[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43446-43452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18336]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 111]
RIN 1190-AA62
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Accessibility of Next Generation 9-1-1
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is considering revising
the regulation implementing title II of the Americans with Disabilities
Act (ADA) to address in what manner public entities that operate 9-1-1
call-taking centers (also known as Public Safety Answering Points
(PSAPs)) should be required to make changes in telecommunication
technology to reflect developments that have occurred since the
publication of the Department's 1991 regulation. Under its existing
title II regulation, the Department requires that PSAPs provide direct,
equal access to telephone emergency centers for individuals with
disabilities who use analog text telephones (TTYs).\1\ Many individuals
with disabilities now use the Internet and wireless text devices as
their primary modes of telecommunications. At the same time, PSAPs are
considering and planning to shift from analog telecommunications
technology to new Internet-Protocol (IP)-enabled Next Generation 9-1-1
services (NG 9-1-1) that will provide voice and data (such as text,
pictures, and video) capabilities. This ANPRM seeks information on
possible revisions to the Department's regulation to ensure
[[Page 43447]]
direct access to NG 9-1-1 services for individuals with disabilities.
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\1\ TTYs are also known as ``telecommunications devices for the
deaf'' (TDDs).
DATES: The Department invites written comments from members of the
public. Written comments must be postmarked and electronic comments
must be submitted on or before January 24, 2011.
Commenters should be aware that the electronic Federal Docket
Management System would not accept comments after Midnight Eastern Time
on the last day of the comment period.
ADDRESSES: You may submit comments, identified by RIN 1190-AA62 (or
Docket ID No. 111), by any one of the following methods:
Federal eRulemaking Web site: http://www.regulations.gov.
Follow the Web site instructions for submitting comments. The
Regulations.gov Docket ID is DOJ-CRT-0111.
Regular U.S. mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
Overnight, courier or hand delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 1425 New
York Avenue, NW., Suite 4039, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Robert Mather, Attorney, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
You may obtain copies of this ANPRM in large print or Braille or on
audiotape or computer disk by calling the ADA Information Line at (800)
514-0301 (voice) and (800) 514-0383 (TTY). This ANRPM is also available
on the ADA Home Page at http://www.ada.gov.
SUPPLEMENTARY INFORMATION:
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 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.
II. Public Hearing
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/.
III. Background
A. Statutory and Rulemaking History
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
[[Page 43448]]
(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.
B. Legal Foundation for Access to NG 9-1-1
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\
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\2\ Many persons who became deaf or hard of hearing later in
life prefer to speak instead of type. They use what is called voice
carryover (VCO). With VCO, the caller speaks directly into the
phone, and the call taker types back via TTY to the caller. VCO can
be accomplished with standard stand-alone TTY equipment simply by
having the call taker alternate between listening on the handset
when the caller is speaking and placing the handset in the TTY
couplers to type a response. People with speech impairments who are
not deaf or hard of hearing often prefer HCO. HCO allows them to
type their words on a TTY to call takers and hear call takers'
spoken responses through their handset. HCO can be accomplished by a
call taker using standard stand-alone TTY equipment by alternating
speaking into the handset and placing the handset in the TTY when
the caller types a response. For more information about the title II
requirements for PSAPs, you may consult the Department's ADA
technical assistance manual, http://www.usdoj.gov/crt/ada/911ta.pdf
(last visited July 12, 2010).
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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?
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\3\ ``Convergence'' is the integration of traditional
telecommunications and newer information technology services.
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C. Major Migration in Communications Devices and 9-1-1 Services
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\
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\4\ See generally Telecommunications Relay Services and Speech-
to-Speech Services for Individuals with Hearing and Speech
Disabilities; E911 Requirements for IP-Enabled Service Providers, CG
Docket No. 03-1123, WC Docket No. 05-196, Report and Order and
Further Notice of Proposed Rulemaking, 23 FCC Rcd 11591 (June 24,
2008) (adopting new emergency call handling requirements).
\5\ Captioned telephone relay calls are set up somewhat
differently, with the caller placing the call directly to the party
being called (the PSAP) at the same time that the call is connected
to the CA. The CA does not need to place the call separately to the
PSAP.
\6\ See generally 47 CFR 64.601 et seq. (the TRS regulations).
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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
[[Page 43449]]
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
D. Other Federal Efforts
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.
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\7\ http://www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 5, 2010).
\8\ See 42 U.S.C. 12134(a).
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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.
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\9\ The term ``broadband'' refers to advanced communications
systems capable of providing high-speed transmission of services
such as data, voice, and video over the Internet and other networks.
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IV. Request for Public Comments
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.
A. Direct, Equal Access to NG 9-1-1
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?
i. Text Communications
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.
[[Page 43450]]
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\
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\10\ In addition, the United States Access Board recently
proposed draft guidelines for real-time text functionality for
adoption by Federal agencies. Draft Information and Communication
technology (ICT) Standards and Guidelines http://www.access-board.gov/sec508/refresh/draft-rule.htm at Section 902 (last visited
July 12, 2010).
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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?
ii. Video Communications
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
[[Page 43451]]
respond to the needs of people with disabilities in an NG 9-1-1
environment?
B. Performance Standards as Opposed to Technical Standards
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\
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\11\ http://www.fcc.gov/cgb/dro/sts.html (last visited July 8,
2010).
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Question 13. Should the title II regulation be amended to require
that PSAPs directly receive calls from individuals with speech
disabilities?
C. Emergency Alerts
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?
D. State and Local Plans To Ensure Access to NG 9-1-1 for 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?
E. Effective Date
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.
[[Page 43452]]
F. Defenses
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.
G. Cost and Benefits of NG 9-1-1 Regulations
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.
H. Other Issues
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.
Dated: July 21, 2010.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2010-18336 Filed 7-22-10; 4:15 pm]
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