Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules 43467 

significant impact on the economy, the 

Department will prepare a formal 

regulatory analysis. 

Question 12. What data source do you 

recommend to assist the Department in 

estimating the number of public 

accommodations (i.e., entities whose 

operations affect commerce and that fall 

within at least one of the 12 categories 

of public accommodations listed above) 

and State and local governments to be 

covered by any Web site accessibility 

regulations adopted by the Department 

under the ADA? Please include any data 

or information regarding entities the 

Department might consider limiting 

coverage of, as discussed in the 

‘‘coverage limitations’’ section above. 

Question 13. What are the annual 

costs generally associated with creating, 

maintaining, operating, and updating a 

Web site? What additional costs are 

associated with creating and 

maintaining an accessible Web site? 

Please include estimates of specific 

compliance and maintenance costs 

(software, hardware, contracting, 

employee time, etc.). What, if any, 

unquantifiable costs can be anticipated 

from amendments to the ADA 

regulations regarding Web site access? 

Question 14. What are the benefits 

that can be anticipated from action by 

the Department to amend the ADA 

regulations to address Web site 

accessibility? Please include anticipated 

benefits for individuals with 

disabilities, businesses, and other 

affected parties, including benefits that 

cannot be fully monetized or otherwise 

quantified. 

Question 15. What, if any, are the 

likely or potential unintended 

consequences (positive or negative) of 

Web site accessibility requirements? For 

example, would the costs of a 

requirement to provide captioning to 

videos cause covered entities to provide 

fewer videos on their Web sites? 

Question 16. Are there any other 

effective and reasonably feasible 

alternatives to making the Web sites of 

public accommodations accessible that 

the Department should consider? If so, 

please provide as much detail about 

these alternatives, including 

information regarding their costs and 

effectiveness in your answer. 

F. Impact on Small Entities 

Consistent with the Regulatory 

Flexibility Act of 1980 and Executive 

Order 13272, the Department must 

consider the impacts of any proposed 

rule on small entities, including small 

businesses, small nonprofit 

organizations, and small governmental 

jurisdictions. See 5 U.S.C. 603–04 

(2006); E.O. 13272, 67 FR 53461 (Aug. 

13, 2002). The Department will make an 

initial determination as to whether any 

rule it proposes is likely to have a 

significant economic impact on a 

substantial number of small entities, 

and if so, the Department will prepare 

an initial regulatory flexibility analysis 

analyzing the economic impacts on 

small entities and regulatory 

alternatives that reduce the regulatory 

burden on small entities while 

achieving the goals of the regulation. In 

response to this ANPRM, the 

Department encourages small entities to 

provide cost data on the potential 

economic impact of adopting a specific 

requirement for Web site accessibility 

and recommendations on less 

burdensome alternatives, with cost 

information. 

Question 17. The Department seeks 

input regarding the impact the measures 

being contemplated by the Department 

with regard to Web accessibility will 

have on small entities if adopted by the 

Department. The Department 

encourages you to include any cost data 

on the potential economic impact on 

small entities with your response. 

Please provide information on capital 

costs for equipment, such as hardware 

and software needed to meet the 

regulatory requirements; costs of 

modifying existing processes and 

procedures; any affects to sales and 

profits, including increases in business 

due to tapping markets not previously 

reached; changes in market competition 

as a result of the rule; and cost for hiring 

web professionals for to assistance in 

making existing Web sites accessible. 

Question 18. Are there alternatives 

that the Department can adopt, which 

were not previously discussed in 

response to Questions 11 or 16, that will 

alleviate the burden on small entities? 

Should there be different compliance 

requirements or timetables for small 

entities that take into account the 

resources available to small entities or 

should the Department adopt an 

exemption for certain or all small 

entities from coverage of the rule, in 

whole or in part. Please provide as 

much detail as possible in your 

response. 

G. Other Issues 

Question 19. The Department is 

interested in gathering other 

information or data relating to the 

Department’s objective to provide 

requirements for Web accessibility 

under titles II and III of the ADA. 

Are there additional issues or 

information not addressed by the 

Department’s questions that are 

important for the Department to 

consider? Please provide as much detail 

as possible in your response. 

Dated: July 21, 2010. 

Thomas E. Perez, 

Assistant Attorney General, Civil Rights 

Division. 

[FR Doc. 2010–18334 Filed 7–22–10; 4:15 pm] 

BILLING CODE 4410–13–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 36 

[CRT Docket No. 112] 

RIN 1190–AA63 

Nondiscrimination on the Basis of 

Disability; Movie Captioning and Video 

Description 

AGENCY: Civil Rights Division, Justice. 

ACTION: Advance Notice of Proposed 

Rulemaking. 

SUMMARY: The Department of Justice 

(Department) is considering revising its 

regulation implementing title III of the 

Americans with Disabilities Act (ADA) 

in order to establish requirements for 

making the goods, services, facilities, 

privileges, accommodations, or 

advantages offered by movie theater 

owners or operators at movie theaters 

accessible to individuals who are deaf 

or hard of hearing or who are blind or 

have low vision by screening movies 

with closed captioning or video 

description. The Department is issuing 

this Advance Notice of Proposed 

Rulemaking (ANPRM) in order to solicit 

public comment on various issues 

relating to the potential application of 

such requirements and to obtain 

background information for the 

regulatory assessment the Department 

may need to prepare in adopting any 

such requirements. 

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. 

ADDRESSES: You may submit comments, 

identified by RIN 1190–AA63 (or Docket 

ID No. 112), by any one of the following 

methods: 

• Federal eRulemaking Web site: 

www.regulations.gov. Follow the Web 

site’s instructions for submitting 

comments. The Regulations.gov Docket 

ID is DOJ–CRT–0112. 

• 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 


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1 In the June 17, 2008 NPRM, the Department 

used the term ‘‘narrative description’’ to define the 

process and experience whereby individuals who 

are blind or have low vision are provided with a 

spoken narrative of key visual elements of a movie, 

such as actions, settings, facial expressions, 

costumes, and scene changes. In response to 

comments received from this NPRM, the 

Department now refers to this process as video 

description. 

2The Department’s regulations already require 

that public accommodations provide effective 

communication to the public through the provision 

of auxiliary aids and services, including, where 

appropriate, captioning and audio or video 

description. See generally, 28 CFR 36.303; 28 CFR 

part 36, Appendix B. To that end, the Department 

has entered into settlement agreements with a major 

museum and various entertainment entities 

requiring such aids and services. See e.g., 

Agreement Between the United States of America 

and the International Spy Museum, (June 3, 2006), 

available at http://www.ada.gov/spymuseum.htm.; 

Agreement Between the United States of America 

and Walt Disney World Co. Under the Americans 

Justice, 1425 New York Avenue, N.W., 

Suite 4039, Washington, DC 20005. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Devine, 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 ANPRM is also available on the 

ADA Home Page at http://www.ada.gov. 

SUPPLEMENTARY INFORMATION: 

I. Electronic Submission of Comments 

and Posting of Public Comments 

You may submit electronic comments 

to www.regulations.gov. When 

submitting comments electronically, 

you must include DOJ–CRT 2010–0112 

in the search field, and you must 

include your full name and address. 

Electronic files should avoid the use of 

special characters or any form of 

encryption and should be free of any 

defects or viruses. 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at 

www.regulations.gov. Submission 

postings will include any personal 

identifying information (such as your 

name, address, etc.) included in the text 

of your comment. If you include 

personal identifying information (such 

as your name, address, etc.) in the text 

of your comment but do not want it to 

be posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

include all the personal identifying 

information you want redacted along 

with this phrase. Similarly, if you 

submit confidential business 

information as part of your comment but 

do not want it to be posted online, you 

must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on 

www.regulations.gov. 

