Action Alert for Public Access

I recieved an email today from Michelle requesting our action on a Proposed ruling for the Americans with disabilitys act. The email (which I will attach) was a little confusing but the second half of it under where it says ACTION ALERT, is a copy of an email from Anti-Access groups to their members that want them to protest the proposed changes that are being considered. The proposed changes are to Allow americans with disabilitys, including our disabled Veterans to be allowed access to public land areas with motorized vehicles, where motorized vehicles were not normally allowed. The Anti-Access groups are trying to get this changed before it becomes law. When you click on the link in the email to post comments, you have to put CRT docket No. 105 in the submission box. It will then direct you to a place to put your name and address and comment on the proposed changes to the ruling. WE ARE IN FAVOR OF THE CHANGES! I simply put in the comment box that I was in favor of allowing our disabled Americans to have access to all public lands with whatever means and technology was available for them to do so. I think that pretty much covers it. This is alot of reading but it will give you a good idea how determined Anti-Access groups are to keeping motorized vehicles out of our public lands wherever they can. Even at the expense of our disabled Veterans.

Here is a copy of the Email from Michelle. I had to separate it into 3 posts due to size.

Here is the link to the website to comment. http://www.regulations.gov.

When submitting comments electronically, you must include CRT Docket

No. 105 in the subject box, and you must include your full name and address.





Hello TrailBlazers,



This little nugget crossed my desk today and I found it intriguing enough to pass on to you. It appears the anti-access people are up in arms about this proposed “Definition Change” in the ADA rulemaking playbook.



If they are upset, it definitely means we should take notice. This Definition Change could mean that our disabled Veterans would be able to use ATV’s or other “power driven mobility devices” on both state and federal public trails systems.



I don’t know about you, but I think we should support our disabled Veteran brethren in this cause and make comments to the link supplied below. Pay specific attention to Questions 13 & 18 as that seems to specifically address this issue and has caused great concern.



And as the anti-access alert says: Introducing new or relaxed standards would open the door to any and all users and create conflict where none exists now.



Hmmmmm….



Michelle

Part 2- This is the letter Michelle attached that was sent out to the Anti Access groups so they could protest the changes being considered.



Action Alert!



Your comments are needed by August 18 on a:



Department of Justice Notice of Proposed Rulemaking:

Americans with Disabilities Act

regarding other power-driven mobility device



Introducing new or relaxed standards would open the door to any and

all users and create conflict where none exists now.



All comments must be received by August 18, 2008. Submit electronic

comments to

>http://www.regulations.gov.



When submitting comments electronically, you must include CRT Docket

No. 105 in the subject box, and you must include your full name and address.



On June 17, The Department of Justice (DOJ) published in the Federal

Register a Notice of Proposed Rule Making (NPRM) in which they proposed

a broad new category of “other power-driven mobility

devices.



All national scenic and historic trails and other traditional

backcountry areas in our national parks, monuments, forests, and other

public lands may be opened to All Terrain Vehicles (ATVs) and other

“power-driven mobility devices through this proposed

rule. WE NEED YOU TO ACT NOW to tell the Department of Justice that this initiative is potentially devastating to the silent, challenging and primitive values of our scenic and historic trails and to other trails and areas in our forests, parks,

and other public lands.



The DOJ is requesting comments on the proposed added definition of

“other power-driven mobility device. Let DOJ know how you

feel about the proposal to allow Segways® and ATVs and other powered

devices on trails if used by a person who says they have a disability.

Now is your time to share personal experiences and any feelings you

have about potential jeopardy to quiet recreation opportunities for

everyone and user conflicts that could arise.



Please comment on the

proposed definitions and answer the questions from DOJ that are listed below. It's alright if you don't have time to answer all the questions, but the more you answer and the more specific examples you can give, the more input DOJ receives from

you.



While the proposed rule will apply to state and local governments

(Title II of ADA) and to businesses open to the public (Title III), it

does include a broad and we believe precedent-setting new category

of “other power-driven mobility devices.



Reading the Rule, one can see that these people are well meaning but,

for the most part, unfamiliar with the commitment of the silent

“self-propelled users, as citizens, to a conservation land

ethic on our nation’s national forests, parks, and other public lands

particularly in primitive, backcountry settings like our national scenic

and historic trails.



If you worry about ATVs or Segways being used as mobility devices (see

questions #13 and 18 below), you will emphatically let DOJ know there

are real problems with an overly broad definition of “other

power-driven mobility devices.





All comments must be received by August 18, 2008. Submit electronic

comments to

>http://www.regulations.gov.



When submitting comments electronically, you must include CRT Docket

No. 105 in the subject

box, and you must include your full name and address.



For more information on the notice of proposed rulemaking, go to

>http://www.ada.gov/NPRM2008/t2NPRM_federalreg.htm.



The Department of Justice is proposing:



§ 35.104 - Defintions



“Other power driven mobility device means any of a large range of

devices powered by batteries, fuel, or other engines whether or not

designed solely for use by individuals with mobility impairments that

are used by individuals with mobility impairments for the purpose of

locomotion, including golf cars, bicycles, electronic personal

assistance mobility devices (EPAMD’s), or any mobility aid designed to

operate in areas without defined pedestrian routes.



[PNTS Comment: The example of an EPAMD that the rule cites is the

distinctive Segway®the stand-up, two-wheeled, gyroscopically

balanced, 12.5 maximum-mph transport device that is growing in

popularity among those with and without disabilities. See

>Disabled



Embrace Segway for more information.]



“Wheelchair means a device designed solely for use by an individual

with a mobility impairment for the primary purpose of locomotion in

typical indoor and outdoor pedestrian areas. A wheelchair may be

manually operated or power-driven.



[PNTS Comment: Wheelchairs, long accepted as extensions of the person,

certainly remain acceptable on the scenic and historic trails and in

wilderness areas nationwide.]



Comments are also requested on the proposed regulation, Sec. 35.137,

which has been added to provide additional guidance to public entities

about the circumstances in which power-driven mobility devices must be

accommodated.



§ 35.137 Mobility devices



(a) Use of wheelchairs, scooters, and manually powered mobility aids.

A public entity shall permit individuals with mobility impairments to

use wheelchairs, scooters, walkers, crutches, canes, braces, or other

similar devices designed for use by individuals with mobility

impairments in any areas open to pedestrian use.



(b)Other power-driven mobility devices. A public entity shall make

reasonable modifications in its policies, practices, and procedures to

permit the use of other power-driven mobility devices by individuals

with disabilities, unless the public entity can demonstrate that the use

of the device is not reasonable or that its use will result in a

fundamental alteration of the public entity’s service, program, or

activity.



(c) Development of policies permitting the use of other power-driven

mobility devices. A public entity shall establish policies to permit

the use of other power-driven mobility devices by individuals with

disabilities when it is reasonable to allow an individual with a

disability to participate in a service, program, or activity. Whether a

modification is reasonable to allow the use of a class of power-driven

mobility device by an individual with a disability in specific venues (e.g., parks, courthouses, office

buildings, etc.) shall be determined based on:



(1) The dimensions, weight, and operating speed of the mobility device

in relation to a wheelchair;



(2) The risk of potential harm to others by the operation of the

mobility device;



(3) The risk of harm to the environment or natural or cultural

resources or conflict with Federal land management laws and regulations;

and



(4) The ability of the public entity to stow the mobility device when

not in use, if requested by the user.



(d) Inquiry into use of power-driven mobility device. A public entity

may ask a person using a power-driven mobility device if the mobility

device is needed due to the person’s disability. A public entity

shall not ask a person using a mobility device questions about the nature and extent

of the person’s disability.

Part 3- This is the remainder of the letter to the Anti-Access groups.



Here is an analysis of the likely impact of the >proposed definitions

and rule by the Appalachian Trail Conservancy:



Definition of Wheelchair:



“Wheelchair means a device designed solely for use by an individual

with a mobility impairment for the primary purpose of locomotion in

typical indoor and outdoor pedestrian areas. A wheelchair may be

manually operated or power-driven.



The preamble of the DOJ proposal states, “The Department believes

that, while this definition (of a wheelchair per the ADA Title V section

507c, the same as that one proposed above) is appropriate in the limited

context of federal wilderness areas, it goes on to contend that it is

too limited for state and local government facilities.



While it is true that Title II is applicable only to state and local

governments and Title III only to businesses open to the public, courts

later could find the proposed ADA redefinitions should apply much more

broadly.



The Department of Justice may necessarily find, under Section 504 of

the Rehabilitation Act, for example, that the definition should indeed

apply to the federal government. In the end, the definition will likely

become universally applied.



§ 35.137(a) will permit wheelchairs anywhere pedestrians are allowed.

This is unchanged from existing policy. However, § 35.137(b)(c) is new

Language that seeks to also allow "other power-driven mobility devices,"

a much broader category of devices that includes things like Segways.

The language does allow restrictions to be placed on "other power-driven

mobility devices," but development, implementation, and enforcement of any restrictions would be complex and burdensome and placed on top of already

overburdened public resource agency personnel.



It also seems evident that the proposed definition will not exclude

"other power-driven mobility devices" from use in proposed or designated

federal wilderness areas, which will erode the norms for wilderness

use.



From the point of view of a backcountry or wilderness trail hiker,

this new definition of “other power-driven mobility devices could

constitute a broad new license, indeed an “anything that goes, can go

definition.



Introducing new or relaxed standards would open the door to any and

all users and create conflict where none exists now.



If the rule were adopted without greater weight given to the central

values of backcountry recreation, the manager would have to prove that

“use of the device is not reasonable or that its use will

result in a fundamental alteration of the public entity’s service,

program, or activity. Furthermore, the land manager and cooperating

managers, “shall not ask a person using a mobility device questions

about the nature and extent of the person’s disability. While this is an

understandable privacy consideration for persons with disabilities, what

is to prevent anyone who wants to use a “power-driven mobility

device on a trail intended for foot travel from falsely claiming a

disability?



The broad new definition of “other power-driven mobility devices

would affect us in the following ways:



* Jeopardize quiet recreational opportunities;

* Increase user conflict and risk to public safety;

* Cause damage to the trail treadway and increase the burden on

our volunteer work-base.

* Establish precedents and user expectations that have the

potential to dramatically change traditional park and forest

environments, create a confusing new array of expectations among the

public and managers, and more sorely deplete already strained public

resources.



DOJ is also requesting comments on the following questions.



Question 8: “Please comment on the proposed definition of other

power-driven mobility devices. Is the definition overly inclusive of

power-driven mobility devices that may be used by individuals with

disabilities? The Department’s proposed regulatory text on

accommodating wheelchairs and other power-driven mobility devices is discussed in § 35.137 of the section-by-section

analysis.



Question 12: “As explained above, the definition of "wheelchair" is

intended to be tailored so that it includes many styles of traditional

wheeled mobility devices (e.g., wheelchairs and mobility scooters).

Does the definition appear to exclude some types of wheelchairs,

mobility scooters, or other traditional wheeled mobility devices?

Please cite specific examples if possible.



Question 13: “Should the Department expand its definition of

wheelchair to include Segways®?



Question 14: “Are there better ways to define different classes of

mobility devices, such as the weight and size of the device that is used

by the Department of Transportation in the definition of “common

wheelchair ?



Question 15: “Should the Department maintain the non-exhaustive list

of examples as the definitional approach to the term "manually powered

mobility aids"? If so, please indicate whether there are any other

non-powered or manually powered mobility devices that should be

considered for specific inclusion in the definition, a description of those devices, and an explanation of the

reasons they should be included.



Question 16: “Should the Department adopt a definition of the term

"manually powered mobility aids"? If so, please provide suggested

language and an explanation of the reasons such a definition would

better serve the public. The proposed regulation regarding mobility

devices, including wheelchairs, is discussed in the section-by-section analysis for § 35.137.



Question 17: “Are there types of personal mobility devices that must

be accommodated under nearly all circumstances? Conversely, are there

types of mobility devices that almost always will require an assessment

to determine whether they should be accommodated?

Please provide examples of devices and circumstances in your responses.





Question 18: “Should motorized devices that use fuel or

internal-combustion engines (e.g., all-terrain vehicles) be considered

personal mobility devices that are covered by the ADA? Are there

specific circumstances in which accommodating these devices would result

in a fundamental alteration?



Question 19: “Should personal mobility devices used by individuals

with disabilities be categorized by intended purpose or function, by

indoor or outdoor use, or by some other factor? Why or why not?



PLEASE SHARE THIS ACTION ALERT WITH OTHER ACTIVISTS IN YOUR

ORGANIZATION AND ENCOURAGE

THEM TO SEND COMMENTS ON THIS PROPOSED RULE.