"Note from the U.S. Department of Justice:  U.S. DOJ created this .TXT version of the public comment as an alternative for those who have difficulty reviewing the PDF of this same comment.  The text layer associated with the PDF version is of poor quality, because the original image of the public comment was also of poor quality.  To rectify this problem, we have corrected the errors in this text-based version, so that the comment can be more accessible and can be read more accurately (e.g., by screen readers)."  United States Department of the Interior OFFICE OF THE SECRETARY Washington, D.C. 20240 Aug. 15, 2008 Janet Blizard Deputy Chief, Disability Rights Section ADA NPRM P.O. Box 2846 Fairfax, VA 22031-0846 Dear Ms. Blizard: In response to the Department of Justice's (DOJ) Notice of Proposed Rulemaking (NPRM) to Amend the American's with Disabilities Act Regulations, the Department of the Interior (DOI) requested its Bureaus to review the NPRM and provide comments for transmittal to the DOJ. Comments were received from the National Park Service, the Bureau of Land Management, and the Bureau of Reclamation. Since several of the proposed rulemaking sections were not applicable (for example, the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines have already been adopted by GSA), these comments are limited to review of the two sections of tile NPRM related to Service Animals and Wheelchairs and Other Power Driven Mobility Devices. General comments about DOI's review of the NPRM are highlighted below. A summary of comments and recommendations received from DO1 Bureau staff are included in Enclosure A. In addition, a list of all comments received from DO1 staff has been included in Enclosure B. General Comments: - The extremely broad definition proposed for other power driven mobility devices would require the consideration of virtually any type of a device that any individual with a disability desires to use and would be extremely difficult to manage in a reasonable way. - Electronic Personal Assistance Mobility Device (EPAMD) should be separated from the proposed definition for other power driven mobility devices because they are more environmentally acceptable and more closely aligned with individual basic access. - The use of power driven mobility devices, other than wheelchairs, in designated federal wildness areas and other non-designated federal and non-federal natural undeveloped areas is a major concern to DOI. The proposed rule is not specific enough to provide clear guidance in the array of settings covered by the rule. A clarification should be included in this rule. - The proposed changes regarding "service animals" are acceptable and usable by DOI Bureaus without hardship. DO1 recognizes that public entities may provide more access than minimally required by the regulations (i.e. providing arras through which the public entity, itself, uses vehicles, atv's, golf-carts, etc., or allows others, generally or by permit, to use such power driven mobility devices). DOI, also, recognizes that the ADA is a civil rights requirement and when more access than is minimally required is provided, an equal opportunity must be afforded individuals with disabilities to use EPAMD's and other power driven mobility devices. - Thank you for the opportunity to comment on these very important issues Sincerely, Sharon D. Eller Director, Office of Civil Rights U. S. Department of the Interior Enclosure A DOJ Notice of Proposed Rulemaking To Amend the American's with Disabilities Act Regulations DOI -Summary of Comments August, 2008 Introduction: The mission of DOI is (a) protect the Nation's Natural, Cultural, and Heritage Resources. (b) manage resources to promote Responsible Use and Sustain a dynamic Economy, (c) provide recreation opportunities for America, (d) safeguard lives, property and assets, and (e) manage the Department to be highly skilled, accountable, modern, functionally integrated, citizen-centered and result-oriented. As part of this mission, it is the goal of DO1 to have the highest level of accessibility feasible to our programs, facilities and services while remaining consistent with our other goals of preservation and protection of the resources that we manage. The Department of the Interior (DOI) circulated the Department of Justice's Notice of Proposed Rulemaking to amend the American's with Disabilities Act Regulations to all of our Bureaus for review and comments. We, specifically, asked them to review and comment on the two sections related to Service Animals and Wheelchairs and Other Power Driven Mobility Devices, since we believe those sections have more of a direct impact on DO1 programs and services. A summary of comments and recommendations based on those received from DO1 staff are listed below. Issues and Recommendations: Wheelchairs and Other Power Driven Mobility Devices DOI is very concerned about the extremely broad definition proposed for other power driven mobility devices. This definition is so overly broad that it would require the consideration of virtually any type of a device that any individual with a disability desires to use and would be extremely difficult to manage in a reasonable way. It would require DO1 Bureaus to consider a wide range of devices that may be considered inappropriate in the natural environment. Justification for the use of other devices, which, in some cases, have been deemed to be appropriate in this type of environment, such as the "Electronic Personal Assistance Mobility Device" (EPAMD) would be difficult under this Proposed Rule. While there is some disagreement within DO1 regarding the use of EPAMD's, The National Park Service currently allows their use per interim policies in over 240 of our individual parks. We would recommend that DOJ consider greatly reducing the breadth and scope of the current definition of other power driven mobility devices and consider providing the EPAMD with its own definition. A second issue of concern for DO1 is the relationship of these proposed new definitions to the management of areas that are a part of the designated Federal Wilderness Preservation System and, also, areas that are managed as wilderness because they possess wilderness