"Analysis of Comments and Change" to NIMAS in IDEA 2004

Access to instructional materials (§300.172)

Comment: 

One commenter recommended including the National Instructional Materials Accessibility Standard (NIMAS) in these regulations.

Discussion: 

We agree with the commenter.  The final NIMAS was published in the Federal Register on July 19, 2006 (71 FR 41084) and will be included as Appendix C to Part 300--National Instructional Materials Accessibility Standard of these regulations.  We will add language in §300.172(a) to refer to this location and to reference the publication date of the NIMAS in the Federal Register.

Changes: 

The final NIMAS has been added as appendix C to part 300.  We have added language in §300.172(a) to refer to the location of the NIMAS in these regulations and the publication date of the NIMAS in the Federal Register.

Comment: 

Several commenters expressed concern that the language requiring States to adopt the NIMAS "in a timely manner" is ambiguous and could lead to delays in providing instructional materials to children with disabilities, inconsistencies across States, and increased litigation.  Several commenters requested that the regulations specify a timeline for States to adopt the NIMAS.  Some commenters recommended requiring all States to adopt the NIMAS by December 3, 2006.  However, one commenter stated that States should not be given a deadline to adopt the NIMAS. 
A number of commenters requested that the regulations define the meaning of "adopt" in §300.172(a) and specify what States must do to adopt the NIMAS.  Several commenters recommended defining "adopt" to mean that the State, through regulatory or legislative procedures, designates NIMAS as the only required source format for publishers to convert print instructional materials into specialized formats for children with disabilities.  One commenter urged the Department to define "adopt" to mean that a State must accept a NIMAS file as satisfying the publisher’s legal obligation to provide accessible instructional materials.  Other commenters recommended that the regulations clearly state that adoption of the NIMAS means that SEAs and LEAs must accept and use electronic copies of instructional materials in the NIMAS format that are provided by the publishers.

Discussion: 

Section 300.172(a), consistent with section 612(a)(23)(A) of the Act, requires States to adopt the NIMAS in a timely manner after the publication of the NIMAS in the Federal Register for the purpose of providing instructional materials to blind or other persons with print disabilities.  As noted in the discussion to the previous comment, the NIMAS is included as Appendix C to Part 300--National Instructional Materials Accessibility Standard and was published in the Federal Register on July 19, 2006 (71 FR 41084).  The Department believes that States should make every effort to adopt the NIMAS in a timely manner following the publication of the NIMAS in the Federal Register, recognizing that the timelines and requirements for adopting new rules, policies, or procedures vary from State to State.  States choosing to coordinate with the NIMAC must, consistent with section 612(a)(23)(C) of the Act and §300.172(c) of these regulations, not later than December 3, 2006, as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, enter into a written contract with the publisher of the print instructional materials to:  (1) require the publisher to prepare and, on or before delivery of the print instructional materials, provide the NIMAC with electronic files containing the content of the print instructional materials using the NIMAS; or (2) purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.  Clearly, we would expect that these States would have adopted the NIMAS by December 3, 2006.  We decline to require a specific adoption date for all States, however, given the lack of specificity in the Act.  We also decline to include a definition of "adopt" in these regulations because requirements for adopting new rules and policies may vary from State to State.  The Department’s view is that it is inherent in the adoption requirement that, at a minimum, upon "adoption" of the NIMAS, a State must accept and use electronic copies of instructional materials in the NIMAS format for the purpose of providing instructional materials to blind or other persons with print disabilities.  Under §300.172(a), adopting the NIMAS is a State responsibility and does not impose any legal obligations on publishers of instructional materials. 

Changes: 

We have made technical changes in §300.172(c).  For clarity, we have replaced the phrase "not later than" with "as of."  We have removed the phrase "two years after the date of enactment of the Individuals with Disabilities Education Improvement Act of 2004" because it is unnecessary.

Comment: 

  One commenter recommended requiring States to comply with the requirements for public hearings and public comment in section 612(a)(19) of the Act before adopting policies and procedures to implement the requirements in §300.172 related to access to instructional materials.  The commenter stated that all interested members of the public, including parents of children with disabilities, are entitled to participate in designing the plan for implementing these policies and procedures.

Discussion: 

Section 300.165(a), consistent with section 612(a)(19) of the Act, requires States to hold public hearings and receive public comment before implementing any policies and procedures needed to comply with Part B of the Act.  These public hearing and public comment requirements apply to the policies and procedures needed to implement the requirements in §300.172.

Changes: 

None.

Comment: 

  One commenter requested clarification on whether the NIMAS is limited to print materials on the medium of paper or also includes the iconic representation of letters and words.

