Nondiscrimination on the Basis of Disability in State and Local Government Services; Accessibility of Next Generation 9-1-1, 43446-43452 [2010-18336]

Agencies

• Department of Justice

[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43446-43452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18336]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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: https://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 https://www.ada.gov.

SUPPLEMENTARY INFORMATION:

I. Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to https://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 https://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 https://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, https://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\
---------------------------------------------------------------------------

    \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, https://www.usdoj.gov/crt/ada/911ta.pdf 
(last visited July 12, 2010).
---------------------------------------------------------------------------

    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?
---------------------------------------------------------------------------

    \3\ ``Convergence'' is the integration of traditional 
telecommunications and newer information technology services.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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. https://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. https://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 https://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 https://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.
---------------------------------------------------------------------------

    \7\ https://www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 5, 2010).
    \8\ See 42 U.S.C. 12134(a).
---------------------------------------------------------------------------

    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, https://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 https://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), https://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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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, https://www.broadband.gov/plan/national-broadband-plan-action-agenda.pdf at 4.10 (last visited July 12, 2010).\10\
---------------------------------------------------------------------------

    \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 https://www.access-board.gov/sec508/refresh/draft-rule.htm at Section 902 (last visited 
July 12, 2010).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \11\ https://www.fcc.gov/cgb/dro/sts.html (last visited July 8, 
2010).
---------------------------------------------------------------------------

    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, https://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]
BILLING CODE 4410-13-P