Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site http://www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

You can access publicly available documents related to this document using the following methods:

NRC's Public Document Room (PDR): The public may examine and have copied, for a fee, publicly available documents at the NRC's PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.

NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to PDR.Resource@nrc.gov.

Federal Rulemaking Web Site: Public comments and supporting materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2009-0084.

Source material is regulated by the NRC under Title 10 of the Code of Federal Regulations (10 CFR) Part 40, “Domestic Licensing of Source Material.” Source material includes uranium and thorium in any physical or chemical form. Naturally occurring uranium and thorium and their decay chains emit alpha, beta, and gamma radiation. Uranium exhibits toxic chemical properties that can impair kidney function when ingested or inhaled in large quantities.1 Thorium dioxide is classified as a “known carcinogen” by the U.S. Agency for Toxic Substances and Disease Registry and has been linked to lung and liver diseases.2 Because of the potential for uranium and thorium to produce health effects from both chemical toxicity and radiological effects, it is important for the NRC to understand how and in what quantities uranium and thorium are being used under general license and various exemptions in order to better evaluate potential impacts to public health and safety.

The last major modification of 10 CFR Part 40 occurred in 1961 and established licensing procedures, terms, and conditions for source material that were substantially similar to those set forth, at the time, in 10 CFR Part 30, “Licensing of Byproduct Material.” Since then, the health and safety requirements in 10 CFR Part 20, “Standards for Protection Against Radiation,” have been revised. In particular, radiation dose limits for individual members of the public were significantly reduced in the revision to 10 CFR Part 20. In addition, training and other requirements have been moved and revised from an earlier version of 10 CFR Part 20 into 10 CFR Part 19, “Notices, Instructions and Reports to Workers: Inspection and Investigations.” Although the requirements in 10 CFR Part 30 have been revised to address the changes to the health and safety requirements in 10 CFR Part 20 and the training requirements in 10 CFR Part 19, these changed standards have generally not been addressed with respect to the use of source material in 10 CFR Part 40.

Some products currently covered by the exemptions from licensing in 10 CFR Part 40 were in use before the enactment of the original Atomic Energy Act of 1946. Exemptions for the possession and use of many of these products were included in the original 10 CFR Part 40 issued in 1947. As beneficial uses of radioactive material have developed and experience with the use of such material has grown, new products intended for use by the general public have been invented and the regulations have been amended to accommodate the use of new products. The regulations contained in 10 CFR Part 40 currently include no requirements to report how much source material is being distributed in the form of products for use under the exemptions from licensing.

Section 40.22, “Small quantities of source material,” provides a general license authorizing commercial and industrial firms; research, educational, and medical institutions; and Federal, State, and local governmental agencies to use and transfer not more than 15 pounds (lb) (6.8 kilograms (kg)) of source material in any form at any one time for research, development, educational, commercial, or operational purposes. Not more than a total of 150 lb (68 kg) of source material may be received in any calendar year. Section 40.22 general licensees are exempt from the provisions of 10 CFR Parts 19, 20, and 21, unless the general licensee also possesses source material under a specific license. The general license prohibits the administration of source material or the radiation emanating from the source material, either externally or internally, to human beings except as may be authorized in a specific license issued by the Commission. There are no reporting requirements for persons transferring source material, initially or otherwise, for use under this general license. Thus, the NRC does not have significant information on whom, how, or in what quantities persons are using source material under this general license.

The current § 40.22 general license (post-1961) is much less restrictive than the previous version (1953-1961), which only permitted receipt of up to 3 lb (1.4 kg) of source material per year by pharmacists and physicians for medicinal purposes and by educational institutions and hospitals for educational and medical purposes only. In the previous version of this general license, resale of source material was prohibited. The current general license not only authorizes larger quantities of source material, but also allows broader types of authorized users and uses of source material. Also, resale is not prohibited.

In the 1990's, the NRC conducted a reevaluation of the exemptions from licensing for byproduct and source material in the NRC's regulations. The assessment of doses associated with most of these exemptions can be found in NUREG-1717, “Systematic Radiological Assessment of Exemptions for Source and Byproduct Materials,” published June 2001.3 Doses were estimated for the normal life cycle of a particular product or material, covering distribution and transport, intended or expected routine use, accident and misuse scenarios, and disposal using dose estimation methods consistent with those reflected in the current 10 CFR Part 20. The report identified potential and likely doses to workers and members of the public under the exemptions contained in 10 CFR Parts 30 and 40. In general, the reevaluation concluded that no major problem exists with the use of products containing source material under the exemptions from licensing. Many of the products containing source material that are used under exemption from licensing present the potential for higher exposures under routine use conditions than the products used under exemption that contain byproduct material because of differences in allowed forms and uses; however, risks from accidents are generally smaller. Although containment is a key to safety for many products containing byproduct material, containment is generally less important for products containing source material because of the low specific activity of the source material contained in such products.

In 1999, the State of Colorado and the Organization of Agreement States submitted a petition for rulemaking, PRM-40-27, which stated their concerns regarding potential exposures to persons using source material under the general license in § 40.22. The petitioners requested that the exemption for these general licensees from 10 CFR Parts 19, 20, and 21 be restricted such that any licensee that has the potential to exceed any dose limits or release limits, or generates a radiation area as defined in 10 CFR Part 20 should be required to meet requirements in both 10 CFR Parts 19 and 20. The petition indicated that the State of Colorado had identified a site operated under the general license in § 40.22 at which there was significant source material contamination. The petitioners calculated that resultant exposures for the source material contamination were significantly above the exposure limits allowed to members of the public in 10 CFR Part 20. The petitioners indicated that public dose limits were considered applicable because workers operating under the general license were exempt from training requirements that would normally be required for radiation workers under 10 CFR Part 19. The petitioners also referenced other situations, which based on their research, appeared to have resulted in § 40.22 (or Agreement State equivalent) general licensees potentially exceeding public health and safety or disposal limits that would apply to most other licensees.

In response to the petition, the NRC sought to develop more information on the use of the general license in § 40.22. Although the NRC had identified 6 persons distributing source material to § 40.22 general licensees in the mid-1980's, the NRC was able to identify only 1 remaining distributor in 2005. In 2006, the NRC contracted Pacific Northwest National Laboratory (PNNL) to examine whether the regulations concerning general licenses and certain exemptions for source material were consistent with current health and safety regulations. In 2007, PNNL completed their evaluation and documented their findings in “PNNL-16148, Rev. 1-Dose Assessment for Current and Projected Uses of Source Material under U.S. NRC General License and Exemption Criteria,” (the PNNL study). A copy of the PNNL study can be found in ADAMS by searching for Accession Number ML070750105. The study used available information to identify and assess the primary operations conducted under the § 40.22 general license and equivalent provisions of the Agreement States. The available data was collected from information voluntarily submitted by specific licensees known to have distributed source material to general licensees in the past, through surveys to certain identified general licensees, and through use of searches from the Internet, publications, and professional societies. The available information was found to be limited and may not be representative of all present day, or future, uses of source material under the existing general license.

The NRC has the authority to issue both general and specific licenses for the use of source material and to exempt source material from regulatory control under Section 62 of the Atomic Energy Act of 1954, as amended (“the Act” or AEA). A general license is provided by regulation, grants authority to a person for particular activities involving source material as described within the general license, and is effective without the filing of an application or the issuance of a licensing document. Requirements for general licensees appear in the regulations and are designed to be commensurate with the specific circumstances covered by each general license. A specific license is issued to a named person who has filed an application with the Commission. Exemptions are provided in situations where there is minimal risk to public health and safety and allow the end user, who ordinarily requires a license, to possess or use the source material without a license.

The NRC regulations contained in 10 CFR Part 40 set forth the basic requirements for licensing of source material. Section 62 of the AEA authorizes the Commission to determine that certain quantities of source material are “unimportant.” Section 40.13, “Unimportant quantities of source material,” sets forth several exemptions from the licensing requirements for source material.

The regulations contained in 10 CFR Part 40 authorize a number of different general licenses for source material; one of which is for small quantities of source material (§ 40.22). Because general licenses are effective without the filing of an application with the NRC, there are no prior evaluations of user qualifications, nature of use, or safety controls to be exercised. Some general licenses do include reporting requirements for transfers of source material.

The regulations contained in 10 CFR Part 40 also authorize specific licenses for source material. Basic requirements for submittal of an application for a specific license are found in § 40.31 and general requirements for issuance of a specific license are found in § 40.32. Terms and conditions of licenses are contained in § 40.41. With the exception of requirements found in §§ 40.34 and 40.35, related to the manufacture and initial transfer of products and devices containing depleted uranium to be used under the general license in § 40.25, and the broad transfer authorizations contained in § 40.51, there are no specific requirements applicable to the distribution of products and materials containing source material.

Currently, 10 CFR Part 40 does not include any requirement to report information about source material being distributed for use under the general license in § 40.22 or under any exemption from licensing in § 40.13. Because the NRC does not require the reporting of products and materials distributed for use under the general license or exemptions, the NRC cannot readily determine if the source material is being maintained in accordance with the regulatory requirements for those uses, or how or in what quantities the source material is being used. As a result, the NRC cannot fully assess the resultant risks to public health and safety. Despite the limited availability of information, the NRC has assembled some data regarding the use of source material under both exemptions and the § 40.22 general license. Because of the difficulty of collecting such information and its limited reliability, the NRC has concluded that new reporting requirements on the distribution of source material to § 40.22 general licensees and persons exempt from licensing would significantly increase the NRC's ability to evaluate impacts and more efficiently and effectively protect the public health and safety from the use of source material.

NUREG-1717 identified some source material product exemptions as being obsolete or no longer manufactured at the upper limits allowed under § 40.13(c). As a result, the NRC concludes that it is preferable to delete or reduce the concentration limits allowed in future products to reduce the potential for exposures to the general public from these products.

In addition, based upon numerous questions from industry in the past, the NRC has learned that industry has generally moved from the manufacture of optical lenses containing thorium to the manufacture of lenses with thin coatings of thorium. This has led to the question of the applicability of the product exemption in § 40.13(c)(7) to those lenses coated with thorium. As a result, the NRC is considering expanding the exemption in § 40.13(c)(7) to accommodate current manufacturing practices to make the exemption more useful.

When the current general license in § 40.22 was established in 1961, provisions were included to exempt the general licensees from 10 CFR Parts 19, 20, and 21. The exemption was based upon the known uses of source material at the time and the health and safety requirements at that time. Because the § 40.22 general license was expanded to include commercial applications in 1961, it is likely that some current practices were not properly evaluated as part of that rulemaking. In addition, since that time, limits for protecting health and safety in 10 CFR Part 20 were significantly lowered and the training requirements in 10 CFR Part 19 were expanded. This combination of events has led to the recognition that some general licensees could expose workers to levels above 1 millisievert (mSv) per year (100 millirem (mrem) per year) which would normally require radiation training under 10 CFR Part 19. In addition, because of the exemption to 10 CFR Part 20, the NRC recognizes that some § 40.22 general licensees may dispose of source material in manners that would not be acceptable for other licensees where 10 CFR Part 20 applies and may abandon sites with contamination at levels exceeding 10 CFR Part 20 release limits. These actions could result in individual members of the public being exposed to dose levels above that permitted by 10 CFR Part 20. The PNNL study indicated that most source material possessed under § 40.22 is likely handled in quantities, physical forms, or in uses and conditions that would justify the continued application of the exemptions to 10 CFR Parts 19, 20, and 21. However, as indicated by PRM-40-27, and by bounding dose calculations in the PNNL study, situations can occur where § 40.22 general licensees exceed limitations under which certain requirements in 10 CFR Parts 19 and 20 would apply to a specific licensee. For example, because of the current exemption to 10 CFR Part 20, a § 40.22 general licensee could abandon a site resulting in a situation where the next occupant is exposed at levels above public dose limits in § 20.1301 and the unrestricted release limits in § 20.1402. As a result, the NRC determined that consideration should be given to making the § 40.22 general license more consistent with current training requirements and public health and safety standards, as set forth in 10 CFR Parts 19 and 20.

In addition, the current § 40.22 general license allows persons to obtain 15 lb (6.8 kg) of uranium or thorium in any form, including any specific isotopes. Certain isotopes of thorium and uranium have specific activities so high that 15 lb of those isotopes could result in doses far in excess of dose limits normally allowed under NRC's regulations without significant controls; thus, although these separated radioisotopes are not commercially available in such quantities, the NRC has concluded that persons should not be allowed to obtain large quantities of these isotopes without applying for a specific license.

The NRC is proposing to add new requirements for those persons who initially transfer for sale or distribution products and materials containing source material for receipt under an exemption or the general license in § 40.22. This proposed rule would also make a number of additional revisions to the regulations governing the use of source material under exemptions from licensing and under the general license in § 40.22. These changes are intended to better ensure the protection of public health and safety in an efficient and effective manner.

The NRC is proposing two new provisions, §§ 40.13(c)(10) and 40.22(e), which would prohibit the initial transfer for sale or distribution of products or materials containing source material to persons exempt from licensing under § 40.13(c) or to a § 40.22 general licensee, respectively, by a person without authorization by a specific license. The initial transfer for sale or distribution is considered to be the first transfer of the product or material containing source material to a person who will be receiving the source material for possession under an exemption listed in § 40.13(c) or under the general license in § 40.22. Subsequent transfers of source material from exempt person to exempt person or from general licensee to general licensee would continue to be allowed without the requirement for a specific license.

Under the proposed § 40.13(c)(10), in conjunction with the proposed § 40.52, a person currently operating under a § 40.22 general license that manufactures and initially transfers or distributes a product for possession under an exemption listed in § 40.13(c) would no longer be allowed to operate under the general license and would instead need a specific license under this proposed rule. The NRC is not aware of any widespread production and distribution of exempt products under the general license; however, with the proposed expansion of the exemption in § 40.13(c)(7) (discussed further in Section A.5 of this document), persons currently manufacturing thorium-coated lenses under the general license would be required to obtain a specific license if the lenses are distributed for use under the expanded exemption.

A specific license for the initial distribution of products for use under an exemption listed in § 40.13(c) would be issued only by the NRC, including for those persons located in an Agreement State, under a new provision § 40.52, “Certain items containing source material; requirements for license to apply or initially transfer.” Conditions for the proposed § 40.52 licenses are being proposed in a new provision § 40.53, “Conditions of licenses issued under § 40.52: Quality control, labeling, and records and reports.” In 10 CFR 150.15, the Commission retains the authority to license the transfer of possession or control by the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source material or byproduct material whose subsequent possession, use, transfer, and disposal by all other persons are exempted from licensing and regulatory requirements. The licensing of the export from and import into the United States of byproduct and source material is also wholly reserved to the Commission by this section. Thus, a distributor in an Agreement State involved in the initial transfer of materials or products containing byproduct or source material to exempt persons, whether a manufacturer or an importer, requires authority to distribute such material from the Commission in addition to any Agreement State license.

In the past, the Commission has chosen not to require licensing of the transfer of source material to exempt persons by manufacturers or importers of products in Agreement States (with the exception of the manufacture of counterweights to be used under § 40.13(c)(5)). This proposed rule, in requiring specific authorization for the initial transfer for sale or distribution of materials or products containing source material to exempt persons, in conjunction with 10 CFR 150.15, would clarify that distributors in Agreement States would need specific licenses, issued by the NRC, authorizing initial transfer of products containing source material for sale or distribution for use under the exemptions in § 40.13(c) or equivalent Agreement State regulations. However, the possession and use of materials or products containing source material by Agreement State licensees would continue to be regulated by the Agreement State.

Importers of finished products containing source material would be exempt from 10 CFR Parts 19 and 20—this is different than the existing regulations governing the initial transfer of byproduct material. The exemption from 10 CFR Parts 19 and 20 for importers of finished products is being proposed because the health and safety concerns for this type of distributor are no different than those for a secondary distributor of source material, who is neither currently, nor in the proposed rule, required to obtain a specific license for distribution. Importers of finished products would not be allowed to process the products and would not be expected to handle the products in any way that would create health and safety impacts beyond what is projected to occur under the exemption.

A specific license for the initial distribution of source material for use under the § 40.22 general license would be issued under a new provision § 40.54, “Requirements for license to initially transfer source material for use under § 40.22.” Conditions for the § 40.54 licenses are being proposed in a new section, § 40.55, “Conditions of licenses issued under § 40.54: Quality control, labeling, safety instructions, and records and reports.”

The process for obtaining a specific license to distribute source material is expected to be relatively straightforward. Applications for these specific licenses for distribution would be made through the provisions of § 40.31, “Application for specific licenses,” and applicants would be required to meet part or all of the provisions of § 40.32, “General requirements for issuance of specific licenses.” Regulatory Guide 10.4, “Guide for the Preparation of Applications for Licenses to Process Source Material,” which may be used by non-fuel-cycle source material applicants, already addresses the submittal of information on types and quantities of source material planned to be distributed to exempt persons. Under both proposed paragraphs § 40.13(c)(10) and § 40.22(e), an initial distributor would be allowed to continue distribution of products or materials containing source material for 1 year beyond the effective date of this rule. However, if an application for a specific license (or license amendment, in the case of an existing NRC licensee) has been submitted, the applicant would be allowed to continue their distributions while issuance of the license is pending. Persons legally importing products for possession under an exemption for their own personal use or to be given as a personal gift would not be required to obtain a specific license for those products. Similarly, persons importing source material for use under a general license would not be required to obtain a specific license unless they subsequently transfer the source material to another person for use under a general license or exemption.

The regulations contained in 10 CFR Part 40 currently do not require a person to obtain a specific license to distribute source material to persons exempt from licensing or to § 40.22 general licensees (with the exception of counterweights for which this is included as a constraint within the exemption in § 40.13(c)(5)). The regulations in § 40.51 allow such transfers to occur without a distribution license and do not require any reporting of the transfers. This is not true for byproduct material licensees, who are required in 10 CFR Part 32 to obtain a specific license for the initial distribution of byproduct material to persons exempt from licensing or for use under a general license. The import of exempt materials or products is generally licensed by 10 CFR 110.27(a)(2) and 10 CFR 110.27(a)(3) provides a general license for the import to those persons authorized to receive products or materials under a license. However, in the case of source material distribution to exempt persons or to § 40.22 general licensees, no other license is currently required, nor are there any requirements to report the transfer or receipt of the imported material.

Because of the lack of reporting requirements associated with the possession of source material under exemption or the § 40.22 general license, the NRC does not have a clear understanding of the amounts, types, or uses of source material under exemption or under the § 40.22 general license. Most information gathered by the NRC to date comes from a few specific licensees who have voluntarily provided distribution data. Because this information may not fully represent actual usage, it is difficult for the Commission to make risk-informed decisions in updating the related source material regulations. Without the proposed specific licenses for initial distributors, it would be difficult or impossible to enforce reporting requirements on unidentified distributors. Requiring initial distributors of source material to exempt persons or to certain general licensees to obtain a license for distribution would allow the NRC to track the amount and types of source material being distributed to those persons through proposed reporting requirements that would be associated with the new specific licenses.

A prohibition on distribution without a specific license is proposed in a new § 40.13(c)(10), which directs persons seeking to distribute source material to exempt persons, to the proposed new § 40.52. The proposed § 40.52 provides conditions for approval of a license application for initial distribution of source material to exempt persons. Additionally, the proposed § 40.53 contains a number of conditions for initial distributors including requirements for reporting and recordkeeping, quality control, and labeling.

The new reporting and recordkeeping requirements are proposed in § 40.53(c). An initial distributor of products for use under the exemption in § 40.13(c) would be required to submit a report, by January 31 of each year, regarding transfers made in the previous calendar year. The report would identify the distributor and indicate what products, types of source material and amounts, and number of units distributed.

The regulations contained in 10 CFR Part 40 were initially based on the assumption that the health and safety impacts of source material were low and that considerations of protecting the common defense and security were more significant. When the AEA was initially written, one of the major focuses was to ensure that the United States government would have an adequate supply of uranium and thorium as “source material” for atomic weapons and the nuclear fuel cycle. Exemptions from licensing were made for certain consumer products already in production, such as gas mantles containing thorium, and these exemptions have not been substantially modified since they were included in the original issuance of 10 CFR Part 40 in 1947. These exemptions essentially accommodated existing practice without much emphasis on health and safety. Recent studies have indicated that the manufacture and use of such products has decreased as alternative products, not containing source material, have become more readily available. Consistent with a policy statement on consumer products published on March 16, 1965 (30 FR 3462), the Commission has periodically made various evaluations of potential doses from exempt products to ensure that exposures from any individual exempt practice do not exceed a small fraction of the overall recommended dose limit for the public and that the combined effect of exposures from various exempt practices does not result in a significant impact to public health and safety. However, because the Commission has little data on distributions of source material to exempt persons, these evaluations for source material have been particularly difficult to conduct, and may not necessarily represent real world conditions.

The data collected by virtue of the proposed rule would provide the NRC with a more accurate and complete representation of material distributed to the public for use under exemptions in § 40.13(c). This would allow the NRC to recognize trends in distribution which could alter earlier estimates of individual or collective doses and affect earlier findings regarding health and safety. These changes would provide a better basis for considering any future regulatory changes in this area and in allocating the NRC's resources. The proposed reporting requirements would also aid in ensuring that exposures to the public from all sources controlled by the NRC are monitored and are unlikely to exceed 1 mSv (100 mrem) per year.

These proposed reporting and recordkeeping requirements are expected to impose a minimal burden on those persons requiring a specific license for initial distribution of source material, particularly given the current state of information technology. The first report may include information on transfers for which records have not been required; however, this information is expected to be available because of basic business recordkeeping practices. If exact numbers cannot be given for this first report, a best estimate for the whole calendar year would be acceptable.

In addition to reporting and recordkeeping, there are a few additional requirements being proposed for initial distribution of products for use under exemption. The new requirements would help to ensure that products being distributed were within the quantity or concentration limits for those exemptions that include such limits and that the products were properly labeled as currently required by the existing conditions in the exemptions.

In the NUREG-1717 assessment, it was identified that certain products containing source material and used under exemptions from licensing (e.g., welding rods and gas mantles) have the potential for routine exposures that are higher than is generally acceptable for use under exemption. However, the use of thorium in these products has significantly declined, being replaced by rare earth compounds, such as lanthanum and yttrium. As a result, routine use of thorium containing products of these types by individuals to the exclusion of similar products containing rare earths is less likely and typical exposures to users is likely less than previously estimated. At the same time, the likely exposures can be limited by the user who is properly informed concerning the inherent risks of exposures and methods for reducing exposure. Thus, rather than eliminate these exemptions, the Commission is proposing to include in the proposed distributor requirements the requirement to provide safe handling instructions. Some distributors have done so voluntarily in the past. Welding has other inherent risks, thus, welding rod manufacturers and importers are required by Occupational Safety and Health Administration regulations to prepare and distribute Material Safety Data Sheets (MSDSs) on the use of welding rods. While these identify the presence of thorium for thorium-containing welding rods, they typically do not include information specifically about the radiological hazard.

New fee categories and initial fee amounts for this new specific license type are being proposed as revisions to 10 CFR Parts 170 and 171. There would be a category for the distribution aspect and a separate one for manufacturing or processing. The applicants and licensees under the proposed licensing provision § 40.52 would come under a newly established fee category, 2.C. “Licenses to distribute items containing source material to persons exempt from the licensing requirements of 10 CFR Part 40 of this chapter” (the current 2.C. “All other source material licenses” is proposed to be redesignated as 2.F. by this rule). This new fee category would apply to all initial distributors of products containing source material for use under § 40.13(c). The fee associated with this category would be the only fee required by the NRC of distributors whose possession and use of source material is licensed by an Agreement State or who only import finished products for distribution. There would be an additional fee category for those manufacturing or processing such products. This is similar to the breakdown of fees for manufacturers and distributors of exempt byproduct material. The initial fee associated with the distribution aspect of licensing for source material would be lower than those related to distribution of products containing byproduct material to exempt persons, because this rule would add more limited requirements applicable to the distribution aspect of licensing for source material. Proposed initial fee amounts for the proposed new category 2.C. are as follows: $7,000 for an application; $10,000 for the annual fee.

