Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64257 

DEPARTMENT OF JUSTICE (DOJ) 

Statement of Regulatory Priorities 

The highest priority of the 

Department is to protect America 

against acts of terrorism, both foreign 

and domestic, within the letter and 

spirit of the Constitution. Without ever 

relaxing in the fight against terrorism, 

the Department is also reinvigorating its 

traditional missions by embracing its 

historic role in fighting crime, 

protecting civil rights, preserving the 

environment, and ensuring fairness in 

the market place. The Department is 

working to ensure the fair and impartial 

administration of justice for all 

Americans, assist the agency’s state and 

local partners, and defend the interests 

of the United States according to the 

law. In addition to using investigative, 

prosecutorial, and other law 

enforcement activities, the Department 

is also using the regulatory process to 

better carry out the Department’s wideranging law enforcement missions. 

The Department of Justice’s regulatory 

priorities focus in particular on a major 

regulatory initiative in the area of civil 

rights. Specifically, the Department is 

planning to revise its regulations 

implementing titles II and III of the 

Americans With Disabilities Act (ADA). 

However, in addition to this specific 

initiative, several other components of 

the Department carry out important 

responsibilities through the regulatory 

process. Although their regulatory 

efforts are not singled out for specific 

attention in this regulatory plan, those 

components carry out key roles in 

implementing the Department’s antiterrorism and law enforcement 

priorities. 

Civil Rights 

In June 2008, the Department has 

published proposed rules to revise its 

regulations implementing titles II and III 

of the ADA to amend the ADA 

Standards for Accessible Design (28 CFR 

part 36, appendix A) to be consistent 

with the revised ADA accessibility 

guidelines published by the U.S. 

Architectural and Transportation 

Barriers Compliance Board (Access 

Board) on July 23, 2004. During FY 

2010, the Department expects to 

complete its work on these regulations 

and to further amend the Department’s 

regulations to implement the ADA 

Amendments Act of 2008, which took 

effect on January 1, 2009. 

Title II of the ADA prohibits 

discrimination on the basis of disability 

by public entities, and title III prohibits 

such discrimination by places of public 

accommodation and requires accessible 

design and construction of places of 

public accommodation and commercial 

facilities. In implementing these 

provisions, the Department of Justice is 

required by statute to publish 

regulations that include design 

standards that are consistent with the 

guidelines developed by the Access 

Board. In 2004, the Access Board 

revised its Accessibility Guidelines to 

address issues such as unique State and 

local facilities (e.g., prisons, 

courthouses), recreation facilities, play 

areas, and building elements 

specifically designed for children’s use 

that were not addressed in the initial 

guidelines, to promote greater 

consistency between the Federal 

accessibility requirements and the 

model codes, and to provide greater 

consistency between the ADA 

guidelines and the guidelines that 

implement the Architectural Barriers 

Act. Therefore, the Department 

proposed to adopt revised ADA 

Standards for Accessible Design that are 

consistent with the revised ADA 

Accessibility Guidelines. 

The Department has also proposed to 

revise its regulations implementing title 

II and title III (28 CFR parts 35 and 36) 

to ensure that the requirements 

applicable to new construction and 

alterations under title II are consistent 

with those applicable under title III, to 

update the regulations to reflect the 

current state of law, and to ensure the 

Department’s compliance with the 

Regulatory Flexibility Act, as amended. 

The Department’s proposed rules 

were the second step in a three-step 

process to adopt and interpret the 

Access Board’s revised and amended 

guidelines. The first step of the 

rulemaking process was an advance 

notice of proposed rulemaking, 

published in the Federal Register on 

September 30, 2004, at 69 FR 58768, 

which the Department believes 

simplified and clarified the preparation 

of the proposed rule. In addition to 

giving notice of the proposed rule that 

will adopt revised ADA accessibility 

standards, the advance notice raised two 

sets of questions for public comment, 

and proposed a framework for the 

regulatory analysis that will accompany 

the proposed rule. The second step of 

the rulemaking process was the 

publication of proposed rules that 

would adopt revised ADA accessibility 

standards and that will supplement the 

standards with specifications for 

prisons, jails, court houses, legislative 

facilities, building elements designed 

for use by children, play areas, and 

recreation facilities. The proposed rule 

also offered proposed answers to the 

interpretive questions raised in the 

advance notice and presented an initial 

regulatory assessment. 

The final step in the process will be 

the publication of a final rule. Changes 

mandated by the ADA Amendments Act 

will be addressed in a separate 

rulemaking. 

