Dear Access Board Members,

I am writing to plead with the members of the Access Board to recognize that the portions of the proposed rule concerning accessible pedestrian signals and truncated domes are so flawed that they should be rescinded. In order for these portions not to hold up the rest of the rule, I urge that the remaining portions of the rule be adopted or modified on their merit while a second rulemaking focused on accessible signals and domes be initiated.

The problem with the portions of the proposal dealing with signals and domes is that they are vastly overbroad and, if adopted, run the risk of either litigation to hold up the entire rule merely due to their presence or of creating a backlash against all access due to expense and lack of basis, drawing all progress on access into question. Surely, surely no one wants either of these results, with their risk of invalidating the rule or bringing it to Congressional attention. I urge that wisdom be imposed on the extreme advocates and that these portions of the rule be excluded from the final rule while the reasoned position is developed.

In the case of accessible pedestrian signals, there is widespread agreement that certain complex intersections can benefit from the addition of an accessible signal. Governmental traffic engineers legitimately seek a clear definition, but they didn't seek or bargain for the wholesale installation of such signals everywhere. Such a wholesale installation is not justified by any study or statistic; it is only justified by broad and false claims of helplessness on the part of a large portion of the blind community, regrettably made by some from within the community. Rather than taking this extreme position, why not take the extra time needed to define the truly complex intersection? Apparently, some extreme advocates from within the blind community believe every intersection is complex, but this is obviously not true. Such extremists also maintain that it is a "civil right" to have an audible indicator where there is a visible one. This is wrong on two grounds: First, the vast majority of intersections are not complex and can easily be "read" by a blind person in their present condition; the proof of this is that thousands of blind people in fact use such intersections regularly and effortlessly. To trigger a federal requirement for installation under ADA, proof that an intersection is not accessible in its current form is necessary. NO such proof is offered, only the assertion, in effect, that blind people have it hard and that public tax dollars should be spent to lessen this hardship. That’s not a basis under ADA for a federal requirement of installation; that’s a request for pity which should be rejected as a basis for federal requirements. Second, as proposed, the accessible pedestrian signals will actually add to noise clutter and possibly mask important ambient information, risking the very lives that are said to be protected. No information exists on which to base the assertion that these signals will aid and not hinder access. Moreover, the ADA endows each disabled person with the right to refuse accommodations, but a constantly sounding accommodation cannot be refused.

The extremists who advocate wholesale installation of these devices assert that cost is not a relevant consideration since they term installation as a civil right. However, ADA specifically provides for an undue hardship exception, thus limiting the sweep of the rights granted in its provisions. And the cost will be heavy. Such cost must be justified before it is required, and the extremists have offered no better justification than a claim that blind persons are being killed in vehicle-pedestrian accidents at an alarming rate. While I have heard this claim made for over two years, I have yet to see any facts to support it. I am forced to conclude that the people claiming widespread blind pedestrian death cannot prove the allegation because it is not true and merely hope that no one ever asks for the data. In fact, I follow the descriptions of accidents involving blind pedestrians, and I have yet to find an example of an accident that would have been prevented by an accessible signal. In fact, in the few celebrated cases trumpeted by these extremists, the blind person is in the right, has the light, is in the crosswalk, and is struck by a motorist violating the law. No accessible signal will prevent such law violators.

I could list the factors I think constitute a complex intersection, and so could many others. But, doing so and then finding the result in the final rule will only lead to a lack of public participation in the rule. In fact, if the correct approach of defining the truly complex intersection aided by an accessible signal is undertaken, the lack of real valid information on the subject will come to light. Current rulemaking on the subject has always been based on conjecture and scare tactics, and it would be nice to get beyond these to valid information on which to base a rule. In addition to being the right thing to do, this approach also has the merit of protecting the rule and the access movement from accusations of unjustified cost and unfunded mandating for unnecessary requirements.

Essentially the same points apply to the proposed requirement for installation of domes. Most intersections are currently detected in their current configurations by blind persons. If this is true, where is the basis for wholesale installation of domes? The exceptions are those intersections poured flat on purpose. At these intersections, a small and distinctive break in the sidewalk would be appropriate. However, the proposed rule presumes every intersection is currently unnoticed and unlocatable by blind persons. By the way, it is my guess that such poured-flat intersections will come and then go as a fad. They overlook water-handling which is the reason for curbs, gutters, and crowning. Once the ponding effect of such poured-flat intersections is realized, I am guessing they will be abandoned for intersections with a delineation for water guidance that meets the one-in-twelve requirement and is therefore also detectable by blind persons.

The same arguments apply to the domes as apply to the signals regarding lack of basis. There is no information that suggests blind persons walking around their normal daily routines are missing corners or being slaughtered in vast numbers. Without such a basis, the rule itself is invalid. Why not remove the domes from the proposed rule and, again, seek to define more precisely those conditions in which the existing topography of the intersection does not give information about the line between sidewalk and street?

The minority report of the National Federation of the Blind to the advisory committee’s report gives more detail on these two subjects as well as a good starting point for a rational, reasoned inquiry into these two subjects free from extremism and scare tactics. The Board should never adopt a rule in the mistaken belief that being disabled in a certain way must be so hard that anything requested by advocates from that community must be provided. Unfortunately, the Board’s adoption of these two overbroad proposals suggests that this theory of "If any of them ask, we should give" may have been the basis for the proposed rules in these two areas rather than reasoned decisionmaking.

I hope that Board members will think again and will take the prudent course of defining narrowly and justifiably the circumstances under which these two modifications to the environment are justifiably required. Absent such care with the final rule, that rule will be no end of trouble to the Board and possibly to the entire access movement. Why take an extreme position when a reasoned one is available and is itself required by law?

Peggy Elliott