[Federal Register Volume 70, Number 38 (Monday, February 28, 2005)]
[Notices]
[Pages 9738-9749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3640]



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Part III





Department of Housing and Urban Development





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Final Report of HUD Review of the Fair Housing Accessibility 
Requirements in the 2003 International Building Code; Notice

  Federal Register / Vol. 70, No. 38 / Monday, February 28, 2005 / 
Notices  

[[Page 9738]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4943-N-02]


Final Report of HUD Review of the Fair Housing Accessibility 
Requirements in the 2003 International Building Code

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Notice.

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SUMMARY: The purpose of this notice is to present a final report of the 
Department of Housing and Urban Development's review of certain 
accessibility provisions of the International Building Code, 2003 
edition (2003 IBC), published by the International Code Council 
(ICC).\1\ ICC requested that the Department review the accessibility 
provisions of the 2003 IBC to determine whether those provisions are 
consistent with the accessibility requirements of the Fair Housing Act 
(the Act), the regulations implementing the 1988 Amendments to the Act, 
and the Fair Housing Accessibility Guidelines (the Guidelines) and, 
therefore, that the 2003 IBC could be recognized by the Department as a 
safe harbor for compliance with the law.
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    \1\ The 2003 International Building Code (8(copyright)) is a 
copyrighted work owned by the International Code Council, Inc. 
Quotations are included in this notice by permission of the Council.
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    The Department published a draft report on its review of the 
accessibility provisions of the 2003 IBC on August 6, 2004, soliciting 
comments on preliminary findings made by a Departmental Task Force that 
identified eight issues in which it appeared that the 2003 IBC was not 
consistent with the Act or the Guidelines, and an additional issue 
(Issue 9) which related to changes made to the 2003 IBC in the 2004 
Supplement.
    The Task Force reviewed and analyzed the comments responding to the 
draft report. Based on this analysis, of the eight issues that apply to 
the 2003 IBC, the Department has concluded that it can withdraw seven 
of its areas of concern, leaving one major issue that is clearly 
inconsistent with the Act and the Guidelines.
    The Department is aware of the benefits of having a more recent 
edition of the IBC recognized by the Department as a safe harbor for 
compliance with the Act. Then buildings will be built with the 
accessible features required by the Act. Rather than declining to grant 
safe harbor status to the 2003 IBC in total, the Department has decided 
to grant safe harbor status conditioned upon ICC publishing and 
distributing a statement to jurisdictions and past and future 
purchasers of the 2003 IBC stating that:

ICC interprets Section 1104.1, and specifically, the Exception to 
Section 1104.1, to be read together with Section 1107.4, and that 
the Code requires an accessible pedestrian route from site arrival 
points to accessible building entrances, unless site impracticality 
applies. Exception 1 to Section 1107.4 is not applicable to site 
arrival points for any Type B dwelling units because site 
impracticality is addressed under Section 1107.7.

    The Department expects that ICC will publish and disseminate this 
statement in the following ways:
    1. Placement on its Web site, especially on pages where technical 
aspects of 2003 IBC are described;
    2. Including the statement with all versions of 2003 IBC that are 
distributed 30 days after publication of HUD's final report;
    3. Within 45 days of the publication of HUD's final report, sending 
the statement by U.S. Mail or e-mail to jurisdictions and individuals 
on ICC's marketing lists for code materials, and
    4. Providing the statement orally or in writing whenever technical 
assistance is provided concerning the 2003 IBC requirements for 
accessible routes between site arrival points and accessible building 
entrances.
    During the next code change cycle, if ICC seeks to have the 2006 
edition of the IBC declared a safe harbor, ICC must modify the IBC to 
clearly state, in a manner acceptable to the Department, that an 
accessible pedestrian route must be provided from site arrival points 
to accessible building entrances of buildings required to provide Type 
B dwelling units, unless site impracticality applies.
    The Department's final report is intended to provide technical 
assistance to ICC and other interested parties. The Department is not 
promulgating any new technical requirements or standards by way of this 
final report, nor is this final report an endorsement of a model 
building code. The Department recognizes however, that one important 
way to increase compliance with the design and construction 
requirements of the Act is to incorporate those requirements into state 
and local building codes.

FOR FURTHER INFORMATION CONTACT: Cheryl Kent, Special Advisor for 
Disability Policy, Office of Fair Housing and Equal Opportunity, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Room 5240, Washington, DC 20410-0500; telephone (202) 708-2333, 
extension 7058 (voice). (This is not a toll free number.) Hearing- or 
speech-impaired individuals may access this number TTY by calling the 
toll-free Federal Information Relay Service at 1-800-877-8339 (TTY).
    Location of Documents: This final report is located at http://www.hud.gov/offices/fheo/disabilities/modelcodes/. The Fair Housing 
Act, the Fair Housing Act regulations, and the Fair Housing 
Accessibility Guidelines can also be obtained through links provided at 
this Web site.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Fair Housing Act Accessibility Provisions

    Title VIII of the Civil Rights Act (the Fair Housing Act) (42 
U.S.C. 3601 et seq.) prohibits discrimination in housing and housing-
related transactions based on race, color, religion, national origin, 
sex, familial status, and disability.\2\ In its 1988 Amendments to the 
Act, Congress provided that all covered multifamily dwellings built for 
first occupancy after March 13, 1991 shall be designed and constructed 
so that: (1) The public and common use portions of such dwellings are 
readily accessible to and usable by persons with disabilities; (2) all 
the doors designed to allow passage into and within all premises within 
such dwellings are sufficiently wide to allow passage by disabled 
persons in wheelchairs; and (3) all premises within such dwellings 
contain the following features of adaptive design: (a) an accessible 
route into and through the dwelling; (b) light switches, electrical 
outlets, thermostats, and other environmental controls in accessible 
locations; (c) reinforcements in bathroom walls to allow later 
installation of grab bars; and (d) usable kitchens and bathrooms such 
that an individual in a wheelchair can maneuver about the space. (42 
U.S.C. 3604(f)(3)(C)). These basic accessibility requirements are known 
as the Act's design and construction requirements.
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    \2\ The Fair Housing Act refers to people with ``handicaps.'' 
Subsequently, in the Americans with Disabilities Act of 1990 and 
other legislation, Congress adopted the term ``persons with 
disabilities,'' or ``disability,'' which is the preferred usage. 
Accordingly, this Report hereinafter uses the terms ``persons with 
disabilities,'' ``disability,'' or ``disabled.''
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    The Act does not set forth specific technical design criteria that 
have to be followed in order to comply with the design and construction 
requirements. It does provide, however, that compliance with the 
appropriate requirements of the ``American National Standard for 
buildings and facilities providing

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accessibility and usability for physically handicapped people,'' 
commonly referred to as ANSI A117.1, satisfies the Act's design and 
construction requirements for the interiors of dwelling units (42 
U.S.C. 3604(f)(4)).
    In 1989, the Department issued its regulations implementing the 
design and construction requirements of the Act. 24 CFR 100.205. In the 
regulations, the Department specifically stated that compliance with 
the appropriate requirements of ANSI A117.1-1986 satisfies the 
technical requirements of the Act relating to interiors of dwelling 
units. 24 CFR 100.205(e). In addition, the Department's regulations 
reference the requirements of ANSI A117.1-1986 as a means of compliance 
with respect to the following features of covered multifamily 
dwellings: (a) public and common use areas, (b) accessible routes, and 
(c) building entrances on an accessible route. (24 CFR 100.201).
    Congress directed the Secretary of HUD to ``provide technical 
assistance to states and units of local government and other persons to 
implement [the design and construction requirements].'' (42 U.S.C. 
3604(f)(5)(C)). Over the last 13 years, the Department has undertaken 
numerous activities to provide technical guidance and has published 
several technical guidance documents. For example, on March 6, 1991, 
the Department published the ``Final Fair Housing Accessibility 
Guidelines'' (56 FR 9472-9515), which set forth specific technical 
guidance for designing covered multifamily dwellings to be consistent 
with the Act. Section I of the Guidelines states: ``These guidelines 
are intended to provide a safe harbor for compliance with the 
accessibility requirements of the Fair Housing Act.'' (56 FR at 9499).
    On June 24, 1994, the Department published its ``Supplement to 
Notice of Fair Housing Accessibility Guidelines: Questions and Answers 
about the Guidelines'' (59 FR 33362-33368). The Department published a 
Fair Housing Act Design Manual (Design Manual) in 1996 that was 
reissued in 1998 with minor changes. The Design Manual is also a safe 
harbor for compliance with the Act.
    The Act states that Congress did not intend the Department to 
require states and units of local government to include the Act's 
accessibility requirements in their state and local procedures for the 
review and approval of newly constructed covered multifamily dwellings 
(42 U.S.C. 3604(f)(5)(C)). However, Congress authorized the Department 
to encourage the inclusion of these requirements into their state and 
local procedures. Id.
    The Department's review of model codes falls within its mandate to 
provide technical assistance to state and local governments to 
incorporate the design and construction requirements of the Act into 
their laws and procedures for review and approval of newly constructed 
multifamily dwellings.\3\ In the course of its review of model codes 
over the past several years, the Department has made every effort to 
ensure that any code or version of a code it deems a safe harbor 
provides at least the same level of accessibility that is required 
under the Act.
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    \31\ The Act also makes it clear that it does not invalidate or 
limit any other state or federal laws that require dwellings to be 
designed or constructed in a manner that affords persons with 
disabilities greater access than that required under the Act. 42 
U.S.C. 3604(f)(8). Further, federally funded facilities and dwelling 
units covered by section 504 of the Rehabilitation Act of 1973 
(Section 504), the Architectural Barriers Act (ABA), the Uniform 
Federal Accessibility Standard, or the Americans with Disabilities 
Act (ADA), must comply with the regulatory requirements of those 
laws in addition to the requirements of the Act, when applicable. 
For Section 504, regulatory requirements may be found at 24 CFR part 
8; for the ABA, 24 CFR part 40; and for the ADA, 28 CFR parts 35 
and/or 36, as applicable.
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B. The 2000 International Building Code, 2001 Supplement to the 
International Codes and the Code Requirements for Housing Accessibility

    The International Building Code (IBC) represents an effort to bring 
national uniformity to building codes. Representatives of three 
national model code bodies developed drafts of the proposed code under 
the auspices of the International Code Council (ICC), an umbrella 
organization created in 1994 to assist common code development. The IBC 
includes provisions for accessibility intended to reflect the intent of 
the Act, the regulations, and the Guidelines.
    Unlike the Act, the IBC is a model building code and not a law. It 
provides minimum standards for public safety, health, and welfare as 
they are affected by building construction. Compliance with the IBC or 
any other model code is not required unless adopted by a state or local 
jurisdiction's governing body. A jurisdiction may adopt a model 
building code in its entirety or with modifications.
    With respect to housing, the IBC contains requirements for three 
different types of accessible dwelling units, which include sleeping 
units when such units are used as a residence. The most accessible of 
these three types is an ``Accessible Unit,'' which is wheelchair 
accessible and meets the requirements of those chapters of the ICC/ANSI 
A117.1-1998 standard that apply to numerous types of buildings, and not 
just dwelling units. A second level of accessibility is set forth in 
the requirements for ``Type A'' dwelling units. Under the IBC, a 
percentage of units must provide for a high level of accessibility, 
especially in kitchens and bathrooms, but will also have some features 
of adaptability. The third level of accessibility is a ``Type B'' 
dwelling unit, which is a unit that is intended to comply with those 
features of accessible and adaptable design required under the Fair 
Housing Act. The requirements set forth for Type B dwelling units apply 
to a greater number of dwelling units in a building but do not require 
as great a level of accessibility as Type A dwelling units, and instead 
provide a basic degree of accessibility as well as some features of 
adaptable design, particularly in kitchens and bathrooms.
    In 1999, at the request of the model code organizations, the 
Department reviewed three existing model building codes and the draft 
2000 International Building Code (2000 IBC) for the purpose of 
determining if these codes met the design and construction requirements 
in the Act. In conjunction with its review of the model building codes, 
the Department also reviewed the 1992 and 1998 editions of ANSI A117.1 
(CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998).
    On March 23, 2000, the Department published its Final Report of HUD 
Review of Model Building Codes in the Federal Register (65 FR 15740). 
This report concluded that with revisions, the 2000 IBC could be made 
consistent with the Act's design and construction requirements. In this 
report, the Department also stated that it reviewed the 1992 CABO/ANSI 
A117.1 and the 1998 ICC/ANSI A117.1, and believes that CABO/ANSI 
A117.1-1992 and ICC/ANSI A117.1-1998 are consistent with the Act and 
are additional safe harbors for compliance with the Act's technical 
accessibility requirements. It is important to note, however, that ANSI 
A117.1 contains only technical criteria, whereas the Act, the 
implementing regulations, and the Guidelines contain both ``scoping'' 
and technical criteria. Scoping criteria define when a building element 
or space must be accessible; technical criteria provide the technical 
specifications on how to make an element accessible. Therefore, 
designers and builders relying on ANSI A117.1 also need to consult the 
Act, the Department's regulations, and the Guidelines for the scoping 
criteria.
    Following publication of this report, at the request of a group of 
representatives from ICC, major building industry groups and disability 
advocacy groups, the Department provided

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technical assistance to ICC in developing code text changes to address 
HUD's concerns with the accessibility provisions in the code. The 
resulting code text changes were incorporated into the IBC in the 2001 
Supplement to the International Codes. In addition, at the request of 
this same group of representatives, HUD provided technical assistance 
to ICC in the review of a document that compiled all of the housing-
related accessibility provisions in the 2000 IBC as amended by the 2001 
Supplement in a separate, stand-alone document which also includes 
related commentary entitled, ``Code Requirements for Housing 
Accessibility'' (CRHA), published by ICC in October 2000. The ICC 
subsequently issued an errata sheet to the CRHA. This errata sheet 
includes corrections that are reflected in the 2001 Supplement to the 
IBC.
    Based upon HUD's review, the 2000 IBC, as amended by the 2001 
Supplement, and the CRHA have been deemed by the Department to 
constitute additional safe harbors for compliance with the design and 
construction requirements of the Act.

II. HUD-Recognized Safe Harbors for Compliance With the Fair Housing 
Act Design and Construction Requirements

    As a result of the review and subsequent actions outlined above, 
the Department has recognized seven documents as safe harbors for 
compliance with the Act's design and construction requirements. These 
documents are:
    1. Fair Housing Accessibility Guidelines, March 6, 1991, in 
conjunction with the June 28, 1994 Supplement to Notice of Fair Housing 
Accessibility Guidelines: Questions and Answers About the Guidelines;
    2. Fair Housing Act Design Manual, published by HUD in 1996, 
updated in 1998;
    3. ANSI A117.1-1986, Accessible and Usable Buildings and 
Facilities, in conjunction with the Fair Housing Act, HUD's 
regulations, and the Guidelines for the scoping requirements;
    4. CABO/ANSI A117.1-1992, Accessible and Usable Buildings and 
Facilities, in conjunction with the Fair Housing Act, HUD's 
regulations, and the Guidelines for the scoping requirements;
    5. ICC/ANSI A117.1-1998, Accessible and Usable Buildings and 
Facilities, in conjunction with the Fair Housing Act, HUD's 
regulations, and the Guidelines for the scoping requirements;
    6. 2000 ICC Code Requirements for Housing Accessibility (CRHA), 
published by the International Code Council (ICC), October 2000; and
    7. 2000 International Building Code (IBC), as amended by the 2001 
Supplement to the International Building Code.
    If a state or locality has adopted one of the above documents, 
covered residential buildings that are built to those specifications 
will be designed and constructed in accordance with the Act as long as 
the building code official does not waive or incorrectly interpret or 
apply one or more of those requirements. See HUD Policy Statement, 65 
FR 15756 (March 23, 2000).

III. The 2003 International Building Code Review and Comment Process

    The International Building Code is updated on a regular basis by 
means of a code development process. Under this process, any interested 
person may submit proposed changes to the code and participate in the 
proceedings under which proposed changes are considered for adoption. 
At present, ICC is utilizing an 18-month development cycle. Changes 
approved during the 2003/2004 code development cycle will appear in the 
2004 Supplement; followed by another 18-month cycle that will result in 
the 2006 IBC.
    ICC contacted HUD in 2003 to request that HUD review the 
accessibility requirements contained in the 2003 IBC to make a 
determination as to whether the 2003 IBC would also be deemed a safe 
harbor for compliance with the Act's design and construction 
requirements. The Department convened a Task Force that consisted of 
representatives of HUD's Offices of Fair Housing and Equal Opportunity 
and General Counsel, and the Department of Justice's (DOJ) Civil Rights 
Division, Housing and Civil Enforcement Section, to review the changes 
to the 2003 IBC from the 2000 IBC, as amended by the 2001 Supplement, 
to ascertain whether, with those changes, the 2003 IBC meets the 
accessibility requirements of the Act.
    The Task Force was provided with a matrix and a briefing by ICC 
representatives concerning the changes to the accessibility provisions 
reflected in the 2003 IBC. The Task Force did not review any other 
sections of the 2003 IBC except as necessary to analyze the changed 
provisions identified by the ICC. The Task Force consulted only with 
the ICC during its preliminary review, because that organization is the 
official interpreter of the code. However, in order to ensure the 
possibility of receiving input from the broadest range of interested 
individuals and groups, the Department published a draft report in the 
Federal Register on August 6, 2004 (69 FR 47947) with a request for 
comments on the recommendations as well as on any other sections of the 
2003 IBC that may be of concern to members of the public.
    HUD received comments from forty-six individuals and organizations. 
Those comments are discussed in the section-by-section analysis of this 
Final Report. The ICC, the National Association of Homebuilders (NAHB), 
and the United Spinal Association commented on all of the issues that 
the Department had identified as problematic in granting safe harbor 
status to the 2003 IBC. Other organizations, including Paralyzed 
Veterans of America and R. C. Quinn Consulting, Inc., commented on some 
of the provisions.
    In addition, HUD received a number of comments that did not 
specifically relate to the recommendations in the Draft Report, but 
which related to the enforcement of the Act and the Guidelines in 
general. Since the Task Force's charge was only to address whether the 
2003 IBC could qualify as a safe harbor, a response to those comments 
is beyond the scope of this Final Report.