Discussion: 

The NIMAS is the standard established by the Secretary to be used in the preparation of electronic files of print instructional materials so they can be more easily converted to accessible formats, such as Braille.  In addition to print materials, the NIMAS provides standards for textbooks and related core materials where icons replace text.  Materials with icons will be available if they are in 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 an SEA or LEA for use by children in the classroom, consistent with section 674(e)(3)(C) of the Act. 

Changes: 

None.

Comment: 

  A few commenters recommended clarifying that providing materials in accessible formats includes changes in the depth, breadth, and complexity of materials.  Some commenters stated that §300.172 should include language regarding universal design of instructional materials. 

Discussion: 

Section 300.172 is consistent with section 612(a)(23) of the Act and focuses specifically on providing access to print instructional materials using the NIMAS.  The NIMAS is designed to improve the quality and consistency of print instructional materials converted into accessible formats for persons who are blind and persons with print disabilities, not to alter the content (e.g., the depth, breadth, or complexity) of the print instructional materials.  While the NIMAS is designed to make print instructional materials more readily and easily accessible to persons who are blind and persons with print disabilities, it is not intended to provide materials that are universally designed.  Therefore, while the Department acknowledges the importance of universal design, it would be inappropriate to reference universal design in this section. 
The NIMAS Development Center has been charged with examining the need for future changes in the NIMAS.  This Center, funded by the Department, is looking at a variety of issues, including the extent to which universal design features should be incorporated into future iterations of the NIMAS.  Information about the NIMAS Development Center can be found at:  http://nimas.cast.org/.

Changes:

None.

Comment: 

One commenter recommended that books on tape be made available in the same manner as print materials.

Discussion:

The conversion of text to speech for digital talking books is one of the accessible formats that can be generated from a NIMAS file.  The NIMAS makes it possible for such talking books to be generated more efficiently so that children who need them will receive them more quickly than in the past.  Such audio formats will be made available for 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 an SEA or LEA for use by children in the classroom, consistent with section 674(e)(3)(C) of the Act.  The NIMAS does not pertain to books on tape that are produced in sound studios.

Changes: 

None.

Comment: 

  Many commenters requested that the regulations specify that providing instructional materials to children with disabilities in a timely manner means providing these materials at the same time they are provided to children without disabilities.  One commenter recommended defining "in a timely manner" as the start of the school year or, for children who transfer schools after the start of the school year, within 30 days of the start of the school year, regardless of whether a State chooses to coordinate with the NIMAC. 

Discussion: 

The Department agrees that States should make every effort to provide children with disabilities accessible instructional materials at the same time as other children receive their instructional materials.  The Department’s position is consistent with S. Rpt. No. 108-185, p. 19, which states, "The committee feels strongly that instructional materials should be provided to blind and print disabled students at the same time their fellow students without print disabilities are receiving the same materials."  This position also is consistent with H. Rpt. No. 108-77, pp. 97-98. 
However, the Department recognizes that this may not be possible in all circumstances, for example, when a child with a disability transfers to a new school in the middle of a school year.  Additionally, there could be circumstances beyond the control of the public agency that could prevent children with disabilities who need instructional materials in accessible formats from receiving them at the same time as instructional materials are provided to other children, such as if the public agency’s contractor is unable to produce the instructional materials in an accessible format because of some unforeseen circumstance.  In situations such as these, it is understandable that the accessible format materials may not be immediately available.  Therefore, we will add a provision to the regulations to specify that in order to meet their obligation to provide accessible format instructional materials in a timely way, public agencies must take all reasonable steps to make those instructional materials available at the same time as instructional materials are provided to other children.  Reasonable steps, for example, would include requiring publishers or other contractors to provide instructional materials in accessible formats by the beginning of the school year for children whom the public agency has reason to believe will be attending its schools.  Reasonable steps also might include having a means of acquiring instructional materials in accessible formats as quickly as possible for children who might transfer into the public agency in the middle of the year.  Reasonable steps would not include withholding instructional materials from other children until instructional materials in accessible formats are available.  To clarify that the obligation to make instructional materials available in a timely manner applies even to States that coordinate with the NIMAC, we are adding a new provision to that effect.  We also are clarifying that the definitions in §300.172(e) apply to each State and LEA, whether or not the State or LEA chooses to coordinate with the NIMAC.

Changes: 

We have amended paragraph (b) in §300.172 by adding a new paragraph (b)(4) requiring the SEA to ensure that all public agencies take all reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials.  We have reorganized paragraph (c) and added a new paragraph (c)(2) requiring States that coordinate with the NIMAC to provide accessible materials in a timely manner.  We have also amended paragraph (e) by adding a new paragraph (e)(2) to clarify that the definitions in §300.172(e)(1) apply to each SEA and LEA whether or not the SEA or LEA chooses to coordinate with the NIMAC.  We have made technical changes to §300.172(e) and renumbered §300.172(e) to be consistent with this change. 

