Department of Justice Notice of Proposed Rulemaking


On June 17, 2008, the Department of Justice (DOJ) published in the Federal
Register a Notice of Proposed Rule Making (NPRM) at
http://www.ada.gov/NPRM2008/t2NPRM_federalreg.htm. This document can also
be reached through the ADA home page at http://www.ada.gov then click on “What’s
New” and follow the links to the ADA title II NPRM. Within this NPRM, DOJ
is proposing to add a broad new category of “other power-driven mobility
devices”.

[color="#FF0000"] All comments must be received by Regulations[/color].Gov by August 18, 2008. When
submitting comments electronically, you must include CRT Docket No. 105 in
the subject box, and you must include your full name and address. Submit
electronic comments and other data to http://www.regulations.gov

Background
The primary focus of this DOJ NPRM document is to update American with
Disabilities Act (ADA) accessibility guidelines/standards, the ADAAG of
1991, for state and local governments (Title II) and businesses that are
open to the public (Title III). In addition the new category of “other
power-driven mobility devices”, this NPRM proposes additional
clarification
of service animals, auxiliary aids and services, ticketing and
communication.

DOJ NPRM is proposing the following changes concerning mobility devices:
The preamble of the NPRM under General Issues and in the Section by
Section Analysis there is discussion of these proposed amendments and
additions. The quickest way to locate those sections is by opening the ADA
Title II document, then entering the words “mobility device” into the Find
option of Word and then clicking Find Next. Toward the end of the entire
document is the proposed wording of the regulation it self. That proposed
regulatory section is also below, in this document, along with the
questions for which DOJ is requesting comments.

The proposed regulatory changes related to Mobility Devices are as
follows:

§ 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.”

“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.”
NOTE: in the preamble of the NPRM DOJ states on page 31: “The
Department believes that while this definition (of a wheelchair per the
ADA
Title V section 507c) is appropriate in the limited context of federal
wilderness areas…” However the proposed regulation does not exclude other
power driven mobility devices from use in proposed or designated federal
Wilderness areas.
§ 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.


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.”

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?”

People are always wanting to sign a petition or send a letter to complain about something, so here is your chance to effectively do something to change or help the rights of the disabled for enjoying OHV's. It is complicated so read the attachment - time is of the essence too because the comment period runs out in mid-August. None of the other groups have picked up on this except AOCA.

PS - my ad bashing ATV's needed to be pulled in Smokey's opinion.......