The Mediterranean fruit fly, Ceratitis capitata (Wiedemann), is one of the world's most destructive pests of numerous fruits and vegetables. The Mediterranean fruit fly (Medfly) can cause serious economic losses. Heavy infestations can cause complete loss of crops, and losses of 25 to 50 percent are not uncommon. The short life cycle of this pest permits the rapid development of serious outbreaks. Regulations to prevent the interstate spread of the Medfly from infested areas of the United States are contained in 7 CFR 301.78 through 301.78-10, referred to below as the regulations.

In an interim rule effective June 16, 1997, and published in the Federal Register on June 20, 1997 (62 FR 33537-33539, Docket No. 97-056-2), we quarantined Hillsborough County, FL, because of an infestation of the Medfly. Subsequently, we published a series of interim rules that added to or removed from the list of quarantined areas certain portions of Dade, Highlands, Hillsborough, Lake, Manatee, Marion, Orange, Polk, and Sarasota Counties, FL; added eggplant, other than commercially produced eggplant, to the list of regulated articles; provided for the use of irradiation as a treatment for berries, fruits, nuts, and vegetables; and added a definition for core area. These interim rules were made effective on July 3, 1997 (62 FR 36976-36978, Docket No. 97-056-3), August 7, 1997 (62 FR 43269-43272, Docket No. 97-056-4), September 4, 1997 (62 FR 47553-47558, Docket No. 97-056-5), October 15, 1997 (62 FR 54571-54572, Docket No. 97-056-7), November 14, 1997 (62 FR 61897-61898, Docket No. 97-056-8), April 17, 1998 (63 FR 19797-19798, Docket No. 97-056-9 and 63 FR 20053-20054, Docket No. 98-046-1), May 5, 1998 (63 FR 25748-25750, Docket No.97-056-11), May 13, 1998 (63 FR 27439-27440, Docket No. 97-056-12), June 5, 1998 (63 FR 31887-31888, Docket No. 97-056-13), August 7, 1998 (63 FR 43287-43289, Docket No. 97-056-14), August 13, 1998 (63 FR 44538-44539, Docket No. 97-056-15), August 24, 1998 (63 FR 45392-45393, Docket No. 97-056-16), and October 2, 1998 (63 FR 54037-54038, Docket No. 97-056-17).

Comments on these interim rules were required to be received on or before 60 days after the date of publication in the Federal Register. We received comments on only one of the interim rules.

In that interim rule, which was effective September 4, 1997, and published in the Federal Register on September 10, 1997 (62 FR 47553-47558, Docket No. 97-056-5), we amended the regulations by, among other things, providing for the use of irradiation as a treatment for berries, fruits, nuts, and vegetables that are regulated articles. This change provided an additional option for qualifying those regulated articles for interstate movement from quarantined areas.

We received three comments on this rule. They were from government agencies and an association. They are discussed below.

Two of the commenters said that in § 301.78-10(c)(5)(ii) we should use the term “dosimetry system” rather than the word “dosimeter” in explaining how an absorbed dose should be measured when using irradiation treatment on berries, fruits, nuts, and vegetables. We agree with the commenters. It is the system that is used for the measurement of irradiation; the dosimeter is only a part of the dosimetry system. We are making this change in this final rule.

One commenter suggested that we reword our reference in § 301.78-10(c)(5)(iii) to American Society for Testing and Materials (ASTM) standards. The interim rule stated that the number and placement of dosimeters used must be in accordance with ASTM standards. This statement is correct, but it suggests that other important aspects of the dosimeter, such as calibration, do not need to follow these standards. We are correcting that language in this final rule.

Another commenter pointed out an incorrect address. In § 301.78-10, footnote 10, we stated that if there is a question as to the adequacy of the construction of a carton for shipping fruits and vegetables, requests for approval of the carton, along with a sample of the carton, could be sent to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Phytosanitary Issues Management Team, 4700 River Road Unit 140, Riverdale, Maryland 20737-1236. This address is incorrect. Requests should be sent to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Oxford Plant Protection Center, 901 Hillsboro Street, Oxford, NC 27565. We are correcting the address in this final rule.

Therefore, for the reasons given in the interim rules and in this document, we are adopting the interim rules as final, with the changes discussed in this document.

This final rule also affirms the information contained in the interim rules concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

Effective Date: Pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find good cause for making this rule effective less than 30 days after publication in the Federal Register. This rule makes minor, nonsubstantive changes to the regulations. They are necessary to clarify requirements concerning the use of irradiation treatment on berries, fruits, nuts, and vegetables that are regulated because of the Medfly and to correct an address. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register.

Direct final rulemaking enables Federal agencies to quickly adopt noncontroversial regulations without the usual notice and comment period. On June 30, 2000, we notified you that this rule would become effective 30 days after publication in the Federal Register during which either or both Houses of Congress are in session unless we receive significant adverse comment by July 31, 2000. A significant adverse comment is one where a commenter explains why the rule would be inappropriate (including challenges to its underlying premise or approach), ineffective, or unacceptable. Our June 30, 2000 notice informed you that if we received a significant adverse comment about any amendment, paragraph, or section of this rule, we would withdraw that amendment, paragraph, or section, but adopt all other provisions as a final rule. We received significant adverse comments on several provisions of part 612 of the rule. The breadth of the comments makes it impossible to adopt the remaining provisions as a final rule. Therefore, part 612 of the rule will not become effective. The amendment to § 614.4440(f) in the direct final rule will take effect on September 11, 2000.

This amendment adopts a new AD for Kaman Model K-1200 helicopters. This action requires replacing any sprag clutch, part number (P/N) K974110-005, with P/N K974110-003. This amendment is prompted by two incidents of sprag clutch, P/N K974110-005, failure during external load operations. The actions specified in this AD are intended to prevent a malfunctioning transmission clutch. This condition, if not corrected, could result in loss of drive to the main rotor system, and subsequent loss of control of the helicopter.

The FAA has reviewed Kaman Aerospace Corporation Service Bulletin No. 090, dated July 13, 2000, which describes procedures for removing the sprag clutch, P/N K974110-005.

We have identified an unsafe condition that is likely to exist or develop on other Kaman Model K-1200 helicopters of the same type design. This AD is being issued to prevent a malfunctioning transmission clutch, loss of drive to the main rotor system, and subsequent loss of control of the helicopter. This AD requires replacing any sprag clutch, P/N K974110-005, with P/N K974110-003. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the delivery of power to the main rotor system of the helicopter. Therefore, replacing any sprag clutch, P/N K974110-005, with P/N K974110-003 is required within 10 hours time-in-service, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

The FAA estimates that 4 helicopters will be affected by this AD, that it will take approximately 4 work hours to replace the sprag clutch, and that the average labor rate is $60 per work hour. Required parts will cost approximately $17,000 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $68,960.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-SW-32-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We are revising and making final the interim final rules we published on February 11, 1997, to implement the childhood disability provisions of Public Law 104-193 (62 FR 6408). Even though we published interim final rules in 1997, we asked for public comments on those rules. We are now summarizing and responding to the public comments and making revisions to the interim final rules based on the public comments and on our program experience in applying the interim rules since February 1997. In the final rules, we continue to define the statutory standard of “marked and severe functional limitations” in terms of marked limitations in two areas of functioning or extreme limitation in one such area. However, we are also making a number of changes to our rules on functional equivalence and “other factors” in response to the comments.

We are also conforming our rules to amendments to Public Law 104-193 made by the Balanced Budget Act of 1997, Public Law 105-33, 111 Stat. 251. Even though the amendments were enacted after we published the interim final rules, the changes are required by the statute and make no discretionary policy changes. We are also simplifying and clarifying the language of some rules in keeping with the President's goal of using plain language in regulations.

A number of individuals who commented on the interim final rules expressed concern that we had not consulted with outside experts in the development of those rules. Given the short time we had under Public Law 104-193 to develop the interim final rules, it was not feasible to engage in the type of consultation the commenters suggested before we published those rules. However, in response to the comments, and to ensure that these final rules are as accurate and inclusive as possible, we asked a number of individual experts for information as we formulated these final rules. The experts included pediatricians, psychologists, and other pediatric specialists, and individual advocates for children with disabilities who have expert knowledge about the SSI program.

For a detailed history of the childhood disability provisions before the changes made by Public Law 104-193, interested readers may review the preamble to the interim final rules (62 FR 6408). That preamble explains how we first implemented the prior statutory definition of disability for children, based on “comparable severity” to the definition of disability for adults, and the changes we made to our rules in 1991 after the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521 (1990).

Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 110 Stat. 2105, removed the comparable severity standard and provided a new statutory definition of disability for children claiming SSI benefits. It also directed us to make significant changes in the way we evaluate childhood disability claims. Under the law, which created a new section 1614(a)(3)(C) of the Social Security Act (the Act), a child's impairment or combination of impairments must cause more serious impairment-related limitations than the old law and our prior regulations specified.

Section 1614(a)(3)(C) of the Act provides the following definition of disability for children claiming SSI benefits:

The conference report that accompanied Public Law 104-193 explained:

H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess. 328 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716. The House report contains similar language. See H.R. Rep. No. 651, 104th Cong., 2d Sess. 1385 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2444.

Further provisions concerning childhood disability adjudication are summarized below with references to the relevant sections of Public Law 104-193 and, where appropriate, the Act.

• We were directed to remove references to “maladaptive behavior” in the prior personal/behavioral domain from §§ 112.00C2 and 112.02B2c(2) of the childhood mental disorders listings (Public Law 104-193, section 211(b)(1)).

• We were directed to discontinue the individualized functional assessment (IFA) for children in §§ 416.924d and 416.924e of our former rules, which we had used since 1991 (Pub. L. 104-193, section 211(b)(2)).

• Within 1 year after the date of enactment, we were to redetermine the eligibility of individuals under the age of 18 who qualified for SSI based on disability as of August 22, 1996, and whose eligibility might terminate because of changes made by Public Law 104-193. We were required to use the eligibility criteria we use for new applicants, not the medical improvement review standard in section 1614(a)(4) of the Act and § 416.994a that we use in continuing disability reviews (CDRs) (Pub. L. 104-193, section 211(d)(2)).

• The medical improvement review standard for determining continuing eligibility for children was revised to conform to the new definition of disability for children (Pub. L. 104-193, section 211(c); section 1614(a)(4)(B) of the Act).

• Not less frequently than once every 3 years, we must conduct a CDR for any childhood disability recipient eligible by reason of an impairment(s) that is likely to improve. At the option of the Commissioner, we may also perform a CDR with respect to those individuals under age 18 whose impairments are unlikely to improve (Pub. L. 104-193, section 212(a); section 1614(a)(3)(H)(ii) of the Act).

• We must redetermine the eligibility of individuals who were eligible for SSI based on disability in the month before the month in which they attained age 18. This age-18 redetermination must use the initial adult eligibility rules and must occur during the 1-year period beginning on the individual's 18th birthday. The medical improvement review standard used in CDRs does not apply to these redeterminations (Pub. L. 104-193, section 212(b); section 1614(a)(3)(H)(iii) of the Act).

• We must conduct a CDR not later than 12 months after the birth of the child for any child whose low birth weight is a contributing factor material to our determination that the child was disabled (Pub. L. 104-193, section 212(c); section 1614(a)(3)(H)(iv) of the Act).

• At the time of a CDR, a child's representative payee must present evidence that the child is and has been receiving treatment to the extent considered medically necessary and available for the disabling impairment. If a payee refuses without good cause to provide such evidence, we may select another representative payee, or pay benefits directly to the child, if we determine that it is appropriate and in the best interests of the child (Pub. L. 104-193, section 212(a); section 1614(a)(3)(H)(ii) of the Act).

The interim final rules we published on February 11, 1997, implemented all of the provisions of sections 211 and 212 of Pub. L. 104-193, except section 211(d)(2). See 62 FR 6408; corrected at 62 FR 13537, March 21, 1997, and 62 FR 36460, July 8, 1997. Section 211(d)(2) required us to redetermine the eligibility of children who might be affected by the change in law, and did not require regulations. In brief, we deleted references to the former standard of “comparable severity” to adults and deleted the IFA regulations and all references to the IFA in other regulations. We deleted references to “maladaptive behaviors” and related references in the sections of our regulations and the Listing of Impairments cited in Pub. L. 104-193. We also made other changes in our rules that were necessary because of these revisions.

In §§ 416.902 and 416.906 of the interim final rules, we explained that, to be found disabled, an individual under age 18 must have “marked and severe functional limitations.” In § 416.902, we explained that the term “marked and severe functional limitations,” when used as a phrase, means the standard of disability in the Act for children claiming SSI benefits. This standard of disability requires a level of severity that meets, medically equals, or functionally equals the severity of an impairment(s) in the listings; i.e., is of listing-level severity. We explained that the separate words “marked” and “severe” are also terms used throughout our rules, but the meanings of these words in the phrase “marked and severe functional limitations” are not the same as their meanings when used separately.

Other significant changes made by the interim final rules included the following:

• We revised § 416.924, “How we determine disability for children,” to reflect the changes made by Pub. L. 104-193 and to establish a new sequential evaluation process for determining disability for children. The new three-step process required a child who was not working to show that he or she had a “severe” impairment or combination of impairments that met, medically equaled, or functionally equaled the severity of an impairment(s) in the listings.

• In new § 416.924(g) we referred to a Childhood Disability Evaluation Form, Form SSA-538, which we issued in conjunction with the interim final rules. Section 416.924(g) required our adjudicators (except disability hearing officers) at the initial and reconsideration levels of our administrative review process to complete an SSA-538 to show their findings in each case. We also explained that disability hearing officers, administrative law judges, and administrative appeals judges on the Appeals Council (when the Appeals Council makes a decision) will not complete the form but will indicate their findings at each step in the sequential evaluation process in their determinations or decisions.

• We revised § 416.925(b)(2), which explains the purpose of the childhood listings in part B of the listings, to explain that “listing-level severity” generally means marked limitations in two broad areas of functioning or extreme limitation in one such area.

• We revised § 416.926 to provide rules for determining medical equivalence for both adults and children. Our prior rules had addressed medical equivalence for children separately, in § 416.926a. We also incorporated in § 416.926 of the interim final rules language from prior § 416.926a and our operating instructions to clarify the rules. We also intended the changes to be consistent with our rules in § 404.1526 (the rule for disability claims under title II of the Act), which we did not change in the interim final rules.

• We published revised and expanded guidelines for determining functional equivalence to the listings in § 416.926a. The interim final rules continued to provide four methods for determining functional equivalence, and the primary method continued to be evaluating whether a child had marked limitations in two broad areas of development or functioning or extreme limitation in one area. We also added a new area, called “motor development” or “motor functioning,” to help our adjudicators better evaluate physical impairments. We also retained our requirement that a finding of functional equivalence must be related to a particular listing. Generally, we used a childhood mental disorders listing to make this finding. However, adjudicators could use any listing that included disabling functional limitations among its criteria.

In publishing the improved functional equivalence rules, we noted that even though Congress eliminated the IFA, it directed us to continue to evaluate a child's functional limitations where appropriate, although using a higher level of severity than under the former IFA. Congress also explicitly endorsed our functional equivalence policy as a means to evaluate impairments that would not meet or medically equal any listings and without which some needy children with severe disabilities would not be found eligible. (62 FR 6413)

• We revised the rules in §§ 416.990 and 416.994a relating to CDRs of children to reflect the changes in the frequency of CDRs. The changes we made to these rules included requiring CDRs for children who qualified because of low birth weight, and making conforming changes to reflect the definition of disability for children in Pub. L. 104-193.

• We published a new § 416.987 to provide rules for redetermining the eligibility of individuals who attain age 18 and who were eligible for SSI based on disability in the month before the month in which they attained age 18. The section included a rule that we would not count an individual's earnings when we determine disability under this section. It also provided rules for notifying individuals who will have these redeterminations.

• We revised §§ 416.635 and 416.994a of our rules to include the statutory requirement that, at the time of a CDR, a child's representative payee must present evidence that the child is and has been receiving treatment that is considered medically necessary and available for the disabling impairment(s). We also explained how we would determine whether and how treatment was medically necessary and available.

We made many other changes to conform our rules to the major changes noted above. We also expanded and clarified several rules, including sections in the listings, and defined terms related to the new regulations. For a complete description of the changes in the interim final rules and our reasons for making them, interested readers may refer to the preamble to the interim final rules.

Pub. L. 105-33, 111 Stat. 251, enacted on August 5, 1997, contained two provisions that affect these final rules, and other provisions that affected the redeterminations and protected the Medicaid eligibility of children who lost SSI eligibility because of the new disability standard.

The amendments affecting these final rules provided the following:

• Pub. L. 104-193 required us to perform a redetermination of a beneficiary's eligibility within 1 year after the individual turns 18. Pub. L. 105-33 changed this requirement and provided that we may perform this redetermination either during the 1-year period beginning on the individual's 18th birthday, or in lieu of a CDR whenever we determine that the individual's case is subject to a redetermination (Pub. L. 105-33, section 5522(a)(1); section 1614(a)(3)(H)(iii) of the Act).

• Pub. L. 104-193 required us to do a CDR not later than 12 months after the birth of a child for whom low birth weight is a contributing factor material to our determination of disability. Pub. L. 105-33 changed this provision to provide that we do not have to do a CDR by age 1 if we determine at the time of our initial disability determination that the child's impairment(s) is not expected to improve by age 1, and we schedule a CDR for a time after the child turns age 1 (Pub. L. 105-33, section 5522(a)(2)(B); section 1614(a)(3)(H)(iv)(VI) of the Act).

Pub. L. 105-33 also extended the deadline for redetermining the eligibility of children who might be affected by the new disability standard. Pub. L. 104-193 required us to perform redeterminations within 1 year after enactment of the law, or by August 22, 1997. Section 5101 of Pub. L. 105-33 extended that date by an additional 6 months, to February 22, 1998. For any redetermination not performed by that date, the law also allowed us to perform the redeterminations “as soon as practicable thereafter.” Because we do not have regulations addressing this redetermination process, this provision of Pub. L. 105-33 does not affect these final rules.

Finally, section 4913 of Pub. L. 105-33 required States to continue Medicaid coverage for disabled children who were receiving SSI as of the enactment date of Pub. L. 104-193 if they lost SSI eligibility because of the changes to the definition of disability. The authority for making the determination about restored or continued Medicaid eligibility remains with the States, so this change in the law also does not affect these final rules.

Many of the public comments, most of which were submitted during the first half of 1997, expressed concerns about how we would conduct the required redeterminations of the eligibility of children who qualified under the old disability standard. Many commenters expressed concerns that the law required us to do the redeterminations too quickly and that the new rules were unfamiliar to our adjudicators. Some commenters were concerned that we would not get proper evidence. They were especially concerned that we would not get sufficient evidence from schools because we would conduct many redeterminations in the summer. We also received allegations that the State agencies were purchasing substandard consultative examinations and using them to cease children's eligibility.

Some commenters expressed concern that children and their families would not understand that they could appeal determinations that they were no longer eligible and that they could continue to receive benefits while appealing. Some were concerned about how the redeterminations and loss of benefits would affect children and their families in the future.

In response to these and other concerns, Commissioner Kenneth Apfel promised, during his confirmation hearings before the Senate Finance Committee in 1997, to perform a “top-to-bottom” review of how we implemented the changes made to the SSI childhood disability program that were required by Pub. L. 104-193. He ordered this review as his first official act after being confirmed as Commissioner, and we issued a report, Review of SSA's Implementation of New SSI Childhood Disability Legislation, on December 17, 1997. (Pub. No. 64-070. The report is also available at our public Internet site: www.ssa.gov/policy/child.htm.)

The report showed that, overall, the vast majority of the redeterminations were handled properly. The review indicated that SSA and the State agencies making disability determinations for us had done a good job of implementing the new provisions, but found some inconsistencies in the application of the rules and in compliance with our instructions. Commissioner Apfel immediately ordered several corrective actions to address these issues.

In the report, we identified three specific areas of concern, and the corrective actions we would take above and beyond our normal actions:

Of the approximately one million children on the SSI rolls in December 1996, 407,000 were shown on our records with our diagnosis code for mental retardation. Eighty percent of these children were not subject to redetermination under Pub. L. 104-193. However, at the time of the report, we had found ineligible under the new law slightly more than half of the approximately 79,500 children whose eligibility we reviewed and who were coded in our computer records as having mental retardation. Our review concluded that part of this could be attributed to the fact that, historically, some children were coded using the diagnosis code for mental retardation incorrectly or because we did not have a diagnosis code for the child's impairment. Over half of the cases in which benefits had been ceased involved children who were not diagnosed with mental retardation at the time of the cessation. Of these cases, almost 40 percent involved a learning disability and others involved borderline intellectual functioning. Thus, in a large number of cases with the diagnosis code for mental retardation, the children did not have mental retardation, were never thought to have mental retardation, but were shown in our records with that diagnosis code.

However, our review also showed concerns about the accuracy of these redeterminations, especially for children with IQs in the range of 60 to 70 and slightly above 70. The concerns included whether listings were misapplied and whether children with mental retardation who had IQ scores above 70 incorrectly lost eligibility.

To address the concerns, we reviewed the cases of all children who had a diagnosis code for mental retardation if we had found they were ineligible after a redetermination or if we had denied their initial applications on or after August 22, 1996. We automatically reopened and issued new determinations in the cases of all children who were coded as having mental retardation and who had an IQ score of 75 or below. We also provided additional training to all of our adjudicators on how to evaluate claims involving children with mental retardation under the new rules, before they reviewed the cases again.

We found that the concerns about sufficient case development were unfounded, especially the concerns that we would not get school records we needed and that our consultative examinations were inadequate. However, we did find some issues related to the quality of case processing.

In some States, we found problems in cases that were ceased based on a “failure to cooperate.” Our procedures require additional attempts to contact a child's parent or legal guardian when this individual does not respond to official notices regarding the child's eligibility. Our procedures also require us to make special efforts to identify and contact another adult or agency responsible for the child's care. We also require written documentation of those attempts. We determined that in some cases all required contacts were not attempted or they were not documented in the case file. Therefore, we reviewed all “failure to cooperate” cessations to ensure that proper procedures were followed. When those reviews indicated deficiencies, we gave families another opportunity to cooperate and to have their benefits reinstated during the new redetermination process, including any benefits that would have been paid since the month when payments ceased. We also provided additional written instructions and training on this issue to our personnel.

We also found that, although the accuracy of the redeterminations was above the regulatory threshold for accuracy nationally, it varied by State and by type of impairment, particularly for certain mental disorders other than mental retardation. Therefore, we instructed all of our State agencies to review a portion of the cases they had ceased on redetermination. Depending on the quality assurance results in each State, we identified cases involving both physical and mental impairments (other than mental retardation) for review based on the cases that had the greatest likelihood of error within a given State. When we found deficiencies in a redetermination, the case was reopened, developed if necessary, and the determination revised if appropriate.

Before these reviews began, we provided additional training to all our adjudicators on how to evaluate mental impairments other than mental retardation and on the evaluation of speech disorders in combination with cognitive limitations. We also issued Social Security Ruling (SSR) 98-1p, on the evaluation of speech disorders in combination with cognitive limitations. (63 FR 15248 (1998))

When we notified families (or other payees) that a redetermination found that a child no longer qualified, the notice also advised them of their legal rights. This information included:

• How to ask for a reconsideration,

• How to request continuation of benefit payments while appealing, and

• How to obtain legal assistance to appeal.

Concerns were raised that the cessation notice was hard to understand. We also received reports that some families were discouraged from filing appeals or were not told about free legal services. We received reports that some families were discouraged from asking for benefit continuation during their appeals, especially because the overpayment waiver process was not fully explained to them. Some families did not understand that they might not have to pay back the benefits they received during the appeal if the appeal decision was still unfavorable.

We made changes to clarify our procedures and provided training as the redeterminations proceeded. However, we found that these actions helped only those children whose cases were redetermined later in the process and that some individuals who did not appeal—and some who appealed, but did not request benefit continuation—did not understand their rights.

To address this concern, on February 18, 1998, we sent a new notice using simpler language to families (or other payees) of all children who lost their SSI eligibility under the new childhood disability rules and did not appeal. The notice gave them another chance to appeal and to ask for benefit continuation during the appeal. We also sent a new, simpler notice to families (or other payees) of all children who had appealed their initial redeterminations but who did not request benefit continuation during the appeals. The notice gave them another chance to request benefit continuation during the appeal. Both notices included information on the right to request waiver of any overpayment that might result from continuing benefits during appeal and on how to get free legal assistance.

On March 18, 1998, we also sent new, simpler notices to individuals who had attained age 18 and who lost their eligibility because of the changes in Pub. L. 104-193. We sent these notices to individuals who did not appeal or who appealed but did not request benefit continuation during their appeal.

We also took several other actions. For example, we provided a “script” for employees in our Field Offices and Teleservice Centers to follow when informing claimants of their appeal and benefit continuation rights. The script ensured that all families received the same information. We also made concerted efforts to ensure that families knew about available legal assistance by providing toll-free numbers for the American Bar Association's (ABA's) Children's SSI Project referral service in our Field Offices, Teleservice Centers, and on our Internet site. We also included the ABA's toll-free numbers for legal assistance on our notices for States in which toll-free numbers were available.

In addition to the corrective actions outlined above, we have taken many other actions. For example, we continue to monitor case quality through our quality assurance system. We conducted several training classes in addition to those noted above and trained a “cadre” of specialists in childhood disability who served as experts in their respective regions. We are now studying several issues related to childhood disability, which we describe in the public comments section of this preamble, including the effects on families of the loss of eligibility resulting from Pub. L. 104-193.

These final childhood rules represent another step in our actions to ensure that all children who meet the SSI eligibility requirements receive their benefits. The final rules respond to extensive comments on the interim final rules that we received from a wide range of child-serving professional organizations as well as advocacy, legal, and family groups and individuals. Their comments, together with our experience, input from individual medical and other professionals, and other actions, support the adjustments made in the interim final regulations that we publish today as the final childhood disability regulations.

As we noted in the effective date section of this preamble, these final rules will be effective on January 2, 2001. We have delayed the effective date of the rules to give us time to provide training and instructions to all of our adjudicators and to revise Form SSA-538 and other forms and notices before we implement the final rules. The interim final rules will continue to apply until the effective date of these final rules. When the final rules become effective, we will apply them to new applications filed on or after the effective date of the rules. We will also apply them to the entire period at issue for claims that are pending at any stage of our administrative review process, including claims that are pending administrative review after remand from a Federal court.

With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court's review of the Commissioner's final decision would be made in accordance with the rules in effect at the time of the final decision. If the court determines that the Commissioner's final decision is not supported by substantial evidence, or contains an error of law, we would expect that the court would reverse the final decision, and remand the case for further administrative proceedings pursuant to the fourth sentence of section 205(g) of the Act, except in those few instances where the court determines that it is appropriate to reverse the final decision and award benefits, without remanding the case for further administrative proceedings. In those cases decided by a court after the effective date of the rules, where the court reverses the Commissioner's final decision and remands the case for further administrative proceedings, on remand, we will apply the provisions of these final rules to the entire period at issue in the claim.

We are adopting the interim final rules with the changes set out below, and are publishing only those rules that we have changed. For a summary of the rules we are adopting without change, see the 1997 interim final rules (62 FR 6408).

For clarity, we refer to the changes we are making here as “final” rules and to the rules that will be changed by these final rules as the “interim final” rules. We also use the past tense to describe the interim final rules we are changing. However, it must be remembered that these final rules do not go into effect until January 2, 2001. Therefore, the interim final rules will still be in effect until that date.

We are adding a new definition to this section to help simplify the language of our regulations. We define the term “the listings” to mean the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter. Throughout these final rules, we use the new term in the phrase “medically or functionally equals the listings” to replace longer phrases that refer to appendix 1 of subpart P of part 404 of this chapter. For example, when we say that we consider whether an impairment(s) medically or functionally “equals the listings” we mean “whether an impairment medically or functionally equals in severity the criteria of a listing in appendix 1 of subpart P of part 404 of this chapter.”

We are making this change because of changes we are making in the functional equivalence provisions of the regulations in response to public comments. As we explain more fully under the explanation of changes to final § 416.926a, we will no longer refer to specific listings when we determine functional equivalence. The change also simplifies the language of our rules and removes some inconsistencies among various rules.

