[Federal Register Volume 85, Number 101 (Tuesday, May 26, 2020)]
[Rules and Regulations]
[Pages 31374-31378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09273]
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DEPARTMENT OF EDUCATION
34 CFR Part 300
[Docket ID ED-2019-OSERS-0111]
Assistance to States for the Education of Children With
Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final notice of interpretation.
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SUMMARY: The Individuals with Disabilities Education Act (IDEA)
established the National Instructional Materials Access Center (NIMAC)
in 2004 to assist State educational agencies (SEAs) and local
educational agencies (LEAs) with producing accessible instructional
materials for students with print disabilities. The U.S. Department of
Education (Department) issues this final notice of interpretation to
clarify that the definition of ``print instructional materials'' in
IDEA includes digital instructional materials.
DATES: This final interpretation is effective May 26, 2020.
FOR FURTHER INFORMATION CONTACT: Tara Courchaine, U.S. Department of
Education, 400 Maryland Avenue SW, Room 5054E, Potomac Center Plaza,
Washington, DC 20202-5076. Telephone: (202) 245-6462. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The NIMAC was established under IDEA in 2004 to assist SEAs and
LEAs in the production of accessible instructional materials for
students with print disabilities. While discussing proposed changes to
IDEA in the Senate, Senator Dodd, a co-sponsor of the bill, commented
on the reason for establishing NIMAC, stating ``these important
provisions will greatly aid blind and print disabled students by
ensuring they receive their textbooks and other instructional materials
in the formats they require, such as Braille, at the same time as their
sighted peers.'' 108 Cong. Rec. S11, 656 (April 29, 2003). Similarly,
the House report noted that ``the provision is intended to provide
students who are blind or have other print disabilities with more
timely access to instructional materials used in elementary and
secondary schools.'' H.R. Rep. No. 108-77, at 98 (April 29, 2003).
Within the legislation, the scope and duties of the NIMAC as the
searchable online national file repository of K-12 print textbooks in
the extensible markup language (XML)-based National Instructional
Materials Accessibility Standard (NIMAS) format are clearly defined, as
are the key definitions framing its operations.
These duties are:
1. To receive and maintain a catalog of print instructional
materials prepared in the NIMAS, as established by the Secretary, made
available to such center by the textbook publishing industry, SEAs, and
LEAs.
2. To provide access to print instructional materials, including
textbooks, in accessible media, free of charge, to blind or other
persons with print disabilities in elementary schools and secondary
schools, in accordance with such terms and procedures as the NIMAC may
prescribe.
3. To develop, adopt, and publish procedures to protect against
copyright infringement, with respect to the print instructional
materials provided in sections 612(a)(23) and 613(a)(6) of IDEA.
(Section 674(e)(2)(A)-(C) of IDEA; 20 U.S.C. 1474(e)(2)(A)-(C)).
Under section 674(e)(3)(C) of IDEA (20 U.S.C. 1474(e)(3)(C)), the
term ``print instructional materials'' means ``printed textbooks and
related printed core materials that are written and published primarily
for use in elementary school and secondary school instruction and are
required by a State educational agency or local educational agency for
use by students in the classroom.'' During the 15 years since the NIMAS
was created, the use of digital educational materials \1\ as a core
component of elementary and secondary
[[Page 31375]]
curriculum has grown significantly. Currently, the majority of States
have digital learning plans and digital learning standards. In
addition, State leaders have demonstrated a commitment to digital
learning and the use of digital materials and to support personalized
learning that meets the needs of all students.\2\ In fact, in 2014,
Florida developed a five-year plan that requires all schools to move to
digital classrooms.\3\ In a recent United States survey, 75 percent of
classroom teachers expected digital content to replace traditional
print textbooks by 2026.\4\
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\1\ For the purpose of this notice of interpretation, the
Department views ``digital educational materials'' as ``digital
instructional materials.''
\2\ State Educational Technology Directors Association (SETDA).
(2019). State K12 Instructional Materials Leadership Trends
Snapshot. www.setda.org/master/wp-content/uploads/2019/03/DMAPS_snapshot_3.26.19.pdf.
\3\ Florida's Digital Classrooms Program. www.fldoe.org/core/fileparse.php/5658/urlt/0097843-fdoedigitalclassroomsplan.pdf.
\4\ Harpur, P. (2017). Discrimination, copyright, and equality:
Opening the e-book for the print disabled. https://ssrn.com/abstract=2977629.
