June 16, 2025
Mr. David Taggart U.S. Department of Energy
Office of the General Counsel, GC-1 1000 Independence Avenue SW Washington, DC 20585-0121
Filed via regulations.gov
RE: Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities (DOE-HQ-2025-0015) and Rescinding Regulations Related to Nondiscrimination in Federally Assisted Programs or Activities (General Provisions) (DOE-HQ-2025-0024)
Dear Mr. Taggart:
The American Foundation for the Blind (AFB) is a national nonprofit that creates equal opportunities and expands possibilities for people who are blind, have low vision, and are deafblind through advocacy, thought leadership, and strategic partnerships. Thank you for the opportunity to respond to the direct final rules issued with regard to nondiscrimination in new construction and employment.
We oppose these rules and the use of a direct final rule to change regulations that affect the rights of people with disabilities. These rules are not uncontroversial, they are not needed immediately, nor are they routine. Furthermore, a notice and comment procedure would not be “impracticable, unnecessary, or contrary the public interest,” so these rules do not meet the criteria for a “good cause” exemption under 5 U.S.C. § 553(b). Indeed, the public interest should be to expand, not remove, access for the more than 44 million people with disabilities in the United States. The rules should be withdrawn, and although we disagree that any changes are needed, if there is justification for changes, any changes to federal disability or civil rights regulations should proceed through a full notice-and-comment procedure.
These direct rules are likely to limit opportunities for people with disabilities. The presumption that federal civil rights laws only prohibit “intentional discrimination” is incorrect. It is commonly established that people often do not demonstrate animus against people with disabilities or other protected groups even when engaging in actions that are discriminatory. For example, sometimes people who are blind may be told that they are not going to be hired simply because they are blind (which is intentional discrimination). Often, however, they cannot compete against other employees on a level playing field because the company unintentionally purchased inaccessible hiring and recruiting software or failed to provide an accessible and navigable interview environment. The federal government, and the Department of Energy in particular, should sustain long standing approaches to nondiscrimination law and regulation that carefully weigh the needs of people with disabilities or other protected groups against reasonable requirements on employers or service providers.
Removing the requirements for new construction to be accessible in 10 CFR 1040.73 would substantially limit the opportunities available to people with disabilities and reduce access to employment and to participation in federally assisted programming. This longstanding provision of the regulation requires facilities to be accessible to and usable by people with disabilities, and it assists recipients by clarifying what it means to construct an accessible and usable facility. Indeed, the “elimination of architectural barriers was one of the central aims of the [Rehabilitation] Act.” Alexander v. Choate, 469 U.S. 287, 297 (1985). Both the requirement to provide accessible facilities and the standards for creating those facilities are necessary.
Standards for new construction are vitally important for ensuring that people with disabilities can access facilities and programs provided by recipients of federal assistance. Blind people benefit from the safety provided by standards that limit protruding or overhanging objects and that provide for tactile warnings in hazardous areas as well as from the independence provided by accessible signage. These are just a few examples of how clear standards benefit people with disabilities.
The proposed rules would encourage construction of new buildings that are inaccessible to people with disabilities, in contravention of longstanding and established law going back to the Section 504 coordination regulations in 1978. History has shown a significant positive benefit to ensuring that people with disabilities have access to workplaces, services, and programs, which is fundamental to preventing discrimination. As such, this proposed regulation would reverse decades of established and accepted practice.
Removing requirements for the accessibility of new construction would harm people with disabilities, and it simply does not make sense because most architects, engineers, and building developers are versed in the standards and regularly incorporate them into their design, resulting in relatively small effects on overall project design and cost. If this rule goes into effect, recipients will still be prohibited from discriminating against people with disabilities, including in facility construction, but those who do not follow the standards may ultimately discover that they must remediate the accessibility of their buildings to avoid excluding people with disabilities or causing undue harm. Retrofitting accessibility costs far more than building new construction accessibly. Thus, those who are covered by the rule and the construction professionals who design and build new buildings benefit from clearly understanding what it means to not discriminate on the basis of disability.
Moreover, transition plans, such as those required in 10 CFR 1040.72(c) and (d) continue to have relevance for recipients of federal assistance and other covered entities under disability rights as they seek to proactively account for the accessibility of their programs and facilities and to plan to address issues that may be challenging to address all at once. Retaining the provisions for transition plans provides clear guidance to recipients about a well-established and useful means of proactively complying with the rule and preventing discrimination against people with disabilities. Retaining this provision also ensures that any entity with an existing transition plan remains committed to removing any remaining barriers.
Furthermore, we oppose changes to the regulations that may reduce access to written materials in the language that people with disabilities need to access information. This rulemaking seeks to eliminate language requiring recipients of federal assistance to determine whether the people served by the program may need materials in another language (including braille) and to take “reasonable steps” to provide information in that language. Presumably, this would also include plain language in addition to braille. Braille and plain language are vitally important to many people with disabilities and enable them to access information easily. Braille is often a first choice for written materials because it allows readers to review complex information more easily than by audio, and braille is essential for many DeafBlind people who cannot hear an audio format.
The rules that the Department seeks to remove are the subject of careful compromise and consideration by Congress and numerous federal agencies. In order to advance the goals of Section 504 of the Rehabilitation Act, there must be clear regulations about new construction, alterations, and effective communication. We urge you to withdraw this rulemaking.
If you have any questions about this issue, please contact Sarah Malaier.
Sincerely,
Stephanie Enyart Chief Public Policy and Research Officer
