Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.
For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, it appears that only the active and long-term matters receive a description and projected deadlines. The inactive matters appear on a PDF document under a link called " 2017 Inactive Actions".
The Agenda places the Department of Justice's rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information. Thus, as we had predicted, there will be no regulations about public accommodations or state and local government websites for the foreseeable future.
In the absence of website regulations, the courts are filling the void with a patchwork of decisions that often conflict with one another. The uncertain legal landscape has fueled a surge of lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible.
The placement of the website and all other pending ADA Title III rulemaking activities (medical equipment and furniture) on the Inactive list is part of the Administration's larger effort to reduce the number of regulations in development. The Administration touted the following accomplishments on the Agenda's homepage:
- Agencies withdrew 469 actions that had been proposed in the Fall 2016 Agenda;
- Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
- Economically significant regulations fell to 58 – about 50 percent fewer than Fall 2016;
- For the first time, agencies will post and make public their list of "inactive" rules.
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