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IDEA, however, does not specifically address the inclusion or use
of digital instructional materials, which were not as common when the
law was originally enacted. At this time, NIMAC does not accept digital
instructional materials. This exclusion limits access to digital
materials for students who are blind or visually impaired. The
exclusion also forces teachers to retrofit materials or provide
alternate materials that are not equivalent to those available to
students without disabilities. Additionally, these retrofitted
materials may not be provided to students in a timely manner or are of
inconsistent quality. Consequently, students who are blind or visually
impaired are potentially denied equal educational opportunity,
comparable access to materials, and access to information in a timely
manner. This is especially true for students in Pre-K-3, who require
embossed braille to ensure a solid foundation in early literacy, as
well as for older students who use braille (embossed or digital).
Digitally formatted materials accompanied by technology have the
potential to facilitate learning for all students. However, these
materials will benefit students who are blind, visually impaired, or
have other print disabilities only if they are available in accessible
formats.\5\
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\5\ Harpur, P. (2017). Discrimination, copyright, and equality:
Opening the e-book for the print disabled. https://ssrn.com/abstract=2977629.
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On October 21, 2019, the Department published a notice in the
Federal Register (84 FR 56154) proposing to interpret ``print
instructional materials'' in section 674(e)(3)(C) of IDEA (20 U.S.C.
1474(e)(3)(C)) to include digital instructional materials. There are no
significant differences between the proposed interpretation and this
final interpretation.
Other than statutory and regulatory requirements included in the
document, the contents of this final notice of interpretation do not
have the force and effect of law and are not meant to bind the public
in any way. This document is intended only to provide clarity to the
public regarding existing requirements under the law or agency
policies.
Public Comment: In response to our invitation in the notice of
proposed interpretation, 48 parties submitted comments.
Analysis of Comments and Changes: An analysis of the comments and
any changes in the interpretation since publication of the proposed
interpretation follows. We do not address comments that raised concerns
not directly related to the proposed interpretation.
Comments: Most of the comments received were in favor of the
proposed interpretation. A large majority of the commenters were in
full support of the proposed interpretation with no questions or
concerns.
Discussion: The Department appreciates the positive feedback and
responses regarding this interpretation.
Changes: None.
Comments: Commenters generally agreed that the proposed
interpretation meets the original congressional intent, responds to the
increase in digital materials used for instruction, and is in line with
the current educational paradigm. A few commenters provided data to
support this comment. One commenter noted that the absence of digital
materials from the definition of ``print materials'' was unintentional.
Discussion: The Department agrees that the interpretation is in
line with congressional intent and is responsive to current educational
needs of students with disabilities.
Changes: None.
Comments: The majority of commenters agreed that our proposed
interpretation is a timely decision and will ensure timely access to
high-quality digital instructional materials. They noted that given the
high cost of new technologies, the proposed interpretation will be an
efficient and low-cost solution to create accessible materials that
allow students with disabilities to participate and use the same
educational materials available to their non-disabled peers. They said
that the proposed interpretation will also help to increase equity and
elevate learning for all students.
Discussion: The Department agrees that this final interpretation
helps to ensure access to high-quality digital instructional materials.
The Department believes that students who are blind or visually
impaired and other students with print disabilities must have equal
educational opportunities, comparable access to materials, and access
to information in a timely manner.
Changes: None.
Comments: Several commenters noted that ``digital'' does not mean
``accessible'' and that digital materials may not work with specialized
screen readers such as the DAISY audio player, electronic publication
file (EPUB) readers, or refreshable braille displays. According to
these commenters, allowing digital materials in the NIMAC would
streamline the process of making materials accessible, provide greater
access, help to improve the procurement and delivery of accessible
instructional materials, and help SEAs and LEAs meet their obligations
with respect to a free appropriate public education. They noted that
students should be able to access educational materials in the format
they require. In addition, a few commenters stated that every child
learns differently and that allowing the NIMAC to accept digital
educational materials will remove barriers. Also, one State noted that
this change matched their current administrative code, which requires a
publisher to provide NIMAS file sets to the NIMAC if an electronic
textbook is not fully accessible on current computer platforms, or is
not available as a print instructional material.
Discussion: The Department appreciates the positive feedback and
agrees that ``digital'' does not necessarily mean ``accessible.''
Students must receive high-quality digital materials in the format they
require.
Changes: None.
