Seyfarth’s ADA Title III Team — along with many businesses and disability advocates — has closely monitored the status of the Justice Department’s (DOJ) proposed website regulations since the DOJ started its process in September 2010. We were surprised to hear NPR’s March 7 report by Todd Bookman that the DOJ is “scheduled to release regulations this month”. Bookman did not provide any further specificity as to which regulations are expected to issue, or reveal the source of this information, leaving all who have been closely following the regulations perplexed.
As we have reported, DOJ has been working on two sets of website regulations: One applicable to state and local governments and another for public accommodations (i.e., private entities that do business with the public). The proposed website regulations for state and local governments were slated to issue in December 2014, but did not. Those proposed regulations have been under review at the Office of Management and Budget (OMB) since July 2014. OMB is the last stop for all regulations before they are published. Thus, we have to assume that the NPR report is referring to these state and local government website proposed regulations, which could come out of OMB review for publication any day.
We seriously doubt that the NPR story was referring to proposed regulations for public accommodations websites for two reasons: First, DOJ’s last official projected date for these proposed regulations is June 2015. Second, DOJ has not yet even submitted any proposed regulations for public accommodations websites to OMB for its mandatory review and approval. Before publication, OMB must review the proposed rule to ensure it is consistent with applicable law, the President’s priorities, and the principles set forth in Executive Order 12866. The review also ensures that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. Executive Order 12866 also requires agencies to calculate the cost and benefit of the every proposed and final regulation. For example, if the proposed rule prohibits businesses from posting content on their websites that is not accessible to individuals with disabilities (e.g., videos that do not have captioning for the deaf or audio descriptions for the blind), OMB would have to consider whether such a rule would cause businesses to limit the amount of content that they decide to make available on the Internet.
Our take on the timing of the proposed regulation for public accommodations websites is consistent with what we heard last week at CSUN’s 30th Annual International Technology and Persons with Disabilities Conference. The Chief of the DOJ Disability Rights Section, Rebecca Bond, would not state when any website regulations would issue. Attorney Lainey Feingold, who was quoted in the NPR story, also said in her presentation that she did not know when any proposed regulations would come out. However, in both the NPR story and a previous story, Bookman made his March regulation-issuance prediction without naming a source for the information.
When issued, the proposed regulations for state and local government websites will likely provide some insight into the content of the proposed regulations for public accommodations websites that are due out in June. However, DOJ will have to address a host of issues in the latter set of regulations that will not be as relevant for state and local government websites.