characteristics. The proposed rule states that the proposed definition of "wheelchair" is informed by several existing definitions of "wheelchair", including the one from Section 507 of the ADA which defines a wheelchair in the context of wheelchair use in federal wilderness areas. The proposed rule then states that DOJ believes that this definition is appropriate in the limited context of federal wilderness areas, but it is not specific enough to provide clear guidance in the array of settings covered by this rule. However there is no such differentiation in the proposed regulatory language, which will likely lead to confusion and difficulties in managing wilderness areas. It is recommended that specific language be added to the regulation that reaffirms the existence of the current definition in Section 507 of the ADA. We propose the addition of the following section in 35.137 Mobility devices: "(e) Device use in restricted areas. Department of Justice reaffirms that in federally designated wilderness and areas managed as wilderness, the only wheelchairs or mobility devices acceptable must comply with the definition in the ADA Title V Section 507c for federally designated wilderness: "Wheelchair (or Mobility Device). A device designed solely for use by a mobility impaired person for locomotion that is suitable for use in an indoor pedestrian area." A wheelchair or mobility device that meets this definition may be used anywhere foot travel is allowed. Further elaboration on the impacts of this overly broad definition of other power driven mobility devices is found in Attachment 2. Issues and Recommendations: Service Animals In general the DOI is very supportive of the proposed changes in the definition and direction provided regarding service animals. Due to the nature of our environment we do restrict pets in many areas managed by DOI Bureaus. Over the past few years we have had difficulties in determining what animals are appropriate service animals and which are not. DOJ has significantly clarified the definition of service animals in the proposed rule. The language as written has placed much needed parameters on animal types that will be recognized as a legitimate "service" animal and will strengthen our position in identifying authorized service animals. There are a couple of areas where we would recommend additions or clarifications in the proposed rule. We recommend that "llamas" be added to the list of animals not considered to be a service animal. There have been requests in wilderness and other back country areas for the use of pack stock, including llamas and alpacas, as a service animal for people with disabilities. Where pack stock are already excluded, there have been resource based justifications for their exclusion which should be recognized by these regulations. Finally, we would recommend that DOJ provide clarification on the use of "Service animals in training". This is a frequent request for the NPS, and we would like to have further clarification of the requirement to allow these animals. Enclosure B U. S. Department of the Interior Comments on Department of Justice Notice of Proposed Rulemaking To Amend the American's with Disabilities Act Regulations General Staff Comments The section relating to service animals, wheelchairs and other power driven mobility devices had potential concerns to me and the entire National Park Service. After reviewing the documents in ADA.gov, I was please to see a clear definition on what constituted a "service dog" as opposed to a person wanting a companion with him/her for mental stability. Similarly, the section defining the usage of wheelchair devices and motorized devices were clear and concise. Both passages were well written and very clear. I feel that the regulations will benefit the National Park Service in accomplishing their mission of maintaining a safe and environmental friendly place to visit. In my opinion, it looks like an attempt to go from common sense judgment to detailed clarification for all possible outcomes. In the end I think what is happening to the guidelines is like a branching and expanding tree of definitions- regulations, each new branch still allowing for someone's interpretation that bends or tests the rules. In the end there will be so many branches (specific regs and defs) that no one front line ranger will be comfortable enough to know them all and even try and enforce the regs in the park. We will just let people that try to test the limits into the park due to fear of not knowing all the regs, causing someone to file a complaint. For the person on the front line, I think the focus should be on enforcing safety and not what something is or isn't. We should allow the safe use of any mobility device or service animals by anyone. Unsafe and damaging use, potential or actual, whether injury or damage to people or facilities or resources, must be the prime factor in barring anyone from using a mobility device or service animal (and this includes cleanliness marring the resource and wear and tear on facilities). Otherwise, allow them if they are safe to the scene, whether the person has a disability or not. And in the regs, allow the ranger (staff) on the scene to adjust the regs if they can meet safety standards (such as a ranger escorting a person with a mobility device or service animal ensuring the event/tour/program is safer). You do not have to be as specific in quoting regs and making a judgment call if you think a situation is unsafe or damaging, or has a good/unacceptable chance of being unsafe and causing injury or damage. When an unusual event occurs in the park, I think the ranger on the scene should first ask "What's the harm?" though they may be initially inclined to stop the event because it is new to them and they have not thought it out. Comment of proposed regs: Two thirds of the people coming into my current visitor center with service animals (about ten a year on average) claim that the animal they are bringing into the building is "in training." Some even wear little coats saying "dog in training" on the sides. The people bringing them in are trainers and do not need the animals. Right now we let them in as we are not sure if