The U.S. Department of Energy (DOE) tried to bulldoze through a rule change without the standard public comment period. It wanted to change a key disability rights law, specifically Section 504 of the Rehabilitation Act, rescinding requirements that all federal buildings be accessible and stipulating specific standards that needed to be met.
Standard practice to update regulations under federal law is that any major change in policy be subject to a notice-and-comment period, after which the department or agency would consider the comments and adjust or abandon the rule as necessary based on the input. This process can go through multiple iterations and take years. However, minor changes, like redesigning an agency logo or shuffling boxes on an organizational chart, can be done on an expedited basis as a "direct final rule."
In May, DOE claimed this was not a substantive change, and so this would be a "direct final rule"; the notice-and-comment would be dispensed with and the rule would go into effect on July 15. There was, however, a shorter period where stakeholders could submit comments ending in mid-June, and should the department receive an unspecified number of "significant adverse comments" the implementation would be postponed for further study.
Bluntly, DOE was trying to pull a fast one and was hoping no one would notice until the rule was in place and hard to undo. If this worked, they might have adopted this tactic across the executive branch.
Well, it didn't work. The disability community mobilized rapidly and DOE received over twenty thousand significant adverse comments within a matter of days, one from STIC among them, arguing first of all that the change was very substantive, and second that it was very wrong and that accessibility standards must be maintained. The flood of comments induced DOE to relent and delay implementation until at least September 12 to consider the public response.
This is a victory for the civil rights of the disability community, but alas, not a final one. DOE must review the adverse comments and judge their merit; if they find them wanting, they may still seek to implement the rule in September. We shall have to remain vigilant. However, we expect it is more likely that DOE delayed rather than fully withdrew the rule change to avoid suffering such a conspicuous defeat in full, and that they will quietly withdraw the change on a sleepy Friday in August, minimizing the shame.
Advocacy works. Thank you for all you do to help ensure an accessible world for all Americans.