IV. Overview of Comments, Final Analysis, and Conclusions

    HUD's draft report identified eight sections of the 2003 IBC that 
the Department's Task Force determined may not be consistent with the 
requirements of the Act and the Guidelines. In addition, the draft 
report identified certain issues of concern to the Task Force that did 
not directly affect safe harbor status of the 2003 IBC. All of these 
issues are individually discussed in the section-by-section analysis 
under Part V, below.
    Several organizations, including the ICC, submitted comments 
referring the Department to Section 102.1 of the 2003 IBC. That 
provision reads:

102.1 General. Where, in any specific case, different sections of 
this code specify different materials, methods of construction or 
other requirements, the most restrictive shall govern. Where there 
is a conflict between a general requirement and a specific 
requirement, the specific requirement shall be applicable.

    As the section-by-section analysis that follows demonstrates, the 
Department understands that Section 102.1 of the 2003 IBC requires code 
officials to interpret the accessibility sections in Chapters 10 and 11 
of the 2003 IBC in a manner that ensures that the code section with the 
highest level of accessibility applies in any given circumstance. With 
that understanding,

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the Department has withdrawn many of the concerns contained in the 
draft report.
    In addition, many of the comments the Department received pointed 
out that the code changes to the 2003 IBC were the result of the ICC's 
efforts to incorporate the accessibility requirements of the Americans 
with Disabilities Act of 1990 and the ADA Accessibility Guidelines. The 
Department understands the importance of taking steps to harmonize the 
federal government's requirements for facilities that are subject to 
the ADA with accessibility requirements used by the private sector and 
supports the ICC's efforts in that regard. In those instances where 
such efforts had the unintended consequence of apparently conflicting 
with the accessible design and construction requirements of the Act, 
the Department's comments focused on clarifications that would achieve 
consistency with Act's design and construction requirements without 
undermining the provisions in the code addressing ADA requirements. The 
Department has concluded that, with one exception, any perceived 
conflicts between 2003 IBC language intended to incorporate ADA 
standards and the Act's requirements are resolved by the application of 
Section 102.1 of the 2003 IBC.

V. Analysis

A. General--Use of the Term ICC/ICC/ANSI A117.1-1998

    In the draft report, HUD had noted that the 2003 IBC does not use 
the full acronym ICC/ANSI A117.1-1998 throughout the code, and instead 
uses ``ICC A117.1.'' Because the Act and the Guidelines reference the 
``ANSI'' standard, the Department had recommended that the next edition 
of the IBC be revised to include ``ANSI'' in the abbreviation that is 
used in the text throughout various chapters of the code, as has been 
done in previous versions.
    The Department received two comments in response to this 
recommendation, both opposing the recommended change and explaining 
that the American National Standards Institute (ANSI) no longer 
promulgates standards as it did when the Act and the Guidelines were 
drafted. Currently the promulgator of the A117.1 standard is the ICC, 
and ANSI is only the accrediting group for the standard. The commenters 
explained that the current convention in all ICC codes is to reference 
the promulgator (development secretary and publisher) of the standards, 
and not the process or accrediting group.
    Based on the comments received and the fact that the 2003 IBC does 
reference ICC/ANSI A117.1-1998 in Chapter 3, Referenced Standards, page 
591, the Department withdraws this recommendation.

B. 2003 IBC Provisions Identified in Draft Report That Were of Concern 
to the Department as Not Meeting Accessibility Requirements

1. Chapter 10: Means of Egress; Section 1008.1.4, Floor Elevation: 
Exception 3
    The draft report concluded that Exception 3 to Section 1008.1.4 of 
the 2003 IBC did not meet the accessibility requirements of the Act and 
the Guidelines and recommended that it be revised to add clarifying 
language such as that in the 2003 IBC Commentary (Commentary). Based 
upon the Task Force analysis of the comments received about this issue, 
the Department has concluded that this section of the 2003 IBC does not 
preclude recognition of the Code as a safe harbor.
    Section 1008.1.4, entitled ``Floor elevation,'' specifies the 
general requirement that there be a level landing on each side of a 
door. Exception 3 exempts Group R-3 occupancies from this requirement, 
permitting a landing at an exterior door of up to 7\3/4\ inches. Since 
Group R-3 occupancies include multilevel townhouses with interior 
elevators and group homes that do not operate as a single-family 
residence, the Department concluded that Exception 3 permits these 
structures to have a step of up to 7\3/4\ inches at their exterior 
doors, thus leading to less accessibility than is required by the Act 
and the Guidelines. Although the Commentary for Exception 3 explains 
that the exception does not apply to the primary entrance door or to 
exterior doors that open to decks, patios or balconies in Type B 
dwelling or sleeping units. See Commentary, p. 10-39. Exception 3 
itself does not contain similar limiting language.
    The commenters, including the ICC, generally did not agree with the 
draft report's conclusion that Exception 3 to Section 1008.1.4 is 
inconsistent with the Act and HUD's Guidelines. They stated that 
Exception 3 is not applicable to covered multifamily dwellings under 
the Act. To support this conclusion, they first noted that Section 
102.1 of the IBC provides that if different sections of the IBC specify 
different requirements, ``the most restrictive shall govern.'' They 
note further that because other provisions in the IBC require 
accessible entrances and accessible routes to Type B units, and thus 
are more restrictive than Section 1008.1.4 Exception 3, the more 
restrictive provisions apply and nullify Exception 3. As one example, 
the commenters, including the ICC, pointed to Section 1107.4, which by 
virtue of Section 102.1, mandates an accessible route at the primary 
entrance of all Type B units. Thus, Group R-3 occupancies that are 
required to be designed and constructed as Type B accessible dwellings, 
including a multilevel townhouse with an interior elevator and a group 
home that does not operate as a single-family residence, must have 
primary entrances on an accessible route. In other words, these 
dwellings are not permitted to have a landing of up to 7\3/4\ inches at 
their exterior doors.
    The commenters provided the following additional examples of other 
provisions that supersede Exception 3: (1) Section 1107.2, because it 
mandates that Type B units comply with the applicable portions of ICC 
A117.1, Chapter 10, which requires, inter alia, an accessible primary 
entrance on an accessible route from public and common areas (see ICC 
A117.1 Section 1003.2, 1998 Edition); (2) Section 1104.3, which 
mandates when a building or portion thereof is required to be 
accessible, an accessible route must be provided to each portion of the 
building, to accessible building entrances connecting accessible 
pedestrian walkways, and to the public way; (3) Section 1107.3, because 
it specifies that rooms and spaces available for use by residents, 
including ``any exterior spaces, including patios, terraces and 
balconies'' must be accessible; and (4) Section 1008.1.4 Exception 5, 
which permits a 4-inch, not a 7\3/4\-inch, landing at exterior decks, 
patios or balconies made of impervious surfaces.
    The Department has carefully considered the above comments and 
determined that it agrees that the provisions discussed above 
sufficiently supersede Exception 3 of Section 1008.1.4 with respect to 
Type B dwelling units in buildings subject to the Act. Therefore, the 
Department withdraws its earlier finding that the Exception may be 
problematic.
    Some of the commenters stated that they believed that the Act's 
design and construction requirements do not apply to townhouses with 
interior elevators in multifamily buildings of four or more dwellings 
or group homes with four or more units. This is incorrect. It has been 
the Department's longstanding position that the Act's design and 
construction requirements include townhouses with interior elevators if 
those townhouses are part of multifamily buildings of four or more 
units. HUD's position on this

[[Page 9742]]