We are also including in our current definition of the words “you” or “your” the words “me,” “my” and “I.” Under the President's plain language initiative, we are changing some of our rules to use first-person questions in paragraph and section headings. We used this technique in final § 416.987(c), using a question and the pronoun “my” in the heading, “When will my eligibility be redetermined?” and in final § 416.987(d), using the pronoun “I” in the heading, “Will I be notified?” Therefore, we need to add a definition of these words in § 416.902. In anticipation of similar future changes, we are also indicating that we may use the word “me.” The new terms, which are only editorial, help clarify our rules.

In final § 416.924(c), we are adding language to clarify that at step two of the sequential evaluation process we consider both whether a child has a medically determinable impairment and whether any impairment or combination of impairments the child has is “severe.” In the interim final rules, we did not include the first part of the statement.

The new language only clarifies our rules and helps to make them consistent with changes we made in final §§ 416.924a and 416.926a in response to public comments. It is based on our interpretation of step two of the sequential evaluation processes for both adults and children, as explained in SSR 96-4p. (61 FR 34488 (1996))

In response to public comments that suggested we include more cross-references in our regulations, we changed § 416.924(d)(3) of the interim final rules, to final § 416.924(e), “Other rules.” Section 416.924(d)(3) of the interim final rules provided cross-references to our rules on meeting, medically equaling, and functionally equaling the listings. Final § 416.924(e) now adds cross-references to final §§ 416.924a, 416.924b, and 416.929 in addition to cross-referencing the rules on meeting and medically or functionally equaling the listings. The last of the new cross-references is to our rules for the evaluation of pain and other symptoms.

Because of this change, we redesignated paragraph (e) of the interim final rules, “If you attain age 18 after you file your disability application but before we make a determination or decision,” as paragraph (f). As we explain below in our explanation of the changes in final § 416.924a, we moved the provisions of § 416.924(f) of the interim final rules, “Basic considerations,” to final § 416.924a(a).

We have not changed § 416.924(g) of the interim final rules, “How we will explain our findings.” Therefore, we are not reprinting it in this Federal Register notice. However, by the time these rules become effective, we will issue a revised Form SSA-538, Childhood Disability Evaluation Form, to reflect the changes in these final rules. (See the public comments section of this preamble for more information about Form SSA-538.) We also changed some of the language throughout § 416.924 for consistency; e.g., to refer to impairments that “equal the listings.”

In the final rules, we extensively reorganized and revised the provisions of the interim final rules in §§ 416.924a, “Age as a factor of evaluation in childhood disability,” 416.924b, “Functioning in children,” and 416.924c, “Other factors we will consider,” and some of the provisions of § 416.926a, “Functional equivalence for children.” These changes respond to many of the public comments, many of which affected more than one section of our rules.

We are replacing §§ 416.924a, 416.924b, and 416.924c of the interim final rules with final §§ 416.924a, “Considerations in determining disability for children,” and 416.924b “Age as a factor of evaluation in the sequential evaluation process for children.” For the most part, the final rules include the provisions of the interim final rules. However, in reorganizing the provisions, we found a number of redundancies that we eliminated and text we could combine and shorten. We also simplified much of the language and expanded some of our guidance, as suggested by the commenters. We also deleted some sections that we no longer need because of the revisions.

We made these changes because many public commenters recommended that we provide a better explanation of how our provisions on “other factors” in § 416.924c of the interim final rules apply in evaluating childhood disability. Many commenters urged us to clarify these rules and to provide more guidance about how we apply the factors when we evaluate a child's functioning. Many commenters also suggested that we include more factors for our adjudicators to consider when they evaluate a child's functioning. Some commenters urged us to incorporate information from our operating manuals and training, and to give more prominence to these important principles so that they are not overlooked. Others asked us to add cross-references throughout the childhood disability regulations so that no relevant provisions are overlooked.

In final § 416.924a, we no longer refer to the factors as “other” factors because the comment letters showed that our intent was not clear. Our intent in the interim final rules was only to include guidance about some of the more important factors we consider when we evaluate a child's functioning to decide whether the child has a “severe” impairment and whether the child's impairment(s) meets or equals the listings. But our earlier wording led people to believe that we meant to consider the “other factors” separately, after an initial assessment of a child's functioning, to see whether there are additional limitations the child might have based on the “other factors.” That has never been our intent. Like our consideration of symptoms, the factors in this rule are an integral part of our evaluation of a child's functioning.

To demonstrate our intent more clearly, and to give the provisions the prominence the public commenters thought was lacking, we moved up the provisions of § 416.924c of the interim final rules. Now, the provisions on factors we consider when we assess functioning are found in final § 416.924a instead of last in the series of childhood regulations beginning with § 416.924.

In the next section of this preamble, we explain the specific changes we made in final §§ 416.924a and 416.924b and our reasons for making them.

Final § 416.924a(a) contains the provisions of §§ 416.924(f), “Basic considerations,” and 416.924c(a), “General,” of the interim final rules. We clarified the language of the interim final rules and removed redundancies. We also added some examples of medical sources to correspond to the existing examples of nonmedical sources, and included more examples of nonmedical sources whom we may ask for information.

The term, “Other medical sources not listed in § 416.913(a),” which now appears in final § 416.924a(a), refers to medical professionals who are not “acceptable medical sources.” It is taken from a revision to § 416.913(d) (formerly § 416.913(e)) we published in the Federal Register on June 1, 2000 (65 FR 34950). In those final rules, we also recognize qualified speech-language pathologists and certain other specialists as acceptable medical sources for evidence of impairments that are within their areas of specialty.

In final § 416.924a(a)(1), we also included a cross-reference to our rules in § 416.927, in response to comments that asked us to include more cross-references to provisions our adjudicators must consider before making their determinations or decisions. That section explains how we consider medical source opinion.

We added a new provision about testing in final § 416.924a(a)(1)(ii) to respond to comments recommending that we caution our adjudicators against strict adherence to the numerical scores of IQ tests and other tests. The new provision restates our longstanding policy that we consider all relevant evidence in a child's case record. Therefore, we do not consider any piece of evidence in isolation, including test scores, and will not rely on test scores alone when we decide if a child is disabled. The provision is also in part a response to comments that recommended revising the rules to include consideration of the standard error of measurement (SEM) that professionals use to estimate a score's reliability. The provision includes in our rules information we have included in our training since 1997. (We explain more about the SEM in the summary of final § 416.926a and in our responses to the comments.) We also added a cross-reference to § 416.926a(e), which includes several provisions on how we consider test scores, especially in final § 416.926a(e)(4).

The last sentence of final § 416.924a(a)(1)(iii), “Medical sources,” is new in our regulations but reflects our longstanding procedure. It explains that we may consider information provided by a nonmedical source (e.g., a parent or the child) to be a clinical sign, as defined in § 416.928(b), when the medical source has accepted and relied on it to reach a diagnosis. This often occurs for children with mental disorders, when a psychiatrist or psychologist may accept statements made by the child or parents, such as “my child has difficulty sleeping,” as his or her clinical findings. However, it may also occur for children who have other kinds of impairments.

In final § 416.924a(a)(2), “Information from other people,” we expanded the guidance we gave in § 416.924(f) of the interim final rules. We added new guidance about information we will request from early intervention and preschool programs, and provide more guidance about the information we will request from schools.

Final § 416.924a(b), “Factors we consider when we evaluate the effects of your impairment(s) on your functioning,” incorporates the provisions of §§ 416.924c(b) through (h) of the interim final rules; i.e., what we formerly called the “other factors.” In response to public comments, we expanded the list of factors we will consider and incorporated principles from our training and other instructions we have used since we published the interim final rules in 1997.

In final § 416.924a(b)(1), “General,” we explain that we must consider a child's functioning when we decide whether the child has a “severe” impairment(s) at step two of the sequential evaluation process and when we consider functional equivalence at step three. We also explain that we will consider a child's functioning when we decide whether his or her impairment(s) meets or medically equals the requirements of a listing if the listing we are considering includes functioning among its criteria.

In final § 416.924a(b)(2), “Factors we consider when we evaluate your functioning,” we explain that we will consider any factors that are relevant to how the child functions when we evaluate his or her impairment or combination of impairments. In response to many commenters who thought we should include a reference to pain and other symptoms in this section, we added an example of symptoms and provided a cross-reference to our rules on evaluating symptoms in § 416.929. We also clarified that the factors we list in the remainder of the section are only “some” of the factors we may consider.

Final § 416.924a(b)(3), “How your functioning compares to the functioning of children your age who do not have impairments,” is new in this section, although it reflects our longstanding policy. It explains that when we consider whether a child has functional limitations because of his or her impairment(s), we will consider the child's functioning in age-appropriate terms; i.e., in relation to other children of the same age who do not have impairments.

In final § 416.924a(b)(3)(ii), we added a corollary to this principle. When we consider evidence that formally or informally rates a child's functioning, we will consider the standards used by the person who did the rating and the characteristics of the group to whom the child was compared. We include the familiar example from our training and instructions that a child in a special education class who is compared to other children in the class is not being compared to children of the same age who do not have impairments.

Final § 416.924a(b)(4) is also new. It specifies in the context of our childhood disability rules our longstanding policy that, when a child has more than one impairment (i.e., multiple impairments), we consider the combined effects of the impairments. We have had a rule on this issue (§ 416.923) for many years, and specific provisions in the interim final rules that addressed the point (e.g., §§ 416.924(a), 416.924(c), 416.924b(a), and 416.926a(a)). The new provision is one of our responses to those comments that asked us to explain better how we consider “multiple” impairments. This provision is intended to recognize that limitations resulting from a combination of impairments may be greater than the limitations that we might expect to find if we looked separately at each impairment; i.e., the impairments may have interactive and cumulative effects. We also use the word “comprehensively” to emphasize that we look at all of these effects when we evaluate the child's functioning.

However, we also explain in the first sentence that we do not always need to look at the combined effects of a child's multiple impairments. Sometimes we can decide that any single impairment is “severe” or that one of a child's impairments meets, medically equals, or functionally equals the listings without considering the child's other impairments.

Final § 416.924a(b)(5), “How well you can initiate, sustain, and complete your activities, including the amount of help or adaptations you need and the effects of structured or supportive settings,” incorporates provisions from several interim final rules and includes new provisions that respond to public comments. Final § 416.924a(b)(5)(i), “Initiating, sustaining, and completing activities,” incorporates principles from the “Concentration, persistence or pace” area of functioning in § 416.926a of the interim final rules. The principle that a child should be able to initiate, sustain, and complete activities independently and at the same rate as other children his or her age who do not have impairments is inherent in all evaluations of functioning.

We clarify this principle further in final § 416.924a(b)(5)(ii), “Extra help,” which expands on the guidance we provided in the last sentence of § 416.926a(c)(2) of the interim final rules. We incorporated this guidance in final § 416.924a because it is appropriate whenever we must evaluate a child's functioning, not just at the functional equivalence step.

In the final provision, we explain that an important indication of the severity of a child's impairment(s) and its resulting limitations is the amount of effort that must be made to help the child function. By “help,” we mean not only help from parents, medical providers, school personnel, or other people, but also the “help” a child may get from special equipment, devices, or medications in order to complete his or her tasks. We may decide that a child has limitations compared to other children the same age who do not have impairments because of extraordinary efforts that must be made for the child to function as well as he or she does.

Final § 416.924a(5)(iii), “Adaptations,” incorporates the provisions of § 416.924c(e) of the interim final rules. We clarified some of the earlier language and reinforced the requirement that we compare a child's functioning to the typical functioning of children the same age who do not have impairments.

We also deleted two examples. We deleted the word “appliances” from the previous second sentence because it is included in the concept of “assistive devices” that appears in the same sentence. We also deleted the “hearing aids” example from the third sentence. Hearing aids are not a good example of an adaptation that may allow a child to function normally because they do not restore normal hearing the way eyeglasses may restore essentially normal vision.

Final § 416.924a(b)(3)(iv), “Structured or supportive settings,” corresponds to § 416.924c(d) of the interim final rules, “Effects of structured or highly supportive settings.” We deleted the word “highly” because we are clarifying that we consider how a child functions in all settings compared to the typical functioning of same-age children who do not have impairments. The basic principles that apply to the evaluation of functioning in “highly” supportive settings also apply to the evaluation of a child's functioning in other supportive settings.

We also made a number of editorial changes for clarity, added several examples, and expanded some statements from the interim final rules to better explain our intent.

Final § 416.924a(b)(6), “Unusual settings,” is new. It includes in our rules our longstanding policy that a child's functioning in an unusual situation, such as a consultative examination or a one-to-one setting, may not be typical of his or her functioning in routine settings on a day-to-day basis. It is another example of our policy that we do not consider any single piece of evidence in isolation from the other relevant evidence in the case record.

We added this section because some commenters noted correctly that there are medical impairments (such as attention deficit hyperactivity disorder) that may not be as manifest in unusual settings as they are in typical settings, such as at home and in school. A child with such an impairment may appear to be relatively normal in an unusual setting but be very limited in others. Other impairments can be more or less severe at any given point in time, so that a child may appear more or less limited on any single examination or in any one-to-one or other unusual setting. We included this principle in our training after we implemented the interim final rules, so the new provision only reflects our existing policy.

Final § 416.924a(b)(7), “Early intervention and school programs,” incorporates, expands, and clarifies provisions of § 416.924c(g) of the interim final rules. To respond to comments requesting more explanation of how other factors apply when we evaluate a child's limitations, we added more discussion about how we consider evidence from early intervention services, preschools, and schools. We also provide specific guidance about how we use school records (subparagraph (ii) of the final rule) and how we consider assessments from early intervention services or special education programs or accommodations in school (subparagraphs (iii) and (iv) of the final rule).

We also made clear in this section, and throughout the rules, that “school” includes preschool. We also explain better (in subparagraph (v) of the final rule) how the impact of chronic or episodic impairments or a child's need for therapy or treatment may interfere with his or her ability to participate in school activities.

Final § 416.924a(b)(8), “The impact of chronic illness and limitations that interfere with your activities over time,” incorporates the relevant provisions of § 416.924c(b), “Chronic illness,” from the interim final rules. Much of interim final § 416.924c(b) addressed the effects of treatment as it related to chronic illness and was not specifically relevant to this heading. Therefore, we moved those provisions into the section on treatment, final § 416.924a(b)(9). In response to a comment, we also added new second and third sentences in the paragraph to explain better the importance of considering functioning over time when a child has a chronic impairment that is characterized by episodes of exacerbation (worsening) and remission (improvement). For these new sentences, we adopted language we use in the third paragraph of section 12.00D of the adult mental disorders listings. This principle is equally applicable to children and adults, and to both physical and mental impairments.

Final § 416.924a(b)(9), “The effects of treatment (including medications and other treatment),” incorporates the provisions of paragraphs (c) (“Effects of medication”), (f) (“Time spent in therapy”), and (h) (“Treatment and intervention, in general”) of § 416.924c of the interim final rules. We expanded the list of factors we will consider when we evaluate the effects of a child's medications. We deleted the reference to “marked and severe functional limitations” that was in the third sentence of interim final § 416.924c(c) to clarify that the factors in § 416.924a apply when we evaluate a child's functioning beginning at step two of the sequential evaluation process. We also clarified language and added examples and new language reinforcing some of the principles discussed above.

As already noted, we redesignated § 416.924a from the interim final rules as final § 416.924b. We revised the heading of the section to make clearer that it addresses the consideration of age at steps two and three of the sequential evaluation process for children.

Except for editorial changes and one addition, final § 416.924b(a), “General,” is the same as § 416.924a(a) of the interim final rules. We expanded the provision on children who may be too young to be tested, now in final § 416.924b(a)(4), with language we adopted from section 114.00D4 of the listings. The new language explains that we will consider all relevant information in the child's case record, including “other generally acceptable methods consistent with the prevailing state of medical knowledge and clinical practice that will help us evaluate the existence and severity” of the child's impairment(s). This is not a policy change since it only clarifies what we do in all cases, including for infants and toddlers.

Final § 416.924b(b), “Correcting chronological age of premature infants,” is identical to § 416.924a(b) of the interim final rules. For that reason, we are not reprinting it in the Federal Register.

We are deleting all of § 416.924a(c) of the interim final rules, primarily because these provisions are better addressed elsewhere in these final rules. For example, the provisions of § 416.924a(c)(1) of the interim final rules, which address how a child adapts to an impairment, are better addressed by several provisions in final § 416.924a, as already explained above, and § 416.926a. The principles in § 416.924a(c)(3)(ii) of the interim final rules, which explained the interactive and interdependent process of development within a child, are better addressed by final § 416.926a(c), “The interactive and cumulative effects of an impairment or multiple impairments,” and throughout the general and age-specific descriptions of each domain in final § 416.926a. Likewise, using work-related activities to measure functioning in adolescents is now addressed by the age-specific domain descriptors found in § 416.926a.

We deleted some provisions for consistency. The final rules emphasize our longstanding policy that we consider the specific effects of each child's impairment(s) on his or her functioning based on the evidence in the case record. Some provisions in § 416.924a(c) of the interim final rules, however, provided more general guidance about how impairments might theoretically affect children who were older or younger. We originally included this guidance in our rules in 1991 when we first instituted the functional equivalence and IFA policies because we thought it would help our adjudicators better understand how impairments might affect children at different ages. However, we believe that we no longer need such guidance in our rules and that our focus on the need to assess the specific limitations each child has regardless of age is clearer without it.

Because of the changes we made in final §§ 416.924a and 416.924b, and in final § 416.926a, as described below, we deleted all of § 416.924b of the interim final rules, “Functioning in children.” Section 416.924b(a), “General,” merely restated the principle that we consider all of a child's limitations when we evaluate whether the child has a “severe” impairment and whether the impairment causes “marked and severe functional limitations.” Since we make identical and similar statements repeatedly throughout the final rules, it was unnecessary to retain this statement.

Section 416.924b(b) of the interim final rules, “Terms used to describe functioning,” included definitions of the terms “age-appropriate activities,” “developmental milestones,” “activities of daily living,” and “work-related activities.” However, we used the term “work-related activities” only in § 416.924a(c)(4) of the interim final rules. We did not use the other terms at all in the interim final rules, although we used the phrase “age-appropriate” and the word “development” in § 416.926a to describe the method of functional equivalence based on “broad areas of functioning.” We believe the changes we made throughout the final rules to indicate that we consider a child's functioning in relation to children of “the same age who do not have impairments” adequately cover the idea we intended by the term “age-appropriate activities.” Likewise, final § 416.926a continues to refer to a child's “development” and incorporates appropriate principles with examples for each age category. As already noted, we also included examples of work and work-related activities in the sections describing the domains for adolescents in final § 416.926a.

We revised § 416.925(b)(2) of the interim final rules to make it consistent with other changes we made in these final rules, especially changes in final § 416.926a. As we explain below when describing the changes to the functional equivalence rules, we will no longer refer to specific listings when we consider whether an impairment functionally equals the listings. In keeping with this change, we removed the reference to the childhood mental disorders listings in our definition of “listing-level severity” in final §§ 416.925 and 416.926a. We also updated the references to include the new domains described below and provided a better cross-reference to the rules defining the terms “marked” and “extreme.”

We received many comments about our functional equivalence rules. Most commenters raised at least one of the following issues:

• Many commenters said that our rules on functional equivalence were too complicated and suggested that we simplify them. Some commenters noted that it was difficult for adjudicators to determine which listings contained “disabling functional limitations.”

• Most commenters focused on the method of functional equivalence that was based on “broad areas of development or functioning,” set out in § 416.926a(c) of the interim final rules. Some of these commenters noted that we did not provide the same number of areas of functioning for all children and thought that this was unfair to children who had fewer functional areas in which to be rated. These commenters pointed out that for children age 1 to 3 we provided only three areas of functioning, while for older children we provided five.

• Many commenters asked us to separate communication from cognition in the cognitive/communicative area of functioning.

• Many commenters asked us to provide better ways to evaluate physical impairments. Many of these commenters suggested that we include another area of functioning to evaluate physical disorders in addition to the “motor” domain we added in 1997.

• Many commenters also asked us to clarify the rules to explain more clearly how we evaluate combinations of impairments, particular kinds of impairments, and particular kinds of functional limitations.

• A number of commenters asked us to clarify how we consider the results of testing, including the SEM, and how we define the terms “marked” and “extreme.”

Final § 416.926a has the following key features:

• Simplified rules. Under the interim final rules, we provided four methods for evaluating functional equivalence. (See §§ 416.926a(b)(1)-(b)(4) of the interim final rules.) In the final rules, we are providing a single method, based only on domains of functioning. The methods were somewhat redundant and, by far, the most commonly used one was based on broad areas of development or functioning, which we call “domains” in the final rules. The word “domain” is consistent with the language used in the conference report on the legislation, and much simpler than the phrase we used in the interim final rules, which meant the same thing.

• Delinking from specific listings. We also simplified the final rules so that adjudicators will no longer consider or refer to any of the listings when deciding functional equivalence. Although we provided self-contained domain criteria under the “broad areas of development or functioning” method in the interim final rules, we still required reference to listing 112.02 or 112.12 when a child's impairment(s) functionally equaled the listings under this method. The other three methods of functional equivalence in the interim final rules required adjudicators to identify specific listings containing disabling functional limitations and to refer to them when they found functional equivalence.

Also, a frequent criticism of the broad areas of functioning was that they were “the same” as the domains in the childhood mental disorders listings because they used the same names. Although this criticism was inaccurate, it is true that the names of the domains in the interim final rules confused many people. The new domains are specifically designed for determining functional equivalence and are completely delinked from the mental disorders and other listings.

• New domain for evaluating the physical effects of impairments. We added a sixth domain, called “Health and physical well-being,” for evaluating the physical effects of both physical and mental impairments, except for motor functioning limitations, which will be evaluated in a separate domain (“Moving about and manipulating objects”). This domain includes guidance that was relevant to the prior functional equivalence method called “episodic impairments” (see § 416.926a(b)(3) of the interim final rules) but also includes new guidance in response to public comments.

• The same number of domains for all children. All six domains in the final rules apply to children from birth to the attainment of age 18. We agreed with the commenters that it is possible to describe domains that apply to all ages. We provide general descriptions of the domains and specific examples of typical and atypical functioning for each domain. In five of the six domains (all except “Health and physical well-being”), we provide detailed descriptors for each age group.

• Communication addressed in the appropriate domains. In the final rules, we no longer have a domain called “cognitive/communicative.” The different aspects of communication are addressed in each domain that they affect.

• Guidance on evaluating multiple impairments. We added more guidance and reminders about evaluating the functional limitations that result from combinations of impairments throughout these final rules, including in final § 416.926a. Final § 416.926a(c), “The interactive and cumulative effects of an impairment or multiple impairments,” addresses this issue specifically.

• Clarification of how we use test results. We did not adopt the comments that asked us to include specific reference to the SEM in our rules or to apply SEMs in certain ways. However, in response to these comments, we clarified that we do not rely on any test score alone. We also clarified our longstanding policy that we may consider a child to have “marked” or “extreme” limitations with test scores that are slightly higher than the levels we use to define those terms. However, we explain that we may also consider the converse; i.e., that a child with test scores that appear to be in the “marked” or “extreme” range may not have such limitations. We consider test scores in the context of all the evidence in the case record.

• Better general guidance for considering all types of impairments. In final §§ 416.924a and 416.926a, we provide better guidance for evaluating the effects of all impairments, including a number of specific impairments singled out by some commenters. In addition to improvements we made in final §§ 416.924a and 416.926a already noted, we also included more detailed guidance and examples for evaluating limitations in each of the domains. We included examples that we believe will be useful for evaluating both physical and mental impairments.

We continue to define listing-level severity as “marked” limitation in two domains or an extreme limitation in one domain.

Therefore, although we delinked our policy of functional equivalence from reference to specific listings, we continue to use the phrase “functionally equals the listings,” to underscore that the impairment(s) must be of listing-level severity.

The following is an explanation of the specific changes we made in final § 416.926a.

We revised § 416.926a(a), “General,” to reflect the changes to our functional equivalence policy in these final rules. We deleted the reference to “any listed impairment that includes disabling functional limitations among its criteria” in the first sentence because we no longer refer to specific listings. We deleted the second and third sentences for the same reason. We replaced the discussion with an explanation that an impairment or combination of impairments functionally equals the listings if it is of listing-level severity. We also included the definition of listing-level severity from § 416.925(b)(2) of the interim final rules, revised to reflect other changes; i.e., to show that the impairment(s) must result in marked limitations in two domains or an extreme limitation in one domain.

We expanded the guidance in final paragraph (a) about what we consider when we evaluate a child's functioning. The first sentence of paragraph (a) of the interim final rules indicated that, when we assess functional limitations, we consider what the child “cannot do” because of his or her impairment(s). In the final rules, we clarify that we consider what the child “cannot do, [has] difficulty doing, need[s] help doing, or [is] restricted from doing” because of his or her impairment(s). This clarifies that we consider all of a child's limitations, even when the child has some ability to do an activity. We also added a reminder that we consider the interactive and cumulative effects of all the child's impairments for which we have evidence and references to other relevant rules we consider, especially those found in final § 416.924a.

We replaced §§ 416.926a(b), “How we determine functional equivalence,” and 416.926a(c), “Broad areas of development or functioning,” of the interim final rules with a series of new paragraphs. Paragraph (b) of the interim final rules explained the four methods we could use to determine functional equivalence. Since functional equivalence is now simplified into one method, we deleted those provisions of the interim final rules. However, we incorporated some of the principles of these paragraphs into other sections of the final rules, as already noted in the explanation of the changes in final § 416.924a and the summary of the key provisions of final § 416.926a.

We deleted the statement in the last sentence of interim final § 416.926a(b) about when we will complete a form SSA-538. This restatement of our policy in § 416.924(g) was redundant and unnecessary. A greater concern was that it was the only place in our rules where we repeated this requirement. We believe this may have given the mistaken impression that we do not complete the form when we decide whether a child's impairment(s) is severe, meets a listing, or medically equals a listing, as required in § 416.924(g).

In final §§ 416.926a(b), “How we will consider your functioning,” we explain that we use the word “activities” to mean everything a child does at home, in childcare, at school, and in the community. In final paragraph (b)(1), we list the new domain headings. They are:

• Acquiring and using information,

• Attending and completing tasks,

• Interacting and relating with others,

• Moving about and manipulating objects,

• Caring for yourself, and

• Health and physical well-being.

As we explain below, the new domain names largely clarify the broad areas of development or functioning we used in the interim final rules. In most cases, they rename, and to some extent reorganize, the prior areas of functioning, incorporating features of the other methods of functional equivalence we have deleted. They also respond to the major public comments about the domains by applying the same domains to children from birth to age 18, addressing the component parts of communication (explained later in this preamble) in the appropriate domains, providing better ways to evaluate the physical effects of impairments, and clarifying how we evaluate the effects of combinations of impairments and particular impairments.

We believe that the revised domains will be easier for our adjudicators to apply and for the public to understand. We believe that the new approach, together with the changes in final §§ 416.924a, provides a clearer, more comprehensive way to assess the effects of a child's impairment or combination of impairments on his or her functioning.

Final §§ 416.926a(b)(2) and (b)(3) provide guidance and reminders based on key provisions of final §§ 416.924a and 416.926a(a). Paragraph (b)(2) explains that there are six basic questions we will consider when we evaluate a child's functioning under the functional equivalence provisions. The six questions focus on the child's abilities and limitations, where the child has difficulty (i.e., at home, in childcare, at school, or in the community), the quality of any limitations (i.e., difficulty initiating, sustaining, or completing activities), and the kind, extent, and frequency of help the child needs. Final paragraph (b)(3) is based on § 416.926a(c)(2) of the interim final rules. It provides reminders of the kinds of evidence we will consider when we evaluate functioning under this section. In response to a public comment, we added cross-references to our rules on evidence and purchasing consultative examinations.

Final § 416.926a(c), “The interactive and cumulative effects of an impairment or multiple impairments,” is based on and clarifies our intent in §§ 416.924a(c) and 416.926a(c)(1) of the interim final rules. We included this paragraph in response to comments suggesting that we provide better guidance about these issues and that we simplify our functional equivalence policy.