Other Department Initiatives 

1. Prison Rape Elimination 

The National Prison Rape Elimination 

Commission (NPREC) was created by 

Congress as a bipartisan panel as part of 

the Prison Rape Elimination Act of 2003 

(PREA.) In June 2009, the NPREC issued 

its report consisting of findings, 

conclusions and recommendations to 

the President, Congress, the United 

States Attorney General, and other 

Federal and State officials. The 

Department is in the process of 

reviewing the Commission’s 

recommendations, engaging 

stakeholders, and drafting regulations to 

adopt national standards for the 

detection, reduction, and punishment of 

prison rape, as provided for by the 

PREA. 

2. Federal Habeas Corpus Review 

Procedures in Capital Cases 

Pursuant to the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005, on December 11, 2008 the 

Department promulgated a final rule to 

implement certification procedures for 

states seeking to qualify for the 

expedited Federal habeas corpus review 

procedures in capital cases under 

chapter 154 of title 28 of the United 

States Code. On February 5, 2009, the 

Department published in the Federal 

Register a notice soliciting further 

public comment on all aspects of the 

December 2008 final rule. The 

Department is presently reviewing the 

comments it received in response to the 

February 2009 solicitation and will 

publish a summary and response as 

appropriate. 

3. Criminal Law Enforcement 

In large part, the Department’s 

criminal law enforcement components 

do not rely on the rulemaking process 

to carry out their assigned missions. The 

Federal Bureau of Investigation (FBI), 

for example, is responsible for 

protecting and defending the United 

States against terrorist and foreign 

intelligence threats, upholding and 

enforcing the criminal laws of the 

United States, and providing leadership 

and criminal justice services to Federal, 

State, municipal, and international 


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agencies and partners. Only in very 

limited contexts does the FBI rely on 

rulemaking. For example, the FBI is 

currently updating its National Instant 

Criminal Background Check System 

regulations to allow criminal justice 

agencies to conduct background checks 

prior to the return of firearms. 

The Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF) issues 

regulations to enforce the Federal laws 

relating to the manufacture and 

commerce of firearms and explosives. 

ATF’s mission and regulations are 

designed to: 

• Curb illegal traffic in, and criminal 

use of, firearms, and to assist State, 

local, and other Federal law 

enforcement agencies in reducing 

crime and violence; 

• Facilitate investigations of violations 

of Federal explosives laws and arsonfor-profit schemes; 

• Regulate the firearms and explosives 

industries, including systems for 

licenses and permits; 

• Assure the collection of all National 

Firearms Act (NFA) firearms taxes 

and obtain a high level of voluntary 

compliance with all laws governing 

the firearms industry; and 

• Assist the States in their efforts to 

eliminate interstate trafficking in, and 

the sale and distribution of, cigarettes 

and alcohol in avoidance of Federal 

and State taxes. 

ATF will continue, as a priority 

during fiscal year 2010, to seek 

modifications to its regulations 

governing commerce in firearms and 

explosives. ATF plans to issue final 

regulations implementing the provisions 

of the Safe Explosives Act, title XI, 

subtitle C, of Public Law 107-296, the 

Homeland Security Act of 2002 (enacted 

November 25, 2002). 

Combating the proliferation of 

methamphetamine and preventing the 

diversion of prescription drugs for illicit 

purposes are among the Attorney 

General’s top drug enforcement 

priorities. The Drug Enforcement 

Administration (DEA) is responsible for 

enforcing the Controlled Substances Act 

and its implementing regulations to 

prevent the diversion of controlled 

substances, while ensuring adequate 

supplies for legitimate medical, 

scientific, and industrial purposes. DEA 

accomplishes its objectives through 

coordination with State, local, and other 

Federal officials in drug enforcement 

activities, development and 

maintenance of drug intelligence 

systems, regulation of legitimate 

controlled substances, and enforcement 

coordination and intelligence-gathering 

activities with foreign government 

agencies. DEA continues to develop and 

enhance regulatory controls relating to 

the diversion control requirements for 

controlled substances. 

One of DEA’s key regulatory 

initiatives is its Notice of Proposed 

Rulemaking ‘‘Electronic Prescriptions 

for Controlled Substances’’ [RIN 1117- 

AA61]. This regulation would provide 

practitioners with the option of writing 

prescriptions for controlled substances 

electronically and permit pharmacies to 

receive, dispense, and archive electronic 

prescriptions for controlled substances. 

This regulation would provide 

pharmacies, hospitals, and practitioners 

with the ability to use modern 

technology for controlled substance 

prescriptions while maintaining the 

closed system of controls on controlled 

substances. 

In the past, drug traffickers have been 

able to easily obtain large quantities of 

the List I chemicals ephedrine, 

pseudoephedrine, and 

phenylpropanolamine, and others used 

in the clandestine production of 

methamphetamine from both foreign 

and domestic sources. One of DEA’s key 

regulatory initiatives has been 

implementation of the Combat 

Methamphetamine Epidemic Act of 

2005 (CMEA), which further regulates 

the importation, manufacture, and retail 

sale of ephedrine, pseudoephedrine, 

and phenylpropanolamine and drug 

products containing these three 

chemicals. CMEA imposes sales and 

purchase limits for over-the-counter 

ephedrine, pseudoephedrine, and 

phenylpropanolamine products at the 

retail level; provides for the 

establishment of aggregate and 

individual company import and 

manufacturing quotas; and limits 

importation to that which is necessary 

to provide for medical, scientific, and 

other legitimate purposes. CMEA also 

provides investigators with necessary 

identifying information regarding 

manufacturers and importers of these 

chemicals. Regulations pertaining to 

implementation of CMEA include, but 

are not limited to: 

• ‘‘Retail Sales of Scheduled Listed 

Chemical Products; Self-Certification 

of Regulated Sellers of Scheduled 

Listed Chemical Products’’ [RIN 1117- 

AB05] 

• ‘‘Implementation of the Combat 

Methamphetamine Epidemic Act of 

2005; Notice of Transfers Following 

Importation or Exportation’’ [RIN 

1117-AB06] 

• ‘‘Elimination of Exemptions for 

Chemical Mixtures Containing the 

List I Chemicals Ephedrine and/or 

Pseudoephedrine’’ [RIN 1117-AB11] 

• ‘‘Registration Requirements for 

Importers and Manufacturers of 

Prescription Drug Products 

Containing Ephedrine, 

Pseudoephedrine, or 

Phenylpropanolamine’’ [RIN 1117- 

AB09] 

• ‘‘Removal of Thresholds for the List I 

Chemicals Pseudoephedrine and 

Phenylpropanolamine’’ [RIN 1117- 

AB10] 

The Federal Bureau of Prisons issues 

regulations to enforce the Federal laws 

relating to its mission: To protect 

society by confining offenders in the 

controlled environments of prisons and 

community-based facilities that are safe, 

humane, cost-efficient, and 

appropriately secure, and that provide 

work and other self-improvement 

opportunities to assist offenders in 

becoming law-abiding citizens. During 

the next 12 months, in addition to other 

regulatory objectives aimed at 

accomplishing its mission, the Bureau 

will continue its ongoing efforts to: 

streamline regulations, eliminating 

unnecessary language and improving 

readability; improve disciplinary 

procedures through a revision of the 

subpart relating to the disciplinary 

process; reduce the introduction of 

contraband through various means, such 

as clarifying drug and alcohol 

surveillance testing programs and 

protect the public from continuing 

criminal activity committed within 

prison; and enhance the Bureau’s ability 

to more closely monitor the 

communications of high-risk inmates. 

4. Immigration Matters 

On March 1, 2003, pursuant to the 

Homeland Security Act of 2002 (HSA), 

the responsibility for immigration 

enforcement and for providing 

immigration-related services and 

benefits such as naturalization and work 

authorization was transferred from the 

Justice Department’s Immigration and 

Naturalization Service (INS) to the 

Department of Homeland Security 

(DHS). However, the immigration judges 

and the Board of Immigration Appeals 

in the Executive Office for Immigration 

Review (EOIR)) remain part of the 

Department of Justice; the immigration 

judges adjudicate approximately 

300,000 cases each year to determine 

whether the aliens should be ordered 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64259 

removed or should be granted some 

form of relief from removal, and the 

Board has jurisdiction over appeals from 

those decisions, as well as other matters. 

Accordingly, the Attorney General has a 

continuing role in the conduct of 

removal hearings, the granting of relief 

from removal, and the detention or 

release of aliens pending completion of 

removal proceedings. The Attorney 

General also is responsible for civil 

litigation and criminal prosecutions 

relating to the immigration laws. 

In several pending rulemaking 

actions, the Department is working to 

revise and update the regulations 

relating to removal proceedings in order 

to improve the efficiency and 

effectiveness of the hearings in resolving 

issues relating to removal of aliens and 

the granting of relief from removal. 

On June 3, 2009, the Attorney General 

announced his intention to initiate a 

new rulemaking proceeding for 

regulations to govern claims of 

ineffective assistance of counsel in 

immigration proceedings. The 

Department is currently drafting 

regulations to further this goal. The 

Department is also drafting regulations 

pursuant to the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008 to take into 

account the specialized needs of 

unaccompanied alien children in 

removal proceedings. 