they can be barred. The definition for a service animal says the animal must be trained and be providing the needed service, correct? How do we respond to these animals in training? I think the proposed changes are reasonable. A wheel chair moving 6 mph, or any faster than a walking person, 3 mph, is a danger to pedestrians on a crowded thoroughfare. I have witnessed this on Hyde Street Pier and on sidewalks in San Francisco. I believe it should be the responsibility of the individual to operate the vehicle at a safe speed, no matter what the top speed of the vehicle is, and the responsibility of regulatory offices to enforce safety. The maximum weight of a wheelchair and rider is 600 pounds? The maximum weight of a Segway is 140 pounds. Even with the heaviest rider of 250 pounds (top recommended weight of rider and gear is 260) it doesn't approach the 600 pound limit of a wheelchair. The wheels are 3 1/2 inches wide and are pneumatic rubber so the weight is distributed over a greater area than most wheelchairs. A Segway can be operated at an extremely slow speed, is highly maneuverable, and can stop very quickly at slow speeds. Some people are uncomfortable because it is difficult to tell if a person riding a Segway is really disabled. I believe this is the root cause of most of the objections I have witnessed. I saw a person on a Segway turned away trying to visit our Park, who said he was disabled. I agree, it was impossible to tell if this man was disabled or not. I was uncomfortable with his statement, but if he states he is disabled, Ithink we have to take that explanation under the law. As long as the person operated the vehicle in a safe and courteous manner I believe he should have been allowed to take it anywhere a wheel chair is allowed. As for persons using riding lawn mowers and other combustion powered vehicles as mobility assist vehicles I would say that the noise and fumes would be reason for a public entity to claim a fundamental alteration of its service, program or activity. Interesting read. I read the documents off the ADA webpage and I am happy that through this Rule making further guidance is forthcoming. I did not see anything that would require comments from CRMO. We have numerous ADA compliance walk-ways, etc. and give the nature of our landscape even able-bodied individuals don't tend to go "off-trail" or sidewalks. Also, our terrain/landscape tread is not very easily traveled by EPAMD. The other day our Chief of Interpretation observed a person with a Segway attempting to go up the trail on Inferno Cone (a cinder cone) and the cinders were to loose and slippery that the individual did not venture very far from the parking lot and quickly returned t0 their vehicle. I don't see anything we couldn't live with. I am not a fan of Segways and think the disabled connection is a marketing strategy by Segway to sell more machines. They are supposedly difficult to master so could be a problem for folks with some disabilities. Segway has done a great lobbying job with state and federal government officials to get laws changed to accommodate their concerns (Nevada included). I drafted a compendium clause for them last year at the direction of PWR that is still in my files if needed when the time comes. I do think there needs to be some sort of national recognized certification for service animals, which the current draft does not include. That would make life easier for trying to determine what animals to allow or not. We would still have lots of discretion because of resource and safety concerns in all of these areas, so the proposed changes would not affect us negatively and in some cases the proposed language would help clarify things Modify "(a) General" to include harm to wild life. Specifically "...alter the public entity's service, program, wild life, or activity" Modify "(b) Exceptions" to include wild life. Specifically "the animal poses a direct threat to the health or safety of others or wild life that ... Modify "(g) Access" to include wild life. Specifically "...alter the public entity's service, program, wild life, or activity" Regarding Mobility Devices --it looks like it will be up to the individual park to determine the speed limit and size of the devices. Same comments as above regarding "...alter the public entity's service, program, wild life, or activity". Wheelchairs and Other Power Driven Mobility Devices APPA strongly opposes the proposed definition of "Other power-driven mobility device" within 3 35.104 Definitions. A liberal reading of the definition could include nearly any device or vehicle capable of transporting an individual. This includes all-terrain-vehicles (ATVs). The expansive definition, coupled with the provisions of 35.137(b)(c), which puts the burden on agencies to develop reasonable modifications to policy to permit the use of other power-driven mobility devices will: Confuse both the visiting public and land managers with mixed messages on appropriate use; Allow motorized vehicles where they are expressly prohibited; Cause damage to trail treadway that is not designed to accommodate power-driven devices; Increase the burden on volunteers maintaining the trail; Potentially damage natural and cultural resources during off- trail travel; Detract from the "Trail Experience" for other users; Discourage the creation of Accessible alternatives; Establish a precedent for the permissible use of yet-to-be invented future devices; and Create a virtually un-enforceable policy for use of other power-driven mobility devices by people without disabilities. Each point is elaborated below 1. Complexity of the Resource: The Appalachian National Scenic Trail (A.T.), a unit of the national park system, stretches 2,175 miles traversing 14 states from Maine to Georgia and crosses a complex patch-work of federal, state, and local lands. Of the more than 250,000 acres, only 80,000 acres are directly administered by this office. In many areas of the A.T., the landownership has often been described as a "crazy-quilt" of different parcels making it virtually impossible for a user to know whose land, NPS, or state, they are actually on at any given point. One of our primary goals is to provide consistent