36 CFR Part 1190, Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way: Notice of Proposed Rulemaking (NPRM)

Use of Mandatory Language in Proposed Guidelines

The proposed guidelines use the mandatory language “shall” and “requirement” because the guidelines are intended to be adopted, with or without additions and modifications, as accessibility standards in regulations issued by other federal agencies implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act. In this regard, the proposed guidelines are analogous to model codes. Model codes use mandatory language but compliance with model codes is not mandatory until they are adopted by a state or local government. When the Access Board’s guidelines are adopted, with or without additions and modifications, as accessibility standards in regulations issued by other federal agencies implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act, compliance with the accessibility standards is mandatory. The other federal agencies will conduct separate rulemakings to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act. The other federal agencies will establish the effective dates for compliance with the accessibility standards when they complete their rulemakings. The other federal agencies may permit use of the proposed guidelines as best practices pending the completion of their rulemakings. However, the proposed guidelines are not legally enforceable until adopted, with or without additions and modifications, as accessibility standards by other federal agencies in regulations implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act.