The provisions of the paragraph are based on our longstanding policy that we consider the limitations that result from a single impairment or a combination of impairments in any domains that are affected. The interim final rules recognized that these effects may be in areas that “may not be obviously relevant,” and provided (in § 416.924a(c)(3)(ii)) examples of young children who might have delays in developing motor skills or bonding emotionally because of visual or hearing impairments. We decided to delete the examples because they focused only on the youngest children and certain kinds of impairments. We also believed that the provision was misplaced with the rules on how we consider age because it provided guidance on how we consider functioning. Therefore, it was more appropriate to include this guidance in final §§ 416.924a and 416.926a.

Final paragraph (c) assumes that at this step in the sequential evaluation process for children we have already established the existence of at least one medically determinable impairment that is “severe.” Therefore, we explain that at this point we are looking primarily at the extent of the limitation of the child's functioning. We look at all of the child's activities to determine the child's limitations or restrictions and then decide which domains to use. (Of course, when we decide whether the child's medically determinable impairment(s) is “severe” we will look comprehensively at the combined effects of all of the child's impairments, unless we are able to decide the issue by looking at each of the child's impairments separately. We explain this point above and in § 416.924a(b)(4) of the final rules.)

We evaluate the limitations that result from a medically determinable impairment(s) in any single domain or in as many domains as are affected. We explain that any given activity may involve the integrated use of many abilities and skills. We also explain that any single impairment may have effects in more than one domain.

In final § 416.926a(d), “How we will decide that your impairment(s) functionally equals the listings,” we provide the basic rule for functional equivalence. To functionally equal the listings, an impairment or combination of impairments must be of “listing-level severity”; i.e., it must result in marked limitations in two domains of functioning or extreme limitation in one domain. The disability must also meet the duration requirement; i.e., it must have lasted or be expected to last for 12 months or to result in death. The provision is based on “listing-level severity” and the provisions of §§ 416.902, 416.925(b), and 416.926a(c) of the interim final rules. However, in the third sentence of this paragraph, we provide explicitly that we will not compare a child's functioning to the requirements of any specific listing to underscore that we are delinking the policy from direct reference to the listings.

Final § 416.926a(e), “How we define ‘marked’ and ‘extreme’ limitations,” is based on § 416.926a(c)(3) of the interim final rules. We reorganized and clarified the provisions from the interim final rules and expanded some of our guidance.

We begin with a general paragraph that reviews the major principles of all of the final rules. In subparagraph (ii), we repeat and expand our guidance about formal testing that appears in final § 416.924a(a)(1), which was based on § 416.924(f) of the interim final rules. The final provision explains that standard scores, such as percentiles, can be converted to standard deviations, and that we consider such scores with all the other evidence when we determine whether a child has a marked or extreme limitation in a domain.

In final § 416.926a(e)(2), “Marked limitation,” we reorganized the provisions of § 416.926a(c)(3)(i) from the interim final rules to provide the general definition of “marked” first. We explain that a child has a “marked” limitation in a domain when his or her impairment(s) “interferes seriously” with functioning in the domain before we provide the more specific definition based on standardized testing. We expanded the definition to refer to limitations in the ability to independently initiate, sustain, and complete activities to be consistent with our other revisions and to clarify the definition in response to comments. For the same reasons, we also revised the statement that “marked limitation may arise when several activities or functions are limited or even when only one is limited.” The final sentence provides that there may be a marked limitation when a child's “impairment(s) limits only one activity or when the interactive and cumulative effects of [the] impairment(s) limit several activities.”

In addition to retaining the other definitions of “marked” from the interim final rules, we also added a new one explaining that “marked” is the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. This includes in our rules a longstanding instruction from the training manual we provided to our adjudicators when the interim final rules were implemented. (Childhood Disability Training, SSA Office of Disability, Pub. No. 64-075, March 1997.)

In subparagraph (e)(2)(ii), we clarified our rule defining “marked” in terms of a developmental quotient for children who have not attained age 3. We continue to provide that such a child will have a “marked” limitation if he or she is functioning at a level that is more than one-half but not more than two-thirds of his or her chronological age. However, in response to a comment, we clarified that if there are standard scores from standardized testing in the case record, these scores take precedence over the more subjective estimate based on functioning relative to chronological age.

In subparagraph (e)(2)(iii), we retain our rule that a “marked” limitation is shown with a valid score that is two standard deviations below the mean, but less than three standard deviations, on a standardized test. We clarified the provision to indicate that the test must be a “comprehensive standardized test designed to measure ability or functioning in [the] domain” and that the test results and the child's day-to-day functioning in the domain-related activities must be consistent. This is another example of a clarification we made in response to comments that asked us to explain better how we will consider test scores.

Subparagraph (e)(2)(iv) is new. It provides an alternative definition for the term “marked” as it applies to the sixth domain of functioning, “Health and physical well-being.” As we explain below, this new domain considers the physical effects of both physical and mental impairments. It includes (but is not limited to) such effects as frequent exacerbations and frequent illnesses, and incorporates aspects of the functional equivalence method based on episodic impairments found in § 416.926a(b)(3) of the interim final rules.

The definition in this subparagraph describes the frequency of effects that demonstrate a “marked” limitation in this domain. Under the final rules, a child may have a marked limitation in this domain if he or she has illnesses or exacerbations from his or her impairment(s) that result in significant, documented symptoms or signs occurring on an average of 3 times a year or once every 4 months, each lasting 2 weeks or more. We provide alternative criteria for children who have more frequent, but shorter, episodes or less frequent, but longer, episodes.

We adopted this definition from other rules and guidance. We provide a similar criterion in section 14.00D8 in the Immune System section of part A of our listings, which we use when we decide whether an individual meets the criteria of listing 14.08N. An individual who has HIV infection meets that listing with “repeated” manifestations of the illness as defined in 14.00D8 and “marked” limitations in one other specified domain. We also have operating instructions that we use to evaluate the frequency of exacerbations of serious mental disorders in adults under the fourth paragraph B criterion for most listings under section 12.00. It provides essentially the same criteria for assessing frequency in that domain as used here in the final childhood disability rules. (See Program Operations Manual System, DI 22511.005D.)

In both cases, the frequency criterion is the equivalent of one “marked” limitation, and individuals must still show “marked” limitation in a second domain to meet the listings. We believe the standard is appropriate for evaluating the frequency of exacerbations or illnesses in children too. The other definitions of the term “marked” in these final rules will also apply to the health and physical well-being domain when appropriate.

In final paragraph (e)(3), “Extreme limitation,” we made revisions to parallel the revisions in paragraph e)(2). To maintain consistency with the provision that describes a “marked” limitation when an impairment(s) “seriously” interferes with functioning in the domain, we added a parallel definition for extreme limitation when an impairment(s) “very seriously” interferes with functioning.

We also clarified the definition based on a public comment. In § 416.926a(c)(3)(ii)(C) of the interim final rules, we defined “extreme” as having “no meaningful function in a given area.” A commenter thought that this was a stricter standard than we intended, equivalent to a requirement that a child be completely unable to function. To clarify that this was not our intent, we deleted the phrase and added in the final rule that, while “extreme” is the rating we use for the worst limitations, it does not necessarily mean a total lack or loss of ability to function. It means that the impairment very seriously limits functioning, and is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

For the domain of “Health and physical well-being,” we provide that episodes of illness or exacerbations of a child's impairment(s) “substantially in excess of” the criteria in paragraph (e)(2)(iv) will also constitute “extreme” limitation. However, we caution that impairments that occur with such frequency or for such extended periods of time that they could be rated as “extreme” under this definition should meet or medically equal a listing in most cases.

In final paragraph (e)(4), “How we will consider your test scores,” we expand on the guidance we provided in final § 416.924a(a)(1), focusing more on issues relating to the rating of the domains for functional equivalence. We added the paragraph in response to comments that suggested we include provisions specifying how we would apply the SEM. The paragraph explains that we may find that a child has a “marked” or “extreme” limitation with a test score that is slightly higher than the levels provided in this section if other information in the case record indicates that the child's functioning is seriously or very seriously limited because of his or her impairment(s). This means that we may find that a child has “marked” or “extreme” limitation in a domain even if he or she has test scores that are slightly higher than is required to satisfy the definitions of those terms based on standard deviations. Conversely, we explain that we may find that a child does not have a “marked” or “extreme” limitation even if the test scores are at the levels provided in this section if other information in the case record indicates that the child's functioning is not seriously or very seriously limited. We provide examples to illustrate both situations.

We also incorporate in the final rules guidance from our adjudicator training on how to consider IQ testing (Childhood Disability Evaluation Issues, SSA Office of Disability Pub. No. 64-076, March, 1998). This guidance applies to all testing, and explains how we resolve material inconsistencies between a child's test scores and the other information in the case record. We explain that, while it is our responsibility to resolve any material inconsistencies, the interpretation of a test is primarily the responsibility of the professional who administered the test. If necessary, we may recontact the individual who administered the test for further clarification.

However, we may also resolve an inconsistency with other information in the case record, by questioning other individuals who can provide us with information about a child's day-to-day functioning, or by purchasing a consultative examination. We also explain what we will do when we do not rely on a test score.

We believe these final provisions address most of the concerns of the commenters who asked us to include provisions recognizing the SEM. All measures of functioning are less than perfectly precise and have some range of error around their scores.

The SEM is one method of quantifying this variation. It is a statistical unit that can be used to construct a confidence interval. This interval reflects the reliance that can be placed in the accuracy of an obtained test value. For clinical purposes, the SEM is considered to fall symmetrically around a test score. Therefore, the confidence interval is described by the obtained score plus and minus the desired number of SEMs.

For example, given an obtained score of 72 and a hypothetical SEM of 5 points, one can say with 68 percent confidence that the examinee's true score falls somewhere within the range of 67 to 77. To be 95 percent confident, we must go to plus and minus two SEMs, or a score range of 62 to 82.

SEMs differ from test to test, summary score by summary score (e.g., full scale IQ, verbal IQ, and performance IQ), and by age. Tables of SEMs are typically published within test manuals.

Because of the imprecision inherent in all psychometric devices, professionals who administer tests do not rely on the test scores alone. They consider as much other information as is available to help them judge whether a given test score is a meaningful measurement of a child's ability (or in some tests, the child's functioning) in the area addressed by the test.

For example, the major professional manuals defining mental retardation provide a rough clinical rule of thumb that IQs in the range of 50 to 75 indicate one level of mental retardation, but caution that the child's adaptive functioning must also be considered and must be consistent with the abilities suggested by such scores before a diagnosis of mental retardation may be made. Of course, the professional who administered the test is in the best position to determine the precision of his or her findings.

We believe that the final rules are the best possible way to recognize the less than perfect precision of test results. They recognize that we cannot rely on any given test score without considering it in the context of all the other evidence. They explain that we will generally defer to the judgment of the person who gave the test about the accuracy of the results, and they incorporate into our rules procedures for adjudicators to follow when they question test results.

In final § 416.926a(f), “How we will use the domains to help us evaluate your functioning,” we provide general information about the domains and how we will use them. Each domain description in final paragraphs (g) through (l) begins with a general description of the kinds of activities that should be evaluated under the domain in terms of what a child of the same age who does not have impairments is expected to be able to do.

Then, each domain description (except “Health and physical well-being,” which contains examples only of limitations) includes two kinds of examples: ones to illustrate typical functioning of children who do not have impairments, generally presented by age category, and ones to illustrate limitations. The examples are not all-inclusive, and we will not require our adjudicators to develop evidence about each specific example. They are intended only to help our adjudicators understand better some of the kinds of activities and limitations they should evaluate within each domain when this information is in the case record.

We also explain that the limitations do not necessarily describe “marked” or “extreme” limitations, only limitations of functioning within the domain. We must consider all of the information in the case record when we decide whether there is a “marked” or “extreme” limitation in a domain.

Final § 416.926a(g), “Acquiring and using information,” is, in part, the successor to the prior area of functioning called cognition/communication. In response to public comments about including communication in that area, these final rules recognize that “communication” comprises speech and language, and that language is used both for learning and for interacting and relating. Therefore, we address the three components of communication (speech, language used for learning, and language used for interacting and relating) in the domains that are appropriate to the function.

• Final paragraph (g)(1)(i) recognizes that the ability to acquire information, or learn, requires perceptual, sensorimotor, language, and memory processes that allow the child to acquire the fundamental skills of reading, writing, and doing arithmetic.

• Final paragraph (g)(1)(ii) recognizes that the ability to use information, or think, employs those same processes, through visual and verbal reasoning, to solve problems, make choices, develop ideas, and construct arguments or theories.

• Paragraph (g)(2) provides some examples of activities in “Acquiring and Using Information” typical of children in our designated age groups.

• Paragraph (g)(3) provides examples of some limitations in this domain.

Final § 416.926a(h), “Attending and completing tasks,” incorporates aspects from two prior areas of functioning. It includes some of the former area, “Responsiveness to Stimuli,” which applied only to children from birth to the attainment of age 1, and aspects of the former area, “Concentration, Persistence, or Pace,” which applied only to children from age 3 to the attainment of age 18. As with all of the domains in the final rules, this domain now applies to children of all ages.

The domain recognizes how attention evolves from an infant's earliest response to all types of environmental stimuli, to a school-age child's capacity to focus on certain stimuli (and ignore others) in a formal learning situation, and then eventually to an adolescent's capacity to maintain attention in work or work-like tasks.

• Paragraph (h)(1)(i) describes attention in terms of level of alertness, concentration, and the initiating, sustaining, and changing of focus needed to perform tasks.

• Paragraph (h)(1)(ii) further details the role of attention in physical and mental effort, in allaying impulsive thinking and acting, and in performing tasks at an appropriate pace, within appropriate timeframes.

• Paragraph (h)(2) provides some examples of activities in “Attending and Completing Tasks” typical of children in our designated age groups.

• Paragraph (h)(3) provides examples of some limitations in this domain.

Final § 416.926a(i), “Interacting and relating with others,” includes all aspects of social interaction and relationship with individuals or groups (in formal, informal, or intimate contexts) as well as the speech and language skills needed to communicate effectively in all social settings. This domain incorporates the prior area of “Social Functioning,” but now includes the ability to use speech and the aspect of language needed to interact and relate in social contexts (called “pragmatics”).

• Paragraph (i)(1)(i) discusses interacting with others as the broad set of social behaviors a child uses with any other person, whether in a single encounter or on a daily basis.

• Paragraph (i)(1)(ii) discusses relating to others as the formation of intimate relationships with particular people, which requires interacting skills as well as a wide array of emotional behaviors.

• Paragraph (i)(1)(iii) explains that interacting and relating entail responding to a variety of emotional and behavioral cues, speaking intelligibly, following social rules for conversation and interaction, and responding appropriately to others.

• Paragraph (i)(1)(iv) notes that interacting and relating occur in all of a child's activities that involve other people and may involve only one person or a group. Interacting and relating also occur across a wide range of social situations, from participating in school activities voluntarily to having appropriate responses to persons in authority.

• Paragraph (i)(2) provides some examples of activities in “Interacting and relating” typical of children in our designated age groups.

• Paragraph (i)(3) provides examples of some limitations in this domain.

Final § 416.926a(j), “Moving about and manipulating objects,” is the successor to the prior area of “Motor Functioning,” and includes gross and fine motor skills.

• Paragraph (j)(1)(i) describes the range of actions involved in moving one's body from one place to another, such as sitting, standing, balancing, shifting weight, transferring, bending, crouching, crawling, and running.

• Paragraph (j)(1)(ii) describes the kinds of actions involved in moving, holding, carrying, transferring, or manipulating objects.

• Paragraph (j)(1)(iii) discusses the underlying aspects of motor skill, such as coordination, dexterity, integration of sensory input with motor output, and the capacity to plan, remember, and execute controlled motor movements.

• Paragraph (j)(2) provides some examples of activities in “Moving about and manipulating objects” typical of children in our designated age groups.

• Paragraph (j)(3) provides examples of some limitations in this domain.

Final § 416.926a(k), “Caring for yourself,” incorporates and clarifies provisions of the “Personal” area in the interim final rules. It also incorporates principles from the areas in the interim final rules called “Responsiveness to Stimuli” and “Concentration, Persistence, or Pace” that are not covered by the domain for “Attending and completing tasks” in the final rules.

It includes aspects of the child's ability to appropriately care for physical needs (such as feeding, dressing, toileting, and bathing), maintain a healthy emotional and physical state by coping with stress and changes in his or her environment, and take care of his or her health and safety. Development is measured in terms of such things as the child's increasing sense of independence and competence, ability to cooperate with others in meeting physical and emotional wants and needs, and increasing independence in making decisions and in taking actions involved in caring for himself or herself. Impaired ability is manifested by such things as pica (eating non-nutritive or inedible objects), self-injurious actions, refusal to take medication, and disturbances in eating and sleeping patterns.

• Paragraph (k)(2) provides some examples of activities in “Caring for yourself” typical of children in our designated age groups.

• Paragraph (k)(3) provides examples of some limitations in this domain.

Final § 416.926a(l), “Health and physical well-being,” is a new domain. It incorporates aspects of the two prior methods of determining functional equivalence called “Episodic impairments” and “Limitations related to treatment or medication effects.” (See §§ 416.926a(b)(3) and (b)(4) of the interim final rules.)

The domain addresses the cumulative physical effects of physical or mental impairments and the impact of their associated treatments or therapies on a child's functioning. Consistent with the definition of “extreme” in final § 416.926a(e)(3)(iv), it explains that an impairment(s) that causes “extreme” limitation in this domain will generally meet or medically equal a listing.

• Paragraph (l)(1) takes note of the variety of physical effects that a child may experience, such as shortness of breath, reduced stamina, poor growth, or pain.

• Paragraph (l)(2) notes that a child's medications or treatments may have physical effects that limit the performance of activities.

• Paragraph (l)(3) concerns children whose illness may be chronic with stable or episodic symptoms, or who may be medically fragile and need intensive medical care to maintain health.

• Paragraph (l)(4) provides some examples of limitations in health and physical well-being that may affect a child of any age.

We redesignated § 416.926a(d) of the interim final rules, “Examples of impairments that are functionally equivalent in severity to a listed impairment,” as final § 416.926a(m). We revised the heading and the opening paragraph to refer to impairments that “functionally equal the listings” consistent with other changes throughout these final rules.

We also deleted examples 5 and 10 and renumbered the remaining examples. Example 5 previously referred to any physical impairment(s) or combination of physical and mental impairments “causing marked restriction of age-appropriate personal functioning and marked restriction in motor functioning.” The example is no longer appropriate because we replaced the domain names and deleted the term “age-appropriate” from these final rules.

We could have revised the example to reflect the new terms in these final rules, but then it would simply repeat the definition of listing-level severity in final §§ 416.925 and 416.926a(a). We believe the revisions we made throughout final § 416.926a sufficiently clarify the principle that example 5 was intended to show.

Example 10 in the interim final rules referred explicitly to listing 112.12. We deleted this example because we are removing explicit reference to specific listings from our functional equivalence rules.

We also redesignated § 416.926a(e) of the interim final rules, “Responsibility for determining functional equivalence,” as final § 416.926a(n). Apart from the redesignation, there are no changes in the rule.

The only substantive change we made to the interim final rule is to incorporate the amendment to section 1614(a)(3)(H)(iii) of the Act made by section 5522(a)(1) of Pub. L. 105-33, 111 Stat. 251, 622. Under that section, we must perform a redetermination of the disability eligibility of children who attain age 18 “either during the 1-year period beginning on the individual's 18th birthday or, in lieu of a continuing disability review, whenever the Commissioner determines that an individual's case is subject to a redetermination under this clause.” The new provision is found in final § 416.987(c).

We also revised and shortened the entire section to remove redundancies and make it easier to read. These changes are only editorial and do not substantively change any provisions of the interim final rule.

We revised § 416.990(b)(11) of the interim final rules to incorporate the amendment to section 1614(a)(3)(H)(iv) of the Act made by section 5522(a)(2)(B) of Pub. L. 105-33, 111 Stat. 251, 622. The section explains when we will do a continuing disability review (CDR) of the eligibility of a child whose low birth weight was a contributing factor material to our determination that he or she was disabled.

The original provision in Pub. L. 104-193 required us to do a CDR by the child's first birthday in all cases. The amendment in Pub. L. 105-33 changed the provision. Now we can do a CDR after a child's first birthday if at the time of the initial determination we determine that the child's impairment is not expected to improve by age 1 and we schedule a CDR for a date after the child's first birthday.

In final § 416.994a(i)(1)(ii), we deleted the word “Psychiatric” in response to a comment that pointed out that “Medical management” in § 416.994a(i)(1)(i) includes medical management provided by psychiatrists. We also corrected typographical errors and changed the text so it is consistent with the final rules on functional equivalence. Otherwise, the section is unchanged.

We made other changes throughout the rules for consistency with changes we have described above, to correct typographical errors, and to simplify language. For example:

• In the listings sections revised in the interim final rules, we changed the phrase “medically or functionally equivalent in severity to the criteria of a listed impairment” and variations on this phrase to “medically or functionally equals the listings.”

• In §§ 416.913(c)(3) and 416.919n(c)(6), we changed the names of the domains to reflect the changes in final § 416.926a.

In response to our request for comments on the interim final rules, we received 174 letters from different sources. Most of the comments came from advocacy and legal groups that represent children with disabilities. Other comments came from organizations representing children with specific diseases, disorders, or health problems, and from representatives of professional medical and health care organizations. We also received comments from several public agencies and professional organizations having an interest in these rules. Finally, some commenters were parents or caregivers of children with disabilities.

In a number of cases, we received the same comment and recommendation from several, and sometimes many, commenters. When this happened, the comments and recommendations often used identical or very similar language. Several commenters also included statements in their letters indicating that, in addition to their individual comments, they agreed with the more detailed, comprehensive comments of another commenter, generally an advocacy group or coalition of advocates.

Because many of the comments were detailed, we condensed, summarized, or paraphrased them. However, we tried to summarize the commenters' views accurately and to respond to all of the significant issues raised by the commenters that were within the scope of the interim final rules.

Finally, many of the comments were outside the scope of the interim final rules. For example, some comments asked us to change rules that were not included in the interim final rules, and many comments contained opinions about Pub. L. 104-193 without suggesting changes to the interim final rules. In a few cases, we summarized and responded to such comments because they raised public concerns that we thought are important to address in this preamble. For example, we received many comments from people who were concerned about how we were going to redetermine the eligibility of children under the requirements of Pub. L. 104-193 and we thought it was important to explain what we did after the comments were submitted. In most cases, however, we did not summarize or respond to comments that were outside the scope of our rulemaking. We will retain the comments and consider them if and when they are appropriate for other rulemaking actions.

Comment: A few commenters expressed concerns about the removal of references to behavior from sections 112.00C2 and 112.02B2c(2). One thought that this change appeared to target children with “invisible disorders,” including attention deficit hyperactivity. Another asked us to instruct adjudicators not to evaluate lightly children with maladaptive behaviors, because these behaviors may indicate the presence of a serious mental impairment. Another commenter stated that the interim final rules did not adequately capture the behavioral expression of mental illness, especially in young children who do not have fully developed language skills.

Response: We removed references to “behavior” and “maladaptive” behavior from the personal/behavioral domain of prior sections 112.00C2 and 112.02B2c(2) in accordance with the explicit requirements of the law, not because we wanted to “target” children with specific impairments. See section 211(b)(1) of Pub. L. 104-193, 110 Stat. 2105, 2189. The interim final rules made no changes to listing 112.11, our listing for evaluating claims filed on behalf of children who have attention deficit hyperactivity disorder, and children with this impairment can still meet or medically or functionally equal the requirements of the listings.

We agree with the commenter who thought that children whose mental impairments result in behavioral problems should have their claims carefully reviewed. In fact, since we published the interim final rules, we have taken a number of actions to ensure that all children, including those with mental impairments, have their claims evaluated correctly and in accordance with the law.

We conducted training for all our adjudicators in 1997, shortly after we published the interim final rules, and emphasized the evaluation of all aspects of childhood disability claims, including those involving behavioral issues. As we noted earlier in this preamble, in late 1997, we also conducted a “top-to-bottom” review of our implementation of the provisions of Pub. L. 104-193 that affected the SSI childhood disability program.

In the review, we found that about 95,000 children, or about 10 percent of the children receiving SSI in December 1996, had an impairment that likely involved maladaptive behaviors in the prior personal/behavioral area of functioning. Of these cases, about 16,500 children were not affected by the changes in the law because their impairments met or equaled the requirements of our listings without consideration of the prior personal/behavioral domain. Two-thirds of the remaining cases involving maladaptive behaviors required a redetermination because they qualified for benefits based on an IFA.

The “top-to-bottom” review, however, indicated that some redetermination cases where benefits ceased were not consistently processed, including some that involved mental impairments other than mental retardation. Consequently, we conducted additional training on these issues in the spring of 1998, and required the State agencies to review a portion of these cases. The March 1998 training included instruction on how to identify behavioral issues and the disorders with which they are likely to be associated, and emphasized that we still consider the functional limitations resulting from a child's behavior in determining whether a child is disabled.

We disagree with the commenter who thought that the interim final rules did not allow us to consider adequately the behavioral aspects of a child's mental impairment(s). The interim final rules never precluded consideration of functional limitations that result from behavioral problems, and our training and policy statements emphasized that fact. In the interim final rules, we clarified the description of the social area of functioning to emphasize that many impairment-related behavioral problems are likely to have their most significant effects on a child's social functioning. To reinforce the point further, we provided additional training to adjudicators that instructed them to consider behavior and outlined the various aspects to evaluate, including its nature, intensity, frequency, and duration. Our training also emphasized that adjudicators need to consider how behavior is affected by interventions.

We believe that the additional clarifications in the final rules, made to respond to these and other comments, further explain the issue. We provide descriptions and examples of functional limitations throughout the domains to make clearer where we consider the functional limitations of children whose physical and mental disorders include behavioral manifestations.

Comment: Two commenters expressed concern about the childhood mental disorders listings, stating that they should be adjusted to reflect the diagnostic categories in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994 (the DSM-IV). One of these commenters believed that using the DSM-IV categories would address the “vagueness” of some mental disorders listings, especially for children and adolescents with emotional disturbance. The other commenter said that many of the adult and childhood mental disorders listings are out of date, in need of revision, and that we should regularly update them so that the functional equals concept works more equitably.

Response: We did not adopt the comments because they were outside the scope of the interim final rules. The changes we made to the listings were only those necessary to implement Pub. L. 104-193. We do not have the authority to issue final rules that revise the mental disorders listings as extensively as these commenters suggested without first proposing changes through notice-and-comment rulemaking under the Administrative Procedure Act.

We appreciate the comment suggesting that we update both the adult and the childhood mental disorders listings. We are considering such an update and will consider this and the other comments as we prepare any proposed revisions.

Comment: Many commenters stated that our interpretation of the phrase “marked and severe functional limitations” in the interim final rules did not properly reflect Congressional intent. These commenters supported their position by citing various portions of the legislative history of Pub. L. 104-193 and prior versions of the legislation that were not enacted into law.

Response: We did not adopt these comments. These final rules continue to define the term “marked and severe functional limitations,” when used as a phrase, to mean the standard for disability in the Act for children claiming SSI benefits based on disability. We continue to define this standard in the final rules as being a level of severity that meets, medically equals, or functionally equals the listings.

Before we published the interim final rules in 1997, we carefully considered the statutory language and legislative history of Pub. L. 104-193, and the prior versions of the legislation that were not enacted into law, in order to determine the appropriate level of severity that would result in “marked and severe functional limitations.” We discussed some of the legislative history that influenced our decision on this issue in the preamble to the interim final rules. (62 FR 6408, 6409 (1997))

We have again reviewed the statutory language and legislative history of Pub. L. 104-193 and the prior versions of the legislation that were not enacted into law. We do not believe that the legislative history can fairly be read to preclude us from defining the phrase “marked and severe functional limitations” we did in the interim final rules and now in these final rules. The General Accounting Office reached a similar conclusion in its report to Congress on our development of the interim final rules. (Supplemental Security Income: Review of SSA Regulations Governing Children's Eligibility for the Program GAO/HEHS-97-220-R, September 16, 1997.) In that report, the GAO noted that it found the “interim final regulations to be consistent with the law.” GAO also stated: “We believe SSA was well within its authority in establishing the new level of severity, and its rationale for doing so was well supported.”