Comment: 

  Many commenters expressed concern that the regulations fail to ensure timely access to instructional materials for children with other types of disabilities besides print disabilities.  One commenter recommended clarifying that children do not have to be blind or have print disabilities to fit into the description of children who need accessible materials.  However, another commenter stated that §300.172(b)(3), which require SEAs to be responsible for providing accessible materials for children for whom assistance is not available from the NIMAC, should be removed because the Act does not include these requirements. 
A few commenters requested adding a regulation to clarify that the requirements in §300.172 do not apply if an SEA is not responsible for purchasing textbooks.  The commenters stated that if an SEA cannot purchase textbooks, it has no legal relationship with textbook publishers and cannot comply with the requirements in §300.172.

Discussion: 

Timely access to appropriate and accessible instructional materials is an inherent component of a public agency’s obligation under the Act to ensure that FAPE is available for children with disabilities and that children with disabilities participate in the general curriculum as specified in their IEPs.  Section 300.172(b)(3) provides that nothing relieves an SEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but who do not fall within the category of children who are eligible to receive materials produced from NIMAS files obtained through the NIMAC, receive those instructional materials in a timely manner.  Therefore, we do not believe that any further clarification is necessary.  Even SEAs that are not directly responsible for purchasing textbooks have this responsibility.  In short, we believe these regulations are necessary to fully implement the Act.

Changes: 

None.

Comment: 

  One commenter stated that all children with disabilities should receive assistance from the NIMAC.

Discussion: 

We disagree with the commenter.  Section 674(e) of the Act limits the authority of the NIMAC to provide assistance to SEAs and LEAs in acquiring instructional materials for children who are blind, have visual disabilities, or are unable to read or use standard print materials because of physical limitations, and children who have reading disabilities that result from organic dysfunction, as provided for in 36 CFR 701.6.  Clearly, SEAs and LEAs that choose to use the services of the NIMAC will be able to assist blind persons or other persons with print disabilities who need accessible instructional materials through this mechanism.  However, SEAs and LEAs still have an obligation to provide accessible instructional materials in a timely manner to other children with disabilities who also may need accessible materials even though their SEA or LEA may not receive assistance from the NIMAC, as provided in §§300.172(b)(3) and 300.210(b). 

Changes: 

None.

Rights and responsibilities of SEAs (§300.172(b))

Comment: 

  Many commenters expressed concern about allowing States to choose not to coordinate with the NIMAC.  A few commenters stated that coordination with the NIMAC should be mandatory for all States.  One commenter recommended that the Department strongly encourage States to coordinate with the NIMAC, because it may be difficult for States to provide the assurances required in §300.172(b)(2) if they choose not to coordinate with the NIMAC.  A few commenters recommended that States that cannot demonstrate a past history of providing instructional materials to children with disabilities in a timely manner should be required to coordinate with the NIMAC. 

Discussion: 

It would be inconsistent with section 612(a)(23)(B) of the Act to make coordination with the NIMAC mandatory for all States or to require certain States to coordinate with the NIMAC (e.g., States that do not have a history of providing instructional materials to children with disabilities in a timely manner), as suggested by the commenters.  Section 612(a)(23)(B) of the Act provides that nothing in the Act shall be construed to require any SEA to coordinate with the NIMAC. 

Changes: 

None.

Comment: 

  Several commenters requested that the regulations clearly define the process for a State to choose not to coordinate with the NIMAC.  A few commenters requested additional details on what assurances States must provide if they choose not to coordinate with the NIMAC.  Other commenters requested that State assurances provide the public with information to evaluate the capacity of the State to provide materials to children who are blind or have print disabilities.  Some commenters stated that the assurances provided by States that choose not to coordinate with the NIMAC should be done annually and in writing. 
Several commenters requested that the regulations provide a means for the public to obtain information about which States choose not to coordinate with the NIMAC.  A few commenters requested that the Department publish the assurances made by SEAs that choose not to coordinate with the NIMAC.  Some commenters stated that SEAs that choose to coordinate with the NIMAC should be required to provide information to the Department on the LEAs in the State that elect not to coordinate with the NIMAC.

