[Federal Register Volume 72, Number 137 (Wednesday, July 18, 2007)]
[Notices]
[Pages 39432-39438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13885]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5136-N-01]


Report of HUD Review of the Fair Housing Accessibility 
Requirements in the 2006 International Building Code

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

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice publishes a report of a review by the Department 
of Housing and Urban Development of certain accessibility provisions of 
the International Building Code, 2006

[[Page 39433]]

edition (2006 IBC), published by the International Code Council 
(ICC).\1\ This report has already been posted on HUD's Web site and is 
unchanged in the publication of this report in today's Federal 
Register.
---------------------------------------------------------------------------

    \1\ The 2003 International Building Code(copyright) is a 
copyrighted work owned by the International Code Council, Inc.
---------------------------------------------------------------------------

    This report pertains to a request to the Department by the ICC to 
review of the accessibility provisions of the 2006 IBC to determine 
whether those provisions are consistent with the accessibility 
requirements of the Fair Housing Act (the Act), the Department's 
regulations implementing the 1988 Amendments to the Act (regulations), 
and the Fair Housing Accessibility Guidelines (the Guidelines) so that 
the 2006 IBC could be recognized by the Department as a safe harbor for 
compliance with the law.
    The Department's 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 report, nor 
is this report an endorsement of a model building code. The Department 
is not shifting its responsibility to enforce the accessibility 
requirements of the Act to state or local building code jurisdictions. 
Further, the Department's report is not intended to limit or invalidate 
any law of a State or local government that requires dwellings to be 
designed and constructed in a manner that affords persons with 
disabilities greater access than is required by the Act. The Department 
recognizes, however, that one important way to increase compliance with 
the Act's design and construction requirements is to encourage 
incorporation of 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 via TTY by calling 
the toll-free Federal Information Relay Service at 1-800-877-8339 
(TTY). This Notice 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 
Fair Housing Act (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.'' These basic accessibility requirements are 
known as the Act's design and construction requirements.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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 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.
    On January 23, 1989 (54 FR 3232), HUD published its final 
regulations implementing the Fair Housing Amendments Act of 1988. In 
the final regulation, HUD adopted the 1986 edition of ANSI A117.1, 
which was the most recent edition in effect at that time, as the 
appropriate edition for acceptable compliance with the Act. HUD's 
regulation adopting the ANSI A117.1 standard is located at 24 CFR 
100.201. HUD's regulations implementing the design and construction 
requirements are located at 24 CFR 100.205. The Department's 
regulations specify that compliance with the appropriate requirements 
of ANSI A117.1-1986 satisfies the technical requirements of the Act 
relating to dwelling units. 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. Elsewhere in today's 
edition of the Federal Register, the Department is publishing a 
proposed rule to adopt the current edition of ANSI A117.1, which is the 
2003 ICC/ANSI A117.1. The proposed rule will also stipulate that 
compliance with the appropriate requirements of the 1986, 1992 and 1998 
editions remain sufficient to satisfy the Act's design and construction 
requirements.
    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].'' On March 6, 
1991 (56 FR 9472), the Department published the ``Final Fair Housing 
Accessibility Guidelines'' 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.'' On June 24, 1994 (59 FR 33362), 
the Department published its ``Supplement to Notice of Fair Housing 
Accessibility Guidelines: Questions and Answers about the Guidelines.'' 
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 
Department also provides training and technical guidance through its 
Fair Housing Accessibility FIRST program: 
(http:www.fairhousingfirst.org).
    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. 
However, Congress authorized the Department to encourage

[[Page 39434]]

inclusion of these requirements into their state and local procedures.
    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.
---------------------------------------------------------------------------

    \3\ 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. 
Further, federally funded facilities and dwelling units covered by 
section 504 of the Rehabilitation Act of 1973 (Section 504), the 
Architectural Barriers Act (ABA), 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.
---------------------------------------------------------------------------

B. Prior HUD Reviews of Model Building Codes

    In 1999 and 2004, HUD reviewed certain model building codes to 
determine if the accessibility provisions in these model codes met the 
design and construction requirements set forth in the Act, the 
regulations, and the Guidelines. In conjunction with these reviews, HUD 
reviewed the 1992 and 1998 editions of ANSI A117.1. On March 23, 2000 
(65 FR 15740), HUD published its Final Report of HUD Review of Model 
Building Codes. In this report, HUD stated that it reviewed the 1992 
CABO/ANSI A117.1 and the 1998 ICC/ANSI A117.1 and determined that these 
editions provide at least the same level of accessibility as the 1986 
edition of ANSI A117.1. HUD reiterated this view in its February 28, 
2005 (70 FR 9738), Final Report of HUD Review of the Fair Housing 
Accessibility Requirements in the 2003 International Building Code, 
which uses the 1998 edition of ICC/ANSI A117.1. Both of these reports 
are available at: http://www.hud.gov/offices/fheo/disabilities/modelcodes/. These reports point out that because the ANSI A117.1 
standard contains only technical criteria, designers and builders 
relying on the ANSI A117.1 standard also need to consult the Act, the 
Department's regulations, and the Guidelines for the scoping criteria. 
Scoping criteria define when a building, element or space must be 
accessible. Designers and builders also have the option of following 
one of the other HUD-recognized safe harbors which include scoping 
requirements.