Some commenters supported their position by noting that the Senate “rejected” a disability standard contained in a prior House of Representatives” version of the legislation. This earlier version would have explicitly required a child to meet or equal the requirements of the listings as they existed as of April 1, 1995, in order to be found disabled. These commenters were referring to an early version of the legislation, under which “[e]ligibility, as determined by the Commissioner, for cash benefits * * * will be based solely on meeting or equalling [sic] the current Listings of Impairments [sic] set forth in the Code of Federal Regulations.’ H.R. Rep. No. 81 (Pt. 1), 104th Cong., 1st Sess. 48 (1995). Although the House of Representatives passed this bill, the childhood disability standard contained in the bill was just one of several alternative standards that Congress considered in various bills.

For example, the childhood disability standard contained in another bill would have eliminated the IFA, and would have provided that a child would be considered disabled if his or her impairment met the requirements of the listings or a functional equivalence standard separate from the listings. Another bill would have retained the IFA, but required changes to the regulations to provide that a child would be considered disabled if he or she had two marked limitations, or a “severe” limitation in one domain.

Still another bill would have retained the comparable severity standard, but clarified it to mean an impairment that was severe and persistent and which substantially limited a child's ability to develop or function. Under this proposed standard, “IFA-level severity” was two marked limitations, or one marked and one moderate limitation.

The Senate's initial version of H.R. 4, the legislation passed by the House, proposed a disability standard under which a child could be found disabled if he or she had “marked, pervasive and severe functional limitations.” S. Rep. No. 96, 104th Cong., 1st Sess., 20 (1995). The Senate later amended its proposal to drop the term “pervasive” from the definition of disability for children, so that the version of the legislation enacted in Pub. L. 104-193 provided that a child would be found disabled if he or she had an impairment(s) that resulted in “marked and severe functional limitations.”

The evolution of a childhood disability standard from the prior standard of “comparable severity” to one explicitly tied to the Listing of Impairments as it was in effect on April 1, 1995, to one requiring “marked, pervasive and severe functional limitations” to the final standard, requiring “marked and severe functional limitations,” does not represent a fundamental rejection of a standard based on listing-level severity, as some commenters seemed to assume. Rather than rejecting a disability standard based on listing-level severity, the changes made by the Senate to the definition of disability for children can best be viewed as providing a more flexible definition of disability than one explicitly tied to a specific set of regulatory criteria in effect on a specific date, as initially proposed by the House of Representatives.

The legislative history of the initial Senate version of the legislation, under which a child would be found disabled if he or she had “marked, pervasive and severe functional limitations,” indicates that “the Listing and the other disability determination regulations as modified by the Committee bill properly reflect the severity of disability contemplated by the statutory definition.” S. Rep. No. 96, 104th Cong., 1st Sess. 18 (1995). Materially identical language appears in the legislative history of Pub. L. 104-193, as we discussed in the interim final rules and earlier in this preamble.

Thus, we also disagree with commenters who noted that the Senate's removal of the word “pervasive” from the definition supported the conclusion that the level of severity in the interim final rules was stricter than what Congress intended. As we have noted, the material legislative history concerning the level of severity intended by the respective definitions is substantially identical for each version of the legislation. Cf. S. Rep. No. 96, 104th Cong., 1st Sess. 18-20 (1995) with H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess. 328 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716 and H.R. Rep. No. 651, 104th Cong., 2d Sess. 1385 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2444.

On a related point, the September 14, 1995, colloquy between Senator Dole and Senator Conrad, cited by some commenters to support their position, does not indicate that the Senate deleted the term “pervasive” to reject a standard of disability based on marked limitations in two domains or extreme limitation in one. Rather, this discussion indicates that there was concern that the inclusion of the term “pervasive” in the earlier definition “implied some degree of impairment in almost all areas of a child's functioning or body systems.” Senator Dole noted that this “was not the intent of the earlier proposed change.” He further noted that “[s]ometimes children will have multiple impairments, sometimes they will not.” 141 Cong. Rec. S13613 (daily ed. September 14, 1995) (statement of Sen. Dole).

Thus, the colloquy indicates that the term was deleted to clarify that a child with severe disabilities could be found disabled even if he or she did not have multiple impairments that caused some degree of impairment in almost all areas of his or her functioning. The interim final and these final rules are consistent with that understanding of the term “marked and severe functional limitations.” We will find a child disabled, even if his or her impairment causes limitations in only one area of functioning, as long as the limitations are sufficiently serious.

Although we believe that the level of severity reflected in the interim final and final rules is consistent with the statutory text and legislative history of Pub. L. 104-193, we made a number of changes to improve and clarify them. We discuss these changes elsewhere in this preamble.

Comment: Several commenters who objected to a standard of disability based on listing-level severity suggested revisions of the standard to a specified level of severity less than marked limitations in two domains or extreme limitation in one domain. One commenter stated that a standard of disability based on listing-level severity was inappropriate because the listings describe extreme pathology and gross failure of treatment, and, for the most part, do not provide a meaningful level of functional ability.

Commenters proposed a variety of standards for establishing disability, including: Marked limitation in one domain and moderate limitation in another; marked limitation in one domain and moderate limitations in two others; and moderate limitations in three “crucial” areas. Other commenters stated that we should revise the rules to provide that children with moderate limitations in multiple areas should be found disabled, or suggested other alternatives that would have similar results. Other commenters thought we should retain or reinstate the IFA.

Response: We did not adopt these comments, but we have made changes in the final rules to address many of the commenters' concerns. As we explained above, we believe that the disability standard we adopted in the interim final and final rules is consistent with the statutory definition of disability in children. We explained our reasons for this conclusion above and in the preamble to the interim final rules.

As the commenters recognized, in enacting Pub. L. 104-193, Congress intended that we apply a stricter standard of disability than the one used under the prior law. Previously, a child would be considered disabled if he or she had an impairment or combination of impairments that was of “comparable severity” to one that was disabling in an adult. Our rules interpreting the comparable severity standard at the IFA step contained guidance that illustrated a level of impairment severity that generally, though not invariably, would be found sufficient to establish comparable severity. See § 416.924e (1996) in the rules that preceded the interim final rules. Under these regulations, we could find a child disabled if we found on an IFA that his or her impairment or combination of impairments resulted in a “marked” limitation in one domain and a “moderate” limitation in another domain, or if his or her impairment(s) resulted in “moderate” limitations in three domains. See § 416.924e(c)(1) (i) and (ii), and § 416.924e(c)(2)(i) and (ii) (1996).

Section 211(b)(2) of Pub. L. 104-193, 104 Stat. 2105, 2189, specifically directed us to discontinue use of the IFA set forth in former § 416.924d and 416.924e. In accordance with that statutory directive, we deleted those rules in the interim final rules. We have no authority to retain or reinstate the IFA. Furthermore, the suggestions to revise the disability standard to include children with impairments of less than listing-level severity (e.g., one marked and one moderate limitation or three moderate limitations in “crucial” areas) would, in essence, result in the same level of severity we used when we performed an IFA under the prior law.

We do not believe that it would be consistent with the statutory definition of disability to allow a child to be found disabled based on one marked and two moderate limitations, or multiple moderate limitations, as some commenters suggested. “Moderate” limitations represent a wide spectrum, ranging from just above “slight” to just below “marked.” Consequently, we do not believe that a standard of severity based on moderate limitations, even multiple moderate ones, reflects a level of impairment severity that results in marked and severe functional limitations.

We disagree with the commenter who characterized our listings as “extreme” pathology, gross failure of treatment, and no meaningful level of functional ability. Our definition of “listing-level severity” in §§ 416.902 and 416.925(b) of the interim final rules—based on marked limitations in two domains or extreme limitation in one—made clear that a child could meet the standard without being as functionally limited as this commenter indicated.

We have, however, made many changes to address these concerns. Throughout the final rules, we made a number of changes to better explain how we consider the combined effects—what we now call the “interactive and cumulative effects”—of impairments. For example, we clarify in final § 416.926a(e)(2), what we have always intended by our statement in § 416.926a(c)(3)(C) of the interim final rules, that “marked limitation may arise when several activities or functions are limited or even when only one is limited.” We have clarified the sentence to provide that there may be a marked limitation when a child's “impairment(s) limits only one activity or when the interactive and cumulative effects of [the] impairment(s) limit several activities.” We made similar changes in the definition of “extreme” limitation in final § 416.926a(e)(3). We also clarified our definitions of these rating terms and improved our rules for evaluating functional limitations. We believe that the changes we made in the functional equivalence rules will address many commenters' concerns about how cases are evaluated using the childhood disability standard.

Comment: Some commenters thought that there was “no justification in medical practice” for our interpretation of the statutory definition of disability for children, and that regulations need to more accurately reflect the current knowledge-base about what constitutes severe disorders in children. These commenters maintained that our interpretation would place many children with severe disorders at risk of losing their SSI payments.

A few commenters thought the severity standard represented an overreaction to the problem of program abuse, e.g., alleged parental “schooling” (i.e., coaching) of children, or that it was our solution to budgetary problems, at the expense of children with disabilities.

Response: The references to “medical practice” and the “current knowledge-base about * * * severe disability in children” were unclear. We do not believe that any part of these childhood disability regulations is inconsistent with, or contrary to, current medical practice or knowledge. Our intent is to fully recognize and fairly adjudicate cases of severe disability in children under the standard required by Pub. L. 104-193. Also, as noted in the previous response and in our summary of the final rules, we made many changes that we believe will address the commenters' concerns about how we evaluate a child's functional limitations within the domains.

We believe that the summary of our actions since 1997 at the beginning of this preamble responds to commenters who expressed concern that our interpretation would place many children with severe disorders at risk of losing their SSI payments. As we noted there, the Commissioner shared their concern and ordered a top-to-bottom review of our implementation of the law. As a result of that review, we took a number of major actions to ensure that children receiving benefits who should not have lost eligibility as a result of the changes in Pub. L. 104-193 retained their eligibility. The actions we took also helped to improve adjudication of new childhood disability claims.

As noted earlier, we believe that we have implemented Pub. L. 104-193 as Congress intended. Our interpretation was not an “overreaction” to reports of “coaching.” The commenter correctly noted that the issue of “coaching” of children, which was raised several years ago, was addressed in numerous ways before Congress changed the definition of disability. We studied the issue ourselves, as did the Office of the Inspector General for the Department of Health and Human Services, and the General Accounting Office. None of those studies found any noticeable incidence of parental coaching of children. Of the few instances in which coaching (or malingering) was suspected, none involved a finding of disability or eligibility for SSI payments.

Comment: A few commenters suggested that we adopt eligibility criteria for other Federal and State programs for the children's SSI program. They specifically mentioned programs administered under Part H of the Individuals with Disabilities Education Act (IDEA) (now Part C of the IDEA, 20 U.S.C. 1431-1445, as a result of the Individuals with Disabilities Education Act Amendments of 1997, Pub. L. 105-17, 111 Stat. 37, 106-123). Some commenters suggested that we adopt the decisions made by other agencies.

Response: We did not adopt the comments. As we noted in both the preamble to the interim final rules and earlier in this one, Congress provided a specific statutory standard for evaluating disability in children under SSI. We do not have the authority to adopt a definition from another statute.

Consistent with our longstanding policy, we cannot adopt disability determinations made by any other Federal or State programs. (See § 416.904.) The Act requires that the Commissioner of Social Security and his delegates, and not another governmental or non-governmental party, make the determination that a child is or is not disabled.

Comment: One commenter stated that the nature and cost of caring and providing support for individuals not properly served early in life increases significantly in their adult and aging years. This commenter believed that this argued for early intervention and a broader interpretation of the regulations.

Response: As noted above and in the preamble to the interim final rules, we believe that the disability standard in these rules is consistent with the level of severity intended by the statutory definition of disability. However, we believe that the final rules will address concerns expressed by this commenter by ensuring that children who apply for SSI benefits will have their impairments evaluated fairly and in a manner consistent with the law. We also believe that the changes clarify our rules and procedures for evaluating the eligibility of infants and toddlers by providing the same number of domains of functioning and more detailed instructions and examples for them.

Comment: Several commenters noted that the word “severe” had two different definitions under the law and that the regulations contained at least two instances where the two were used in the same sentence. They suggested that we change the regulations to minimize confusion, and provided specific language changes.

Response: We partially adopted the comments. In the final rules we revised sentences noted by one commenter that used the word “severe” twice in different contexts within the same sentence. We also replaced many of the references to “marked and severe functional limitations,” the statutory standard, with phrases indicating that our intent is listing-level severity; i.e., that the child's impairment(s) must meet, medically equal, or functionally equal the listings, avoiding the use of the word “severe.”

However, we did not adopt the comments that asked us to replace the word “severe” in step two of the sequential evaluation process for children with another term. We have used this term of art in our regulations and other instructions for evaluating disability in adults for over 20 years and for children since 1991. We believe that changing it now would be confusing.

Comment: One commenter said we should ask specific, individualized questions when requesting information from a treating source, teacher, or other individual to ensure the evidence addresses the critical issues for the particular applicant's impairment.

Response: Our operating procedures already instruct the State agencies to make requests for information as specific as possible. We revise and update our forms for requesting information to ensure that we ask for relevant information. For example, we are developing a national teacher questionnaire for teachers to report specific information about a child's functioning. The State agencies also revise their forms as necessary to reflect changes in our rules and the needs and practices of their local medical providers, schools, and other sources.

Comment: Several commenters said some children will not have resources to obtain a medical professional's opinion about the causes of their functional limitations. One commenter thought we should provide more assistance to families, especially in rural areas, to help them obtain relevant medical evidence for their disabled children. Another believed that functional limitations are self-evident, so there is no need for other expensive corroboration. One commenter expressed concern about parents of children from non-English-speaking households who lack a network of medical treating sources to provide evidence.

One commenter recommended that we emphasize that evidence other than symptoms, signs, and laboratory findings can play an extremely important role in establishing SSI eligibility. The commenter said that evidence from other qualified professionals, such as speech-language pathologists, audiologists, occupational and physical therapists, educators and early intervention specialists should be used, when appropriate, and examples of such evidence should be provided.

Response: Section 416.912(d) of our regulations has long provided that we will make every reasonable effort to help individuals, including children and their families, to get medical reports from their own medical sources and other evidence if we have their permission to do so. Section 416.914 of our rules also provides that we will pay for existing medical evidence, if there is a charge.

Under our rules in §§ 416.917 through 416.919a, we may also ask a child to go to one or more consultative examinations to get evidence we need to make a determination. There are several reasons we may ask a child to undergo a consultative examination, especially to get medical evidence when there is no medical source. When we ask a child to go to a consultative examination, we pay for the examination. We also have procedures to help people who do not speak English when they go to one.

In many cases, information we receive from schools includes medical evidence. Also, we recently revised our rules on medical evidence in § 416.913 to recognize school psychologists and speech-language pathologists as acceptable medical sources for certain kinds of impairments. (See 65 FR 34950.)

In response to these comments and others, the final rules clarify the different sources from whom we may seek evidence of a child's medical condition or functional limitations. For example, we added references to early intervention programs, preschool, and childcare. We emphasized our longstanding policy that school evidence is important information about a child's functioning, and added references to other important sources of information about functioning, such as physical, occupational, and rehabilitation therapists, who may see a child at school or elsewhere. Finally, we added cross-references to our rules on evidence to final § 416.926a(b)(3), the section on how we consider functioning.

We disagree with the commenter who thought that a child's functional limitations are always self-evident. On the contrary, these final rules recognize that children may function differently in different settings and that some serious limitations may not be obvious; for example, when a child appears to be functioning well but is in fact receiving extraordinary assistance or supervision in a structured setting. In any event, section 1614(a)(3)(H)(i) of the Act (which incorporates by reference the provisions of section 223(d)(5)(A) of the Act) and §§ 416.928(a) and 416.929 of our rules specify that we need medical evidence (signs, symptoms, and laboratory findings) to determine disability.

These provisions indicate that a claimant's statements of symptoms are not by themselves conclusive evidence of disability. We must first establish the existence of a medically determinable impairment based on evidence from acceptable medical sources. Then, the evidence we use to assess the severity of a medically determinable impairment may come from both the “acceptable medical sources” listed in § 416.913(a), and “other sources” listed in § 416.913(d)(1) (including audiologists, occupational and physical therapists, educators, and early intervention specialists). Section 416.912(b)(4) includes a cross-reference to the sources listed in § 416.913(d).

Comment: One commenter thought we should consider assessments provided by psychiatric social workers, clinical psychologists and clinical nurse specialists, as “valid and appropriate documentation” of a child's disability.

Response: We consider licensed or certified psychologists to be “acceptable medical sources” in § 416.913(a)(2) of our regulations. As we previously stated, once we find that there is a medically determinable impairment with evidence from acceptable medical sources, we consider all relevant evidence we have in the case record when we decide whether a person is disabled. This may include evidence from health care professionals such as psychiatric social workers and clinical nurse-practitioners. Evidence from these other health care professionals helps us understand how a child's impairment(s) affects his or her ability to function, even though these sources are not “acceptable medical sources” for purposes of establishing the existence of a medically determinable impairment. This decision reflects our determination that there is insufficient standardization of their qualifications among the States for us to use them as acceptable medical sources.

Comment: One commenter believed that the regulations should require school psychologists or other appropriately qualified mental health professionals, familiar with the school context and educational disabilities, to be involved in reporting information to us, because the way that observations of a child's disability are communicated could affect an eligibility determination. The commenter was concerned that the interim final rules could “marginalize[]” or exclude information from schools from the disability determination process. Similarly, another commenter requested that we amend the section on school attendance in § 416.924c(g) of the interim final rules to state that information on school functioning is always relevant and must be available.

Response: The first comment was not clear to us, possibly because the letter did not specify language in the interim final rules that the commenter believed could lead to the exclusion of information from schools and education professionals. We consider reports from school professionals to be very important evidence of a child's functioning, and we made changes to the final rules to clarify this point.

We do not require information from school professionals in all cases because sometimes we can decide that a child is disabled without it, such as when a child's impairment(s) meets the requirements of certain listings. We also cannot require school evidence in all other cases because sometimes we are unable to get it despite reasonable efforts. However, our rules require our adjudicators to try to get school records whenever they are needed to make a determination or decision regarding a child's disability.

In addition to strengthening our rules about school evidence, which we explained previously, we are taking other actions to improve the type of evidence we get from schools. As already noted, we are developing a national teacher questionnaire to improve the evidence we get from teachers and other educational professionals. We also recently issued final rules to make school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, “acceptable medical sources” in § 416.913(a) for the purpose of establishing mental retardation, learning disabilities, and borderline intellectual functioning.

Comment: Several commenters suggested that we amend the regulations to indicate that State agencies will purchase tests to assess functioning when relevant or specifically to help establish functional equivalence. Others stated that we should require State agencies to schedule consultative examinations to obtain standardized testing to measure functioning when such testing is appropriate and not available from the child's treating source. One commenter also recommended that we regularly provide guidance to the State agencies about which tests are currently available and reliable to assess functioning for different age groups.

Response: We did not adopt the comments in these final rules. We do not have general rules specifying the kinds of tests we purchase in all cases and, generally, we do not endorse particular instruments in our regulations. Many standardized tests, like IQ tests, measure a child's abilities, not functioning, and may or may not reliably predict any given child's actual functioning. In some cases, there are no standardized tests to measure functioning in particular domains or for particular age groups, nor are all test instruments widely used or available. In many cases, we do not need to purchase standardized tests of ability or functioning because the case record contains sufficient information about functioning for us to make a determination or decision.

On the other hand, we agree that standardized testing can help improve the uniformity of decisionmaking. For this reason, we stress in the final rules the need to request records from early intervention programs, preschools, and schools, which often include the results of standardized testing. However, as already noted, we repeatedly caution our adjudicators not to rely exclusively on such tests because it is critical to consider their results in the context of all other evidence in the case record.

Sections 416.917 and 416.919a of our regulations provide for State agencies to purchase appropriate consultative examinations when evidence in the case record is not sufficient for us to make a disability determination or decision. These examinations may include standardized tests to assess ability or functioning.

We believe that the general suggestion that we provide guidance to our adjudicators about tests that are currently available and reliable is a good one. We have provided such guidance in the past in subregulatory documents and will consider whether to do so in the future. However, we believe that it would not be feasible for us to regularly provide information on all available, reliable tests because there are so many of them and new ones are constantly developed. To some extent, we must rely on the professional judgment of individuals who provide evidence to us and the ability of the individuals who adjudicate or review claims to follow what is available in their local area and to know which tests are available and appropriate for particular cases.

Comment: Two commenters recommended that we clarify that if information received from a treating source, teacher, therapist, or other source is not sufficient to make a determination, adjudicators must seek additional consultation in order to make a determination based on complete and accurate information.

Response: We agree with these comments, but do not believe that any changes are needed in these final rules. Sections 416.917 and 416.919a of our regulations already provide appropriate guidance for when to purchase a consultative examination. We have, however, included cross-references to our rules on consultative examinations in final § 416.926a(b)(3) in response to these and other comments.

Comment: Several commenters thought that the rules describing a complete consultative examination should include more detail about a child's functional limitations. They suggested adding a cross-reference to the areas of functioning for each age group, and requiring consultative examination reports to include an analysis of a child's functioning by comparison to the specific areas for the relevant age groups. They also recommended adding the appropriate cross-references to the rules on consideration of age (§ 416.924a of the interim final rules), functioning (§  416.924b), other factors (§ 416.924c), and symptoms, including pain (§ 416.929).

Response: As explained above in the summary of the changes, we adopted most of these comments by adding cross-references throughout the final rules. In addition, we revised §§ 416.913(c)(3) and 416.919n(c)(6), our rules on the content of medical reports and reports of consultative examinations, to reflect the new domain names in final § 416.926a.

Comment: One commenter suggested that we revise the sequential evaluation process for children by separating the third step of the process (meets, medically equals, functionally equals) into three parts. The commenter thought that this would help ensure that adjudicators will apply each aspect of the third step before denying a claim.

Response: We did not adopt the comment. We believe that adjudicators properly understand and apply the current three-step sequential evaluation process. However, we made a number of changes to clarify and improve § 416.924, as we explained in the summary of changes earlier in this preamble.

Comment: A few commenters thought that we should require all adjudicators, including administrative law judges and administrative appeals judges on the Appeals Council, to explain their findings using our Form SSA-538, the Childhood Disability Evaluation Form. Others thought that we should include the form in the text of the rules or make the form widely available to the public, including members of the medical community, by publishing the form in the Federal Register or posting it on our Internet site. Others suggested specific revisions to the form, such as adding cross-references to various rules to the form.

Response: We did not adopt the comments.

As we discussed in the preamble to the interim final rules (62 FR at 6412), our decision not to require administrative law judges or administrative appeals judges on the Appeals Council (when the Appeals Council issues a decision) to complete the form was based on the fact that these adjudicators issue decisions with detailed rationales and findings that explain how they apply the three steps of the sequential evaluation process for each child. Administrative law judge and Appeals Council decisions are quite different in form from most determinations prepared by a State agency because they include a more detailed explanation of the findings and conclusions, supported by a narrative rationale.

Consequently, requiring administrative law judges and administrative appeals judges to complete Form SSA-538 and append it to their decisions would only repeat information that is already contained in their decisions. This policy parallels what is done for adult disability claims, for which we do not require these adjudicators to complete or attach to their decisions residual functional capacity assessment forms. However, the final rules do not prohibit the use of Form SSA-538 at the hearings or appeals levels as a checklist or to help organize information in the record.

We did not require disability hearing officers in the State agencies to complete the form because they also provide detailed rationales on a special form that replicates information on Form SSA-538. However, we plan to issue a new form for disability hearing officers to use in childhood disability cases that will be specific to these final rules.

Although our forms are widely available to the public in our local offices, we do not include the text of any of our forms in our rules because they are not part of our substantive rules. Moreover, including Form SSA-538 in the rules would codify it and unnecessarily limit our flexibility to change it as needed without undertaking rulemaking proceedings.

However, we agree with commenters who recommended that we revise the form. We are revising the form to be consistent with the changes in the final rules, and plan to have it ready by the time these rules go into effect. When we revise the form, we will consider ways in which we can ensure that it continues to be made available to the public, including the suggestions from the commenters.

Comment: One commenter objected to the following statement in § 416.924b(b)(3): “Ordinarily, activities of daily living are most important as indicators of functional limitations in children aged 3 to attainment of age 16, although they may be used to evaluate children younger than age 3.” The commenter believed this statement ignores the importance of considering school functioning and social relationships.

Response: We agree that the statement could have been confusing. For this and other reasons described earlier in this preamble, we deleted the provision and all the terms previously defined in § 416.924b, including “activities of daily living.”

Comment: Several commenters recommended that we provide more specific guidance to adjudicators about how to consider “other factors” when evaluating disability. Some suggested that we link the “other factors” rules specifically to those for functional equivalence either by cross-references or by citing the areas of functioning affected by “other factors” considerations. A number of commenters recommended that we incorporate more detailed guidance from our operating instructions on “other factors” into the regulations. These commenters recommended that we clarify that:

• Structured settings or other highly supportive environments may appear to improve a child's functioning when the child's impairment(s) results in functional limitations outside the setting;

• A child may appear less impaired on a single examination than the evidence over time may show; and that

• Treatment may cause side effects that result in functional limitations.

Response: We adopted the substance of all of these comments, although we did not necessarily duplicate text from our prior operating manual sections. As explained above in the summary of the changes, we significantly improved the “other factors” section of the rules. See final § 416.924a, “Considerations in determining disability for children.” We believe it is now a more comprehensive rule that expands and clarifies our guidance for considering the various individual factors, including some that are addressed in these comments. Provisions of the final rules that address specific factors mentioned in the comments are found in final § 416.924a(b)(5) (structured and supportive settings), new § 416.924a(b)(6) (one-time examinations, such as consultative examinations), and § 416.924a(b)(9) (medication and other kinds of treatment).

Comment: One commenter suggested that we explain that other factors could increase the severity of a limitation in a specific area. This commenter noted that the presence of a significant “other factor” should allow an adjudicator to find a greater degree of limitation than would exist without consideration of the factor(s). The commenter provided an example of a child who has a moderate limitation and uses an assistive device. The commenter believed that such a child should be found to have a marked limitation.

Response: We clarified the rules in response to this and other comments, but not in the specific way recommended. The purpose of the section on “Other factors” in the interim final rules was to provide guidance about some of the factors we consider when we evaluate a child's functional limitations, in addition to the objective medical findings and the child's symptoms. They are not additional factors to apply after we evaluate functioning, but are an integral part of the functional analysis. In response to this and other comments, we clarified all of the “other factors” rules in final § 416.924a and clarified in final § 416.926a that, at the functional equivalence step, we first look at a child's functional limitations in any domain that is affected.

We do not agree with the commenter's example, but it is to some extent addressed by several of the final provisions, especially final § 416.924a(b)(5). In that section, we explain that when we rate a child's functioning we consider the amount of extra help or adaptation the child may need to function as well as he or she does compared to other children of the same age who do not have impairments. Thus, we consider the need for an adaptation when we consider how seriously a child's functioning is limited.

However, that does not mean that we automatically presume that a child with an unspecified “moderate limitation in motor functioning” has a “marked” limitation merely because he or she uses an adaptive device. Apart from the fact that these rules do not define a “moderate” limitation, the example was too nonspecific. As we explain in final § 416.924a(b)(5), we consider how well a child functions by examining how independently the child is able to initiate, sustain, and complete his or her activities despite his or her impairment(s), compared to children of the same age who do not have impairments. We also clarify in these final rules our longstanding policy that we consider each child's impairment(s) and the functional limitations that result from it in any and all of the affected domains.

Comment: A number of commenters recommended that we include in the list of other factors the “risk factors” that were proposed by some of the individual experts who gave us information to help us formulate the childhood disability regulations in 1991. Some commenters suggested that applicable “risk factors” would include: biological factors (e.g., malnutrition, anemia and recurrent infections); factors related to health care (e.g., less than optimal treatment availability); a history of abuse and neglect; multiple foster home placements; separation from family; and “toxic environment.” The commenters recommended these risk factors because they believed they are objectively observable and are considered indispensable by the professional communities when evaluating pediatric impairments.

Response: We did not adopt the comments that asked us to include specific “risk factors,” although we expanded the list of factors in final § 416.924a that we will consider when evaluating a child's functioning. We also revised the areas of functioning to consider more specifically physical effects of impairments when we decide functional equivalence.