Discussion: 

Section 300.172(b)(2), consistent with section 612(a)(23)(B) of the Act, requires SEAs that choose not to coordinate with the NIMAC to provide an assurance to the Secretary that the agency will provide instructional materials to blind persons and other persons with print disabilities in a timely manner.  As part of a State’s application for Part B funds, §300.100 and section 612(a) of the Act require States to provide assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets the conditions of eligibility.  (The Part B Annual State Application for 2006, OMB No. 1820-0030, can be found at:  http://www.ed.gov/fund/grant/apply/osep/2006apps.html.)
     Therefore, the Department will compile a list of the States that choose to coordinate with the NIMAC and those that do not, and will make this list available on OSEP’s monitoring Web site at:  http://www.ed.gov/policy/speced/guid/idea/monitor/index.html. 
     Section 612(a)(23)(B) of the Act does not mandate that States coordinate with the NIMAC or place conditions on which States can choose to coordinate with the NIMAC.  Therefore, it is unnecessary to require a State’s assurance to include information on its capacity to provide instructional materials to children who are blind or have print disabilities, as commenters recommended.
We do not believe it is appropriate to regulate to require States to provide information to the Department on the LEAs in the State that elect not to coordinate with the NIMAC.  Under §300.149 and section 612(a)(11) of the Act, States are responsible for ensuring that LEAs in the State meet the requirements of the Act, including providing instructional materials to blind persons or other persons with print disabilities in a timely manner.  As stated in §300.210 and section 613(a)(6)(B) of the Act, if an LEA chooses not to coordinate with the NIMAC, the LEA must provide an assurance to the SEA that the LEA will provide instructional materials to blind persons or other persons with print disabilities in a timely manner. 

Changes: 

None.

Comment: 

  Some commenters proposed that the regulations require States that choose not to coordinate with the NIMAC to annually report to the public on when children with disabilities receive their materials, how print materials are provided in a timely manner, and the steps the State has taken to ensure that materials will be provided at the same time as materials are provided to children without disabilities.  One commenter stated that, if a State chooses not to coordinate with the NIMAC, the State should be required to submit data to the Department on the number of children with print disabilities served by the State and when those children received the accessible version of print instructional materials compared with when other children received their materials.  Other commenters recommended that States choosing not to coordinate with the NIMAC should be required to develop and publish their policies and procedures that govern how they maintain and distribute NIMAS files. 

Discussion: 

It would be unfair to impose additional data collection and reporting requirements, such as those requested by the commenters, only on those States that choose not to coordinate with the NIMAC.  All States, regardless of whether they choose to coordinate with the NIMAC, must ensure that children with disabilities who need instructional materials in accessible formats receive instructional materials in a timely manner, consistent with §300.172(b)(3). 
Furthermore, even States that choose to coordinate with the NIMAC will need to take steps to ensure that the instructional materials for children eligible to receive print instructional materials derived from NIMAS files are received in a timely manner.  As provided in section 674(e)(3)(A) of the Act, the NIMAC is a distribution center for NIMAS files obtained from publishers, SEAs, and LEAs.  Section 612(a)(23) of the Act requires SEAs that choose to coordinate with the NIMAC to enter into written contracts with publishers to require the publishers to provide electronic files using the NIMAS to the NIMAC on, or before, delivery of the print instructional materials to the SEA. 
The NIMAC is not responsible for converting NIMAS files to the accessible formats needed by the children eligible to receive print instructional materials derived from NIMAS files.  All States will need to arrange to have the NIMAS files converted to student-ready versions of instructional materials in the accessible formats needed by these children. 

Changes: 

None.

Comment: 

  One commenter requested that the Department provide information and training to States and LEAs on the NIMAC so that they can make an informed choice regarding whether to coordinate with the NIMAC.  Another commenter recommended that the Department provide written guidance for States and LEAs regarding the NIMAS and the NIMAC.

Discussion: 

The Department recognizes the need to provide information to SEAs and LEAs regarding the NIMAS and the NIMAC and will provide technical assistance through the NIMAS Technical Assistance Center after the Department has approved the NIMAC procedures. 

Changes: 

None.

Preparation and delivery of files (§300.172(c))

Comment: 

  One commenter recommended that the regulations require instructional materials provided to children with disabilities to be complete and accurate.  Another commenter requested requiring publishers to provide copies of the original books to the NIMAC along with the electronic files, because a copy of the original book is necessary for alignment of page numbers and descriptions of pictures. 