guidance to both users and partners in the management of the A.T. The adoption of the proposed definition for other power-driven mobility devices applied to state and municipal lands only, could make legitimate users on state lands, illegal users when they cross onto Federal lands. Further, educating users on the appropriate use of the A.T. is already extremely challenging. Other visitors observing the use of a Segway, ATV, golf car, bicycle, or other power-driven mobility devices, even by those with disabilities, would further compromise our efforts to educate users that the A.T. is for foot travel only. 2. Prohibition of Motorized Vehicles: The National Trails System Act, passed by Congress in 1968, established the A.T. as the first National Scenic Trail and specifically limited its use to foot traffic. It further specifically addresses motorized vehicles saying that "The use of motorized vehicles by the general public along any national scenic trail shall be prohibited..." In addition, the A.T. Comprehensive Plan states that "Motorized vehicles are specifically prohibited from the footpath by the National Trails System Act ..." Further, the existing CFR 36, Section 7.100 says "Appalachian National Scenic Trail -The use of bicycles, motorcycles, snowmobiles, or other motor vehicles is prohibited.'' The definition of other power-driven mobility devices could include all of those devices currently prohibited. 3. Damage to Treadway: It does not appear that there have been any peer- reviewed scientific studies conducted to analyze the potential impacts of other power-driven mobility devices, such as Segways, on natural surface foot trails. Potential damage may include soil compaction, erosion, trail widening, trail braiding, failures of containment as they seek alternate routes, and damage to trail structures such as waterbars, check dams, steps, and retaining walls. Although there is some evidence that Segways cause little to no damage on hard surface trails on moderate gradients, studies need to be done to make a clear determination on potential impacts on natural surface foot trails on mountain terrain, the primary asset of our park. Currently, more than $22.8 M has been identified in backlog maintenance needs on the A.T. Any potential additional impacts must be studied carefully in light of the existing significant backlog maintenance requirements. 4. Volunteer Maintenance: The primitive footpath is maintained primarily by a corps of more than 5,000 volunteers who contribute nearly 200,000 hours annually in the maintenance and management of the A.T. Given the potential of additional maintenance requirements, consideration must be given to those that give freely of their time and labor to maintain the trail. Keeping our volunteers happy is critical to the upkeep of the A.T. and management decisions by NPS must not unnecessarily compromise that good-will. 5. Sensitivity to Natural and Cultural Resources: The A.T. has more than 2,100 occurrences of rare, threatened, or endangered species -more than any other unit of the National Park System. Many of these species live directly adjacent to the trail footpath and could be susceptible to damage from the use of other power-driven mobility devices exceeding the width of the trail, or traveling off-trail. In addition, there are many structures, such as Civil War encampments, fieldstone walls, prehistoric sites and CCC era trail features that are likely eligible for listing on the National Register and which also could be impacted by other power-driven mobility devices use. 6. Appropriate Use: For more than 75 years, Appalachian Trail managers have strived to provide a primitive outdoor recreation experience for hikers. Integral to this experience are, among other things; a sense of remoteness and detachment from civilization, opportunities to experience solitude, and a feeling of being a part of the natural environment. The inclusion of other power-driven mobility devices, such as highly sophisticated pieces of technology like the Segway or an An/, in a backcountry setting is the antithesis of these values. Hikers visiting the A.T. often are seeking escape from the machinery and modern technology that plagues them and their sought-after A.T. experience. We are concerned that their experience will be compromised by the presence of Segways, ATVs or similar devices. 7. Other Accessible Opportunities: There are sections of the A.T. that have been constructed to accessible standards or are co-aligned with other trails that are accessible. Other sections of the trail, although not accessible by the proposed Access Board outdoor recreation accessibility guidelines, are available to provide an A.T. experience to a wide range of abilities. We are currently looking into providing users with information to help them match their abilities with appropriate trail sections by conducting assessments utilizing the nationally recognized Universal Trail Assessment Process (UTAP). We believe that we can maintain the quality of the A.T. experience for all users by providing accessible or near accessible sections without necessitating the use of other power-driven mobility devices. 8. Precedent: Although the current generation of other power-driven mobility devices, including Segways, may have limited capacity to travel on natural surface trails, allowing the current devices opens up the door to arguments to use other devices or newer Segways or similar devices. Segway already has an off-road model and it is our understanding that they have a four- wheeled device in the works. These models, which can traverse rough terrain, have an even greater potential for resource damage. 