Comments on this ANPRM will also 

be made available for public viewing by 

appointment at the Disability Rights 

Section, located at 1425 New York 

Avenue, NW., Suite 4039, Washington, 

DC 20005, during normal business 

hours. To arrange an appointment to 

review the comments, please contact the 

ADA Information Line at (800) 514– 

0301 (voice) or (800) 514–0383 (TTY). 

The reason that the Civil Rights 

Division is requesting electronic 

comments before Midnight Eastern 

Time on the day the comment period 

closes is because the inter-agency 

Regulations.gov/Federal Docket 

Management System (FDMS) which 

receives electronic comments terminates 

the public’s ability to submit comments 

at Midnight on the day the comment 

period closes. Commenters in time 

zones other than Eastern may want to 

take this fact into account so that their 

electronic comments can be received. 

The constraints imposed by the 

Regulations.gov/FDMS system do not 

apply to U.S. postal comments, which 

will be considered as timely filed if they 

are postmarked before Midnight on the 

day the comment period closes. 

II. Public Hearing 

The Department will hold at least one 

public hearing to solicit comments on 

the issues presented in this notice. The 

Department plans to hold the public 

hearing during the 180-day public 

comment period. The date, time, and 

location of the public hearing will be 

announced to the public in the Federal 

Register and on the Department’s ADA 

Home Page, http://www.ada.gov/. 

III. Background 

A. Statutory and Rulemaking History Up 

to the 2008 NPRM 

On July 26, 1990, President George 

H.W. Bush signed into law the ADA, a 

comprehensive civil rights law 

prohibiting discrimination on the basis 

of disability. The ADA broadly protects 

the rights of individuals with 

disabilities in employment, access to 

State and local government services, 

places of public accommodation, 

transportation, and other important 

areas of American life. The ADA also 

requires, in pertinent part, newly 

designed and constructed or altered 

public accommodations, and 

commercial facilities to be readily 

accessible to and usable by individuals 

with disabilities. 42 U.S.C. 12101 et seq. 

Section 306(b) of title III directs the 

Attorney General to promulgate 

regulations to carry out the provisions of 

title III, other than certain provisions 

dealing specifically with transportation. 

42 U.S.C. 12186(b). 

Title III prohibits discrimination on 

the basis of disability in the activities of 

places of public accommodation 

(private entities whose operations affect 

commerce and that fall into one of 

twelve categories listed in the ADA, 

such as restaurants, movie theaters, 

schools, day care facilities, recreational 

facilities, and doctors’ offices) and 

requires newly constructed or altered 

places of public accommodation—as 

well as commercial facilities (privately 

owned, nonresidential facilities such as 

factories, warehouses, or office 

buildings)—to comply with the ADA 

Standards. 42 U.S.C. 12181–89. 

On July 26, 1991, the Department 

issued its final rule implementing title 

III, which is codified at 28 CFR part 36. 

Appendix A of the title III regulation, at 

28 CFR part 36, contains the ADA 

Standards for Accessible Design. On 

September, 30, 2004, the Department 

published an advance notice of 

proposed rulemaking (2004 ANPRM) to 

begin the process of updating the 1991 

regulation to adopt revised ADA 

Standards based on the relevant parts of 

the 2004 ADA/ABA Guidelines. 69 FR 

58768. On June 17, 2008, the 

Department issued a Notice of Proposed 

Rulemaking (NPRM) to adopt the 

revised ADA Standards and, in 

pertinent part, revise the title III 

regulations. 73 FR 34466. The NPRM 

addressed the issues raised in the 

public’s comments to the ANPRM and 

sought additional comment. 

In that NPRM, the Department stated 

that it was considering options under 

which it might require that movie 

theater owners or operators exhibit 

movies that are captioned for patrons 

who are deaf or hard of hearing and 

movies that provide video (narrative) 

description1 for patrons who are blind 

or have low vision.2 The Department 


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With Disabilities Act Concerning the Use of 

Auxiliary Aids at Walt Disney World (January 17, 

1997), available at http://www.ada.gov/disagree.htm 

. 

3Congress also was silent regarding requiring 

video description of movies. 

4As the district court in Ball v. AMC 

Entertainment, Inc., 246 F. Supp. 2d 17, 22 (D.D.C. 

2003) noted, ‘‘Congress explicitly anticipated the 

situation presented in this case [the development of 

technology to provide closed captioning of movies]. 

Therefore, the isolated statement that open 

captioning of films in movie theaters was not 

required in 1990 cannot be interpreted to mean that 

[movie theaters] cannot now be expected and 

required to provide closed captioning of films in 

their movie theaters.’’ (Emphasis in original). 

noted, for example, that technical 

advances since the early 1990s have 

made open and closed captioning for 

movies more readily available and 

effective. The Department also stated 

that it understood that the movie 

industry was transitioning, in whole or 

in part, to movies in digital format and 

that movie theater owners and operators 

were beginning to purchase digital 

projectors. As noted in that NPRM, 

movie theater owners and operators 

with digital projectors may have 

available to them different options for 

providing captioning and video 

description than those without digital 

projectors. The Department sought 

comments regarding whether and how 

to require captioning and video 

description while the film industry 

made the transition to digital. Also, the 

Department stated its concern about the 

potential cost to exhibit captioned 

movies, noting that cost may vary 

depending upon whether open or closed 

captioning is used and whether or not 

digital projectors are used, and stated 

that the cost of captioning must stay 

within the parameters of the undue 

burden requirement in 28 CFR 

36.303(a). The Department also 

expressed concerns about the cost of 

video description equipment but stated 

that it understood that the cost for video 

description was less than that for closed 

captioning. The Department then stated 

that it was considering the possibility of 

requiring public accommodations to 

exhibit all new movies in captioned 

format and with video description at 

every showing. The Department 

indicated that at that time, it anticipated 

that it would not specify which types of 

captioning to provide, leaving that to 

the discretion of the movie theater 

owners and operators. 

The Department received numerous 

comments urging the Department to 

issue captioning and video description 

regulations under the ADA. These 

comments are discussed infra. Recently, 

the United States Court of Appeals for 

the Ninth Circuit held that the ADA 

required a chain of movie theatres to 

exhibit movies with closed captioning 

and video description unless the 

theaters could show that to do so would 

amount to a fundamental alteration or 

undue burden. Arizona v. Harkins 

Amusement Enterprises, Inc.,—F.3d. —, 

2010 WL 1729606 (9th Cir., April 30, 

2010). In light of the comments received 

pursuant to the NPRM, the Ninth Circuit 

decision, and the additional reasons 

detailed below, the Department has 

decided to begin the process of 

soliciting additional comments and 

suggestions with respect to what an 

NPRM regarding captioning and video 

description should contain. 

B. Legal Foundation for Captioning and 

Video Description 

Creating regulations that would 

require movie theater owners and 

operators to exhibit closed captioned 

and video described movies falls 

squarely within the requirements of the 

ADA. Title III of the ADA includes 

movie theaters within its definition of 

places of public accommodation. 42 

U.S.C. 12181(7). Title III makes it 

unlawful for places of public 

accommodation, such as movie theaters, 

to discriminate against an individual in 

the full and equal enjoyment of the 

goods, services, facilities, privileges, 

advantages, or accommodations of any 

place of public accommodation. 42 

U.S.C. 12182(a). Moreover, title III 

prohibits places of public 

accommodation from affording an 

unequal or lesser service to individuals 

or classes of individuals with 

disabilities than is offered to other 

individuals. 42 U.S.C. 12182(b)(1)(A)(ii). 

Title III requires places of public 

accommodation to take ‘‘such steps as 

may be necessary to ensure that no 

individual with a disability is excluded, 

denied services, segregated or otherwise 

treated differently * * * because of the 

absence of auxiliary aids and services, 

unless the entity can demonstrate that 

taking such steps would fundamentally 

alter the nature of the good, service, 

facility, privilege, advantage, or 

accommodation being offered or would 

result in an undue burden.’’ 42 U.S.C. 