Comments: One commenter posed five questions about the proposed
interpretation: (1) Whether it applies to materials that are
exclusively digital; (2) whether it applies to print materials that
already comply with the NIMAS format; (3) whether the intent is for
every digital element to be converted to the NIMAS format; (4) whether,
if the technology of a file already meets Web Content Accessibility
Guidelines (WCAG) 2.0 AA, it still needs to go to the NIMAC; and (5)
whether students with other types of disabilities \6\ will be able to
access the files.
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\6\ The NIMAC currently serves students who meet the current
National Library Service definition of students who are blind,
visually impaired, or have print disabilities. It should be noted
that this definition was updated on December 20, 2019. The
definition now aligns with section 121 of the Copyright Act of 1976,
as amended by the Marrakesh Treaty Implementation Act (MTIA), Public
Law 115-261.
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[[Page 31376]]
Discussion: We appreciate the opportunity to clarify our
interpretation in response to the commenter's questions.
First, digital materials submitted to the NIMAC must be submitted
in a valid XML-based NIMAS format. Our interpretation does not impact
print materials that have already complied with the NIMAS format. We do
not intend for every digital element to be converted to the NIMAS
format. Rather, the file must be able to be converted to a valid XML-
based NIMAS format. If the digital technology meets WCAG 2.0 AA
accessibility specifications, it will not need to be submitted to the
NIMAC. Finally, for children to access NIMAS files, they will have to
meet the eligibility requirements specified in IDEA. Specifically, they
must be a child who is blind, visually impaired, or has a print
disability.
Changes: None.
Comments: One commenter was concerned that the change would remove
the current requirements for print instructional materials.
Discussion: The current requirements regarding print instructional
materials are not changing and will remain in place. The interpretation
means the NIMAC may continue to accept digital textbooks and related
core materials that can conform to the NIMAS XML format.
Changes: None.
Comments: A few commenters emphasized the need to continue to
promote the market models that encourage publishers to create
accessible K-12 instructional materials. However, one commenter noted
that publishers currently do not use the principles of Universal Design
for Learning (UDL) or consider the unique needs of students with print
disabilities in the development of their products.
Discussion: The Department fully supports the development of born-
accessible digital materials. The Department encourages publishers to
meet section 508 accessibility requirements that align to the WCAG 2.0
AA standards. If publishers are creating EPUBs, the Department agrees
that they should conform to EPUB Accessibility 1.0 requirements. In
addition, the Department encourages publishers to produce born-
accessible materials that incorporate the principles of UDL. As the
commenters noted, if digital materials are not created using these
guidelines, some students will not have access to the high-quality
materials necessary for learning.
Changes: None.
Comments: One commenter agreed that adding digital learning
materials to the NIMAC would enhance learning experiences for both
students and teachers and suggested that to ensure the best outcome,
the Office of Special Education Programs (OSEP) should conduct a survey
to determine the need for accessible digital instructional materials
and ensure effective implementation, for which a second commenter was
willing to assist with quantitative data collection. A third commenter
wrote that the National Center on Accessible Educational Materials (AEM
Center) is prepared to provide technical assistance and to develop
models for the markup of digital materials in the NIMAS XML format.
Discussion: The Department appreciates the commenters' support.
OSEP and the NIMAC will work with the AEM Center to develop and provide
technical assistance on the final interpretation, and OSEP appreciates
the AEM Center's offer to help with data. OSEP will consider gathering
more information to determine the needs of the target population for
technical assistance.
Changes: None.
Comments: A few commenters were concerned that this interpretation
would be applied too broadly to digital instructional materials and
that the materials would not meet the technical specifications of the
NIMAS format. In addition, they expressed concern that the
interpretation may be misconstrued as extending beyond simple textbooks
and related core materials. These commenters also noted that the NIMAS
is a source file and the NIMAC should not be accepting files that are
intended to be distributed directly to the students. Finally, one
commenter suggested that we more clearly specify in the interpretation
that the materials must meet the requirements of the NIMAS
specification.
Discussion: Although we do not think changes to our interpretation
are necessary, we appreciate the opportunity to clarify this important
point. Only digital instructional materials that can meet the
requirements of the NIMAS specification are appropriate for the NIMAC.
NIMAS files are not in a format that can be distributed directly to
students. These include digital materials that fit a traditional book
format with static print and images. This means that the NIMAC would
accept valid NIMAS file sets derived from conforming digital
instructional materials that were never produced in a traditional print
format. This interpretation refers to the subset of digital
instructional materials that are composed primarily of static images
and text that can meet the requirements of the NIMAS specification.
``Conforming'' in this context means digital instructional materials
that can be accurately rendered in NIMAS 1.1, including an XML content
file using the Baseline Element Set. The Baseline Element Set contains
an XML content file, a package file, a portable document format (PDF)
copy of the title page (or whichever page(s) contain(s) the
International Standard Book Number (ISBN) and copyright information),
and a full set of the content's images. See http://aem.cast.org/creating/nimas-technical-specification-annotated.html. OSEP will work
with AEM-related technical assistance centers to fully support the
implementation of the interpretation.
Changes: None.
Comments: A few commenters noted that in applying the proposed
interpretation to digital instructional materials, if a State chooses
to coordinate with the NIMAC, it would not need to send materials
already produced or rendered in accessible formats. In addition, one of
these commenters noted that the NIMAC should only receive materials
that are in a ``source file format.''
Discussion: The Department agrees. If digital instructional
material is already in an accessible format, it would not need to be
sent to the NIMAC. Digital instructional materials are accessible if
they meet the standards set forth in section 508 of the Rehabilitation
Act of 1973, as amended (Rehabilitation Act). In addition, the NIMAC
can only accept materials in a valid NIMAS XML format, which is a
source file format.
Changes: None.
Comments: A few commenters wanted to emphasize the continued need
for braille instruction in elementary and secondary schools. They
commented on the importance of embossed braille and noted that digital
materials continue to remain inaccessible for the population of
students that require it. They also noted the importance of embossed
braille for teaching early literacy skills. One commenter wrote that
allowing the NIMAC to accept digital materials would be a significant
step forward in addressing accessibility needs and would allow eligible
students to receive these materials in a timely manner.
Discussion: The Department agrees that braille instruction and
embossed braille remain critical for teaching early
[[Page 31377]]
literacy skills and instruction in K-12 settings for students who are
blind and visually impaired. The Department believes that allowing the
NIMAC to accept digital files that meet the NIMAS standard will provide
a way for students to receive these materials in a timely manner in the
format they require.
Changes: None.
Comments: One commenter noted that the Department's interpretation
is consistent with the MTIA, which amended section 121 of the Copyright
Act of 1976, as amended (Copyright Act), to comply with the terms of
the Marrakesh Treaty. The commenter wrote that similar to the
Department's interpretation to include digital instructional materials
under the definition of ``print instructional materials,'' MTIA and the
accompanying Senate report use the terms ``print'' and ``text''
interchangeably. A second commenter noted that the NIMAC Limitation of
Use Agreement should be updated to reflect the changes to the Copyright
Act enacted in MTIA.
Discussion: The Department appreciates the feedback and agrees that
the interpretation is in line with both congressional intent and the
updated definition in the Copyright Act. On December 20, 2019, the
President signed legislation to align the National Library Service's
definition of ``blind and other persons with disabilities'' with
section 131 of the Copyright Act.\7\ The NIMAC Limitation of Use
Agreement will be updated to reflect the changes to the Copyright Act
enacted in MTIA once the regulations are published by the National
Library Service at the Library of Congress.
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\7\ The IDEA uses the term ``blind or other persons with print
disabilities'' in 20 U.S.C. 1412(a)(23)(E)(i) and 34 CFR
300.172(e)(1)(i). However, that term has been removed from the
Copyright Act and replaced with the term ``eligible person.''
``Eligible person'' means an individual who, regardless of any other
disability--(A) is blind; (B) has a visual impairment or perceptual
or reading disability that cannot be improved to give visual
function substantially equivalent to that of a person who has no
such impairment or disability and so is unable to read printed works
to substantially the same degree as a person without an impairment
or disability; or (C) is otherwise unable, through physical
disability, to hold or manipulate a book or to focus or move the
eyes to the extent that would be normally acceptable for reading.''
(17 U.S.C. 121(d)(3).)
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Changes: None.
Comments: One commenter wrote that the Association of American
Publishers has supported the NIMAC and validated its mission since its
inception and noted that this interpretation seems timely and sensible.
However, the commenter was concerned that, with this change, current
guidance will be out of date. The commenter suggested delaying the
effective date of the notice of interpretation until guidance is
updated.
