The U.S. Department of Justice (DOJ) is planning to revise its Americans with Disabilities Act (ADA) regulations in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet accessible to individuals with disabilities.  To that end, the DOJ will issue an advanced notice of proposed rulemaking (ANPRM) (pdf) to solicit comments as to how it should craft such regulations.  The agency is also considering drafting regulations that would establish web accessibility for programs and services provided via the Internet by state and local governments. 

 As described in the ANPRM, Title III of the ADA prohibits discrimination on the basis of disability in the activities of “places of public accommodation.”  “Places of public accommodation” are private entities whose operations affect commerce and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors’ offices.  Title III also requires newly constructed or altered places of public accommodation – as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings) – to comply with the ADA Standards.  Title II governs accommodation requirements for state and local government entities.  The DOJ notes that when the ADA was enacted, the Internet did not yet play as pivotal a role in our everyday activities as it does today.  Therefore, the DOJ states that it is considering amending its Title II and Title III regulations “to require public entities and public accommodations that provide products or services to the public through websites on the Internet to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA.” 

In its request for comments on these future proposed regulations, the DOJ sets forth 19 specific questions, and asks commentors to refer to the questions by number in their responses.  With respect to accessibility standards, the queries include whether the agency should adopt the Web Content Accessibility Guidelines (WCAG) established by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C), or the existing website accessibility standards that federal government agencies use to comply with section 508 of the Rehabilitation Act.  The DOJ also asks whether the agency should instead adopt performance standards in place of any set of specific technical standards. 

With respect to coverage limitations, the DOJ is considering proposing explicit regulatory language to make clear that Web content created or posted by website users for personal, noncommercial use is not covered, even if that content is posted on the website of a public accommodation or a public entity.  The DOJ also seeks to exempt from the regulatory requirements “informal or occasional trading, selling, or bartering of goods or services by private individuals in the context of an online marketplace.”  In addition, the regulations would emphasize that a public accommodation or public entity would not be required to ensure the accessibility of websites that it does not operate or control, but that are linked to its website.  However, the entity may be held to the accessibility requirements if it requires users of its website to use another website in order to take part in its goods and services, such as having users process their payments through another website.  The DOJ seeks feedback on these and other proposed coverage limitations.

The ANPRM also poses a number of questions dealing with compliance issues, such as:

• What resources and services are available to public accommodations and public entities to make their websites accessible?
• Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible?
• Given that most websites today provide significant amounts of services and information in a dynamic, evolving setting that would be difficult, if not impossible, to replicate through alternative, accessible means, to what extent can accessible alternatives still be provided?

Of significant importance to many places of public accommodation, the ANPRM is soliciting input on when and how any proposed rule should take effect, and what would be the estimated cost to businesses that must comply with these new requirements. 

Responses to the DOJ’s inquiries and other comments must be made within 180 days of the ANPRM’s publication in the Federal Register, which was on  July 26, 2010.  All comments must include the regulator identification number (RIN):  1190-AA61, or Docket ID Number 110.  Written comments may be mailed to: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885.  Hand-delivered or overnight comments may be brought to:  Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Suite 4039, Washington, D.C. 20005.  Alternatively, comments may be submitted electronically at the federal eRulemaking portal:  www.regulations.gov.