12182(b)(2)(A)(iii). The statute defines 

auxiliary aids to include ‘‘qualified 

interpreters or other effective methods 

of making aurally delivered materials 

available to individuals with hearing 

impairments’’ and ‘‘taped texts, or other 

effective methods of making visually 

delivered materials available to 

individuals with visual impairments.’’ 

42 U.S.C. 12103(1)(A)–(B). The 

Department’s title III regulation 

specifically lists open and closed 

captioning and audio recordings and 

other effective methods of making 

visually delivered materials available to 

individuals with visual impairments as 

examples of auxiliary aids and services 

that should be provided by places of 

public accommodations, 28 CFR 

36.303(b)(1)–(2), unless the public 

accommodation can demonstrate that 

providing such aids and services would 

fundamentally alter the nature of the 

good or service being offered or would 

result in an undue burden. 28 CFR 

36.303(a). In addition, the Department’s 

title III regulation mandates that if a 

provision of a particular auxiliary aid or 

service by a public accommodation 

would result in a fundamental alteration 

in the nature of the goods or services 

being offered or in an undue burden, the 

public accommodation shall provide an 

alternative auxiliary aid or service, if 

one exists, that would not result in an 

alteration or such burden but would 

nevertheless ensure that, to the 

maximum extent possible, individuals 

with disabilities receive the goods and 

services offered by the public 

accommodation. 28 CFR 36.303(f). 

While the ADA itself contains no 

explicit language regarding captioning 

(or video description) in movie theaters, 

the legislative history of title III states 

that ‘‘[o]pen-captioning * * * of feature 

films playing in movie theaters, is not 

required by this legislation. Filmmakers, 

are, however, encouraged to produce 

and distribute open-captioned versions 

of films, and theaters are encouraged to 

have at least some pre-announced 

screenings of a captioned version of 

feature films.’’ H.R. Rep. No. 101–485 

(II), at 108 (1990); S. Rep. No. 101–116 

at 64 (1989). Congress was silent on the 

question of closed captioning in movie 

theaters, a technology not yet developed 

at that time for first-run movies, but it 

acknowledged that closed captions may 

be an effective auxiliary aid and service 

for making aurally delivered 

information available to individuals 

who are deaf or hard of hearing. See 

H.R. Rep. No. 101–485 (II), at 107.3 In 

addition, the House Committee stated 

that ‘‘technological advances can be 

expected to further enhance options for 

making meaningful and effective 

opportunities available to individuals 

with disabilities. Such advances may 

require public accommodations to 

provide auxiliary aids and services in 

the future which today would not be 

required because they would be held to 

impose undue burdens on such 

entities.’’ Id. at 108.4 Similarly, in 1991, 

the Department stated that ‘‘[m]ovie 

theaters are not required * * * to present 

open-captioned films,’’ but was silent as 

to closed captioning. 56 FR 35544, 


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5This court was guided, in part, by the amicus 

brief filed by the United States in support of 

requiring closed captioning and video description. 

35567 (July 26, 1991). The Department 

also noted, however, that ‘‘other public 

accommodations that impart verbal 

information through soundtracks on 

films, video tapes, or slide shows are 

required to make such information 

accessible to persons who are deaf or 

hard of hearing. Captioning is one 

means to make the information 

accessible to individuals with 

disabilities.’’ Id. 

It is the Department’s view that the 

legislative history of the ADA and the 

Department’s commentary in the 

preamble to the 1991 regulation make 

clear that Congress was not requiring 

open captioning of movies in 1990, but 

that it was leaving open the door for the 

Department to require captioning in the 

future as the technology developed. It is 

also the Department’s position that 

neither the ADA nor its legislative 

history precludes, in any way, issuing 

regulations regarding video description. 

To the contrary, given the present state 

of technology, we believe that 

requirements of captioning and video 

description fit comfortably within the 

statutory text. 

In April of this year, the first federal 

appellate court to squarely address the 

question of whether captioning and 

video description are required under the 

ADA determined that the ADA required 

movie theatre owner and operator 

Harkins Amusement Enterprises, Inc., 

and its affiliates, to screen movies with 

closed captioning and descriptive 

narration (video description) unless 

such owners and operators could 

demonstrate that to do so would amount 

to a fundamental alteration or undue 

burden. Arizona v. Harkins Amusement 

Enterprises, Inc.,—F.3d. —, 2010 WL 

1729606 (9th Cir., April 30, 2010).5 The 

Ninth Circuit found that because closed 

captioning and video descriptions are 

correctly classified as ‘‘auxiliary aids 

and services’’ that a movie theater may 

be required to provide under the ADA, 

the lower court erred in finding that 

these services are foreclosed as a matter 

of law. Id. 

C. Movie Basics 

The very first movies were silent 

films. ‘‘Talkies’’ added sound as a 

separate component. Although many 

technological advances have been made 

since the advent of the ‘‘talkie,’’ the 

practice of exhibiting the visual portion 

of the movie separate from the sound is 

still common. Today, the 

cinematography portion of many movies 

is exhibited in an analog (i.e. film) 

format, and the aural portion is 

exhibited in a digital format. Five to six 

reels of film are used for a typical twohour long movie. These reels must be 

physically delivered to each movie 

theater exhibiting the movie. Digital 

sound is captured on CD-roms or 

optically or digitally on the film itself. 

Digital sound is synchronized to the 

visual images on the screen by a 

mechanism, called a reader head, that 

reads a timecode track printed on the 

film. 

Digital cinema, by contrast, captures 

images, data, and sound on data files as 

a digital ‘‘package’’ that is stored on a 

hard drive or a flash drive. Digital 

movies are physically delivered to 

movie theaters on high resolution DVDs 

or removable or external hard drives, or 

to movie theaters’ servers via Internet, 

fiberoptic, or satellite networks. The 

movie industry recently has begun 

transitioning to digital cinema and it is 

the Department’s understanding that, in 

the industry’s view, this transition is 

one of the most profound advances in 

motion picture production and 

technology of the last 100 years and will 

provide numerous advantages both for 

the industry and the audience. 

D. Captioning and Video Description 

Generally 

Captioning makes movies shown in 

theaters accessible to individuals whose 

hearing is too limited to benefit from 

assistive listening devices, as well as to 

individuals with other hearing 

disabilities. Open captions are similar to 

subtitles in that the text of the dialog is 

visible to everyone in the theater. 

Unlike subtitles, open captions also 

describe other sounds and sound 

makers (e.g., sound effects, music, and 

the character who is speaking) in an onscreen text format. Open movie captions 

are sometimes referred to as ‘‘burned in’’ 

or ‘‘hardcoded’’ captions. However, new 

open captioning technology enables 

studios to superimpose captions 

without making a burned in copy or 

having to deliver a separate version of 

the movie. Open-captioned films are 

most often exhibited in movie theaters 

at certain limited showings. 

Closed captioning displays the 

written text of the dialog and other 

sounds or sound makers only to those 

individuals who request it. It is the 

Department’s understanding that, at the 

time comments were received in 

response to the 2008 NPRM, there were 

various types of closed captioning 

systems either in use or in development, 

including the Rear Window system, 

hand-held displays similar to a PDA 

(personal digital assistant), eyeglasses 

fitted with a prism over one lens, and 

projected bitmap captions. It is also the 

Department’s understanding that, at 

present, the only system that has gained 

a foothold in the marketplace is the Rear 

Window system. Unlike open captions 

that are sometimes burned onto the film 

itself, Rear Window captions are 

generated via a technology that neither 

is physically attached to the film nor 

requires a separate copy of the film to 

be made. The Rear Window system 

works through a movie theater’s digital 

sound system. It uses a computer, a time 

code signal, and captioning software to 

project the captions, in reverse, on an 

LED display in the rear of the theater. 