The new fee category for manufacturing and processing would be 2.E, “Licenses for possession and use of source material for processing or manufacturing of products or materials containing source material for commercial distribution.” It is proposed that the initial fees associated with manufacturing or processing be the same amount as those that currently apply to a manufacturer of a product containing source material that now comes under the current fee category 2.C, “All other source material licenses.” These fees are currently $10,100 for an application and $17,400 for the annual fee, but will change to $10,200 and $21,100, respectively, on August 16, 2010, as a result of the 2010 Fee Rule published on June 16, 2010 (75 FR 34220). It is proposed that the initial fee amounts applicable to the proposed new fee category 2.E. be the same as those for the current category 2.C. at the time this proposed rule is finalized and the requirements are made effective. These amounts are subject to change prior to the finalization of this proposed rule.

After the implementation of this proposed rule, the fee amounts for these new categories would change annually in accordance with NRC policy and procedures. Biennially, the NRC evaluates historical professional staff hours used to process a new license application for materials users fee categories which often results in changes to the flat application fees. In addition, results from the biennial review impacts the annual fee for the small materials users since the NRC bases the annual fees for each fee category within this class on the application fees and estimated inspection costs for each fee category. Each year the annual fee for the materials users is calculated using a formula which distributes the NRC allocated budget amount for the small materials users to the various fee categories based on application fees, inspections costs, inspection frequency, and the number of licensees in the fee category.

The prohibition on distribution without a specific license in the proposed § 40.22(e) directs persons seeking to distribute source material to § 40.22 general licensees to the proposed new § 40.54. The proposed § 40.54 provides conditions for approval of a license application for initial distribution of source material to § 40.22 general licensees. Additionally, the proposed § 40.55 contains a number of conditions for initial distributors including requirements for reporting and recordkeeping, labeling, and notifications.

The proposed rule would add § 40.55(d) and (e) to establish reporting and recordkeeping requirements for initial distributors of source material to persons generally licensed under § 40.22 or equivalent Agreement State provisions. The rule would require that transfers be reported to the NRC and, if applicable, to the Agreement State where the material is transferred, annually by January 31. The report would cover transfers of source material completed in the previous calendar year. The reports would identify each general licensee receiving quantities of source material greater than 50 grams (g) (0.11 lb) within any calendar quarter by name and address, the responsible agent who may constitute a point of contact between the NRC or the Agreement State agency and the general licensee, and the type, physical form, and quantity of source material transferred. In addition, the distributor would be required to report the total quantity of source material distributed each calendar year, including those transfers of less than 50 g (0.11 lb) in a quarter to any person.

When the small quantity general license was originally granted, it was intended to be used by pharmacists and physicians for medicinal purposes and by educational institutions and hospitals for educational and medical purposes (although the general license was later revised in 1980 to prohibit use for medicinal and medical purposes). When the general license was expanded in 1961, both in terms of how much material and what it could be used for, no consideration was made to include reporting requirements at the time. As a result, the NRC has not been able to readily identify persons using source material under this general license nor verify its proper use.

The proposed reporting requirements, when also applied to distributors in Agreement States by those States, would help the NRC identify § 40.22 general licensees using larger quantities of source material. This would enable the NRC to better communicate with or inspect these general licensees, if necessary, to ensure that public and worker health and safety is adequately protected. The Commission would also use collected data to assess the extent of use of this general license in order to better evaluate alternatives for future revisions to this general license. Because the proposed reporting requirement is intended to apply only to anyone initially distributing source material to § 40.22 general licensees, transfers of source material from general licensee to general licensee would still not be reported.

Records of the initial transfer of source material for use under § 40.22 would be required to be stored for 1 year after inclusion in a report to the Commission or to an Agreement State agency. Maintaining records for this length of time will facilitate the licensee's preparation of the report and allows for verification of the accuracy of the report by the NRC or the Agreement State. This is shorter than the recordkeeping requirements for transfers of generally licensed devices in byproduct material regulations. For generally licensed devices, longer recordkeeping is appropriate because of the possible need for tracing particular devices if generic defects were identified.

These proposed reporting and recordkeeping requirements are expected to impose a minimal burden on those persons requiring a specific license for initial distribution of source material, particularly given the current state of information technology. The first report may include information on transfers for which records have not been required; however, this information is expected to be available because of basic business recordkeeping practices. If exact numbers cannot be given for this first report, a best estimate for the whole calendar year would be acceptable.

In addition to reporting and recordkeeping, there are a few additional requirements being proposed for distribution of material for use under § 40.22 and equivalent Agreement State provisions. The new requirements would primarily require the licensee to ensure the quantity or concentration of material is as labeled. The initial distributors would be required to provide to their customers copies of key relevant regulations and radiation safety precautions and instructions. Requiring initial distributors to provide copies of such regulations would make the recipient aware that the source material is possessed under a general license and what the requirements are under that general license.

New fee categories and fee amounts for this new specific license type are being proposed as revisions to 10 CFR Parts 170 and 171. The applicants and licensees under the proposed licensing provision § 40.54 would come under a newly established fee category, 2.D. “Licenses to distribute source material to persons generally licensed under 10 CFR Part 40 of this chapter.” Proposed initial fee amounts are as follows: $2,000 for an application; $5,000 for the annual fee. These applicants and licensees would also be subject to the proposed new category, 2.E., “Licenses for possession and use of source material for processing or manufacturing of products or materials containing source material for commercial distribution.” As discussed in section A.2 of this document, the initial fee amounts for this category would be equal to the fee for current fee category 2.C at the time this proposed rule is finalized and the requirements are made effective. These fee amounts would subsequently be revised in accordance with applicable NRC policy and procedures.

The Commission currently has no licensees under the existing licensing provision of § 40.34, which also authorizes distribution to a category of general licensees (those licensed under § 40.25 and Agreement State equivalent provisions). The proposed new fee categories 2.D. for persons who initially distribute source material to general licensees and 2.E. for manufacturing or processing of source material for commercial distribution would also cover future NRC applicants and licensees that apply for or possess a license under § 40.34.

The NRC is proposing to revise § 40.22, “Small quantities of source material,” in its entirety.

Under the proposed § 40.22(a), the general license would be limited to thorium and uranium in their natural isotopic concentrations and depleted uranium. This differs from the existing § 40.22(a) which allows possession of any isotopic concentration of source material. Certain radionuclides of uranium and thorium, when isotopically separated, have the potential to present significantly higher doses, in particular, thorium-228, thorium-229, and uranium-232. Thorium-230 when separated from the uranium decay series is also a higher specific activity material. Although the NRC is not aware of these isotopes being separated for commercial use, if the separated isotopes were readily available, the current provisions of § 40.22 would allow a person to receive quantities large enough in terms of activity to present a security concern without obtaining a specific license. The proposed revised general license would limit uranium and thorium to their natural isotopic concentrations or as depleted uranium to ensure that persons could not obtain these much higher specific activity materials in an isotopically separated form without the authorization and safety controls provided by a specific license.

Under the proposed § 40.22(a)(1), the general licensee would be limited to possession of less than 1.5 kg (3.3 lb) of uranium and thorium at any one time and 7 kg (15.4 lb) per calendar year for all uranium and thorium that is in a dispersible form or has been processed by the general licensee. Under the current general license, assurance of safety is based primarily on two limiting conditions: (1) The amount of source material that may be used at any one time and (2) the amount that may be obtained in any calendar year. It had been assumed that the activities likely to be conducted under the general license would be unlikely to result in significant intakes of source material. These conditions, however, may not be totally effective in affording a proper level of safety as raised by PRM-40-27 and substantiated by the PNNL study. PRM-40-27 and the PNNL study indicate that situations can occur that exceed limitations under which certain requirements in 10 CFR Parts 19 and 20 usually would apply to specific licensees. These situations primarily result from the use of source material used or possessed in a dispersible form.

In PRM-40-27, the petitioners stated that they had identified a site, where source material was likely possessed under the general license in § 40.22, that had significant amounts of surface contamination from source material. The petitioners indicated that resultant exposures for the source material contamination were significantly above the dose limits (possibly as high as 1 rem (10 mSv) per year) allowed to members of the public in 10 CFR Part 20.

The PNNL study confirmed that such exposures were possible under the existing § 40.22 general license conditions and indicated that unprotected workers exposed to thorium and uranium powders during the lens manufacturing process, as licensed under a § 40.22 general license, can potentially receive an annual internal radiation dose up to 5.6 mSv (560 mrem), and an annual committed effective dose approaching 8 mSv (800 mrem) without regard to excess contamination. This type of manufacturing process uses source material in a powdered form which allows for a greater chance of inhalation or ingestion of the source material. Although the Commission expects that these doses from manufacturing may be tremendously reduced if the process is performed in hot cells or if workers generally use respiratory protection (e.g., dust masks) in response to other regulatory requirements, the NRC is concerned about the potential exposures because a § 40.22 licensee is not required to meet the health and safety requirements for protection against radiation in 10 CFR Part 20 nor the training requirements in 10 CFR Part 19.

The proposed new limits in § 40.22(a)(1) are intended to reduce the likelihood that a person operating under a general license would be able to exceed dose limitations in 10 CFR Parts 19 and 20, which would require additional controls if the person were specifically licensed. Based upon the bounding dose calculations in the PNNL study, the NRC expects this proposed lower quantity to limit the potential for a worker to be exposed at levels exceeding 1 mSv (100 mrem) per year. In addition, by limiting the amount of such source material allowed to be received in a calendar year, the NRC expects that the potential for surface contamination buildup (similar to that identified in PRM-40-27) would also be reduced. By reducing the amount of source material that is available for inhalation and ingestion, the NRC has concluded the exemptions to 10 CFR Parts 19, 20, and 21 would continue to be acceptable.

It is expected that a small number of persons currently possessing and using source material under the existing general license may be required to obtain a specific license for continued use of the source material under this proposed rulemaking. Persons currently possessing source material in dispersible forms, or processing source material, in quantities greater than 1.5 kg (3.3 lb) of uranium and thorium at any one time, or receiving more than 7 kg (15.4 lb) of uranium and thorium in 1 year, would be required to obtain a specific license if they could not reduce their possession and use of the source material to below the proposed new limits.

Under the proposed § 40.22(a)(2), the general licensee would be allowed to possess up to 7 kg (15.4 lb) total uranium and thorium at any one time as long as any source material possessed in addition to that possessed under the limits in § 40.22(a)(1) is in a solid, non-dispersible form (e.g., a metal or sintered object; contained in protective envelope or in a foil; or plated on an inactive surface) and not chemically or physically altered. The licensee is limited to the receipt of no more than 70 kg (154 lb) of uranium and thorium per calendar year. If the licensee does physically or chemically alter the solid source material, that altered source material would be required to fall within the 1.5 kg (3.3 lb) at one time limit and no more than 7 kg (15.4 lb) per calendar year limits of the proposed § 40.22(a)(1). Because the greater impact from the possession and use of source material results from inhalation or ingestion, allowing source material, in a solid, non-dispersible form, to continue to be possessed at a limit of 7 kg (15.4 lb) at any one time is not expected to significantly impact health and safety of workers handling or near such material because of the unlikely chance of inhalation or ingestion.

Under the proposed § 40.22(a)(3), persons treating drinking water by removing uranium for the primary purpose of meeting U.S. Environmental Protection Agency regulations, would continue to be allowed to possess up to 7 kg (15.4 lb) of uranium at one time and process no more than 70 kg (154 lb) of uranium per calendar year. The NRC has concluded that the types of activities used to remove uranium from drinking water adequately contain the uranium to protect worker health and safety. The NRC also is concerned that the implementation of reduced possession limits on such persons could significantly impact operating costs, if such facilities are required to obtain specific licenses, and thereby impact their ability to provide safe drinking water. Although persons operating such facilities would not be impacted by changes in possession limits, they would be required to meet the other requirements of the proposed rule. However, these persons continue to have multiple options for operating within the NRC's regulations, including operation under a specific license or applying for enforcement discretion as discussed in the 2006 Regulatory Information Summary (RIS-2006-020), “Guidance for Receiving Enforcement Discretion When Concentrating Uranium at Community Water Systems,” dated September 14, 2006.

The proposed § 40.22(b) primarily provides clarification of how existing regulations apply to § 40.22 general licensees. Paragraph 40.22(b)(1) restates an existing requirement prohibiting the administration of source material to humans, unless authorized by a specific license.

Under the proposed § 40.22(b)(2), the NRC is clarifying disposal requirements for source material possessed under § 40.22. Because § 40.22 currently exempts the general licensee from the requirements in 10 CFR Part 20, one can infer that disposal of source material may be exempt from regulation because 10 CFR Part 20 includes disposal requirements. However, there is no exemption from § 40.51 which includes transfer provisions for licensees (including general licensees) which, depending upon how the general licensee disposes of the material, may be applicable and therefore limit disposal opportunities. The NRC is proposing in § 40.22(b)(2) to specifically prohibit abandonment of source material but allow up to 0.5 kg (1.1 lb) of source material per calendar year to be permanently disposed of without further NRC restrictions as long as the source material is in a solid, non-dispersible form (e.g., a metal brick, encapsulated in cement, etc.). The person receiving the source material to be permanently disposed would still be required to meet the applicable regulations of other agencies regarding such disposals. The NRC concludes that such small quantities would allow small general licensees (e.g., educational institutions) to economically dispose of the source material and would result in minimal impact to public health and safety because its form would limit ingestion and inhalation of the source material. The person receiving source material transferred under the provisions of § 40.22(b)(2)(i) would not be subject to further regulation by the NRC to the extent that the source material received under this provision was promptly and permanently disposed of by the recipient. Larger quantities of source material would be required to be disposed of as radioactive material through the provisions of § 20.2001 (e.g., at an appropriately licensed disposal facility, or below the effluent release concentrations in 10 CFR Part 20, etc.) or transferred to another person otherwise authorized to receive the source material.

Because § 40.22 does not currently exempt the general licensee from other requirements in 10 CFR Part 40, the NRC is proposing in § 40.22(b)(3) to direct the general licensee's attention to other applicable sections of 10 CFR Part 40. Similarly, § 40.22(b)(5) directs the general licensee's attention to regulations regarding export of source material.

As part of its attempt to evaluate the current use of source material under the general license, the NRC found it difficult to obtain significant information voluntarily from general licensees. The proposed new condition in § 40.22(b)(4) would clearly obligate general licensees to respond to the NRC's written requests within 30 days.

As identified in PRM-40-27, contamination may become problematic for some persons using source material under the general license. The NRC is concerned that not only might a licensee not attribute what could be significant amounts of source material contamination to its possession limits but also, such as in the case identified in PRM-40-27, might abandon significant amounts of source material in place. This abandonment could result in other persons that later inhabit the facility from unknowingly exposing their workers or others to the source material contamination. As a result, in proposed § 40.22(c), the NRC is proposing to require the general licensee to minimize contamination at the site and ensure that the site is cleaned up to be protective of future worker and public health and safety. If the general licensee identifies evidence that there may be significant contamination, the license would be required to notify the NRC and may consult with the NRC as to the appropriateness of sampling and restoration activities. The goal of this requirement is to reduce the likelihood that any remaining contamination would have the potential to result in the 25 mrem (0.25 mSv) limits in § 20.1402 being exceeded. The NRC would expect a licensee to identify a concern about significant contamination based on both visual inspection (i.e., particulates remaining from operations) and operational and historical data (e.g., operations often resulted in airborne or dispersed particulates or there were history of spills, etc.). If there is any doubt as to whether remaining contamination may be considered significant, the licensee should consult with the NRC or a health physics consultant.

In the proposed § 40.22(d), the NRC is proposing to continue to exempt persons generally licensed under § 40.22 from 10 CFR Parts 19, 20, and 21, with the exceptions concerning disposal and decommissioning in proposed § 40.22(b)(2) and (c). In addition, the NRC is proposing that this exemption would not extend to any NRC specific licensee; in the current regulation only 10 CFR Part 40 licensees are excluded. This modification is expected to provide minimal impact to those other specific licensees who possess source material under the general license, because they would already be subject to 10 CFR Parts 19, 20, and 21 for other licensed materials.

Paragraph 40.13(c)(7) exempts thorium contained in finished optical lenses, provided that each lens does not contain more than 30 percent by weight of thorium and meets certain use limitations, including that the thorium not be contained in contact lenses, spectacles, or eyepieces in binoculars or other optical instruments. Thorium is used in or on lenses to modify optical properties of the lens. The exemption, when originally established, was intended for uses where the thorium was homogonously spread throughout the lens. However, more recently, manufacturers are more likely to apply a thin coating of thorium to the lens; this has brought up concerns of the applicability of the existing exemption for such coated lenses. Also, NRC has identified that source material may also be used as a coating on mirrors.

To clarify the regulatory status of these coated lenses and to address coatings on mirrors, the rule proposes three changes to the existing exemption: (1) Expand the exemption to include source material in or on finished coated lenses and mirrors; (2) reduce the source material limit from 30 percent by weight to 10 percent by weight for products distributed in the future; and (3) expand the exemption to include uranium. The remaining limitations on use would continue to apply.

Although historical information indicates that lenses containing up to 28 percent by weight of thorium oxide were manufactured in the past, most lenses that have been possessed under this exemption have contained concentrations closer to 10 percent by weight of thorium. The NRC has not been able to identify any manufacturers or distributors of lenses containing homogeneous amounts of thorium since 1980, because the industry appears to have moved to using thorium as a thin-film coating on the surface of lenses. The NRC's evaluation found that thin-film coated lenses contain a significantly lower total mass of thorium than that generally found in the same size homogeneous lenses. In addition, the NRC has learned that certain lens manufacturers also use thorium in combination with uranium to achieve desired properties. Although a coated lens does not contain the source material homogeneously within the lens (as is the case with lenses that may currently be possessed under the exemption), the PNNL study indicated that doses from both normal and accident conditions from lenses coated with either or both uranium and thorium were estimated to be well below 10 microsievert (μSv) per year (1 mrem per year). As a result, the NRC is proposing to expand the exemption to include these thin-film coatings and to also apply the exemption to lenses and mirrors containing uranium. The NRC's expectation is that the source material would be fixed onto the lens or mirror and not readily able to be removed from the surface. The exemption prohibits and would continue to prohibit shaping, grinding, polishing, and any other manufacturing process other than assembling the finished lens into an optical system or device.

The NRC is also proposing to revise § 40.13(c)(7) to limit the source material contained on or in the lens to no more than 10 percent by weight of source material across the volume of the lens, although lenses containing up to 30 percent by weight of thorium that were produced prior to the effective date of this rule would continue to be covered by this exemption from licensing. Based on information that the manufacture of lenses containing homogeneous thorium is no longer occurring and that the majority of lenses currently being manufactured, contain concentrations less than 10 percent by weight of thorium, this reduction in the limit is expected to have minimal impact on industry. The actual percent by weight of source material on a thin-coated lens is expected to be well below this limit as averaged over the entire lens.

Paragraph 40.13(c)(2)(iii) exempts glassware containing up to 10 percent source material by weight. Although the estimated doses associated with this exemption are acceptable, the benefit from this use of source material is limited to achieving a unique color and glow in the glassware. Such glassware has been used in products such as dinnerware and toys. This use of source material might be considered frivolous, which is not in keeping with the policy of the Commission with regard to consumer products. However, this use predates the AEA, has been ongoing for decades, and continues today. Current manufacturing is relatively limited and the concentration in any recently produced items appears to be less than 2 percent source material (uranium). The one NRC-licensed manufacturer maintains concentration in products to within 1 percent by weight uranium. This rule proposes to limit products manufactured in the future to no more than 2 percent by weight source material. This would have minimal impact on the industry, limited to any costs associated with ensuring and documenting that products do not exceed this limit. It would ensure that doses to members of the public exposed to products distributed for use under this exemption in the future would be unlikely to exceed 10 μSv (1 mrem) per year. This is more appropriate for products with minimal societal benefit and is consistent with the concept of ALARA (as low as reasonably achievable).

Some exemptions from licensing are considered obsolete in that no products are being distributed for use under the exemption. In at least one case, no products covered by the exemption remain in use. Generally, this has occurred because new technologies have made the use of radioactive material unnecessary or less cost-effective.

The NRC is proposing to delete exemptions for products that are no longer being used or manufactured, or to restrict further distribution while allowing for the continued possession and use of previously distributed items. NUREG-1717 describes the various products covered by the individual exemptions. Two of the conclusions in that report concerning distribution are:

• For § 40.13(d): It is believed that fire detection units containing source material have not been manufactured for commercial use; and

• For § 40.13(c)(2)(i): The exemption for ceramic tableware containing source material could result in significant doses, which might be of concern, if used as one's everyday dinnerware.

The exemption in § 40.13(d) would be removed; however, in the unlikely event that persons possess products covered by this provision, this action would not change the regulatory status of any products previously manufactured in conformance with the provisions of the regulations applicable at the time. In the case of ceramic tableware, the proposed rule would limit the exemption to previously manufactured products. This action would provide assurance that health and safety are adequately protected from possible future distribution. Preliminary estimates indicated a potential for exposures higher than is appropriate for materials being used under an exemption. However, these were estimated using particularly conservative assumptions for routine use, rather than the more typical use as a collectable.

Deleting the provision in § 40.13(d) would simplify the regulations by eliminating extraneous text. Also, the Commission periodically reevaluates the exposure of the general public from all products and materials distributed for use under exemption, to ensure that the total contribution of these products to the exposure of the public will not exceed small fractions of the allowable limits. Eliminating obsolete exemptions would add to the assurance that future use of products in these categories would not contribute to exposures of the public and would also eliminate the need to reassess the potential exposure of the public from possible future distributions of these products.

There are other products covered by the exemptions in § 40.13(c) for which distribution is very limited and may have ceased, however, without the types of distributor requirements now being proposed, it is difficult to be certain concerning whether any distribution continues.

This risk-based approach to exemptions is in line with the strategic plan of the NRC.

This proposed rule would affect manufacturers and distributors of certain products and materials containing source material, and persons using source material under the general license in § 40.22. Certain persons initially transferring source material to exempt persons or general licensees would be required to obtain a specific license for such distribution. Certain persons currently possessing a general license under § 40.22 may be required to obtain a specific license for the continued possession and use of source material if they cannot adapt their operations to the newly proposed possession limits or if they initially transfer products containing source material. The proposed rule would exempt persons who possess thorium or uranium coated lenses or mirrors from licensing requirements for those lenses and mirrors through a proposed revision to § 40.13(c)(7).

The NRC has identified specific questions related to this proposed rulemaking as well as some questions for consideration in potential future rulemakings.

The NRC seeks comments, in particular, on the following specific questions presented in the proposed rulemaking:

(1) In the proposed expansion to § 40.13(c)(7), the exemption is limited by a concentration limit. It is expected that coatings on lenses are always very thin in practice such that it is unlikely that coated lenses would be near the concentration limit. However, a concentration limit may not be the most appropriate control, as it is generally not appropriate for surface contamination or hot spots to be averaged with other material for comparison to a concentration limit. Should other controls (e.g., mass or activity limit) be used and if so, what limits should be considered?

(2) On the proposed revision to the general license for small quantities of source material in § 40.22, is the limitation to natural or depleted uranium and natural thorium the most appropriate way to prevent persons from obtaining source material radionuclides with high specific activities without applying for a specific license? Does this adequately protect public health and safety from, for example, thorium-230 extracted from ore high in uranium content? Should an activity limit(s) be added to the weight limit? If so, what activity limit would adequately protect health and safety without adding significant implementation burden for ensuring the activity limit(s) are not exceeded?

(3) In § 40.22(c), the NRC proposes to require persons to contact the NRC if they identify significant contamination but does not specifically identify what is considered to be significant contamination. Is this a reasonable approach or are there other approaches the NRC should consider? Should the NRC prescribe what is considered significant contamination, and if so, what should be defined as significant contamination? Should the NRC instead specifically require general licensees to complete surveys in accordance with the provisions of § 20.1501 to ensure that the limits in § 20.1402 are not exceeded, in particular for those licensees possessing source material under the proposed § 40.22(a)(1)? Would a requirement for such surveys result in unnecessary expenses, particularly for general licensees possessing very small quantities, or should such a requirement be limited and if so, how?

(4) In assessing proposed changes to § 40.22, has the NRC properly identified and assessed the range of activities undertaken under the existing general license? Has the NRC overestimated or underestimated the potential for impacts from such operations and if so, how (e.g., is there exposure data available that the NRC did not have available during development of the proposed rule, but should be considering)? Similarly, are the assumptions discussed in the proposed revisions to exemptions in § 40.13 correct (i.e., are some products still being manufactured at concentration levels above the proposed concentration limits)?

(5) In § 170.31, the NRC is proposing to add new categories 2.C., 2.D., and 2.E. and associated fees for applications for those categories. Similarly, in § 171.16, the NRC is proposing to add new categories 2.C., 2.D., and 2.E and associated annual fees to the table in paragraph (d). In both situations, the proposed new fees are based upon similar existing activities, although in future years these fees would be based upon actual NRC effort on these activities as data is accumulated. Are these new fee categories appropriate and are the initial fees reasonable?

(6) In § 40.22(b)(2)(ii), quantities of source material greater than 0.5 kg (1 lb) per year would be required to be disposed of as radioactive material through the provisions of § 20.2001 or transferred to another person otherwise authorized to receive the source material. Should the NRC consider other disposal alternatives for these larger quantities, such as in U.S. Environmental Protection Agency's Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste disposal facilities or RCRA Subtitle D municipal Solid waste landfills?

The NRC would also welcome preliminary input on the following issues for potential future rulemaking:

(1) Should the general license in § 40.22 be expanded to cover 11(e)2 byproduct material, i.e., mill tailings and wastes, to allow for small quantities, such as samples, to be more readily transferred for testing, for example? Given that the entire material is 11(e)2 byproduct material, and not just the uranium or thorium contained in the material, would higher weight limits be appropriate? If allowed, should any other conditions be changed (e.g., waste disposal, etc.) or added?

(2) Should explicit provisions be added to 10 CFR Part 40 and 10 CFR Part 70 to cover the inclusion of source material and special nuclear material in items in the sealed source and device registry, similar to 10 CFR 32.210?

(3) There has been little use of the provisions in §§ 40.25 and 40.34 for the use of depleted uranium under a general license. How could these provisions be revised to expand the likely use of these provisions and make the general license more useful to the regulatory program? Is the subjective nature of the findings in § 40.34(a)(3) and (b) concerning the usefulness of a product or device and the benefits from the use of the depleted uranium a deterrent to applicants/potential distributors? Also, should the exposure limits in § 40.34(a)(2) be reduced to 1 mSv (100 mrem) per year?

(4) Are there product exemptions in § 40.13(c) that should be considered obsolete and revised to allow only those products that were previously distributed? Are there other changes to the exemptions in § 40.13(c) that should be considered?

Recommendations for preparing your comments:

i. Identify the rulemaking: RIN 3150-AH15; docket ID NRC-2009-0084.

ii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iii. Describe any assumptions and provide any technical information and/or data that you used.

iv. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

v. Provide specific examples to illustrate your concerns, and suggest alternatives.

vi. Explain your views as clearly as possible.

vii. Make sure to submit your comments by the comment period deadline identified.

viii. Section VI of this document contains a request for comment on the compatibility designations for the proposed rule; Section VII contains a request for comments on the use of plain language; Section IX contains a request for comments on the environmental assessment; Section X contains a request for comments on the information collection requirements; Section XI contains a request for comments on the draft regulatory analysis; and Section XII contains a request for comments on the impact of the proposed rule on small businesses.

10 CFR 30.6(b)(1)(iv)—Would add a reference to new § 40.52 as a licensing category not delegated to the NRC Regions.

10 CFR 40.5(b)(1)(iv)—Would add a reference to new § 40.52 as a licensing category not delegated to the NRC Regions.

10 CFR 40.8(b)—Would add sections to the list of information collection requirements.

10 CFR 40.13(c)—Would clarify that persons exempt from licensing requirements are also exempt from 10 CFR Parts 19, 20, and 21.

10 CFR 40.13(c)(2)(i)—Would restrict the exemption for use of source material in certain ceramic tableware to that previously manufactured.

10 CFR 40.13(c)(2)(iii)—Would revise the exemption for use of source material in glassware to reduce the limit of 10 percent by weight source material to 2 percent by weight source material for glassware manufactured in the future.

10 CFR 40.13(c)(5)—Would remove paragraph (c)(5)(i), as it is redundant with the new paragraph (c)(10), and renumber the subsequent paragraphs within (c)(5).

10 CFR 40.13(c)(7)—Would revise the exemption for use of source material in optical lenses to: (1) Reduce the limit of 30 percent by weight thorium to 10 percent by weight thorium for glassware manufactured in the future; (2) accommodate lenses with coatings; (3) add uranium to the material that may be combined with or on the lenses; and (4) add mirrors.

10 CFR 40.13(c)(10)—Would add paragraph (c)(10) to restrict initial distribution under the exemption and direct one to requirements for authorization under an NRC specific license to initially transfer or distribute source material.

10 CFR 40.13(d)—Would remove an obsolete exemption for use of source material in fire detection units.

10 CFR 40.22(a)(1)—Would apply a limit of 1.5 kg (3.3 lb) at any one time to certain forms of uranium and thorium that may be inhaled or ingested during normal working conditions and would restrict receipt to less than 7 kg (15.4 lb) per year.

10 CFR 40.22 (a)(2)—Would allow additional possession of certain forms of uranium and thorium that are not expected to be normally inhaled or ingested. However, the total amount of uranium and thorium possessed under the general license would still be limited to 7 kg (15.4 lb) at any one time and the receipt of no more than 70 kg (154 lb) of uranium and thorium per year.

10 CFR 40.22(a)(3)—Would allow persons removing uranium from drinking water to continue to possess up to 7 kg (15.4 lb) of uranium at any one time and to remove up to 70 kg (154 lb) of uranium from drinking water per calendar year.

10 CFR 40.22(b)(1)—Would continue to prohibit persons from administering source material, or the resulting radiation, either externally or internally, to human beings except as authorized by the NRC in a specific license.

10 CFR 40.22(b)(2)—Would clarify that any person who receives, possesses, uses, or transfers source material under § 40.22 may not abandon source material. The source material may be transferred under § 40.51 or permanently disposed. The general licensee would be allowed to dispose of up to a total of 0.5 kg (1.1 lb) per calendar year of source material through transfer to any person for permanent disposal as long as the source material is in a solid, non-dispersible form (e.g., metal brick, encapsulated in cement, etc.). The recipient of the source material would not be required to obtain a license from the NRC as long as it was permanently disposed. Permanent disposal of quantities of source material exceeding 0.5 kg (1.1 lb) of source material per calendar year or in non-solid forms (e.g., is readily ingested or inhaled) would be required to be in accordance with § 20.2001.

10 CFR 40.22(b)(3)—Would clarify which provisions in 10 CFR Part 40 apply under the general license.

10 CFR 40.22(b)(4)—Would add a provision to explicitly require that licensees must respond to written requests by the NRC.

10 CFR 40.22(b)(5)—Would clarify that export of source material is subject to 10 CFR Part 110.

10 CFR 40.22(c)—Would require that any person who receives, possesses, uses, or transfers source material in accordance with paragraph (a) of § 40.22 must conduct activities so as to minimize contamination of the facility and the environment.

10 CFR 40.22(d)—Would revise and move the requirements currently under paragraph (b) of this section to paragraph (d) of this section.

10 CFR 40.22(e)—Would restrict initial distribution for use under the general license to a specific license issued under § 40.54 or equivalent provisions of an Agreement State.

10 CFR 40.32(f)—Would add §§ 40.52 and 40.54 to the list of sections that have special requirements that need to be satisfied for the issuance of certain specific licenses.

10 CFR 40.52—Would establish requirements for a license authorizing distribution for use under the exemptions from licensing in § 40.13(c) and equivalent provisions of Agreement States.

10 CFR 40.53—Would establish requirements for licenses issued under § 40.52, including reporting and recordkeeping requirements for distributions of products for use under § 40.13(c) and equivalent provisions of Agreement States.

10 CFR 40.54—Would establish requirements for a license authorizing initial transfer or distribution for use under § 40.22 and equivalent provisions of Agreement States.

10 CFR 40.55—Would establish requirements for licenses issued under § 40.54, including reporting and recordkeeping requirements for distributions of source material for use under the general license in § 40.22 and equivalent provisions of Agreement States.

10 CFR 40.82(b)—Would add sections to the list of provisions that are not subject to criminal sanctions.

10 CFR 70.5(b)(1)(iv)—Would add a reference to the proposed § 40.52 as a licensing category not delegated to the NRC Regions.

10 CFR 170.31—Would add to the schedule of fees three new categories for distributors of source material.

10 CFR 171.16—Would add three fee categories for distributors of source material to the annual fees.

For the purpose of Section 223 of the Atomic Energy Act (AEA), the Commission is proposing to amend § 40.22 and add §§ 40.53 and 40.55 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs”approved by the Commission on June 30, 1997, and published in the Federal Register (62 FR 46517; September 3, 1997), this proposed rule would be a matter of compatibility between the NRC and the Agreement States, thereby providing consistency among the Agreement States and the NRC requirements. The NRC staff analyzed the proposed rule in accordance with the procedure established within Part III, “Categorization Process for NRC Program Elements,”of Handbook 5.9 to Management Directive 5.9, “Adequacy and Compatibility of Agreement State Programs” (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/).

NRC program elements (including regulations) are placed into four compatibility categories (see the Draft Compatibility Table in this section). In addition, the NRC program elements can also be identified as having particular health and safety significance or as being reserved solely to the NRC. Compatibility Category A are those program elements that are basic radiation protection standards and scientific terms and definitions that are necessary to understand radiation protection concepts. An Agreement State should adopt Category A program elements in an essentially identical manner to provide uniformity in the regulation of agreement material on a nationwide basis. Compatibility Category B are those program elements that apply to activities that have direct and significant effects in multiple jurisdictions. An Agreement State should adopt Category B program elements in an essentially identical manner. Compatibility Category C are those program elements that do not meet the criteria of Category A or B, but the essential objectives of which an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a nationwide basis. An Agreement State should adopt the essential objectives of the Category C program elements. Compatibility Category D are those program elements that do not meet any of the criteria of Category A, B, or C, above and, thus, do not need to be adopted by Agreement States for purposes of compatibility.

Health and Safety (H&S) are program elements that are not required for compatibility but are identified as having a particular health and safety role (i.e., adequacy) in the regulation of agreement material within the State. Although not required for compatibility, the State should adopt program elements in this H&S category based on those of the NRC that embody the essential objectives of the NRC program elements, because of particular health and safety considerations. Compatibility Category NRC are those program elements that address areas of regulation that cannot be relinquished to Agreement States under the Atomic Energy Act, as amended, or provisions of Title 10 of the Code of Federal Regulations. These program elements are not adopted by Agreement States. The following table lists the Parts and Sections that would be revised and their corresponding categorization under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs.”

The NRC invites comment on the compatibility category designations in the proposed rule and suggests that commenters refer to Handbook 5.9 of Management Directive 5.9 for more information. The NRC notes that, like the rule text, the compatibility category designations can change between the proposed rule and final rule, based on comments received and Commission decisions regarding the final rule. The NRC encourages anyone interested in commenting on the compatibility category designations in any manner to do so during the comment period.

The Presidential Memorandum “Plain Language in Government Writing” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the ADDRESSES heading in this document.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this proposed rule, the NRC would establish requirements for distributors of source material to persons exempt from regulation and to general licensees. In addition, the proposed amendments would modify the existing possession and use requirements for the general license for small quantities of source material to better align the requirements with current health and safety standards. The Commission is also proposing to revise, clarify, or delete certain exemptions from licensing to make the requirements for the use of source material under the exemptions more risk informed. The NRC is not aware of any voluntary consensus standards that address the proposed subject matter of this proposed rule. The NRC will consider using a voluntary consensus standard if an appropriate standard is identified. If a voluntary consensus standard is identified for consideration, the submittal should explain why the standard should be used.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, not to prepare an environmental impact statement for this proposed rule because the Commission has concluded on the basis of an environmental assessment that this proposed rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment.

The majority of the provisions in the proposed rule come within the scope of categorical exclusion in § 51.22, and as such, an environmental review is not necessary. The implementation of the remaining provisions of the proposed rule would not result in any significant negative impact to the environment. Proposed revisions to § 40.22 primarily provide additional limitations on, and clarify the requirements of, the § 40.22 general licensee, thus, potentially reducing the impact on environmental resources from the status quo. Similarly, certain exemptions are being revised or deleted to limit the future use of certain products containing source material. Although the NRC is proposing to expand the exemption from licensing in § 40.13(c)(7) to allow coated lenses, the NRC's evaluation indicated that these products contain significantly less source material than those currently authorized under the exemption. The Commission has determined that the implementation of this proposed rule would be procedural and administrative in nature.

The determination of this environmental assessment is that there would be no significant impact to the public from this action. However, the general public should note that the NRC welcomes public participation. Comments on any aspect of the Environmental Assessment may be submitted to the NRC as indicated under the ADDRESSES heading in this document.

The NRC has sent a copy of the Environmental Assessment and this proposed rule to every State Liaison Officer and requested their comments on the Environmental Assessment. The Environmental Assessment may be examined at the NRC Public Document Room, O-1F21, 11555 Rockville Pike, Rockville, MD 20852, or online at http://www.regulations.gov under Docket ID NRC-2009-0084.

This proposed rule contains new or amended information collection requirements contained in 10 CFR Part 40 that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq). These information requirements have been submitted to the Office of Management and Budget for review and approval of the information collection requirements. The proposed rule changes to 10 CFR Parts 30, 70, 170, and 171 do not contain new or amended information collection requirements.

Type of submission, new or revision: Revision.

The title of the information collection: 10 CFR Parts 30, 40, 70, 170, and 171; Distribution of Source Material to Exempt Persons and to General Licensees and Revision of General License and Exemptions.

The form number: NRC Form 313.

How often the collection is required: One time for licensing applications and amendments for new initial distribution licenses or for certain general licensees ceasing activities; annual for reports on initial distribution of source material; occasional for responses to direct NRC requests for information.

Who will be required or asked to report: Applicants and licensees who manufacture or initially distribute products or materials containing source material to persons exempt from the regulations or for use under a general license, and some users of source material possessed under a general license.

An estimate of the number of annual responses: 164.3 (10 CFR Part 19 = 1 response; 10 CFR Part 20 = 7 responses; 10 CFR Part 40 = 95 responses; NRC Form-313 = 12.3 responses, plus 49 recordkeepers).

The estimated number of annual respondents: 75 (10 CFR Part 19 = 1 respondent; 10 CFR Part 20 = 2.33 respondents; 10 CFR Part 40 = 75 respondents; NRC Form-313 = 11.3 respondents). Because some licensees may report under multiple parts, the total number of respondents for the proposed rule is 75 (40 NRC licensees plus 35 Agreement State licensees).

An estimate of the total number of hours needed annually to complete the requirement or request: 753.3 (10 CFR Part 19 = 45.3 hours; 10 CFR Part 20 = 255 hours; 10 CFR Part 40 = 361.4 hours, NRC Form-313 = 91.6 hours).

Abstract: The NRC is proposing to amend its regulations in 10 CFR Part 40 to establish new requirements for distributors of source material to persons exempt from the regulations or for use under a general license in § 40.22. In addition, the Commission is also proposing to modify the existing possession and use requirements for § 40.22 general licensees to align the requirements with current health and safety standards. Finally, the Commission is proposing to revise, clarify, or delete certain exemptions in § 40.13(c) to make the exemptions more risk informed. Conforming changes would be made to 10 CFR Parts 30, 70, 170 and 171. These changes would affect manufacturers and distributors of products and materials containing source material and future users of some products used under exemptions from licensing and under the § 40.22 general license.

Information collections would result from new requirements for certain persons initially distributing source material to obtain a specific license. These new specific licensees would be required to provide reports regarding their initial distributions of source material to the NRC and the Agreement States on an annual basis and maintain records of such reports, as well as meet existing information collection requirements in 10 CFR Parts 19 and 20. In addition, labeling requirements and notifications to recipients would be required for certain initial distributions of source material. Proposed revisions to the general license provisions in § 40.22 would specifically require the general licensee to respond to NRC requests for information in a timely manner and notify the NRC when ceasing activities if significant contamination is identified.

The NRC is seeking public comment on the potential impact of the information collections contained in the proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the information collection be minimized, including the use of automated collection techniques?

A copy of the OMB clearance package may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the signature date of this notice.

Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by October 25, 2010 to the Information Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or Internet electronic mail to NEOB-10202 (3150-AH15), Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collections may also be submitted via the Federal Rulemaking Web site http://www.regulations.gov, docket ID NRC-2009-0084. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

The Commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission.

The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading in this document. The analysis is available for inspection in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852, or online at www.regulations.gov under Docket Number ID NRC-2009-0084. Single copies of the draft regulatory analysis are available from Gary Comfort, telephone: (301) 415-8106, e-mail: Gary.Comfort@nrc.gov, or Catherine Mattsen, telephone: (301) 415-6264, e-mail: Catherine.Mattsen@nrc.gov, of the Office of Federal and State Materials and Environmental Management Programs.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. A significant number of the licensees affected by this action would meet the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121. However, none of the proposed revisions to the regulatory program would result in a significant economic impact on the affected entities.

The NRC's backfit provisions are found in the regulations at §§ 50.109, 52.39, 52.63, 52.83, 52.98, 52.145, 52.171, 70.76, 72.62, and 76.76. The requirements contained in this proposed rule do not involve any provisions that would impose backfits on nuclear power plant licensees as defined in 10 CFR Parts 50 or 52, or on licensees for gaseous diffusion plants, independent spent fuel storage installations or special nuclear material as defined in 10 CFR Parts 70, 72 and 76, respectively, and as such a backfit analysis is not required. Therefore, a backfit analysis need not be prepared for this proposed rule to address these classes of entities. With respect to 10 CFR Part 40 licensees, the NRC has determined that there are no provisions for backfit in 10 CFR Part 40. Therefore, a backfit analysis need not be prepared for this proposed rule to address part 40 licensees.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR parts 30, 40, and 70 and the following amendments to 10 CFR parts 170 and 171, as amended on June 16, 2010, at 75 FR 34220, effective August 16, 2010.

TTB received a petition from Sara Schorske of Compliance Service of American, prepared and filed on her own behalf and that of local wine industry members to establish the 4,600-acre Pine Mountain-Mayacmas viticultural area in northern California. About two-thirds of the proposed viticultural area lies in the extreme southern portion of Mendocino County, with the remaining one-third located in the extreme northern portion of Sonoma County.

The proposed Pine Mountain-Mayacmas viticultural area is totally within the multicounty North Coast viticultural area (27 CFR 9.30) and it overlaps the northernmost portions of the established Alexander Valley viticultural area (27 CFR 9.53) and the Northern Sonoma viticultural area (27 CFR 9.70).

In Notice No. 105 published in the Federal Register (75 FR 29682) on Thursday, May 27, 2010, we described the petitioners' rationale for the proposed establishment of the Pine Mountain-Mayacmas viticultural area and requested comments on the proposal on or before July 26, 2010.

On July 16, 2010, we received a letter request from attorney Richard Mendelson on behalf of the Napa Valley Vintners (NVV), a wine industry trade association. The request explained that due to the periodic scheduling of the NVV's committee and board of directors meetings, the group would be unable to meet the original July 26, 2010, comment deadline for Notice No. 105. The letter therefore requested a 45-day extension to the comment period for Notice No. 105 to allow the NVV to complete and thoroughly vet its comments on the proposed viticultural area.

In response to this request we extend the comment period for Notice No. 105 an additional 45 days. Therefore, the comments on Notice No. 105 are now due on or before September 9, 2010.

Michael Hoover of the Regulations and Rulings Division drafted this notice.

You may submit electronic comments to http://www.regulations.gov. When submitting comments electronically, you must include DOJ-CRT 0111 in the search field, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses.

Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Submission postings will include any personal identifying information (such as your name, address, etc.) included in the text of your comment. If you include personal identifying information (such as your name, address, etc.) in the text your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Comments on this ANPRM will also be made available for public viewing by appointment at the Disability Rights Section, located at 1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during normal business hours. To arrange an appointment to review the comments, please contact the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

The reason that the Civil Rights Division is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is because the inter-agency Regulations.gov/Federal Docket Management System (FDMS) which receives electronic comments terminates the public's ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes.

The Department will hold at least one public hearing to solicit comments on the issues presented in this notice. The Department plans to hold the public hearing during the 180-day public comment period. The date, time, and location of the public hearing will be announced to the public in the Federal Register and on the Department's ADA Home Page, http://www.ada.gov/.

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204(a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation--as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the title III regulation, at 28 CFR part 36, app. A, contains the ADA Standards for Accessible Design. On September 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (2008 NPRM) to adopt the revised ADA Standards and revise the title II and title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public's comments to the ANPRM and sought additional comment.

Although the Department did not propose to include NG 9-1-1 accessibility provisions in the 2008 NPRM, the Department received comments urging it to amend the title II rule to mandate that PSAPs move towards the implementation of NG 9-1-1 services that will provide voice and data (such as text, pictures, and video) capabilities so that they will be able to directly receive various kinds of voice-, text- and video-based “calls.” Several commenters, including the National Emergency Number Association (NENA) and the National Association of the Deaf, requested the development of standards for direct access to NG 9-1-1. Based on these comments and the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding NG 9-1-1 access should contain.

The Department's current title II regulation, as interpreted and administered by the Department, requires that PSAPs provide direct access to individuals with disabilities who use TTYs. 28 CFR 35.162. The Department has interpreted title II so as to require that PSAPs provide “direct, equal access” to 9-1-1 for individuals with disabilities who use TTYs. Direct access means that PSAPs must be able to directly receive TTY calls without relying on an outside relay service or third-party services, i.e., the PSAP must be able to engage in TTY-to-TTY calls. Equal access requires that 9-1-1 services provided for individuals who use TTYs be as effective as those provided for individuals who make voice calls, in terms of response time, response quality, hours of operation, and all other features offered (e.g., automatic number identification, automatic location identification, automatic call distribution). PSAPs also must follow proper procedures and practices when TTY calls are received, including Voice-Carry Over (VCO) and Hearing-Carry Over (HCO).2

The Department recognizes that many individuals with disabilities now rely on Internet Protocol (IP)-based and digital wireless devices, rather than analog-based TTYs, as their primary modes of telecommunications and 9-1-1 call-taking centers are shifting from existing traditional telephone emergency services to new IP-enabled NG 9-1-1 services. Therefore, this ANPRM seeks comments from members of the public and covered entities on possible revisions to the title II rule to establish new requirements and guidance to ensure that NG 9-1-1 services are made accessible to, and usable by, individuals with disabilities.

This ANPRM identifies specific issues on which the Department solicits comment. The Department is also interested in comments on any other issues that affect access to NG 9-1-1 services. The Department will consider all comments before deciding whether to propose revisions to the title II regulation.

The Department requests comments regarding appropriate steps to provide individuals with disabilities with access to NG 9-1-1 technology at 9-1-1 emergency call-taking centers, including converging 3 IP 9-1-1 technologies that are as effective as those provided for individuals without disabilities. In this ANPRM, the Department is asking two key questions: (1) What devices and modes of communication (voice, text, video, and data) are individuals with disabilities using to make “calls,” including emergency calls?, and (2) what steps should the Department take to ensure that any new IP-based PSAP platforms can receive direct calls from these devices?