Discussion: 

We understand and appreciate the importance of having a copy of the original material to ensure accuracy of the files.  However, the NIMAC is not responsible for ensuring the accuracy of materials, aligning page numbers, or describing pictures.  Rather, the NIMAC is a distribution center for NIMAS files obtained from publishers, SEAs, and LEAs.  Consistent with section 674(e)(3)(A) of the Act, the duties of the NIMAC are to receive and maintain a catalog of print instructional materials prepared in the NIMAS format and made available to the NIMAC by the textbook publishing industry, SEAs, and LEAs.  Accessible, student-ready versions of instructional materials are created from NIMAS source files by national third-party conversion organizations; regional or State conversion sources; desktop applications created by software developers; or curriculum publishers that produce accessible alternate format versions for direct sale to SEAs and LEAs.  The Act does not authorize the Department to impose obligations on such entities to provide accurate materials.  States and LEAs that contract with such entities, however, may wish to require the accuracy of such materials, including the alignment of page numbers and descriptions of pictures, as part of their agreements. 

Changes: 

None.

Comment: 

  One commenter suggested that the regulations permit an SEA to receive assistance from the NIMAC, even if the SEA is not formally coordinating with the NIMAC. 

Discussion: 

The Act does not require the NIMAC to provide assistance to SEAs if the SEA has chosen not to coordinate with the NIMAC.  However, there is nothing in the Act that would prevent the NIMAC from doing so.  As stated in section 674(e)(2)(B) of the Act, the NIMAC must provide access to print instructional materials, including textbooks, in accessible media, free of charge, to blind or other persons with print disabilities in elementary and secondary schools, in accordance with such terms and procedures as the NIMAC may prescribe.  Providing this access could include assisting an SEA, even if the SEA has chosen not to coordinate with the NIMAC.

Changes: 

None.

Comment: 

  One commenter recommended that the regulations include an accountability mechanism so that parents and schools know whether the State or LEA is responsible for the timely delivery of instructional materials. 

Discussion: 

Whether instructional materials are purchased by the State or LEA is a State matter.  The Act does not authorize the Department to impose obligations on States or LEAs with respect to the process for timely delivery of instructional materials.

Changes: 

None.

Comment: 

  One commenter emphasized the need to track the progress and monitor the advancement of accessible materials on a national and regional level.  Another commenter stated that there is a need to establish SEA and LEA baseline data regarding the timeliness, quality, and quantity of alternate formats in schools.  One commenter stated that States should be required to publicize information regarding whether the State is meeting its responsibilities to provide accessible materials to persons who are blind or other persons with print disabilities in a timely manner.

Discussion: 

We believe that it would be overly burdensome to require States to collect and report data on the timeliness, quality, and quantity of alternate formats provided to children with disabilities in order to track the availability of accessible materials for children with disabilities on a regional or national level.  Under the State complaint procedures, States are responsible for resolving complaints alleging violations of requirements under the Act, including this one. 

Changes: 

None.

Comment: 

  One commenter requested information on the scope of the NIMAC’s responsibilities. 

Discussion: 

The duties of the NIMAC are specified in section 674(e)(2) of the Act and include:  (a) receiving and maintaining a catalog of print instructional materials prepared in the NIMAS format; (b) providing access to print instructional materials in accessible media, free of charge to blind or other persons with print disabilities in elementary schools and secondary schools; and (c) developing, adopting, and publishing procedures to protect against copyright infringement, with respect to print instructional materials provided under sections 612(a)(23) and 613(a)(6) of the Act.
     Section 674(c) of the Act provides that NIMAC’s duties apply to print instructional materials published after July 19, 2006, the date on which the final rule establishing the NIMAS is published in the Federal Register (71 FR 41084).  The Department interprets "publish" to have the plain meaning of the word, which is to issue for sale or distribution to the public.  The NIMAC’s duties, therefore, apply to print instructional materials made available to the public for sale after the NIMAS is published in the Federal Register.  However, this does not relieve SEAs and LEAs of their responsibility to provide accessible instructional materials in a timely manner, regardless of when the instructional materials were "published."

Changes

None.

Comment: 

  A few commenters expressed concern that the regulations do not specify the structure and operation of the NIMAC.  One commenter requested that the Department provide more information about the operation of the NIMAC.  Another commenter recommended that the NIMAC’s management board include representatives of authorized entities.  One commenter requested information on the legal protections that the Department will provide to the NIMAC.  Another commenter requested specific information on the process and timing of the funding of the NIMAC.  One commenter recommended a timeline with a series of activities (e.g., establishment of a cooperative agreement, cost projections) to ensure that the NIMAC is operational.  Another commenter recommended that the Department develop a process to ensure that the files included in the NIMAC are NIMAS compliant, complete, and of the highest quality.  One commenter expressed concern about how NIMAS files will be bundled and delivered to the NIMAC. 