9. Enforcement: With only one field-based law enforcement ranger assigned to the entire A.T., and the necessity for coordinating with a patchwork of other federal, state and local jurisdictions, the potential for abuse of the proposed to be permitted use of other power-driven mobility devices must be considered. The A.T., with a corridor of publicly owned land averaging only 1,000 feet wide, is already extremely vulnerable to illegal ATVIORV, bicycle, and horse use. Encroachments from these prohibited uses because significant natural and cultural resource and treadway damage demoralize volunteer efforts to maintain the trail, and perpetuate public misconceptions about appropriate use. Allowing other power-driven mobility devices, would send the wrong message to all users. Wheelchairs -We recommend that the definition of Wheelchair (or mobility device) remain unchanged from the previous language, which states "A device designed solely for use by a mobility impaired person for locomotion that is suitable for use in an indoor pedestrian area." A mobility device that meets this definition may be used anywhere foot travel is allowed. That definition also applies in areas with a non-motorized land use designation (i.e.: wilderness) Wheelchairs -The Proposed Rule would not only allow wheelchairs designed for indoor pedestrian use access to all pedestrian areas it would open them up to those wheelchairs or scooters designed for indoor or outdoor use. The term scooter is not well defined and could include a variety of transportation types, other than those devices designed for use by mobility impaired individuals, such as: the two wheeled device that is manually or mechanically powered and a motor scooter, similar to a motorcycle. Power Driven Mobility Devices -The Proposed Rule opens up the door to a broad interpretation of any type of power driven device that can reasonably be operated. Almost any device that could be ridden or driven would fall into this category and an argument could be made that it was necessary for a mobility impaired person to use. The definition as proposed would expand the devices to not only those that could be imagined today, but opens the door to all future possibilities. The definition expands to the use of those devices not specifically designed for the use by mobility impaired individuals, such as electronic personal assistive mobility devices (EPAMDs) or Segways, and would also include things like golf carts, large track chairs, gas powered two wheel scooters, ATV's, and even riding lawn mowers. The possibilities seem endless. Power Driven Mobility Devices -The use of EPAMDs in certain areas is a concern. It raises concerns for visitor safety. A Segway, which is the only EPAMD currently on the market, can travel at speeds up to 12.5 MPH, much faster than the normal walking speed of other pedestrians. Safety of other users must be considered when contemplating the allowance of these devices, particularly in Park areas with high volumes of visitation or backcountry trail systems. Power Driven Mobility Devices -Most of our parks that have hiking trails were designed for hiking and biking; and some for multipurpose activities. Allowing power driven devices such as lawn movers or golf carts on all trails would pose potential dangerous conditions for users, pedestrians and for those using wheelchairs or beach wheelchairs that can be loaned in many or our parks. Power Driven Mobility Devices -The Proposed Rule as written would require agencies and possibly even individual parks to develop plans to determine when, where and how these devices should be used. The subjectivity involved given the broad spectrum of devices would open the NPS up to criticism for the variance in how the regulations would be applied. Every park is different and the determination of appropriateness would be widely varied and judged as being prejudicial at worst and inconsistent at best. We appreciate the coordinated effort being undertaken on behalf of the parks as the Service moves forward in addressing this important issue. Section 35.1 37 Mobility Devices 1. Subsection (a): This section brings in "scooters" as acceptable, yet without definition. Is a scooter electric or gas driven? Do you sit down or stand up on it? Is the six-mile per-hour limitation applied here? This varies notably from the definition per Section 35.104. And again, the aspects of noise and exhaust need to be considered and addressed. 2. Subsection (b): This section is very broad in scope. It does not define where the devices might or might not be used in even a general sense. And with OPDMD's that can go in excess of 12 miles per hour, there is great potential for conflicts with other area users, who will likely be pedestrians, or potentially in street legal vehicles. And yet again, the aspect of noise and exhaust need to be considered in public areas 3. Subsection (c) and (d): Would local public entities or specific private foundations be willing to "certify" these devices and the eligibility of their users through an extension of the disability blue parking placard system? This would be one way to reduce or eliminate inappropriate use. 4. It is imperative that the Department continue the existing definition for wheelchair use as it relates to Nationally Designated Wilderness Areas "Other power driven mobility device." This definition has the strong possibility to lead to significant conflict in public areas. The fact that these devices can be "powered by batteries, fuel, or other engines" and operate "in areas without defined pedestrian routes" is problematic. This means that, for example, people on AWs could operate in areas that are not designed for pedestrian or vehicle use as they see fit under the assertion that they are disabled. This is much too lenient and will likely lead to public safety and perception issues that will be very difficult to resolve. There is also the issue of noise and exhaust from vehicles which are not electric (see below for more details on this aspect). Most of the devices cited, e.g. Segway, are designed and primarily used for recreational pursuits, vs. providing assistance for a basic life activity. "Wheelchair." The speed of six miles per hour is excessive. It is not, as stated in the notice, "equivalent to a fast walking pedestrian." A fast walking pedestrian does well to maintain a speed of three miles per hour for even a moderate time period. Six miles per hour means the person covers a mile in 10 minutes, which is likely a running speed. This variance in speed has notable public safety potential. An additional parameter should be that the wheelchair is quiet and does not have exhaust, i.e. the source of its power should be qualified in more detail I believe the NPS