DOJ Officially Pulls the Plug on Regulations Already on Life Support

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In a move that surprises no one, the Department of Justice (DOJ) has announced today, December 26, 2017, that it has officially withdrawn its two Advanced Notices of Proposed Rulemaking (ANPRM) related to website accessibility: one under Title II of the Americans with Disabilities Act (ADA) applicable to state and local governments and one under Title III applicable to private businesses open to the public. The DOJ’s purported basis for the withdrawal of these ANPRMs is to evaluate whether promulgating regulations about the accessibility of web information and services is “necessary and appropriate.”  Such evaluation “will be informed by additional review of data and further analysis.” The DOJ “will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”

This move follows the July 2017 decision to place the Title III regulations on the “inactive list” and puts an end to efforts that began with the initial release of the ANPRM in 2010. The current administration’s stated animosity toward regulations all but guaranteed today’s demise of the ANPRMs.

Key Takeaways for Website Owners and Operators

For owners and operators of websites, the withdrawal of these ANPRMs means continued uncertainty as to the benchmarks they must meet to comply with the ADA, if any. Courts will also remain untethered to any legal standards, and judicial opinions will lack uniformity from jurisdiction to jurisdiction. In short, the DOJ’s decision to withdraw the ANPRMs ensures a lack of guidance regarding compliance with the ADA in cyberspace for the foreseeable future.

Withdrawal of ANPRM on Equipment and Furniture Accessibility

In the same announcement, the DOJ also officially withdrew a previously-announced ANPRM that would have covered the accessibility of non-fixed equipment and furniture pursuant to Title II and Title III of the ADA. The DOJ had initiated a review of accessibility of non-fixed equipment and furniture on July 26, 2010, to consider possible changes to requirements under Title II and Title III to address the accessibility of non-fixed equipment and furniture to individuals with disabilities. As with the ANPRMs regarding website accessibility, the DOJ did not undertake any action regarding this ANPRM in the past seven years, placed this ANPRM on the “inactive list” in July 2017, and is now reevaluating “whether regulation of the accessibility of non-fixed equipment and furniture is necessary and appropriate.”

Key Takeaways for Owners and Operators of Places of Public Accommodation

The withdrawal of the ANPRM regarding the accessibility of non-fixed equipment and furniture will be welcome news to owners and operators of places of public accommodation. The DOJ’s decision to refrain from taking action confirmed that “there are currently no specific provisions in the ADA regulations that include standards governing the accessibility of equipment and furniture that are not fixed.” Unlike the withdrawal of the ANPRMs related to website accessibility, the withdrawal of the equipment and furniture ANPRM confirmed the lack of ambiguity on this topic, and will provide certainty to owners and operators of places of public accommodations that non-fixed equipment and furniture on their premises are not subject to any standards.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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