A clear adjustable panel that is mounted 

on, or near an individual viewer’s seat 

reflects the captions correctly and 

superimposes them on that panel so that 

it appears to a Rear Window user that 

the captions are on or near the movie 

image. Because this technology enables 

a movie theater that has been equipped 

with a Rear Window system to exhibit 

any movie that a movie producer has 

captioned, at any showing, without 

displaying captions to every movie-goer 

in the theater, individuals who are deaf 

or hard of hearing may enjoy movies in 

the same theater as those who do not 

require captioning. 

Video description is a technology that 

enables individuals who are blind or 

have low vision to enjoy movies by 

providing a spoken narration of key 

visual elements of a movie, such as 

actions, settings, facial expressions, 

costumes, and scene changes. Visual 

description fills in information about 

the visual content of a movie where 

there are no corresponding audio 

elements in the film. It requires the 

creation of a separate script written by 

specially trained writers who prepare a 

script for video description that is 

recorded on an audiotape or CD that is 

synchronized with the film as it is 

projected. The script is transmitted to 

the user through infra-red or FM 

transmission to wireless headsets. 

E. Increasing Numbers of Individuals 

With Hearing and Vision Impairments 

The percentage of Americans 

approaching middle age and older is 

increasing. According to 2000 Census 

figures, Baby Boomers (i.e., individuals 

born between 1946 and 1964 or who 

were between the ages of 36 and 54 in 

2000), comprised nearly a third of all 

Americans. Just over a fifth of the 

American populous was age 55 or older. 

From 1990 to 2000, the two fastest 

growing age groups were those 45 to 49 

and 50 to 54. The younger of the two 

groups increased by nearly 45 percent, 

and the older increased by more than 

half (54.9 percent). Together these 


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6According to the National Institute on Deafness 

and Other Communication Disorders of the 

National Institutes of Health, in 2004 there were 28 

million Americans who had some type of hearing 

loss, and 500,000 to 750,000 Americans who had 

severe to profound hearing loss or deafness. Healthy 

Hearing 2010: Where Are We Now?, http:// 

www.nidcd.nih.gov/health/inside/spr05/pg1.asp. 

The National Eye Institute of the National Institutes 

of Health reported in 2004, ‘‘With the aging of the 

population, the number of Americans with major 

eye diseases is increasing, and vision loss is 

becoming a major health problem. By the year 2020, 

the number of people who are blind or have low 

vision is projected to increase substantially. * * * 

Blindness or low vision affects 3.3 million 

Americans age 40 or over, or one in 28, * * *. This 

figure is projected to reach 5.5 million by 2020. 

* * * [L]ow vision and blindness increase 

significantly with age, particularly in people over 

age 65.’’ See http://www.nei.nih.gov/news/

pressreleases/041204.asp. 

7The first feature film with closed captions and 

video description, The Jackal, was exhibited at a 

California movie theater in 1997. The Jackal’s 

release was followed by the release of Titanic—the 

first major studio direct-release of a movie with 

closed captioning and video description 

capabilities. 

groups comprised nearly 38 million 

people (37,677,952). When joined with 

other ‘‘seniors,’’ the 2000 Census figure 

for the over 45 age group increased to 

nearly 97 million people (96,944,389). 

Assuming the population has remained 

fairly constant, when the 2010 Census is 

completed and the results are released, 

Baby Boomers, who will then fall 

between the ages of 46 and 64, will 

make older Americans the largest 

segment of the U.S. population. 

The aging of the population is 

significant because of the correlation 

between aging and hearing and vision 

impairment or loss. An October 21, 2008 

Department of Health and Human 

Services’ Progress Review on Vision and 

Hearing in the United States noted that 

Richard Klein, Chief of the NCHS 

Health Promotion Statistics Branch, 

found that there are about 21 million 

adults in the United States that are 

visually impaired, and about 36 million 

(17 percent) have some degree of 

hearing loss.6 The Progress Review also 

noted that ‘‘[a]s with vision problems, 

the number of U.S. adults with hearing 

loss is expected to increase significantly 

as the population ages, because hearing 

loss and aging are related to a high 

degree. Hearing loss is one of the three 

most prevalent chronic conditions in 

older Americans, ranking just after 

hypertension and arthritis.’’ Progress 

Review: Vision and Hearing, http:// 

www.healthypeople.gov/data/2010prog/ 

focus28/. Moreover, at least one hearing 

loss Web site reports that ‘‘[a]s baby 

boomers reach retirement age starting in 

2010, th[e] number of [Americans with 

hearing loss] is expected to rapidly 

climb and nearly double by the year 

2030.’’ Hearing Loss Association of 

America, Facts on Hearing Loss, 

http://www.hearingloss.org/learn/ 

factsheets.asp. 

F. The Department’s Rulemaking 

History Regarding Captioning and Video 

Description 

When the Department issued its 

September 30, 2004 advance notice of 

proposed rulemaking (ANPRM), it did 

not raise movie captioning or video 

description as potential areas of 

regulation. Despite that fact, several 

ANPRM commenters requested that the 

Department consider regulating in these 

areas. The Department has determined 

that since the publication of the 1991 

regulation, new ‘‘closed’’ technologies 

for movie captioning and video 

description have been developed. By 

1997, these technologies were released 

into the marketplace.7

Given the availability of this new 

technology, mindful that the ADA’s 

legislative history made clear that the 

ADA ought not be interpreted so 

narrowly or rigidly that new 

technologies are excluded, and aware 

that assistive listening devices and 

systems in movie theaters cannot be 

used to effectively convey the audio 

content of films for individuals who are 

deaf or who have severe or profound 

hearing loss, the Department decided to 

broach the topic of requiring closed 

captioning and video description at 

movie theaters in the 2008 NPRM. The 

NPRM asked exploratory questions 

about, but proposed no regulatory text 

for, movie captioning and video 

descriptions. The Department received 

many comments from individuals with 

disabilities, organizations representing 

individuals with disabilities, non-profit 

organizations, state governmental 

entities, and representatives from movie 

studios and movie theater owners and 

operators on these two issues. 

Rather than using these comments to 

formulate a final rule, however, the 

Department is issuing this supplemental 

ANPRM for three main reasons. First, 

the Department wishes to obtain more 

information regarding several issues 

raised by commenters that were not 

contemplated at the time the 2008 

NPRM was published. Second, the 

Department seeks public comment on 

several technical questions that arose 

from the research the Department 

undertook to address some of the issues 

raised by commenters to the original 

NPRM. Finally, in the two years that 

have passed since issuance of the 2008 

NPRM, the Department is aware that 

movie theater owners and operators, 

particularly major movie theater owners 

and operators, either have entered into, 

or had plans to enter into, agreements to 

convert to digital cinema. However, 

during this same time period, the 

United States’ economy, and the 

profitability of many public 

accommodations, experienced 

significant setbacks. The Department 

wishes to learn more about the status of 

digital conversion, concrete projections 

regarding if and when movie theater 

owners and operators, both large and 

small, expect to exhibit movies using 

digital cinema, when such movie theater 

owners and operators expect to 

implement digital cinema, by 

percentages, in their theaters, and any 

relevant protocols, standards, and 

equipment that have been developed 

regarding captioning and video 

description for digital cinema. In 

addition, the Department would like to 

learn if, in the last two years, other 

technologies or areas of interest (e.g., 

3D) have developed or are in the process 

of development that either would 

replace or augment digital cinema or 

make any regulatory requirements for 

captioning and video description more 

difficult or expensive to implement. 

