On January 22, 2009, the Department of Justice (DOJ) withdrew its draft final ADA rules from review by the Office of Management and Budget (OMB). This action is consistent with the Obama Administration’s memorandum to agencies issued on January 20 — the new President’s first day in office. But it may also mean significant changes are in store for the rules before they’re issued.

In June 2008 DOJ had published proposals to amend its 1991/1994 regulations under both titles II and III of the Americans with Disabilities Act (ADA). After considering more than 5000 public comments, DOJ sent revised rules in October to OMB for clearance, which is required before final publication.

No one knows what the draft final rules said or how they might have differed from the proposals. But the June versions generated significant controversy over a variety of issues: “safe harbors” for the first time for both private and public entities, the new accessibility standards, what “counts” as a service animal, how program accessibility is determined, and others.

The January 20 memo — from White House Chief of Staff Rahm Emanuel — had directed that all agencies withdraw from OMB any regulations that had not been published in the Federal Register so that they could be reviewed and approved by an agency head appointed or designated by the new President.

DOJ announced this action on January 26, 2009, on its web site, adding that “Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act. Withdrawal of the draft final rules does not affect existing ADA regulations. Title II and title III entities must continue to follow the Department’s existing ADA regulations, including the ADA Standards for Accessible Design.” The Department now has several options: review the proposals internally and send a draft final rule to OMB again, with or without major changes; re-open the comment period on the initial proposals; or revise the proposal and publish a new version for public comment.

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