CUNA Comment Letter

Application of ADA Standards Revisions

May 31, 2005

Department of Justice
Civil Rights Division
P.O. Box 1032
Merrifield, Virginia 22116-1032

RE: Application of ADA Standards Revisions
CRT Docket No. 2004-DRS01

The Credit Union National Association (CUNA) is pleased to respond to the Justice Department’s Advance Notice of Proposed Rulemaking on adopting Parts I and III of the revised guidelines implementing the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA), published by the Architectural and Transportation Barriers Compliance Board (Access Board).

By way of background, CUNA represents approximately 90% of our nation's nearly 9,100 state and federal credit unions. This letter was prepared under the auspices of CUNA’s Payment Systems Subcommittee, which is chaired by Ralph Jones, Executive Vice President of the Georgia Credit Union Affiliates, Georgia.

Discussion

The Justice Department is considering whether there is a need for its regulations to contain specific language about the acquisition and use of mobile, portable, and other free-standing equipment, such as free-standing ATMs. The Architectural and Transportation Barriers Compliance Board (Access Board) has established guidelines that apply to a range of fixed equipment that is subject to the ADA. CUNA strongly supports the goals of the ADA. We believe all members should have access to credit union services and commend the Justice Department for seeking comment on the need for additional regulations. We believe that the revised guidelines published by the Access Board applying to fixed equipment are sufficient and there is no need for additional guidance specifically for portable equipment.

If the Justice Department determines that additional regulatory provisions are necessary for free-standing equipment, such provisions should apply only to free standing ATMs that are new after the date of compliance. Requiring the replacement of all existing ATMS would place significant cost burdens on credit unions, which may result in removing ATMs already in existence.

When credit unions decide to provide additional ATM services for their members, they may elect to conserve costs by installing previously owned ATMs in a new structure. There has been concern as to whether previously owned equipment that is built into a new structure would be considered “new” for purposes of compliance with the revised ADA Standards because its first use occurs after the effective date of the standards. We commend the Justice Department for viewing the installation of previously used equipment in a new location as an alteration and not new construction, which would require compliance of only those elements of the facility that are actually altered, such as the mounting height or entrance to the equipment. We ask that this position be stated in the final rule so that there is no confusion regarding compliance.

The Justice Department is seeking comment on whether the existing triggering events in regulations on implementing Title II and III of the ADA can be used for all building situations. Currently, the regulations provide that under Title III, newly constructed facilities must be designed and constructed “for first occupancy” and altered facilities have a triggering event as the date “physical alteration begins.” The current regulation for Title II provides that the triggering event for both new construction and alterations is the commencement of construction.

While these triggering events are appropriate for most building situations, they are not appropriate for all because many credit unions use leased facilities for their ATMs. Establishing a triggering event that would require credit unions to modify their existing ATMs, with no control over updates or modifications to the surrounding structures, would place credit unions in a position of having to either modify their ATMs or break their leases. We believe that a safe harbor should be established for ATMs located at facilities that are not owned by the credit union.

The Justice Department is requesting comment on whether to establish a safe harbor for any elements of existing facilities that are in compliance with the specific requirements of the current ADA Standards. The safe harbor would be based on an element-by-element basis so that elements that are addressed for the first time in the revised Standards would not be subject to the safe harbor. We support this option and request that the Department of Justice provide a safe harbor for existing ATMs that are in compliance with the ADA Standards. Any incremental changes in the regulations may place significant cost burdens on credit unions that have already complied with the ADA Standards in their existing facilities.

The Justice Department is seeking comment on an effective date to apply the revised ADA Standards to facilities that will be newly constructed or altered after the publication of its final rule. We believe that eighteen months after publication of the final rule is the most appropriate option as this is the same time period for compliance that is used with the ADA as a whole including the effective date of the current ADA Standards with respect to new construction under Title III.

Conclusion

We appreciate the opportunity to comment on this Advance Notice of Proposed Rulemaking. If you have any further questions, please contact me at (202) 638-5777.

Sincerely,

Lilly Thomas
Assistant General Counsel