G. Response to 2008 NPRM Comments 

Concerning Movie Captioning and 

Video Description, Analysis and 

Discussion of Proposed Regulatory 

Approach 

Although the 2008 NPRM did not 

propose any specific regulatory 

language with regard to movie 

captioning or video description, the 

Department sought input from the 

public as to whether the Department’s 

regulation should require movie theater 

owners and operators to exhibit movies 

that have captioning for patrons who are 

deaf or hard of hearing and video 

description for individuals who are 

blind or have low vision. The 

Department asked whether, within a 

year of the revised regulation’s effective 

date, all new movies should be 

exhibited with captions and video 

description at every showing or whether 

it would be more appropriate to require 

captions and video description less 

frequently. The preamble made clear 

that the Department did not intend to 

specify which types of captioning to 

provide and stated that such decisions 

would be left to the discretion of the 

movie theater owners and operators. 

Individuals with disabilities, 

advocacy groups, a representative from 

a non-profit organization, and 

representatives of state governments, 

including eleven State Attorneys 

General, overwhelmingly supported 

issuance of a regulation requiring movie 


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8See Report to the Access Board: Refreshed 

Accessibility Standards and Guidelines in 

Telecommunications and Electronic and 

Information Technology (April 2008), http:// 

www.access-board.gov/sec508/refresh/report/. 

theater owners and operators to exhibit 

captioned and video described movies 

at all showings unless doing so would 

result in an undue burden or 

fundamental alteration. These groups 

noted that although the technology to 

exhibit movies with captions and video 

description has been in existence for 

about ten years, most movie theaters 

still were not exhibiting movies with 

captioning and video description. As a 

result, these groups indicated that they 

believed regulatory action should not be 

delayed until the conversion to digital 

cinema had been completed. One 

commenter in this group said that 

because federal law requires movie 

studios to caption movies prior to their 

release to cable and television media, 

see, e.g., 47 CFR 79.1, it made good 

business sense for studios to caption 

movies prior to their being released to 

movie theater owners and operators. 

Several commenters requested that any 

regulation include factors describing 

what constitutes effective captioning 

and video description, including that 

captioning be within the same line of 

sight to the screen as the movie so that 

individuals who are deaf or hard of 

hearing can watch the movie and read 

the captions at the same time, that the 

captioning be accessible from each seat, 

that the captions be of sufficient size 

and contrast to the background so as to 

be easily readable, and that the 

recommendations from the 

Telecommunications and Electronics 

and Information Technology Advisory 

Committee (TEITAC) Report to the 

Access Board that captions be ‘‘timely, 

accurate, complete, and efficient’’ be 

included.8 The Department has 

carefully considered these requests and 

believes that more information is 

required before making a decision as to 

how many movies should be screened 

with captioning and video description 

available and whether factors that 

describe what constitutes effective 

captioning and video description would 

be helpful to movie theater owners and 

operators and individuals with 

disabilities. 

The State Attorneys General 

supported the Department’s statement 

in the 2008 NPRM that the Department 

did not anticipate specifying which type 

of captioning to provide or what type of 

technology to use to provide video 

description, but would instead leave 

that to the discretion of the movie 

theater owners and operators. These 

State Attorneys General said that such 

discretion in the selection of the type of 

technology was consistent with the 

statutory and regulatory scheme of the 

ADA and would permit any new 

regulation to keep pace with future 

advancements in captioning and video 

description technology. These same 

commenters stated that such discretion 

may result in a mixed use of both closed 

captioning and open captioning, 

affording more choices both for the 

movie theater owners and operators and 

for individuals who are deaf or hard of 

hearing. The Department has considered 

these points and has decided that this 

ANPRM should request additional 

comments regarding whether the 

Department should specifically require 

closed captioning or permit motion 

picture owners and operators to choose 

which type of captioning to provide in 

order to satisfy any regulatory 

requirements the Department might 

impose. 

Representatives from the movie 

theater industry strongly urged the 

Department not to issue a regulation 

requiring captioning (but were silent as 

to requiring video description) at movie 

theaters. Some industry commenters 

also opposed any regulation by the 

Department in this area claiming that 

since the Access Board has not issued 

a regulation to require the exhibition of 

captioned and video described movies 

in public accommodations, the 

Department is precluded from so doing. 

These commenters misunderstood the 

allocation of regulatory authority under 

the ADA. The ADA authorizes the 

Access Board to issue design guidelines 

for accessible buildings and facilities 

and requires that the design standards 

for buildings and facilities included in 

regulations issued by the Department be 

consistent with the minimum guidelines 

and requirements issued by the 

Architectural and Transportation 

Barriers Compliance Board. See 42 

U.S.C. 12186(c). It is beyond the scope 

of the Access Board’s authority to 

establish regulations governing aspects 

of ADA implementation unrelated to 

design and construction issues. The 

Department, by contrast, has broad 

regulatory authority to implement 

additional provisions of the ADA, 

including those requiring covered 

entities to ensure effective 

communication with their clients and 

customers. 

Industry commenters also said that 

the cost of obtaining the equipment 

necessary to display closed captioned 

and video described movies would 

constitute an undue burden. One 

industry commenter stated that the cost 

of equipment to display both closed 

captions and video description per 

screen can approach $11,000, plus 

additional installation expenses. The 

Department is aware that there are costs 

associated with providing closed 

captioning and video description 

technology and that for some movie 

theater owners and operators, 

particularly independent or very small 

movie theater companies, obtaining 

captioning and video description 

equipment may indeed constitute an 

undue burden. However, after carefully 

considering the concerns raised about 

the costs of implementing captioning 

and video description technology, the 

Department needs additional, more 

specific, and more recent information 

on the issue of undue burden. 

In addition, in an effort to spread out 

any implementation costs so that costs 

could be absorbed over time and would 

lessen any financial impact on theater 

owners and operators, the Department is 

considering a provision that would 

phase in compliance requirements. It is 

the Department’s intention that such a 

provision, along with normal swings in 

supply and demand (e.g., commenters 

noted that as more theaters purchase 

closed captioning and video description 

technologies, their costs will drop), 

could insulate many movie theater 

owners and operators from an undue 

burden. 

Some industry commenters argued 

also that because the industry has made 

progress in making cinema more 

accessible without mandates to caption 

or describe movies, the Department 

should wait until the movie industry 

has completed its conversion to digital 

cinema to regulate. According to a 

commenter representing major movie 

producers and distributors, the number 

of motion pictures produced with 

closed captioning by its member studios 

had grown to 88 percent of total releases 

by the end of 2007, early 2008; the 

number of motion pictures produced 

with open captioning by its member 

studios had grown to 78 percent of total 

releases by the end of 2007, early 2008; 

and the number of motion pictures 

provided with video description has 

consistently ranged between 50 and 60 

percent of total releases. This 

commenter explained that movie 

producers and distributors, not movie 

theater owners and operators, determine 

whether to caption, what to caption and 

describe, the type of captioning to use, 

and the content of the captions and 

video description script. In addition, the 

movie studios, not the movie theater 

owners and operators, assume the costs 

of captioning and describing movies. 

This commenter also said that movie 

theater owners and operators must only 


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purchase the equipment to display the 

captions and play the video description 

in their auditoriums. That said, several 

commenters stated that movie theater 

owners and operators rarely exhibit the 

movies with captions or descriptions. 

They estimated that less than 1 percent 

of all movies being exhibited in theaters 

are actually shown with captions. 

The Department has carefully 

considered this information and 

acknowledges that significant strides 

have been made by movie producers in 

terms of furnishing movies that have the 

potential to make movies more 

accessible for individuals with 

disabilities. Despite these strides, 

however, the percentage of captioned 

and video described movies actually 

exhibited or made available in movie 

theaters appears to be 

disproportionately low by comparison. 