As communication technologies are developing, individuals with disabilities are transitioning from analog or legacy devices to digital and IP-based devices. Among these devices are both wired and mobile videophones, text messaging wireless devices, including “smart” phones, as well as computers (including computers with Web cams) and captioned telephones. Many PSAPs or emergency 9-1-1 call-taking centers are not yet equipped to directly receive video calls or text calls over the Internet. As a result, individuals who have to call 9-1-1 using their IP-based videophone or texting device must call through third-party telecommunications relay services (TRS). TRS uses a relay operator called a communication assistant (CA) who relays the call between the caller using text or video and the PSAP.4 In most IP-based video-or text-relay services, the CA receives the call from the person originating the call, places the call to the PSAP, and then relays the conversation between the caller and the PSAP.5 Relay services are under the jurisdiction of the Federal Communications Commission (FCC).6

The 9-1-1 number has been designated for public use throughout the United States to report an emergency, request emergency assistance, or both. The original 9-1-1 system is based on traditional telephone technology, which cannot process text, data, image, and video sent from handheld devices and computers (e.g., personal digital assistant (PDA), cellular phone, portable media player, video phone, or camera). To address the changing technology, State and local governments are working to improve their 9-1-1 emergency communications systems and are moving towards an IP-enabled network. The ultimate goal is to have an emergency network that will enable the general public to make a 9-1-1 “call” via voice, text, or video from wired and wireless devices and directly communicate with personnel at the PSAP. Several States, regions, and counties, including Indiana, Montana, Vermont, Texas, Florida, Minnesota, Allegheny County, Pennsylvania and the District of Columbia, are either considering or implementing an IP network or next generation related components in preparation for NG 9-1-1. http://www.nena.org/ng911-project/state-status (last visited July 12, 2010).

The Department is aware of two PSAPs' efforts to provide access to individuals with disabilities who use smart phones as texting devices. For example, in 2003, the police department in Sacramento, California began to accept “9-1-1” e-mails from individuals with disabilities. That police department also has accepted e-mails from as far away as Los Angeles and Texas asking Sacramento police to relay emergency information to their local authorities. http://www.helpkidshear.org/news/media/2003/2003-11-21-cbs.htm (last visited July 12, 2010). Another PSAP, Black Hawk County, Iowa, recently started to receive and respond to short message service (SMS) messages from cell phones or pagers. See Enforcing the ADA, Update April, September 2009, page 12, available at http://www.ada.gov/aprsep09.pdf (last visited July 12, 2010). With these additional services, individuals with disabilities are able to report an accident or other emergency quickly using their PDAs, without the necessity of locating and using a TTY or relying on another person to report the incident

The Department is familiar with ongoing efforts by other Federal agencies to ensure that advances in telecommunications systems, including NG 9-1-1 services, are accessible for all Americans, including individuals with disabilities. The National E-911 Implementation Coordination Office (National 9-1-1 Office) issued in September 2009, a national plan (Plan) for migrating to IP-enabled 9-1-1 Systems. See National Plan for Migrating to IP-Enabled 9-1-1 Systems, available at http://www.ntis.gov/search/product.aspx?ABBR=PB2010102716 (last visited June 5, 2010). As required by the NET 911 Improvement Act, 47 U.S.C. 942(d), the Plan identified and analyzed 9-1-1 system migration issues and assessed potential options to resolve them. The Plan drew heavily from the United States Department of Transportation's (DOT) NG 9-1-1 Initiative work and findings. DOT had concluded that IP-enabled systems provide the optimal technical solution for future 9-1-1 networks. One of the requirements of the NET 9-1-1 Improvement Act is to identify solutions for providing 9-1-1 and enhanced 9-1-1 access to individuals with disabilities and needed steps to implement such solutions. 47 U.S.C. 942(d)(I). In addressing policy barriers and issues, the National 9-1-1 Office stated that “to foster the migration to IP-enabled 9-1-1, Federal * * * regulatory agencies will need to review current * * * regulations to keep pace with the rapidly changing 9-1-1 marketplace.” Plan, at 5-10.

Last year, DOT's National Highway Traffic Safety Administration and the United States Department of Commerce's National Telecommunications and Information Administration announced more than $40 million in grants to help PSAPs nationwide implement next-generation technologies.

Another Federal agency has called for action to ensure that IP technology is accessible to individuals with disabilities. The National Council on Disability, in its 2006 report, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination, 7 calls for such Federal action because experience has shown that market forces are not sufficient to ensure individuals with disabilities equal access to emerging technologies. As the responsible agency for writing regulations to ensure that 9-1-1 services are accessible to individuals with disabilities,8 in this ANPRM the Department is seeking comments from the public, including 9-1-1 stakeholders, in addressing barriers to NG 9-1-1 and ensuring access to NG 9-1-1 services.

The FCC has recently undertaken a number of broadband 9 initiatives. One of these initiatives seeks to improve the nation's current 9-1-1 system by establishing the foundation for the transmission of voice, data, or video to PSAPs during emergency calls. Broadband & Public Safety and Homeland Security, http://www.fcc.gov/pshs/broadband.html (last visited July 12, 2010). In another NG 9-1-1 matter, the FCC's Communications Security, Reliability and Interoperability Council's working group is considering ways that NG 9-1-1 architectures and technologies can provide access for individuals with disabilities. See http://www.fcc.gov/pshs/advisory/csric/wg-4b.pdf (last visited July 12, 2010). With respect to emergency calls made via TRS (i.e., through a relay operator), the FCC has implemented new numbering and E9-1-1 requirements for Video Relay Services and IP-Relay Services. New Numbering and E911 Requirements for VRS and IP Relay Video In American Sign Language (ASL), http://www.fcc.gov/cgb/dro/numbering_and_e911_for_vrs_ip.html (last visited June 5, 2010). Access to PSAPs via TRS is not addressed in this ANPRM.

The Department is seeking public comment on the issues discussed below. In addition to seeking comments in response to the specific questions raised in this ANPRM, the Department is particularly interested in receiving comments from all of those who have a stake in ensuring that NG 9-1-1 is accessible to individual people with disabilities, advocacy groups, representatives from Tribal, local, State, and Federal governments, public safety organizations, and industry professionals, about the potential application of the new requirements to plans for migration to, and deployment of, NG 9-1-1 services.

The prospect of developing new title II requirements for access to NG 9-1-1 raises a number of general issues, including determining which performance-based standards or technical specifications would better ensure access to NG 9-1-1 to determining the effective date for the application of the new provisions. Responses should clearly identify the specific question being addressed according to the numbered questions in this document.

Question 1. What modes of communication (e.g., voice, text, video, or data) do (or will) individuals with disabilities use to make direct calls to a PSAP, and from what types of devices would the calls be made?

IP allows several formats of text communications, divided into two types: real-time, and non-real-time. Real-time text communications refer to those that are sent and received on a character-by-character basis; the characters are sent immediately once typed and also displayed immediately to the receiving person. In an emergency, sending text communications to a PSAP in real-time may save valuable time that is needed to effectively respond to the emergency. Non-real-time communications rely on messaging capabilities where users “type-enter-wait-read-respond-reply”—e.g., short messages service (SMS) texts, multimedia messaging service (MMS), instant messaging (IM), text chat, and e-mail. When this type of messaging is used, messages can overlap one another. In an emergency, this could result in the caller or PSAP personnel responding to each other out of the order in which their communications were sent, creating some confusion or delay. The agenda for the FCC's National Broadband Plan states that this year, the FCC will open a proceeding to identify a reliable, interoperable, real-time text standard to enable consumers to communicate in a digital and IP-based environment. Broadband Action Agenda, http://www.broadband.gov/plan/national-broadband-plan-action-agenda.pdf at 4.10 (last visited July 12, 2010).10

Currently, telephone 9-1-1 technologies support TTYs, which provide text communications in an analog environment. Using IP-based devices, PSAPs would require a text gateway in order to converse with individuals using analog-based devices.

Question 2. Should the Department issue a requirement for NG 9-1-1 technologies to support text communications along with analog-based TTY communications? If so, should NG 9-1-1 text technologies be backward compatible with analog-based TTYs or should the two communication methods be available side by side?

Question 3. Which, if any, of the following text options should the Department designate as essential accessibility features of NG 9-1-1 to be incorporated into the initial deployment of an NG 9-1-1 system to assure equal access to emergency call-taking centers for individuals with disabilities?

a. Real-time text.

b. Short message service (SMS).

c. Instant messaging (IM).

d. E-mail.

e. Analog gateway.

f. Other modes of text communication.

The Department recognizes that all of these text options will benefit not only individuals who are deaf or hard of hearing, but also individuals with other disabilities who require an alternative mean to making a voiced 9-1-1 call due to their disabilities. The Department recognizes that a State or local government's NG 9-1-1 system may eventually provide all of these options in the future. However, the Department is interested in learning how each of the options would benefit individuals with disabilities in order to determine whether they should be designated as “essential” to providing access to NG 9-1-1.

Individuals with disabilities are increasingly using smart phones since they are currently the only accessible mobile devices available for text messaging (e.g., e-mail, SMS, or IM). Until NG 9-1-1 services are implemented, PSAPs will not be able to receive text messages sent directly to 9-1-1 from these devices.

Question 4. For this period, should a PSAP develop and implement an interim plan to receive text messages directly or via a third party? How should a PSAP develop an interim plan? What solutions should PSAPs consider as part of their interim plan?

Question 5. Are there significant issues related to the interoperability of messages sent by text that need to be addressed in any final regulation?

A technology that has emerged since publication of the original title II rule allows individuals who use sign language to communicate by video. An individual who communicates by American Sign Language (ASL) may use a videophone or other video device (e.g., a Web cam connector to a computer) to directly communicate in sign language with either another videophone user or a voice telephone user. In the latter case, videophones can be used to make TRS calls (Video Relay Service) or to use remote sign language interpreting services (video remote interpreting or VRI) when an in-person interpreter is not available. VRI is generally a fee-based service. NG 9-1-1 technologies will allow video phone users to make direct video calls to a PSAP and allow the callers and the emergency personnel to engage in virtual face-to-face communication.

The Department is seeking comments on what steps a PSAP, in providing video services, should take to ensure effective communication with a 9-1-1 caller who uses sign language for communication. One possible method of communication for handling a direct video-to-video call between the individual with disabilities and the PSAP would be through the use of VRI. Upon receipt of a request for sign language services, the PSAP would make a call to a VRI service center and connect the interpreter so that the interpreter appears on both the caller's and PSAP's video phone screens. The call would then become a 3-way video call between the caller and PSAP, both using the interpreter. The PSAP would see both the interpreter and caller on the PSAP's screen, and both the interpreter and the caller would see each other on their screens. Using this method, the PSAP would have the ability to “conference in” (virtually instantaneously) a qualified interpreter (in-house or in a remote facility)

Question 6. In implementing NG 9-1-1, should the Department amend its title II regulation to require each PSAP to provide VRI service? If so, should the Department regulate how to provide such service?

With NG 9-1-1, call routing allows the sharing of networks to route calls for multiple numbers (e.g., 2-1-1, 3-1-1, 8-1-1, suicide hotline, poison control). Also, NG 9-1-1 enables call access, transfer, and backup between and among 9-1-1 call-taking centers and between these centers and specialized emergency services.

Question 7. Should a center also be allowed to transfer a caller's call to a particular center where call takers are trained and fluent in oral/sign language interpreting services or where call takers are trained in working with individuals with speech impairments? If so, should a final rule address call routing policies that restrict or prohibit such transfers?

The title II rule requires that when an oral or sign language interpreter is necessary for effective communication, the interpreter must be “qualified.” The rule has defined “qualified interpreter” as “an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 CFR 35.104. Although the definition does not require “certified” interpreters, it does require interpreters with the necessary skills to interpret accurately in the particular context.

Question 8. In the context of NG 9-1-1, the Department is asking for public views on whether PSAPs should use only those interpreters who are specifically trained to handle emergency calls in using interpreting services on-site or via VRI.

Question 9. The Department also seeks comments on any other methods for ensuring equal access to NG 9-1-1 for individuals with disabilities. Should the Department issue standards for other methods to provide accessible NG 9-1-1 services? Should the Department require specialized training to ensure that these services can effectively respond to the needs of people with disabilities in an NG 9-1-1 environment?

The Department is aware of ongoing efforts by both the National Emergency Number Association (NENA) and the Association of Public-Safety Communications Officials International to develop technical standards for guidance to service providers, equipment manufacturers, and industry-related standard setting bodies. The Department has used the performance standard of “direct access” for PSAPs in enforcing title II.

Consistent with the Department's existing approach, the Department is considering the use of performance standards, as opposed to technical standards, as new title II requirements for access to NG 9-1-1. Two primary considerations support this approach. First, in light of evolving 9-1-1 technologies, it may not be feasible to have identical scoping and technical specifications nationwide to ensure disability access to NG 9-1-1. Second, performance standards would contain flexibility to allow operational standards, protocols, and best practices to be adopted and implemented to meet unique State and local circumstances and needs.

Question 10. Should any regulatory provision on NG 9-1-1 requirements under title II be performance-based, or should a final rule provide technical specifications for call-taking technology and equipment? Please provide as much detail as possible in support of your view.

Question 11. What are the technical issues that the Department should address in developing minimum standards?

NENA, a leading professional, nonprofit organization on 9-1-1 services, has actively worked with public safety, industry, and government groups, to develop technical and operational standards for NG 9-1-1 systems and services.

Question 12. Should the Department adopt any of NENA's standards as the minimum standards for direct access to NG 9-1-1 services for individuals with disabilities?

Speech-to-speech service (STS) is a form of TRS that involves the use of relay operators for people with speech disabilities who have difficulty being understood on the phone. STS relay operators are trained individuals familiar with many different speech patterns and language recognition skills. The relay operator makes the call and repeats the words exactly. Individuals using STS include those with cerebral palsy, Parkinson's disease, a laryngectomy, ALS, stuttering, muscular dystrophy, stroke, and other conditions affecting clarity of speech.11

Question 13. Should the title II regulation be amended to require that PSAPs directly receive calls from individuals with speech disabilities?

Public entities in many communities now send pre-recorded emergency alert messages to homes and businesses automatically by phone. For instance, emergency personnel can use emergency alerts to notify residents in the path of approaching wildfires, hurricanes, or tornadoes to seek immediate shelter or evacuate their homes. Emergency alert systems can also be set up to send emergency alert text messages to smart phones, TTYs, PDAs, and e-mail accounts. Many colleges and universities now use this kind of emergency alert system for their students, parents and staff.

Converging 9-1-1 technologies will make it possible to send automatic emergency alerts to any communication device—wired or mobile—via Internet networks. For instance, vehicles approaching a motor vehicle accident involving hazardous materials could be notified of the danger, thereby preventing other vehicles from further complicating the accident or hindering emergency personnel. The Department will not address any other emergency mass notifications, such as Federal efforts for a Common Alerting Protocol, a next generation alerting delivery system by which standardized alerts will be gathered from various alerting sources and distributed to the public (in text, audio and video) via information outlets, public safety alerting systems and personal communication devices.

Question 14. Should the regulation be amended to address sending emergency alerts to text, video, and other devices used by individuals with disabilities?

Title II of the ADA and the Department's implementing regulation provide that State and local government agencies must make reasonable modifications to their policies, practices, and procedures whenever necessary to avoid discrimination against individuals with disabilities unless making the modification would fundamentally alter the nature of the service, program or activity, or would result in undue financial and administrative burdens. 28 CFR 35.130(b)(7) (reasonable modifications in policies); 28 CFR 35.164 (undue burdens). A growing number of State and local governments have studied options for IP-based 9-1-1 networks in preparation for moving to NG 9-1-1 and have developed NG 9-1-1 migration/transition plans. The Department believes that in developing new or reviewing current NG 9-1-1 plans, State and local 9-1-1 agencies must include specific plans for equal access to NG 9-1-1 for individuals with disabilities.

Question 15. In their NG 9-1-1 plans, how should PSAPs address issues related to access for individuals with disabilities?

Any regulation in this area needs to address an effective date for the application of any proposed new title II requirements to upgrades to 9-1-1 networks with emerging IP technologies or existing NG 9-1-1 services. When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for public entities to become familiar with their new obligations. Title II of the ADA generally became effective on January 26, 1992, six months after the regulation was published.

Question 16. Should the effective date of any new title II requirements be modeled on the effective date used to implement the title II requirements and commence six months after publication of the final rule, or a longer period? If you favor a longer period, please indicate what period you favor and provide as much detail as possible in support of your view.

The term “triggering event” identifies the event or action that compels compliance with title II requirements. The Department's regulation implementing title II of the ADA (28 CFR Part 35) does not establish any separate triggering events for access to emergency telephone services. Many PSAPs are making transitions to new IP networks; it is expected that some may not be completed until after the effective date of the new requirements.

Question 17. If you favor a triggering event definition that looks to the date of deployment or upgrade, please provide as much detail as possible about what should constitute an IP deployment or upgrade.

Question 18. If you favor triggering events other than an IP deployment/upgrade, please state what event you favor and provide as much detail as possible to support your proposal.

The title II rule does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. 28 CFR 35.164. The Department has taken a long-standing position that, because of the essential nature of 9-1-1 services, that limitation would rarely be applied to the obligation to ensure effective communication in the context of 9-1-1.

Question 19. The Department seeks comments on whether there are certain circumstances where providing direct access to emerging NG 9-1-1 would be considered a fundamental alteration to the nature of the 9-1-1 service or be an undue financial or administrative burden on the PSAP. Please provide as much detail as possible.

Because this is an ANPRM, the Department is not required, at this time, to conduct certain economic analyses or written assessments that otherwise may be required for other more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules) that, for example, are deemed to be economically “significant” regulatory actions with an annual economic impact of $100 million or more or that are expected to have a significant economic effect on a substantial number of small entities or non-Federal governmental jurisdictions (such as State, local, or Tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 FR 6113 (Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 5, 2010). The Department does not currently believe that any future proposed rules relating to the accessibility of NG 9-1-1 services will likely meet the economic threshold for these types of formal economic analyses and written assessments.

Nonetheless, one of the purposes of this ANPRM is to seek public comment on various topics relating to NG 9-1-1 services, including perspectives from stakeholders concerning the benefits and costs of revising the Department's title II regulation to ensure the accessibility of NG 9-1-1 services (from both a quantitative and qualitative perspective), particularly from members of the disability community, governmental entities, and public safety organizations. The Department thus asks for information so that the Department can determine whether such a proposed rule (1) should be deemed an economically “significant regulatory action” as defined in section 3(f) of E.O. 12866; or (2) would have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA) and, if so, suggested alternative regulatory approaches to minimize any such impact. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.

Question 20. The Department encourages commenters, whenever possible, to submit detailed quantitative or qualitative information along with their respective comments relating to: the cost of NG 9-1-1 technology or services; the incremental impact on covered governmental entities to transition from current requirements for accessible analog 9-1-1 services to proposed accessible NG 9-1-1 services, including but not limited to training PSAP employees and updating 9-1-1 plans and operating procedures; personal anecdotes or experiences of individuals with disabilities illustrating the potential benefits of accessible NG 9-1-1 services; and any other information that would assist the Department in assessing the benefits and costs of proposed regulatory revisions for NG 9-1-1.

Question 21. Are there additional issues or information not addressed by the Department's questions that are important for the Department to consider? Please provide as much detail as possible in your response.

I. Electronic Submission of Comments and Posting of Public Comments

You may submit electronic comments to: http://www.regulations.gov. When submitting comments electronically, you must include CRT Docket No. 113 in the subject box, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses.

Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Submission postings will include any personal identifying information (such as your name, address, etc.) included in the text of your comment. If you include personal identifying information (such as your name, address, etc.) in the text your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on: http://www.regulations.gov.

Comments on this ANPRM will also be made available for public viewing by appointment at the Disability Rights Section, located at 1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during normal business hours. To arrange an appointment to review the comments, please contact the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

The reason that the Civil Rights Division is requesting electronic comments before midnight Eastern Time on the day the comment period closes is because the inter-agency Regulations.gov/Federal Docket Management System (FDMS) which receives electronic comments terminates the public's ability to submit comments at midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before midnight on the day the comment period closes.

The Department will hold at least one public hearing to solicit comments on the issues presented in this notice. The Department plans to hold the public hearing during the 180-day public comment period. The date, time, and location of the public hearing will be announced to the public in the Federal Register and on the Department's ADA Home Page: http://www.ada.gov.

The Department is seeking information to assist it in determining if it should propose specific accessibility requirements for non-fixed equipment and furniture, including medical equipment, exercise equipment, accessible golf cars, accessible beds, and electronic and information technology, by entities subject to title II or title III of the ADA.

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the title III regulation, at 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards). These Standards resulted from the Department's incorporation into the rule of the 1991 ADA Accessibility Guidelines (1991 ADAAG) promulgated by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board). The Department is a member of the Access Board and participates in its development of accessibility guidelines. On September 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations and to adopt revised ADA Standards based on the relevant parts of the Access Board's 2004 ADA/Architectural Barriers Act (ABA) Accessibility Guidelines. 69 FR 44084. The Department issued Notices of Proposed Rulemaking (NPRMs) to revise the title II and title III regulations and these incorporated the 2004 ADA/ABA Accessibility Guidelines into the revised ADA Standards. 73 FR 34466 (June 17, 2008). The NPRMs addressed the issues raised in the comments to the ANPRM and sought additional comment.

The 2004 ANPRM asked for public comment on a range of issues not specifically addressed in the ADA regulations, including coverage of movable or portable equipment and furniture. 59 FR 58768. Although the Department received public comments in response to the ANPRM supporting its regulation of equipment and furniture, when the Department issued its 2008 NPRM, it announced its decision not to address equipment at that time. 73 FR 34466, 34474-75 (June 17, 2008). Instead, the Department continued its approach of requiring accessible equipment and furniture on a case-by-case basis. Under the regulatory provisions governing reasonable modifications of policies, practices, or procedures, program accessibility, effective communication, and barrier removal, the Department has continued its long-standing practice of requiring accessible equipment and furniture.

The Department received numerous comments urging it to issue equipment and furniture regulations. Based on these comments and for the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding equipment and furniture should contain.

The ADA prohibits discrimination on the basis of disability in all services, programs, and activities offered by public entities and in the operation of privately owned places of public accommodation. The provision of accessible equipment and furniture has always been required by the ADA and the Department's implementing regulations under the program accessibility, reasonable modification, auxiliary aids and services, and barrier removal requirements. Each of the types of equipment and furniture discussed in this ANPRM is subject to coverage under both title II and title III of the ADA.

Title II of the ADA applies to services, programs, or activities of public entities within the meaning of 42 U.S.C. 12133(1)(A). The program accessibility requirement of Title II mandates public entities to operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden. 28 CFR 35.150(a). Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the “redesign of equipment.” If an entity invokes a fundamental alteration defense, the entity nonetheless must take other steps that would not fundamentally alter the nature of the services provided. For example, the provision of a height adjustable examination table in a doctor's office may meet the requirement for program accessibility. However, if the provision of an adjustable examination table in a doctor's office would fundamentally alter the nature of the services provided, based on a fact specific inquiry, then the use instead of a nonadjustable examining table of suitable height, might afford an individual with a disability an equal opportunity to participate in the services, programs, and activities offered by that entity.

Title II entities also must ensure that communications with individuals with disabilities are as effective as communications with others and provide appropriate auxiliary aids and services where necessary to ensure that individuals with disabilities have an equal opportunity to participate in and benefit from a service, program, or activity. 28 CFR 35.160. These auxiliary aids include the “[a]cquisition or modification of equipment or devices.” 28 CFR 35.104. In addition, equipment and personal property, such as furniture, is specifically included in the definition of “facility” in title II. 28 CFR 35.104. There is an identical definition of “facility” in the regulation implementing title III. 28 CFR 36.104.

Title III of the ADA applies to persons who own, lease or lease to, or operate places of public accommodation, such as doctors' offices, hospitals, nursing homes, hotels and motels, shopping centers, specified public transportation terminals, recreational facilities, such as health clubs or golf courses, restaurants, movie theaters, schools, and day care facilities. 42 U.S.C. 12182(a). Public accommodations discriminate against individuals with disabilities when they enact discriminatory policies or practices, or fail to remove barriers or make requested reasonable modifications in order to accommodate an individual's disability, unless barrier removal is not readily achievable or a modification would fundamentally alter the nature of the business. See 28 CFR 36.304 (barrier removal) and 36.302(a) (reasonable modification). If barrier removal is not readily achievable, then an alternative means must be provided if that alternative means is readily achievable. For example, a standard-height, nonadjustable examining table constitutes an architectural barrier to persons with certain mobility impairments. Therefore, an adjustable table must be provided if it is readily achievable. If it is not readily achievable to obtain such a table, then an alternative, such as a nonadjustable lower height table, must be provided if that alternative is readily achievable.

