June 6, 2025
David Taggart
United States Department of Energy
Office of the General Counsel
1000 Independence Avenue SW, Room 5B-168
Washington, DC 20585
RE: Docket No. DOE-HQ-2025-0015, RIN 1903-AA24
Dear Mr. Taggart:
The National Federation of the Blind, the transformative membership and advocacy organization of blind Americans, appreciates the opportunity to comment on the direct final rule regarding Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities. In this direct final rule, the Department of Energy proposes to rescind its regulation, 10 C.F.R. § 1040.73, requiring new construction and alterations of facilities by recipients of federal funding to be accessible to people with disabilities. The Department concludes that the requirement is unnecessary and unduly burdensome. This conclusion is incorrect and therefore we urge the Department to withdraw this direct final rule.
The blind require certain accessibility features to maneuver in the built environment. Those features, including Braille and tactile signage on rooms and elevators, signage with large characters, color contrast, and consistent placement, cane detectable warnings of hazards, and restrictions on protruding objects, are incorporated in the Uniform Federal Accessibility Standards (UFAS), which are the accessibility standards referenced in § 1040.73 for new construction and alterations. Without these important features, blind people would be at risk of injury and would have to rely on strangers to find their way around federally funded facilities.
The Department relies on the general prohibition on discriminatory activities in 10 C.F.R. § 1040.71 as sufficing to ensure that newly constructed and altered facilities will be accessible to people with disabilities and, therefore, to conclude that § 1040.73 is unnecessary. Far from being unnecessary, § 1040.73 makes clear that the failure to construct or alter facilities to be accessible constitutes discrimination. Further, § 1040.73 specifies that the Uniform Federal Accessibility Standards meets the accessibility requirement.
Without § 1040.73, recipients of federal funds could construct and alter facilities to exclude people with disabilities. History, experience, and common sense all demonstrate that inaccessible buildings deny people with disabilities equal access to the programs and services conducted in those buildings. Only by requiring facilities to be newly constructed accessibly, and, when altered, to be altered accessibly, can federal funding recipients ensure they are not excluding people with disabilities from their programs and services.
The Department may be assuming there are other means by which federal funding recipients can provide access to their programs and services without ensuring their facilities are accessible. A few simple examples demonstrate that this is not so: an inaccessible hospital or medical provider cannot make its operating rooms, its MRI and other diagnostic equipment, and its specialized examination tables available in an accessible venue when a person with a disability becomes a patient.
Even its laboratory services and healthcare providers are not portable, as strict privacy protections apply. Nor can a school move its laboratories, auditorium stages, libraries, and computer equipment to accessible facilities when a student with a disability matriculates. And educating a student with a disability in an accessible facility separate from nondisabled peers would, itself, constitute discrimination.
Without the explicit requirements of § 1040.73, covered entities will be misled into believing they need not make their facilities accessible when, in fact, there is no other way to avoid discriminating against people with disabilities. As a result, they will violate the law and be forced to remediate accessibility barriers after construction is completed, likely at significant cost. At the same time, people with disabilities will be excluded from their programs and services and have no choice but to file lawsuits.
Nor is compliance with the nearly-50-year-old requirement of § 1040.73 burdensome. Studies show that accessibility accounts for a negligible percentage of total construction expense. See, e.g., Government Accountability Office, Briefing Report to Congressional Requesters: Persons with Disabilities: Reports on Costs of Accommodations, Appendix III (1990) (costs of accessibility in new construction range from negligible to 0.5 percent); Ratzka, “A Brief Survey of Studies on Costs and Benefits of Non-Handicapping Environments” (1994), (showing accessibility accounts for .006% to .13% of new construction cost). See also Ielegems and Vanrie, “The Cost of Universal Design for Public Buildings: Exploring a Realistic, Context-Dependent Research Approach” (2023), (showing individual accessibility features may reduce construction costs or increase them up to two percent).
Given the benefits to people with disabilities (not to mention people without disabilities who benefit from accessibility features, known as the “curb cut effect”), in terms of access to public services, education, health care, and employment, these costs can hardly be viewed as “undue.” Indeed, in issuing both the 1991 regulations and the 2010 regulations under the Americans with Disabilities Act, the Department of Justice determined that the benefits of new construction and alterations accessibility outweighed the costs. See https://archive.ada.gov.
Because the Department’s conclusion that § 1040.73 is unnecessary and burdensome is substantively incorrect and the Department’s proposal to rescind the rule does not meet the requirements for a direct final rule, the National Federation of the Blind believes this proposal must be withdrawn. Further, in light of the Department’s and the Department of Justice’s previous analyses concluding that the benefits of requiring covered entities to build and alter facilities accessibly far outweighed the costs, this proposal requires a “reasoned determination that its benefits justify its costs” to people with disabilities pursuant to Executive Order 12866. That requirement has not been met.
In addition, under Executive Order 12988, the Department must provide a clear legal standard for affected conduct, not a general standard. The Department’s proposed rescission eliminates a clear legal standard (accessibility standards for new construction and alterations) and replaces it with a general standard (nondiscrimination) in violation of Executive Order 12988.
Once again, we appreciate the opportunity to comment and we are available to answer any further questions you may have.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind