the past 30 minutes or so. I have heard nothing other than let's contract ADA, not expand it. I will tell you that every time anyone in this country is denied a basic right, whether it is based on race, sex, national origin or disability, we all are lessened as a country. The passage of ADA is one of the greatest civil rights act ever passed. The intent of Congress has now really been fulfilled since the original passage. That's why we have had the ADA to restore the ADA act in a broad sense. Now, let me tell you a couple of experiences I have had recently. First of all, I have a service dog. She is not with me today. When I was campaigning for the eighth congressional district democratic primary in northern Virginia, I was campaigning one day over in Alexandria. I went into a brand new restaurant that was physically accessible but as soon as I walked in with my service dog, the manager told me I could not -- I was not welcomed. Now, at that point, there was a -- there was another young lady who was a waitress there. She had a better understanding of the law than the manager. And she said, "No, no, no. You're wrong. He has a right to bring in his dog. It's a service dog." I did not file a lawsuit even file a complaint with the Justice Department, but I went back and I talked to the manager personally for ten or fifteen minutes trying to explain the intent of the law. What I find in terms of small businesses in violation of what I think is the ADA is not so much that they have to spend an inordinate amount of money to comply with the law, but simple ignorance of the law, lack of training. And I said to that manager, if you want me to come back and do a training session for your employees, I would be glad to. Now, this was a new restaurant that had at least 15 employees. So we are not even talking about a small business. That is the type of thing that I have run into. Also, I'm very concerned -- I'm a national season ticket holder. They have done a fabulous job with the new ballpark but when I hear individuals saying let's restrict the type of service animal that is allowed in a public setting, then that concerns me because when you start down that slippery slope, where do you stop? Where is it okay for one breed of dog to come in, but another breed is excluded. As long as the dog is trained properly, it should be. Not be a problem. I know when I give my lab a command to drop at my feet, that's what she does. And she curls up in a ball. And if you have a Great Dane or something of that magnitude, if that dog is properly trained, that dog is going to curl up into a small ball of fur. I am very concerned that I have heard nothing about other than let's make it easier on businesses. I will be honest with you, and this is the last statement I'm going to make, over the last seven and a half years we have seen our government pull back on regulation in general. And it is time to stop that. It is time to make sure that all of us have our rights enforced and those are the only comments I have to make. Thank you very much for hearing me out.

>> LORETTA KING: Thank you very much for coming. I'm glad you saw our sign today. Okay. Our next commenter is Tim Sorge. He is the owner of Swings 'n' Things Family Fun Park. You may proceed.

>> TIM SORGE: Good afternoon. My name is Tim Sorge and I am the owner of Swings 'n' Things Family Fun Park located in Cleveland, Ohio. I'm also the chairman of the family entertainment center committee of the International Association of Amusement Parks and Attractions known as IAPPA. The three associations which collectively represent a majority of miniature golf courses in the United States are IAPPA, the Miniature Golf Association of the United States and also the International Association of the Leisure Entertainment Industry. I'm speaking today on behalf of all three organizations and I thank you for this opportunity. We will submit a more thorough written public comment before the comment period expires, but we would like to address what we consider our priority issues today.

First, we would like to request that the comment period be extended. The miniature golf industry is currently at the peak time of its summer season. The NPRM's 60-day comment period ironically falls within the busiest eight weeks of our year. Our members do not at this time have sufficient time to effectively communicate their areas of concern or support on the many issues brought forth in the NPRM. We respectfully request that the comment period be extended at least an additional 90 days.

Another issue, the 2004 ADAAG states that at least 50% of the holes in a miniature golf course should be accessible and connected to an accessible route. The department is considering creating an exception for existing miniature golf facilities that are of a limited square footage, have limited amount of available space within the course or were designed with extreme elevation changes within that space. We fully support this exception and will be suggesting possible parameters the department has requested in our written comments.

The 2004 ADAAG states that accessible holes on a miniature golf course should be connected to an accessible route. The current requirement is those holes be consecutive. The department is considering allowing multiple breaks in the sequence of holes provided the accessible holes are connected by an accessible route. We also support this option as we believe it will give golfers with a disability an opportunity to enjoy more of the landscaping, water elements and theme structures that make miniature golf a unique recreational activity.

The broad definition of an alteration is an area of particular concern to us though. Currently, items such as the recarpeting of miniature golf holes may not be considered quote, unquote, normal maintenance and would be classified as an alteration which as you know triggers the requirement that additional alterations be made at the same time as the recarpeting. It's not uncommon for some owners to recarpet their courses each year as part of normal maintenance. Worn carpeting is a safety issue to all guests. We would like the department to reclassify the replacement of carpet on miniature golf holes as well as other routine items such as landscaping, minor repairs of golf holes, all of which are extremely necessary to keep these areas safe as routine maintenance, thus not subjecting them to other accessibility regulations. These types of items are very similar to repainting interior walls in a retail establishment. In essence those are our forms of making our courses beautiful. We are not looking to avoid typical alteration requirements we just wish to note the items that are necessary to maintain our courses in a safe and attractive manner. We plan to submit to you for your consideration prior to the expiration of the comment period a list of regular maintenance tasks that are inherent to the miniature golf industry.

The miniature golf industry is primarily composed of family-owned small businesses who often have left other careers to offer their respective communities a place where all citizens can enjoy a safe, family-oriented opportunity to spend quality time with family and friends. Our industry has and will continue to work with the access board and department to address needs of guests with disabilities. We will ploy additional written comment for this NPRM, but we strongly urge that the department extend this public comment period. The current short period makes it difficult for miniature golf operators at this time of the year to provide the department the important information it needs for consideration on its work to update the ADA. Thank you very much.

>> LORETTA KING: Thank you. We look forward to your additional comments.

>> Our next commenter will be Erika Hagensen. Nice to see you again, Erika.

>> ERIKA HAGENSEN: As you have said, good afternoon. I'm the director of disability rights and family and technology policy for the ARC of the United States and united cerebral palsy disability collaboration and I want to take the opportunity to take time and comment on the ADA. The over 100 questions outlined in the NPRM might seem to some as overly technical with responses that are difficult to quantify in monetary terms and yet the millions of lives of people with disabilities, the family, friends and coworkers will be deeply impacted by outcome. Before I address the issues outlined I would like to begin by re-articulating the purpose of the ADA and the landmark civil rights legislation was passed with such bipartisan support as to demonstrate a mandate of inclusion. And president George W. Bush stated that the ADA would take a sledge hammer to the wall of discrimination experienced by generations -- [As a woman with a disability I would] say that the proverbial wall President Bush referenced is not as high as it once was and yet it persists. Millions of Americans with disabilities and their families still live with an unrealized promise nearly 18 years after the passage of the ADA the wait should be over. I would like to begin with question number 4 of both Title II and Title III NPRM pertaining to the accessibility of witness stands. We support the change to the ADA mandating an accessible route to the witness stand and attorney area as well as the clear space to accommodate a wheelchair within the witness stand be that at attorney level or at a raised level. I start with this question because I think it is one of the best examples of the ADA and what accessibility really means. Accessible witness stand -- just access to the physical structure itself. It's access to justice. It's access to due process, self-defense and to participation as a witness. In some courtrooms if a witness is not in an elevated witness stand she cannot be visible to the judge and jury. How can someone adequately participate in the legal process if they are invisible to the individuals who are deciding the fate of 6 others?I think of Lane versus Tennessee heard by the Supreme Court in 1998, and I remember the pictures of individuals with disabilities crawling up the stairs to the Supreme Court to demonstrate the degrading experience of inaccessible courtroom entrances. Are we going to tell Mr.  Lane and others that they can have access into the courtroom itself but not participate in due process with their non-disabled peers and jurors. The wall we set to tear down persists. Many questions were asked regarding service animals and comfort animals. In the department's proposed language it includes, quote, animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or promote emotional well being are not service animals. It goes on to take service animal includes individually trained animals that do work or perform tasks for the benefits of individuals with disabilities. Just like a service animal reminds an individual with psychiatric disabilities to take their medication and, therefore, function well in society, similarly, animals who work with individuals with intellectual disabilities perform a task and the outcome is better participation in society for that individual as well. That could be something as simple as sitting next to a stove when it's time to make dinner as a cue or a social cue for an individual who is experiencing stress or disorientation related to their cognitive disability. I think it's important to recognize that individuals with cognitive disability are some of the most isolated members of our society and, therefore, would benefit from this. Opening a door or taking a cue to medicine providing an individual with emotional stability they need to be successful are all critical tasks depending on the person's individual disability. I have touched on physical accessibility and issues related to individuals with cognitive disability and finally I would like to address business and public entities and briefly discuss -- of safe harbor. We recognize that businesses have incurred expense in renovating spaces to be accessible to all members of society. However, making a venue accessible is not only compliant but it's also good for business. Many businesses and public entity which have complied with previous guidelines should be commended. Thousands have yet to do so. However, compliance with previous laws should not negate or delay compliance with future or current laws. The concept of safe harbor raises concerns how will the phased compliance be monitored and reported?    How will state and local government provide accessible upgrades?

Which resources will patrons with disabilities have if an inaccessible venue states that the rest room is phase five of their upgrade?

Given the demonstrated lack of compliance, a sanctioned unmonitored system of delayed compliance raises serious concerns and further threatens the full participation of individuals with disabilities. I would like to thank you for the opportunity to participate and we will be providing written comments. Thank you very much.

>> LORETTA KING: Thank you very much. I look forward to your written comments. Our next commenter is Robert Herman he is a senior advocacy attorney for the paralyzed veterans of America. Welcome.

>> ROBERT HERMAN: Thank you. Good afternoon, thank you for the opportunity to testify today. PVA's members are all veterans with spinal cord injury or dysfunction. For over 60 years PVA has been a strong advocate for the full enforcement of their civil rights as well as the rights of all people with disabilities. We will be submitting comprehensive comments regarding the department's proposed rules. For now we offer the following brief statement. With the reduction in the required numbers of wheelchair seating locations in assembly areas we strongly urge the department to vigorously enforce the new prohibition against placing wheelchair seating locations on temporary platforms. Through PVA's involvement with a number of stadiums and arenas we have learned just how temporary even so-called permanent temporary platforms can be. An operating entity's desire to maximize seating revenue can easily subvert equality of opportunity. We applaud the inclusion of rules governing new construction of movie theaters using stadium style seating. We trust that these standards will provide certainty to theater owners and movie-goers and yet still allow for creativity and design. PVA encourages the department to consider expanding this provision, section 36. 40699(f) to include auditoriums, theaters, or any areas of assembly that use stadium style seating. PVA is pleased that the department has promulgated a set 6 principles governing the sale and marketing of tickets for wheelchair seating locations and companion seating. However, we do believe that these guidelines need to be reconsidered to permit generally equivalent access to people with disabilities. Again, through PVA's work with stadiums and arenas, we have seen ticketing policies that are perfectly acceptable in theory be misused. Perhaps in an attempt to demonstrate a minimal demand. PVA members have called to order tickets and been told the accessible seating is sold out. Reports from the event, however, state that many wheelchair seating locations sit empty. The immediate release of all accessible seating after a designated level is sold out will negatively impact the ability to buy tickets. A high demand concert, for example, may sell out within minutes through on line and phone requests. That technology for ticket purchase may not be as accessible to people with disabilities and in fact the ability to purchase tickets. For instance, accessible seating locations are not readily available on line, but require a phone call to a number that may or may not be staffed. Even if they are available on line a separate form is required to complete the purchase. Should the accessible seats have been released immediately for purchase to the general public, the opportunity to participate has been severely limited for people who need accessible seating. PVA acknowledges that the department must balance the venue's interest in seating revenue with access to people with disabilities. We believe that this is achievable through a graduated incremental release of accessible seating, perhaps tied to the length of time between the sell-out of general seating and the event. In any event, we urge the department to require the retention of at least 10% of accessible seating for people who require it, but are secondary recipients of tickets. The PVA members have reported a disturbing and ever increasing problem with beds in hotel rooms. With the common use of deeper mattresses, beds have become too high to safely transfer onto from a wheelchair. Since many wheelchair users must use the bed as a dressing bench a transfer may be performed several times per day. Other wheelchair users may use a portable lift to transfer into bed. Many hotels use platform bases that have no clearance underneath for a lift. A bed that does not permit transfer is as much a barrier as a set of steps. The access board is not authorized to address furniture and this issue is not addressed in the proposed guidelines. We urge the department to require places of transient lodging to insure that beds in the accessible rooms meet maximum height and minimum clearance standards. We will provide specific suggestions in our comments. While we do not endorse the following standard, it does at least address the issue. Microtel inns actively markets accessibility features and includes a following as a feature in accessible rooms. Finally we urge the department to look favorably upon ours and other requests for a 60-day extension of time in which to file comments given the size of the task at hand a little extra time would be very helpful. Thank you.

>> LORETTA KING: Thank you very much. Our next speaker will be Megan Talbert and Craig Cook, one of whom is the CEO of helping hands: monkeys helpers for the disabled and I'm sorry my notes don't tell me which one. Thank you.

>> MEGAN TALBERT: Thank you. We are here representing the board of directors, staff and recipients of helping hands: monkey helpers for the disabled, based in Boston, Massachusetts our organization --

>> LORETTA KING: If you are using a power point, it's important that you describe specifically what's in the power point so the people who are blind and or who have no vision will know exactly what you are referring to. Thank you. You can start the timer now.

>> MEGAN TALBERT: Here you see some pictures of one of our recipients and also one of our monkeys in training loading a CD into a CD player. It says that helping hands is a national 501C3 non-profit established in 1979 and incorporated in 1982. We are based in Boston and have a 30-year history of breeding, raising and training monkeys for individuals with spinal cord injury and other mobility limiting impairments. Our service monkeys are individually trained at no cost to our recipients with the support of donors and foundations. We are here today with the support of the Dana and Christopher Reeve foundation as well as paralyzed veterans of America and the injured Marines fund. This is an example of some of the tasks that our monkeys can do that service dogs cannot such as retrieving a dropped mouth stick from a floor and helping someone get it back [in] place. Scratching an itch. Imagine if you could feel your neck and head and could not feel the rest of your body and had an itch that you could not scratch how meaningful it would be to have a service animal that could help you with that. Our most recent placement is with a young man who was injured in an IED explosion in Iraq. Tim lost both legs, one of his eyes, use of one of his arms and has traumatic brain injury as a result of his accident. We want to make sure that the new changes to the ADA will not limit services available to veterans including the young men and women returning from Iraq and Afghanistan. Our monkeys are individually trained in socialization homes and then two to four years in Boston, Massachusetts. They are trained for help within the home environment and are not used [as] helpers in places such as grocery stores and restaurants. They are not in public and do not pose a threat to the public at large. I would like to introduce Craig Cook. He is from California, and I think he can provide an incredible example of the work we do.

>> CRAIG COOK: Hi, my name is Craig Cook and this organization means so much to me that I flew out here from L. A. last night on the red eye. So forgive me if my eyes are a little piqued. I was a passenger in a car. It was a drunk driving accident and one minute I was walking like all of you and I ended up a quadriplegic, broke my C5 bone and I haven't walked since. I went through a severe depression for obvious reasons, I lost pretty much everything that was dear to me, my house, my car, my job, my fiancÚ, and finally when I started losing my identity, I turned to a service animal. And my friends thought it might be best if I got a dog, and I'm allergic to dogs. One of them went on WEB and found helper monkeys for the disabled. I thought what a great idea to have a monkey, something that would have hands and its a primate so I wouldn't be allergic to it. Mini is not just a pet. She is a service animal. If I drop a phone on the ground, which is a life [line], the 911 in emergencies, there is no way that any other animal could possibly get that and put it on my lap. Dogs can, but not like this monkey. I can tell her to fetch. She will get the phone, bring it back, put it back on my lap. If I need water, my medicals, anything like that, Minnie can fetch for me. I usedto have to wait for hours, sometimes four or five hours for just a postal worker to come by to give me a drink of water or sometimes even my wheelchair would come unlocked and I would be in the hallway or the door framing and just stuck there for hours. Well, now Minnie, if I ask her to go ahead and push, push, push, she will push the wheel lock and give me independence back and it's happened more than you can imagine. This monkey is a life line, not just a pet mentally and physically. She has gotten me out of the funk that I was in, and I'm no longer depressed. It's a bundle of joy to have her and I would hate to have her taken away. And I appreciate all of the time and effort and thank you very much for listening to me. I hope you will consider it.

>> MEGAN TALBERT: In closing we would like to urge the Department of Justice to adopt a narrowly tailored exemption to the proposed exclusion of primates to insure that helping hands can continue to provide its service monkeys to individuals who are disabled. Thank you.

>> LORETTA KING: Thank you very much. Our next commenter will be Mary Lamielle, executive director of the national center for environmental health strategies on the telephone.

>> MARY LAMIELLE: Good afternoon my name is Mary Lamielle, I'm executive director of the National Center for Environmental Health Strategies. The center focuses on solutions to environmental health problems with an emphasis on chemical and electrical sensitivity and related environmental disabilities as well as on healthy buildings and healthy people. People with chemical sensitivities are an underserved, underrepresented population who face significant barriers to conducting daily lives. The proposed regulations have failed to address these barriers and in particular have failed to identify such barriers to access within the specific topic areas under discussion in the proposed rulemaking. In 1999 in response to the U. S. access board's rulemaking on accessible guidelines for recreational facilities, representatives of the chemical sensitivity community including myself describe the discriminatory practices that prevent them from access to swimming pools, wading pools, whirlpool Jacuzzis due to chlorine or bromine. These barriers are significant. These exposures are debilitating for all people with chemical sensitivities. There are currently available technology and facilities management practices which would permit significant minimization or elimination of these barriers without compromising health or services. The notice of proposed rulemaking notes that individuals with disabilities and advocates were particularly concerned about the accessibility of pools and noted that for many people with disabilities swimming is one of the few types of exercise that is generally accessible and for some reason can be an important part of maintaining health. The need for access to swimming pools for exercise and therapy is equally great for people disabled with chemical sensitivities. People with chemical sensitivities frequently do not have access to parks recreation and golf courses due to pesticides. Exposure to pesticides is not healthful for anyone and it varies access for people with chemical sensitivity. Some communities around the country have adopted policies that insure pesticide-free parks and have posted parks as such certainly all government parks should be pesticide-free and thereby accessible. Such practices are healthful for all and remove a significant barrier to access for people with chemical sensitivities. People with chemical and electrical sensitivities continue to find it difficult and many times impossible to access public and commercial buildings due to environ exposures. Some of these barriers are unhealthy for everyone, but more importantly they can prevent the person with these disabilities from access to the basic necessities of life and preclude access to such essentials as health care including hospitals. I would refer you to the first phase focus on making public and commercial buildings healthier for all and more accessible for people with these disabilities. The indoor environmental quality project report. I would ask that the Department of Justice make every effort to address the access needs of people with chemical sensitivities and support in principle if not in specific detail all efforts to enable access for people with these and related disabilities. I would also like to recommend that the proposed rulemaking include language that specifically addresses needs of people with chemical sensitivity. Those disabled with multiple chemical sensitivities are a population protected by the Americans with Disabilities Act with access requirements that may not be covered fully under the proposed rule. Am I done?I'm sorry. That the completion of my statement. I thought I heard something. I want to add separate from my statement regarding the rule I wanted to comment that other concerns I have on the height of beds in hotel rooms being too high for transfer for wheelchairs but also just too high if you have other mobility impairments or just for safety and also my preference for in hospitals wheelchair accessible rooms being dispersed throughout the hospital not just on a single floor and a final comment that on storage for wheelchairs, that storage areas be available so that if an individual wants to transfer from a wheelchair into a seat that that be a possibility. That's the conclusion of what I wanted to say. Thank you.

>> LORETTA KING: Thank you. We look forward to receiving your written comments.

>> MARY LAMIELLE: Okay. Bye-bye.

>> LORETTA KING: Next, we have Michael Stein from the National Association of the Deaf.

>> MICHAEL STEIN: Hi, my name is Michael Stein and I am an attorney with the National Association of the Deaf. We represent Americans who are deaf and hard of hearing under the Americans with Disabilities Act, the rehabilitation act of 1973 and other federal laws. We are going to be preparing written comments. Today I want to highlight three different issues. Issue number one, I want to -- requiring Title II and Title III entities. One of the most frequent complaints we got from our constituency is that many are in Title II and Title III entities do not accept relay calls. Most they are unfamiliar with relay services, but are concerned about the people calling through relay services might be flattering. For example, you can ask what is your mother's maiden name, what is your birth date. And another concern, we are concerned about the operator potentially being a third party. This concern is unfounded because FCC regulations make clear that the relay operator is nothing more than a transparent conduit. She facilitates communication between the callers to the telephone call. And FCC regulations further prohibit relay operators from disclosing the content of calls. And so FCC regulations make clear that entities can accept relay calls without any concerns. Entities continue to refuse to accept relay calls. Banks cite confidentiality concerns and also are concerned about fraud, but these concerns are unfounded. The second area or the third area that I wanted to address is movie theaters and stadiums. Under Title III of the ADA movie theaters and stadiums are listed as places of public accommodation and Title III explicitly states that they have to provide fair and equal enjoyment to all individuals including individuals who are deaf or hard of hearing. Nonetheless, 18 years after the ADA has passed, movie theaters and stadiums remain for the most part inaccessible to people who are deaf and hard of hearing. For example, when you talk about movie theaters, some movie theaters provide captioning but only in a limited manner. They may only show caption movies a few times a week, like on a Tuesday afternoon. They may not do it on a Friday or Saturday evening and when they do show movies with captions they might only show one movie and it may not be the movie that I want to see. And so I applaud the department's consideration of making clear that movie theaters should be required to caption every movie being shown on every screen in every theater. That would give people who are deaf and hard of hearing the same access as hearing people have in deciding when to go to the movies and what movies they want to see. And finally, I would like to talk about stadium captioning. The department has expressed concerns about undue burden.

>> LORETTA KING: You have one minute.

>> MICHAEL STEIN: Here in the Washington, D. C. , the Washington Redskins provide some captioning, and they do so at $550 per game and so when you talk about the figure $550 a game, that is minimal compared to other expenses such as where they may be paying --

Stadium would only be required to provide captioning for safety information. Many professional sports teams stadiums less than 25,000 seats. So they should be taking into account revenues and not focusing on seats. Thank you for your time.

>> LORETTA KING: Thank you. Our next commenter will be Mark Derry. He is chair of the national council of independent living. Welcome, Mr. Derry.

>> MARK DERRY: Thank you. Thank you for this opportunity to comment on the proposed rules. My name is Mark Derry and I am here as the member of the governing board of the national council on independent living. I serve as the chairman of the ADA civil rights committee for the organization and have been asked by our board to speak with you today. The national council on independent living is the oldest national cross-disability grass roots organization run by and for people with disabilities. Founded in 1982, NCIL is the representing center for independent living and statewide independent living councils. A majority of our centers for independent living and statewide independent living councils receive federal funding under title 7 of the rehabilitation act administered by the rehabilitation services administration of the department of education. According to data collected by the RSA during fiscal years 2004 and 2006, centers for independent living provided the core services of advocacy, information and referral, peer support and independent living skills training to over three million individuals with disabilities. Centers for independent living serve our nation in all but five congressional districts. These centers are non-residential advocacy organizations. They serve people with disabilities of all ages and income including people with physical cognitive and sensory disabilities as well as the growing population of people with mental illnesses and returning veterans with PTSD.

Many centers offer additional services such as community advocacy projects, home modification programs and technical assistance in their communities on compliance with the ADA. Many NCIL members are advocates who worked tirelessly to make ADA reality in 1990. Since then those same members have provided technical assistance, information and referrals to resources like the Department of Justice technical assistance line to help make their communities accessible to all. NICL has provided national ADA training to the public as well as its members since the law went into effect and we have gained much experience in not only pointing out barriers but providing solutions that benefit everyone. Many of our member centers as well as individual members like myself have provided both volunteer and fee for service consulting on the ADA for years. We have relied on both the ADA as our civil rights law as well as building codes where appropriate to guide us while building codes have been revised over the years we have waited for a long time for this proposed rule to finally adopt a revised ADAAG now referred to as the 2004 ADAAG to provide continuity and less confusion with regard to the standards for accessibility. While this rulemaking gets the job done in that regard, we have some serious concerns about some aspects of the proposed rules. We will be submitting detailed comments in the near future, per the rulemaking process but have several areas of concern to share with you today. The 2004 ADAAG is also already done a good job of providing changes and enhancements to the 1991 standard that make it easier for a building to comply. Adding ranges and numbers to that, which were absolute, for instance, like toilet center lines, interior signage heights have made applying solutions for readily achievable barrier removal easier to do. A safe harbor with regard to facilities altered under the 1991 standards. We believe this figure can be manipulated too easy and gives businesses who have been avoiding compliance with the ADA another way of keeping their barrier removal efforts at a minimum or non-existent. The readily achievable barrier removal requirement has been an on going obligation for years with free technical assistance available to entities through several resources during that time. Most businesses should have accomplished most of the work necessary over the years if they were intent on serving people with disabilities and taking advantage of the tax incentives available in the process. We continue to have concerns and will submit additional comments regarding safe harbors as well as issues we have with the definition of service animals, access to existing swimming pools and requiring individuals to attest in writing that they actually use a wheelchair to reserve space at events. Thank you for the opportunity to present our comments.

>> LORETTA KING: Thank you very much, Mr. Derry. This is what we are going to do now. We have exhausted all of the scheduled commenters, so we are going to take a five -- ten-minute break, and if anyone who commented previously would like -- and did not have enough time to finish would like an additional few minutes we are going to allow that as well as anyone who might walk in during the interim. We indicated in our notice that we would be open until 5:00 so we will keep the record open until that time. So we will return in ten minutes and we will give you some time to think about whether or not you want to supplement your comments you made earlier.

>> LORETTA KING: Please be seated. We would like to resume. Since we have exhausted all scheduled speakers, if anyone else would like to supplement their testimony, please start making your way through the front of the ballroom and someone from the Department of Justice will give you an opportunity to sit at the table to supplement your testimony. You will have an additional five minutes. The same rules apply.

Mr. Kerr, you may proceed.

>> JERRY KERR: My name is Jerry Kerr. I'm president of Disability Rights Advocates for Technology. Commonly most people associate our organization with the Segway and while we are associated with Segway in that we think it's a premium example of what can happen benefiting universally designed technology solutions for people, we also are quite concerned about the aging baby boomers population, those members of my generation who are quickly approaching the age of 65. Beginning in 2012 as many as 12,000 people a day will begin to reach the age of 65, an age where they will begin to have difficulty walking and other associated disabilities at an ever increasing rate and they are projected to live well into their 90s. This is going to create a huge population of people with disabilities that must be accommodated. As I have sat here today and listened to representatives of trade groups and businesses as a former businessman, I was astonished to listen to objections to preparing our businesses, preparing our places of public accommodation for this upcoming group of people who are going to need to be served, who are going to demand to be served.

We have just, and are still in a period where we have experienced one of the lowest rates of growth of our senior population, and that is about to change. And that's not a difficult thing to conclude if you look at what happened to the population of the United States during World War II and just in those periods during the war when our population was stagnant and sometimes in some years reduced then immediately thereafter we had the baby boomer population. We are in that 65-year period where we experience very stagnant population growth and our growth in senior citizens is predominantly a result of them living longer lives. Beginning in 2012 the baby boomer population will begin to turn age 65.

We will be experiencing explosive growth in the numbers of seniors who have been used to getting what they want when they want it, and businesses need to prepare to serve them, and so while I listen to people who say wheelchair spaces go unused, pool services go unused. Well, I assure you in a very short time they will not only go unused, they will be very similar to those of us who have disabilities that attempt to find a parking place for a handicapped person. They have all been taken up everywhere we look. So I encourage businesses across the country to take a renewed interest and a renewed look at what the ADAAG does. It will help them prepare our businesses to serve our senior population that is coming down the road. If we start doing it then, it will be too late. We need to start preparing now for those folks that are coming that will be experiencing disabilities in the upcoming years. Thank you very much.

>> LORETTA KING: Thank you. Does anyone else want to testify?Please raise your hand?Opportunity going once, twice, three times. Okay. We are going to recess until 4:45 pending the appearance of anyone else who might want to testify.

This record will be held open until then. Thank you very much.

>> LORETTA KING: We are going to resume the hearing in one minute. Good afternoon. On behalf of the Department of Justice, I would like to thank everyone for attending the public hearing regarding the Notice of Proposed Rulemaking on the Title II and Title III of the Americans with Disabilities Act. We appreciate all of the thoughtful comments that we have heard today, and we will take all of them under advisement. We are looking forward to the written comments that you will submit to us. Please remember that the comments are due on August 18th, 2008. For additional information, you should refer to regulations. gov or ADA. Gov. If there are no more commenters we hereby close the hearing. It is now concluded. Thank you very much. [Applause]


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.





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updated July 25, 2008