We addressed the issue of “risk factors” extensively in earlier versions of the childhood disability rules. We first addressed the issue in 1991 when we published regulations in response to the Zebley decision (56 FR 5534, 5551 (1991)). We received a number of identical public comments in response to those rules and again addressed the issue when we published revised rules in 1993 (58 FR 47532, 47552, 47575 (1993)). As we made clear in those earlier rules, we do consider what the commenters called “risk factors” to the extent that they affect a child's medical status and functioning. However, some of the other factors recommended by the commenters are not relevant to a determination of disability. Interested readers may read a more extensive discussion of our reasons for not adopting this comment in those earlier publications.

Comment: One commenter suggested that we strengthen the language regarding periods of remission because with medication, intervention, and therapy, many children experience periods of adequate functioning and require more intensive treatment and intervention only during periods of deterioration. The commenter believed that a period of 12 “contiguous” months of disability may not be appropriate for such children, and that the variation in the expression of “severe mental impairment” is not adequately addressed in the regulations and may lead to some children being inappropriately disqualified.

Response: We adopted the comment by clarifying how we evaluate chronic impairments, especially in final § 416.924(b)(8), where we added new sentences to address the comment. We explain in that section that we recognize that when a child has a chronic impairment(s), his or her functioning may vary considerably over time and that we need to take into account the child's ability to function over time. This means that we will take into account any variation in a child's level of functioning to determine the impact of a chronic illness on his or her ability to function.

However, we do not agree with the suggestion that a child with a chronic impairment should not have to show disability over a continuous period of 12 months. The Act requires that a child be disabled for a continuous period of 12 months (or be expected to be disabled for a continuous period of 12 months), unless the impairment is expected to result in death.

Comment: Several commenters recommended that we clarify this section to ensure that adjudicators will consider all relevant evidence, not just symptoms, signs and laboratory findings, when we make a finding regarding medical equivalence.

Response: We agree with the commenters' concerns that the regulation could be misinterpreted. Our policy is that the phrase “medical evidence only” in § 416.926(b) excludes consideration of only the vocational factors of age, education, and work experience. Other than these vocational factors, in accordance with § 416.926(a), we consider all relevant evidence in the case record when we make a finding regarding medical equivalence.

This issue was raised in the decision in Hickman v. Apfel, 187 F.3d 683 (7th Cir. 1999). In Hickman, the Court of Appeals interpreted our language in § 416.926(b) to preclude an adjudicator from relying on evidence other than evidence from a medical source when making a finding regarding medical equivalence. The Hickman decision differs from our national policy by requiring adjudicators to consider only a narrow definition of medical evidence, that is, evidence from medical sources, in determining medical equivalence and not permitting the use of other relevant evidence. In contrast, we interpret “medical evidence” broadly, to include not just objective test results or other findings reported by medical sources, but other information about an individual's medical conditions and their effects, including the individual's own description of his or her impairments. Thus, the Court's decision that medical equivalence is decided based solely on evidence from medical sources interprets the “medical evidence only” language of the regulation more narrowly than we intend.

On May 3, 2000, we published an acquiescence ruling, AR 00-2(7), for the Hickman decision (65 FR 25783). As we noted in that acquiescence ruling, we intend to clarify the regulations at issue in Hickman through the rulemaking process (65 FR at 25785). The concerns raised by the commenters here were focused on the title XVI regulations, the regulations for SSI benefits. We believe, however, that similar concerns apply to our regulations under title II of the Act, the regulations for Social Security Disability Insurance benefits, 20 CFR 404.1526. Since clarifying the title II regulations would be outside the scope of this rulemaking proceeding, we intend to consider the commenters' concerns on this issue when we clarify the regulations in response to Hickman.

Comment: A few commenters suggested that we provide examples of impairments that we consider to be medically equivalent to a listed impairment, as we did for functional equivalence in § 416.926a(d) of the interim final rules. The commenters believed that such examples would be useful to adjudicators. One commenter believed that the examples should clarify how a child can establish medical equivalence when the impairment is in the listings, but the child is either missing a criterion of a listing or presents with a listed criterion but at a level less severe than required by the listing.

Response: We did not adopt the comment because it is outside the scope of this rulemaking process. We will consider the suggestions, and if we decide to adopt them will issue an appropriate notice of proposed rulemaking in the Federal Register.

Comment: A number of commenters thought that the functional equivalence policy was too complicated or vague. These commenters asserted that adjudicators would be unable to apply the policy consistently and meaningfully, and would improperly deny applications when they were in doubt about how to apply the rules. Other commenters said the regulation did not provide a workable framework for determining whether one or more impairments functionally equal a listed impairment.

The commenters made various suggestions. Some commenters wanted us to provide additional information, examples, and guidance about how to apply each functional equivalence method, or to specifically instruct adjudicators to apply the policy. Others suggested that we simplify the policy, because it was too difficult for adjudicators and the public to determine which listings had “disabling functional limitations” among their criteria. One commenter suggested that we include a section-by-section guide of the functional consequences contained in the listings because the list of impairments is very long and complicated. One commenter recommended that we incorporate in the regulations more detailed and specific explanations, definitions, and examples to help clarify the process for establishing functional equivalence.

Some commenters recommended that we delink the functional equivalence policy from the listings. One commenter recommended that we adopt one simple, easily understood method for determining functional equivalence rather than four methods.

Response: As noted in the summary of changes, we made a number of changes in response to these comments. We simplified the process for determining functional equivalence to a single method, delinked it from explicit reference to the listings, and provided more guidance throughout the final rules, including in § 416.926a. We clarified and expanded the definitions of “marked” and “extreme” limitations. In all but one case (health and physical well-being), we provided within each domain descriptions of typical functioning of children who do not have impairments, broken out by age group. For all six domains, we also provided examples of limitations.

We do not agree with those commenters who thought that adjudicators might have improperly denied applications when in doubt about how to apply the functional equivalence provision. However, we recognize that these comments were made when the interim final rules were published in 1997, when some people were worried about this possibility. These comments were submitted before we began the corrective actions described earlier, including the Commissioner's top-to-bottom review and extensive adjudicator training to ensure proper application of the rules.

We do not agree that we need to specifically instruct adjudicators to apply the functional equivalence provision, as some commenters recommended. The regulations provide a sequential evaluation process for childhood disability claims in § 416.924, and they discuss the determination process at step three in detail in §§ 416.924a through 416.926a. We believe that these regulations make clear that if a child's impairment(s) is severe and does not meet or medically equal the requirements of a listing, the adjudicator must evaluate whether the child's impairment or combination of impairments functionally equals the listings.

Comment: Some commenters said the interim final rules did not adequately define what constitutes a “marked” or an “extreme” limitation and that this could result in incorrect and inconsistent determinations and decisions. In addition, some commenters recommended that case illustrations of impairments that interfere seriously with a child's functioning, and thus result in a “marked” limitation, should be included in the regulations.

A few commenters thought the definition of an “extreme” limitation was internally inconsistent. These commenters noted that the definition of an “extreme” limitation for children from birth to the attainment of age 3 was one resulting in functioning at less than one-half chronological age. In contrast, the definition for children from age 3 to the attainment of age 18 was “no meaningful function in a given area.” These commenters pointed out that a child functioning at less than one-half of chronological age may be less impaired than one with no meaningful function in a given area.

Response: As noted in the summary of the changes and responses above, we clarified and expanded our definitions of the terms “marked” and “extreme” in response to these comments. However, we did not include examples or case illustrations of impairments that result in “marked” or “extreme” limitations. As we clarify throughout these rules, any physical or mental impairment or combination of impairments may result in a marked or extreme limitation in one or more domains if it causes sufficiently serious functional limitations. Also, to properly provide examples of functional limitations that satisfy the definitions of the terms would have required far too many examples to cover each of the six domains and five age categories, as well as physical and mental impairments and combinations of impairments.

We agreed with the commenter who observed that people might misunderstand what we intended by “no meaningful function” in our definition of “extreme.” In response, we deleted the phrase. In its place, we now explain in the final rules that, although we use “extreme” to rate the worst limitations, it does not necessarily mean a total lack or loss of ability to function. Our intention is to parallel the definition of a “marked” limitation as the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. Therefore, we define “extreme” limitation as the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

Comment: Many commenters referred to the provisions of § 416.926a(c)(3) of the interim final rules defining “marked” limitation to mean a valid score that is two standard deviations or more below the norm for the test, but less than three standard deviations. Most noted that no test is exact, and that all tests include a measure of uncertainty called the “standard error of measurement” (the SEM), which they urged us to recognize.

Some commenters believed that we should establish rules to provide that a child's impairment(s) meets or equals the requirements of a listing when the child's test scores are within one, or even two, SEMs for the particular test or protocol. Others referred to specific tests, such as the Wechsler Intelligence Scale for Children—Third Edition, and noted that a child who had a score of 70 on that test, plus or minus two SEMs, should be found to have a marked limitation of cognitive functioning. The commenters asserted that many children will be unfairly denied benefits unless the rules recognize the concept of the SEM.

Response: In response to these comments, we clarified our rules on how we consider test scores in final §§ 416.924a(a)(1) and 416.926a(e)(4). However, we did not adopt the comments that asked us to refer explicitly to the SEM in our rules. We also did not adopt the comments that said we should accept as meeting a test criterion in the listings or satisfying the definition of “marked” or “extreme” any test score that was within one or two SEMs above the requirements in these final rules and other regulations.

As noted in our summary of the changes, we agree that all test scores are less than perfectly reliable. Professionals use the SEM to estimate how reliable any given score may be as a measurement of a child's ability in the area being tested. For example, one can reasonably conclude that 68 percent of the time a child's score on an IQ test with an SEM of 5 will fall within a band of 10 points (plus or minus one SEM) of the score that was actually obtained; e.g., 67 to 77 with a score of 72 and an SEM of 5. Ninety-five percent of the time a child's score on an IQ test with an SEM of 5 will fall within a band of 20 points (plus or minus two SEMs) of the score that was actually obtained; e.g., 62 to 82 with a score of 72 and an SEM of 5. This means that a child who scores a 75 on an IQ test with an SEM of 5 has a 95 percent chance of having a “true” ability that would be shown by a score somewhere between 65 and 85.

Therefore, it would be incorrect, as many of the commenters suggested, to assume that an IQ (or other test score) of 74 or 75 with an SEM of 5 “includes” an IQ of 70. It would also be wrong both scientifically and as a matter of public policy for us to issue a rule that requires our adjudicators to apply only the “minus” half of the “plus or minus” consideration that the SEM requires.

The final rules include two important principles we have taught our adjudicators over the years. First, no test score can be considered in isolation from all of the other information about a child's abilities and actual functioning. Second, it is primarily the responsibility of the person who administered the test to decide whether it reliably measures a child's abilities. The final rules also incorporate specific requirements for our adjudicators when they do not believe that a test score accurately indicates a child's abilities. We believe that these changes address the major concerns of the commenters.

Comment: Several commenters expressed concern about how the definitions of “marked” and “extreme” that are based on a developmental quotient apply to the evaluation of children from birth to attainment of age 3. One letter (from a group of medical professionals) pointed out that the standard becomes progressively stricter for older children within this age range. For example, the letter noted that under the rules a child has an “extreme” limitation when he or she is functioning at one-half of his or her chronological age in a domain. Therefore, a 1-year-old child would meet the standard by being 6 months behind, while a 3-year-old would need to be delayed 18 months. As a result, the 3-year-old would have to demonstrate a more serious limitation by functioning at a level appropriate to a child 11/2 years old.

The letter suggested that we evaluate children from birth to age 3 based on three age categories (birth to 12 months, 13 to 24 months, and 25 to 36 months) and suggested new definitions for our terms to fit the three proposed categories. Another commenter recommended that the criteria used to define and describe “marked” and “extreme” should be used as guidelines rather than standards, since there is no objective way to evaluate accurately whether a child has reached a level of functioning that is characteristic of one-half (versus two-thirds) of his or her chronological age.

Response: We revised the rules in response to these comments but did not adopt the specific suggestions.

We used a developmental quotient in the interim final rules as an approximation for when we do not have standard scores in the case record. To make this clear in response to the comments, we revised the definitions of “marked” and “extreme” to indicate that in this age range we will base our findings on developmental quotients only when there are no standard scores from standardized tests in the case record.

We did not agree with the proposal to divide the birth to age 3 range into three separate ranges because we believe that at these early ages our single rule yields a sufficiently accurate estimate. We also expect that the older children in this range will have more standardized testing in their case records and that we will not have to use the developmental quotient alternative as often as for the very youngest children.

In response to the commenter who thought that the definitions of “marked” and “extreme” should not be strict standards, we explain throughout the final rules that we must consider all relevant information in a child's case record to determine whether the totality of the information indicates that a child has a “marked” or an “extreme” limitation. That is why we provide alternative definitions for the terms.

Comment: A number of commenters urged us to separate the cognitive/communicative area of functioning into two separate domains. Some noted that neurological disorders or brain injuries can affect cognition and communication differently, because the two functions involve separate areas of the brain and impairments may affect each area differently. Some commenters stated that communication warranted a separate domain because no other facet of human behavior has such a direct impact on daily life: it is the foundation for acquiring many other skills and for adapting to other impairments. They asserted that from a clinical perspective, a child with mental retardation and a “moderate to severe” limitation in communication is extremely disabled, and would have minimal ability to compensate for functional limitations by using assistive technology.

Response: The new domains respond to these concerns. Communication comprises both language and speech, and language serves two purposes: it enables us to think and to communicate. Although the ability to think and the ability to use language may be affected differently by brain injuries and disorders, language ability is inherent in verbal reasoning or thinking in normal human functioning. This makes it necessary to consider thought and some aspects of language in a single domain. The new domain of Acquiring and Using Information recognizes that a child uses language to learn (acquire information) and to think (use information).

Language also enables us to communicate with words, and the use of both verbal and nonverbal communication skills in social contexts (called the pragmatics of language) is an essential aspect of social functioning. The new domain of Interacting and Relating With Others recognizes that a child uses language to play with friends, to interact with peers and adults at school, and to relate to family members and other children. This domain also recognizes that, since limitations in speech (articulation, voice, and fluency) can interfere with a child's oral communication skills at home, at school, or in the community, it can affect how the child interacts with and relates to other people.

Finally, a child with mental retardation may have difficulty in using language to learn or to interact and relate with others that is not a function of intellectual ability but, rather, is a separate impairment that causes an additional, significant limitation of functioning. This situation is recognized by, and evaluated under, listings 112.05D and F. However, any child who must use assistive technology to communicate, even one who does not have mental retardation, would likely have an impairment that meets or medically equals a listing.

Comment: Several commenters recommended that we provide areas of functioning for children with physical impairments such as respiratory and digestive disorders. They thought that the addition of other areas of functioning was needed to address associated problems such as lack of endurance, frequency of infections, and recovery time after multiple procedures. One commenter recommended that we divide the motor area of functioning into separate areas for fine and gross motor skills, because the field of child development regards them as distinct and different.

Response: We adopted the first comment with the new domain Health and Physical Well-Being, which addresses the cumulative physical manifestations of physical or mental impairments and the effects of their associated treatments or therapies on a child's functioning. We did not adopt the second comment because we believe that the domain of Moving About and Manipulating Objects is sufficiently described to make clear that fine and gross motor skills are different, but also that they work together in some aspects of a child's functioning.

Comment: A number of commenters recommended that we add more domains for children from age 1 to the attainment of age 3. Some thought that having only three areas of functioning for children in this age range meant that the child would have to show a “pervasive” impairment of functioning, in a manner contrary to the statute. Many commenters recommended that we apply the domains of personal functioning and concentration, persistence, or pace, to children in that age group.

Response: We adopted these comments by revising the domains. As we have already noted, all six new domains apply to children in every age group.

Comment: One commenter thought that restricting the domain in the interim final rules we called “Responsiveness to Stimuli” to children from birth to age 1 ignored the impact of severe sensory deficits on the functional capability of children older than 1 year.

Response: We adopted the comment. Sensory functions spread across virtually all of the domains for all ages, and sensory deficits or hypersensitivities can affect a wide range of a child's activities. In the final rules, we incorporated the principle of “responsiveness to stimuli” in the domain of Attending and Completing Tasks, which is applicable to children in all age groups. This domain addresses the child's capacity to respond appropriately to all kinds of stimuli, as well as its evolution into the capacity to attend appropriately to stimuli in all activities and settings. We also recognize more broadly, however, that limitations in sensory functioning may also affect a child in any of the domains.

Comment: Several commenters recommended that we add cross-references in § 416.926a to adequately integrate into the functional equivalence determination the need for consideration of a child's age, functioning, other factors, and pain and other symptoms. They provided specific language for a new subparagraph for § 416.926a that would include only cross-references.

Response: We adopted these comments, but did not introduce a separate paragraph of cross-references. Instead, where appropriate, we included cross-references throughout final §§ 416.924a and 416.926a. As we noted in the summary of changes, we also made a number of changes to give the “other factors” provisions greater prominence and to make them more comprehensive and easier to understand.

Comment: One commenter asked us to clarify the provision on the “combined effects of limitations due to ongoing treatment” in § 416.926a(b)(4) of the interim final rules. This commenter stated that the language in the regulations is not very relevant to children who have a serious emotional disturbance, such as a child who is placed in a self-contained classroom or in day treatment.

Response: We believe that the commenter was concerned that a child in a structured or supportive setting would not be functioning as well outside of this special environment. In final § 416.924a(b)(5), we clarified our longstanding rules on how we consider the effects of structured or supportive settings on children. We agree that such children may be more limited in their functioning than their symptoms and signs in the structured setting would indicate. Like the interim final rules, the final rules provide that we will also consider the child's functioning outside of the structured or supportive setting.

Comment: A number of commenters expressed concerns about the 12 examples of functional equivalence in § 416.926a(d) of the interim final rules. The primary concern was that adjudicators may rely solely on the list and not recognize that other impairments may also functionally equal a listing. They suggested that we emphasize and reinforce through training and written instructions that the list is not exhaustive, that we update the list as more rare syndromes or disorders are identified, and that we explain why these particular examples functionally equal the listings. One commenter asked us to eliminate the age limit for example 12, gastrostomy in a child who has not attained age 3.

Response: We did not adopt the comments. We received the same comments in response to the 1991 childhood disability regulations. In the 1993 regulations, we added language to emphasize that “the examples do not describe all the possible effects of impairments that might establish equivalence to a listed impairment.” In the preamble to the 1993 regulations, we explained why we did not adopt comments suggesting that we add rationales to some or all of the examples to provide more insight into their intent, and that we state the particular listings that are equaled in the various examples (58 FR at 47564). Those explanations are applicable to the current comments as well.

However, as already noted in our explanation of the final rules, we did delete examples 5 and 10 because of other changes we made; i.e., the new domains and the delinking of the functional equivalence policy from specific listings.

Comment: One commenter disagreed with the provision that requires us to redetermine the eligibility of SSI recipients who attain age 18 using the adult standard, required in section 1614(a)(3)(H)(iii) of the Act. This provision also requires that we do not consider the medical improvement review standard that applies in continuing disability reviews of adult and children. The commenter questioned the fairness of applying the criteria for new applicants, rather than the medical improvement review standard, when a child reaches age 18.

Response: We did not adopt the comment. Section 1614(a)(3)(H)(iii) of the Act states that when we perform an age-18 disability redetermination under this provision, “paragraph (4)” (i.e., section 1614(a)(4) of the Act) “shall not apply.” Section 1614(a)(4) of the Act sets out the medical improvement review standard that we use when we perform CDRs. In light of the plain language of the statute, we have no discretion to apply the medical improvement review standard to age-18 disability redeterminations.

Comment: One commenter recommended that we provide a cross-reference in this section to § 416.924a(b) and provide that the corrected chronological age be used as the “trigger date” for a CDR.

Response: We did not adopt the comment, but revised this section to reflect a change in the law made in 1997 that addresses the commenter's concerns. As noted in the supplementary information section of this preamble, section 5522(a)(2) of the Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 622, amended section 1614(a)(3)(H)(iv) of the Act, which required us to conduct a CDR at age 1 for children for whom low birth weight is a contributing factor material to the determination of disability. This revision allows us to schedule a CDR later than age 1 for a low birth weight child if, at the time we make the initial disability determination, we determine that the child's impairment(s) is not expected to improve within 12 months after birth.

We believe that the statutory change now reflected in final § 416.990(b)(11) addresses the commenter's concerns by providing us with greater flexibility in scheduling CDRs for these cases.

Comment: One commenter had several concerns about § 416.994a(e), which describes the limited situations in which disability can be found to have ended even though medical improvement has not occurred. The commenter believed that each “exception” appeared to be our attempt to “circumvent [our] legal burden to show that a recipient's impairment has medically improved.” The commenter asserted that the statement in the regulation that there can be a lessening or absence of functional limitations without any decrease in the severity of the underlying impairment was, “on its face, absurd.” The commenter thought that if there has been no medically determinable improvement in the underlying impairment, by definition, the resulting functional limitations cannot have changed. The commenter further stated that the second exception, in which the claimant never should have been found disabled, was an “illegal” reopening and revision of our previous final determination or decision.

Response: The first sentence of § 416.994a(e) explains that “[t]he law provides certain limited situations when [a child's] disability can be found to have ended even though medical improvement has not occurred.” The provisions in this regulation section are required by, and consistent with, section 1614(a)(4)(B) and (C) of the Act.

The commenter's second assertion was unclear. There is no statement in § 416.994a(e) or elsewhere in § 416.994a that there can be “a lessening or absence of functional limitations without any decrease in the severity of the underlying impairment.”

The commenter also seems to have misunderstood the intent of the provisions in §§ 416.1487 through 416.1493 of our regulations. Those provisions allow us to reopen and revise determinations and decisions so that we can change the original determination or decision retroactively. The provisions in § 416.994a(e) generally do not affect a child's eligibility in prior months the way a reopening would. They simply provide a basis in certain rare instances for ceasing eligibility when there has not been medical improvement. In such cases, we find that disability ends in the month specified by the provisions of § 416.994a(g), usually not earlier than the month in which we mail the child and his or her family a notice saying that the information we have shows that the child is not disabled.

Comment: One commenter expressed concern that the medical improvement rules seem to “reward” children who receive higher levels of service. The commenter pointed out that children who are severely emotionally disturbed are at particular risk of having their benefits ceased because, given the short-term nature of mental health services, problems may improve and services may be terminated before the problem is addressed.

Response: As we have long indicated in § 416.994a(c)(3), we do consider the fact that some impairments are subject to temporary remissions, which can give the appearance of medical improvement when in fact there has been none. This section further explains that, with these kinds of impairments, we will consider the longitudinal history of the impairment, including the occurrence of prior remissions or the prospect for a future worsening of the impairment when we decide whether there has been medical improvement. Even if there has been medical improvement, however, this does not necessarily mean that a child's benefits will cease. We must still determine whether the child is currently disabled despite medical improvement.

Comment: One commenter asked us to include psychiatric management with medical management in § 416.994a(i)(2)(i) instead of grouping it with psychological and psychosocial counseling in § 416.994a(i)(2)(ii). The commenter noted that psychiatric patient management includes medication management as well as other medical evaluation and management services.

Response: We adopted the comment by deleting the word “psychiatric” from § 416.994a(i)(1)(ii).

Comment: Several commenters expressed concern about how we would interpret the requirement to show “treatment that is medically necessary and available.” They recommended that we provide examples and guidance to ensure that the provision is applied consistently. One commenter noted that the concept of “medical necessity” is very controversial within Medicaid managed care programs for children with special health care needs. The commenter recommended that we change the wording in § 416.994a(i)(1) from “improve and [sic] restore” to “maintain or restore” and provide examples of treatment that would be considered medically necessary under this provision.

Response: These comments were submitted before we implemented the treatment requirement of the law. Since that time, we have issued very detailed operating instructions that address the concerns the commenters raised.

The comment regarding “medical maintenance” raises a point that is more germane to access to medical care than to the purpose of the treatment provision. We did not adopt the suggested wording change because we believe that the original wording better reflects the intent of the law. We also did not adopt the suggestion that we add examples of treatment that we consider medically necessary because the appropriate and available level and type of treatment will vary for each child.

Comment: One commenter asked if school-based behavioral or mental health interventions are considered evidence that a representative payee must present to show the child is and has been receiving treatment considered medically necessary and available. If so, the commenter recommended that we clarify this section to include school-based interventions.

Response: Although we may consider school-based treatment to be treatment that is “medically necessary and available,” we did not adopt the comment. Children may receive medical management, psychological or psychosocial counseling, and various kinds of therapy in a school setting. To that extent, we would consider that a payee has satisfied the requirement for showing that the child is receiving the appropriate treatment under the examples we provided in the interim final rules, as modified by these final rules. However, we do not want to give the impression that everything a child may do in school can be a requirement under this section, which we believe would be too much of a burden on families and would go beyond the intent of the statute. Therefore, we chose not to single out therapy received in a school setting in the final rules.

Comment: Several commenters expressed disagreement with the statute itself. One believed the law appeared to be an attempt to “get around” the Supreme Court's 1990 decision in Zebley and wondered how the Court would rule on this new law.

Response: The issue the Supreme Court addressed in Zebley was whether we had correctly interpreted the prior statutory standard of “comparable severity.” Nothing in the Zebley decision, however, precluded Congress from revising the definition of disability for children.

A Supreme Court decision construing a statute does not freeze the law and preclude Congress from later amending the statute, as the commenter seemed to assume. Indeed, the Supreme Court has recognized that “Congress frequently ‘responds’ to judicial decisions construing statutes, and does so for a variety of reasons,” and noted that according to one commentator, between 1967 and 1990, Congress “overrode” Supreme Court decisions at an average of 10 per Congress. Rivers v. Roadway Express, Inc., 511 U.S. 298, 305 n.5 (1994) (citing Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. 331, 338 (1991)).

Comment: One commenter noted that the rules appeared too cumbersome and complex, used too many legal words, and needed to be simplified and structured to be more user-friendly. Another thought that the complex language and the structure of the regulations were inconsistent with the “plain language” goal and simplification efforts of the Agency. This commenter also believed the rules in general lacked basic clarity, and that we needed to eliminate the “unnecessary” differences in wording between the mental impairment listings for children and for adults.

Response: We adopted most of these comments. We revised several of the interim final rules to make them clearer and to use “plain language” as much as possible. These changes are not substantive changes from the interim final rules, only clarifications. Also, as explained earlier in this preamble, we simplified and restructured prior §§ 416.924a through 416.924c into final §§ 416.924a and 416.924b and simplified the rules on functional equivalence.

We did not adopt the comment that asked us to revise both the adult and childhood mental disorders listings to eliminate “unnecessary” differences. The only changes we made to the childhood mental disorders listings in the prior rules were to reflect changes mandated by Pub. L. 104-193. We do not have authority under the Administrative Procedure Act to make the type of extensive changes suggested by the commenters to these other rules without first proposing such changes to the public in a notice of proposed rulemaking.

Comment: A number of commenters suggested ways that we could provide information to families, advocacy groups, medical and other professionals, and State agency personnel who work on behalf of children with disabilities. The commenters made a number of suggestions for how we could do this.

Response: Although the comments did not address the prior rules, we thought that some of the ideas were very good, and have kept them in mind as we provided public information over the years since we published the prior rules. We will also consider some of the specific ideas for future use.

Comment: One commenter asked if we had consulted with members of the Federal Interagency Coordinating Council (FICC), which coordinates policy for young children with disabilities, to benefit from their expertise as we developed the rules.

Response: We are a member of and active participant in the FICC. The FICC is established under 20 U.S.C. 1444 (as amended by Pub. L. 105-17, the Individuals with Disabilities Education Act Amendments of 1997, 111 Stat. 37, 121). Among other things, the FICC ensures the effective coordination of Federal early intervention and preschool programs and policies across Federal agencies.

We agree that the FICC has a wealth of expertise on disability issues for young children. We believe our involvement with the FICC has provided us with further insight into childhood disability issues and has positively influenced our decision to make some of the changes in these final rules.

Comment: Several commenters expressed regret that we developed the regulations quickly and without consulting with child-serving professionals, especially regarding the development of age categories and the selection of tests to evaluate functional limitations. One commenter offered to participate. Another commenter said a more deliberative process that used the workgroup concept that we had employed in the past would have been a better mechanism for developing rules that will have such a significant effect on the lives of poor children.