Discussion: 

We do not believe that regulations on the structure, operation, or budget of the NIMAC are necessary.  Section 674(e) of the Act establishes the NIMAC through the American Printing House for the Blind (APH) and allows the NIMAC to prescribe terms and procedures to perform its duties under the Act.  The Department’s Office of Special Education Programs (OSEP) will oversee the administration of the NIMAC through a cooperative agreement with the APH and will work with the NIMAC to establish its structure, operating procedures, and budget.  The NIMAC procedures will be available on the NIMAC Web site at:  http://www.nimac.us.

Changes: 

None.

Comment: 

  One commenter stated that the duties of the NIMAC to receive and maintain electronic files of instructional materials provided by publishers should not be misconstrued as imposing a duty on the NIMAC itself to use the NIMAS files to reproduce the instructional materials in accessible formats for children with print disabilities.

Discussion: 

The Act clarifies that the NIMAC is not responsible for producing instructional materials in accessible formats.  As stated in section 674(e)(2) of the Act, the NIMAC receives and maintains a catalog of print instructional materials prepared in the NIMAS, and made available to the NIMAC by the textbook publishing industry, SEAs, and LEAs.

Changes: 

None.

Comment: 

  One commenter expressed concern about clear guidance regarding electronic rights.  Another commenter recommended that the regulations require the NIMAC to develop a user agreement that any entity seeking access to a NIMAS file must sign.  The commenters stated that the agreement should detail the entities that are eligible under Federal copyright law and the Act to access the NIMAS files, the alternate formats that may be produced, and any other restrictions on the dissemination and use of NIMAS files. 
One commenter stated that the regulations should require that the authorized entities have full, complete, and immediate access to deposited files and clarify that the authorized entities are responsible for reproducing the instructional materials in an accessible format and therefore, the files housed by the NIMAC should be free of charge.  Another commenter stated that the Department should ensure that NIMAS books are available to all authorized entities and the appropriate State organizations within five days after the books are deposited in the NIMAC. 

Discussion: 

We do not believe it is appropriate or necessary to regulate on the authorized entities eligible to have access to the NIMAS files.  Under section 674(e)(2)(C) of the Act, the NIMAC is required to develop, adopt, and publish procedures to protect against copyright infringement, with respect to the print instructional materials produced using the NIMAS and provided by SEAs and LEAs to blind persons or other persons with print disabilities.  Such procedures will address, for example, information regarding the authorized entities that are eligible to have access to NIMAS files, responsibilities of such authorized entities, and how and when access will be provided.  The NIMAC procedures will be available on the NIMAC Web site at:  http://www.nimac.us.

Changes: 

None.

Comment: 

  One commenter suggested several changes in the process to make Braille copies of instructional materials including constructing directions for choosing answers in universal terms, such as "write the correct response," rather than "circle" or "underline;" describing, in writing, visuals that cannot be easily interpreted; using hard paper for Braille and raised drawings, rather than thermoform; using hard-bound bindings for text, rather than plastic spiral binders; using audio formats as supplemental materials; and using simple graphics with easy access to map keys on the same page.

Discussion: 

Procedures for Braille transcribers and for conversion entities are the responsibility of SEAs and LEAs and, as such, are beyond the scope of these regulations.

Changes: 

None.

Comment: 

  One commenter recommended that software companies routinely create desktop publishing programs that contain text to speech capabilities.

Discussion: 

It is beyond the Department’s authority to impose requirements on software companies.

Changes:

None.

Comment: 

  One commenter recommended that a NIMAS style guide be developed that is textbook specific.

Discussion: 

The NIMAS Technical Assistance Center will develop a best practices Web page with exemplars and a style guide.  This technical assistance resource will be available at:  http://nimas.cast.org.

Changes: 

None.

Assistive Technology (§300.172(d))

Comment: 

  A few commenters requested that the regulations clarify that the "assistive technology programs," referred to in §300.172(d), are the programs established in each State pursuant to the Assistive Technology Act of 1998, as amended.

Discussion: 

Section 300.172(d) and section 612(a)(23)(D) of the Act provide that in carrying out the requirements in §300.172, the SEA, to the maximum extent possible, must work collaboratively with the State agency responsible for assistive technology programs.  Section 612(a)(23)(D) of the Act does not refer to any particular assistive technology program.  Therefore, we interpret broadly the phrase "State agency responsible for assistive technology programs" to mean the agency determined by the State to be responsible for assistive technology programs, which may include programs established under section 4 of the Assistive Technology Act of 1998, as amended. 

Changes: 

None.

Definitions (§300.172(e))

Comment: 

  Several commenters requested that §300.172(e) include the full definition of terms, rather than the citations to the definitions in the laws.  A number of commenters requested that the regulations include a definition of "persons with print disabilities." 