Public accommodations also must ensure that no individuals with disabilities are excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or result in an undue burden. 28 CFR 36.303(a). The preamble to the Department's 1991 regulation clarified the manner in which equipment and furniture are covered by the title III regulation. 28 CFR part 36, app. B, at 733 (Proposed Section 36.309 Purchase of Furniture and Equipment). Some types of equipment and furniture are covered specifically by the Department's adoption of the 1991 ADAAG as the ADA Standards for Accessible Design. Equipment and furniture may also be covered by other regulatory provisions including reasonable modifications, 28 CFR 36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR 36.304.

While some types of fixed equipment and furniture are explicitly covered by the 1991 Standards, there are no specific provisions in the regulations governing the accessibility of equipment and furniture that are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines (ATMs) and Fixed or Built-in Seating or Tables). A fixed item is something that is built into the facility, for example, through plumbing. In contrast, an item that is not fixed is not attached to the facility. In order to ensure that not only fixed equipment and furniture be accessible, the Department seeks to provide specific regulatory guidance for the accessibility of equipment and furniture that are not fixed. Whether a type of equipment or furniture is fixed or not is generally not relevant from the perspective of the user. For example, an ATM or vending machine that is fixed is used for the same purpose and in the same manner as an equivalent ATM or vending machine that is not fixed. To the extent that ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed.

With regard to making electronic or information technology equipment and furniture accessible to individuals with disabilities, including individuals who are blind or have low vision, Section 508 of the Rehabilitation Act of 1973, which applies to federal agencies, provides guidance for the public on how to make electronic and information technology accessible. See, e.g., 29 U.S.C. 794d.

The Department's experience in the twenty years since the ADA was enacted has given it a better understanding of the barriers posed by inaccessible equipment and furniture and the solutions provided by accessible equipment and furniture. Accessible equipment and furniture is often critical to an entity's ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furniture that benefit individuals with disabilities. Use of the Internet, video interpreting services, screen readers, and text messaging, are just a few examples of technologies that were rare or nonexistent twenty years ago, but are now widely used by individuals with disabilities. New technologies have led to accessible equipment and furniture ranging from accessible medical exam tables for individuals who use wheelchairs to “talking” ATMs and interactive kiosks, which can be used independently and while preserving privacy through the use of headphones by individuals who are blind or have low vision. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the Access Board has done for several types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, and vending machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA Accessibility Guidelines.

For all of these reasons, the Department believes that providing specific requirements for accessible equipment and furniture is consistent with the mandates of the ADA and necessary and appropriate at this time.

The Department seeks input from the public and from those in the disability community, representatives of Federal, State, or local governments, public safety organizations, and industry professionals. The Department invites comments on types and features of equipment and furniture that will effectively provide equal opportunity to access all services and programs covered by titles II and III of the ADA, on scoping (which refers to the amount of equipment or furniture that should be provided in different types of facilities in order to meet the needs of individuals with disabilities needing access to those facilities), on events or time frames that should trigger the replacement or modification of inaccessible equipment or furniture with accessible equipment or furniture, and on the costs and benefits of accessible equipment and furniture. In your responses to the questions presented below, please refer to each question by number. Please provide any additional information that you believe will be helpful.

Without accessible medical examination tables, dental chairs, radiological diagnostic equipment, scales, and rehabilitation equipment, individuals with disabilities do not have an equal opportunity to receive medical care. Individuals with disabilities may be less likely to get routine preventative medical care than people without disabilities because of barriers to accessing that care. The Department has entered into settlement agreements with several medical care providers that have required the medical care provider to purchase accessible equipment and furniture for its facilities, including at least one accessible examination table in each medical department and additional accessible examination tables, radiologic equipment, scales, beds, and lifting devices, as needed. These settlement agreements are available to the public at http://www.ada.gov. The Department has also issued technical assistance on this issue. See Access to Medical Care for Individuals with Mobility Disabilities, on May 17, 2010.

The health care reform law, the Patient Protection and Affordable Care Act, added a new Section 510 to the Rehabilitation Act of 1973. Section 510 directs the Access Board to promulgate regulatory standards setting forth the minimum technical criteria for medical diagnostic equipment used in (or in conjunction with) physician's offices, clinics, emergency rooms, hospitals, and other medical settings. The standards shall ensure that such equipment is accessible to, and usable by, individuals with accessibility needs, and shall allow independent entry to, use of, and exit from the equipment or furniture by such individuals to the maximum extent possible. The Access Board has announced that it will draft new design standards for medical diagnostic equipment to satisfy this requirement. As an Access Board member, the Department will work closely with the Board in the development of these design standards. The Department will not issue a final rule on medical equipment until the Access Board has completed its medical diagnostic equipment standards. When the standards are completed, the Department will have the option to adopt them for ADA implementation and, if it does so, will, at that time, develop specific scoping requirements to establish the required number of accessible diagnostic elements for specific facility types. In addition, the Department may propose regulations to ensure the accessibility of medical equipment that is used for treatment, rehabilitative or other purposes.

Healthcare providers use examination and treatment tables and chairs for many different types of medical and dental examinations and treatments. Examples of specialty areas using examination or treatment tables or chairs include ophthalmology, optometry, podiatry, oncology, physical therapy, chiropractic, rehabilitation medicine, urology, and obstetrics and gynecology. If a person with a disability cannot get onto an examination table or chair and is thus not examined (as occurs, for example, with some women with disabilities who cannot access ob-gyn tables) or is examined in a wheelchair, any examination that does occur likely will be less thorough than it would have been on an examination table, and the medical provider may miss important medical information.

The Department has received complaints and learned in the course of its enforcement efforts that medical and dental examination tables and chairs often are too high to be accessible, lack stabilization elements, and do not have adequate clear floor space nearby to permit access. Although Section 510 of the Rehabilitation Act does not specifically address tables and chairs used solely for treatment purposes, the Department anticipates that such treatment equipment would be subject to similar accessibility requirements, such as adjustable heights.

Medical providers often do not weigh individuals who use wheelchairs because they do not have an accessible scale, even though that information is a routine part of medical examinations and is important to the patient's health and medical care. Patient weight can serve as a health indicator for many conditions, including depression, diabetes, cancer, cardiovascular disease, high blood pressure, and pregnancy. Correct patient weight is crucial to correctly prescribing medicine. Scales should be accessible to individuals who use wheelchairs or have other mobility disabilities that would impede the use of step-on scales.

Several different types of scales offer different means of accommodating patients with mobility disabilities while also affording flexibility to medical providers. Wheelchair scales are currently available as stand-alone devices or as equipment that is integrated into other medical equipment. Stand-alone wheelchair scales include wall-mounted stationary (folding or not folding), platform (in ground), and portable platform (folding or not folding).

Some types of radiological diagnostic equipment, such as Magnetic Resonance Imaging (MRI), Positron Emission Tomography (PET), and X-rays, including Computerized Axial Tomography (CAT) scans and mammography, are difficult to access for individuals with disabilities because of the height, shape, or configuration of the equipment. The Department has reached settlements with medical offices and hospitals providing diagnostic services because patients with mobility disabilities could not access medical diagnostic equipment. Some individuals with disabilities had difficulty transferring from wheelchairs onto scanning tables and were denied staff assistance or not provided access to medical equipment and furniture, such as gurneys or lifts, to facilitate the transfer to the diagnostic equipment and furniture. Different types of diagnostic equipment and furniture pose different challenges. For example, MRIs typically require individuals with disabilities to climb onto an MRI table and remain on the table while it is moved into and out of a scanning tube, a process that can take one to two hours. Mammograms may be inaccessible to individuals with mobility disabilities who cannot stand for the duration of the examination.

Medical providers may need lifts to transfer some patients with mobility disabilities safely to examination or treatment tables or chairs or to gurneys or hospital beds. The kind of assistance needed will depend on a patient's disability. Using lifts may provide more security for a patient than being lifted by medical staff and may reduce the risk of injury to medical staff. Concerns about lifting injuries have given rise to proposed legislation at the federal and state levels designed to increase safety for patients and medical staff. See, e.g., Nurse and Health Care Worker Protection Act of 2009 (S. 1788); Recognizing the Need for Safe Patient Handling and Movement (H. Res. 510). There are several different types of patient lifts available now on the market, including free-standing, ceiling-mounted, and sling lifts. The use of lifts by medical and dental providers may improve accessibility to medical and dental examination and treatments.

Infusion pumps infuse fluids such as chemotherapy drugs, pain medications, or nutrients into the circulatory system in a controlled manner. Several kinds of infusion pumps, including Patient Controlled Analgesia pumps, are available. Problems can arise with infusion pumps when there are errors in dosing rate or fluid volume. Infusion pumps often rely on patients controlling settings on difficult-to-reach buttons or flat screens that may not be accessible to individuals with disabilities. Integrated alarms may not be audible to individuals with hearing disabilities.

Medical providers offering rehabilitative services must make those services equally available to individuals with disabilities. Rehabilitation and exercise equipment and furniture, including balance equipment, cardiopulmonary equipment, exercise pulleys and stretching equipment, resistance equipment, and general exercise equipment, should be available to individuals with disabilities requiring such rehabilitative treatment on an equal basis with other patients. For example, individuals with hearing impairments or blindness or low vision might require equipment or furniture to permit their full participation in cardiopulmonary rehabilitative services.

Ancillary equipment is equipment used with other medical equipment, such as examination tables or chairs or MRIs, and adapted to or adjustable for use by individuals with disabilities. Ancillary equipment includes items such as positioning straps or cushions; protective padding; adjustable, padded leg supports for gynecological examinations; and additional supports, rails, or bars needed to ensure the safety and comfort of patients with disabilities. Sliding boards or sheets and gait belts may assist in transfers of patients with disabilities to and from examination or treatment tables and chairs. Individuals with mobility disabilities may require air mattresses and cushions, stools, or other pressure relief equipment to aid in the avoidance or treatment of pressure sores. Accessible call buttons and telephones can address communication difficulties for patients with mobility or other types of disabilities.

Hospital beds and gurneys can be inaccessible to individuals with mobility disabilities. Medical care and long-term care facilities do not always provide accessible beds in the patient and resident sleeping rooms required to be accessible. In order to permit transfers by individuals with mobility disabilities, including those using wheelchairs, accessible height-adjustable beds would allow persons using wheelchairs and other mobility devices to transfer in and out of bed as independently as possible. Gurneys used to transport patients from place to place in a medical facility or used in certain diagnostic procedures may need to meet the same height requirements. Hospital bed control devices, for raising and lowering the bed and for other functions, as well as call buttons, also should be accessible to patients with disabilities.

To assist the Department to develop appropriate requirements for medical equipment and furniture, we are seeking information that will inform the rulemaking process. With respect to medical equipment, for each type of medical equipment it would be helpful to know details about the accessible features and if particular types of equipment with accessible features are currently available. The Department is seeking the following information:

Question 1. The Department is considering adopting the Access Board's standards for medical diagnostic equipment. What other types of medical equipment and furniture should the Department include in its proposed regulation? What modifications to other types of medical equipment and furniture, including equipment and furniture used for treatment or other non-diagnostic purposes, such as hospital beds, should be included in the Department's proposed regulations?

Question 2. The Access Board is expected to promulgate design standards for medical and dental diagnostic tables and chairs. Are there tables or chairs used for medical, dental, ophthalmology, or optometry treatments, which are not typically used for diagnostic purposes, that would pose unique accessibility challenges? What modified features would make these tables or chairs accessible? What features would enhance patient stability and facilitate correct positioning?

Question 3. What types of lifts are the safest, most efficient, and most cost effective in transferring patients with disabilities in different medical or dental settings? Should the use of lifts or staff to lift patients be considered a substitute for providing independent access to medical equipment?

Question 4. If a hospital or medical provider uses staff to lift patients onto and off of medical equipment and furniture, should it be excused from the requirement of having lifts in any or all situations? What types of training programs are available to provide information to staff on lifting and transferring patients with disabilities? Are there any particular situations where lifting by staff should not be allowed?

Question 5. What features, such as low bed heights, can best enhance the accessibility of hospital beds and gurneys? Are these features available on products currently available?

Question 6. What technologies are currently available to increase the accessibility of infusion pumps? What types of infusion pumps are partially or fully operated by patients in the normal course of treatment?

Question 7. What are the greatest difficulties facing individuals with disabilities in accessing rehabilitative and exercise equipment and furniture in a therapeutic setting? What equipment and furniture most effectively permits accessibility for different types of rehabilitative needs? Can different types of equipment meet different access needs of, for example, people with low-vision who need access to visual displays on equipment? Are there differences between exercise equipment in therapeutic settings and exercise equipment in non-therapeutic settings (e.g., gym or fitness center)? What exercise equipment or machines are available to meet the needs of individuals with mobility impairments?

Question 8. What types of ancillary equipment are most effective in different types of medical or dental examination or treatment settings?

Question 9. Is there a need for separate standards for bariatric medical equipment and furniture in the Department's equipment and furniture regulation? If so, what equipment and furniture are necessary to address the needs of patients with disabilities who are obese?

If the Department proposes a rule recommending regulations requiring accessible medical equipment and furniture, it should provide guidance on the appropriate amount of different types of medical equipment and furniture that must be accessible. In making this determination, the Department might consider the size of a medical practice or the patient population and other factors. For example, in a doctor's office with two exam rooms, one accessible examination table might be a reasonable number of accessible examination tables. However, in a hospital with multiple medical departments, a reasonable number might include at least one accessible examination table in each department. Radiologic and other diagnostic equipment is highly specialized and a reasonable number of accessible diagnostic equipment in a radiology department might be one of each type of diagnostic equipment.

The Department is considering proposing that entities have eighteen months from the date of the publication of a rule to come into compliance with medical equipment and furniture requirements. The timeframes for replacing different types of medical equipment and furniture may vary widely. The very high cost of some radiological and diagnostic equipment, such as MRI machines and CAT scans, which often leads medical providers to lease rather than buy them, might require a later effective date.

Question 10. What are the key criteria for scoping in different types of medical settings? What are appropriate scoping requirements for each of the types of medical equipment and furniture discussed above?

Question 11. How could medical providers time replacement or modification of equipment and furniture to ensure that individuals with disabilities receive equal access to healthcare without undue delay? What types of triggering events are appropriate for different types of medical equipment and furniture? Should the Department require the purchase rather than the replacement of some accessible equipment and furniture at a certain point? Should the replacement of inaccessible medical equipment or furniture be triggered only by the end of the useful life of the equipment or furniture?

Individuals with disabilities have expressed concerns over the years about an inability to use exercise equipment and furniture in health clubs, hotel fitness centers, public recreation centers, public elementary, secondary, and postsecondary institutions, and other establishments that offer exercise facilities. The 1991 Standards contained no scoping or technical requirements relating to exercise facilities. The Department may propose additional regulations to enhance the accessibility and usability of exercise equipment by individuals with disabilities.

Question 12. What types of accessible exercise equipment and furniture are available on the commercial market? What types of equipment and furniture are already accessible to individuals with disabilities? Is independently operable equipment and furniture available for individuals who are blind or who have low vision, or who have manual dexterity issues.

Question 13. Should the Department require covered entities to provide accessible exercise equipment and furniture ? How much of each type of equipment and furniture should be provided? Should the requirements for accessible equipment and furniture be the same for small and large exercise facilities, and if not, how should they differ?

The Department is considering issuing regulations specific to golf cars and may propose requiring golf courses that provide golf cars, when replacing or acquiring additional standard golf cars, to provide accessible golf cars for use by individuals with disabilities.

An accessible golf car means a device that is designed and manufactured to be driven on all areas of a golf course, is independently usable by individuals with mobility disabilities, has a hand operated brake and accelerator, carries golf clubs in an accessible location, and has a seat that both swivels and rises to put the golfer in a standing or semi-standing position. The 1991 regulation contained no language specifically referencing accessible golf cars. Although the 2004 ANPRM raised the possibility of requiring that golf courses make at least one specialized golf car available for the use of individuals with disabilities, the Department stated in the 2008 NPRM that it was not going to propose a specific requirement at that time. The Department of Defense has required the use of single-rider accessible golf cars in federally-owned golf courses pursuant to Section 664 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).

Question 14. What is the most effective means of addressing the needs of golfers with mobility disabilities? Are golf cars currently available that are readily adaptable for the addition of hand controls and swivel seats? If so, are those cars suitable for driving on greens? To what extent are accessible golf cars of all types stable, lightweight, and moderately priced?

Question 15. What are appropriate scoping requirements for accessible golf cars? Should the criteria used to determine scoping stem from factors including the number of golf course patrons, the number of golfing holes (e.g. nine, 18, or 27) at the facility, the number of inaccessible golf cars in use, or other criteria? Should each 18-hole course be required to provide a certain number of accessible golf cars?

The Department is considering regulating the accessibility of beds in accessible guest rooms and sleeping rooms, such as dormitories in educational institutions and social service establishments. Many individuals with disabilities have urged the Department to regulate the height of beds, particularly in accessible hotel guest rooms, and to require that such beds have clearance under the bed to accommodate a mechanical lift. In recent years, hotels have provided higher beds, using thicker mattresses that make it difficult or impossible for many individuals who use wheelchairs to transfer onto the beds. Some of these mattresses have pillow tops that raise the height of the bed by several inches and then, once the individual has transferred to it, compress and reduce the height of the bed. Thus, a bed with a pillow top that is low enough to transfer to from a wheelchair may be too low, once it is compressed, to transfer safely back to the wheelchair. In addition, many hotel beds use a solid-sided platform base for beds with no clearance underneath, which prevents the use of a portable lift to transfer an individual onto the bed.

Question 16. Should the Department develop a general standard that specifies requirements for beds wherever accessible sleeping accommodations are required? What are appropriate bed heights to ensure accessibility by individuals with mobility disabilities and should there be requirements for mattresses to ensure that the height of the mattress, even when compressed by the weight of a person sitting or laying down on it, remains within a certain range? Are there existing standards that the Department should look to for developing standards for beds in accessible rooms? What is the optimal clearance needed under a bed to accommodate a mechanical lift? Should any such requirements apply to all accessible guestrooms or sleeping rooms or only to a percentage of them? What time line should the Department establish for requiring accessible beds in accessible guest rooms and sleeping rooms and should such a time line be phased in?

Nursing homes, assisted living facilities, and other care facilities may have beds that are too high or too low, which can be a problem for individuals with disabilities. In addition, many of these beds have electronic controls and switches that may not be accessible for individuals with mobility, dexterity, or visual or auditory disabilities. The Department may propose regulations to ensure the accessibility of beds in nursing homes and other care facilities.

Question 17. Should the standards be different for adjustable beds, such as hospital beds, and for fixed height beds? Should the Department treat beds in nursing homes in the same manner as beds in hospitals? Should the Department treat beds in nursing homes or hospitals in the same manner as it treats beds in places of lodging? Should all accessible rooms have adjustable beds?

The Department believes that it is important for individuals with disabilities to have an equal opportunity to use electronic and information technology (EIT) equipment and furniture, such as kiosks, interactive transaction machines (ITMs), point-of-sale (POS) devices, and automated teller machines (ATMs). Individuals with disabilities who engage in financial or other transactions should be able to do so independently and not have to provide third parties with private financial information, such as a personal identification number (PIN). Equipment and furniture are covered for both physical access and effective communication.

Among the available equipment and furniture that use EIT are kiosks, which are interactive computer terminals that provide a wide range of services, including information sharing, ticketing, airline check-in, Internet access, movie ticket sales and DVD rentals, security screening, bill paying, and photo developing. ITMs include POS devices, such as credit card payment terminals, retail store self-checkout stations, machines used for ordering food at quick service restaurants, and gas station pay-at-the-pump systems. The number of POS machines used by businesses and state and local programs and activities (such as at student unions at state colleges and universities) nationwide continues to increase, as does the range of transactions handled by these machines. With the advent of touch screen technology, customers are now required to enter data using a flat screen while reading changing visual information and instructions. Persons who cannot see the flat screen must rely on other people to input their information, including their personal identification numbers (PINs). At least one state (California) already requires all check-out locations with a flat screen POS device to have a permanently attached tactile keypad that is usable by individuals with visual disabilities. Cal. Fin. Code 13082 (West 2006). While some POS devices are mounted at a height that fits within current reach range guidelines, the Department is aware that the fixed upward orientation of some of these devices can impede their accessibility by making it difficult for a person with a mobility disability to view the screen, enter a PIN, or sign an authorization.

The Department's preamble to its 1991 regulations explained that, “[g]iven that § 36.304's focus is on the removal of physical barriers, the Department believes that the obligation to provide communications equipment and devices * * * is more appropriately determined by the requirements for auxiliary aids and services under § 36.303.” 56 FR 35544, 35568. The 1991 Standards contained requirements for physical accessibility for ATMs and also required that “[i]nstructions and all information for use shall be made accessible to and independently usable by persons with vision impairments.” 28 CFR part 36, app A, section 4.34.5. The Department has traditionally taken the position that the communication-related elements of ATMs are auxiliary aids and services, and are not physical elements. On March 22, 2010, the Access Board published an ANPRM seeking public comment on its plans to amend the 2004 ADA/ABA Accessibility Guidelines to include technical guidelines for self-service machines used for ticketing, check-in or check-out, seat selection, boarding passes, or ordering food in restaurants and cafeterias. See 75 FR 13457. In the ANPRM, the Access Board noted the proliferation of inaccessible POS machines, kiosks, and other self-service machines and referenced ADA litigation against various public accommodations over the past ten years that has resulted in numerous settlement agreements and structured negotiations requiring the installation of tactile POS devices.

Question 18. What are the challenges posed by the inaccessibility of EIT, including EIT kiosks, POS devices, and ITMs? Are there issues regarding other uses of EIT that the Department should consider adopting to ensure that EIT equipment is accessible?

The Department's title III regulation, 28 CFR 36.303(d)(1) requires places of public accommodation that provide customers, patients, or clients the opportunity to make outgoing telephone calls on more than an incidental convenience basis to make TTYs available for the use of customers, patients, or clients who have communication disabilities. It has been suggested that the Department should expand the coverage of this section to require covered entities to provide recognize that there are a wide range of devices now used as communication aids by individuals with disabilities. Therefore, the Department seeks comments regarding the incorporation of EIT into this requirement as it applies to accessible sleeping rooms in facilities such as hospitals, nursing homes, hotels, or other places of lodging to permit effective communication by individuals with disabilities, including those who are deaf or hard of hearing.

New technologies have emerged that permit the use of EIT for effective communication. As telecommunication technologies are developing, persons with disabilities are transitioning from analog or legacy devices to digital telecommunication devices. Among these devices are video phones (including web cam), text messaging pagers and computers, and captioned telephones. Video relay services (VRS) permit individuals who use sign language for communication to use a video remote interpreting service (VRI). The relay services are under the jurisdiction of the Federal Communications Commission. Text communications can be divided into two types: Real time, and non-real time. Real-time text communications refer to those that are sent and received on a character-by-character basis; the characters are sent immediately once typed and also displayed immediately to the receiving person. Non-real time communications rely on messaging capabilities where users “type-enter-wait-read-respond-reply”—e.g., short messages service (SMS) texts, multimedia messaging service (MMS), instant messaging (IM), text chat, and e-mail.

Question 19. What types of EIT would permit individuals with communication disabilities to most effectively communicate from an accessible hospital room, nursing home facility, guest or sleeping room? Should the Department regulate effective communication from such facilities? What are the costs associated with various types of EIT in such settings?

The Department is considering possible criteria for establishing scoping and triggering events for EIT devices and for particular features of such devices, such as tactile controls or voice output. Such criteria might include the total number of EIT devices in a certain facility.