Response: Most of the changes to the childhood disability program made by Pub. L. 104-193 were made effective on enactment, or within a short time after enactment, without regard to whether regulations had been issued to implement the provisions. In addition, section 215 of Pub. L. 104-193, 110 Stat. 2105, 2196, required us to issue regulations within 3 months after the date of enactment of the law. Since many provisions were effective without regard to whether we had issued regulations, and since Congress required timely implementation of the changes to the childhood program, we had to act quickly.

As we explained earlier in this preamble, however, we also took a number of actions, such as the “top-to-bottom” review, to ensure that we implemented the changes to the childhood disability program fairly, in a manner consistent with the law. In addition, as noted in the supplementary information section, we asked a number of individual experts for information as we formulated these final rules. We believe that our actions have addressed the commenters' concerns.

Comment: Several commenters said that we must adequately train physicians and psychologists who perform consultative examinations to assess and document all of a child's areas of functioning and development and to determine any impairment-related restrictions. Several other commenters thought we should help the medical community and psychologists by providing them with written training materials and seminars explaining the term “functional equivalence” to help them in responding to requests for information.

Response: Physicians, psychologists, and other health care professionals who perform consultative examinations are required to conduct testing in accordance with standard medical practice, including testing and evaluation of abilities or functioning in childhood cases where appropriate. Professional relations officers employed by the State agencies train consultative examiners where possible.

We also provide information to the medical community and to psychologists by distributing literature and training materials and exhibiting at numerous medical conventions each year. Our medical and psychological consultants are often available at these conventions to answer specific questions from other doctors or other attendees.

We also sponsor and present continuing medical education seminars at select medical conventions. These activities are all directed towards educating physicians, psychologists, and other professionals so that they can provide us with the evidence we need to make a decision on a claim.

Publications for health professionals are listed in the “Social Security Disability Public Information Products List.” (SSA Publication No. 64-065). This list can be ordered by calling 410-965-0945, sending a request by fax to 410-965-0696, or sending a written request to: Public Information Distribution Center, P.O. Box 17743, Baltimore, Maryland 21235-7743.

Finally, we plan to produce a new training package on SSI childhood disability for medical professionals in 2001.

Comment: Several commenters recommended that we provide uniform guidance and training at all levels of the administrative review process to emphasize the importance of using all relevant evidence in making eligibility determinations, and to ensure a consistent developmental and adjudicative outcome to the extent possible.

Response: We agreed with these comments. Administrative law judges and the Appeals Council use the regulations and SSRs when they make decisions, but State agencies, quality reviewers, and other adjudicators use the Program Operations Manual System, or POMS, which are based on and consistent with the regulations and rulings. To ensure that everyone used the same, exact instructions, we printed the text of the interim final rules verbatim in the POMS and will do the same with these final rules.

Likewise, we provided the same training to all our adjudicators when we first implemented the rules in 1997 and in training classes we conducted in 1998 in response to our findings in the top-to-bottom review. As noted earlier in this preamble, we issued manuals for two of these training classes. The training manuals went to all adjudicators at all levels of the process. We also issued SSR 98-1p in 1998 to address the evaluation of speech and cognition, and it is printed verbatim in the POMS.

Under our Process Unification initiative, these actions are not unusual or confined to childhood disability issues. For several years, we have published all of our new regulations and SSRs for adults and children verbatim in the POMS, and whenever appropriate provided uniform national training to all adjudicators.

Comment: Some commenters thought that the 1-year period for redetermining the eligibility of children who might lose eligibility because of the changes in Pub. L. 104-193 was too short. They stated that because the regulations would be difficult and time-consuming to apply, case processing time, quality, and staff commitment would be adversely affected. They were concerned that the State agencies and administrative law judges would be pressured to make up time lost during the regulatory process and be blamed for falling behind in case dispositions, resulting in hasty decisions. One commenter was concerned that the deadline would not give recipients adequate time to get information needed to show that a child meets the eligibility criteria or time to adjust to a loss of benefits resulting in reduced family income.

Response: As we noted at the beginning of this preamble, the requirement to perform the redeterminations within 1 year of enactment was a provision in Pub. L. 104-193. However, subsequent amendments to the law have largely addressed this concern. Section 5101 of Pub. L. 105-33, 111 Stat. 251, 595, extended the period from 1 year to 18 months after enactment of Pub. L. 104-193, and also provided that any redetermination not performed within that time could be performed as soon as practicable thereafter. Therefore, we had more time to do the redeterminations than the commenters assumed.

We also explained earlier in this preamble that we considered in the top-to-bottom review of the childhood disability program the concerns that the State agencies might have rushed redeterminations to meet the original August 22, 1997, deadline. We found that these concerns were largely unfounded, but we realize that the comments were sent in just after we published the interim final rules and before we had completed a significant number of redeterminations. However, we did take actions, already described, to address issues about the accuracy of some determinations. We have also explained in earlier responses the efforts we make to help families get evidence.

Comment: Several commenters were concerned about families' ability to appeal a redetermination that resulted in a finding of ineligibility and still retain Medicaid, because of the short time in which parents had to appeal adverse determinations. The commenters suggested that we and the Health Care Financing Administration (HCFA) give clear guidelines to families about when they would have to repay cash and Medicaid benefits received during the appeal period if their appeal was denied. Several commenters recommended that Medicaid coverage should be guaranteed for those children with mental, emotional, and behavioral problems who lose their eligibility.

Response: This issue also has been resolved by subsequent legislation and actions we took based on our top-to-bottom review. Section 4913 of Pub. L. 105-33, 111 Stat. 251, 573, added a provision to continue Medicaid for children who lost eligibility for SSI as a result of a redetermination under Pub. L. 104-193. In addition, we have worked closely with HCFA, the agency that administers Medicaid and is responsible for implementing this change in the law. We have periodically provided lists to the Medicaid State agencies to ensure proper identification of the children who are eligible for continued Medicaid coverage under Pub. L. 105-33.

On April 7, 2000, HCFA also sent a letter to State Medicaid directors reminding them of the effects of the changes and requiring them to take certain actions. Interested readers may see the letter at www.hcfa.gov/medicaid/smd40700.htm.

We understood the concern that our redetermination notices might have been confusing, so in 1998 we sent supplementary notices in simpler language to families (or other payees). These new notices explained that they had another chance to request a reconsideration and also gave families a new 10-day period to request benefit continuation during an appeal. We also took several actions, explained at the beginning of this preamble, to make sure that families better understood their rights to ask for waiver of any overpayment that might result from the request.

Comment: Several commenters recommended that we instruct State agencies to postpone completing cases during the summer if school records are unavailable.

Response: We did not adopt the comment. State agencies already have the authority to postpone their determination in any case until information they need is available. However, when sufficient information can be obtained from other sources to make a correct determination, it would not be in the best interest of children and families to require the State agencies to delay their determinations.

Comment: One commenter thought we should not apply the new regulations to claims that were pending on August 22, 1996, when Pub. L. 104-193 was enacted, because children had no control over the timing of determinations or decisions on their claims. This commenter suggested that we apply the regulations only to claims filed after the date of enactment.

Response: We did not adopt the comment. Section 211(d)(1)(A) of Pub. L. 104-193, 110 Stat. 2105, 2190, provided that the changes to the childhood disability standard applied to any individual “who applies for, or whose claim is finally adjudicated * * * on or after the date of the enactment of this Act.” The statute also provided that no individual's claim may be considered to be finally adjudicated before the date of enactment if, on or after August 22, 1996, there is a request pending for administrative or judicial review of a claim that has been denied in whole.

Comment: Several commenters suggested that we provide information to policymakers about the impact of the new childhood disability regulations by presenting program data and implementing a comprehensive research plan. They recommended that we track what happens to a sample of children who lose benefits as a result of the new rules. Other commenters wanted us to report annually to Congress and the public on the number of children who lost eligibility and Medicaid coverage as a result of the redetermination of their eligibility. Others urged us to make use of techniques and sources of information already used by the Department of Health and Human Services and some States in similar research programs.

Response: We maintain detailed program data on all cases affected by the revisions to the childhood disability regulations. If program data indicate experience that is unexpected, we undertake case reviews to ensure that our policies are being applied correctly. Periodically, we compile program data into a comprehensive report and share it with interested parties, such as Congressional staff, advocates, and researchers. In addition, we report overall program experience to the Congress in the Annual Report of the Supplemental Security Income Program. This report contains information on the number of applications filed, the rate of allowances, expenditures, and appellate experience for SSI children and adults.

To assess the effect of the legislative change in the definition of disability for children, we contracted with the RAND Corporation for a three-phase evaluation. The first phase was an analysis of administrative data to assess the characteristics of the children affected by the legislation. The second phase included field visits with SSA employees, State Medicaid workers, advocates, claimant representatives, and educators to assess implementation of the legislation. The final phase of the evaluation involves the longitudinal tracking of individual families to assess how the loss of the child's SSI eligibility affects the overall family and child. As noted above, Congress enacted legislation in 1997 to ensure that children whose eligibility for SSI was ceased based on a redetermination under Pub. L. 104-193 did not lose Medicaid eligibility.

Comment: One commenter addressed the special SSI status permitted for adults who begin or return to work despite their disability. The commenter referred to “§ 416.20” of our regulations and recommended that we include a comparable exception for children who may have difficulty returning to school or advancing to a more progressive class/program due to their disabling impairments.

Response: There is no § 416.20 in our regulations, but we believe the commenter may have been referring to § 416.260. That regulation, and several that follow it, explain how we implement sections 1619(a) and 1619(b) of the Act. These sections provide for a special SSI cash benefit for people who still have disabling impairments but who are working and engage in substantial gainful activity, and for continuing Medicaid eligibility for disabled individuals whose earnings are too high to receive SSI payments.

The commenter did not explain how she thought the provisions should be applied to children who may have difficulty returning to school or advancing in school. When such children have disabling impairments, they qualify for SSI as long as they meet the other eligibility requirements, including the limitations on income and resources. Without a change in the Act, we do not have the authority to disregard the income requirements as recommended by the commenter.

Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), the Social Security Administration follows the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of its regulations. The APA provides exceptions to its Notice of Proposed Rulemaking (NPRM) procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. For the reasons that follow, we have determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving the NPRM procedures with respect to the changes we are making to §§ 416.987(c) and 416.990(b)(11) to reflect the provisions of sections 5522(a)(1) and 5522(a)(2)(B) of Pub. L. 105-33, the Balanced Budget Act of 1997.

Section 5522(a)(1) of Pub. L. 105-33 amended section 1614(a)(3)(H)(iii) of the Act to provide that we will do a redetermination of the disability eligibility of children who attain age 18 “either during the 1-year period beginning on the individual's 18th birthday or, in lieu of a continuing disability review, whenever the Commissioner determines that an individual's case is subject to a redetermination under this clause.” Section 5522(a)(2)(B) amended section 1614(a)(3)(H)(iv)(VI) of the Act to provide that we do not have to do a CDR by age 1 for a child for whom low birth weight is a contributing factor material to our determination of disability if we determine at the time of our initial disability determination that the child's impairment(s) is not expected to improve by age 1 and we schedule a CDR later than age 1.

Because the language of the statutory provisions added by these amendments does not provide for any discretionary policy, we have determined that the use of notice-and-comment rulemaking procedures for the issuance of rules to reflect these statutory provisions is unnecessary. On this basis, we find that good cause exists for dispensing with such procedures. Accordingly, we find that prior notice and comment are unnecessary with respect to these specific changes made to the rules.

We have consulted with the Office of Management and Budget (OMB) and determined that these final regulations meet the criteria for a significant regulatory action under Executive Order (E.O.) 12866. Therefore, we prepared and submitted to OMB the following assessment of the potential costs and benefits of this regulatory action. We have also determined that these rules meet the plain language requirement of E.O. 12866 and the President's memorandum of June 1, 1998 (63 FR 31885).

The potential costs and benefits for the policies reflected in these final rules follow:

It is estimated that due to these final rules there would be increased program outlays resulting in the following costs (in millions of dollars) to the SSI program ($215 million Total in a 5-year period):

The U.S. Agency for International Development's registration process identifies PVOs engaged in foreign assistance operations and determines whether they meet established criteria to be eligible for resources intended for PVOs. Registration is the initial criterion of eligibility for U.S. PVOs to compete for most forms of USAID assistance. Registration is not required for organizations working under contract with USAID. The regulation at 22 CFR Part 203 was published as a final rule January 21, 1983 (48 FR 2760). After operating under the regulation for a number of years it has been determined that part 203 needs revision and clarification. Under its required procedures, the Agency has conducted a review of the PVO registration process and determined that the final rule is necessary to ensure the Agency identifies suitable, qualified PVOs for registration. The final rule will clarify the Conditions of Registration and Documentation Requirements to identify which U.S.-based PVOs are eligible for USAID resources. USAID has determined that the final rule will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132. USAID has determined also that 5 U.S.C. 553 and Executive Order 12866 are not applicable to this final rule because its subject matter involves foreign affairs functions of the United States. This final rule will have no significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act, nor does it establish any collection of information as contemplated by the Paperwork Reduction Act.

On December 31, 1980, the Secretary of the Interior conditionally approved the New Mexico program. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980, Federal Register (45 FR 86459). You can also find later actions concerning New Mexico's program and program amendments at 30 CFR 931.11, 931.15, 931.16, and 931.30.

By letter dated November 13, 1998, New Mexico sent to us an amendment (SPATS No. NM-039-FOR, administrative record No. NM-804) to its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed amendment at its own initiative and in response to required amendments at 30 CFR 931.16(o), (w), (x), (y), and (aa).

We announced receipt of the amendment in the December 3, 1998 Federal Register (63 FR 66772), provided an opportunity for a public hearing or meeting, neither was held. The public comment period ended on January 4, 1999.

During our review of the amendment, we identified concerns and notified New Mexico of the concerns by letter dated January 7, 1999 (administrative record no. NM-815). New Mexico responded in a letter dated December 1, 1999, by submitting a revised amendment and additional explanatory information (administrative record no. NM-816).

Based upon New Mexico's revisions to its amendment, we reopened the public comment period in the December 22, 1999 Federal Register (64 FR 71698, administrative record No. NM-818). The public comment period ended on January 21, 2000.

During our review of the amendment, we identified concerns and notified New Mexico of the concerns by letter dated March 27, 2000 (administrative record no. NM-827). New Mexico responded in a letter dated April 26, 2000, by submitting a revised amendment and additional explanatory information (administrative record no. NM-829).

Based upon New Mexico's revisions to its amendment, we reopened the public comment period in the June 7, 2000 Federal Register (65 FR 36101, administrative record No. NM-833). The public comment period ended on June 22, 2000.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As discussed below, we are approving the amendment.

OSM required at 30 CFR 931.16(w) that New Mexico revise 19 NMAC 8.2 107.M(1), the definition of “Material Damage,” and 19 NMAC 8.2 107.0(2), the definition of “Occupied Residential Dwelling and Associated Structures,” to add references to the performance standards pertaining to repair of subsidence-caused damages at 19 NMAC 8.2 2067, 2070, and 2072, concerning general requirements for subsidence control, rebuttable presumption of causation by subsidence, and the requirement to adjust the bond amount for subsidence. New Mexico's definitions already included a reference to 19 NMAC 8.2 2069, concerning surface owner protection. (See finding No. 5.a, 61 FR 26825 at 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 107.M(1), the definition of “Material Damage,” and 19 NMAC 8.2 107.0(2), the definition of “Occupied Residential Dwelling and Associated Structures,” to reference 19 NMAC 8.2 2067, and 2069 through 2072.

The Director finds that New Mexico has satisfied the required amendment codified at 30 CFR 931.16(w) and that New Mexico's definitions of “Material Damage” and “Occupied Residential Dwelling and Associated Structures” are as effective as the counterpart Federal definitions at 30 CFR 701.5. The Director approves proposed NMAC 8.2 107.M(1) and 19 NMAC 107.0(2) and removes the required amendment at 30 CFR 931.16(w).

OSM required at 30 CFR 931.16(y) that New Mexico revise 19 NMAC 8.2 1107, concerning improvidently issued permits, to include the violations review criteria that the Director of the New Mexico program would use to determine what specific unabated violations, delinquent penalties and fees, and ownership and control relationship applied at the time a permit was issued (See finding No. 11, 61 FR 26825, 26829, May 29, 1996).

New Mexico proposed to revise 19 NMAC 8.2 1107 to include a reference to the applicable violations review criteria contained in the preamble to the Federal rules at 54 FR 18438, 18440-18441 (April 28, 1989). The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule is as effective as the counterpart Federal regulation at 30 CFR 773.20(b)(1). Therefore, the Director approves the proposed revision at 19 NMAC 8.2 1107 and removes the required amendment at 30 CFR 931.16(y).

OSM required at 30 CFR 931.16(x) that New Mexico revise 19 NMAC 8.2 909.E(5); and 19 NMAC 2017.D, F(2)(i), (ii), and (iii), G(4) and G(5) to incorporate the design, construction, and inspection requirements pertaining to those sedimentation ponds and impoundments that meet or exceed the Class B or C criteria for dams in Technical Release No. 60 (210-VI-TR60, October 1985), i.e., the hazardous classification criteria (TR-60) published by the U.S. Department of Interior, National Resource Conservation Service. (See finding Nos. 7.a and 7.b, 61 FR 26825, 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2)(i), (ii), and (iii), G(4), and G(5) to incorporate the requirements for design, construction, and inspection of ponds, impoundments, banks, dams, and embankments that meet or exceed the Class B or C criteria of TR-60.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rules are as effective as the counterpart Federal regulations at 30 CFR 780.25(f), 816.49(a)(9)(ii)(A) and (C), 816.49(a)(11)(iv), and 816.49(a)(12) and 817.49(a)(9)(ii)(A) and (C), 817.49(a)(11)(iv), and 817.49(a)(12). Therefore, the Director approves the proposed revisions at 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5) and removes the required amendment at 30 CFR 931.16(x).

OSM required at 30 CFR 931.16(o) that New Mexico revise 19 NMAC 8.2 2065.B to provide ground cover requirements for lands to be developed for recreation and shelterbelts. (See finding No. 16(e), 58 FR 65907, 65920, December 17, 1993.)

New Mexico proposed to revise 19 NMAC 8.2 2065.B(5)(iv) to include revegetation standards for ground cover on land developed for creation and shelterbelts.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule is as effective as the counterpart Federal regulations at 30 CFR 816.116(b)(3)(iii). Therefore, the Director approves the proposed revision at 19 NMAC 8.2 2065.B(5)(iv) and removes the required amendment at 30 CFR 931.16(o).

New Mexico proposed to revise its program by adding 19 NMAC 8.2 918.D and 2071.A through D, concerning detailed plans of underground mining operations and protection from subsidence-caused damages.

New Mexico proposed, at 19 NMAC 8.2 918.D, to add provisions concerning (1) the submission of detailed plans of the underground workings, which will include maps and descriptions, as appropriate, of significant features of the underground mine, including the size, configuration, and approximate location of pillars and entries, extraction ratios, measures taken to prevent or minimize subsidence and related damage, areas of full extraction, and other information required by the regulatory authority; and (2) the opportunity for an operator to request that certain information submitted with the detailed plan be held as confidential. New Mexico's proposed rules at 19 NMAC 8.2 918.D are the same as the counterpart Federal regulations at 30 CFR as 817.121(g).

New Mexico proposed, at 19 NMAC 8.2 2071, to add provisions concerning prohibition of underground mining beneath or adjacent to public buildings and facilities; churches, schools, and hospitals; or impoundments with a storage capacity of 20 acre-feet, unless the Director of the New Mexico program finds that the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of, such features or facilities. New Mexico's proposed rules at 19 NMAC 8.2 2071 also provide that (1) if the Director of the New Mexico program determines that it is necessary to minimize the potential for material damage to the features or facilities described above or to any aquifer or body of water that serves as a significant water source for any public water supply system, the Director may limit the percentage of coal extracted; (2) if subsidence does cause material damage to these features, the Director of the New Mexico program may suspend mining under or adjacent to such features or facilities until the subsidence control plan is modified to ensure prevention of further material damage to such features or facilities; and (3) the Director of the New Mexico program will suspend underground mining activities under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments, or perennial streams, if imminent danger is found to inhabitants of the urbanized areas, cities, towns, or communities.

New Mexico's proposed rule at 19 NMAC 8.2 2071 is the same as the Federal regulations at 30 CFR 817.121 (d), (e), and (f), with the following exceptions.

The Federal regulations at 30 CFR 817.121(d) provide for protection of impoundments or bodies of water with a volume of 20 acre-feet or more. New Mexico's proposed rules at 19 NMAC 2701 provide only for protection of impoundments with a volume of 20 acre-feet or more. New Mexico explained that the State contains few bodies of water, 20 acre-feet or more, that are not man-made impoundments and that there are no naturally occurring bodies of water that are 20 acre-feet or more in the coal fields in the State. Therefore, the Director finds that New Mexico's proposed rules at 19 NMAC 8.2 2071 are as effective as the Federal regulations at 30 CFR 817.121(d).

The Federal regulations at (1) 30 CFR 817.121(d) provide for the ability of the regulatory authority to limit (prior to mining) the percentage of coal extracted in order to protect public buildings from material damage due to planned subsidence and (2) 30 CFR 817.121(e), the ability of the Director, if material damage is caused to public buildings, to suspend mining until the subsidence control plan is modified to ensure prevention of further material damage to such features. New Mexico's proposed rule at 19 NMAC 8.2 2071.C does not specifically provide for these provisions with respect to protection of public buildings. However, because New Mexico's proposed rule at 19 NMAC 8.2 2071.C prohibits mining beneath or in close proximity to any public building, the Director finds that New Mexico does have the authority to limit (prior to mining) the percentage of coal extracted in order to protect public buildings. New Mexico's proposed rules at 19 NMAC 8.2 2701 requires that New Mexico find, on the basis of the subsidence control plan, that subsidence will not cause material damage to public buildings. If material damage due to planned subsidence does occur to a public building, the operator would not be mining in accordance with the basis of finding for approval of the subsidence control plan. Therefore, the Director finds that New Mexico would have the authority to suspend mining should planned subsidence cause material damage to public buildings.

Based on the above discussion, the Director finds that New Mexico's proposed 19 NMAC 8.2 918.D and 2071 is as effective as the Federal regulations at 30 CFR 817.121 (d) through (g). Therefore, the Director approves 19 NMAC 8.2 918.D and 2071.

OSM required at 30 CFR 931.16(aa) that New Mexico revise 19 NMAC 8.2 2072 to clearly require adjustment of the bond amount when subsidence-related contamination, diminution, or interruption to a water supply occurs. (See finding No. 5.b, 61 FR 26825, 26827, May 29, 1996.)

New Mexico proposed to revise 19 NMAC 8.2 2072 to require adjustment of the bond amount when subsidence-related contamination, diminution, or interruption to a water supply occurs.

The Director finds that New Mexico has satisfied the required amendment and that New Mexico's proposed rule at 19 NMAC 8.2 2072 is as effective as the counterpart Federal regulation at 30 CFR 817.121(c)(5). Therefore, the Director approves 19 NMAC 8.2 2072 and removes the required amendment 30 CFR 931.16(aa).

We asked for public comments on the amendment (administrative record Nos. NM-807 and NM-817).

The Navajo Nation commented, by letter dated January 21, 2000 (administrative record No. 821), that it was unclear from the two December 22, 1999, Federal Register notices (64 FR 71698 and 64 FR 71700), which published OSM's receipt of three New Mexico amendments (including the amendment that is the subject of this document), that there would be an opportunity for public comment prior to OSM's decision on the amendments. The text of December 22, 1999, Federal Register notices identified the changes proposed by New Mexico, notified the public of its right to comment and/or request a public hearing or meeting, and provided for a thirty day public comment period on the proposed New Mexico amendments. The public comment period for the New Mexico amendments closed on January 21, 2000. OSM explained to the Navajo Nation, in a letter dated February 7, 2000 (administrative record No. NM-823), that OSM's published Federal Register notices, as well as OSM's distribution of the proposed amendment to interested parties (which included the Navajo Nation) by letters dated April 1, 1996, November 23, 1998, and December 15, 1999, were the vehicles by which OSM provided for a public comment period and solicited public comments.

The Director is taking no further action in response to these comments in the Navajo Nation's January 21, 2000, letter.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the New Mexico program (administrative record Nos. NM-807 and NM-817).

The U.S. Department of Agriculture, Forest Service, Southwestern Region, commented, by letter dated December 9, 1998 (administrative record No. NM-811), that it had no comments.

The U.S. Department of Army, Corps of Engineers, commented, by dated December 28, 1999 (administrative record No. NM-820), that it found the proposed changes to be satisfactory.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written agreement from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that New Mexico proposed to make in this amendment pertain to air or water quality standards. Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (administrative record Nos. NM-807 and NM-817). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. We requested comments on New Mexico's amendment from the SHPO and ACHP (administrative record Nos. 807 and 817); neither SHPO nor ACHP responded to our request.

Based on the above findings, we approve New Mexico's November 13, 1998, amendment as revised on December 1, 1999 and April 26, 2000.

We approve, as discussed in:

(1) Finding No. 1, 19 NMAC 8.2 107.M(1) and 19 NMAC 107.O(2), concerning the definitions of “Material Damage,” and “Occupied Residential Dwelling and Associated Structures;”

(2) Finding No. 2, 19 NMAC 8.2 1107, concerning improvidently issued permits;

(3) Finding No. 3, 19 NMAC 8.2 909.E(5) and 19 NMAC 2017.D, F(2), G(4), and G(5), concerning pond and impoundment design, construction, and inspection requirements; and

(4) Finding No. 4, 19 NMAC 8.2 2065.B(5)(iv), concerning ground cover requirements for lands to be developed for recreation and shelterbelts; and

(5) Finding No. 5, 19 NMAC 8.2 918.D and 2071.A through D., concerning detailed plans of underground mining and subsidence buffer zones.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 931, which codify decisions concerning the New Mexico program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage States to make their programs conform with the Federal standards. SMCRA requires consistency of State and Federal Standards.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of state regulatory programs and program amendments since each such program is drafted and promulgated by a specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject to this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relief upon the data and assumptions for the counterpart Federal regulations.

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on any local, State, or Tribal governments or private entities.

The NJTRO Lower Hack Bridge, at mile 3.4, across the Hackensack River in Jersey City, New Jersey, has a vertical clearance of 45 feet at mean high water, and 40 feet at mean low water in the closed position.

The existing operating regulations in 33 CFR 117.723(b) require the bridge to open on signal if at least one-hour advance notice is given to the drawtender at the Upper Hack Bridge, mile 6.9, at Secaucus, New Jersey. In the event the HX drawtender is at the Newark/Harrison (Morristown Line) Bridge, mile 5.8, on the Passaic River, up to an additional half hour delay is permitted.

The bridge owner, New Jersey Transit, requested a temporary deviation from the drawbridge operating regulations to facilitate mechanical repairs at the bridge.

This deviation to the operating regulations allows the owner of the NJTRO Lower Hack Bridge to keep the bridge in the closed position from 10 p.m. on Friday through 5 a.m. on Monday for four consecutive weeks as follows:

• Friday, September 8 through Monday, September 11, 2000.

• Friday, September 15 through Monday, September 18, 2000.

• Friday, September 22 through Monday, September 25, 2000.

• Friday, September 29 through Monday, October 2, 2000.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Brady Road swing span bridge across Bayou Du Large, mile 22.6, near Theriot, Terrebonne Parish, Louisiana, has a vertical clearance of 5 feet above high water in the closed-to-navigation position and unlimited clearance in the open-to-navigation position. Navigation on the waterway consists primarily of fishing vessels, and recreational craft. The Terrebonne Parish Consolidated Government requested a temporary deviation from the normal operation of the drawbridge in order to accommodate the maintenance work, involving jacking up the swing span and driving new foundation pilings to support and level the pivot pier. This maintenance is essential for the continued operation of the bridge.

This deviation allows the draw of the Brady Road swing span drawbridge across Bayou Du Large, mile 22.6, to remain closed to navigation from 6 a.m. on September 22, 2000 through 7 p.m. on October 1, 2000.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It is contrary to the public interest to publish an NPRM for an existing regulation that was published in error.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The second regulation that established the safety zone surrounding the drill boat APACHE requires immediate removal in order to limit public confusion and to protect vessels and personnel in the vicinity of the drilling and blasting operations in San Juan Harbor, Puerto Rico.

