September 3, 1993 Mr. James G. Raggio, General Counsel Office of the General Counsel Architectural and Transportation Barriers Compliance Board 1331 F Street, N. W. Suite 1000 Washington D. C. 20004-1111 Dear Mr. Raggio: This is the official comment of the National Federation of the Blind, responding to the notice published at 58 FR 37052 on July 9, 1993, concerning the proposed suspension of the guidelines for detectable warnings. As explained in the detailed comments below, we support the proposed suspension but request more decisive action. We also feel that the action being taken by the Board, the Department of Justice, and the Department of Transportation does not go nearly far enough. In light of the information which now exists and the information which is likely to be assembled through further study, we favor the eventual elimination of detectable warnings from the guidelines. STATEMENT OF ORGANIZATIONAL INTEREST AND EXPERTISE The National Federation of the Blind is a membership organization "of" blind people. As such, virtually all of our members will be affected directly by the decisions made on this matter. The Federation has a total national membership exceeding 50,000, and the vast majority of the members are blind. State affiliates of the NFB exist in each of the fifty states, the District of Columbia, and in Puerto Rico. Local chapters of the Federation can be found in most sizable population areas. Because of its widespread and large membership the Federation is often referred to as "the voice of the nation's blind." It is an organizational requirement in the NFB that a majority of the active members must be blind. This is true at all levels. Only blind persons may hold elective office at the national level. Therefore, the NFB is not an organization speaking for the blind; it is the blind speaking for themselves. In the present instance, the views expressed in this comment reflect the Federation's officially adopted position concerning detectable warnings. NFB policies on matters such as this are determined by national convention vote, and the convention is the organization's supreme authority. The presence or absence of detectable warnings in all of the areas specified in the guidelines has a direct impact on blind people. Therefore, of those affected by the proposed rule, those whom we represent are the most directly affected. Also, our experiences in traveling about both with and without detectable warnings provide the most relevant testimony concerning the need or lack thereof for the warnings. As both the notice and logic indicate, detectable warnings have been intended for blind and visually impaired people. Therefore, in making its decision on the proposed rule, the Board should rely most heavily on the expressed views of persons who are blind or visually impaired. STATEMENT OF POSITION The NFB supports suspension of the detectable warnings guidelines. However, we oppose a time-limited suspension. In point of fact, a suspension with an announced reinstatement date is not really a suspension. Building and facility operators must assume that the detectable warnings guidelines are actually still in effect although not currently being enforced. Therefore, there is not really a suspension at all. The Federation supports eventual elimination of the guidelines. With respect to transportation facilities, the Federation opposes continued application of the guidelines to newly constructed or altered platforms. We also oppose reinstatement of the guidelines on existing platform edges at key rail stations on January 26, 1995 or at any later date. Detectable warnings should not be included in ADAAG or any other standards or guidelines for the following reasons: (1) in assessing the need for a detectable warnings guideline it is sound public policy to apply an "individual responsibility test" to determine whether it is reasonable to expect blind persons to travel without detectable warnings; (2) a safety need for the warnings is not supported by factual evidence; (3) the warnings communicate no information about the environment that is not already available to blind persons and routinely used by them; and (4) detectable warnings actually create a threat to safe mobility for blind persons and others (1) In assessing the need for a detectable warnings guideline it is sound public policy to apply an "individual responsibility" standard. Traveling about in a safe and efficient manner is and must remain a matter of individual responsibility. Access guidelines must acknowledge this fact. The guidelines should also acknowledge the methods--use of cane or dog--which are effective and safe for blind people. The guidelines should not disregard these methods and in any way encourage blind people to reject them. Use of effective travel methods is an individual responsibility. If a blind person elects not to use effective methods, the guidelines should not condone such behavior. Furthermore, it is not a responsibility for the government under the ADA to insure access for individuals who do not use the methods available to live independently. As a matter of public policy it is the responsibility of society as a whole to provide a safe environment, but a rule of reason must also apply. Not all people--sighted as well as blind--will travel entirely safely at all times. The physical environment cannot possibly be built in such a way that no one is ever injured. Quite apart from that the aim of access guidelines issued under the ADA is to insure access. Safety is a broader social responsibility, and safe movement within facilities that are safe is an individual responsibility. The goals of the ADA have been met as long as individuals with disabilities have equal access. The absence of detectable warnings provably does not limit the mobility of blind persons who are employing responsible methods of independent travel. (2) A safety need for the warnings is not supported by factual evidence. Buildings and facilities that are covered by the ADA are now as safe for use by blind people as they are for use by sighted people. This is the critical consideration. As stated above personal safety is largely a matter of individual responsibility. Access guidelines and their enforcement cannot assure safety for each person in all places at all times. The guidelines can assure that facilities are designed to be safe for society as a whole, including for blind individuals. It is demonstrably the case that without detectable warnings buildings and facilities covered by the ADA are on the whole no less safe for blind people than they are for sighted people. Safety is certainly an appropriate concern, but in the making of public policy concerns about unwarranted actions and expenditures are also appropriate. Therefore, the safety concern cannot be based on fear; it must be based on fact. Fear of being unsafe because of blindness is an understandable feeling for sighted people, but it leads to conclusions based on emotional responses, not factual information. Emotionally it is hard to accept the fact that sight is not an essential sense to protect against most hazards in the physical environment. Blind people now move about safely. Daily this provides empirical evidence that fears of falling or being injured are groundless since hazards can be identified in advance. (3) The warnings communicate no information about the environment that is not already available to blind persons and routinely used by them. Detectable warnings do not add to the information now available about the location of building hazards or environmental characteristics. The hazards or characteristics can be located, with or without the warning, by means of the cane or guide dog. In addition, the warning does not indicate the nature of the hazard ahead. Therefore, further exploration by the blind individual is always needed. The warning on its own is confusing. It does not provide any form of assurance that vital information is communicated to the blind person. The legal premise for including detectable warnings in ADAAG is that such warnings allegedly assure blind persons of accessible communications about environmental characteristics. However, characteristics of the physical environment already provide essential information and the warnings, themselves, add nothing. Consequently, the legal premise for requiring detectable warnings must fall. The warnings do not insure an environment that is discrimination-free for blind people and are therefore not justified under the ADA. (4) Detectable warnings actually create a threat to safe mobility for blind persons and others. If detectable warnings are ever accepted as an appropriate travel aide for the blind, there is no rational argument for limiting their application. Yet, if their use is not limited, the initial cost and continuing maintenance costs would be prohibitively expensive. If as a matter of policy one accepts the need for detectable warnings, why should any obstacle in the path of travel not be bounded by such a warning? If only some hazards are marked by warnings, inconsistency is likely to be a serious (even dangerous) concern. How can the average blind traveler have any confidence that a warning will be provided against apparent dangers, if only some warnings are required at only some locations? If detectable warnings are as effective as their proponents believe them to be, it is reasonable to expect that blind people will come to rely upon them. That would be a dangerous outcome. The guidelines do not require warnings to protect against every hazard, but the average blind individual cannot be expected to be an expert in the guidelines. For example, if warnings are only on the platforms of key rail stations, what will happen to the blind person who uses or travels to a station that is not key. How is the individual to know whether to expect or not to expect the warnings? The assumption that a warning must be present could be deadly in either a subway station or on a street. For people who are not blind detectable warnings themselves pose new obstacles and dangers. For example, persons with mobility impairments, including people who use wheelchairs, walking canes, crutches, walkers, or other mobility aids, find these warnings to obstruct their smooth, level path of travel. Injuries can be caused when the integrity of the surface is disrupted. So, rather than creating greater access for individuals with disabilities, detectable warnings are additional barriers. In that sense they defeat the purpose of the ADA. SPECIAL CONSIDERATIONS RELEVANT TO TRANSPORTATION FACILITIES The current suspension of the detectable warnings requirements on platforms of key rail stations until January 26, 1995 is patently absurd. If one