DOJ—Civil Rights Division (CRT) 

FINAL RULE STAGE 

89. NONDISCRIMINATION ON THE 

BASIS OF DISABILITY IN PUBLIC 

ACCOMMODATIONS AND 

COMMERCIAL FACILITIES (SECTION 

610 REVIEW) 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

5 USC 301; 28 USC 509; 28 USC 510; 

42 USC 12186(b) 

CFR Citation: 

28 CFR 36 

Legal Deadline: 

None 

Abstract: 

In 1991, the Department of Justice 

published regulations to implement 

title III of the Americans With 

Disabilities Act of 1990 (ADA). Those 

regulations include the ADA Standards 

for Accessible Design, which establish 

requirements for the design and 

construction of accessible facilities that 

are consistent with the ADA 

Accessibility Guidelines (ADAAG) 

published by the U.S. Architectural and 

Transportation Barriers Compliance 

Board (Access Board). In the time since 

the regulations became effective, the 

Department of Justice and the Access 

Board have each gathered a great deal 

of information regarding the 

implementation of the Standards. The 

Access Board began the process of 

revising ADAAG a number of years ago. 

It published new ADAAG in final form 

on July 23, 2004, after having published 

guidelines in proposed form in 

November 1999 and in draft final form 

in April 2002. In order to maintain 

consistency between ADAAG and the 

ADA Standards, the Department is 

reviewing its title III regulations and 

expects to propose, in one or more 

stages, to adopt revised ADA Standards 

consistent with the final revised 

ADAAG and to make related revisions 

to the Department’s title III regulations. 

In addition to maintaining consistency 

between ADAAG and the Standards, 

the purpose of this review and these 

revisions is to more closely coordinate 

with voluntary standards; to clarify 

areas which, through inquiries and 

comments to the Department’s 

technical assistance phone lines, have 

been shown to cause confusion; to 

reflect evolving technologies in areas 

affected by the Standards; and to 

comply with section 610 of the 

Regulatory Flexibility Act, which 

requires agencies once every 10 years 

to review rules that have a significant 

economic impact upon a substantial 

number of small entities. 

The first step in adopting revised 

Standards was an advance notice of 

proposed rulemaking that was 

published in the Federal Register on 

September 30, 2004, at 69 FR 58768, 

issued under both title II and title III. 

The Department believes that the 

advance notice simplified and clarified 

the preparation of the proposed rule. 

In addition to giving notice that the 

proposed rule will adopt revised ADA 

accessibility standards, the advance 

notice raised questions for public 

comment and proposed a framework for 

the regulatory analysis that 

accompanied the proposed rule. 

The adoption of revised ADAAG will 

also serve to address changes to the 

ADA Standards previously proposed in 

RIN 1190-AA26, RIN 1190-AA38, RIN 

1190-AA47, and RIN 1190-AA50, all of 

which have now been withdrawn from 

the Unified Agenda. These changes 

include technical specifications for 

facilities designed for use by children, 

accessibility standards for State and 

local government facilities, play areas, 

and recreation facilities, all of which 

had previously been published by the 

Access Board. 

The timetable set forth below refers to 

the notice of proposed rulemaking that 

the Department issued as the second 

step of the above described title III 

rulemaking. This notice proposed to 

adopt revised ADA Standards for 

Accessible Design consistent with the 

minimum guidelines of the revised 

ADAAG, and initiated the review of the 

regulation in accordance with the 

requirements of section 610 of the 

Regulatory Flexibility Act, as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA). 

Statement of Need: 

Section 504 of the ADA requires the 

Access Board to issue supplemental 

minimum guidelines and requirements 

for accessible design of buildings and 

facilities subject to the ADA, including 

title III. Section 306(c) of the ADA 

requires the Attorney General to 

promulgate regulations implementing 

title III that are consistent with the 

Access Board’s ADA guidelines. 

Because this rule will adopt standards 

that are consistent with the minimum 

guidelines issued by the Access Board, 

this rule is required by statute. 

Similarly, the Department’s review of 

its title III regulation is being 

undertaken to comply with the 

requirements of the Regulatory 

Flexibility Act, as amended by 

SBREFA. 

Summary of Legal Basis: 

The summary of the legal basis of 

authority for this regulation is set forth 

above under Legal Authority and 

Statement of Need. 

Alternatives: 

The Department is required by the ADA 

to issue this regulation. Pursuant to 

SBREFA, the Department’s title III 

regulation will consider whether 

alternatives to the currently published 

requirements are appropriate. 

Anticipated Cost and Benefits: 

The Access Board has analyzed the 

effect of applying its proposed 

amendments to ADAAG to entities 

covered by titles II and III of the ADA 

and has determined that they constitute 


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64260 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

a significant regulatory action for 

purposes of Executive Order 12866. 

The Access Board’s determination will 

apply as well to the revised ADA 

standards published by the Department. 

As part of its revised ADAAG, the 

Access Board made available in 

summary form an updated regulatory 

assessment to accompany the final 

revised ADAAG. The Department 

prepared an initial Regulatory Impact 

Analysis (RIA), pursuant to E.O. 12866, 

of the combined economic impact of 

changes contained in this proposed rule 

and in the companion NPRM to amend 

the Department’s title II regulation (RIN 

1190-AA46). The RIA incorporates the 

elements required for the Initial 

Regulatory Flexibility Analysis (IRFA) 

required by the Regulatory Flexibility 

Act, as amended. A summary of this 

RIA was published in the Federal 

Register at 73 FR 37009, 37042 (June 

30, 2008). The full analysis is available 

for public review on 

www.regulations.gov and on the 

Department’s ADA Home Page, 

www.ada.gov. A revised RIA will be 

made available to the public when the 

final rules are published. 

The preliminary RIA indicates that the 

proposed rules will have a net positive 

public benefit, i.e., the benefits will 

exceed the costs over the life of the 

rule. This concept is expressed as the 

discounted net present value (NPV) The 

RIA projects that the NPV will be 

between $7.5 billion (at a 7% discount 

rate) and $ 31.1 billion (at a 3% 

discount rate). The RIA also concludes 

that the combined effect of the 

proposed rules would not have a 

significant economic impact on a 

substantial number of small entities. 

Section 4(2) of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1503(2), 

excludes from coverage under that Act 

any proposed or final Federal 

regulation that ‘‘establishes or enforces 

any statutory rights that prohibit 

discrimination on the basis of race, 

color, religion, sex, national origin, age, 

handicap, or disability.‘‘ Accordingly, 

this rulemaking is not subject to the 

provisions of the Unfunded Mandates 

Reform Act. 

Risks: 

Without the proposed changes to the 

Department’s title III regulation, the 

ADA Standards will fail to be 

consistent with the ADAAG. 

Timetable: 

Action Date FR Cite 

ANPRM 09/30/04 69 FR 58768 

Action Date FR Cite 

ANPRM Comment 

Period End 

01/28/05 

ANPRM Comment 

Period Extended 

01/19/05 70 FR 2992 

ANPRM Comment 

Period End 

05/31/05 

NPRM 06/17/08 73 FR 34508 

NPRM Comment 

Period End 

08/18/08 

NPRM Correction 06/30/08 73 FR 37009 

Final Action 03/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses, Organizations 

Government Levels Affected: 

None 

Additional Information: 

RIN 1190-AA44, which will effect 

changes to 28 CFR 36 (the Department’s 

regulation implementing title III of the 

ADA), is related to another rulemaking 

of the Civil Rights Division, RIN 1190- 

AA46, which will effect changes to 28 

CFR 35 (the Department’s regulation 

implementing title II of the ADA). 

Agency Contact: 

John L. Wodatch 

Chief, Disability Rights Section 

Department of Justice 

Civil Rights Division 

950 Pennsylvania Avenue NW 

Washington, DC 20030 

Phone: 800 514–0301 

TDD Phone: 800 514–0383 

Fax: 202 307–1198 

RIN: 1190–AA44 

DOJ—CRT 

90. NONDISCRIMINATION ON THE 

BASIS OF DISABILITY IN STATE AND 

LOCAL GOVERNMENT SERVICES 

(SECTION 610 REVIEW) 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

5 USC 301; 28 USC 509 to 510; 42 USC 

12134; PL 101–336 

CFR Citation: 

28 CFR 35 

Legal Deadline: 

None 

Abstract: 

On July 26, 1991, the Department 

published its final rule implementing 

title II of the Americans With 

Disabilities Act (ADA). On November 

16, 1999, the U.S. Architectural and 

Transportation Barriers Compliance 

Board (Access Board) issued its first 

comprehensive review of the ADA 

Accessibility Guidelines (ADAAG), 

which form the basis of the 

Department’s ADA Standards for 

Accessible Design. The Access Board 

published an Availability of Draft Final 

Guidelines on April 2, 2002, and 

published the ADA Accessibility 

Guidelines in final form on July 23, 

2004. The ADA (section 204(c)) 

requires the Department’s standards to 

be consistent with the Access Board’s 

guidelines. In order to maintain 

consistency between ADAAG and the 

Standards, the Department is reviewing 

its title II regulations and expects to 

propose, in one or more stages, to adopt 

revised standards consistent with new 

ADAAG. The Department will also, in 

one or more stages, review its title II 

regulations for purposes of section 610 

of the Regulatory Flexibility Act and 

make related changes to its title II 

regulations. 