The Department is concerned about 

what appears to be a significant 

disconnect between the production of 

movies that have captioning and video 

description capabilities and the actual 

exhibition or availability of such movies 

to individuals with sensory disabilities. 

The Department also is concerned that 

even when captioned and video 

described movies are exhibited, their 

showings appear to be relegated to the 

middle of the week or midday 

showings. Commenters lamented that 

individuals with disabilities generally 

do not have the option of attending 

movies on days and times (e.g., 

weekends or evenings) when most other 

moviegoers see movies because movie 

theaters usually only show captioned or 

video described movies during the week 

at off-peak hours. The Department has 

not been persuaded that movie theaters 

have made such significant strides in 

making the current captioning and 

video description technology available 

to moviegoers with disabilities that 

regulatory action in this area would be 

unnecessary. 

Industry commenters have requested 

that any regulation regarding captioning 

and video description be timed to occur 

after the conversion to digital cinema is 

complete. The Department is aware that 

in 2005, the movie industry began 

transitioning away from the exclusive 

use of analog films to exhibit movies to 

a digital mode of movie delivery. 

However, the completion date of that 

conversion has remained elusive. One 

industry commenter said while there 

has been progress in making the 

conversion, only approximately 5,000 

screens, out of 38,794, have been 

converted, and the cost to make the 

remaining conversions involves an 

investment of several billion dollars. 

Some commenters have suggested that 

completion of digital conversion may be 

10 or more years in the future. The 

Department also is concerned that 

because of the high cost of converting to 

digital cinema (an industry commenter 

estimated that the conversion to digital 

costs between $70,000 and $100,000 per 

screen and that maintenance costs for 

digital projectors are estimated to run 

between $5,000 and $10,000 a year, 

approximately five times as expensive 

as the maintenance costs for film 

projectors) and current economic 

conditions, a complete conversion to 

digital cinema may be postponed or may 

not happen at all. For example, National 

Public Radio reported that ‘‘[f]or more 

than seven years, film studios and 

theaters have been hyping digital 

projectors and the crisp, clear picture 

quality they’ll bring to movie screens. 

But the vast majority of the nation’s 

cinemas are still using old analog 

projectors. * * * Despite the clear 

economic advantages of digital 

projection of the nation’s more than 

38,000 movie screens, only 2,200 have 

digital projectors.’’ All Things 

Considered, Digital Projection in 

Theaters Slowed Down by Dispute (Mar. 

21, 2007), available at http:// 

news.wvpubcast.org/templates/ 

transcript/

transcript.php?storyId=9047637. 

Whether a complete conversion to 

digital cinema will occur in a time 

certain, or not at all, is unknown. Even 

if the conversion of digital proceeds, 

until there is a complete digital 

conversion, at least some theaters will 

employ analog cinematography (i.e., 35 

mm film) to exhibit movies. It is the 

Department’s understanding that 

currently the vast majority of movie 

theaters in the United States exhibit 

film-based movies. Many, however, use 

a digital sound system (e.g., Digital 

Theater Systems, Dolby Digital, Sony 

Dynamic Digital Sound, etc.). Digital 

sound systems operate independently 

from analog projectors that deliver the 

visual portion of a movie. It is also the 

Department’s understanding that the 

closed captioning and video description 

technology that is currently available 

requires a movie theater to have a digital 

sound system but that digital cinema is 

not necessary for the captioning and 

video description technology. Thus, 

because the Department has not been 

presented with any substantive 

information indicating that a complete 

conversion to digital cinema is 

necessary to provide individuals with 

disabilities the opportunity to attend a 

closed captioned or video described 

movie, and the date for any complete 

conversion to digital cinema is unclear, 

at best, the Department believes that it 

may be unnecessary and inappropriate 

to wait to establish rules pertaining to 

closed captioning and video description 

for movies. 

It appears that existing captioning and 

video description equipment can be 

used with digital cinema. Commenters 

appeared to agree that when theaters 

move to digital technology, both the 

caption data and video descriptions can 

be embedded into the digital signal that 

is projected. A few commenters said 

that the systems currently used to 

provide captioning and video 

description will not become obsolete 

once a theater has converted to digital 

cinema because their major components 

are compatible with, and can be used 

by, digital cinema systems. These 

commenters said that the only 

difference for a movie theater owner or 

operator using digital cinema is the way 

the data are delivered to the captioning 

and video description equipment in 

place in an auditorium. In other words, 

because closed captioning and video 

description equipment operates through 

the digital sound systems most theaters 

have, the fact that those sound systems 

may be integrated with the digital 

cinema system will not necessitate 

changing the captioning and description 

equipment, only the manner in which 

the data they project are delivered to the 

digital cinema system. The Department 

seeks additional and updated 

information on this point. 

Finally, the Department is considering 

proposing that 50% of movie screens 

would offer captioning and video 

description 5 years after the effective 

date of the regulation. The Department 

originally requested guidance on any 

such figure in its 2008 NPRM. 

Individuals with disabilities, advocacy 

groups who represented individuals 

with disabilities, and eleven State 

Attorneys General advocated that the 

Department should require captioning 

and video description 100% of the time. 

Representatives from the movie industry 

did not want any regulation regarding 

captioning or video description. A 

representative of a non-profit 

organization recommended that the 

Department adopt a requirement that 

50% of movies being exhibited be 

available with captioning and video 

description. The Department seeks 

further comment on this issue and is 

asking several questions regarding how 

such a requirement should be framed. 

IV. Requests for Comments 

While the Department has been 

persuaded by comments from 

individuals, advocacy groups, 

governmental entities, and at least some 


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representatives of the movie industry 

that the time may be right to issue 

regulations on captioning and video 

description at movie theaters, the 

Department has a series of questions 

concerning the details of how best to 

frame and implement any such 

requirements. The Department believes 

that input from interested parties and 

the public would prove to be very 

useful. Specifically, the Department is 

seeking additional comment in response 

to the following questions: 

A. Coverage Issues 

Question 1. The Department is 

considering proposing a regulation that 

contains a sliding compliance schedule 

whereby the percentage of movie 

screens offering closed captioning and 

video description increases on a yearly 

basis, beginning with 10 percent in the 

first year any such rule becomes 

effective, until the 50 percent mark is 

reached in the fifth year. Please indicate 

whether this approach achieves the 

proper balance between providing 

accessibility for individuals with 

sensory disabilities and giving movie 

theaters and owners sufficient time to 

acquire the technology and equipment 

necessary to exhibit movies with closed 

captioning and video descriptions. Also, 

if you believe that a different 

compliance schedule should be 

implemented, please provide a detailed 

response explaining how this should be 

accomplished and the reasons in 

support. Should a different compliance 

schedule be implemented for small 

businesses? If so, why? What should 

that schedule require? 

Question 2. The Department is 

considering proposing regulatory 

language requiring movie theater 

owners and operators to exhibit movies 

with closed captions and movies with 

video description so that, after any 

sliding compliance scale has been 

achieved by the final year (e.g., at year 

5), all showings of at least one-half of 

the movie screens at the theater will 

offer captioning and video description. 

We seek comment on the most 

appropriate basis for calculating the 

number of movies that will be captioned 

and video described: Should this be the 

number of screens located in a 

particular theater facility, the number of 

screens owned by a particular movie 

theater company, the number of 

different movies being screened in a 

particular theater facility, or some 

combination thereof? Should a different 

basis be used for small business owners? 

If so, why? What basis should be used? 

Please include an explanation of the 

advantages and disadvantages of each 

option and the reasons a particular 

option is preferred over another. 

Question 3. If the number of screens 

located in a particular theater facility is 

the preferred option, please explain 

whether the fact that some theaters 

show the same movie on multiple 

screens poses any concerns with regard 

to the number of movies being screened 

with captions and video descriptions, 

and if so, what they are and whether 

there are any ways to address those 

concerns. Does this option pose 

particular concerns to small businesses? 

