Seyfarth Synopsis: An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.
President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process. The likelihood of such a proposed regulation being issued now is virtually non-existent.
Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”. This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.
The EO directs all federal agencies to:
- Identify at least two existing regulations to be repealed for each new regulation;
- Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
- Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.
The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel. It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions. The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”. We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA. It is unclear what, if any, impact this EO may have on the Title II regulatory effort.
While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost. Though some may think that businesses are better off with no regulations on this subject, we disagree. The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply. This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.