By: Minh Vu

iStock_000016636778MediumIn late December, nine Democratic senators (Edward J. Markey (D-Mass), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.)) sent a joint letter to the Office of Management and Budget (OMB) requesting that office “complete its review” of the Department of Justice’s (DOJ) “Advanced Notice of Proposed Rulemaking” (ANPRM) for public accommodations websites, online systems, and other information and communication technologies (ICT).

While the letter’s message is one with which everyone watching the issue can agree, we found the request rather odd because OMB reviewed the ANPRM before it was published in 2010. There is nothing more for OMB to do with that document. After OMB’s review, the ANPRM published in September 2010 and the public submitted comments to DOJ for consideration by early 2011.

The next step in the regulatory process is for DOJ to issue a Notice of Proposed Rulemaking (NPRM). The NPRM would contain the actual language of the proposed rule. The DOJ must submit the NPRM to OMB for review before the NPRM is announced to the public in the Federal Register. Though we have been waiting for this step since 2011, DOJ has not yet submitted to OMB an NPRM that addresses public accommodations websites or ICT. We know this because OMB publicly announces on its website proposed regulations that are under review in its office, which it has not done for a public accommodations website/ICT NPRM.

Procedural clarifications aside, the letter makes clear that these Senators share the frustration of businesses and advocacy groups alike over DOJ’s failure to provide clear and binding regulations on the issue of website and ICT accessibility in a timely fashion. The Administrative Procedure Act requires DOJ to follow the legally-prescribed public notice and comment process in issuing regulations. Five years have passed since DOJ issued the ANPRM stating that it would issue regulations but we still have no proposed rules. Instead, DOJ has chosen to pursue an aggressive enforcement program in which it has pressured businesses to make their websites accessible. The plaintiff’s bar has also increasingly begun follow DOJ’s lead and take legal action against businesses that may have postponed making accessibility changes to their websites until DOJ issues a final rule. The number of demand letters and lawsuits concerning allegedly inaccessible websites has surged in the past six months.

In their letter, the Senators urge the administration to adopt the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 level AA as the legal standard for accessible public accommodations websites, and then went one step further: They insisted that in addition to conforming with WCAG 2.0 level AA, public accommodations should also be required to make further reasonable modifications on a “case-by-case” basis to ensure access for individual website users who may still have problems accessing a WCAG 2.0 level AA conforming website unless they can demonstrate that doing so would be an undue burden. (Those who are familiar with the practical challenges of making a website conform with WCAG 2.0 level AA and keeping it that way should be cringing at this thought.) Finally, the Senators urged the Administration to make clear in the proposed rule that the websites of online-only businesses are also covered by Title III of the ADA (contrary to the law in the Ninth Circuit Court of Appeals, as we’ve previously reported) and must be accessible.

We seriously doubt that the Senators’ letter will do much to expedite the glacial pace of this rulemaking, but if we see any change in the pace we will report it to you here.

Edited by Kristina Launey