If so, what are they? Please indicate 

whether the Department should include 

specific language in the regulation that 

states that the basis for calculating the 

number or percentage is the number of 

captioned and video described movies 

the theater receives from the movie 

producers in order to make clear that 

the owner has no independent 

obligation to caption or describe movies. 

Question 4. If the number of screens 

owned by a particular movie theater 

company is the preferred option, please 

explain whether there are any concerns 

about the geographic distribution of 

movies being screened with captions 

and video descriptions, and if so, what 

they are and whether there are any ways 

to address those concerns. Does this 

option pose particular concerns to small 

businesses? If so, what are they? Please 

indicate whether the Department should 

include specific language in the 

regulation that states that the basis for 

calculating the number or percentage of 

movies is the number of captioned and 

video described movies the theater 

receives from the movie producers in 

order to make clear that the owner has 

no independent obligation to caption or 

describe movies. 

Question 5. If the number of movies 

being screened in a particular movie 

theater facility is the preferred option, 

please indicate whether the Department 

should include specific language in the 

regulation that states that the basis for 

calculating the number or percentage of 

movies is the number of captioned and 

video described movies the theater 

receives from the movie producers in 

order to make clear that the owner has 

no independent obligation to caption or 

describe movies. Does this option pose 

particular concerns to small businesses? 

If so, what are they? 

Question 6. If some combination of 

these three methods is the preferred 

option, please explain that option and 

how it would be implemented. Should 

a different combination or percentage be 

used for small business owners? If so, 

why? What combination or percentage 

should be used for small business 

owners? Please indicate whether the 

Department should include specific 

language in the regulation that states 

that the basis for calculating the number 

or percentage is the number of 

captioned and video described movies 

the theater receives from the movie 

producers in order to make clear that 

the owner has no independent 

obligation to caption or describe movies. 

Question 7. Should any such 

regulation require that the same number 

or percentage of movies with video 

description be exhibited as required for 

movies with captioning or should a 

different number or percentage be 

imposed? If the latter, what would be 

the justification for distinguishing 

between these forms of access? Should 

small businesses use a different ratio or 

percentage of video described movies or 

should they also be required to exhibit 

the same number or percentage of video 

described and captioned movies as 

other entities? 

Question 8. Should the Department 

adopt a requirement that movie theater 

owners and operators exhibit captioned 

and video described movies beginning 

on the day of their release? If not, why 

not (e.g., could such a requirement 

impose additional burdens and if so, 

what are they)? Should a different 

requirement be imposed on small 

business owners? If so, why? What 

should that requirement be? 

Question 9. While the Department is 

not considering requiring the use of 

open captioning, should movie theater 

owners and operators be given the 

discretion to exhibit movies with open 

captioning, should they so desire, as an 

alternate method of achieving 

compliance with the captioning 

requirements of any Department 

regulation? If theaters opt to use open 

captioning, should they be required to 

exhibit movies with such captioning at 

peak times so that people with 

disabilities can have the option of going 

to the movies on days and times when 

other moviegoers see movies? 

B. Digital Cinema 

Question 10. How many movie theater 

owners or operators have converted, in 

whole or in part, to digital cinema? How 

many have concrete plans to convert 25 

percent of their theaters in the next five 

years? Next ten years? How many have 

concrete plans to convert 50 percent of 

their theaters in the next five years? 

Next ten years? How many have 

concrete plans to convert 75 percent of 

their theaters in the next five years? 

Next ten years? What are the estimates 

for the cost for a movie theater to 

convert a movie auditorium to digital 

cinema? Are these costs different for 

small businesses? Have small businesses 


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entered into any cost-sharing 

agreements or other financing 

arrangements to assist in such a 

conversion? 

Question 11. Have specific protocols 

or standards been developed for 

captioning and video description for 

digital cinema and, if so, what are they? 

C. Equipment and Technology 

Questions 

Question 12. Do the closed captioning 

and video description technologies 

currently available require the use of a 

digital sound system or digital cinema? 

Have technologies been developed that 

do not require the use of either a digital 

sound system or digital cinema in order 

to display open or closed captions and 

offer video description? If any new 

technologies have been developed, 

please explain how they work and what, 

if any, additional costs are associated 

with the purchase or use of such 

technologies? Are there technologies in 

development that will not require the 

use of a digital sound system or digital 

cinema in order to display captions or 

video description? If so, what are they 

and when are they expected to be 

available for use by movie theater 

owners and operators? Please explain 

what, if any, additional costs are 

associated with the purchase or use of 

such technologies. 

Question 13. Is the existing closed 

captioning and video description 

equipment in use for digital sound 

systems compatible, or able to be 

integrated, with digital cinema systems? 

If not, why not? Are there additional 

costs associated with using this 

equipment with digital cinema systems? 

If so, please provide details. Are the 

costs different for small businesses? If 

so, why? What are they? 

Question 14. With regard to closed 

captioning systems, is the ability to read 

the captions equally good throughout 

the movie theater or are there certain 

seats in the theater that provide an 

enhanced level of readability or line of 

sight both to the screen and the 

adjustable panel affixed at or near the 

patron’s seat? If certain seats enable 

individuals who are deaf or hard of 

hearing to view movies more effectively, 

which seats are they and why are they 

better (e.g., the image is better, there are 

fewer obstructions, there is less need to 

continually adjust the panel, etc.)? 

Should movie theater owners and 

operators be required to hold such seats 

for individuals with disabilities who 

wish to use the theater’s closed 

captioning system? Since movie theater 

seating is usually first-come, first-serve, 

is there an effective system that movie 

theaters would be able to implement to 

hold back releasing such seats? Should 

movie theater owners and operators be 

allowed to release such seats if they are 

not requested within a certain amount 

of time before the start of the movie? 

Should movie theater owners and 

operators be allowed to release such 

seats to the general movie going 

audience once all of the other seats in 

the theater have been sold out? Are 

there alternatives for seating that 

minimize the cost but still provide 

patrons who are deaf or hard of hearing 

with effective and efficient readability 

of the captions and lines of sight to the 

screen? 

Question 15. Are there other factors 

that the Department should include 

with regard to the display of captions or 

the use of video description? What is 

the cost of purchasing/incorporating 

video description equipment per screen/ 

theater? Are the costs different for small 

businesses? If so, why? What are they? 

Question 16. Has any specific 

equipment been developed or is there 

equipment in development for use with 

digital cinema that would be necessary 

to exhibit closed captioned movies or 

movies with video description? If so, is 

that equipment included in the general 

cost of the conversion to digital cinema 

or is an additional fee imposed? If an 

additional fee is imposed, please 

provide details. Are the costs different 

for small businesses? If so, why? What 

are they? 

Question 17. Are there any other 

technical requirements that the 

Department should consider for 

inclusion in any regulation? If so, please 

provide details. 

D. Notice Requirements 

Question 18. Should the Department 

include a requirement that movie 

theater owners and operators establish a 

system for notifying individuals with 

disabilities in advance of movie 

screenings as to which movies and 

shows at its theaters provide captioning 

and video description? If so, how 

should such a requirement be 

structured? For example, should the 

Department require movie theater 

owners and operators to include, in 

their usual movie postings in the 

newspaper, on telephone recordings, 

and on the Internet, a notation or some 

other information that a movie is 

captioned, the type of captioning 

provided, or that the movie has video 

description? Should the Department 

require movie theater owners and 

operators to establish a procedure or 

method for directing individuals with 

sensory disabilities to where in each 

movie theater they should go to obtain 

any necessary captioning and video 

description equipment? Should movie 

theater owners and operators have the 

discretion to determine what 

notification procedure or method is 

most appropriate or should the 

Department specify how and where 

individuals with disabilities can obtain 

such equipment at each theater? What 

are the costs for these types of 

notifications? Are there any alternative 

types of notifications possible? Are 

these costs different for small 

businesses? If so, why? What are they? 