Question 20. What are appropriate scoping criteria for the availability of accessible EIT and triggering events for the replacement or refurbishing of EIT devices, including kiosks, ITMs and ATMs, to ensure accessibility?

Different types of equipment and furniture can pose challenging accessibility problems or can serve as remedies to those problems. The Department welcomes public input on other types of equipment and furniture that warrant attention. For example, the Department is aware that equipment and furniture exists that may provide ready access for individuals with disabilities, including pool chairs that permit individuals who use wheelchairs to enter a pool with a sloped entrance without submerging their personal wheelchair and shower chairs for accessible hotel rooms with roll-in showers. The Department has learned that access to computer terminals in public libraries, which allow members of the public to access the Internet, often lack accessibility features (such as screen readers) and are in inaccessible locations. Another concern is access to television in hotels, hospitals, nursing homes, and other care facilities when certain television sets do not provide a way for consumers to turn closed captions on and off.

Question 21. Are there other types of equipment or furniture that impede accessibility that should be specifically addressed in the Department's regulation? What types of accessible equipment or furniture would effectively address any such concerns? What scoping would adequately address the impediments to accessibility and what triggering event would be appropriate for each type of other equipment or furniture? Are there particularly helpful types of equipment or furniture that are not generally available to the public that may assist individuals with disabilities, such as pool or shower chairs?

Since this proposal is an ANPRM, the Department is not required to conduct certain economic analyses or written assessments that otherwise may be required for more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules) that are deemed to be economically significant regulatory actions with an annual economic impact of $100 million or more or that are expected to have a significant economic effect on a substantial number of small entities or non-federal governmental jurisdictions (such as State, local, or tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. 603¬04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 FR 6113 (Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 25, 2010).

One of the purposes of this ANPRM is to seek public comment from members of the disability community, public accommodations, and governmental entities on various topics relating to accessible equipment and furniture, including perspectives from stakeholders concerning the benefits and costs of revising the Department's titles II and III regulations to ensure the accessibility of equipment and furniture.

Question 22. Do commenters have information available that can aid the Department in identifying existing accessible equipment and furniture? What are the costs of accessible equipment and furniture and how do these costs differ from the costs of inaccessible equipment and furniture? What are the normal replacement schedules for each of the types of equipment and furniture discussed in this ANPRM or other types proposed for coverage? What are the costs and benefits of different scoping requirements for different types of equipment and furniture? What are reasonable less costly or burdensome regulatory alternatives that would still achieve the objectives of the proposed rules? What are the costs and benefits, both quantitatively and qualitatively, of providing individuals with disabilities an equal opportunity to access health care, recreational facilities, exercise equipment, furniture in hotels, nursing homes, and hospitals, and electronic information and transactions? The Department seeks specific cost information, including information on the costs and benefits, as well as anecdotal evidence of the costs and benefits of accessible equipment and furniture.

Consistent with the Regulatory Flexibility Act of 1980 and Executive Order 13272, the Department must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The Department will make an initial determination as to whether any rule it proposes is likely to have a significant economic impact on a substantial number of small entities, and if so, the Department will prepare an initial regulatory flexibility analysis analyzing the economic impacts on small entities and regulatory alternatives that reduce the regulatory burden on small entities while achieving the goals of the regulation. In response to this ANPRM, the Department encourages small entities to provide cost data on the potential economic impact of adopting a specific requirement for Web site accessibility and recommendations on less burdensome alternatives, with cost information.

Question 23. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to accessible equipment and furniture will have on small entities if adopted by the Department. The Department encourages you to include any cost data on the potential economic impact on small entities with your response.

Question 24. Are there alternatives that the Department can adopt, which were not previously discussed, that will alleviate the burden on small entities? Should there be different compliance requirements or timetables for small entities that take into account the resources available to small entities or should the Department adopt an exemption for certain or all small entities from coverage of the rule, in whole or in part. Please provide as much detail as possible in your response.

I. Electronic Submission of Comments and Posting of Public Comments

You may submit electronic comments to www.regulations.gov. When submitting comments electronically, you must include CRT Docket No. 110 in the subject box, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses.

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Submission postings will include any personal identifying information (such as your name, address, etc.) included in the text of your comment. If you include personal identifying information (such as your name, address, etc.) in the text of your comment but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Comments on this ANPRM will also be made available for public viewing by appointment at the Disability Rights Section, located at 1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during normal business hours. To arrange an appointment to review the comments, please contact the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

The reason that the Civil Rights Division is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is because the inter-agency Regulations.gov/Federal Docket Management System (FDMS), which receives electronic comments terminates the public's ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes.

The Department will hold a hearing to solicit comments on the issues presented in this notice. The Department plans to hold the public hearing during the 180-day public comment period. The date, time, and location of the public hearing will be announced to the public in the Federal Register.

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation--as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (Title II) and part 36 (Title III). Appendix A of the title III regulation, at 28 CFR part 36, app. A, contains the ADA Standards for Accessible Design. On September 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a notice of proposed rulemaking (NPRM) to adopt the revised 2004 ADA Standards and revise the title II and title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public's comments to the ANPRM and sought additional comment. Although the Department did not propose to include Web accessibility provisions in the 2004 ANPRM or the 2008 NPRM, the Department received numerous comments urging the Department to issue Web accessibility regulations under the ADA. Based on these comments and the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding Web access should contain.

When the ADA was enacted in 1990, the Internet as we know it today—the ubiquitous infrastructure for information and commerce—did not exist. Today the Internet, most notably the sites of the Web, plays a critical role in the daily personal, professional, civic, and business life of Americans. Increasingly, private entities are providing goods and services to the public through Web sites that operate as places of public accommodation under title III of the ADA. Similarly, many public entities under title II are using Web sites to provide the public access to their programs, services, and activities. Many Web sites of public accommodations and governmental entities, however, render use by individuals with disabilities difficult or impossible due to barriers posed by Web sites designed without accessible features.

Being unable to access Web sites puts individuals at a great disadvantage in today's society, which is driven by a dynamic electronic marketplace and unprecedented access to information. On the economic front, electronic commerce, or “e-commerce,” often offers consumers a wider selection and lower prices than traditional, “brick-and-mortar” storefronts, with the added convenience of not having to leave one's home to obtain goods and services. For individuals with disabilities who experience barriers to their ability to travel or to leave their homes, the Internet may be their only way to access certain goods and services.

Beyond goods and services, information available on the Internet has become a gateway to education. Schools at all levels are increasingly offering programs and classroom instruction through Web sites. Many colleges and universities offer degree programs online; some universities exist exclusively on the Internet. Even if they do not offer degree programs online, most colleges and universities today rely on Web sites and other Internet-related technologies in the application process for prospective students, for housing eligibility and on-campus living assignments, course registration, assignments and discussion groups, and for a wide variety of administrative and logistical functions in which students and staff must participate. Similarly, in the elementary- and secondary-school settings, communications via the Internet are increasingly becoming the way teachers and administrators communicate grades, assignments, and administrative matters to parents and students.

The Internet is also dramatically changing the way that governmental entities serve the public. Public entities are increasingly providing their constituents access to government services and programs through their Web sites. Through government Web sites, the public can obtain information or correspond with local officials without having to wait in line or be placed on hold. They can also pay fines, apply for benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other everyday tasks. The availability of these services and information online not only makes life easier for the public, but also enables governmental entities to operate more efficiently and at a lower cost.

The Internet also is changing the way individuals socialize and seek entertainment. Social networks and other online meeting places provide a unique way for individuals to meet and fraternize. These networks allow individuals to meet others with similar interests and connect with friends, business colleagues, elected officials, and businesses. They also provide an effective networking opportunity for entrepreneurs, artists, and others seeking to put their skills and talents to use. Web sites also bring a myriad of entertainment and information options for Internet users—from games and music to news and videos. With the Internet, individuals can find countless ways to entertain themselves without ever leaving home.

More and more, individuals are also turning to the Internet to obtain healthcare information. Individuals use the Internet to research diagnoses they have received or symptoms that they are experiencing. There are a myriad of Web sites that provide information about causes, risk factors, complications, tests, and diagnoses, treatment and drugs, prevention, and alternative therapies for just about any disease or illness. Moreover, healthcare and insurance providers are increasingly offering patients the ability to access their healthcare records electronically via Web sites. As use of the Internet to provide and obtain healthcare information increases, the inability of individuals with disabilities to also access this information can potentially have a significant adverse effect on their health.

The ADA's promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today's technologically advanced society only if it is clear to State and local governments, businesses, educators, and other public accommodations that their Web sites must be accessible. Consequently, the Department is considering amending its title II and title III regulations to require public entities and public accommodations that provide products or services to the public through Web sites on the Internet to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA.

Millions of individuals in the United States have disabilities that affect their use of the Web. Many of these individuals use assistive technology to enable them to navigate Web sites or access information contained on those sites. For example, individuals who do not have use of their hands may use speech recognition software to navigate a Web site, while individuals who are blind may rely on a screen reader to convert the visual information on a Web site into speech. Many Web sites fail to incorporate or activate features that enable users with disabilities to access all the site's information or elements. For instance, individuals who are deaf are unable to access information in Web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read Web sites that do not allow the font size or the color contrast of the site's page to be modified. Individuals with limited manual dexterity who may use assistive technology that enables them to interact with Web sites cannot access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with intellectual and vision disabilities, often encounter difficulty using portions of Web sites that require timed responses from users but do not give users the ability to indicate that they need more time to respond.

Individuals who are blind or have low vision often confront significant barriers to Web access. This is because many Web sites provide information visually without features that allow screen readers or other assistive technology to retrieve information on the site so it can be presented in an accessible manner. The most common barrier to Web site accessibility is an image or photograph without corresponding text describing the image. A screen reader or similar assistive technology cannot “read” an image, leaving individuals who are blind with no way of independently knowing what information the image conveys (e.g., a simple graphic or a link to another page). Similarly, complex Web sites often lack navigational headings or links that would facilitate navigation using a screen reader or may contain tables with header and row identifiers that display data, but fail to provide associated cells for each header and row so that the table information can be interpreted by a screen reader.

Online forms, which are an essential part of accessing goods and services on many Web sites, are often inaccessible to individuals with disabilities. For example, field elements on forms—the empty boxes that hold specific pieces of information, such as a last name or telephone number—that lack clear labels, and visual CAPTCHAs (“Completely Automated Public Turing Test To Tell Computers and Humans Apart”)—distorted text that must be inputted by a Web site user to verify that a Web submission is being completed by a human rather than a computer—make it difficult for persons using screen readers to make purchases, submit donations, and otherwise interact with a Web site. These barriers greatly impede the ability of individuals with disabilities to fully enjoy the goods, services, and programs offered by covered entities on the Web.

In most instances, removing these and other Web site barriers is neither difficult nor especially costly, and in most cases providing accessibility will not result in changes to the format or appearance of a site. The addition of invisible attributes known as alt (alternate) text or tags to an image will help keep an individual using a screen reader oriented and allow him or her to gain access to the information on the Web site. Associating form labels to form input fields and locating form labels adjacent to form input fields will allow an individual using a screen reader to access the information and form elements necessary to complete and submit a form on the Web site. Moreover, Web designers can easily add headings, which facilitate page navigation using a screen reader, to their Web pages. They can also add cues to ensure the proper functioning of keyboard commands and set up their programs to respond to assistive technology, such as voice recognition technology.

The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically address access to Web sites. But the statute's broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web sites over the Internet. Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. 12182(a). Title III of the ADA and its corresponding regulations define a “place of public accommodation” as a facility whose operations affect commerce and that falls within at least one of the following 12 categories:

42 U.S.C. 12181(7); 28 CFR 36.104. Congress contemplated that the Department would apply the statute in a manner that evolved over time, and it delegated authority to the Attorney General to promulgate regulations to carry out the Act's broad mandate. See H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 108 (1990); 42 U.S.C. 12186(b). Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies. 28 CFR part 36, app. B.

Section 12182 of title III provides that no person “who owns, leases (or leases to), or operates a place of public accommodation” may discriminate “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. 12182(a) (emphasis added). Similarly, title II provides that qualified individuals with disabilities shall not be excluded from “participation in or be denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. 12132 (emphasis added). The plain language of these statutory provisions applies to discrimination in offering the goods and services “of” a place of public accommodation or the services, programs, and activities “of” a public entity, rather than being limited to those goods and services provided “at” or “in” a place of public accommodation or facility of a public entity. See National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a Web site-access case that “[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute”); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (finding that discrimination did not have to occur on-site in order to violate the ADA); see also Carparts Distribution Ctr., 37 F.3d 12 (concluding that title III is not limited to provision of goods and services provided in physical structures, but also covers access to goods and services offered by a place of public accommodation through other mediums, such as telephone or mail). But see Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) (finding a Web site is only covered if it affects access to a physical place of public accommodation); See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir. 2000) (requiring some connection between the goods or services complained of and an actual physical place); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (finding no nexus between challenged insurance policy and services offered to the public from insurance office). Instead, the ADA mandate for “full and equal enjoyment” requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via Web sites.

The Internet has been governed by a variety of voluntary standards or structures developed through nonprofit organizations using multinational collaborative efforts. For example, domain names are issued and administered through the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Society (ISOC) publishes computer security policies and procedures for sites, and the World Wide Web Consortium (W3C®) develops a variety of technical standards and guidelines ranging from issues related to mobile devices and privacy to internationalization of technology. In the area of accessibility, the Web Accessibility Initiative (WAI) of the W3C® has created the Web Content Accessibility Guidelines (WCAG).

It has been the policy of the United States to encourage self-regulation with regard to the Internet wherever possible and to regulate only where self-regulation is insufficient and government involvement may be necessary. See Memorandum on Electronic Commerce, 33 WCPD 1006, 1006-1010 (July 1, 1997), available at http://www.gpo.gov/fdsys/pkg/WCPD-1997-07-07/html/WCPD-1997-07-07-Pg1006-2.htm (last visited June 29, 2010); A Framework for Global Electronic Commerce, http://clinton4.nara.gov/WH/New/Commerce (last visited June 29, 2010).

Voluntary standards have generally proved to be sufficient where obvious business incentives align with discretionary governing standards as, for example, with respect to privacy and security standards designed to increase consumer confidence in e-commerce. There has not, however, been equal success in the area of accessibility. The WAI leadership has recognized this challenge and has stated that in order to improve and accelerate Web accessibility it is important to “communicat[e] the applicability of the ADA to the Web more clearly, with updated guidance * * * .” Achieving the Promise of the Americans with Disabilities Act in the Digital Age—Current Issues, Challenges, and Opportunities: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties, H. Comm. On the Judiciary, 111th Cong. (Apr. 22, 2010) (statement of Judy Brewer, Director, Web Accessibility Initiative at the W3C®). It is clear that the system of voluntary compliance has proved inadequate in providing Web site accessibility to individuals with disabilities. See, e.g., National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (discussing how competitive market forces have not proven sufficient to provide individual with disabilities access to telecommunications and information services.)

There is no doubt that the Web sites of state and local government entities are covered by title II of the ADA. See 28 CFR 35.102 (providing that the title II regulation “applies to all services, programs, and activities provided or made available by public entities”). Similarly, there seems to be little debate that the Web sites of recipients of federal financial assistance are covered by section 504 of the Rehabilitation Act. The Department has affirmed the application of these statutes to Web sites in a technical assistance publication, Accessibility of State and Local Government Web sites to People with Disabilities (available at www.usdoj.gov/crt/ada/Web sites2.htm), and in numerous agreements with State and local governments and recipients of Federal financial assistance.

The Department has also repeatedly affirmed the application of title III to Web sites of public accommodations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of Web sites to individuals with visual disabilities. See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at www.justice.gov/crt/foia/tal712.txt. The letter has been widely cited as a statement of the Department's position. The letter does not, however, state whether entities doing business exclusively on the Internet are covered by the ADA.

In 2000, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., which involved a Web-only business. The Department's brief explained that a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination on the basis of disability. See Brief of the United States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), 1999 WL 33806215, available at http://www.justice.gov/crt/briefs/hooks.htm. In a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, Inc., the Department argued against a requirement, imposed outside of the Internet context by some Federal courts of appeals, that there be a nexus between a challenged activity and a private entity's “brick-and-mortar” facility to obtain coverage under title III. See Brief for the United States as Amicus Curiae in Support of Appellant, 294 F.3d 1279 (11th Cir. 2002) (No. 01-11197), 2001 WL 34094038, available at http://www.justice.gov/crt/briefs/rendon.htm. Although Rendon did not involve Web site access, the Department's brief argued that title III applies to any activity or service offered by a public accommodation, on or off the premises.

For years, businesses and individuals with disabilities alike have urged the Department to provide guidance on the accessibility of Web sites of entities covered by the ADA. While some actions have been brought regarding access to Web sites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject Web sites accessible, a clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA does not exist. See generally, Target, 452 F. Supp. 2d 946; Amazon.com and National Federation of the Blind Join Forces to Develop and Promote Web Accessibility (Mar. 28, 2007), http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=174 (last visited June 29, 2010); Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired (Aug. 2004), http://www.ag.ny.gov/media_center/2004/aug/aug19a_04.html (last visited June 29, 2010). Two independent Federal agencies have also formally called on the Department to revise its regulations to make clear that the Web sites of entities covered under title III are subject to the ADA. See Federal Communications Commission, Recommendation 9.10, National Broadband Plan (Mar. 16, 2010), available at http://www.broadband.gov/plan (last visited June 29, 2010) (“The DOJ should amend its regulations to clarify the obligations of commercial establishments under title III of the Americans with Disabilities Act with respect to commercial Web sites”); National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at http://www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (urging the Department to clarify the ADA's coverage of Web sites of title III entities).

Although the Department has been clear that the ADA applies to Web sites of private entities that meet the definition of “public accommodations,” inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to Web sites of entities covered by title III. For these reasons, the Department is exploring what regulatory guidance it can propose to make clear to entities covered by the ADA their obligations to make their Web sites accessible. Despite the need for action, the Department appreciates the need to move forward deliberatively. Any regulations the Department adopts must provide specific guidance to help ensure Web access for individuals with disabilities without hampering innovation and technological advancement on the Web.

Before the Department seeks comment on specific regulatory text, the Department is seeking input from the public. In addition to seeking comments in response to the specific questions raised in this ANPRM, the Department is particularly interested in receiving comments from all of those who have a stake in ensuring that the Web sites of public accommodations and public entities are accessible to people with disabilities or would otherwise be affected by regulations requiring Web site access. The Department appreciates the complexity and potential impact of this initiative and therefore also seeks input from experts in the field of computer science, programming, networking, assistive technology, and other related fields whose feedback and expertise will be critical in developing a workable framework for Web site access that respects the unique characteristics of the Internet and its transformative impact on everyday life. In your comments, please refer to each question by number. Please provide additional information not addressed by the proposed questions if you believe it would be helpful in understanding the implications of imposing ADA regulatory requirements on the Web sites of public accommodations and State and local government entities.

As previously mentioned, the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C®) has created recognized voluntary international guidelines for Web accessibility. These guidelines, set out in the Web Content Accessibility Guidelines (WCAG), detail how to make Web content accessible to individuals with disabilities. The most recent and updated version of the WCAG, the WCAG 2.0, was published in December 2008 and is available at http://www.w3.org/TR/WCAG20/ (last visited June 29, 2010). According to the WAI, the WCAG 2.0 “applies broadly to more advanced technologies; is easier to use and understand; and is more precisely testable with automated testing and human evaluation.” See WAI, Web Content Accessibility Guidelines (WCAG) Overview, available at http://www.w3.org/WAI/intro/wcag.php (last visited June 29, 2010).

The WCAG 2.0 contains 12 guidelines addressing Web accessibility. Each guideline contains testable criteria for objectively determining if Web content satisfies the guideline. In order for a Web page to conform to the WCAG 2.0, the Web page must satisfy the criteria for all 12 guidelines under one of three conformance levels: A, AA, or AAA. The three levels of conformance indicate a measure of accessibility and feasibility. Level A, which is the minimum level of conformance for access, contains criteria that provide basic Web accessibility and that are the most feasible for Web content developers. Level AA, which is the intermediate level for access, contains enhanced criteria that provide more comprehensive Web accessibility and yet are still feasible for Web content developers. Level AAA, which is the maximum level of access, contains criteria that may be less feasible for Web content developers. In fact, WAI does not recommend that Level AAA conformance be required as a general policy for entire Web sites because it is not possible to satisfy all Level AAA criteria for some content. See W3C®, Understanding WCAG 2.0: Understanding Conformance (Dec. 2008), http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html (last visited June 29, 2010).

Standards for Web site accessibility also exist for Federal government agencies, which are required to make their Web sites accessible under section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794(d) (section 508). Specifically, the Web sites of Federal government agencies must comply with the Electronic and Information Technology Accessibility Standards (section 508 standards) published by the U.S. Access Board, 36 CFR 1194, available at http://www.access-board.gov/sec508/standards.htm (last visited June 29, 2010). The Access Board is currently revising the section 508 standards, in part to harmonize the standards with model guidelines, such as the WCAG.

Question 1. Should the Department adopt the WCAG 2.0's “Level AA Success Criteria” as its standard for Web site accessibility for entities covered by titles II and III of the ADA? Is there any reason why the Department should consider adopting another success criteria level of the WCAG 2.0? Please explain your answer.

Question 2. Should the Department adopt the section 508 standards instead of the WCAG guidelines as its standard for Web site accessibility under titles II and III of the ADA? Is there a difference in compliance burdens and costs between the two standards? Please explain your answer.

Question 3. How should the Department address the ongoing changes to WCAG and section 508 standards? Should covered entities be given the option to comply with the latest requirements?

Question 4. Given the ever-changing nature of many Web sites, should the Department adopt performance standards instead of any set of specific technical standards for Web site accessibility? Please explain your support for or opposition to this option. If you support performance standards, please provide specific information on how such performance standards should be framed.

It is the Department's intention to regulate only governmental entities and public accommodations covered by the ADA that provide goods, services, programs, or activities to the public via Web sites on the Internet. Although some litigants have asserted that “the Internet” itself should be considered a place of public accommodation, the Department does not address this issue here. The Department believes that title III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of “public accommodations,” as defined by the statute and regulations. Because the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web—whether hosting their own Web site or participating in a host's Web site—the Department wishes to make clear the limited scope of its regulations. For example, the Department is considering proposing explicit regulatory language that makes clear that Web content created or posted by Web site users for personal, noncommercial use is not covered, even if that content is posted on the Web site of a public accommodation or a public entity. This would include individual participation in popular online communities, forums, or networks in which people upload personal videos or photos or engage in exchanges with other users. The Department could also make clear that public accommodations and public entities are not liable for inaccessible content posted to their sites by individuals not under their control as long as they provide their Web site users the ability to make their posts accessible.

In addition, the Department does not intend to propose regulatory text that reaches the informal or occasional trading, selling, or bartering of goods or services by private individuals in the context of an online marketplace. The Department could distinguish such occasional trading activity by individuals acting in a private capacity from legally established business entities, ranging from sole proprietorships to limited liability companies and corporations. As long as these business entities offer the goods or services of a public accommodation online, they would be responsible for making such offerings accessible to individuals with disabilities. Lastly, a public accommodation or public entity would not be required to ensure the accessibility of Web sites that are linked to its site, but that it does not operate or control. However, to the extent an entity requires users of its Web site to utilize another Web site in order to take part in its goods and services (e.g., payment for items on one Web site must be processed through another Web site), the entity may be liable for the accessibility of other sites it requires its patrons to use even if it does not operate or control the site.

Question 5. The Department seeks specific feedback on the limitations for coverage that it is considering. Should the Department adopt any specific parameters regarding its proposed coverage limitations? How should the Department distinguish, in the context of an online marketplace, between informal or occasional trading, selling, or bartering of goods or services by private individuals and activities that are formal and more than occasional? Are there other areas or matters regarding which the Department should consider adopting additional coverage limitations? Please provide as much detail as possible in your response.

Question 6. What resources and services are available to public accommodations and public entities to make their Web sites accessible? What is the ability of covered entities to make their Web sites accessible with in-house staff? What technical assistance should the Department make available to public entities and public accommodations to assist them with complying with this rule?

