[Athen] DOJ Withdraws Title II Notice of Proposed Rulemaking,

Laurie Vasquez vasquez at sbcc.edu
Tue May 3 13:01:05 PDT 2016

Web Reg “Do Over?”: DOJ Withdraws Title II Notice of Proposed Rulemaking,
Issues Supplemental Advanced Notice Seeking Further Comments

By Kristina M. Launey <http://www.seyfarth.com/KristinaLauney> and Minh Vu
<http://www.seyfarth.com/MinhVu> on May 2nd, 2016 Posted in Department of
Justice <http://www.adatitleiii.com/doj/>

*Seyfarth Synopsis: **Public entities and private businesses have been
waiting for years – since 2010 – for the Department of Justice to issue
regulations setting a standard for website accessibility. The DOJ has
announced that it is stepping backward rather than moving forward in that
process, withdrawing its Notice of Proposed Rulemaking on Title II
regulations applicable to public entities, and issuing a Supplemental
Notice of Proposed Rulemaking seeking further comments and input.*

We’ve been anxiously awaiting the Department of Justice’s (“DOJ”) issuance
of Title II public entity website accessibility regulations – as a
precursor to Title III regulations that would apply to businesses.
Apparently the wait will continue. On Friday the DOJ *announced
<http://www.ada.gov/regs2016/sanprm_statement.html>* that on April 28,
2016, it withdrew its Notice of Proposed Rulemaking (“NPRM”) titled
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities (RIN
1190-AA65). DOJ had submitted the NPRM to the Office of Management and
Budget (“OMB”) for review pursuant to Executive Order 12866 on *July 9,

DOJ also issued a *Supplemental Advance Notice of Proposed Rulemaking
<http://www.ada.gov/regs2016/sanprm.html>* (“SANPRM”) titled
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities. Its
stated intent with the SANPRM is to solicit additional public comment on
various issues to help DOJ “shape and further its rulemaking efforts,”
citing evolutions (availability, less expensive, more widely used) in the
internet, accessibility tools and assistive technologies in the six years
since DOJ issued its 2010 Advanced Notice of Proposed Rulemaking (“ANPRM”)
as the reason for this redux. DOJ stated its expectation that public
comments on the SANPRM “will be more detailed and focused than those
received in response to its original 2010 ANPRM.” As one commentator in
the web accessibility community characterized the action: “DOJ:

Because the web’s changed in the SIX YEARS we’ve been delaying regulations,
we’re going to TOTALLY START OVER!”

The DOJ offered examples of what it seeks in the SANPRM:

- More specific information relating to the potential application of
technical accessibility requirements to the web sites of public entities
under title II of ADA.
- Information on the appropriateness of setting alternative requirements
for small public entities.
- Precise information on the costs and benefits of web accessibility
that will aid in its preparation of a regulatory impact analysis.
- More information about specific benefits, including benefits to
persons with particular types of disabilities, and input on how to measure
the benefits of web accessibility.
- More information about the current level of accessibility of public
entities’ web sites, including the experiences of people with disabilities
accessing public entities’ web sites.
- Specific data on the costs of web accessibility and suggestions about
how to measure those costs.

In addition to the SANPRM, the DOJ stated its intent to conduct research
and studies to better understand the benefits and costs of a Web
accessibility regulation – as if, after all this work, it may decide a
regulation governing web accessibility may cost more than the benefit it
would bring?

DOJ concludes its press release on this shocking development by noting that
“web accessibility continues to remain a critical component of public
entities’ obligation to provide equal access to their programs, services,
and activities under the ADA.”

This will no doubt have an effect on the development of Title III
regulations as well.
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