CUNA Comment Letter

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

August 18, 2008

Department of Justice
Civil Rights Division
ADA NPRM
P.O. Box 2846v Fairfax, Virginia 22031-0846

RE:     CRT Docket No. 106; Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

Dear Sir or Madam:

The Credit Union National Association (CUNA) appreciates the opportunity to comment on the Department of Justice’s (Department’s) notice of proposed rulemaking under the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (ADAAG). By way of background, CUNA is the largest credit union trade organization in this country, representing approximately 90 percent of our nation’s 8,200 state and federal credit unions, which serve 91 million members. This letter was developed under the auspices of CUNA’s Payments Policy Subcommittee, chaired by Terry West, President and CEO of VyStar Credit Union in Jacksonville, Florida.

Summary of CUNA’s Views

Discussion of CUNA’s Views

CUNA strongly supports the goals of the ADA. We believe all members should have access to credit union services and commend the Department for seeking comment on these proposed requirements. We support adopting the ADAAG provisions for fixed equipment, and agree there is no need for additional guidance specifically addressing portable equipment.

The Department is seeking comment on a proposal that would place the ADAAG into regulations implementing the Americans with Disabilities Act (ADA). The proposal addresses a number of issues including the adoption of the ADAAG provisions for fixed equipment, such as ATMs, and a safe harbor for certain elements of existing equipment. The Department does not intend to add regulatory guidance specifically addressing mobile, portable, and other free-standing equipment such as ATMs. Rather, it intends to analyze the economic impact of future regulations governing specific portable equipment before proposing new regulations. We believe this is an appropriate approach and would welcome the opportunity to meet with officials at the Department to discuss whether new requirements for free standing ATMs are needed and the impact such rules would have on credit unions.

Under the ADAAG, ATMs must be speech enabled, meet certain height and reach requirements, and make audible all displayed information including operating instructions and orientation, visible transaction prompts, user input verification and error messages. The Department is proposing to adopt these requirements for fixed ATMs and provide a safe harbor for certain elements that are in compliance with existing requirements.

The Department is proposing the safe harbor for existing facilities that comply with the current ADA requirements and are not altered after the effective date. The proposed safe harbor would not be a blanket exemption, but would be determined on an element-by-element basis. Further, auxiliary aids and services, such as speech output in ATMs, would not be eligible for the safe harbor. We support a safe harbor provision for elements of existing ATMs that are in compliance with the ADA Standards. However, we urge the Department to include the requirement for speech enabled ATMs in its exemption.

The Department notes it would be an inefficient use of resources to require compliant entities to retrofit. We believe this would be the case for ATMs without speech output and would place significant cost burdens on credit unions. To function properly, an ATM relies on the technology of its hardware and software, the ATM networks and various third-party processors. To retrofit an existing ATM for speech output would require changes to these components and the coordinated efforts of a number of independent parties and various system components. As a result of the proposal, modifications would be costly and time-consuming. Also, smaller institutions which have limited resources may choose to remove ATMs already in existence to avoid having to undertake the retrofitting costs or to increase ATM fees to offset the costly modifications.

The Department is seeking comment on whether it should be permissible for an entity to purchase used ATMs that do not have speech output. The ability to purchase previously owned ATMs gives some small institutions the opportunity to provide ATM services that they otherwise could not offer. We believe prohibiting an entity from purchasing a used ATM that does not have speech output could limit a credit union’s ability to provide these services to its members. For all these reasons, we request that the Department extend the safe harbor exemption to this type of previously owned ATM.

The Department is proposing an effective date of six months after publication of a final rule for compliance. We believe this does not provide sufficient time to make the technological changes that would be required. Given the broad differences among ATM technologies and systems in the financial marketplace, we believe a more appropriate effective date should be at least eighteen months after a final rule is published.

Thank you for the opportunity to express our views on the Department’s notice of proposed rulemaking adopting enforceable accessibility standards. If you have questions about our letter, please do not hesitate to give Senior Vice President and Deputy General Counsel Mary Dunn or me a call at 202-508-6733.

Sincerely,

Lilly Thomas
CUNA Assistant General Counsel