has been stated in numerous public documents. (See, e.g., 54 FR 3244, 
3251 (January 23, 1989) preamble to the Department's regulations 
implementing the Act; 55 FR 24377 (June 15, 1990) preamble to proposed 
Guidelines; 56 FR 9481 preamble to Guidelines; 59 FR 33362-68 (June 28, 
1994) Supplement to Notice of Fair Housing Accessibility Guidelines: 
Questions and Answers About the Guidelines, Question 13.) In addition, 
this view is acknowledged in ICC's ``Code Requirements for Housing 
Accessibility,'' Commentary to Section 406.7.2 (IBC 1107.7.2).
    In addition, the Act's design and construction requirements apply 
to group homes that do not operate as single-family residences. This 
was discussed in detail in the policy statement in the Department's 
Final Report on IBC 2000. (See 65 FR 15745, 15759 (March 23, 2000). The 
Department also notes that the 2003 IBC is consistent with this 
approach. Group homes with four or more sleeping units and five or 
fewer residents are characterized as Group R-3 and are required to meet 
the Act's design and construction requirements. Such group homes are 
not, as two commenters asserted, Group R-4 occupancies, i.e., 
residential care/assisted living facilities with six to sixteen 
occupants.
2. Section 1008.1.6, Thresholds: Exception
    The Department's draft report stated that as drafted, the new 
Exception to Section 1008.1.6 could be confusing. Section 1008.1.6 sets 
forth the general requirement that a doorway threshold cannot exceed 
\3/4\ inch for a sliding glass door and \1/2\ inch for other doors. The 
new exception allows for a threshold of 7\3/4\ inches in Group R-2 and 
Group R-3 housing if the door is an exterior door that is not a 
component of the required means of egress and is not on an accessible 
route. HUD noted that while the ``means of egress'' and ``accessible 
route'' limitations would appear to ensure that the 7\3/4\ inch 
threshold is not permitted in Group R-2 and Group R-3 housing that is 
subject to the Act, there might be confusion regarding patio doors and 
other exterior doors that are not a means of egress.
    Two commenters, including the ICC, wrote that they did not believe 
the new Exception could lead to confusion. They stated that the 
Exception's language is clear that it does not apply to doors that are 
part of the route required to be accessible, including patio doors and 
any other exterior doors that are part of the accessible route.
    After carefully considering these comments and reviewing the plain 
language of the code, the Department has now concluded that the 
language of the Exception is sufficiently clear and does not require 
revision.
3. Chapter 11: Accessibility: Section 1104.1, Site Arrival Points: 
Exception
    The Department's draft report concluded that the new exception to 
Section 1104.1, Site arrival points, does not meet the requirements in 
the Act for an accessible entrance on an accessible route, or for 
accessible routes within the boundary of the site, such as routes from 
public transportation stops (where applicable), and public streets and 
sidewalks (hereinafter identified as vehicular or pedestrian arrival 
points). As the Department's draft report indicated, the 2003 IBC adds 
a new exception to Section 1104.1, Site Arrival points. The 2003 IBC 
text states:

1104.1 Site arrival points. Accessible routes within the site shall 
be provided from public transportation stops, accessible parking and 
accessible passenger loading zones and public streets or sidewalks 
to the accessible building entrance served.

    Exception: An accessible route shall not be required between 
site arrival points and the building or facility entrance if the 
only means of access between them is a vehicular way not providing 
for pedestrian access.

    It is the Department's view that the language of this section 
allows the builder much greater latitude to decide whether to provide a 
pedestrian route than the Guidelines and other current HUD recognized 
safe harbors allow.
    The Department's draft report explained that the Guidelines' 
Requirements 1 and 2 require an accessible pedestrian route, within the 
boundary of the site, from vehicular and pedestrian arrival points to 
the entrances of covered buildings and dwelling units, except in very 
limited circumstances where a site is impractical due to steep terrain 
or unusual characteristics. However, the new Exception at Section 
1104.1 apparently could allow a developer to provide only a vehicular 
route from a public street or sidewalk at the entry point of the site 
to the covered dwellings, regardless of the conditions of the site. 
Application of this Exception could lead to development of housing 
which would have had an accessible pedestrian route from site arrival 
points if any of the current HUD recognized safe harbors were followed, 
but would not have an accessible pedestrian route from site arrival 
points if the 2003 IBC Exception to Section 1104.1 were followed.
    The Department's draft report recommended that the 2003 IBC be 
amended to include a new provision under Section 1107 to address site 
arrival points and that this new provision be worded in a manner that 
is similar to Section 1104.1, but without the Exception. The Department 
has carefully reviewed the comments received on this issue.
    After considering the comments, the Department now believes that 
Sections 1104.1 and 1107.4, properly interpreted, require an accessible 
pedestrian route to the same extent as other HUD recognized safe 
harbors. As explained in the discussion below, however, the Department 
continues to believe that the language of the Exception to Section 
1104.1 could lead to less accessibility than that required by the Act 
and the Guidelines unless ICC informs jurisdictions and past and future 
purchasers of the 2003 IBC that such an interpretation is inconsistent 
with the intent of the 2003 IBC. Therefore, in order to have safe 
harbor status for this Section, ICC must publish and distribute a 
statement to jurisdictions and past and future purchasers of the 2003 
IBC stating that: ICC interprets Section 1104.1, and specifically, the 
Exception to Section 1104.1, to be read together with Section 1107.4, 
and that the Code requires an accessible pedestrian route from site 
arrival points to accessible building entrances, unless site 
impracticality applies. Exception 1 to Section 1107.4 is not applicable 
to site arrival points for any Type B dwelling units because site 
impracticality is addressed under Section 1107.7.
    The Department expects that ICC will publish and disseminate this 
statement in the following ways:
    1. Placement on its Web site, especially on pages where technical 
aspects of 2003 IBC are described;
    2. Including the statement with all versions of 2003 IBC that are 
distributed 30 days after publication of HUD's final report;
    3. Within 45 days of the publication of HUD's final report, sending 
the statement by U.S. Mail and/or e-mail to jurisdictions and 
individuals on ICC's marketing lists for code materials, and
    4. Providing the statement orally or in writing whenever technical 
assistance is provided concerning the 2003 IBC requirements for 
accessible routes between site arrival points and accessible building 
entrances.
    This statement of intent is consistent with the interpretation that 
ICC and NAHB proffered in their comments on the draft report as 
discussed below.
    During the next code change cycle, if ICC seeks to have the 2006 
edition of the IBC declared a safe harbor, ICC must modify the IBC to 
clearly state, in a

[[Page 9743]]

manner acceptable to the Department, that an accessible pedestrian 
route must be provided from site arrival points to accessible building 
entrances of buildings required to provide Type B dwelling units, 
unless site impracticality applies.
    The Department's regulations implementing the Act require that 
dwellings subject to the Act's design and construction requirements be 
designed and constructed to provide an accessible entrance on an 
accessible route to covered buildings and dwelling units, unless it is 
impractical due to terrain or unusual site characteristics. The 
Guidelines describe the conditions that must be met for establishing 
this site impracticality. See 56 FR 9504-9504 (March 6, 1991). The 
regulations and the Guidelines also require accessible and usable 
public and common use areas, which includes accessible routes. 
Specifically, Requirement 2 of the Guidelines requires an accessible 
route, within the boundary of the site, from public transportation 
stops, accessible parking spaces, accessible passenger loading zones, 
and public streets and sidewalks to accessible building entrances, 
unless site impracticality applies.
    Section 2 of the Guidelines defines an ``accessible route'' as a 
continuous and unobstructed path that can be negotiated by a person 
with a severe disability using a wheelchair and that is also safe for 
and usable by persons with other disabilities. The definition further 
states that under the circumstances described in Section 5, 
Requirements 1 and 2, an accessible route may include a vehicular 
route. Once again, however, the circumstances that allow a vehicular 
route are very limited. See discussion under Issue 4.
    The Department received a number of comments on this issue. Two of 
the commenters, ICC and NAHB, acknowledged a potential conflict. 
However, these commenters were of the opinion that the 2003 IBC 
provision at Section 1107.4 controls. As support, they cite Section 
102.1, which states that where different sections of the code specify 
different requirements, the most restrictive shall govern; and where 
there is a conflict between a general requirement and a specific 
requirement, the specific requirement shall be applicable. These 
commenters proffered that Section 1107.4 contains more restrictive 
criteria. Section 1107.4 states:

    1107.4 Accessible route. At least one accessible route shall 
connect accessible building or facility entrances with the primary 
entrance of each Accessible unit, Type A unit and Type B unit within 
the building or facility and with those exterior and interior spaces 
and facilities that serve the units.\4\
---------------------------------------------------------------------------

    \4\ Section 1107.4 includes exceptions, one of which deals with 
situations when a vehicular route will be allowed between entrances 
of covered buildings and dwelling units and public and common use 
facilities elsewhere on the site. This exception is discussed under 
Issue 4.

    Based on the statement in the above text that an accessible route 
must connect building or facility entrances with the primary entrance 
of each * * * Type B unit and with exterior and interior spaces and 
facilities that serve the units, ICC took the position that site 
arrival points ``do serve units on the site.''
    Another commenter expressed a belief that Section 1107.2, which 
requires compliance with ICC/ANSI A117.1-1998, addresses the 
Department's concern.
    The Department has given careful consideration to these comments. 
However, the Department does not believe the commenters' interpretation 
is supported by a plain reading of the code. First, the Department does 
not agree that the text of Section 1107.4, on its face, effectively 
cancels out the Exception at Section 1104.1. The text of Section 1107.4 
does not address site arrival points; therefore, the text of Exception 
1 to Section 1107.4 cannot, on plain reading, be construed to apply to 
site arrival points. In addition, Exception 1 to Section 1107.4 does 
not apply to site arrival points because that exception is addressing 
the narrow circumstances when a vehicular route is allowed between 
building entrances and public and common use facilities elsewhere on 
the site. Instead, Section 1107.7 of the 2003 IBC addresses site 
impracticality.
    Moreover, the Department does not believe that the term 
``facility'' would be readily construed to include the edge of the 
public right-of-way where a site arrival point may be located. Further, 
as Section 1104.1 is entitled ``Site arrival points,'' we do not 
believe that a local jurisdiction would readily interpret Section 
1107.4 as being applicable to site arrival points.
    The Department also disagrees with the comment that Section 1107.2 
addresses the Department's concern because Section 1107.2 requires Type 
B dwelling units to comply with Chapter 10 of ICC/ANSI A117.1-1998. The 
only provision in Chapter 10 that deals with areas exterior to the 
dwelling unit is Section 1003.2, which simply states that the 
accessible primary entrance shall be on an accessible route from public 
and common areas. This text does not specifically refer to site arrival 
points and the 2003 IBC definitions for the terms ``common use'' and 
``public use areas'' do not include all site arrival points. Further, 
as scoping requirements are contained in the building code itself, it 
does not appear that a provision in the ICC/ANSI A117.1-1998 would 
nullify the exception at Section 1104.1 of the 2003 IBC.
    None of the commenters addressed the Department's primary concern, 
which is that the new exception in Section 1104.1 would allow builders 
to choose to design and construct sites that do not have an accessible 
pedestrian route and only a road or driveway from site arrival points 
to accessible dwelling unit entrances, regardless of whether the site 
meets the criteria for site impracticality established in the 
Guidelines.
    Without ICC's public dissemination of a statement to jurisdictions 
and past and future purchasers of the 2003 IBC of its interpretation 
that sites required to provide Type B dwelling units are required to 
provide an accessible route connecting site arrival points and 
accessible building entrances (unless site impracticality applies), the 
Department believes that the new exception at Section 1104.1, in the 
absence of a specific provision under Section 1107 addressing site 
arrival points, would be interpreted as creating a conflict with the 
requirements in the Act and the Guidelines. That conflict is not 
resolved by the provisions of Section 1107.4. The Department believes 
that its objection could be resolved, however, and safe harbor status 
could apply, if ICC publishes and distributes a statement to 
jurisdictions and past and future purchasers of the 2003 IBC stating 
that:

ICC interprets Section 1104.1, and specifically, the Exception to 
Section 1104.1, to be read together with Section 1107.4, and that 
the Code requires an accessible pedestrian route from site arrival 
points to accessible building entrances, unless site impracticality 
applies. Exception 1 to Section 1107.4 is not applicable to site 
arrival points for any Type B dwelling units because site 
impracticality is addressed under Section 1107.7.

    The Department expects that ICC will publish and disseminate this 
statement in the following ways:
    1. Placement on its Web site, especially on pages where technical 
aspects of 2003 IBC are described;
    2. Including the statement with all versions of 2003 IBC that are 
distributed 30 days after publication of HUD's final report;
    3. Within 45 days of the publication of HUD's final report, sending 
the statement by U. S. Mail and/or e-mail to

[[Page 9744]]

jurisdictions and individuals on ICC's marketing lists for code 
materials, and
    4. Providing the statement orally or in writing whenever technical 
assistance is provided concerning the 2003 IBC requirements for 
accessible routes between site arrival points and accessible building 
entrances.
    During the next code change cycle, if ICC seeks to have the 2006 
edition of the IBC declared a safe harbor, ICC must modify the IBC to 
clearly state, in a manner acceptable to the Department, that an 
accessible pedestrian route must be provided from site arrival points 
to accessible building entrances of buildings required to provide Type 
B dwelling units, unless site impracticality applies.
    The Department offers the following as one possible method to 
provide the requisite clarity during the next code change cycle: 
addition of a provision to Section 1107 to address site arrival points, 
as set forth in 1107.X below. Text in brackets is optional, but 
included below for consistency with other provisions in 2003 IBC 
Section 1107.

1107.X Site arrival points. Accessible routes within the site shall 
be provided from public transportation stops, accessible parking and 
accessible passenger loading zones, and public streets and sidewalks 
to the building entrance(s) for each building containing [Accessible 
units, Type A units, and] Type B dwelling units.

    The Department does not believe the above provision will require 
more than is required by the Act or the Guidelines since the 2003 IBC 
addresses site impracticality, consistent with the Guidelines, under 
2003 IBC Section 1107.7.
4. Section 1104.2 Within a Site
    The Department's draft report raised two concerns about the 
language of the treatment of accessible routes within a site in the 
2003 IBC. First, the Department raised the concern that it has had a 
number of reports that some users of the code had been applying Section 
1104.2 to sites having dwelling units that are subject to the Act's 
requirements, rather than Section 1107.4 which contains more specific 
accessibility requirements. The report sought comments on how to revise 
Section 1104.2 to make its applicability clearer. Second, although 
Section 1107.4 in the 2003 IBC, which describes an accessible route, 
had not changed from the 2000 IBC as amended by the 2001 Supplement, 
the Department has had a number of reports that some users of the code 
are misinterpreting Exception 1 to that section so as to entitle them 
to an exemption from the obligation to build accessible pedestrian 
routes by merely planning for or constructing routes with running 
slopes in excess of 8.33 percent. Such an interpretation would produce 
a result that is inconsistent with the requirements of the Act and 
Guidelines. In this respect, the Department sought comments on how to 
clarify that Section 1107.4, Exception 1, applies only to situations 
where the finished grade of the site exceeds 8.33 percent due to 
factors beyond the control of the designer, builder or owner.
    The Act, the Department's regulations implementing the Act, and the 
Guidelines require that dwellings subject to the Act's design and 
construction requirements be designed and constructed to provide an 
accessible entrance on an accessible route and accessible and usable 
public and common use areas. The requirements for accessible routes are 
covered under both Requirements 1 and 2 of the Guidelines. The 
Guidelines allow only a narrow exception. Specifically, paragraph (5) 
of Requirement 1 states:

    (5) Accessible route. An accessible route that complies with 
ANSI 4.3 would meet section 100.205(a). If the slope of the finished 
grade between covered multifamily dwellings and a public or common 
use facility (including parking) exceeds 8.33 percent, or where 
other physical barriers (natural or manmade) or legal restrictions, 
all of which are outside the control of the owner, prevent the 
installation of an accessible pedestrian route, an acceptable 
alternative is to provide access via a vehicular route, so long as 
necessary site provisions such as parking spaces and curb ramps are 
provided at the public or common use facility. Emphasis added.

    Similarly, under Requirement 2 of the Guidelines, item 1(d) in the 
chart addressing requirements for accessible public and common use 
areas, states:

1(d) Where site or legal constraints prevent a route accessible to 
wheelchair users between covered multifamily dwellings and public or 
common use facilities elsewhere on the site, an acceptable 
alternative is the provision of access via a vehicular route so long 
as there is accessible parking on an accessible route to at least 
two percent of covered dwelling units, and necessary site provisions 
such as parking and curb cuts are available at the public or common 
use facility.

    The 2003 IBC includes provisions intended to address accessible 
routes within a site. Specifically, Section 1104.2 of the 2003 IBC 
reads as follows:

1104.2 Within a site. At least one accessible route shall connect 
accessible buildings, accessible facilities, accessible elements, 
and accessible spaces that are on the same site.

    Exception: An accessible route is not required between 
accessible buildings, accessible facilities, accessible elements and 
accessible spaces that have, as the only means of access between 
them, a vehicular way not providing for pedestrian access.

    However, Section 2003 IBC Section 1107.4 contains language similar 
to the Guidelines, Requirement 1, Paragraph (5), and Requirement 2, 
Chart Item 1(d). This language states:

1107.4 Accessible route. At least one accessible route shall connect 
accessible building or facility entrances with the primary entrance 
of each Accessible unit, Type A unit and Type B unit within the 
building or facility and with those exterior and interior spaces and 
facilities that serve the units.

    Exceptions: 1. If the slope of the finished ground level between 
accessible facilities and buildings exceeds one unit vertical in 12 
units horizontal (1:12), or where physical barriers prevent the 
installation of an accessible route, a vehicular route with parking 
that complies with Section 110 at each public or common use facility 
or building is permitted in place of the accessible route.
    2. * * *

    The Department's interpretation of the code is that it is 2003 IBC 
Section 1107.4--and not Section 1104.2--which applies to sites that are 
subject to the Act. However, as noted above, some users of the code 
have misinterpreted the code and applied Section 1104.2 to sites that 
are subject to the Act. In addition, some users are misinterpreting or 
misapplying Exception 1 of Section 1107.4 so as to entitle them to an 
exemption from the obligation to build accessible pedestrian routes by 
merely planning for or constructing routes with slopes in excess of 
8.33 percent. This is an incorrect interpretation of the code.
    The Department received several comments on HUD Issue 4. 
These commenters disagreed with the Departments concerns regarding 
misinterpretations of these two sections of the 2003 IBC. These 
commenters, including the ICC, again pointed to Section 102.1 of the 
IBC, which provides that if different sections of the IBC specify 
different requirements, ``the most restrictive shall govern.'' The 
commenters stated that Section 1107.4, Exception 1 has more restrictive 
criteria for an accessible route between all Accessible, Type A and 
Type B units and exterior and interior spaces and facilities that serve 
that unit, and that this provision, therefore, would control.
    The Department has carefully considered the above comments. In 
light of these comments, in particular, ICC's assertion that the more 
restrictive Section 1107.4 applies to sites having dwelling units 
subject to the Act, and not Section 1104.2, the Department is