The Coast Guard established a temporary safety zone within a 1500 feet radius surrounding the drill boat Apache while it is engaged in drilling or blasting operations at the entrance of San Juan Harbor, Puerto Rico. The regulation was published in the Federal Register of July 21, 2000 (65 FR 45293). A second safety zone for the same area was published in error in the Federal Register of July 26, 2000 (65 FR 45908). To ensure the safety of personnel and to protect vessels in the vicinity of the drilling and blasting operations this temporary rule removes the second safety zone.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979), The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary as this rule removes an unnecessary regulation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub.L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 -1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

The Coast Guard has considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because immediate action is necessary to minimize potential danger to the public from large vessel traffic transiting through the recently damaged bridge.

Further, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Immediate action is necessary to minimize potential danger to the public from large vessel traffic transiting through the recently damaged bridge.

At approximately 8 p.m. on August 17, 2000, a barge collided with the west side of the fendering system of the Sanibel Island Bridge “A” span at Sanibel, Florida. The west side fender system and associated dolphins were destroyed leaving the bridge support pilings unprotected. This drawbridge connects Sanibel Island to the mainland, and spans San Carlos Bay, a waterway that provides access to the Intercoastal Waterway . Occasional barge traffic transits the waterway under this bridge. The potential risk of these transits is increased because of the recent damage and therefore all barge traffic transiting under the Sanibel Island “A” span will be limited to slack water transits only. Further, all barges shall have two tugs made fast fore and aft of the barge, respectively, each with adequate horsepower to fully maneuver the barge. Tides through the bridge occur twice daily, providing four (4) slack water periods of approximately one and one-half (1 1/2) hours per period. Repair crews have begun removal of the damaged fender and may be operating in or near the channel. The scheduled completion of repairs is approximately 90 days.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979). Vessel traffic affected by this rule can either enter the San Carlos Bay via alternate passages to the north, or schedule their transit for slack water periods.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of barges intending to transit the waterway under the bridge. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons.

This rule will be in effect for a limited time until the bridge fendering system is repaired. Further, alternate routes to the north of the Sanibel Island Bridge are available for barge traffic or barges can schedule their transit during slack water.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. The environmental analysis checklist and Categorical Exclusion Determination will be prepared after the rule takes effect and will be available in the docket for inspection or copying where indicated under ADDRESSES.

In a document published in the Federal Register on February 15, 2000 (65 FR 7467), we proposed to provide cash values for NSLI and VSLI term-capped policies and further provide the options to either receive the cash value in a lump sum or to purchase paid-up insurance upon the termination of the contract before maturity.

We received two comments. Both supported the proposed rule. Accordingly, based on the rationale set forth in the proposed rule we are adopting the proposed rule as a final rule without any changes.

The Acting Secretary of the Department of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-602. Pursuant to 5 U.S.C. 605(b), this final rule is, therefore, exempt from the initial and final regulatory flexibility analysis requirement of sections 603 and 604. The final regulation will affect only government life insurance policyholders. It will, therefore, have no significant direct impact on small entities in the terms of compliance costs, paperwork requirements, or effects on competition.

The FCC published a correction document in the Federal Register of August 25, 2000, (65 FR 51768). In that document, § 1.767(e) contained an incorrect word. On page 51769, in the first column, in § 1.767(e), in the fourth line, the word “required” is corrected to read “requested”.

This document summarizes the Second Report and Order in a rulemaking proceeding concerned with The Use of N11 Codes and Other Abbreviated Dialing Arrangements. The Commission adopted the order on July 21, 2000 and released it on August 9, 2000. The complete text of this Second Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 Twelfth Street, SW., Washington, DC The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, N.W., Washington, D.C. 20036. The document is also available via the Internet at http://www.fcc.gov/Bureaus/Common_Carrier/Orders/2000/fcc00257.doc

1. In this Second Report and Order, we take another significant step toward fulfilling the goals of Title IV of the Americans with Disabilities Act of 1990 (ADA) by requiring the nationwide implementation of access to telecommunications relay services (TRS) for persons with hearing or speech disabilities via the abbreviated dialing code 711. By October 1, 20001, all types of relay service must be available through 711 dialing in accordance with the Commission's mandatory minimum service-quality standards for TRS.

2. The Commission first promulgated rules to implement Section 225 of the ADA in 1991, and telecommunications relay services became available on a uniform, nationwide basis pursuant to those requirements in July 1993.

3. In February 1997, the Commission issued the N11 First Report and Order and Further Notice in CC Docket No. 92-105, 62 FR 8633 (February 26, 1997). Among other things, it directed Bellcore, the North American Numbering Plan (NANP) administrator at that time, to reserve 711 for nationwide access to TRS. The Commission concluded that 711 dialing would facilitate improved access to TRS in furtherance of section 225 and other provisions of the Communications Act of 1934, as amended. In the accompanying Further Notice of Proposed Rulemaking (N11 Further Notice), the Commission sought comment on whether nationwide 711 implementation was technically and economically feasible, whether the 711 number should access all types of relay service, and whether implementation could occur within three years from the date of the N11 Further Notice. In September 1999, the Commission held a public forum on 711 implementation in order to supplement and update the record in this docket with input from consumers, state relay administrators, and industry representatives.

4. The new 711 dialing arrangement will supplement existing systems in most states that require 7 or 10-digit numbers in order to initiate relay calls. TRS users will then be able to initiate a call from any telephone, anywhere in the United States, without having to remember and dial a 7 or 10-digit toll free number, and without having to obtain different numbers to access local TRS providers when traveling from state to state. 711 access will also facilitate callbacks from voice users who may be unfamiliar with relay services and be frustrated when having to place a TRS call.

5. We are satisfied that both switch-based and AIN technologies will deliver 711 access to TRS at acceptable quality levels and comport with mandatory minimum service quality requirements under the Act and our rules. We conclude that it is technically feasible to provide 711 access to TRS using either AIN or switch-based technology, and do not mandate any particular approach for 711 implementation.

6. We conclude that 711 dialing can be implemented so as to provide access to all types of relay service, while still meeting the Commission's minimum service-quality standards for TRS, including the “Speed of Answer” requirement. We still encourage the continuation of alternate, direct access numbers to reach particular types of relay services. This will enable frequent users of specific services, such as text-based TRS, voice carryover, and speech-to-speech relay to maximize call-processing efficiency. We also encourage relay providers to use caller profiling with 711 access, which allows users to designate their preferred type of relay service. This, in turn, speeds call processing by enabling TRS centers to answer calls using the appropriate mode of communication.

7. We find that, based on the record in this proceeding, it is feasible for all telecommunications carriers, including wireline, wireless, and payphone providers, to implement 711 access to TRS in accordance with Commission standards within one year, regardless of whether the carrier deploys switch-based or AIN-based technology.

8. We expect wireless carriers, relay providers, and any other relevant parties to work together to fulfill all of the requirements established in this Order, by the one-year implementation deadline, in addition to fulfilling existing requirements under our TRS rules. We note that states may need to modify their contracts with relay providers to facilitate this arrangement. We encourage the states to do so as expeditiously as possible.

9. We strongly encourage wireless carriers, relay providers, and other relevant parties to work together in an industry forum or other appropriate collaborative process to develop solutions to implement 711 access to TRS in accordance with our rules.

10. If within 4 months of the effective date of this Order, wireless carriers believe that they will not be able to resolve these implementation issues in a timely manner, we urge them, either individually or collectively, to file a report with the Commission stating that their ability to comply with the one-year deadline is in jeopardy. We also encourage relay providers to file a similar report if they deem it necessary.

11. Such a report should contain specific details of any collaborative efforts to date, including a timeline, details of the implementation issues resolved and of outstanding issues or other problems causing the jeopardy, and the names and necessary contact information for the individuals participating in any collaborative efforts. The report should estimate the impact of the problem, including anticipated delay and/or restrictions to market coverage or feature support.

12. We expect that these “jeopardy” reports will form the basis for discussions with the Commission about possible solutions to the outstanding implementation issues. If we do not receive a report of this nature, we will assume that the ability to comply with the one-year timeframe is not in jeopardy. Moreover, as we reminded carriers in the Improved TRS Order, if necessary, the Commission may consider enforcement action, including forfeitures, should carriers fail to meet their obligations regarding access to relay services.

13. We also recognize that companies providing PBX equipment to businesses and organizations will need to program their PBXs to enable 711 dialing to TRS centers from their user locations. Because many individuals work for companies and organizations that utilize PBXs, modifying PBXs to accommodate 711 dialing is essential to ensuring that all Americans have the opportunity to benefit from this abbreviated dialing arrangement.

14. Our rules provide for specific cost recovery mechanisms for costs related to relay providers' provision and maintenance of TRS, and therefore, costs that relay providers incur associated with implementation and maintenance of 711 access to TRS.

15. In contrast, there is no specific cost recovery mechanism for carrier implementation of access to TRS service, whether or not such access is accomplished via 711. Carriers bear and recover their own costs associated with providing access to TRS. Recovery of the costs associated with implementing 711 may not fall disproportionately on TRS users, as all carriers are obligated to ensure that TRS users pay rates no greater than the rates paid for functionally equivalent voice communications services. Carriers may recover education and outreach costs associated with providing access to TRS through 711 in the same manner that they recover other costs associated with implementing 711 access.

16. Wireline carriers may properly include the costs they incur in implementing 711 access to TRS with their joint and common costs and recover those costs from the rates charged for intrastate and interstate services, separated pursuant to the Commission's jurisdictional separation rules. Wireless and other carriers that are neither subject to economic rate regulation nor to the jurisdictional separations rules, may recover their costs of providing access to TRS through 711 in any lawful manner that is consistent with their obligations under 47 U.S.C. 225 (d)(1)(D) and 47 CFR 64.604(c)(4).

17. We find that some of the costs imposed upon relay providers that are associated with the implementation and operation of 711 access to TRS, and education and outreach regarding this service, are likely to be intrastate costs. For costs associated with intrastate minutes of use, we conclude that the states should establish the appropriate cost recovery mechanism as required by section 225(d)(3)(B). Thus, to the extent that the state is certified to provide TRS under section 225 (f) of the Act, the state must permit relay providers that fall under state regulatory jurisdiction to recover intrastate costs related to 711 implementation, including costs associated with education and outreach. We acknowledge that states and relay providers may need to adjust their contracts in order to allow relay providers to recover these costs. We also find, however, that a portion of these costs may be attributable to the provision of interstate TRS.

18. TRS providers shall submit the costs of providing 711 access, including the costs of education and outreach, as part of the annual data report of their total TRS operating expenses, to the interstate TRS Fund Administrator for purposes of computing payment and revenue requirements for the following year. The Fund Administrator must then consider these payment and revenue requirements when establishing the payment formula to compensate TRS providers for reasonable costs associated with 711 access to TRS, including the costs of education and outreach, as well as when determining the contributions to the fund that interstate telecommunications carriers must make.

19. We conclude that the benefits of 711 access to TRS described in this Order are too great and too immediate to warrant a delay that would result from a Commission requirement to implement presubscription or multivendoring at this time.

20. In accordance with our existing rules, we encourage carriers, states, and relay providers to implement education and outreach programs that will increase public awareness and understanding of 711 access to TRS. We encourage carriers, states, and relay providers to be aware of and target specific segments of the market that would benefit from additional information about 711 access.

21. In order to ensure the successful use of 711 access to TRS, we require carriers, in cooperation with relay providers and the states, to engage in on-going and comprehensive education and outreach programs to publicize its availability in a manner reasonably designed to reach the largest number of consumers possible. We recognize that a method that is reasonably designed to reach the largest number of consumers in one state or location may not be equally effective in another location. For that reason, we do not mandate in this Order any specific means of advertising 711 access to TRS. While carriers must continue to utilize bill inserts and provide information in telephone directories pursuant to the Commission's current TRS rules, we also encourage carriers, states, and relay providers to disseminate information through the mainstream media, including newspaper, radio, and television advertisements and articles, which can more effectively reach substantial portions of the American public.

22. Additionally, we encourage the dissemination of information about 711 access through conferences and membership publications of individuals who are deaf, hard of hearing or have speech disabilities, and of senior citizens, to reach significant segments of the population that could benefit from relay services. Furthermore, we suggest that carriers, relay providers, and states should implement an outreach program similar to that used for 911 access to emergency services.

23. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the N11 Further Notice. The Commission sought written public comment on the proposals in the notice, including comment on the IRFA. There were no comments received on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

24. This rulemaking proceeding was initiated in order to improve the uniformity and efficiency of services provided through telecommunications relay services (TRS) for the benefit of TRS users and members of the general public with whom they communicate. The Commission's goal was to improve the convenience and consistency of dialing for TRS by implementing the 711 code previously reserved for this purpose.

25. In the Notice, the Commission sought public comment on the technical feasibility of implementing 711 access to TRS. The Notice also asked parties: (1) If it would be possible to develop within a reasonable time an N11 “gateway” offering access to multiple TRS providers; (2) whether, with such gateway access, TRS calls would still be answered within the Commission's mandatory minimum standards for TRS answer times; (3) whether such a gateway would be consistent with section 255 of the Telecommunications Act of 1934, as amended by the Telecommunications Act of 1996; and (4) whether any other important disability services could be accessed through the same gateway. The Notice also requested comment from interested parties, particularly TRS providers, about the possibility of providing both voice and text TRS services through the same abbreviated N11 code (711).

26. In this Second Report and Order, we adopt rules that require all carriers to provide 711 access to all types of relay services. We require all wireline carriers, CMRS carriers, and payphone providers to implement 711 dialing on or before October 1, 2001. We also require carriers and relay providers, in cooperation with the states, to engage in on-going and comprehensive education and outreach programs that publicize the availability of 711 access to TRS in a manner reasonably designed to reach the largest number of consumers possible.

27. By requiring uniform, nationwide 711 access to TRS, we further our Congressional mandate under the Americans with Disabilities Act to establish relay services that are functionally equivalent to voice telephone services. We expect that 711 dialing will make TRS easier and more convenient for all Americans. TRS users will be able to initiate a call from any telephone, anywhere in the United States, without having to remember and dial a 7 or 10-digit number, and without having to search for different numbers to access local TRS providers when traveling from state to state. We also expect an increase in the number of first-initiated and return relay calls by individuals without disabilities.

28. No comments were filed in response to the IRFA.

29. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The Regulatory Flexibility Act defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

30. TRS Providers. Neither the Commission nor the SBA has developed a definition of small entity specifically applicable to providers of TRS. The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. The SBA defines such establishments to be small businesses when they have no more than 1,500 employees. According to our most recent data, there are 11 interstate TRS providers, which consist of interexchange carriers, local exchange carriers, state-managed entities, and non-profit organizations. We do not have data specifying the number of these providers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and we are thus unable at this time to estimate with greater precision the number of TRS providers that would qualify as small business concerns under the SBA's definition. We note, however, that these providers include large interexchange carriers and incumbent local exchange carriers. Consequently, we estimate that there are fewer than 11 small TRS providers that may be affected.

31. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be data the Commission publishes in its Trends in Telephone Service report. However, in a recent news release, the Commission indicated that there are 4,144 interstate carriers. These carriers include, inter alia, local exchange carriers, wireline carriers and service providers, interexchange carriers, competitive access providers, operator service providers, pay telephone operators, providers of telephone service, providers of telephone exchange service, and resellers.

32. The SBA has defined establishments engaged in providing “Radiotelephone Communications” and “Telephone Communications, Except Radiotelephone” to be small businesses when they have no more than 1,500 employees. Further, we discuss the total estimated number of telephone companies falling within the two categories and the number of small businesses in each, and we then attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

33. Total Number of Telephone Companies Affected. The U.S. Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, covered specialized mobile radio providers, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small ILECs because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It is reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small ILECs that may be affected.

34. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Federal Communications Commission analyses and determinations in other, non-RFA contexts.

35. Local Exchange Carriers. Neither the Commission nor the SBA has developed a definition for small providers of local exchange services (LECs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Telecommunications Industry Revenue data, 1,348 incumbent carriers reported that they were engaged in the provision of local exchange services. We do not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that fewer than 1,348 providers of local exchange service are small entities or small ILECs that may be affected.

36. Competitive Local Service Providers. This category includes competitive access providers (CAPs), competitive local exchange providers (CLECs), shared tenant service providers, local resellers, and other local service providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive local service providers. The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Locator data, 145 carriers reported that they were engaged in the provision of competitive local service. We do not have data specifying the number of these carriers that are not independently owned or operated, and thus are unable at this time to estimate with greater precision the number of competitive local service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 145 small entity competitive local service providers.

37. Wireless Telephony and Paging and Messaging. Wireless telephony includes cellular, personal communications service (PCS) and specialized mobile radio (SMR) service providers. Neither the Commission nor the SBA has developed a definition of small entities applicable to cellular licensees, or to providers of paging and messaging services. The closest applicable SBA definition for a reseller is a telephone communications company other than radiotelephone (wireless) companies. According to the most recent Locator data, 732 carriers reported that they were engaged in the provision of wireless telephony and 137 companies reported that they were engaged in the provision of paging and messaging service. We do not have data specifying the number of these carriers that are not independently owned or operated, and thus are unable at this time to estimate with greater precision the number that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that fewer than 732 carriers are engaged in the provision of wireless telephony and fewer than 137 companies are engaged in the provision of paging and messaging service.

38. Wireline Carriers and Service Providers. The SBA has developed a definition of small entities for telephone communications companies except radiotelephone (wireless) companies. The Census Bureau reports that there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to the SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small ILECs. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that fewer than 2,295 small telephone communications companies other than radiotelephone companies are small entities or small ILECs.

39. Pay Telephone Operators. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to pay telephone operators. The closest applicable definition under SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 615 carriers reported that they were engaged in the provision of pay telephone services. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of pay telephone operators that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are less than 615 small entity pay telephone operators.

40. This order mandates that, on or before October 1, 2001, all carriers must obtain the telephone number for the state-certified relay center in each state of operation. This number can be obtained by contacting either the state agency for TRS or the Federal Communications Commission. The cost of obtaining and maintaining this number on file is nominal for all businesses, including small entities. In addition, all state agencies for TRS must accept and address complaints regarding 711 access to TRS. The annual reports of these state agencies to the Federal Communications Commission must include a summary of such complaints. Therefore, the burden of monitoring complaints and compliance falls not upon small entities, but upon the appropriate state agencies.

41. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c).

42. We considered the status quo alternative that is, leaving 711 access to TRS up to voluntary, cooperative efforts among carriers, TRS providers, and state relay administrators. We concluded, however, that uniform, nationwide 711 access to TRS would not occur without a Commission mandate, and without such uniformity, the great benefits of 711 access to TRS would be thwarted. We considered whether to permit compliance exemptions or time extensions for small carriers. Given the Congressional mandate that all carriers facilitate TRS that is “functionally equivalent” to voice transmission services, the burden would be especially high to justify waivers in 711 implementation. Since the record in this docket has shown the economic and technical feasibility of implementing 711 access to TRS by all carriers within a six-month period, we concluded that a year is ample time for all carriers to comply with this Order, including those small entities who might be affected by these new rules.

43. This order focuses on performance not design criteria to achieve 711 access to TRS. We do not require any particular network technology for 711 implementation. We anticipate that larger carriers with AIN technology will use that approach, whereas smaller carriers without it will use a switch-based approach. This latter approach was estimated to require 1.5 labor hours to reconfigure each switch, a cost we consider to be affordable over the course of a year, during which time other switch maintenance would probably occur. We expect that small payphone providers are likely to pass the 711 code to the local switch for translation, rather than making the translation in each of their payphones, thus assuring the affordability of 711 implementation to them.

44. The Commission will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA. In addition, the Commission will send a copy of this Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.

45. The Notice did not propose changes to the Commission's information collection requirements, and therefore, an initial paperwork reduction analysis was not required by the Paperwork Reduction Act of 1995. The Commission certifies that no information collection changes are imposed by the rules adopted in this order. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose no new or modified reporting and/or record-keeping requirements or burdens on the public.

46. Accordingly, pursuant to authority found in sections 1, 4(i) and 4(j), 201-205, 218, 225, and 251(e)(1) of the Communications Act as amended, 47 U.S.C. Sections 151, 154(i), 154(j), 201-205, 218, 225, and 251(e)(1) this Report and Order Is Adopted, and Part 64 of the Commission's rules Are Amended as set forth in the rule changes.

47. Each common carrier providing telephone voice transmission services shall provide, not later than October 1, 2001, access via the 711 dialing code to all relay services as a toll free call.

48. The amendments to §§ 64.601 through 64.604 of the Commission's rules as set forth in the rule changes are Adopted, effective October 11, 2000. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose no new or modified reporting and/or record-keeping requirements or burdens on the public.

49. The Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

50. Pursuant to sections 1, 4(i) and 4(j), 201-205, 218, 225, and 251(e)(1) of the Communications Act as amended, 47 U.S.C. sections 151, 154(i), 154(j), 201-205, 218, 225, and 251(e)(1) this Report and Order is adopted.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-68, adopted September 7, 2000, and released September 8, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, S.W., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-296, adopted September 6, 2000, and released September 7, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a summary of the Commission's Report and Order (“R&O”), FCC 00-258, adopted July 21, 2000; released August 7, 2000. The full text of the Commission's R&O is available for inspection and copying during normal business hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. S.W., Washington, D.C. The complete text of this R&O may also be purchased from the Commission's copy contractor, International Transcription Services (202) 857-3800, 1231 20th St., N.W., Washington, D.C. 20036.

1. In this R&O, we adopt rules designed to bring the benefits of video description to the commercial video marketplace but not impose an undue burden on the video programming production and distribution industries. Video description is the description of key visual elements in programming, inserted into natural pauses in the audio of the programming. It is designed to make television programming more accessible to the many Americans who have visual disabilities.

2. As explained further, we conclude that we have the authority to adopt video description rules, and require the top broadcast stations and multichannel video programming distributors (MVPDs) to provide programming with video description on the top programming networks. This will ensure that the broadcast stations and MVPDs that reach the most people will provide video description for the most watched programming. We also adopt rules to enhance the accessibility of emergency information for people with visual disabilities. Specifically, we adopt rules as follows:

• We require affiliates of the top four commercial broadcast TV networks in the top 25 TV markets to provide 50 hours per calendar quarter of prime time and/or children's programming with video description.

• We also require MVPDs with 50,000 or more subscribers to provide 50 hours per calendar quarter of prime time and/or children's programming with video description on each of the top five national nonbroadcast networks they carry.

• In addition, we require any broadcast station, regardless of its market size, to “pass through” any video description it receives from a programming provider, if the broadcast station has the technical capability necessary to do so, and we require any MVPD, regardless of its number of subscribers, to “pass through” any video description it receives from a programming provider, if the MVPD has the technical capability necessary to do so on the channel on which it distributes the programming of the programming provider.

• The first calendar quarter these rules will be effective will be April-June 2002.

• We also require broadcast stations and MVPDs that provide local emergency information through a regularly scheduled newscast, or an unscheduled newscast that interrupts regularly scheduled programming, to make the critical details of that information accessible to persons with visual disabilities in the affected local area. We also require broadcast stations and MVPDs that provide local emergency information through another manner, such as a “crawl” or “scroll,” to accompany that information with an aural tone to alert persons with visual disabilities that they are providing emergency information. These rules relating to emergency information will become effective upon approval by the Office of Management and Budget.

3. Video description is designed to make television programming more accessible to persons with visual disabilities, and enable them to “hear what they cannot see.” Thus, the primary audience for video description is persons with visual disabilities. Estimates of the number of persons with visual disabilities are as high as twelve million. This estimate includes persons with a problem seeing that cannot be corrected with ordinary glasses or contact lenses, with a range in severity.

4. A disproportionate number of persons with visual disabilities are seniors. The National Center for Health Statistics reports that eye problems are the third leading cause, after heart disease and arthritis, of restricting the normal daily activities of persons 65 years of age or older. While only 2-3% of the population under 45 years of age has visual disabilities, 9-14% of the population 75 years of age or older does. This means that as the population ages, more and more people will become visually disabled.

5. Secondary audiences for video description exist as well. For example, at least one and a half million children between the ages of 6 and 14 with learning disabilities may benefit from video description. Because the medium has both audio description and visual appeal, it has significant potential to capture the attention of learning disabled children and enhance their information processing skills. Described video programming capitalizes on the different perceptual strengths of learning-disabled children, pairing their more-developed modality with their less-developed modality to reinforce comprehension of information.

6. Current describers of programming charge between $2000 and $4000 per hour for their service. They begin their process by viewing a program, and writing a script to describe key visual elements. The describer times the placement and length of the description to fit within natural pauses in the dialogue. The narration is recorded and mixed with the original program audio to create a full audio track with video description. That audio track is then laid back to the master on a spare channel if the programming is intended for broadcast, and to a separate master if it is intended for distribution by home video. When the audio track with video description is provided on a separate audio channel for broadcast, viewers decide whether they wish to hear the video description. Viewers who wish to hear the description must activate the Second Audio Program (SAP) channel on their TV sets or VCRs. “Closed” video description refers to the process of providing video description on the SAP channel. SAP reception is a standard feature of most TV sets and VCRs built since 1990. SAP-capable TV sets and VCRs can be relatively inexpensive—less than $150—and converter boxes are also available for use with TV sets and VCRs that are not SAP-capable.

7. Programming providers that wish to distribute programming on the SAP channel typically need the capability to support three audio channels at all points in the distribution process. This is because two audio channels are used to support left and right stereo, so that a third audio channel is necessary to support a monaural mix of the main audio and the video description. The programming provider transmits both audio tracks as part of its main signal. Networks, broadcast stations, and MVPDs that do not have the capability to support three channels of audio generally need to upgrade equipment and plant wiring to do so. The cost depends on the amount and nature of the equipment that needs to be upgraded.

8. A number of commercial broadcast and nonbroadcast networks have provided programming with Spanish language as a second audio program. Each of the top four commercial broadcast TV networks has provided a Spanish language soundtrack as a second audio program, on at least an occasional basis. At least thirty-three ABC affiliates have the capability to pass through a second soundtrack on the SAP channel; at least twenty-three Fox affiliates do; and approximately twenty NBC affiliates do. Some nonbroadcast networks, such as HBO and Showtime, also have offered a Spanish language soundtrack as a separate audio program, and, Turner Classic Movies has provided a soundtrack with video description as a separate audio program. Some MVPDs that carry their programming provide the audio on the SAP channel.

9. We require broadcast stations in the top 25 Designated Market Areas (DMAs, defined by Nielsen Media Research) affiliated with the top four commercial broadcast networks to provide programming with video description. Our goal in this proceeding is to adopt rules designed to enhance the availability of video description, but not impose an undue burden on programming producers and distributors. Broadcast stations in the top 25 DMAs reach approximately 50% of U.S. TV households. Those affiliated with the top four broadcast networks provide the highest-rated programming, i.e., the most-watched, and therefore the most-advertiser-supported, programming. Some affiliates of the top four networks in the top 25 DMAs already have the technical capability necessary to provide programming with video description. Those that do not are likely to have the resources to acquire that capability without being unduly burdened.

10. We also require larger multichannel video programming distributors (MVPDs) that serve 50,000 or more subscribers to provide programming with video description on each of the top five national nonbroadcast networks they carry, as defined by prime time audience share, as well as the programming of broadcast stations and other networks they carry, under certain circumstances, as described. We believe this result is consistent with our goal of enhancing the availability of video description without imposing an undue burden on the programming production and distribution industries. The “larger MVPDs” as we define them include approximately 275 cable systems that serve approximately 50% of MVPD households, and two DBS systems that serve over 12 million customers. The top five nonbroadcast networks as we define them include those with the most-watched programming during prime time.

11. Because MVPDs must have the capability to support a third audio channel for each channel on which they intend to provide programming with video description, we have decided to limit the number of nonbroadcast networks for which “larger MVPDs” must provide video description to five. Given that we require MVPDs to provide programming with video description during prime time, we define the top five nonbroadcast networks in terms of prime time audience share, as determined by an average of Nielsen prime time ratings for the time period October 1, 1999-September 30, 2000.

12. The per-channel costs for MVPDs also suggests that the cut-off for “larger MVPDs” should be based on cable system size, not on multiple system operator size. We have decided to apply our rules to systems with more than 50,000 subscribers. These systems include approximately 275 cable systems that reach approximately 50% of cable subscribers, just as our rules affect broadcast stations that reach approximately 50% of U.S. TV households. Our decision to apply our rules to MVPDs that serve at least 50,000 subscribers will also include two DBS systems that together reach an additional 12 million subscribers.