Discussion: 

We have published the NIMAS as Appendix C to Part 300--National Instructional Materials Accessibility Standard of these regulations, which will include the definition of NIMAS from section 674(e)(3)(B) of the Act. 
The definition of the NIMAC in new §300.172(e)(1)(ii) (proposed §300.172(e)(2)) and section 612(a)(23)(E)(i) of the Act refers to the center established pursuant to section 674(e) of the Act.  Paragraph (e)(1) in section 674 of the Act establishes the center at the APH and paragraph (e)(2) outlines the duties of the NIMAC.  We do not believe it is necessary to include this information in the regulations in order to implement the requirements of the Act, but will include it here for the convenience of the readers.
National Instructional Materials Access Center or NIMAC means the center established pursuant to section 674(e) of the Act.  Section 674(e) of the Act provides, in part, that--
(1)  In general.  The Secretary shall establish and support, through the American Printing House for the Blind, a center to be known as the "National Instructional Materials Access Center" not later than one year after the date of enactment of the Individuals with Disabilities Education Improvement Act of 2004.
(2)  Duties.  The duties of the NIMAC are the following:
(A)  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, State educational agencies, and local educational agencies.
(B)  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.
(C)  To develop, adopt and publish procedures to protect against copyright infringement, with respect to the print instructional materials provided under sections 612(a)(23) and 613(a)(6).
     The definitions of blind persons or other persons with print disabilities and specialized format both refer to statutes other than the Act.  For the reasons set forth earlier in this notice, we are referencing the definitions of terms in §300.172(e), rather than adding them to these regulations.  However, we will include them here for the convenience of the readers. 
     The Library of Congress regulations (36 CFR 701.6(b)(1)) related to the Act to Provide Books for the Adult Blind (approved March 3, 1931, 2 U.S.C. 135a) provide that blind persons or other persons with print disabilities include:
(i)  Blind persons whose visual acuity, as determined by competent authority, is 20/200 or less in the better eye with correcting glasses, or whose widest diameter if visual field subtends an angular distance no greater than 20 degrees.
(ii)  Persons whose visual disability, with correction and regardless of optical measurement, is certified by competent authority as preventing the reading of standard printed material.
(iii)  Persons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations.
(iv)  Persons certified by competent authority as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.
     Competent authority is defined in 36 CFR 701.6(b)(2) as follows:
(i)  In cases of blindness, visual disability, or physical limitations "competent authority" is defined to include doctors of medicine, doctors of osteopathy, ophthalmologists, optometrists, registered nurses, therapists, professional staff of hospitals, institutions, and public or welfare agencies (e.g., social workers, case workers, counselors, rehabilitation teachers, and superintendents).
(ii)  In the case of a reading disability from organic dysfunction, competent authority is defined as doctors of medicine who may consult with colleagues in associated disciplines.
Specialized formats has the meaning given the term in section 121(d)(4) of title 17, United States Code: 
(A)  Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities.
(B)  With respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities.

Changes: 

As noted earlier, we have amended paragraph (e) of §300.172 by adding a new paragraph (e)(2) to clarify that the definitions in §300.172(e)(1) apply to each SEA and LEA whether or not the SEA or LEA chooses to coordinate with the NIMAC.  We have made technical changes to §300.172(e) and renumbered §300.172(e) to be consistent with this change.

Purchase of instructional materials (§300.210)

Comment: 

  One commenter recommended requiring LEAs to hold public hearings that meet the requirements in section 612(a)(19) of the Act before adopting its policies and procedures to purchase instructional materials.  The commenter stated that all interested members of the public, including parents of children with disabilities, are entitled to participate in designing the plan to meet the requirements in §300.210.

Discussion: 

The Act does not require LEAs to hold public hearings before implementing new policies and procedures.  This is a matter for each State to determine, based on its rules governing public hearings and public comment.  Therefore, we do not believe it is appropriate for these regulations to require LEAs to hold public hearings and receive public comment on the LEA’s purchase of instructional materials, as requested by the commenter. 

Changes: 

None.

Comment: 

  One commenter stated that the requirements in §300.210(b)(3) are unnecessary and should be removed because the Act does not require LEAs to provide accessible materials for children with disabilities for whom assistance is not available from the NIMAC. 

Discussion: 

We believe that §300.210(b)(3) is necessary because timely access to appropriate and accessible instructional materials is an inherent component of an LEA’s obligation under the Act to ensure that FAPE is available for all children with disabilities and that children with disabilities participate in the general curriculum as specified in their IEPs.  Because the NIMAC is not required to serve all children with disabilities who need accessible materials, we believe it is important that the regulations make clear that LEAs are still responsible for ensuring that children with disabilities who need instructional materials in accessible formats, but who do not fall within the definition of children who are eligible to receive materials produced from NIMAS files obtained through the NIMAC, receive them in a timely manner.  We, therefore, decline to delete §300.210(b)(3).