[[Page 9745]]

withdrawing its concerns regarding Section 1104.2.
    The Department also received a number of comments on its concern 
that Exception 1 to Section 1107.4 was being misinterpreted. The ICC 
has characterized the Department's concern as with the manipulation of 
the site to achieve a slope greater 8.33 percent in order to avoid the 
accessible route requirements. The ICC stated in its comments that the 
intent of the code was not to exempt such situations from the 
accessible route requirement. While the Department agrees with the ICC 
that deliberate conduct to avoid the requirements of law does not 
qualify for an exception, the Department's concern with the 
misinterpretation of Exception 1 to Section 1107.4 is greater.
    Paragraph (5) of Requirement 1 of FHAG does not permit builders and 
designers to circumvent the requirement of providing an accessible 
route from accessible building entrances to public and common use 
facilities by simply planning or building finished grades with slopes 
in excess of 8.33 percent. It is expected that accessible routes to 
public and common use facilities will be provided. To receive an 
exemption from this requirement, builders, designers, and owners must 
show that factors beyond their control prevent them from providing such 
routes with finished grades of 8.33 percent or less. Thus, the 
Guidelines allow use of vehicles only upon a showing that accessible 
routes cannot be provided, and vehicles or accessible routes are not 
simply treated as alternatives to builders and designers of covered 
units. See also Requirement 2 of the Guidelines, item 1(d) of the 
chart.
    The Department recognizes that the text, ``all of which are outside 
the control of the owner,'' which is in the Guidelines, Requirement 1, 
paragraph (5), does not appear in Exception 1 to Section 1107.4. 
However, the Department reads Section 1107 as the overarching 
requirement to provide accessible routes, including to public or common 
use facilities. Simply electing to design or build slopes in excess of 
8.33 percent would make the accessible routes optional, and would not 
be consistent with the limited circumstances under which the Guidelines 
would permit vehicles to be used in lieu of accessible routes. 
Designers and builders who choose not to provide accessible routes 
based on an interpretation of this provision that differs from the 
Department's interpretation may not avail themselves of this safe 
harbor and may, accordingly, be subject to an enforcement action to 
make those routes accessible after they are built.
    Commenters have pointed out that the requirements from any standard 
or code may be subject to misinterpretation, but believe the best way 
to address these issues is through additional information provided 
through commentaries or other educational means. The Department is in 
agreement with this. Further clarifying commentary by the ICC is 
recommended to reinforce that Exception 1 to Section 1107.4 is to be 
interpreted and applied to Type B units consistent with paragraph (5) 
of Requirement 1. Thus, the Department recommends ICC take steps to 
modify the commentary to Section 1107.4 consistent with the above 
discussion, in the next code change cycle.
5. Section 1104.3, Connected Spaces, and Section 1104.4, Multilevel 
Buildings and Facilities
    The Department's draft report concluded that two new Exceptions 
added to the 2003 IBC, specifically, Exception 2 under Section 1104.3, 
and Exception 4 under Section 1104.4, did not appear to meet the 
requirements of the Act and the Guidelines for accessible and usable 
public and common use areas. The report raised a similar concern 
regarding Exception 1 of Section 1104.4, even though this Exception was 
in the 2001 Supplement previously considered by the Department. The 
draft report recommended that these sections be clarified to ensure 
compliance with the design and construction requirements of the Act and 
the Guidelines.
    The Act, HUD's regulations implementing the Act, and the Guidelines 
require that covered multifamily dwellings be designed and constructed 
in such a manner that the public and common use areas are readily 
accessible to and usable by persons with disabilities. Requirement 2 of 
the Guidelines specifically addresses public and common use areas.
    Sections 1104.3 and 1104.4 of the 2003 IBC read as follows, with 
the text of concern emphasized:

1104.3 Connected spaces. When a building, or portion of a building, 
is required to be accessible, an accessible route shall be provided 
to each portion of the building, to accessible building entrances 
connecting accessible pedestrian walkways and the public way. Where 
only one accessible route is provided, the accessible route shall 
not pass through kitchens, storage rooms, restrooms, closets, or 
similar spaces.

    Exceptions: 1. In assembly areas with fixed seating required to 
be accessible, an accessible route shall not be required to serve 
fixed seating where wheelchair spaces or designated aisle seats 
required to be on an accessible route are not provided.
    2. Accessible routes shall not be required to mezzanines 
provided that the building or facility has no more than one story, 
or where multiple stories are not connected by an accessible route 
as permitted by Section 1104.4.
    3. A single accessible route is permitted to pass through a 
kitchen or storage room in an accessible dwelling unit.

1104.4 Multilevel buildings and facilities. At least one accessible 
route shall connect each accessible level, including mezzanines, in 
multilevel buildings and facilities.
    Exceptions: 1. An accessible route is not required to stories 
and mezzanines above and below accessible levels that have an 
aggregate area of not more than 3,000 square feet (278.7 m \2\). 
This exception shall not apply to:
    1.1. Multiple tenant facilities of Group M occupancies 
containing five or more tenant spaces;
    1.2. Levels containing offices of health care providers (Group B 
or I); or
    1.3. Passenger transportation facilities and airports (Group A-3 
or B).
    2. In Group A, I, R and S occupancies, levels that do not 
contain accessible elements or other spaces required by Section 1107 
or 1108 are not required to be served by an accessible route from an 
accessible level.
    3. In air traffic control towers, an accessible route is not 
required to serve the cab and the floor immediately below the cab.
    4. Where a two-story building or facility has one story with an 
occupant load of five or fewer persons that does not contain public 
use space, that story shall not be required to be connected by an 
accessible route to the story above or below.

    In the draft report, the Department expressed concern that while 
the second clause of Exception 2 of Section 1104.3 references the 
accessibility requirements for mezzanines contained in Section 1104.4, 
the first clause does not. Therefore, it appeared that the first clause 
of this exception would allow a development subject to the design and 
construction requirements to construct a one-story clubhouse with a 
mezzanine that contained a common element, such as an exercise room, 
that was not also available on an accessible route. This would conflict 
with the Act's requirements for accessible and usable public and common 
use facilities, which would not permit the only exercise area available 
to residents to be placed in a mezzanine of a one-story clubhouse.
    In its report, the Department acknowledged that Exception 2 of 
Section 1104.4 exempts from the requirement for an accessible route 
only those levels of Group I and Group R occupancies that do not 
contain accessible elements or other spaces that Sections 1107 or 1108 
require to be served by an accessible route. However, the Department 
raised a concern as to

[[Page 9746]]

whether Sections 1107 and 1108 clearly reached all of the types of 
public and common use areas that typically serve residential sites 
subject to the Act. The examples given in Section 1107.3 focus on 
toilet and bathing rooms, kitchen, living and dining areas, patios and 
terraces, all of which could be spaces interior to a dwelling unit. 
This raises the concern that spaces exterior to the unit are excluded 
from Section 1107.3.
    The comments the Department received on this issue, including those 
comments from ICC, reiterated that when applying the code, specific 
requirements override general requirements (Section 102.1). ICC pointed 
out that Section 1107.3 of the code is more specific than Sections 
1104.3 \5\ and 1104.4 In response to the Department's concern that 
Section 1107.3 did not appear to reach all of the types of public and 
common use facilities that typically serve residential units that are 
subject to the Act's accessibility requirements, the ICC expressed the 
view that no list may reasonably include all possible types of such 
facilities and that the focus must be placed on the first sentence in 
this code section, which states, ``Rooms and spaces available to the 
general public or available for use by residents and serve Accessible 
Units, Type A units and Type B units shall be accessible.'' This 
sentence would not limit coverage to interior spaces of dwelling units.
---------------------------------------------------------------------------

    \5\ ICC pointed out in its comments, as a related note, that 
Exception 2 to Section 1104.3 has since been deleted under changes 
to the 2003 IBC that appear in the 2004 Supplement, based on the 
view that Exception 2 was redundant with issues addressed under 
Section 1104.4.
---------------------------------------------------------------------------

    The Department's concern about Exception 4 of Section 1104.4 was 
that it could be read to allow construction of a 2-story building to 
include a common use element, e.g., a storage area, which is an element 
that is not for public use and is provided only for residents on a site 
with Type B dwelling units, on the inaccessible story. One commenter 
stated that Exception 4 to Section 1104.4 was added in the effort to 
coordinate with requirements under the ADA, and there should not be a 
higher level of access under the Act than that specified for other 
types of facilities. According to the Commentary, Exception 4 permits 
small nonpublic second floors to be inaccessible, such as the second 
floor in a doctor's office that is used only for storage. Commenters 
also pointed out that the specific requirements of Section 1107.3 would 
prevent Section 1104.4 Exception 4 from being used to permit the 
creation of inaccessible common use spaces where they would otherwise 
be required by the Act.
    The Department has carefully considered these public comments and 
the Sections of the code in question. In light of the public comments, 
in particular ICC's assertion that Section 1107.3 is more specific and 
overrides Sections 1104.3 and 1104.4, the Department is withdrawing its 
concerns.
    The Department is also withdrawing its concern about Exception 1 to 
Section 1104.4 because it was already reviewed and accepted as part of 
the safe harbor given to the IBC 2000 as amended by the 2001 
Supplement. Notwithstanding, some commenters misinterpreted the 
Department's recommendations in its draft report to mean that all 
public and common use spaces on all floors, including upper floors of a 
non-elevator building, must be accessible. The Department wishes to 
clarify that the Act and the Guidelines' requirement for accessible and 
usable public and common use spaces does not require such spaces that 
serve dwelling units on inaccessible stories of a non-elevator building 
to be accessible as long as comparable public and common use facilities 
are made available on an accessible route to covered dwelling units in 
the building.
6. Section 1105 Accessible Entrances: Section 1105.1.3, Restricted 
Entrances
    The draft report concluded that 2003 IBC Section 1105.1.3 did not 
meet the accessibility requirements of the Act and the Guidelines. The 
draft report recommended adding clarifying language to that section to 
ensure that at least one restricted entrance to each common use area 
serving a covered building be accessible. Based on the Department's 
review of the public comments, the Department has concluded that this 
provision is not an obstacle to safe harbor status for the 2003 IBC.
    As the draft report noted, 2003 IBC Section 1105 has been revised 
in its entirety. It is the Department's understanding that the 
revisions were intended to incorporate and be consistent with the new 
ADAAG. The revised section requires that in addition to accessible 
entrances required by six subsections, at least 50 percent of all 
public entrances must be accessible. Section 1105.1.3 reads as follows:

1105.1.3 Restricted entrances. Where restricted entrances are 
provided to a building or facility, at least one restricted entrance 
to the building or facility shall be accessible.