Question 7. Are there distinct or specialized features used on Web sites that render compliance with accessibility requirements difficult or impossible?

The Department has taken the position that covered entities with inaccessible Web sites may comply with the ADA's requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site. See Accessibility of State and Local Government Web sites to People with Disabilities, available at http://www.ada.gov/Web sites2.htm. In order for an entity to meet its legal obligation under the ADA, an entity's alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible Web site that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.

Question 8. Given that most Web sites today provide significant amounts of services and information in a dynamic, evolving setting that would be difficult, if not impossible, to replicate through alternative, accessible means, to what extent can accessible alternatives still be provided? Might viable accessible alternatives still exist for simple, non-dynamic Web sites?

Following the publication of a final rule, the Department must set an effective date for the application of any new title II or title III regulations requiring the Web sites of entities covered by the ADA to be accessible. When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for covered entities to become familiar with their new obligations. Under the 1991 regulations, new construction under title II and alterations under either title II or title III had to comply with the design standards of the Department's new regulations by January 26, 1992, six months after the regulations were published. See 28 CFR 35.151(a)-(b); 28 CFR 36.402(a). For new construction under title III, the ADA requirements applied to facilities of public accommodations designed and constructed for first occupancy after January 26, 1993—-eighteen months after the ADA Standards were published by the Department. See 28 CFR 36.401(a).

The Department is considering an effective date of six months after the publication of the final rule for newly created Web sites or pages, i.e., those that have been placed online for the first time six months after the publication of the final rule. Under such a proposal, newly created or completely redesigned Web sites will have to come into total compliance with any Web access requirements adopted by the Department. New pages on existing Web sites would need to comply with the Web access requirements to the maximum extent feasible. The Department is considering this provision for new pages on existing Web sites because the Department recognizes that certain features on existing Web sites—such as navigation components or use of integrated Web technology with limited capacity for accessibility—cannot be completely altered or replaced without a complete redesign of the entire site. For this reason, the Department is considering requiring new pages on existing Web sites to comply with the accessibility requirements to the maximum extent feasible. The Department recognizes, however, that in some cases this may result in incomplete accessibility of new pages. For existing Web sites or pages, the Department is considering having the Web site access requirement apply two years after the date of publication of the final rule. The Department is considering this period of time for existing Web sites because it recognizes that many Web sites have hundreds (and some thousands) of pages that will need to be made accessible.

Question 9. The Department seeks comment on the proposed time frames for compliance. Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance? Please provide as much detail as possible in support of your view.

Question 10. The Department seeks comment regarding whether such a requirement would cause some businesses to remove older material rather than change the content into an accessible format. Should the Department adopt a safe harbor for such content so long as it is not updated or modified?

Question 11. Should the Department take an incremental approach in adopting accessibility regulations applicable to Web sites and adopt a different effective date for covered entities based on certain criteria? For instance, should the Department's regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail Web sites)? Please provide as much detail and information as possible in support of your view.

Executive Order 12866 requires Federal agencies to submit “significant regulatory action” to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) for review and approval prior to publication in the Federal Register. See E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended; OMB Budget Circular A 4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (Sept. 17, 2003) (last visited June 29, 2010). A proposed regulatory action is deemed to be “economically significant” under section 3(f)(1) of Executive Order 12866 if it has an annual effect on the economy of $100 million or more. Id. Regulatory actions that are deemed to be economically significant must include a formal regulatory analysis--a report analyzing the economic costs and benefits of the regulatory action. A formal cost-benefit analysis must include both qualitative and quantitative measurements of the benefits and costs of the proposed rule as well as a discussion of each potentially effective and reasonably feasible alternative. Since this is an ANPRM, the Department is not required to conduct certain economic analyses or written assessments that otherwise may be required for other more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules). If any proposed rule the Department issues regarding Web access is likely to have an economically significant impact on the economy, the Department will prepare a formal regulatory analysis.

Question 12. What data source do you recommend to assist the Department in estimating the number of public accommodations (i.e., entities whose operations affect commerce and that fall within at least one of the 12 categories of public accommodations listed above) and State and local governments to be covered by any Web site accessibility regulations adopted by the Department under the ADA? Please include any data or information regarding entities the Department might consider limiting coverage of, as discussed in the “coverage limitations” section above.

Question 13. What are the annual costs generally associated with creating, maintaining, operating, and updating a Web site? What additional costs are associated with creating and maintaining an accessible Web site? Please include estimates of specific compliance and maintenance costs (software, hardware, contracting, employee time, etc.). What, if any, unquantifiable costs can be anticipated from amendments to the ADA regulations regarding Web site access?

Question 14. What are the benefits that can be anticipated from action by the Department to amend the ADA regulations to address Web site accessibility? Please include anticipated benefits for individuals with disabilities, businesses, and other affected parties, including benefits that cannot be fully monetized or otherwise quantified.

Question 15. What, if any, are the likely or potential unintended consequences (positive or negative) of Web site accessibility requirements? For example, would the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their Web sites?

Question 16. Are there any other effective and reasonably feasible alternatives to making the Web sites of public accommodations accessible that the Department should consider? If so, please provide as much detail about these alternatives, including information regarding their costs and effectiveness in your answer.

Consistent with the Regulatory Flexibility Act of 1980 and Executive Order 13272, the Department must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The Department will make an initial determination as to whether any rule it proposes is likely to have a significant economic impact on a substantial number of small entities, and if so, the Department will prepare an initial regulatory flexibility analysis analyzing the economic impacts on small entities and regulatory alternatives that reduce the regulatory burden on small entities while achieving the goals of the regulation. In response to this ANPRM, the Department encourages small entities to provide cost data on the potential economic impact of adopting a specific requirement for Web site accessibility and recommendations on less burdensome alternatives, with cost information.

Question 17. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to Web accessibility will have on small entities if adopted by the Department. The Department encourages you to include any cost data on the potential economic impact on small entities with your response. Please provide information on capital costs for equipment, such as hardware and software needed to meet the regulatory requirements; costs of modifying existing processes and procedures; any affects to sales and profits, including increases in business due to tapping markets not previously reached; changes in market competition as a result of the rule; and cost for hiring web professionals for to assistance in making existing Web sites accessible.

Question 18. Are there alternatives that the Department can adopt, which were not previously discussed in response to Questions 11 or 16, that will alleviate the burden on small entities? Should there be different compliance requirements or timetables for small entities that take into account the resources available to small entities or should the Department adopt an exemption for certain or all small entities from coverage of the rule, in whole or in part. Please provide as much detail as possible in your response.

Question 19. The Department is interested in gathering other information or data relating to the Department's objective to provide requirements for Web accessibility under titles II and III of the ADA.

Are there additional issues or information not addressed by the Department's questions that are important for the Department to consider? Please provide as much detail as possible in your response.

You may submit electronic comments to www.regulations.gov. When submitting comments electronically, you must include DOJ-CRT 2010-0112 in the search field, and you must include your full name and address. Electronic files should avoid the use of special characters or any form of encryption and should be free of any defects or viruses.

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Submission postings will include any personal identifying information (such as your name, address, etc.) included in the text of your comment. If you include personal identifying information (such as your name, address, etc.) in the text of your comment but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also include all the personal identifying information you want redacted along with this phrase. Similarly, if you submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Comments on this ANPRM will also be made available for public viewing by appointment at the Disability Rights Section, located at 1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during normal business hours. To arrange an appointment to review the comments, please contact the ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

The reason that the Civil Rights Division is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is because the inter-agency Regulations.gov/Federal Docket Management System (FDMS) which receives electronic comments terminates the public's ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes.

The Department will hold at least one public hearing to solicit comments on the issues presented in this notice. The Department plans to hold the public hearing during the 180-day public comment period. The date, time, and location of the public hearing will be announced to the public in the Federal Register and on the Department's ADA Home Page, http://www.ada.gov/.

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires, in pertinent part, newly designed and constructed or altered public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(b) of title III directs the Attorney General to promulgate regulations to carry out the provisions of title III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12186(b).

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rule implementing title III, which is codified at 28 CFR part 36. Appendix A of the title III regulation, at 28 CFR part 36, contains the ADA Standards for Accessible Design. On September, 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulation to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to adopt the revised ADA Standards and, in pertinent part, revise the title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public's comments to the ANPRM and sought additional comment.

In that NPRM, the Department stated that it was considering options under which it might require that movie theater owners or operators exhibit movies that are captioned for patrons who are deaf or hard of hearing and movies that provide video (narrative) description1 for patrons who are blind or have low vision.2 The Department noted, for example, that technical advances since the early 1990s have made open and closed captioning for movies more readily available and effective. The Department also stated that it understood that the movie industry was transitioning, in whole or in part, to movies in digital format and that movie theater owners and operators were beginning to purchase digital projectors. As noted in that NPRM, movie theater owners and operators with digital projectors may have available to them different options for providing captioning and video description than those without digital projectors. The Department sought comments regarding whether and how to require captioning and video description while the film industry made the transition to digital. Also, the Department stated its concern about the potential cost to exhibit captioned movies, noting that cost may vary depending upon whether open or closed captioning is used and whether or not digital projectors are used, and stated that the cost of captioning must stay within the parameters of the undue burden requirement in 28 CFR 36.303(a). The Department also expressed concerns about the cost of video description equipment but stated that it understood that the cost for video description was less than that for closed captioning. The Department then stated that it was considering the possibility of requiring public accommodations to exhibit all new movies in captioned format and with video description at every showing. The Department indicated that at that time, it anticipated that it would not specify which types of captioning to provide, leaving that to the discretion of the movie theater owners and operators.

The Department received numerous comments urging the Department to issue captioning and video description regulations under the ADA. These comments are discussed infra. Recently, the United States Court of Appeals for the Ninth Circuit held that the ADA required a chain of movie theatres to exhibit movies with closed captioning and video description unless the theaters could show that to do so would amount to a fundamental alteration or undue burden. Arizona v. Harkins Amusement Enterprises, Inc.,—F.3d. —, 2010 WL 1729606 (9th Cir., April 30, 2010). In light of the comments received pursuant to the NPRM, the Ninth Circuit decision, and the additional reasons detailed below, the Department has decided to begin the process of soliciting additional comments and suggestions with respect to what an NPRM regarding captioning and video description should contain.

Creating regulations that would require movie theater owners and operators to exhibit closed captioned and video described movies falls squarely within the requirements of the ADA. Title III of the ADA includes movie theaters within its definition of places of public accommodation. 42 U.S.C. 12181(7). Title III makes it unlawful for places of public accommodation, such as movie theaters, to discriminate against an individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. 12182(a). Moreover, title III prohibits places of public accommodation from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals. 42 U.S.C. 12182(b)(1)(A)(ii). Title III requires places of public accommodation to take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently * * * because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. 12182(b)(2)(A)(iii). The statute defines auxiliary aids to include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments” and “taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. 12103(1)(A)-(B). The Department's title III regulation specifically lists open and closed captioning and audio recordings and other effective methods of making visually delivered materials available to individuals with visual impairments as examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the good or service being offered or would result in an undue burden. 28 CFR 36.303(a). In addition, the Department's title III regulation mandates that if a provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration in the nature of the goods or services being offered or in an undue burden, the public accommodation shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods and services offered by the public accommodation. 28 CFR 36.303(f).

While the ADA itself contains no explicit language regarding captioning (or video description) in movie theaters, the legislative history of title III states that “[o]pen-captioning * * * of feature films playing in movie theaters, is not required by this legislation. Filmmakers, are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films.” H.R. Rep. No. 101-485 (II), at 108 (1990); S. Rep. No. 101-116 at 64 (1989). Congress was silent on the question of closed captioning in movie theaters, a technology not yet developed at that time for first-run movies, but it acknowledged that closed captions may be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. See H.R. Rep. No. 101-485 (II), at 107.3 In addition, the House Committee stated that “technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.” Id. at 108.4 Similarly, in 1991, the Department stated that “[m]ovie theaters are not required * * * to present open-captioned films,” but was silent as to closed captioning. 56 FR 35544, 35567 (July 26, 1991). The Department also noted, however, that “other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons who are deaf or hard of hearing. Captioning is one means to make the information accessible to individuals with disabilities.” Id.

It is the Department's view that the legislative history of the ADA and the Department's commentary in the preamble to the 1991 regulation make clear that Congress was not requiring open captioning of movies in 1990, but that it was leaving open the door for the Department to require captioning in the future as the technology developed. It is also the Department's position that neither the ADA nor its legislative history precludes, in any way, issuing regulations regarding video description. To the contrary, given the present state of technology, we believe that requirements of captioning and video description fit comfortably within the statutory text.

In April of this year, the first federal appellate court to squarely address the question of whether captioning and video description are required under the ADA determined that the ADA required movie theatre owner and operator Harkins Amusement Enterprises, Inc., and its affiliates, to screen movies with closed captioning and descriptive narration (video description) unless such owners and operators could demonstrate that to do so would amount to a fundamental alteration or undue burden. Arizona v. Harkins Amusement Enterprises, Inc.,—F.3d. —, 2010 WL 1729606 (9th Cir., April 30, 2010).5 The Ninth Circuit found that because closed captioning and video descriptions are correctly classified as “auxiliary aids and services” that a movie theater may be required to provide under the ADA, the lower court erred in finding that these services are foreclosed as a matter of law. Id.

The very first movies were silent films. “Talkies” added sound as a separate component. Although many technological advances have been made since the advent of the “talkie,” the practice of exhibiting the visual portion of the movie separate from the sound is still common. Today, the cinematography portion of many movies is exhibited in an analog (i.e. film) format, and the aural portion is exhibited in a digital format. Five to six reels of film are used for a typical two-hour long movie. These reels must be physically delivered to each movie theater exhibiting the movie. Digital sound is captured on CD-roms or optically or digitally on the film itself. Digital sound is synchronized to the visual images on the screen by a mechanism, called a reader head, that reads a timecode track printed on the film.

Digital cinema, by contrast, captures images, data, and sound on data files as a digital “package” that is stored on a hard drive or a flash drive. Digital movies are physically delivered to movie theaters on high resolution DVDs or removable or external hard drives, or to movie theaters' servers via Internet, fiberoptic, or satellite networks. The movie industry recently has begun transitioning to digital cinema and it is the Department's understanding that, in the industry's view, this transition is one of the most profound advances in motion picture production and technology of the last 100 years and will provide numerous advantages both for the industry and the audience.

Captioning makes movies shown in theaters accessible to individuals whose hearing is too limited to benefit from assistive listening devices, as well as to individuals with other hearing disabilities. Open captions are similar to subtitles in that the text of the dialog is visible to everyone in the theater. Unlike subtitles, open captions also describe other sounds and sound makers (e.g., sound effects, music, and the character who is speaking) in an on-screen text format. Open movie captions are sometimes referred to as “burned in” or “hardcoded” captions. However, new open captioning technology enables studios to superimpose captions without making a burned in copy or having to deliver a separate version of the movie. Open-captioned films are most often exhibited in movie theaters at certain limited showings.

Closed captioning displays the written text of the dialog and other sounds or sound makers only to those individuals who request it. It is the Department's understanding that, at the time comments were received in response to the 2008 NPRM, there were various types of closed captioning systems either in use or in development, including the Rear Window system, hand-held displays similar to a PDA (personal digital assistant), eyeglasses fitted with a prism over one lens, and projected bitmap captions. It is also the Department's understanding that, at present, the only system that has gained a foothold in the marketplace is the Rear Window system. Unlike open captions that are sometimes burned onto the film itself, Rear Window captions are generated via a technology that neither is physically attached to the film nor requires a separate copy of the film to be made. The Rear Window system works through a movie theater's digital sound system. It uses a computer, a time code signal, and captioning software to project the captions, in reverse, on an LED display in the rear of the theater. A clear adjustable panel that is mounted on, or near an individual viewer's seat reflects the captions correctly and superimposes them on that panel so that it appears to a Rear Window user that the captions are on or near the movie image. Because this technology enables a movie theater that has been equipped with a Rear Window system to exhibit any movie that a movie producer has captioned, at any showing, without displaying captions to every movie-goer in the theater, individuals who are deaf or hard of hearing may enjoy movies in the same theater as those who do not require captioning.

Video description is a technology that enables individuals who are blind or have low vision to enjoy movies by providing a spoken narration of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes. Visual description fills in information about the visual content of a movie where there are no corresponding audio elements in the film. It requires the creation of a separate script written by specially trained writers who prepare a script for video description that is recorded on an audiotape or CD that is synchronized with the film as it is projected. The script is transmitted to the user through infra-red or FM transmission to wireless headsets.

The percentage of Americans approaching middle age and older is increasing. According to 2000 Census figures, Baby Boomers (i.e., individuals born between 1946 and 1964 or who were between the ages of 36 and 54 in 2000), comprised nearly a third of all Americans. Just over a fifth of the American populous was age 55 or older. From 1990 to 2000, the two fastest growing age groups were those 45 to 49 and 50 to 54. The younger of the two groups increased by nearly 45 percent, and the older increased by more than half (54.9 percent). Together these groups comprised nearly 38 million people (37,677,952). When joined with other “seniors,” the 2000 Census figure for the over 45 age group increased to nearly 97 million people (96,944,389). Assuming the population has remained fairly constant, when the 2010 Census is completed and the results are released, Baby Boomers, who will then fall between the ages of 46 and 64, will make older Americans the largest segment of the U.S. population.

The aging of the population is significant because of the correlation between aging and hearing and vision impairment or loss. An October 21, 2008 Department of Health and Human Services' Progress Review on Vision and Hearing in the United States noted that Richard Klein, Chief of the NCHS Health Promotion Statistics Branch, found that there are about 21 million adults in the United States that are visually impaired, and about 36 million (17 percent) have some degree of hearing loss.6 The Progress Review also noted that “[a]s with vision problems, the number of U.S. adults with hearing loss is expected to increase significantly as the population ages, because hearing loss and aging are related to a high degree. Hearing loss is one of the three most prevalent chronic conditions in older Americans, ranking just after hypertension and arthritis.” Progress Review: Vision and Hearing, http://www.healthypeople.gov/data/2010prog/focus28/. Moreover, at least one hearing loss Web site reports that “[a]s baby boomers reach retirement age starting in 2010, th[e] number of [Americans with hearing loss] is expected to rapidly climb and nearly double by the year 2030.” Hearing Loss Association of America, Facts on Hearing Loss, http://www.hearingloss.org/learn/factsheets.asp.

When the Department issued its September 30, 2004 advance notice of proposed rulemaking (ANPRM), it did not raise movie captioning or video description as potential areas of regulation. Despite that fact, several ANPRM commenters requested that the Department consider regulating in these areas. The Department has determined that since the publication of the 1991 regulation, new “closed” technologies for movie captioning and video description have been developed. By 1997, these technologies were released into the marketplace.7

Given the availability of this new technology, mindful that the ADA's legislative history made clear that the ADA ought not be interpreted so narrowly or rigidly that new technologies are excluded, and aware that assistive listening devices and systems in movie theaters cannot be used to effectively convey the audio content of films for individuals who are deaf or who have severe or profound hearing loss, the Department decided to broach the topic of requiring closed captioning and video description at movie theaters in the 2008 NPRM. The NPRM asked exploratory questions about, but proposed no regulatory text for, movie captioning and video descriptions. The Department received many comments from individuals with disabilities, organizations representing individuals with disabilities, non-profit organizations, state governmental entities, and representatives from movie studios and movie theater owners and operators on these two issues.

Rather than using these comments to formulate a final rule, however, the Department is issuing this supplemental ANPRM for three main reasons. First, the Department wishes to obtain more information regarding several issues raised by commenters that were not contemplated at the time the 2008 NPRM was published. Second, the Department seeks public comment on several technical questions that arose from the research the Department undertook to address some of the issues raised by commenters to the original NPRM. Finally, in the two years that have passed since issuance of the 2008 NPRM, the Department is aware that movie theater owners and operators, particularly major movie theater owners and operators, either have entered into, or had plans to enter into, agreements to convert to digital cinema. However, during this same time period, the United States' economy, and the profitability of many public accommodations, experienced significant setbacks. The Department wishes to learn more about the status of digital conversion, concrete projections regarding if and when movie theater owners and operators, both large and small, expect to exhibit movies using digital cinema, when such movie theater owners and operators expect to implement digital cinema, by percentages, in their theaters, and any relevant protocols, standards, and equipment that have been developed regarding captioning and video description for digital cinema. In addition, the Department would like to learn if, in the last two years, other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement.

Although the 2008 NPRM did not propose any specific regulatory language with regard to movie captioning or video description, the Department sought input from the public as to whether the Department's regulation should require movie theater owners and operators to exhibit movies that have captioning for patrons who are deaf or hard of hearing and video description for individuals who are blind or have low vision. The Department asked whether, within a year of the revised regulation's effective date, all new movies should be exhibited with captions and video description at every showing or whether it would be more appropriate to require captions and video description less frequently. The preamble made clear that the Department did not intend to specify which types of captioning to provide and stated that such decisions would be left to the discretion of the movie theater owners and operators.

Individuals with disabilities, advocacy groups, a representative from a non-profit organization, and representatives of state governments, including eleven State Attorneys General, overwhelmingly supported issuance of a regulation requiring movie theater owners and operators to exhibit captioned and video described movies at all showings unless doing so would result in an undue burden or fundamental alteration. These groups noted that although the technology to exhibit movies with captions and video description has been in existence for about ten years, most movie theaters still were not exhibiting movies with captioning and video description. As a result, these groups indicated that they believed regulatory action should not be delayed until the conversion to digital cinema had been completed. One commenter in this group said that because federal law requires movie studios to caption movies prior to their release to cable and television media, see, e.g., 47 CFR 79.1, it made good business sense for studios to caption movies prior to their being released to movie theater owners and operators. Several commenters requested that any regulation include factors describing what constitutes effective captioning and video description, including that captioning be within the same line of sight to the screen as the movie so that individuals who are deaf or hard of hearing can watch the movie and read the captions at the same time, that the captioning be accessible from each seat, that the captions be of sufficient size and contrast to the background so as to be easily readable, and that the recommendations from the Telecommunications and Electronics and Information Technology Advisory Committee (TEITAC) Report to the Access Board that captions be “timely, accurate, complete, and efficient” be included.8 The Department has carefully considered these requests and believes that more information is required before making a decision as to how many movies should be screened with captioning and video description available and whether factors that describe what constitutes effective captioning and video description would be helpful to movie theater owners and operators and individuals with disabilities.

The State Attorneys General supported the Department's statement in the 2008 NPRM that the Department did not anticipate specifying which type of captioning to provide or what type of technology to use to provide video description, but would instead leave that to the discretion of the movie theater owners and operators. These State Attorneys General said that such discretion in the selection of the type of technology was consistent with the statutory and regulatory scheme of the ADA and would permit any new regulation to keep pace with future advancements in captioning and video description technology. These same commenters stated that such discretion may result in a mixed use of both closed captioning and open captioning, affording more choices both for the movie theater owners and operators and for individuals who are deaf or hard of hearing. The Department has considered these points and has decided that this ANPRM should request additional comments regarding whether the Department should specifically require closed captioning or permit motion picture owners and operators to choose which type of captioning to provide in order to satisfy any regulatory requirements the Department might impose.

Representatives from the movie theater industry strongly urged the Department not to issue a regulation requiring captioning (but were silent as to requiring video description) at movie theaters. Some industry commenters also opposed any regulation by the Department in this area claiming that since the Access Board has not issued a regulation to require the exhibition of captioned and video described movies in public accommodations, the Department is precluded from so doing. These commenters misunderstood the allocation of regulatory authority under the ADA. The ADA authorizes the Access Board to issue design guidelines for accessible buildings and facilities and requires that the design standards for buildings and facilities included in regulations issued by the Department be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board. See 42 U.S.C. 12186(c). It is beyond the scope of the Access Board's authority to establish regulations governing aspects of ADA implementation unrelated to design and construction issues. The Department, by contrast, has broad regulatory authority to implement additional provisions of the ADA, including those requiring covered entities to ensure effective communication with their clients and customers.