E. Training 

Question 19. Should the Department 

consider including a training 

requirement for movie theater 

personnel? Should the Department 

require that movie theater owners and 

operators ensure that at least one 

individual working any shift at which a 

captioned or video described movie is 

being screened be trained on how any 

captioning and video description 

equipment operates and how to convey 

that information quickly and effectively 

to an individual with a disability who 

seeks help in using that equipment? 

What are the costs and burdens to 

implementing such a training 

requirement? Are these costs different 

for small businesses? If so, why? What 

are they? Would written and recorded 

explanations of how the equipment 

works be a better alternative? 

F. Cost and Benefits of Movie 

Captioning and Video Description 

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 

exceeding $100 million annually or that 

are expected to have a significant 

economic effect on a substantial number 

of small entities or non-federal 

governmental jurisdictions (such as 

State, local, or tribal governments). See, 

e.g., Regulatory Flexibility Act of 1980, 

5 U.S.C. 603–04 (2006); E.O. 13272, 67 

FR 53461 (Aug. 13, 2002); E.O. 12866, 

58 FR 51735 (Sept. 30, 1993), as 

amended by E.O. 13497, 74 Fed. Reg. 

6113 (Jan. 30, 2009); OMB Budget 

Circular A–4, http:// 

www.whitehouse.gov/OMB/circulars/ 

a004/a-4.pdf (last visited June 5, 2010). 

Nonetheless, one of the purposes of 

this ANPRM is to seek public comment 

on various topics relating to captioning 

and video description, including 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
43476 Federal Register / Vol. 75, No. 142 / Monday, July 26, 2010 / Proposed Rules 

perspectives from stakeholders 

concerning the benefits and costs of 

revising the Department’s title III 

regulation to ensure the accessibility of 

movies (from both a quantitative and 

qualitative perspective), particularly 

from members of the disability 

community, industry, and governmental 

entities. The Department thus asks for 

information so that the Department can 

determine whether such a proposed rule 

(1) should be deemed an economically 

‘‘significant regulatory action’’ as 

defined in section 3(f) of E.O. 12866; or 

(2) would have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act and, if so, 

consider suggested alternative 

regulatory approaches to minimize any 

such impact. 

Consistent with the Regulatory 

Flexibility Act of 1980 and Executive 

Order 13272, the Department must 

consider the impacts of any proposed 

rule on small entities, including, in 

pertinent part, small businesses and 

small nonprofit organizations. See 5 

U.S.C. 603–04 (2006); E.O. 13272, 67 FR 

53461 (Aug. 13, 2002). The Department 

will make an initial determination as to 

whether any rule it proposes is likely to 

have a significant economic impact on 

a substantial number of small entities, 

and if so, the Department will prepare 

an initial regulatory flexibility analysis 

analyzing the economic impacts on 

small entities and regulatory 

alternatives that reduce the regulatory 

burden on small entities while 

achieving the goals of the regulation. In 

response to this ANPRM, the 

Department encourages small entities to 

provide cost data on the numbers of 

small entities that may be impacted by 

this rule, the potential economic impact 

of adopting a specific requirement for 

captioning and video description and 

recommendations on less burdensome 

alternatives, with cost information. 

Question 20. The Small Business 

Administration size standard for small 

movie theatres is $7 million dollars in 

annual gross revenues. Does the public 

have estimates of the numbers of small 

entities that may be impacted by future 

regulation governed by this ANPRM? 

How many small entities presently 

provide movie captioning or video 

description? How many small entities 

already have, or have plans to convert 

to, digital cinema? How many small 

entities presently have, or plan to 

convert to, digital sound systems? How 

much would it cost each small entity to 

provide movie captioning and video 

description technology using digital 

sound? How much would it cost each 

small entity to provide movie 

captioning or video description if the 

entity converted to digital cinema? 

Question 21. Currently, what are the 

general costs per movie theater owner or 

operator to display movies with closed 

captioning? How many small entities 

offer this feature? What are the general 

costs to small entities to display movies 

with open or closed captioning? For all 

entities, is that figure per auditorium, 

per facility, or per company? Do these 

costs change for showing IMAX or 3D 

films with captions? Are there any costsharing or cost-allocation agreements 

that help mitigate these costs for movie 

theater owners or operators? Is most or 

all of this expense a one-time fee? If not, 

please explain. 

Question 22. Currently, what are the 

general costs per movie theater owner or 

operator to display movies with video 

description? How many small entities 

offer this feature? What are the general 

costs to small entities to display movies 

with video description? For all entities, 

is that figure per auditorium, per 

facility, or per company? Are there any 

cost-sharing or cost-allocation 

agreements that help mitigate these 

costs for movie theater owners or 

operators? Is most or all of this expense 

a one-time fee? If not, please explain. 

Question 23. Currently, what are the 

general costs to convert to digital 

cinema? Are the costs different for small 

entities? If so, why? What are the costs 

for small entities? Is that figure per 

auditorium, per facility, or per 

company? Are there cost-sharing or 

cost-allocation agreements that help 

mitigate these costs for movie theater 

owners or operators? 

Question 24. What impact will the 

measures being contemplated by the 

Department requiring captioning and 

video description of movies have on 

small entities? Please provide 

information on: (a) Capital costs for 

equipment needed to meet the 

regulatory requirements; (b) costs of 

modifying existing processes and 

procedures; (c) any effects to sales and 

profits, including increases in business 

due to tapping markets not previously 

reached; and (d) changes to market 

competition as a result of the proposed 

rule. 

Question 25. Should any category or 

type of movie theater be exempted from 

any regulation requiring captioning or 

video description? For example, the 

Department now considers it likely that 

drive-in theaters will not be subject to 

this rule because the Department is not 

aware of any currently available 

technology that would enable closed 

captioning or video description of 

movies shown in drive-in theaters. Are 

there other types of movie facilities that 

should be exempted and why? 

Question 26. If an exemption is 

provided, how should such an 

exemption be structured? Should it be 

based on the size of the company? To 

determine size, should the Department 

consider (a) using the Small Business 

Size Standard of $7 million dollars in 

annual gross revenue so that movie 

theater owners who fall within those 

parameters should be exempt?; (b) using 

factors such as whether the movie 

theater owner is an independent movie 

house (not owned, leased, or operated 

by, a movie theater chain), or small art 

film house in order to be exempt?; or (c) 

using some other formula or factors to 

determine if a movie theater owner 

should be exempt? Should the 

Department consider the establishment 

of different compliance requirements or 

timetables for compliance for small 

entities, independent movie houses, or 

small art film houses to take into 

account the resources available to small 

entities? What are other alternatives for 

small businesses, independent move 

houses, or small art film houses that 

would minimize the cost of future 

regulations? 

Dated: July 21, 2010. 

Thomas E. Perez, 

Assistant Attorney General, Civil Rights 

Division. 

[FR Doc. 2010–18337 Filed 7–22–10; 4:15 pm] 

BILLING CODE 4410–13–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[SATS No. MT–030–FOR; Docket ID No. 

OSM–2009–0007] 

Montana Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Proposed rule; reopening and 

extension of public comment period on 

proposed amendment. 

SUMMARY: We are announcing receipt of 

revisions pertaining to a previously 

proposed statutory amendment to the 

Montana regulatory program 

(hereinafter, the ‘‘Montana program’’) 

under the Surface Mining Control and 

Reclamation Act of 1977 (‘‘SMCRA’’ or 

‘‘the Act’’). Montana revised its original 

amendment proposal to remain 

consistent with SMCRA and Office of 

Surface Mining Reclamation and 

Enforcement (‘‘OSM’’) policy. The 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1