13. We further require all broadcast stations, including noncommercial educational stations, that have the technical capability necessary to “pass through” any second audio program containing video description that they receive from their affiliated networks. Similarly, we require all MVPDs that have the technical capability necessary to “pass through” any secondary audio program containing video description that they receive from a broadcast station or nonbroadcast network. We believe this requirement is consistent with our approach to enhance the availability of video description, but not impose an undue burden on programming producers and distributors. We will consider broadcast stations and MVPDs to have the technical capability necessary to support video description if they have virtually all necessary equipment and infrastructure to do so, except for items that would be of minimal cost.

14. We require broadcast stations in the top 25 DMAs and MVPDs with at least 50,000 subscribers to provide at least fifty hours per calendar quarter of programming with video description. Our goal in this proceeding is to bring the benefits of video description to the commercial video marketplace, while at the same time not impose an undue burden on the broadcast stations and MVPDs subject to our initial rules. We believe that requiring these broadcast stations and MVPDs to provide fifty or more hours per calendar quarter of programming with video description satisfies this goal.

15. We clarify, as suggested by several commenters, that the broadcast stations and MVPDs may not count toward their 50-hour quarterly requirement programming that they have previously aired with video description, once the rules go into effect. In other words, a broadcast station or MVPD may not count toward its 50-hour quarterly requirement any programming it aired with video description after the effective date of the rules when that same broadcast station or MVPD repeats the same programming later. Broadcast stations and MVPDs may, however, count any programming they air after the effective date in excess of their quarterly requirements, and that they repeat later. In addition, they may count any programming with video description they air before the effective date of the rule, and that they later repeat after the effective date. We also clarify, as suggested by several commenters, that once a broadcast station or MVPD has aired a particular program with video description, all of that broadcast station's or MVPD's subsequent airings of that program should contain video description, unless another use is being made of the SAP channel. We further clarify that non-program minutes, however, such as advertisements and public service announcements, aired during a program need not be described.

16. We also believe that our decision to require that 50 hours per quarter, or roughly 4 hours per week, of programming with video description will avoid any conflicts between competing uses of the SAP channel. Some networks use the SAP channel to provide Spanish audio or other services. Although as some commenters point out there is not a technical solution to allow two uses of the SAP channel simultaneously, as others point out most networks that use the SAP channel to provide Spanish language audio do so on a limited basis. Those few networks that provide more extensive Spanish language audio are not among the networks that will be affected by our rules. Thus, we believe that our rules will not create conflicts between Spanish language audio and video description for use of the SAP channel.

17. We require that the described programming must either be shown during prime time or be children's programming. Prime time programming is the most watched programming, and so programming provided during this time will reach more people than programming provided at any other time. In addition, the several thousand dollars per hour cost to describe programming is a very small portion of the production budget for the typical prime time program. At the same time, programming with video description may provide a benefit not only to children who are visually disabled, but also to those who are learning disabled. Programming with video description has both audio description and visual appeal, and so has the potential to capture the attention of learning disabled children and enhance their information processing skills. Requiring broadcast stations and MVPDs to provide children's or prime time programming with video description thus ensures that the programming reaches the greatest portion of the audience it is intended to benefit the most. Permitting broadcast stations and MVPDs to select between the two provides them flexibility without compromising that goal.

18. In order to help the public identify the broadcast stations and MVPDs that are required to provide programming with video description, and the programming for which they are doing so, we encourage broadcast stations and MVPDs that provide programming with video description to take steps to educate and inform the public about the service. We encourage broadcast stations and MVPDs to promote the service in their programming and on their websites, and provide the relevant information to magazines and newspapers that follow their programming schedules, as some commenters suggest.

19. We note the some commenters suggest that we should not focus on entertainment programming, but rather on the accessibility of text information aired on TV, such as emergency information, the identity of speakers on news and talk shows, and telephone numbers or other contact information in advertisements. We believe that the accessibility of this type of information is important, and address the accessibility of emergency information in particular below. We believe, however, that a secondary audio program may not be the appropriate vehicle to provide text-based information. However, we do encourage producers of programming with text information to provide that information aurally, by announcing the names of speakers. Advertisers should already have a commercial incentive to provide contact information aurally.

20. We require the broadcast stations in the top 25 DMAs and MVPDs with at least 50,00 subscribers to begin providing programming with video description during the first calendar quarter that is eighteen months after the adoption date of this R&O, i.e., April through June 2002. Although we appreciate the desire of many to have programming with video description earlier, we wish to give the affected broadcast stations, MVPDs, and networks the time that may be necessary to make arrangements to describe the programming, and to upgrade their equipment and infrastructure. We believe that giving the affected parties until April 2002 is ample time. We decline to make our effective date coincide with the beginning of the TV season for broadcast networks because our rules also affect nonbroadcast networks, which may or may not use the same schedule to introduce new programs as broadcast networks do. We encourage parties that seek to make the beginning of their new programming seasons coincide with starting date of their providing video description to make the necessary arrangements to do so, within the time frame to meet their first quarterly compliance requirement in April-June 2002.

21. We adopt procedures and standards to exempt any broadcast station or MVPD subject to our rules for which compliance would be an “undue burden.” We, therefore, will exempt any affected broadcast station or MVPD that can demonstrate through sufficient evidence that compliance would result in an “undue burden,” which means significant difficulty or expense. We will consider the following factors: The nature and cost of providing video description of the programming; the impact on the operation of the broadcast station or MVPD; the financial resources of the broadcast station or MVPD; the type of operations of the broadcast station or MVPD; any other factors the petitioner deems relevant; and any available alternatives to video description. Given the limited nature of our initial video description rules, we decline to exempt, however, any particular categories of programming or class of programming providers.

22. We adopt enforcement procedures as follows. A complaint alleging a violation of this section may be transmitted to the Commission by any reasonable means, such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, and Braille, or some other method that would best accommodate a complainant's disability. A complaint shall include the name and address of the complainant. The complaint shall include the name of the broadcast station or MVPD against whom the complaint is alleged. A complaint against a broadcast station should include the name and address of the station, and its call letters and network affiliation. A complaint against an MVPD should include the name and address of the MVPD, and the name of the network that provides the programming that is the subject of the complaint. Complaints should include a statement of facts sufficient to show that the broadcast station or MVPD has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation; the specific relief or satisfaction sought by the complainant; and the complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, or some other method that would best accommodate a complainant's disability). Complaints should be sent to the Commission's Consumer Information Bureau. That bureau will forward formal complaints to the Commission's Enforcement Bureau, and we delegate authority to the Enforcement Bureau to act on and resolve any complaints in a manner consistent with this R&O.

23. Complaints satisfying the requirements described will be promptly forwarded by Commission staff to the broadcast station or MVPD involved, which shall be called on to answer the complaint within a specified time, generally within 30 days. To ensure fair and meaningful enforcement of our video description requirements, we will authorize the staff to either shorten or lengthen the time required for responding to complaints in particular cases. For example, if a complaint alleges that the video description disappeared during a program, we believe that it is appropriate to require the broadcast station or MVPD to respond within 10 days after being notified of the complaint in order to minimize the risk of repeat or recurring problems. If, on the other hand, a complaint alleges that a broadcast station or MVPD has not met its quarterly requirements, it may not be appropriate to require the broadcast station or MVPD to respond until the end of the quarter that is the subject of the complaint. However, recurring complaints or a pattern of such complaints against a particular broadcast station or MVPD may warrant a more immediate response to ensure that quarterly requirements are being addressed by the broadcast station or MVPD in manner consistent with their intended purposes. Commission staff will manage our complaint processes to reflect these and other case specific differences. The burden of proof of compliance in response to a complaint is on the broadcast station or MVPD, and they must maintain records sufficient to show their compliance with our rules.

24. Commission staff will review all relevant information provided by the complainant and defendant broadcast station or MVPD and may request additional information from either or both parties when needed for a full resolution of the complaint. Certifications of compliance from programming suppliers, including programming producers, programming owners, networks, syndicators and other distributors, may be relied on by broadcast stations and MVPDs to defend against claims of noncompliance. As a general matter, distributors will not be held responsible for situations where a program source falsely certifies that programming delivered to the distributor meets our video description requirements and the distributor did not know and could not have reasonably ascertained that the certification was false. However, we expect broadcast stations and MVPDs to establish appropriate policies and procedures to safeguard against such false certifications. Commission staff will scrutinize complaints to ensure that broadcast stations and MVPDs vigilantly adhere to our video description requirements. If we determine that a violation has occurred, we will use our considerable discretion under the Act to tailor sanctions and remedies to the individual circumstances of a particular violation. For example, in egregious cases or cases demonstrating a pattern or practice of noncompliance, sanctions may include a requirement that the video programming distributor deliver video programming containing video description in excess of its requirements.

25. We require any broadcast station or MVPD that provides local emergency information to make the critical details of that information accessible to persons with visual disabilities. Our rule applies to all broadcast stations and MVPDs that provide emergency information, as opposed to just those in the largest TV markets or with the largest number of subscribers. We believe this is appropriate both because of the importance of emergency information and because it does not involve the kinds of technical issues involved in using a SAP channel. We envision that affected broadcast stations and MVPDs will aurally describe the emergency information in the main audio as part of their ordinary operations. This would be similar to providing “open” video description. We define emergency information to be that which is intended to protect life, health, safety, and property, i.e., critical details about an emergency and how to respond to the emergency. Examples of the types of emergencies covered include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather. These examples are intended to provide guidance as to what is covered by the rule and are not intended to be an exhaustive list. We do not believe an exhaustive list of examples is necessary to convey what is covered by the rule. Our definition of emergency information will include the provision of critical details in an accessible manner. Critical details could include, among other things, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one's home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.

26. The rule will require broadcast stations and MVPDs that provide local emergency information to make that information accessible to viewers who are blind or have visual disabilities in the affected local area through aural presentation whenever such information is provided during regularly scheduled newscasts, unscheduled newscasts that preempt regularly scheduled programming or during continuing coverage of a situation. As a result of our rule, persons with visual disabilities will have access to the same critical information to which other viewers have access. Under this rule, broadcast stations and MVPDs are not required to provide in an accessible format all of the information about an emergency situation that they are providing to viewers visually, only the visual information intended to further the protection of life, health, safety, and property. In determining whether particular details need to be made accessible, we will permit programmers to rely on their own good faith judgments.

27. We believe that our requirement that broadcast stations and MVPDs make the critical details of emergency information available during regularly scheduled newscasts and newscasts that are sufficiently urgent to interrupt regular programming will generally ensure that the critical details of emergency information will be accessible to persons with visual disabilities. This is because we expect that broadcast stations and MVPDs will provide emergency information of an extremely urgent nature by interrupting their regularly scheduled programming with a newsbreak, and we require them to make the critical details of this information accessible. To the extent, however, that a broadcast station or MVPD does not interrupt its regular programming to provide emergency information but rather does so through another manner, such as a “crawl” or “scroll,” during that programming, we require them to accompany that information with an aural tone, as referenced in the Notice of Proposed Rule Making (“NPRM”), 64 FR 67236 (December 1, 1999).

28. The new rules regarding emergency information will be effective upon approval by the Office of Management and Budget. We adopt an earlier effective date for this rule because of the importance of emergency information, and because there should be little if any equipment and infrastructure costs associated with compliance.

29. We conclude that we have the authority to adopt video description rules. Section 1 of the Act (codified as 47 U.S.C. 151) established the Commission “[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States * * * a rapid, efficient, Nationwide, and world-wide wire and radio communication service. * * *” (emphasis added). Section 1 also established the Commission “for the purpose of promoting safety of life and property through the use of wire and radio communication.” Section 2(a) of the Act (codified as 47 U.S.C. 152(a)) states that “[t]he provisions of this act shall apply to all interstate and foreign communication by wire or radio” and “all persons engaged within the United States in such communication.” Section 4(i) (codified as 47 U.S.C. 154(i)) states that “[t]he Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions” and section 303(r) (codified as 47 U.S.C. 303(r)) states that “the Commission from time to time, as public convenience, interest, or necessity requires shall * * * [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act. * * *”

30. Congress has thus authorized the Commission to make available to all Americans a radio and wire communication service, and to promote safety and life through such service, and to make such regulations to carry out that mandate, that are consistent with the public interest and not inconsistent with other provisions of the Act or other law. In other words, as the Commission has previously explained, “[t]he courts have consistently held that the Commission has broad discretion so long as its actions further the legislative purposes for which the Commission was created and are not contrary to the basic statutory scheme.” Thus, in considering the Commission's power to create the universal service fund (for which at the time there was no explicit statutory authority), the U.S. Court of Appeals for the D.C. Circuit relied, solely, on sections 1 and 4(i) of the statute, holding: “As the Universal Service Fund was proposed in order to further the objective of making communication service available to all Americans at reasonable charges, the proposal was within the Commission's statutory authority.”

31. We disagree with those parties that contend that video description rules would be inconsistent with other provisions in the Act or other law. Specifically, some parties contend that video description rules are inconsistent with sections 624 and 713 of the Act, and the First Amendment. Others suggest that the rules interfere with the rights of copyright holders. We address each of these.

32. Section 713. Some commenters contend that section 713(f) of the Act, codified as 47 U.S.C. 613(f), only authorizes the Commission to conduct an inquiry, and thus forecloses a rulemaking, on video description. Section 713(f) of the Act states, in its entirety:

Section 713(f) is silent with respect to—and thus by itself neither authorizes nor precludes—a rulemaking. In other words, section 713(f) does not change the purpose for which the Commission was created, as expressed in section 1 of the Act, nor does it derogate the general rulemaking powers the Commission has, as expressed in sections 4(i) and 303(r) of the Act.

33. We recognize, as some commenters point out, that the legislative history to section 713 indicates that Congress considered, but did not enact, language explicitly referencing a rulemaking proceeding. The Conference Report indicates that the House amendment to the Senate bill contained language explicitly referencing a rulemaking proceeding: “Following the completion of this inquiry the Commission may adopt regulations it deems necessary to promote the accessibility of video programming to persons with visual impairments.” The conferees agreed, however, to remove such language: “The agreement deletes the House provision referencing a Commission rulemaking with respect to video description.” While this history indicates that section 713 should not be construed to authorize a Commission rulemaking, the history does not indicate that section 713 should be construed to prohibit such a rulemaking, given our otherwise broad powers to make rules, as expressed in sections 4(i) and 303(r) of the Act. Had Congress intended to limit our general authority, it could have expressly done so, as it has elsewhere in the Act.

34. Section 624(f). Some commenters also contend that, absent express authority to conduct a rulemaking on video description elsewhere in the Act, section 624(f) of the Act precludes the Commission from adopting video description rules for cable operators. Section 624(f) states that “[a]ny Federal agency * * * may not impose requirements regarding the provision or content of cable services, except as expressly provided in [Title VI].” The U.S. Court of Appeals for the D.C. Circuit has interpreted this section to forbid “rules requiring cable companies to carry particular programming.” The video description rules we adopt today are not content-based, and as such, do not require cable companies (or any other distributor of video programming) to carry particular programming. Rather, our rules simply require that, if a distributor chooses to carry the programming of the largest networks, it must provide a small amount of programming with video description.

35. First Amendment. Some commenters argue that requiring video description is inconsistent with the First Amendment, because it compels speech, or otherwise is content-based regulation. Other commenters, however, contend that our rules are content-neutral regulations, similar to time, place, and manner regulations, and under the applicable test, are consistent with the First Amendment. The Supreme Court has held that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to free expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” The purpose of our video description rules is to enhance the accessibility of video programming to persons with disabilities, and is not related to content.

36. The fact that our rules will require, as opposed to restrict, speech does not change the analysis. As a number of commenters explain, a mandate to provide video description does not require a programmer to express anything other than what the programmer has already chosen to express in the visual elements of the program. Our rules simply require a programmer to express what it has already chosen to express in an alternative format to enhance the accessibility of the message. As such, our rules are comparable to a requirement to translate one's speech into another language in other contexts. A requirement to provide programming with video description is most similar to our existing requirements to provide programming with closed captioning, which, as several commenters point out, has not been challenged on First Amendment grounds. Indeed, the U.S. Court of Appeals for the D.C. Circuit concluded nearly twenty years ago that any requirement to provide programming with closed captioning would not violate the First Amendment.

37. Given that our video description rules are content-neutral regulations, the applicable test for reviewing their constitutionality is whether the regulations promote an important government purpose, and whether they do not burden substantially more speech than necessary. As indicated, our purpose in adopting our rules is to enhance the accessibility of television programming to persons with visual disabilities. As we observed in the NPRM, television programming shapes American culture and public opinion in myriad ways, because it is our principal source of news and information, and provides hours of entertainment weekly. Millions of Americans have visual disabilities and have difficulty following the visual elements in television programming, which can be overcome through video description. We believe this is an important government purposes in the context of the First Amendment, and believe that other legislation designed to enhance the accessibility of communications to persons with disabilities supports our conclusion.

38. We also believe that video description will not burden any more speech than necessary. As described, video description is in effect the translation of the visual elements of programming into another language to provide functional equivalency for the blind. Our rules will require only a limited amount of programming to contain video description. To the extent the video description is distracting to viewers who do not wish to hear it, they can simply listen to the main audio instead of the SAP channel.

39. Today we adopt rules to enhance the accessibility of the important medium of television to persons with visual disabilities. We do not impose an undue burden on the programming production and distribution industries. Our rules will require only the largest broadcast stations and MVPDs—which provide television programming to the majority of the public—to provide a limited amount of programming with video description. These broadcast stations and MVPDs will provide programming with video description on the largest networks they carry—which provide the most watched television programming. Our rules will thus create a benefit to the greatest number of persons with visual disabilities but at the same time impose a cost on the least number of broadcast stations and MVPDs. As the industry and the public gain greater experience with video description, we hope that more broadcast stations and MVPDs will provide video description, and those that do so will provide more hours of programming with video description.

40. This document is available to individuals with disabilities requiring accessible formats (electronic ASCII text, Braille, large print, and audiocassette) by contacting Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or by sending an email to access@fcc.gov.

41. Final Paperwork Reduction Act Analysis. This R&O contains information collection requirements that the Commission is submitting to the Office of Management and Budget requesting clearance under the Paperwork Reduction Act of 1995.

42. Final Regulatory Flexibility Certification. Pursuant to the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq.

43. Accordingly, pursuant to the authority contained in sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613, part 79 of the Commission's rules are amended as set forth.

44. The rules set forth that revise § 79.2 of the Commission's rules, 47 CFR 79.2, shall become effective upon approval from the Office of Management and Budget, and the rules set forth that add § 79.3 to the Commission's rules, 47 CFR 79.3, shell become effective on April 1, 2002.

45. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this R&O, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

46. This proceeding is terminated.

47. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The NPRM published in this proceeding proposed rules to provide video description on video programming in order to ensure the accessibility of video programming to persons with visual impairments.

48. In an abundance of caution, the Commission published an Initial Regulatory Flexibility Analysis (IRFA) in the NPRM, even though the Commission was reasonably confident that the proposed rules would not have the requisite “significant economic impact” on a “substantial number of small entities.” The IRFA sought written public comment on the proposed rules. No written comments were received on the IRFA, nor were general comments received that raised concerns about the impact of the proposed rules on small entities.

49. The rules adopted in this R&O requiring stations to provide video descriptions on video programming will affect at most five small broadcasters, which are affiliates of the top four networks in the top 25 Nielsen Designated Market Areas, in the amount of $5,000 to $25,000 each. We recognize that the upper end of the possible economic impact might constitute a significant impact for some small broadcasters, but, as noted, this impact will reach, at most, 10 entities, and we have provided an exemption (upon application) for those small entities for which the cost is burdensome. The pass through of programming will have no significant economic impact on small entities because they are required to pass through the programming with video description only if they already have the technical capability necessary to do so. The Commission believes that the emergency notification requirement will have a negligible effect on small entities as well. In addition, if this requirement should prove burdensome to small entities, they may apply for an exemption.

50. The Commission therefore certifies, pursuant to the RFA, that the rules adopted in the present R&O will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the R&O, including a copy of this final certification, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the R&O, including a copy of this final certification, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, a copy of the R&O and this final certification will be published in the Federal Register. See 5 U.S.C. 605(b).

(7) Persons that file comments or oppositions to the petition must serve the petitioner with copies of those comments or oppositions and must include a certification that the petitioner was served with a copy. Parties filing replies to comments or oppositions must serve the commenting or opposing party with copies of such replies and shall include a certification that the party was served with a copy.

(8) Upon a showing of good cause, the Commission may lengthen or shorten any comment period and waive or establish other procedural requirements.

(9) Persons filing petitions and responsive pleadings must include a detailed, full showing, supported by affidavit, of any facts or considerations relied on.

(10) The Commission may deny or approve, in whole or in part, a petition for an undue burden exemption from the video description requirements.

(11) During the pendency of an undue burden determination, the Commission will consider the video programming subject to the request for exemption as exempt from the video description requirements.

(e) Complaint procedures. (1) A complainant may file a complaint concerning an alleged violation of the video description requirements of this section by transmitting it to the Consumer Information Bureau at the Commission by any reasonable means, such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording, and Braille, or some other method that would best accommodate the complainant's disability. Complaints should be addressed to: Consumer Information Bureau, 445 12th Street, SW, Washington, DC 20554. A complaint must include:

(i) The name and address of the complainant;

(ii) The name and address of the broadcast station against whom the complaint is alleged and its call letters and network affiliation, or the name and address of the MVPD against whom the complaint is alleged and the name of the network that provides the programming that is the subject of the complaint;

(iii) A statement of facts sufficient to show that the video programming distributor has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;

(iv) The specific relief or satisfaction sought by the complainant; and

(v) The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TYY), Internet e-mail, or some other method that would best accommodate the complaint's disability).

(2) The Commission will promptly forward complaints satisfying the requirements to the video programming distributor involved. The video programming distributor must respond to the complaint within a specified time, generally within 30 days. The Commission may authorize Commission staff to either shorten or lengthen the time required for responding to complaints in particular cases.

(3) The Commission will review all relevant information provided by the complainant and the video programming distributor and will request additional information from either or both parties when needed for a full resolution of the complaint.

(i) The Commission may rely on certifications from programming suppliers, including programming producers, programming owners, networks, syndicators and other distributors, to demonstrate compliance. The Commission will not hold the video programming distributor responsible for situations where a program source falsely certifies that programming that it delivered to the video programming distributor meets our video description requirements if the video programming distributor is unaware that the certification is false. Appropriate action may be taken with respect to deliberate falsifications.

(ii) If the Commission finds that a video programming distributor has violated the video description requirements of this section, it may impose penalties, including a requirement that the video programming distributor deliver video programming containing video description in excess of its requirements.

(f) Private rights of action are prohibited. Nothing in this section shall be construed to authorize any private right of action to enforce any requirement of this section. The Commission shall have exclusive jurisdiction with respect to any complaint under this section.

OMB Bulletin 97-01, Form and Content of Agency Financial Statements, prescribes financial accounting and reporting requirements for Federal agencies. Included are accounting standards which apply to property, plant and equipment. Comments have been received from contractors regarding NASA's initial implementation of the standards through the NASA Form 1018 reporting format. In addition to changes being made to respond to contractors' concerns, changes are needed in NASA's reporting requirements to ensure compliance with the accounting standards and accurate and timely financial statements.

NASA certifies that this interim rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because less than three per cent of NASA contracts with small businesses have property reporting requirements.

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., applies to this proposed rule because it contains information collection requirements. Approval for the additional requirements has been obtained under OMB Control No. 2700-0017, approving an increase in burden hours from 5,700 to 8,144.

In accordance with 41 U.S.C. 418(d), NASA has determined that urgent and compelling reasons exist to promulgate this interim rule. The basis for this determination is that the new definitions and reporting requirements in this interim rule are needed to comply with OMB Bulletin 97-01, and that it is necessary to issue these changes immediately so they can be incorporated into NASA contractor property reports for the year ending September 30, 2000. Public comments received in response to this interim rule will be considered in the formation of the final rule.

Accordingly, 48 CFR Parts 1845 and 1852 are amended as follows:

1. The authority citation for 48 CFR Parts 1845 and 1852 continues to read as follows:

The FMP, which was implemented by a final rule published in the Federal Register on December 15, 1999 (64 FR 69888), divides managed species into two categories—actively managed and monitored. Harvest guidelines of actively managed species (i.e., Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Current biomass estimates are not calculated for species that are only monitored (i.e., jack mackerel, northern anchovy, and market squid).

At a public meeting each year, the biomass for each actively managed species is presented by the Pacific Fishery Management Council’s (Council) Coastal Pelagic Species Management Team (Team) to the Council’s Coastal Pelagic Species Advisory Subpanel (Subpanel). At that time, the biomass, the harvest guideline, and the status of the fisheries are reviewed. Following review by the Council’s Scientific and Statistical committee and after hearing public comments, the Council makes a recommendation to NMFS, which publishes the annual harvest guideline in the Federal Register as soon as practicable before the beginning of the appropriate fishing season. The Pacific mackerel season began on July 1, 2000, and ends on June 30, 2001, or until the harvest guideline is caught and the fishery is closed. All landings of Pacific mackerel from July 1, 2000, to the effective date of this rule will be counted toward the total harvest guideline of 20,740 (metric tons) mt.

On June 8, 2000, consistent with the procedures of the FMP, the biomass report and harvest guideline for Pacific mackerel were reviewed at a public meeting of the Team and a public meeting of the Subpanel at the offices of the California Department of Fish and Game in Long Beach, California. A modified virtual population analysis stock assessment model is used to estimate biomass of Pacific mackerel. The model employs both fishery-dependent and fishery-independent indices to estimate abundance. Using this model, the biomass was calculated through the end of 1999. The biomass was then estimated for July 1, 2000, based on (1) the number of Pacific mackerel estimated to comprise each year class at the beginning of 2000, (2) modeled estimates of fishing mortality during 1999, (3) assumptions for natural and fishing mortality through the first half of 2000, and (4) estimates of age-specific growth. Based on this approach, the biomass for July 1, 2000, is 116,967 metric tons (mt) and the harvest guideline is 20,740 mt. At its meeting on June 30, 2000, in Portland, OR, the Council heard reports from the Team, the Scientific and Statistical Committee, and the Subpanel. No public comments were received. The Council recommended publishing the harvest guideline as presented.

The biomass estimated for the period July 1, 1999, through June 30, 2000, was 239,286 mt; therefore, the biomass for the 2000/2001 fishery of 116,967 mt is a significant reduction. During calendar year 1998, Mexico harvested 50,750 mt of Pacific mackerel and the U.S. harvested 20,073 mt. This high fishing mortality is one reason for the decline in biomass. There also has been a general decline in age-zero fish since 1991. Fish were scarce in the area of the fishery off the U.S. coast and off Mexico during 1999.

The formula in the FMP uses the following factors to determine the harvest guideline:

1. The biomass of Pacific mackerel. For 2000, this estimate is 116,967 mt.

2. The cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established the cutoff level at 18,200 mt.

3. The portion the Pacific mackerel biomass that is in U.S. waters. This estimate is 70 percent, based on the average of larval distribution obtained from scientific cruises and the distribution of the resource obtained from logbooks of fish-spotters.

4. The harvest fraction. This is the percentage of the biomass above 18,200 mt that may be harvested. The FMP established the harvest fraction at 30 percent.

Based on the estimated biomass of 116,967 mt and the formula in the FMP, a harvest guideline of 20,740 mt was calculated for the fishery beginning on July 1, 2000. This harvest guideline is available for harvest for the fishing season July 1, 2000, through June 30, 2001.

This action is authorized by 50 CFR 660.509 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA)finds for good cause under 5 U.S.C. 553(b)(B) that providing prior notice and an opportunity for public comment on this action is unnecessary. Providing prior notice and an opportunity for public comment would serve no useful purpose because establishing the harvest guideline is a nondiscretionary act determined by following procedures and formulas set in the FMP.

Because this rule merely announces the result of harvest guideline calculations and does not require any participants in the fishery to take action or to come into compliance, the AA finds for good cause under 5 U.S.C. 553(d)(3) that delaying the effective date of this rule for 30 days is unnecessary.