In addition to the statutory requirement 

for the rule, the social and economic 

realities faced by Americans with 

disabilities dictate the need for the rule. 

Individuals with disabilities cannot 

participate in the social and economic 

activities of the Nation without being 

able to access the programs and 

services of State and local governments. 

Further, amending the Department’s 

ADA regulations will improve the 

format and usability of the ADA 

Standards for Accessible Design; 

harmonize the differences between the 

ADA Standards and national consensus 

standards and model codes; update the 

ADA Standards to reflect technological 

developments that meet the needs of 

persons with disabilities; and 

coordinate future ADA Standards 

revisions with national standards and 

model code organizations. As a result, 

the overarching goal of improving 

access for persons with disabilities so 

that they can benefit from the goods, 

services, and activities provided to the 

public by covered entities will be met. 

The first part of the rulemaking process 

was an advance notice of proposed 

rulemaking, published in the Federal 

Register on September 30, 2004, at 69 

FR 58768, issued under both title II and 

title III. The Department believes the 

advance notice simplified and clarified 

the preparation of the proposed rule to 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64261 

follow. In addition to giving notice of 

the proposed rule that will adopt 

revised ADA accessibility standards, 

the advance notice raised questions for 

public comment and proposed a 

framework for the regulatory analysis 

that accompanied the proposed rule. 

The adoption of revised ADA Standards 

consistent with revised ADAAG will 

also serve to address changes to the 

ADA Standards previously proposed 

under RIN 1190-AA26, RIN 1190-AA38, 

RIN 1190-AA47, and RIN 1190-AA50, 

all of which have now been withdrawn 

from the Unified Agenda. These 

changes include technical 

specifications for facilities designed for 

use by children, accessibility standards 

for State and local government 

facilities, play areas, and recreation 

facilities, all of which had previously 

been published by the Access Board. 

The timetable set forth below refers to 

the notice of proposed rulemaking that 

the Department issued as the second 

step of the above-described title III 

rulemaking. This notice also proposed 

to eliminate the Uniform Federal 

Accessibility Standards (UFAS) as an 

alternative to the ADA Standards for 

Accessible Design. 

Statement of Need: 

Section 504 of the ADA requires the 

Access Board to issue supplemental 

minimum guidelines and requirements 

for accessible design of buildings and 

facilities subject to the ADA, including 

title II. Section 204(c) of the ADA 

requires the Attorney General to 

promulgate regulations implementing 

title II that are consistent with the 

Access Board’s ADA guidelines. 

Because this rule will adopt standards 

that are consistent with the minimum 

guidelines issued by the Access Board, 

this rule is required by statute. 

Similarly, the Department’s review of 

its title II regulations is being 

undertaken to comply with the 

requirements of the Regulatory 

Flexibility Act, as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA). 

Summary of Legal Basis: 

The summary of the legal basis of 

authority for this regulation is set forth 

above under Legal Authority and 

Statement of Need. 

Alternatives: 

The Department is required by the ADA 

to issue this regulation as described in 

the Statement of Need above. Pursuant 

to SBREFA, the Department’s title II 

regulation will consider whether 

alternatives to the currently published 

requirements are appropriate. 

Anticipated Cost and Benefits: 

The Administration is deeply 

committed to ensuring that the goals 

of the ADA are met. Promulgating this 

amendment to the Department’s ADA 

regulations will ensure that entities 

subject to the ADA will have one 

comprehensive design standard to 

follow. Currently, entities subject to 

title II of the ADA (State and local 

governments) have a choice between 

following the Department’s ADA 

Standards for title III, which were 

adopted for places of public 

accommodation and commercial 

facilities and which do not contain 

standards for common State and local 

government buildings (such as 

courthouses and prisons), or the 

Uniform Federal Accessibility 

Standards (UFAS). By developing one 

comprehensive standard, the 

Department will eliminate the 

confusion that arises when 

governments try to mesh two different 

standards. As a result, the overarching 

goal of improving access to persons 

with disabilities will be better served. 

The Access Board has analyzed the 

effect of applying its proposed 

amendments to ADAAG to entities 

covered by titles II and III of the ADA 

and has determined that they constitute 

a significant regulatory action for 

purposes of Executive Order 12866. 

The Access Board’s determination will 

apply as well to the revised ADA 

Standards published by the 

Department. 

As part of its revised ADAAG, the 

Access Board made available in 

summary form an updated regulatory 

assessment to accompany the final 

revised ADAAG. The Department 

prepared an initial Regulatory Impact 

Analysis (RIA), pursuant to E.O. 12866, 

of the combined economic impact of 

changes contained in this proposed rule 

and in the companion NPRM to amend 

the Department’s title III regulation 

(RIN 1190-AA44). The RIA incorporates 

the elements required for the Initial 

Regulatory Flexibility Analysis (IRFA) 

required by the Regulatory Flexibility 

Act, as amended. A summary of this 

RIA was published in the Federal 

Register at 73 FR 36964, 36996 (June 

30, 2008). The full analysis is available 

for public review on 

www.regulations.gov and on the 

Department’s ADA Home Page, 

www.ada.gov. A revised RIA will be 

made available to the public when the 

final rules are published. 

The preliminary RIA indicates that the 

proposed rules will have a net positive 

public benefit; i.e., the benefits will 

exceed the costs over the life of the 

rule. This concept is expressed as the 

discounted net present value (NPV) The 

RIA projects that the NPV will be 

between $ 7.5 billion (at a 7% discount 

rate) and $ 31.1 billion (at a 3% 

discount rate). The RIA also concludes 

that the combined effect of the 

proposed rules would not have a 

significant economic impact on a 

substantial number of small entities. 

The Access Board has made every effort 

to lessen the impact of its proposed 

guidelines on State and local 

governments but recognizes that the 

guidelines will have some federalism 

effects. These effects are discussed in 

the Access Board’s regulatory 

assessment, which also applies to the 

Department’s proposed rule. Section 

4(2) of the Unfunded Mandates Reform 

Act of 1995, 2 U.S.C. 1503(2), excludes 

from coverage under that Act any 

proposed or final Federal regulation 

that ‘‘establishes or enforces any 

statutory rights that prohibit 

discrimination on the basis of race, 

color, religion, sex, national origin, age, 

handicap, or disability.’’ Accordingly, 

this rulemaking is not subject to the 

provisions of the Unfunded Mandates 

Reform Act. 

Risks: 

Without this amendment to the 

Department’s ADA regulations, 

regulated entities will be subject to 

confusion and delay as they attempt to 

sort out the requirements of conflicting 

design standards. This amendment 

should eliminate the costs and risks 

associated with that process. 

Timetable: 

Action Date FR Cite 

ANPRM 09/30/04 69 FR 58768 

ANPRM Comment 

Period End 

01/28/05 

ANPRM Comment 

Period Extended 

01/19/05 70 FR 2992 

ANPRM Comment 

Period End 

05/31/05 

NPRM 06/17/08 73 FR 34466 

NPRM Comment 

Period End 

08/18/08 

NPRM Correction 06/30/08 73 FR 36964 

Final Action 03/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Governmental Jurisdictions 


erowe on DSK5CLS3C1PROD with RULES
64262 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

Government Levels Affected: 

Local, State 

Federalism: 

This action may have federalism 

implications as defined in EO 13132. 

Additional Information: 

RIN 1190-AA46, which will effect 

changes to 28 CFR 35 (the Department’s 

regulation implementing title II of the 

ADA), is related to another rulemaking 

of the Civil Rights Division, RIN 1190- 

AA44, which will effect changes to 28 

CFR 36 (the Department’s regulation 

implementing title III of the ADA). By 

adopting revised ADAAG, this 

rulemaking will, among other things, 

address changes to the ADA Standards 

previously proposed in RINs 1190- 

AA26, 1190-AA36, and 1190-AA38, 

which have been withdrawn and 

merged into this rulemaking. These 

changes include accessibility standards 

for State and local government facilities 

that had been previously published by 

the Access Board (RIN 1190-AA26) and 

the timing for the compliance of State 

and local governments with the curbcut requirements of the title II 

regulation (RIN 1190-AA36). In order to 

consolidate regulatory actions 

implementing title II of the ADA, on 

February 15, 2000, RINs 1190-AA26 

and 1190-AA38 were merged into this 

rulemaking and on March 5, 2002, RIN 

1190-AA36 was merged into this 

rulemaking. 

Agency Contact: 

John L. Wodatch 

Chief, Disability Rights Section 

Department of Justice 

Civil Rights Division 

950 Pennsylvania Avenue NW 

Washington, DC 20030 

Phone: 800 514–0301 

TDD Phone: 800 514–0383 

Fax: 202 307–1198 

RIN: 1190–AA46 

DOJ—Drug Enforcement 

Administration (DEA) 

FINAL RULE STAGE 

91. ELECTRONIC PRESCRIPTIONS 

FOR CONTROLLED SUBSTANCES 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

21 USC 802; 21 USC 821; 21 USC 827; 

21 USC 829; 21 USC 871(b) 

CFR Citation: 

21 CFR 1300; 21 CFR 1306; 21 CFR 

1311 

Legal Deadline: 

None 

Abstract: 

DEA is revising its regulations to 

establish the criteria that will allow 

DEA-registered practitioners to sign and 

transmit controlled substances 

prescriptions electronically. The 

regulations will also permit pharmacies 

to receive, dispense, and archive these 

electronic prescriptions. These 

regulations would not mandate the use 

of electronic prescriptions, but would 

establish the requirements that must be 

met by any registrant that wishes to 

issue or receive electronic prescriptions 

for controlled substances. The 

regulations would establish 

requirements that practitioners must 

meet when issuing electronic 

prescriptions, including requirements 

for the software applications used to 

issue those prescriptions; registrants 

would have to use only those software 

applications that meet the security 

requirements if they intend to sign, 

transmit, or process electronic 

prescriptions for controlled substances. 

The regulations would not apply to 

software used to create a prescription 

that is then printed and manually 

signed. These revised regulations 

would be in addition to, not a 

replacement of, the existing rules. 

Statement of Need: 

These regulations are needed to give 

pharmacies, hospitals, and practitioners 

the ability to use modern technology 

for controlled substance prescriptions, 

while maintaining the closed system of 

distribution of controlled substances 

dispensing. The regulations are 

required to ensure, to the extent 

possible, that non-registrants cannot 

gain access to electronic prescription 

software applications to issue illegal 

prescriptions and that legitimate 

prescriptions, once written, cannot be 

altered or repudiated. 

Summary of Legal Basis: 

The Controlled Substances Act (21 

U.S.C. 871(b) provides that the 

Attorney General, DEA by delegation, 

may promulgate and enforce any rules, 

regulations, and procedures deemed 

necessary for the efficient execution of 

the Attorney General’s functions, 

including general enforcement of the 

Controlled Substances Act. Specific 

legal authority for this regulation is 

provided above. 

Alternatives: 

DEA solicited comments on all aspects 

of its Notice of Proposed Rulemaking 

regarding this matter, and also sought 

specific information on a number of 

issues and topics. All comments 

received have been considered. DEA 

has addressed comments in its Final 

Rule. 

Anticipated Cost and Benefits: 

The estimated annualized cost of the 

Final Rule is $34 million (7 percent net 

present value), which covers the costs 

for practitioners, pharmacies, and 

application providers. 

Electronic prescriptions provide 

potential benefits in terms of reduced 

processing time, reduced callbacks, and 

fewer medication errors. These benefits 

of electronic prescriptions are not 

directly attributable to this rule except 

to the extent the rule facilitates 

implementation of electronic 

prescribing of controlled substances. 

Pharmacies will directly benefit from 

the rule as they will not be required 

to maintain paper copies of electronic 

prescriptions. Electronic prescriptions 

for controlled substances will also 

provide benefits as certain types of 

forgery or alteration of prescriptions 

may be less likely to occur. 

Risks: 

Were DEA not to promulgate these 

regulations, prescribing practitioners 

would not be permitted to sign and 

transmit electronic controlled 

substances prescriptions. Pharmacies 

would not be permitted to receive, 

dispense, and archive these electronic 

prescriptions. 

Timetable: 

Action Date FR Cite 

ANPRM 03/05/01 66 FR 13274 

NPRM 06/27/08 73 FR 36722 

NPRM Comment 

Period End 

09/25/08 

Final Rule 03/00/10 

Final Action Effective 05/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Additional Information: 

DEA-218 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64263 

URL For Public Comments: 

www.deadiversion.usdoj.gov 

Agency Contact: 

Mark W. Caverly 

Chief, Liaison and Policy Section 

Department of Justice 

Drug Enforcement Administration 

8701 Morrissette Drive 

Springfield, VA 22152 

Phone: 202 307–7297 

Email: dea.diversion.policy@usdoj.gov 

RIN: 1117–AA61 

BILLING CODE 4410–BP–S 


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