    The code definition of ``public entrance'' is an entrance that is 
not a service entrance or a restricted entrance. The definition of a 
``restricted entrance'' is an entrance that is made available for 
common use on a controlled basis, but not public use, and that is not a 
service entrance. There is a new code definition of ``common use 
area,'' which states: ``Interior or exterior circulation paths, rooms, 
spaces or elements that are not for public use and are made available 
for the shared use of two or more people.'' A ``public use area'' is 
defined as ``Interior or exterior rooms or spaces that are made 
available to the general public.''
    The draft report's conclusion was based on the interpretation of 
Section 1105.1.3 that only one of the common use areas must be 
accessible in a building which is subject to the Act and has multiple 
separate common use areas, each having a restricted entrance. The Act, 
the Department's regulations implementing the Act, and Requirement 2 of 
the Guidelines require that the public and common use areas that serve 
covered multifamily dwelling units must be readily accessible to and 
usable by persons with disabilities.
    Three organizations commented on and disagreed with the conclusion 
in the draft report. They all believed that Section 1105.1.3 complies 
with the requirements of the Act. However, each commenter had a 
different rationale. The ICC stated that the correct interpretation of 
Section 1105.1.3 is that ``if all entrances to a common use space are 
restricted entrances, then at a minimum, one accessible entrance is 
required to each common use space serving Accessible, Type A or Type B 
units.'' The ICC also referenced Section 1107.3 and Section 1107.4 of 
the 2003 IBC, which require an accessible route from the units to this 
accessible entrance. A second commenter believed that the examples of 
common use areas with restricted entrances in a covered building were 
``so remote they do not merit consideration.'' Without elaboration, 
this commenter stated that Section 1105.1.3 does meet the requirements 
of the Act for entrances even if Sections 1107.3 and 1107.4 were 
ignored.
    The third commenter on this issue acknowledged that the Code 
provision could be misinterpreted. However, this commenter pointed out 
that the code definition of ``facility'' is ``All or any portion of 
buildings, structures, site improvements, element and pedestrian or 
vehicular routes located on a site.'' (Emphasis added by the 
commenter.) The commenter concluded that based on this definition, 
particularly the words, ``or any portion of,'' and using the example in 
the draft report, if there

[[Page 9747]]

is controlled access to a building's weight room, laundry room, 
recreation room, and clubhouse, Section 1105.1.3 would require at least 
four accessible restricted entrances, that is, at least one for each 
facility.
    The draft report noted that 2003 IBC Section 1107.3 requires that 
rooms and spaces available to the general public or available for use 
by residents and serving Type B units shall be accessible. Additionally 
2003 IBC Section 1107.4 provides that at least one accessible route 
must connect the primary entrance of Type B dwelling units within a 
building or facility ``and with those exterior and interior spaces and 
facilities that serve the units.''
    It is clear from the ICC's unambiguous interpretation of Section 
1105.1.3, in response to the draft report, that this section was not 
intended to pre-empt the requirements of Sections 1107.3 and 1107.4. 
Additionally, the Department agrees that the inclusion of the term 
``facility'' in Section 1105.1.3 may obviate an incorrect 
interpretation of this code revision. Therefore, the Department 
withdraws its objections to Section 1105.1.3. However, the Department 
recommends that ICC modify the language of Section 1105.1.3 in a 
subsequent code change cycle to add the following clarifying language 
in response to this concern: ``Section 1105.1.3 Restricted entrances. 
Where restricted entrances are provided to a building or facility at 
least one of each type of restricted entrance to the building shall be 
accessible.''
7. Section 1107.7.5 Design Flood Elevation
    The Department's draft report concluded that the change in 
terminology used in Section 1107.7.5 from ``base flood elevation'' to 
``design flood elevation'' did not meet the requirements of the Act and 
the Guidelines. The Department recommended that if the new terminology 
is retained, that there also be a change in the text of Section 
1107.7.5. As discussed below, based on the comments received, and the 
Department's review of the legislative history of the Act with respect 
to site impracticality and flooding issues, the Department believes the 
intent of this section of the 2003 IBC is consistent with the intent of 
the Act, the Department's regulations and the Guidelines, and 
therefore, it is withdrawing this issue as an obstacle to safe harbor 
status for the 2003 IBC.
    Requirement 1(2)(b) of the Guidelines states:

    Site impracticality due to unusual characteristics. Unusual 
characteristics include sites located in a federally-designated 
floodplain or coastal high-hazard area and sites subject to other 
similar requirements of law or code that the lowest floor or the 
lowest structural member of the lowest floor must be raised to a 
specified level at or above the base flood elevation. (Emphasis 
added.) An accessible route to a building entrance is impractical 
due to unusual characteristics of the site when:
    i. The unusual site characteristics result in a difference in 
finished grade elevation exceeding 30 inches and 10 percent measured 
between an entrance and all vehicular or pedestrian arrival points 
within 50 feet of the planned entrance; or
    ii. If there are no vehicular or pedestrian arrival points 
within 50 feet of the planned entrance, the unusual characteristics 
result in a difference in finished grade elevation exceeding 30 
inches and 10 percent measured between an entrance and the closest 
vehicular or pedestrian arrival point.

    The phrase in the Guidelines ``the lowest floor or the lowest 
structural member of the lowest floor must be raised to a specified 
level at or above the base flood elevation'' is the same thing as the 
``design flood elevation.'' Therefore, the Guidelines allow using the 
design flood elevation.
    The 2003 IBC changes the term ``base flood elevation'' to ``design 
flood elevation.'' The 2003 IBC text reads as follows:

1107.7.5 Design flood elevation. The required number of Type A and 
Type B units shall not apply to a site where the lowest floor or the 
lowest structural building members of nonelevator buildings are 
required to be at or above the design flood elevation resulting in:
    1. A difference in elevation between the minimum required floor 
elevation at the primary entrances and vehicular and pedestrian 
arrival points within 50 feet (15 240 mm) exceeding 30 inches (762 
mm), and
    2. A slope exceeding 10 percent between the minimum required 
floor elevation at the primary entrances and vehicular and 
pedestrian arrival points within 50 feet (15 240 mm).

    According to ICC documents, the change from the term ``base flood 
elevation'' to ``design flood elevation,'' was done to harmonize 
terminology with the Federal Emergency Management Agency (FEMA).
    FEMA encourages local authorities to establish design flood 
elevations above the base flood plain. However, the Department's 
concern was that a local zoning or regulatory authority may impose an 
additional minimum height above the design flood elevation established 
by an authority having jurisdiction over the design flood elevation. 
Therefore, replacing the word ``Base'' with ``Design'' without deleting 
the words ``or above'' that permit additional height requirements above 
the design flood elevation established by the governing jurisdiction 
appeared to permit more site impracticality.
    The Department concluded in the draft report that this change does 
not meet the requirements of the Act and the Guidelines, and 
recommended that Section 1107.7.5 be revised as follows:

    Design flood elevation. The required number of Type A and Type B 
units shall not apply to a site where the required design flood 
elevation results in: * * *

    Several commenters, including ICC, reminded the Department that the 
phrase in the Guidelines which states, ``the lowest floor or the lowest 
structural member of the lowest floor must be raised to a specified 
level at or above the base flood elevation'' is the same as ``design 
flood elevation.'' One commenter said that only 5 percent of the 
communities that participate in the National Flood Insurance Program 
have established design flood elevations that are above the base flood 
elevation. Another commenter said that only 3 percent of the 
incorporated jurisdictions in the U.S. have a design flood elevation 
above the base flood elevation.
    While the Department has given consideration to comments it 
received on this issue, none of the commenters addressed our concern 
that a local zoning rule may require an additional height above the 
design flood elevation established by the governing authority. However, 
the Department is also cognizant of the fact that both the Department's 
regulations implementing the Act and the Guidelines recognize the need 
to adopt site impracticality criteria for sites with unusual 
characteristics such as floodplains or coastal high hazard areas which 
require the lowest floor to be raised a certain level at or above the 
base flood elevation. While the Act itself did not specify an 
impracticality standard for such situations, the legislative history 
indicated that Congress was sensitive to the possibility that certain 
natural terrain may pose unique building problems, and that in some 
locales, it is common to construct housing on stilts because of 
flooding problems. The Department believes the intent of this section 
of the 2003 IBC is consistent with the intent of the Act, HUD's 
regulations and the Guidelines; therefore, withdrawing the objection. 
However, ICC may wish to consider, in the future, revising the first 
sentence of Section 1107.7.5 as follows:

1107.7.5 Design flood elevation. The required number of Type A and 
Type B units shall not apply to nonelevator buildings on a site 
where the required design flood elevation results in:

[[Page 9748]]

    1. A difference in elevation between the minimum required floor 
elevation at the primary entrances and vehicular and pedestrian 
arrival points within 50 feet (15 240 mm) exceeding 30 inches (762 
mm), and
    2. A slope exceeding 10 percent between the minimum required 
floor elevation at the primary entrances and vehicular and 
pedestrian arrival points within 50 feet (15 240 mm).
8. Section 1109.13 Controls, Operating Mechanisms and Hardware: 
Exception 6
    The Department's draft report concluded that Exception 6 to Section 
1109.13, ``Controls, operating mechanisms and hardware,'' did not 
appear to meet the accessibility requirements of the Act since the text 
of Exception 6 is worded more broadly than the example included in the 
Commentary, which cited a ceiling fan with both a wall switch and a 
chain on the fan itself. The Department sought comments on whether the 
broader text of new Exception 6 for redundant controls should be 
revised to be more restrictive. Based on the Department's consideration 
of the comments it received on this issue, the Department is 
withdrawing this issue and does not consider it an obstacle to safe 
harbor status for the 2003 IBC.
    The 2003 IBC text reads as follows:

1109.13 Controls, operating mechanisms and hardware. Controls, 
operating mechanisms and hardware intended for operation by the 
occupant, including switches that control lighting and ventilation, 
and electrical convenience outlets, in accessible spaces, along 
accessible routes or as parts of accessible elements shall be 
accessible.
    Exceptions:
* * * * *

    6. Except for light switches, where redundant controls are provided 
for a single element, one control in each space shall not be required 
to be accessible.
    The draft report noted that IBC Resource Handbook (Code Change E81-
02, 11 page 442) states that the exceptions to Section 1109.13 
are similar to the exceptions already located in ICC/ANSI A117.1 
(1998). The Department currently recognizes ICC/ANSI A117.1-1998 as an 
acceptable means of complying with the Act's technical requirements. 
Further, the Department is a member of the ANSI A117 Committee and 
worked with the Committee to draft the text of Section 1003.9 of 
Chapter 10 of ICC/ANSI. Section 1003.9 of the ICC/ANSI A117.1-1998 
specifically exempts ``ceiling fan mounted controls.'' However, 2003 
IBC Section 1109.13, Exception 6, contains broader language. In 
addition, the IBC Commentary Vol. I (page 11-49) gave only one example 
of how Exception 6 would apply, citing a ceiling fan that could be 
operated by a wall switch and by the chain on the fan itself.
    The Department received three comments on this issue. Two 
commenters disagreed with the Department's conclusion that the language 
in Exception 6 is too broad. The ICC specifically said that other than 
ceiling fans (for which redundant controls are acceptable by the 
Guidelines), the most common example is range hood controls (which are 
not required by the Guidelines to be accessible). Another commenter, a 
proponent of the code text in Exception 6, pointed out that the text of 
ICC/ANSI A117.1, Section 1003.9, is not related to redundant controls, 
but rather, to controls mounted on the appliance itself. The commenter 
added that ceiling fans have a direction switch on ceiling fan housings 
which change the rotation from clockwise to counterclockwise, and it is 
impossible to provide an accessible control for this function short of 
disassembling the unit housing and voiding any warranty. This commenter 
pointed out that without the text of Exception 6, the concern is that 
some code officials could demand that inaccessible controls be removed 
even where redundant accessible controls are provided. Prohibiting any 
inaccessible controls could lead to requiring removal of fan and light 
switches on range hoods, which would also void the equipment's 
warranties.
    In light of the public comments, the Department believes its 
concerns have been sufficiently addressed and is, therefore, 
withdrawing its earlier finding. Based on the comments received, the 
Department concludes that Exception 6 is only likely to impact controls 
on fixtures and appliances which are not required by the Guidelines, 
i.e., ceiling fan and range hood controls.
9. 2004 IBC Supplement
    In its draft report, under HUD Issue 9, the Department outlined two 
areas of concern with a change to the 2003 IBC, Change E120-03/04, 
which was approved for the 2004 Supplement to the IBC. These two areas 
of concern are: (1) A change to Section 1107.7, General Exceptions, 
that impacts scoping for Type B dwelling units, and whether IBC Section 
1107 treats structures made up of buildings separated by firewalls as a 
single structure (as provided for in the Guidelines), or as separate 
buildings; and (2) a change to the text affecting the provision of 
accessibility in situations where there is an elevated walkway between 
a building entrance and opposing vehicular or pedestrian arrival 
points: specifically, whether the test for determining practicality 
will apply to the slope between the building entrance and vehicular or 
pedestrian arrival points (as provided for in the Guidelines), or 
between the building entrance and the opposing entrance to the walkway.
    The public comments received on Issue 9 have satisfied the 
Department that it can withdraw its first concern to the extent that 
concern related to the 2003 IBC. Therefore, the Department is 
withdrawing these concerns with respect to the 2003 IBC as they have no 
impact on safe harbor status for the 2003 IBC. However, the Department 
continues to maintain that the two areas of concern outlined under 
Issue 9 of the Department's August 6, 2004 draft report, would 
negatively impact safe harbor status for the 2004 Supplement and any 
future edition of the code, such as the 2006 IBC, that incorporates 
those changes.
    In the course of their comments on issue nine, the ICC and other 
organizations suggested that the Department should become more involved 
in the ICC model code change development process as it occurs, so that 
potential inconsistencies between future IBC code publications and 
HUD's interpretation of the accessibility requirements of the Act and 
the Guidelines can be avoided. The Department agrees that its 
participation would be beneficial, and if sufficient resources are 
available in the future, Department representatives will explore ways 
in which the Department can contribute to the ICC code change 
development process with respect to those code sections that relate to 
the accessibility requirements of the Act.

VII. Conclusion

    After full consideration of the comments received, the Department 
has been able to resolve seven of the eight issues that it raised in 
the draft report which relate specifically to the 2003 IBC. The 
Department has determined that with respect to the remaining issues, it 
can grant safe harbor status to the 2003 IBC conditioned upon ICC 
publishing and distributing a statement to jurisdictions and past and 
future purchasers of the 2003 IBC, stating that:

    ICC interprets Section 1104.1, and specifically, the Exception 
to Section 1104.1, to be read together with Section 1107.4, and that 
the Code requires an accessible pedestrian route from site arrival 
points to accessible building entrances, unless site impracticality 
applies. Exception 1 to Section 1107.4 is not applicable to site 
arrival points for any Type B dwelling units because site

[[Page 9749]]

impracticality is addressed under Section 1107.7.

    The Department expects that ICC will publish and disseminate this 
statement in the following ways:
    1. Placement on its Web site, especially on pages where technical 
aspects of 2003 IBC are described;
    2. Including the statement with all versions of 2003 IBC that are 
distributed 30 days after publication of HUD's final report;
    3. Within 45 days of the publication of HUD's final report, sending 
the statement by U.S. Mail and/or e-mail to jurisdictions and 
individuals on ICC's marketing lists for code materials, and
    4. Providing the statement orally or in writing whenever technical 
assistance is provided concerning the 2003 IBC requirements for 
accessible routes between site arrival points and accessible building 
entrances.
    During the next code change cycle, if ICC seeks to have the 2006 
edition of the IBC declared a safe harbor, ICC must modify the IBC to 
clearly state, in a manner acceptable to the Department, that an 
accessible pedestrian route must be provided from site arrival points 
to accessible building entrances of buildings required to provide Type 
B dwelling units, unless site impracticality applies.
    The Department has proffered one option of how ICC could modify the 
2003 IBC in the next code change cycle to meet this condition. 
Furthermore, the Department will explore with ICC ways that the 
Department can contribute to the ICC code change development process 
with respect to those code sections that relate to the accessibility 
requirements of the Act. While its resources are limited, the 
Department recognizes the importance of the inclusion in building codes 
of accessibility requirements that are consistent with the Act, the 
Department's implementing regulations, and Guidelines.

Environmental Impact

    This report is a policy document that sets out fair housing and 
nondiscrimination standards and provides for assistance in promoting 
fair housing and nondiscrimination. Accordingly, under 24 CFR 
50.19(c)(3), this report is categorically excluded from environmental 
review under the National Environmental Policy Act (42 U.S.C. 4321).

    Dated: February 18, 2005.
Carolyn Peoples,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 05-3640 Filed 2-23-05; 10:31 am]
BILLING CODE 4210-28-P