Industry commenters also said that the cost of obtaining the equipment necessary to display closed captioned and video described movies would constitute an undue burden. One industry commenter stated that the cost of equipment to display both closed captions and video description per screen can approach $11,000, plus additional installation expenses. The Department is aware that there are costs associated with providing closed captioning and video description technology and that for some movie theater owners and operators, particularly independent or very small movie theater companies, obtaining captioning and video description equipment may indeed constitute an undue burden. However, after carefully considering the concerns raised about the costs of implementing captioning and video description technology, the Department needs additional, more specific, and more recent information on the issue of undue burden.

In addition, in an effort to spread out any implementation costs so that costs could be absorbed over time and would lessen any financial impact on theater owners and operators, the Department is considering a provision that would phase in compliance requirements. It is the Department's intention that such a provision, along with normal swings in supply and demand (e.g., commenters noted that as more theaters purchase closed captioning and video description technologies, their costs will drop), could insulate many movie theater owners and operators from an undue burden.

Some industry commenters argued also that because the industry has made progress in making cinema more accessible without mandates to caption or describe movies, the Department should wait until the movie industry has completed its conversion to digital cinema to regulate. According to a commenter representing major movie producers and distributors, the number of motion pictures produced with closed captioning by its member studios had grown to 88 percent of total releases by the end of 2007, early 2008; the number of motion pictures produced with open captioning by its member studios had grown to 78 percent of total releases by the end of 2007, early 2008; and the number of motion pictures provided with video description has consistently ranged between 50 and 60 percent of total releases. This commenter explained that movie producers and distributors, not movie theater owners and operators, determine whether to caption, what to caption and describe, the type of captioning to use, and the content of the captions and video description script. In addition, the movie studios, not the movie theater owners and operators, assume the costs of captioning and describing movies. This commenter also said that movie theater owners and operators must only purchase the equipment to display the captions and play the video description in their auditoriums. That said, several commenters stated that movie theater owners and operators rarely exhibit the movies with captions or descriptions. They estimated that less than 1 percent of all movies being exhibited in theaters are actually shown with captions.

The Department has carefully considered this information and acknowledges that significant strides have been made by movie producers in terms of furnishing movies that have the potential to make movies more accessible for individuals with disabilities. Despite these strides, however, the percentage of captioned and video described movies actually exhibited or made available in movie theaters appears to be disproportionately low by comparison. The Department is concerned about what appears to be a significant disconnect between the production of movies that have captioning and video description capabilities and the actual exhibition or availability of such movies to individuals with sensory disabilities. The Department also is concerned that even when captioned and video described movies are exhibited, their showings appear to be relegated to the middle of the week or midday showings. Commenters lamented that individuals with disabilities generally do not have the option of attending movies on days and times (e.g., weekends or evenings) when most other moviegoers see movies because movie theaters usually only show captioned or video described movies during the week at off-peak hours. The Department has not been persuaded that movie theaters have made such significant strides in making the current captioning and video description technology available to moviegoers with disabilities that regulatory action in this area would be unnecessary.

Industry commenters have requested that any regulation regarding captioning and video description be timed to occur after the conversion to digital cinema is complete. The Department is aware that in 2005, the movie industry began transitioning away from the exclusive use of analog films to exhibit movies to a digital mode of movie delivery. However, the completion date of that conversion has remained elusive. One industry commenter said while there has been progress in making the conversion, only approximately 5,000 screens, out of 38,794, have been converted, and the cost to make the remaining conversions involves an investment of several billion dollars. Some commenters have suggested that completion of digital conversion may be 10 or more years in the future. The Department also is concerned that because of the high cost of converting to digital cinema (an industry commenter estimated that the conversion to digital costs between $70,000 and $100,000 per screen and that maintenance costs for digital projectors are estimated to run between $5,000 and $10,000 a year, approximately five times as expensive as the maintenance costs for film projectors) and current economic conditions, a complete conversion to digital cinema may be postponed or may not happen at all. For example, National Public Radio reported that “[f]or more than seven years, film studios and theaters have been hyping digital projectors and the crisp, clear picture quality they'll bring to movie screens. But the vast majority of the nation's cinemas are still using old analog projectors. * * * Despite the clear economic advantages of digital projection of the nation's more than 38,000 movie screens, only 2,200 have digital projectors.” All Things Considered, Digital Projection in Theaters Slowed Down by Dispute (Mar. 21, 2007), available at http://news.wvpubcast.org/templates/transcript/transcript.php?storyId=9047637.

Whether a complete conversion to digital cinema will occur in a time certain, or not at all, is unknown. Even if the conversion of digital proceeds, until there is a complete digital conversion, at least some theaters will employ analog cinematography (i.e., 35 mm film) to exhibit movies. It is the Department's understanding that currently the vast majority of movie theaters in the United States exhibit film-based movies. Many, however, use a digital sound system (e.g., Digital Theater Systems, Dolby Digital, Sony Dynamic Digital Sound, etc.). Digital sound systems operate independently from analog projectors that deliver the visual portion of a movie. It is also the Department's understanding that the closed captioning and video description technology that is currently available requires a movie theater to have a digital sound system but that digital cinema is not necessary for the captioning and video description technology. Thus, because the Department has not been presented with any substantive information indicating that a complete conversion to digital cinema is necessary to provide individuals with disabilities the opportunity to attend a closed captioned or video described movie, and the date for any complete conversion to digital cinema is unclear, at best, the Department believes that it may be unnecessary and inappropriate to wait to establish rules pertaining to closed captioning and video description for movies.

It appears that existing captioning and video description equipment can be used with digital cinema. Commenters appeared to agree that when theaters move to digital technology, both the caption data and video descriptions can be embedded into the digital signal that is projected. A few commenters said that the systems currently used to provide captioning and video description will not become obsolete once a theater has converted to digital cinema because their major components are compatible with, and can be used by, digital cinema systems. These commenters said that the only difference for a movie theater owner or operator using digital cinema is the way the data are delivered to the captioning and video description equipment in place in an auditorium. In other words, because closed captioning and video description equipment operates through the digital sound systems most theaters have, the fact that those sound systems may be integrated with the digital cinema system will not necessitate changing the captioning and description equipment, only the manner in which the data they project are delivered to the digital cinema system. The Department seeks additional and updated information on this point.

Finally, the Department is considering proposing that 50% of movie screens would offer captioning and video description 5 years after the effective date of the regulation. The Department originally requested guidance on any such figure in its 2008 NPRM. Individuals with disabilities, advocacy groups who represented individuals with disabilities, and eleven State Attorneys General advocated that the Department should require captioning and video description 100% of the time. Representatives from the movie industry did not want any regulation regarding captioning or video description. A representative of a non-profit organization recommended that the Department adopt a requirement that 50% of movies being exhibited be available with captioning and video description. The Department seeks further comment on this issue and is asking several questions regarding how such a requirement should be framed.

While the Department has been persuaded by comments from individuals, advocacy groups, governmental entities, and at least some representatives of the movie industry that the time may be right to issue regulations on captioning and video description at movie theaters, the Department has a series of questions concerning the details of how best to frame and implement any such requirements. The Department believes that input from interested parties and the public would prove to be very useful. Specifically, the Department is seeking additional comment in response to the following questions:

Question 1. The Department is considering proposing a regulation that contains a sliding compliance schedule whereby the percentage of movie screens offering closed captioning and video description increases on a yearly basis, beginning with 10 percent in the first year any such rule becomes effective, until the 50 percent mark is reached in the fifth year. Please indicate whether this approach achieves the proper balance between providing accessibility for individuals with sensory disabilities and giving movie theaters and owners sufficient time to acquire the technology and equipment necessary to exhibit movies with closed captioning and video descriptions. Also, if you believe that a different compliance schedule should be implemented, please provide a detailed response explaining how this should be accomplished and the reasons in support. Should a different compliance schedule be implemented for small businesses? If so, why? What should that schedule require?

Question 2. The Department is considering proposing regulatory language requiring movie theater owners and operators to exhibit movies with closed captions and movies with video description so that, after any sliding compliance scale has been achieved by the final year (e.g., at year 5), all showings of at least one-half of the movie screens at the theater will offer captioning and video description. We seek comment on the most appropriate basis for calculating the number of movies that will be captioned and video described: Should this be the number of screens located in a particular theater facility, the number of screens owned by a particular movie theater company, the number of different movies being screened in a particular theater facility, or some combination thereof? Should a different basis be used for small business owners? If so, why? What basis should be used? Please include an explanation of the advantages and disadvantages of each option and the reasons a particular option is preferred over another.

Question 3. If the number of screens located in a particular theater facility is the preferred option, please explain whether the fact that some theaters show the same movie on multiple screens poses any concerns with regard to the number of movies being screened with captions and video descriptions, and if so, what they are and whether there are any ways to address those concerns. Does this option pose particular concerns to small businesses? If so, what are they? Please indicate whether the Department should include specific language in the regulation that states that the basis for calculating the number or percentage is the number of captioned and video described movies the theater receives from the movie producers in order to make clear that the owner has no independent obligation to caption or describe movies.

Question 4. If the number of screens owned by a particular movie theater company is the preferred option, please explain whether there are any concerns about the geographic distribution of movies being screened with captions and video descriptions, and if so, what they are and whether there are any ways to address those concerns. Does this option pose particular concerns to small businesses? If so, what are they? Please indicate whether the Department should include specific language in the regulation that states that the basis for calculating the number or percentage of movies is the number of captioned and video described movies the theater receives from the movie producers in order to make clear that the owner has no independent obligation to caption or describe movies.

Question 5. If the number of movies being screened in a particular movie theater facility is the preferred option, please indicate whether the Department should include specific language in the regulation that states that the basis for calculating the number or percentage of movies is the number of captioned and video described movies the theater receives from the movie producers in order to make clear that the owner has no independent obligation to caption or describe movies. Does this option pose particular concerns to small businesses? If so, what are they?

Question 6. If some combination of these three methods is the preferred option, please explain that option and how it would be implemented. Should a different combination or percentage be used for small business owners? If so, why? What combination or percentage should be used for small business owners? Please indicate whether the Department should include specific language in the regulation that states that the basis for calculating the number or percentage is the number of captioned and video described movies the theater receives from the movie producers in order to make clear that the owner has no independent obligation to caption or describe movies.

Question 7. Should any such regulation require that the same number or percentage of movies with video description be exhibited as required for movies with captioning or should a different number or percentage be imposed? If the latter, what would be the justification for distinguishing between these forms of access? Should small businesses use a different ratio or percentage of video described movies or should they also be required to exhibit the same number or percentage of video described and captioned movies as other entities?

Question 8. Should the Department adopt a requirement that movie theater owners and operators exhibit captioned and video described movies beginning on the day of their release? If not, why not (e.g., could such a requirement impose additional burdens and if so, what are they)? Should a different requirement be imposed on small business owners? If so, why? What should that requirement be?

Question 9. While the Department is not considering requiring the use of open captioning, should movie theater owners and operators be given the discretion to exhibit movies with open captioning, should they so desire, as an alternate method of achieving compliance with the captioning requirements of any Department regulation? If theaters opt to use open captioning, should they be required to exhibit movies with such captioning at peak times so that people with disabilities can have the option of going to the movies on days and times when other moviegoers see movies?

Question 10. How many movie theater owners or operators have converted, in whole or in part, to digital cinema? How many have concrete plans to convert 25 percent of their theaters in the next five years? Next ten years? How many have concrete plans to convert 50 percent of their theaters in the next five years? Next ten years? How many have concrete plans to convert 75 percent of their theaters in the next five years? Next ten years? What are the estimates for the cost for a movie theater to convert a movie auditorium to digital cinema? Are these costs different for small businesses? Have small businesses entered into any cost-sharing agreements or other financing arrangements to assist in such a conversion?

Question 11. Have specific protocols or standards been developed for captioning and video description for digital cinema and, if so, what are they?

Question 12. Do the closed captioning and video description technologies currently available require the use of a digital sound system or digital cinema? Have technologies been developed that do not require the use of either a digital sound system or digital cinema in order to display open or closed captions and offer video description? If any new technologies have been developed, please explain how they work and what, if any, additional costs are associated with the purchase or use of such technologies? Are there technologies in development that will not require the use of a digital sound system or digital cinema in order to display captions or video description? If so, what are they and when are they expected to be available for use by movie theater owners and operators? Please explain what, if any, additional costs are associated with the purchase or use of such technologies.

Question 13. Is the existing closed captioning and video description equipment in use for digital sound systems compatible, or able to be integrated, with digital cinema systems? If not, why not? Are there additional costs associated with using this equipment with digital cinema systems? If so, please provide details. Are the costs different for small businesses? If so, why? What are they?

Question 14. With regard to closed captioning systems, is the ability to read the captions equally good throughout the movie theater or are there certain seats in the theater that provide an enhanced level of readability or line of sight both to the screen and the adjustable panel affixed at or near the patron's seat? If certain seats enable individuals who are deaf or hard of hearing to view movies more effectively, which seats are they and why are they better (e.g., the image is better, there are fewer obstructions, there is less need to continually adjust the panel, etc.)? Should movie theater owners and operators be required to hold such seats for individuals with disabilities who wish to use the theater's closed captioning system? Since movie theater seating is usually first-come, first-serve, is there an effective system that movie theaters would be able to implement to hold back releasing such seats? Should movie theater owners and operators be allowed to release such seats if they are not requested within a certain amount of time before the start of the movie? Should movie theater owners and operators be allowed to release such seats to the general movie going audience once all of the other seats in the theater have been sold out? Are there alternatives for seating that minimize the cost but still provide patrons who are deaf or hard of hearing with effective and efficient readability of the captions and lines of sight to the screen?

Question 15. Are there other factors that the Department should include with regard to the display of captions or the use of video description? What is the cost of purchasing/incorporating video description equipment per screen/theater? Are the costs different for small businesses? If so, why? What are they?

Question 16. Has any specific equipment been developed or is there equipment in development for use with digital cinema that would be necessary to exhibit closed captioned movies or movies with video description? If so, is that equipment included in the general cost of the conversion to digital cinema or is an additional fee imposed? If an additional fee is imposed, please provide details. Are the costs different for small businesses? If so, why? What are they?

Question 17. Are there any other technical requirements that the Department should consider for inclusion in any regulation? If so, please provide details.

Question 18. Should the Department include a requirement that movie theater owners and operators establish a system for notifying individuals with disabilities in advance of movie screenings as to which movies and shows at its theaters provide captioning and video description? If so, how should such a requirement be structured? For example, should the Department require movie theater owners and operators to include, in their usual movie postings in the newspaper, on telephone recordings, and on the Internet, a notation or some other information that a movie is captioned, the type of captioning provided, or that the movie has video description? Should the Department require movie theater owners and operators to establish a procedure or method for directing individuals with sensory disabilities to where in each movie theater they should go to obtain any necessary captioning and video description equipment? Should movie theater owners and operators have the discretion to determine what notification procedure or method is most appropriate or should the Department specify how and where individuals with disabilities can obtain such equipment at each theater? What are the costs for these types of notifications? Are there any alternative types of notifications possible? Are these costs different for small businesses? If so, why? What are they?

Question 19. Should the Department consider including a training requirement for movie theater personnel? Should the Department require that movie theater owners and operators ensure that at least one individual working any shift at which a captioned or video described movie is being screened be trained on how any captioning and video description equipment operates and how to convey that information quickly and effectively to an individual with a disability who seeks help in using that equipment? What are the costs and burdens to implementing such a training requirement? Are these costs different for small businesses? If so, why? What are they? Would written and recorded explanations of how the equipment works be a better alternative?

Because this is an ANPRM, the Department is not required, at this time, to conduct certain economic analyses or written assessments that otherwise may be required for other more formal types of agency regulatory actions (e.g., notices of proposed rulemaking or final rules) that, for example, are deemed to be economically significant regulatory actions with an annual economic impact exceeding $100 million annually or that are expected to have a significant economic effect on a substantial number of small entities or non-federal governmental jurisdictions (such as State, local, or tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 Fed. Reg. 6113 (Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 5, 2010).

Nonetheless, one of the purposes of this ANPRM is to seek public comment on various topics relating to captioning and video description, including perspectives from stakeholders concerning the benefits and costs of revising the Department's title III regulation to ensure the accessibility of movies (from both a quantitative and qualitative perspective), particularly from members of the disability community, industry, and governmental entities. The Department thus asks for information so that the Department can determine whether such a proposed rule (1) should be deemed an economically “significant regulatory action” as defined in section 3(f) of E.O. 12866; or (2) would have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act and, if so, consider suggested alternative regulatory approaches to minimize any such impact.

Consistent with the Regulatory Flexibility Act of 1980 and Executive Order 13272, the Department must consider the impacts of any proposed rule on small entities, including, in pertinent part, small businesses and small nonprofit organizations. See 5 U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The Department will make an initial determination as to whether any rule it proposes is likely to have a significant economic impact on a substantial number of small entities, and if so, the Department will prepare an initial regulatory flexibility analysis analyzing the economic impacts on small entities and regulatory alternatives that reduce the regulatory burden on small entities while achieving the goals of the regulation. In response to this ANPRM, the Department encourages small entities to provide cost data on the numbers of small entities that may be impacted by this rule, the potential economic impact of adopting a specific requirement for captioning and video description and recommendations on less burdensome alternatives, with cost information.

Question 20. The Small Business Administration size standard for small movie theatres is $7 million dollars in annual gross revenues. Does the public have estimates of the numbers of small entities that may be impacted by future regulation governed by this ANPRM? How many small entities presently provide movie captioning or video description? How many small entities already have, or have plans to convert to, digital cinema? How many small entities presently have, or plan to convert to, digital sound systems? How much would it cost each small entity to provide movie captioning and video description technology using digital sound? How much would it cost each small entity to provide movie captioning or video description if the entity converted to digital cinema?

Question 21. Currently, what are the general costs per movie theater owner or operator to display movies with closed captioning? How many small entities offer this feature? What are the general costs to small entities to display movies with open or closed captioning? For all entities, is that figure per auditorium, per facility, or per company? Do these costs change for showing IMAX or 3D films with captions? Are there any cost-sharing or cost-allocation agreements that help mitigate these costs for movie theater owners or operators? Is most or all of this expense a one-time fee? If not, please explain.

Question 22. Currently, what are the general costs per movie theater owner or operator to display movies with video description? How many small entities offer this feature? What are the general costs to small entities to display movies with video description? For all entities, is that figure per auditorium, per facility, or per company? Are there any cost-sharing or cost-allocation agreements that help mitigate these costs for movie theater owners or operators? Is most or all of this expense a one-time fee? If not, please explain.

Question 23. Currently, what are the general costs to convert to digital cinema? Are the costs different for small entities? If so, why? What are the costs for small entities? Is that figure per auditorium, per facility, or per company? Are there cost-sharing or cost-allocation agreements that help mitigate these costs for movie theater owners or operators?

Question 24. What impact will the measures being contemplated by the Department requiring captioning and video description of movies have on small entities? Please provide information on: (a) Capital costs for equipment needed to meet the regulatory requirements; (b) costs of modifying existing processes and procedures; (c) any effects to sales and profits, including increases in business due to tapping markets not previously reached; and (d) changes to market competition as a result of the proposed rule.

Question 25. Should any category or type of movie theater be exempted from any regulation requiring captioning or video description? For example, the Department now considers it likely that drive-in theaters will not be subject to this rule because the Department is not aware of any currently available technology that would enable closed captioning or video description of movies shown in drive-in theaters. Are there other types of movie facilities that should be exempted and why?

Question 26. If an exemption is provided, how should such an exemption be structured? Should it be based on the size of the company? To determine size, should the Department consider (a) using the Small Business Size Standard of $7 million dollars in annual gross revenue so that movie theater owners who fall within those parameters should be exempt?; (b) using factors such as whether the movie theater owner is an independent movie house (not owned, leased, or operated by, a movie theater chain), or small art film house in order to be exempt?; or (c) using some other formula or factors to determine if a movie theater owner should be exempt? Should the Department consider the establishment of different compliance requirements or timetables for compliance for small entities, independent movie houses, or small art film houses to take into account the resources available to small entities? What are other alternatives for small businesses, independent move houses, or small art film houses that would minimize the cost of future regulations?

I. Background on the Montana Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Montana Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning Montana's program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

Montana originally proposed to revise MCA 82-4-235(2), (3), and (4). These statutory provisions all pertain to revegetation and final bond release. We announced receipt of the original proposed amendment in the August 12, 2009, Federal Register (74 FR 40537), provided an opportunity for a public hearing or meeting on its substantive adequacy, and invited public comment on its adequacy (Document ID #OSM-2009-0007-0001; Administrative Record No. MT-27-05). Because no one requested a public hearing or meeting, none was held. The public comment period ended on September 11, 2009. We received comments from one Federal agency and one private citizen.

During our review of the amendment, we identified concerns relating to the proposed provisions of the Montana Code Annotated at 82-4-235(3)(a), revegetation responsibility periods. We notified Montana of our concerns by letter dated March 19, 2010 (Document ID #OSM-2009-0007-0006; Administrative Record No. MT-27-08). Montana responded in a letter dated April 12, 2010, by submitting a revised amendment proposal (Document ID #OSM-2009-0007-0007; Administrative Record No. MT-27-09).

OSM's concern with Montana's original proposal was that the provision would have allowed different types of areas to be exempted from the revegetation responsibility period than allowed under OSM's interpretation of SMCRA 515(b)(20). OSM proposed a policy in 1993 to allow State regulatory program amendments which would specify that areas reclaimed following the removal of siltation structures and associated diversions and access roads are not subject to a revegetation responsibility period (58 FR 48333). This allows States to elect to exclude these specific areas from the ten-year responsibility period in order to process bond releases on logical increments or permit areas as a whole. Sedimentation ponds and associated diversions or other siltation structures which are prohibited from being removed until two years after the last augmented seeding, fertilizing, irrigation, or other work need not extend the responsibility period or be divided out to have a separate responsibility period. The policy was adopted on May 29, 1996 (61 FR 26792, 26796).

Montana has revised its proposed statutory language to be consistent with this OSM policy and SMCRA. Proposed MCA 82-4-235(3)(a) now reads:

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Montana program.

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available in the electronic docket for this rulemaking at http://www.regulations.gov. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

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

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

In the “Rules and Regulations” section of this Federal Register, EPA is authorizing the changes by an immediate final rule (except with respect to the zinc fertilizer rule). EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect adverse comments that oppose it. We have explained the reasons for this authorization in the preamble to the immediate final rule. Unless we get written adverse comments which oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we get comments that oppose this action, we will withdraw the immediate final rule and it will not take immediate effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you should do so at this time.

With respect to the zinc fertilizer rule (checklist 200), we think that there may be adverse comments that oppose the Federal authorization of the State for this rule. Thus, we are not including the authorization of the zinc fertilizer rule within the immediate final rule. Rather, we are proposing to authorize Rhode Island for the zinc fertilizer rule in this proposed rule. Any approval of Rhode Island to implement the zinc fertilizer rule will occur only through a later separate final rule, which will be issued only after considering any public comments. Anyone wishing to comment on our proposal to authorize Rhode Island for the zinc fertilizer rule must also do so at this time.

We are proposing to authorize Rhode Island for the zinc fertilizer rule because, through Rules 2.2 C and 2.2 H, Rhode Island has incorporated by reference the Federal zinc fertilizer rule exactly. When a State incorporates by reference Federal requirements exactly, the State is being equivalent to and consistent with the Federal rule. Any commenter opposed to EPA's adoption of the zinc fertilizer rule should have addressed his or her comments to the EPA prior to the Federal adoption of the rule. Any commenter opposed to Rhode Island's adoption of the rule should have addressed his or her comment to Rhode Island before the State adopted the rule. While Rhode Island has the right to be more stringent and not adopt the rule, Rhode Island also has the right not to be more stringent and to adopt the Rule. Commenters wishing a State to be more stringent should make sure to submit their comments to the State, rather than waiting to ask EPA not to authorize the State for the rule.

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows: