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American Trails comments to DOJ on proposed rules for power-driven mobility devices

American Trails comments in response to Federal Register June 17, 2008 Department of Justice Proposed Rulemaking Changes to the ADA
CRT Docket No. 105 - August 13, 2008

ARROW View recorded Webinar with audio in wmv format presented by American Trails on the DOJ Rule on "Other Power-Driven Mobility Devices," Feb. 23, 2011

ARROW See QUESTIONS and ANSWERS on power-driven mobility devices

ARROW See Revised Final Title II Regulation of the Americans with Disabilities Act of 1990 (42 U.S. C. 12131), which includes the full text of the new rule on "Other Power Driven Mobility Devices"

See aditional information and comments on the “power-driven mobility device" issue:

From American Trails, August 13, 2008

Overall Response:

American Trails recognizes and supports the need for mobility impaired persons to enjoy, and be able to access, the natural resources of this country on trails and cross country. American Trails further recognizes the need to modify the ADA to allow for new technology.

The proposed rulemaking includes definitions that will be problematic to existing trails for all Americans, including mobility impaired persons. American Trails would like to specifically comment on the definition in 35.137 (b): Other power driven mobility devices, 35.137 (c) (3): Conflict with Federal land management laws and regulations, and 35.137 (d) Inquiry into use of power-driven mobility device.

35.137 (b) allows virtually any type of vehicle to be used by mobility impaired persons for access. The result in many places would be environmental or cultural resource damage because of power-driven mobility devices being used to travel cross country and on trails, particularly trails designed for the mobility impaired. This damage could occur because the trails may not be designed for their use. The required policy development by public entities to prohibit the use of other power-driven mobility devices by persons with disabilities will be an onerous, expensive task for them and, in the interim, major resource and trail damage could occur. American Trails would like to suggest an inclusive statement rather than an exclusive statement regarding the use of the vehicles. We feel that, where appropriate, the use of other power-driven mobility devices (including internal combustion engines) be allowed at the land owner discretion. Land owners should be strongly encouraged to allow other power driven mobility devices where appropriate. However, we do not think that the definition for “Other Powered Mobility Devices” should be codified to include internal combustion engines. There should be a differentiation between internal combustion engine driven vehicles, and wheelchairs, scooters, and other EPAMD’s that are appropriate for indoor use.

35.137 (c) (3) refers only to Federal regulations and policies and should be expanded to State and Local regulations as well to allow those agencies the ability to control the use of Other Power Mobility Devices. Not including State and Local government agencies could cause major resource damage to those lands.

35.137 (d) This proposed addition changes the fundamental description of a mobility device from type of vehicle to what a user may state. Defining types of mobility devices allowed, when and where (with exceptions), has worked well since the ADA was passed. This fundamental change would be destructive to the basis of the act itself and goes beyond the intent Congress had when writing the act.

American Trails Recommendations:
35.137 (d) should be eliminated.

35.137 (b) The definition of Other Power-Driven Mobility Devices and the Wheelchair should be limited to wheelchairs and EPAMD’s and other non-fuel devices, whether or not they are specifically designed for mobility impaired persons, Suggest that you allow for other power driven mobility devices to be used on public lands when a land manager has determined, by analysis, that such use would not conflict with a program or activity, will be environmentally sustainable, will not cause damage to natural or cultural resources or conflict with Federal, State and Local land management laws and regulations.

35.137 (c) (3) Expand this definition to include “Federal, State and Local laws and regulations”

DOJ is also requesting comments on the following 9 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.”

American Trails supports responsible access for mobility impaired persons. We feel that this wide open definition of power-driven mobility devices may result in existing access for the mobility impaired to be degraded to the point that persons using wheelchairs or Segways® would no longer be able to use existing accessible trails because of the damage caused by unrestricted use allowed under this definition. We feel that land managers be encouraged to opt-in sections of the trail or allow for access for various vehicle types where appropriate, not that such vehicles be allowed unless specifically prohibited.

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.”

American Trails suggests adding the wording “whether or not the device is designed solely for use by people with disabilities” to the definition of a wheelchair. The definition of a wheelchair should also maintain the requirement that it be suitable for indoor use.

Question 13: “Should the Department expand its definition of wheelchair to include Segways®?”

Yes, see comments for Questions 12.

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”?

What ever description is used must be definable in the field. Weight is not easily measured in the field. Size if described such that the device fits on the trail that it is being used would be viable.

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.”

American Trails does not recommend that the DOJ keep a list of examples, just a succinct definition.

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.

No definition required. American Trails believes the measure of whether a device is suitable for indoor use is sufficient.

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.”

Under the proposed definition of mobility devices, virtually every type of vehicle may be allowed for access for the mobility impaired. As discussed in the response to Question 8, this will result in loss of access for mobility impaired persons as trails and areas are degraded by devices that may destroy vegetation and soils such as large tracked vehicles, ATVs, UTVs, large wheeled vehicles. Land managers should be allowed to do an analysis of whether to allow these types of vehicles for access for the mobility impaired not, as the DOJ proposal describes, require land managers to do an analysis to close an area to a type of vehicle. The proposal puts a significant work load on land managers to do this, which will result in unneeded use of funds that could otherwise be used to improve access

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?”

Internal Combustion engines should not be codified by the ADA. However, access to some areas for the disabled may not be possible without the use of such machines. There should be (and largely already is) an option for making exceptions for use of these vehicles on a case by case basis, subject to approval by the land manager. Suggest that this decision be left up to the land managers as described in the response to Question 17.

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?”

Recommend that DOJ stay with a slight modification of the existing definition of a wheelchair to say: Wheelchair (or Mobility Devices) is a device used to assist mobility impaired persons for locomotion that is suitable for use in an indoor pedestrian area, whether or not the device is specifically designed for use by people with disabilities.

But allow for exceptions to this definition as described in our response to Question 17.

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