Changes: 

None.

Comment: 

  A significant number of commenters expressed concern about allowing LEAs to choose not to coordinate with the NIMAC.  A few commenters stated that coordination with the NIMAC should be mandatory for all LEAs.  Other commenters recommended that LEAs that cannot demonstrate a history of providing instructional materials to children with disabilities in a timely manner should be required to coordinate with the NIMAC. 

Discussion: 

It would be inconsistent with section 613(a)(6)(B) of the Act to make coordination with the NIMAC mandatory for all LEAs or to require certain LEAs to coordinate with the NIMAC (e.g., LEAs that do not have a history of providing instructional materials to children with disabilities in a timely manner).  Section 613(a)(6)(B) of the Act provides that nothing in the Act shall be construed to require any LEA to coordinate with the NIMAC.

Changes: 

None.

Comment: 

  Several commenters requested that the regulations clearly define the process LEAs must go through if they choose not to coordinate with the NIMAC.  A few commenters requested additional details on what assurances LEAs must provide if they choose not to coordinate with the NIMAC.  A few commenters requested that LEA assurances provide the public with information to evaluate the capacity of the LEA to provide materials to children who are blind or have print disabilities.  Some commenters stated that the assurances provided by LEAs that choose not to coordinate with the NIMAC should be done annually and in writing. 
Several commenters requested that the regulations provide a means for the public to obtain information about which LEAs choose not to coordinate with the NIMAC.  A few commenters recommended requiring LEAs to report to the Department whether they choose to coordinate with the NIMAC.  Some commenters requested that the Department publish the assurances made in accordance with §300.210(b) by LEAs that choose not to coordinate with the NIMAC.

Discussion: 

The process by which LEAs choose not to coordinate with the NIMAC and the assurances that LEAs must provide if they choose not to coordinate with the NIMAC are determined by each State.  Section 300.210(b)(2), consistent with section 613(a)(6)(B) of the Act, states that, if an LEA chooses not to coordinate with the NIMAC, the LEA must provide an assurance to the SEA that the LEA will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.  Therefore, it would be unnecessary and burdensome to require LEAs to provide assurances to the Department or to require LEAs to report to the Department whether they choose to coordinate with the NIMAC.  Each State has its own mechanisms and processes for obtaining assurances from its LEAs, and we believe it would be inappropriate for these regulations to define the process by which LEAs inform the SEA that they choose not to coordinate with the NIMAC or to specify the content of the assurances that LEAs must provide to the SEA if they choose not to coordinate with the NIMAC.  Similarly, it is up to each State to determine whether and how the State will provide information to the public about LEAs in the State that choose not to coordinate with the NIMAC.

Changes: 

None.

Comment: 

  Some commenters proposed that the regulations require LEAs that choose not to coordinate with the NIMAC to annually report to the public on when children with disabilities receive their materials, how print materials are provided in a timely manner, and the steps the LEA has taken to ensure that materials are provided at the same time as materials are provided to children without disabilities.  Other commenters recommended requiring LEAs that choose not to coordinate with the NIMAC to develop and publish their policies and procedures that govern how they maintain and distribute NIMAS files.

Discussion: 

We believe that imposing additional data collection and reporting requirements, such as those requested by the commenters, on LEAs that choose not to coordinate with the NIMAC is a matter that is best left to the States.  States are responsible for ensuring that accessible instructional materials are provided in a timely manner to all children with disabilities who need them, and are, therefore, in the best position to know what controls, if any, are needed in their State to ensure that LEAS comply with the requirements in §300.210(b)(3).  All LEAs, regardless of whether they choose to coordinate with the NIMAC, must ensure that children with disabilities who need instructional materials in accessible formats receive them in a timely manner, consistent with §300.210(b)(3). 

Changes: 

None.

Comment: 

  A few commenters requested that the Department provide information to LEAs on the NIMAC and the NIMAS so that LEAs can make an informed choice regarding whether to coordinate with the NIMAC. 

Discussion: 

The Department recognizes the need to provide information to LEAs regarding the NIMAC and the NIMAS.  The Department has already provided numerous informational sessions on the NIMAC and NIMAS and more are planned following the publication of the regulations and approval of the NIMAC procedures.  Information about the NIMAC Technical Assistance Center is available at the following Web site: http://www.aph.org/nimac/index.html.  Information on the NIMAS can be obtained at:  http://nimas.cast.org. 

Changes: 

None.