accepts the need for the warnings on platform edges, then the need exists now. If one does not accept the need, then the need will not exist to any greater degree in 1995 than it does at present. Since the Board has decided to submit the matter of detectable warnings to further study, it would make far more sense for the Department of Transportation to join in that study. Meanwhile, the guidelines applicable to platforms at key rail stations should be postponed indefinitely. Training methods are definitely available for blind people to use raised transit platforms safely and confidently. Unlike a slight slope at a ramped street crossing, the platform edge is a sharp drop-off. It is a natural, detectable warning which can be found by cane or dog. Blind travelers locate the platform edge (using either cane or guide dog) and orient themselves to it. The traveler knows with confidence that the train will arrive at a platform edge and therefore wishes to be safe by deliberately locating the edge immediately upon arrival on the platform. For the blind person a detectable warning along the edge presents nonspecific information about a change in the floor surface. It also interferes with effective use of the cane at a critical point, causing the cane to jump and lose contact with the floor surface. It does not establish that the edge has been reached, and in fact can cause a blind person to miss the edge with the touch of a cane. With or without the warning the blind person must find the edge of the platform and do so at a safe distance with cane or guide dog. The only way that the traveler knows for certain that the edge has been found is positively to identify the edge, not the warning. The procedure just described is safe and efficient. Concern has been raised about two tragic deaths in major urban transit stations (Boston and New York) which occurred in June and July 1993. The women killed in each instance were blind and using guide dogs. They both proceeded to step off of the raised platform after their dogs had already stopped. Proponents of detectable warnings have used these deaths as evidence for the need. They say that detectable warnings on the platforms of each station in question could have prevented the tragedies. As to whether the deaths could have been prevented by the warnings, that is a question of fact. Although the deaths cause feelings of sadness for all of us, the facts which led to the deaths must be examined in making public policy. Since she lived for several days after her fall, Peggy McCarthy, who was killed in Boston, reportedly told her friends that she realized her mistake in proceeding after her dog had stopped. Thus the dog provided Ms. McCarthy with an appropriate warning, which she apparently misinterpreted, at least to some extent. Unfortunately, tragedies of human error such as this cannot be prevented. Ms. McCarthy could misinterpret a detectable warning just as she misinterpreted her dog's warning. Pamela Schneider, who was killed in New York, had found the edge of the platform, her dog had stopped to inform her of the edge, and witnesses reported that she continued to walk, weaving along the edge with the dog. Finally she lost her balance and fell as a train was arriving in the station. The temperature in that station at the time was said to be 110 degrees, and Ms. Schneider was diabetic. The observers' reports suggest that physical instability was the likely cause of the fall from the platform. The platform itself had a detectable warning. In one sense, decisions to require or not to require detectable warnings come down to matters of genuine human concern. Therefore, there is an almost inescapable draw toward accepting the emotional response to tragedies such as these. The successful experiences of blind people using transit systems everyday can help to balance the perspective and cannot be ignored. In point of fact, finding raised platform edges is something that any blind traveler who uses a train must do as a routine matter of daily life. The best way to travel with safety and confidence is to employ deliberate measures to find the platform edge and not to shy away from doing so. Unlike some other characteristics of the built environment the edges of raised train platforms cannot be hidden or obscured by other surroundings. They can be found with certainty by cane or dog. Transit operators and government regulators alike can be assured that these techniques work safely. This statement represents the informed view of blind people who for reasons of self-interest have absolutely no desire to be unsafe. CONCLUSION For the reasons set forth in this comment, the National Federation of the Blind requests the indefinite suspension of all detectable warnings guidelines. The partial and time-limited suspensions contemplated will simply add to the confusion and send a signal of government uncertainty. If the agencies responsible are in fact now in doubt about the efficacy of continuing to enforce guidelines for detectable warnings, they should say so in a straightforward manner. This policy would be far more responsible than taking the partial and indefinite action proposed. This is not to say that the matter should not receive further study if the agencies decide to do so. Respectfully submitted, James Gashel Director of Governmental Affairs NATIONAL FEDERATION OF THE BLIND JG/lar