Discussion: The Department agrees that the interpretation will
supersede the current practice that is reflected in the ``Publishers
and Conversion Houses FAQ'' on the NIMAC website. It is the
Department's intent to update the FAQ, and we do not believe that it is
necessary to delay the effective date of the notice.
Changes: None.
Comments: One commenter asked how the proposed interpretation
applies when the purpose of converting digital instructional materials
is the ability to create embossed braille. The commenter noted that
interactive or adaptive programs do not easily translate to a static
braille format.
Discussion: The Department has considered this issue. We agree that
interactive and adaptive programs do not translate to a static braille
format. Digital instructional materials intended for the NIMAC would be
those materials that follow a traditional textbook format, consisting
of static text and images. Section 504 of the Rehabilitation Act and
the Americans with Disabilities Act (ADA), as amended, would require
that interactive and adaptive digital materials be made accessible
where needed to provide an equal educational opportunity to students
with disabilities, as discussed further in the response to the next
comment.
Changes: None.
Comments: One commenter asked how digital materials that are not
part of the scope of the NIMAC will fit into the IDEA scheme for
delivery to students with print disabilities in a timely manner.
Discussion: The current scope of the NIMAC is limited, but IDEA
still requires the provision of free educational materials, including
textbooks and instructional materials, in accessible formats to
eligible children and students. SEAs and LEAs must provide materials in
accessible formats in a timely manner (IDEA Part B, section
612(a)(23)(A) and section 613(a)(6)(B)) (20 U.S.C. 1412(a)(23)(A),
1413(a)(6)(B)).
Further, section 504 of the Rehabilitation Act and the Department's
implementing regulations prohibit discrimination against individuals
with disabilities by recipients of Federal financial assistance from
the Department, and, among other things, require the provision of a
free appropriate public education to elementary and secondary students
with disabilities. (34 CFR 104.4, 104.33). The ADA also prohibits
discrimination against individuals with disabilities, and the
regulations implementing Title II of the ADA include a specific
requirement that public entities ensure that communication with
students with disabilities is as effective as communication with
students without disabilities, through the provision, in a timely
manner, of auxiliary aids and services. (28 CFR 35.130(a), 35.160).
These laws require SEAs and LEAs to provide educational materials in
accessible formats where needed to provide these students with an equal
educational opportunity.
Changes: None.
Comments: One commenter noted that it would be useful to understand
how the proposed interpretation fits into the broader world of
accessibility efforts and what it means for the future of the NIMAS and
NIMAC.
Discussion: The Department fully supports the ongoing work of the
Web Accessibility Initiative of the World Wide Web consortium on the
WCAG 2.0 AA and the EPUB3 accessibility specifications along with the
updated section 508 standards in the Rehabilitation Act. However, even
if materials are born-accessible, some students will still have needs
that cannot be met by commercially available instructional materials,
even if they meet WCAG 2.0 AA accessibility and section 508 standards.
This is particularly true for students who access instruction through
embossed braille and tactile graphics. When this is the case, NIMAS
files provided to the NIMAC ensure that students will receive high-
quality instructional materials in a timely manner.
Changes: None.
Final Interpretation
Given the purpose of NIMAC, the trend toward digital instructional
materials and resources, and the silence of the statute on the
acceptance of digital files, the Department interprets the phrase
``printed textbooks and related printed core materials'' referred to in
the definition of ``print instructional materials'' in section
674(e)(3)(C) of IDEA (20 U.S.C. 1474(e)(3)(C)) to include digital
instructional materials that comply with NIMAS, because that is the
primary medium through which many textbooks and core materials are now
produced. The Department considers digital materials submitted to NIMAC
to be in digital print format, which falls under the larger category of
``print'' and is consistent with the statutory language of section
674(e)(3)(C) of IDEA (20 U.S.C. 1474(e)(3)(C)). The Department believes
this interpretation to be aligned with the
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purpose of the statute, which is to provide timely instructional
materials to students who are blind or have other print disabilities.
Therefore, under this interpretation, NIMAC would be able to accept
digital instructional materials submitted in a valid XML-based NIMAS
format.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or PDF. To use PDF you must have Adobe
Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Mark Schultz,
Commissioner, Rehabilitation Services Administration. Delegated the
authority to perform the functions and duties of the Assistant
Secretary for the Office of Special Education and Rehabilitative
Services.
[FR Doc. 2020-09273 Filed 5-22-20; 8:45 am]
BILLING CODE 4000-01-P