should support DOJ's rule for the use of Electronic Personal Assistance Mobility Devices (EPAMD). Although the Segway was not designed solely for use by persons with disabilities, it can be utilized by many people with varying disabilities and will have a smaller environmental and ecological footprint then some of the equipment specifically designed for disabilities. These EPAMDs may enable many individuals with mobility disabilities to traverse areas that may not be feasible with standard power wheelchairs which pedestrians without disabilities are currently utilizing or are without defined pedestrian routes; furthermore there are many individuals with mobility disabilities that may not use a wheelchair for daily mobility but for traversing long distances, will gain the benefit by using the EPAMDs. DOJ's proposed rule states that for the purpose of using an EPAMD, a person must have a disability and that they may not be asked about the nature and extent of the disability. This indicates that a person can use an EPAMD if their disability is low vision, deafness, hearing loss or any type of cognitive disability The nature of the disability must correlate to a mobility disability, but inquiry may not be made into the nature of the disability. However, allowing local entities to determine the appropriate use of EPAMDs would require more specific guidance by the DOJ than what is offered in this proposed rule, in order to avoid misunderstandings by individuals that are not knowledgeable of disability issues and how these devices enhance mobility and opportunities. It is crucial that accessibility devices be clearly defined in the regulations and should be defined as narrowly as possible. Most backcountry areas, as well as areas in designated Wilderness and Wilderness Study Areas (areas possessing Wilderness characteristics), pose accessibility problems to anyone, not only the physically challenged. Many Field Offices have already received numerous requests and demands that ATVs and other motorized vehicles be allowed for use by those with disabilities in some of these areas. "Wheelchair" access, explicitly defined in the body of the proposed regulations, should be an allowed use in designated Wilderness and Wilderness Study Areas, but nothing beyond that should be allowed The proposed definitions for "Other power-driven mobility device" and "wheelchair" are problematic for management of congressionally designated Wilderness on Federal lands, as well as certain public lands administered by the BLM's Conservation System. The proposed rule includes devices powered by "fuel, or other engines ...for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices ...," which are expressly prohibited in federally designated Wilderness areas. Furthermore, the use of "other power-driven mobility devices" also presents visitor safety and resource impact issues and are incompatible with the requirements Wilderness areas have for "...outstanding opportunities for solitude or a primitive and unconfined type of recreation. The Proposed Rule acknowledges the legitimacy of the definition for "wheelchair" contained in the ADA and its application to federally designated Wilderness areas. Consideration should also be given to those areas that are set aside as Wilderness Study Areas and designated for non-motorized use. To clarify the Proposed Rule does not change the definition of "wheelchair" in the context of Wilderness use, the following wording is proposed. 35.137 Mobility Devices "(e) Device use in restricted areas. Department of Justice reaffirms that in federally designated Wilderness and areas managed as Wilderness, the only wheelchairs or mobility devices acceptable must comply with the definition in the ADA Title V Section 5076 for federally designated Wilderness: "Wheelchair (or Mobility Device). A device designed solely for use by a mobility impaired person for locomotion that is suitable for use in an indoor pedestrian area." A wheelchair or mobility device that meets this definition may be used anywhere foot travel is allowed." Service Animals The National Trails System Act, passed by Congress in 1968, established the Appalachian National Scenic Trail as a foot-path only trail and explicitly prohibited the use of pack stock. However, over the years a number of users have attempted to utilize pack animals for the transport of their gear or themselves, claiming that these pack animals were "service animals". To date, APPA staff, in consultation with the NPS solicitor's office, has denied any request for the use of pack stock as service animals. APPA supports the DOJ proposed definition of Service Animals and believes that it will strengthen our position in maintaining the Appalachian Trail as a foot travel only destination for hikers. The proposed definition will not limit the use of service animals that are currently permitted, and have been successfully used on the Appalachian Trail, such as those guiding individuals who are blind or have low vision. Because of the widespread practice of utilizing llamas, as well as alpacas, as pack stock, to illuminate any ambiguity, it is suggested that the definition for Service Animal under 3 35.104 Definitions should also include "llama" with the list of farm animals so that it reads: "The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, llama, pony, pig, or goat), ferrets, amphibians, and rodents. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well- being are not service animals." DOJ has actually tightened up the definition of Service Animals in the Proposed Rule. The language as written actually will strengthen our position in identifying authorized service animals. DOJ has placed much needed parameters on animal types that will be recognized as a legitimate "service" animal. These parameters were needed due to the broad interpretation that had been afforded by the previous regulation. The new language will eliminate the use of wild and exotic animals as service animals. The definition identifies individually "trained animals that do work or perform tasks" for a qualified individual with a disability. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, promote emotional well-being are not service animals. Safety of visitors and protection of park resources should be balanced in order to provide park access to those visitors who have physical impairments that impact major life activities. While it is very clear that the law provides guidance for service animals, pets could be viewed by owners as comfort animals. Some of our parks are already dealing with pets including exotic animals that have been abandon' or released in the park. This documentation will aid Park Service employee in making those determinations in the field and it will no longer be a judgment call. Section 35.136 Service Animals 1. Subsection (b): There are additional times when a service animal may not be appropriate to be in an area. One example is that of National Parks or wildlife areas, where a service animal may pose a hazard to public resources, e.g. wildlife or vegetation. 2. Subsection (d): It would be beneficial to further qualify the requirement for "a harness, leash, or other tether." I would suggest adding wording to the effect that the animal must be under continuous physical control of the owner, have the leash, etc., and it shall be a maximum of six feet in length. 3. Subsection (f): It would be quite beneficial if there was an acceptable service animal certifying agency that would provide some form of verifiable certification. Currently anyone can go on the worldwide web and have an official looking Service Dog Card fabricated for a fee of $23.50. Just pay the money and you can obtain the card with no verifiable training or need. This process could follow the path of the blue parking placards. it is my personal knowledge that this aspect has been abused in wilderness areas where dogs are prohibited and has led to resentment from rule-abiding members of the public "Service animal." The term "common domestic animal" is much too subjective. There is detailed verbiage stating what is not a service animal, and only the vague "dog or other common domestic animal" to qualify what is a service animal. Why not just specifically state the few species that are acceptable, rather than listing all those species that are not acceptable? "Common" is difficult to define, so just state what is acceptable and clarifies the issue. I strongly agree with the last sentence of the definition which makes the statement on "emotional support," etc. animals as not being service animals and believe this statement should remain in the definition. The concept of "comfort" or emotional support animals is strongly questioned, and rightfully so, and often resented by the general public. This potential new classification of support seems an abuse of the purpose of the ADA and it should not be adopted within the rules The rule proposes that service animals are required to be on a leash, this should be amended to enable those service animals that have to be off leash in order to perform the tasks for which they were trained. Although emotional support animals are excluded in this rule as service animals, the nature of their use is implicit and this issue is addressed by the Department of Housing and Urban Development where their policies permit their use in residential facilities and the NPS should consider allowing emotional support animals in all park housing units, insuring their use by employees or employee family members. Comments to Questions Posed by DOJ in the NPRM: Question 3: I think this phrase should be retained. Service animals should be distinct from protection animals. Service animals should not be viewed as a threat to the general public, esp. since they are supposed to be able to go into public places Question 4: I think the exclusions of other animals are appropriate and "common domestic animal" should remain. There's enough confusion about service animals without people using exotic animals. In addition animals should have to be identifiable by a universal means, such as a vest or special collar. It shouldn't be up to the public to try and figure out or have to ask if an animal is a service animal. I find it very annoying and inconsiderate of people that come into our visitors center with a dog and when questioned tell me it's a service animal. If it's a service animal it should be identified as such. Yes, certain animals should be specifically eliminated. I believe the Department should positively state which species are accepted as service animals and prohibit/eliminate all other species. The term "common domestic animal" is too vague and subjective and should be eliminated Question 5: I think the weight limit should be 65 lbs. Large animals are threatening too many, are more difficult to accommodate on public transport, hotels, restaurants, etc. If the animal species that qualify as service animals are specifically stated, then the size and weight limitation would be established as within the range of that species. Whether or not a secondary limit for a species is required, e.g. Saint Bernards are too large for a service dog, would be difficult to justify and enforce Question 6: DSC is not in a position to judge the extent of mobility equipment on the market and available for use today or the foreseeable future The definition seems too inclusive of devices that disabled persons might use Question 7: The definition of wheelchair should remain as a device designed solely for the use by persons with disabilities. Segways should be accepted, where appropriate, but to add them to the definition would require many changes to other sections of the guidelines. For instance use of Segways will require a third height for drinking fountains, make expanded doorway clearances necessary and require obstacle clearance heights to increase. These building modifications could mean undue hardships for business owners. Segways can attain speeds much higher than 6 miles per hour which may create potential safety hazards. For these reasons, DSC does not favor including Segways in an expanded definition of wheelchairs. Segways should not fit under the definition of wheelchair -they are not designed for this purpose Question 8: DSC feels that six miles per hour is a reasonable speed. Higher speeds will need additional study to verify that safety for both the PAMD user and nearby pedestrians can be assured. As written the existing definition is overly inclusive of power-driven mobility devices. This definition should make clear that ATVs, ORVs, modified motor vehicles or other power vehicles that have the potential for resource damage in backcountry or wilderness areas are not included in this definition. As written the existing definition is overly inclusive of power-driven mobility devices. This definition should make clear that ATVs, ORVs, modified motor vehicles or other power vehicles that have the potential for resource damage in backcountry or wilderness areas are not included in this definition Six miles per hour is much too fast. A better criteria would be three miles per hour maximum Question 9: DSC does not get involved in examining technical distinctions between mobility devices and is not qualified to comment on classifications or standards used by manufacturers of mobility equipment. The DOT definition of wheelchairs based on size is reasonable and would belis easily understood by businesses and agencies altering services and facilities to meet the needs of disabled persons Question 12: A definition of "mobility scooter" should be included in the regulations Question 13: No. If Segways are to be included as potential transport for mobility impaired persons, then it should be defined as something other than a wheelchair Question 14: For use in wilderness areas, we support the retention of the original definition of a wheelchair from Title V, Sec. 507c of the ADA. The definition of a wheelchair in Sec. 507c of the ADA should not change as it relates to management of federal wilderness areas and other non-motorized zones. This definition has been found to be workable and has been incorporated into existing NPS regulations and policy. We support its retention. By policy, the NPS manages eligible, proposed, recommended, potential and designated wilderness as wilderness with minor exceptions Question 15: This list appears to be inclusive and does not need changes Question 16: The existing list is adequate Question 17: DSC believes that there is not one type of mobility device that can be universally used throughout the park system. The range of park types (natural and cultural), and variances in topography, pathway types and interpretive programs, makes each park a unique entity for establishing accessibility appropriateness. Each park must undergo an assessment to determine accessible limits and approved modes of transit for persons with disabilities Those types that should be accommodated are manually powered or those that meet the definition of the original ADA Sec. 507c language. Those that require an assessment are (1) any motorized device capable of speeds in excess of 6 MPH, (2) any device not designed solely for use by mobility impaired persons, (3) any device that is not suitable for use in an indoor pedestrian area, and (4) any device that is not necessary for, and being used by, a mobility impaired person Question 18: DSC does not support the inclusion of gasoline fueled transportation equipment under the PAMD heading. The greater weight, noise and emissions from such equipment are a detriment to preservation of the natural environment of many parks. The potential for greater trail damage and degradation of cultural landscapes and structures as a result of their use would certainly lead to alteration of park programs, services and activities. Such alterations would essentially countermand a park's enabling legislation and conflict with important park goals. Absolutely not, at least not for use on the public lands managed as wilderness or as non -motorized areas. The potential for user conflict, resource degradation including degradation of wilderness character, and unrealistic expectations of enforcement officials is too great. We feel that we can maintain the opportunity for people with disabilities to visit and use their wilderness lands without the use of motorized vehicles thereby maintaining the quality of wilderness character and opportunities for a quality wilderness experience for ALL users Question 19: It is difficult to impossible to categorize mobility devices according to the criteria proposed. because the range of environments within the federal park system is so varied, the same piece of equipment may be appropriate to one park, activity or zone but totally unacceptable in another situation or environment. The "go" and "no-go" areas may be proximate or even share a boundary. Instead, each park unit must assess its tolerance for intrusive equipment and judge the risks on an individual basis. Park staff understands the resources of its park and can best set defensible standards and policies for mobility devices permitted in that park. We support categorizing personal mobility devices by intended purpose and function, including their purpose for indoor or outdoor uses. Since it is not feasible to license or permit all people with disabilities in any fair and recognizable manner across the country (i.e. the qualifications necessary to receive a handicapped parking sticker vary from state to state, etc.), then the enforcement of any provisions for use of mobility devices must be predicated on the definition of the device and it's intended use. For example, it is easy for someone to determine whether or not the vehicle parked in the handicapped parking space has a properly displayed permit. It is presence or absence that is the enforceable act, not the determination of whether or not the person displaying the permit has a qualifying disability. These same clear enforceable standards are necessary for backcountry, wilderness, and other public lands as well. A ranger must be able to quickly ascertain whether or not the device being used is approved for the proposed use by the person with a disability, and not require violations of privacy prohibited by law in asking about any qualifications of the user. A reasonable solution used by other regulators across the country would require a sticker be placed on the device to indicate that the device is being used by a person with a disability (in the same way that a sticker or tag is required in order to park in handicapped parking spaces.)