C. Background on the International Building Code

    The International Code Council was formed in an effort to bring 
national uniformity to building codes. Representatives of three former 
national model code bodies joined together to develop what are now 
called the International Codes, or I-Codes. The International Building 
Code is a major volume of the I-Codes, and contains provisions for 
accessibility designed 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 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 may 
be found in numerous types of buildings, and not just residential 
buildings. A second level of accessibility is set forth in the 
requirements for ``Type A'' dwelling units. Under the IBC, a percentage 
of ``Type A'' units must be provided containing 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 Act. Like the 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.

II. HUD Review of the 2006 International Building Code

A. 2006 IBC

    In July 2006, ICC contacted the Department to request that HUD 
review the accessibility requirements contained in the 2006 IBC to make 
a determination as to whether the 2006 IBC would be deemed a safe 
harbor for compliance with the Act's design and construction 
requirements. ICC provided HUD with a side-by-side matrix of the 2003 
and 2006 provisions in the IBC and related code documents which are 
intended to address the Act's design and construction requirements. ICC 
also provided copies of the 2006 International Codes and the 2006 Code 
Commentary.
    During its review of the 2003 IBC, HUD determined that there was 
one section of that code which could be interpreted in a manner which 
would be inconsistent with the requirements of the Fair Housing Act and 
a second section that needed further clarification. These sections 
related to accessible routes and site arrival points, as well as the 
circumstances under which it was permissible to use a vehicular route 
instead of an accessible pedestrian route between exterior public and 
common use areas. HUD advised ICC that approval of the 2003 IBC as a 
safe harbor was contingent upon ICC publishing and distributing a 
statement to jurisdictions and past and future purchasers of the 2003 
IBC stating, ``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.''
    In addition, in its Final Report on the 2003 IBC (70 FR 9738, 
published February 28, 2005), the Department stated: ``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 concerns with the two sections in the IBC 2003 
were addressed through the following code changes that appear in the 
2006 IBC (to aid the public's review, changes are shown with deletions 
in brackets and additions in italic):
    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

[[Page 39435]]

streets or sidewalks to the accessible building entrance served.
    Exception: Other than in buildings or facilities containing or 
serving Type B units [complying with Section 1107.3], 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.
    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 due to circumstances outside the control of the owner, either 
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 or legal restrictions, prevent the 
installation of an accessible route, a vehicular route with parking 
that complies with Section 1106 at each public or common use facility 
or building is permitted in place of the accessible route.
    2. Exterior decks * * * (no change in text).

B. Missing Text--Section 1107.7.5 Design Flood Elevation

    During its review of the 2006 IBC, the Department noted that text 
is missing from Section 1107.7.5, Design Flood Elevation, which appears 
in the 2003 edition. The missing text is shown below, in bold.
    1107.7.5 Design Flood Elevation. The required number of Type A and 
Type B units shall not apply to a site where the required elevation of 
the lowest floor or the lowest horizontal structural building members 
of nonelevator buildings are 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).
    Where no such arrival points are within 50 feet (15 240 mm) of the 
primary entrances, the closest arrival point shall be used.
    The Department contacted ICC and learned that the text was 
erroneously left out when the 2006 IBC was published. ICC published an 
erratum on its Web site at: http://www.iccsafe.org/cs/codes/errata/2006IBC.html on January 31, 2007. Therefore, the Department is not 
making a finding of inconsistency, but is alerting users of the code to 
the missing text and the need to obtain the January 31, 2007 erratum.

C. Commentary for 2006 IBC Section 1107.4

    In Fall, 2005, at ICC's request, the Department provided ICC with 
commentary to aid code officials in properly interpreting situations 
that would qualify as circumstances that are beyond the control of the 
owner. The Department's commentary appears below. ICC included this 
commentary in the 2006 IBC Commentary, Volume I, Pages 11-18 through 
11-20. ICC made some editorial changes to HUD's language; however, HUD 
has determined that the changes do not change the substance of the 
commentary.

HUD Commentary for Section 1107.4 of 2006 IBC

    The intent of this section is to ensure that there will be at least 
one accessible route that connects all accessible building and facility 
entrances with the entrance of all Accessible, Type A and Type B units. 
To qualify as an accessible route, a route must serve pedestrians 
(i.e., sidewalk or other walkway). People with disabilities who need 
the features of an Accessible, Type A or Type B dwelling or sleeping 
unit cannot use them if accessible routes are not provided from the 
entrances of buildings or facilities to the primary entrance to their 
dwelling or sleeping unit. There also must be accessible routes 
connecting accessible building or facility entrances with all interior 
and exterior spaces and facilities that serve such dwelling or sleeping 
units. For example, if a development has a recreational facility such 
as a community center, persons with disabilities who need the features 
of an Accessible, Type A or Type B unit need an accessible route from 
their dwelling unit to that community center.
    Exception 1 is intended to provide consistency with the federal 
Fair Housing Act, which recognizes that, in very rare circumstances, an 
accessible pedestrian route between an accessible entrance to a Type B 
dwelling unit or an accessible entrance to a building containing Type B 
units and an exterior public use or common use facility may be 
impractical because of factors outside the control of the owner. 
Section 1107.4 requires an accessible pedestrian route between covered 
dwelling units and public use or common use areas and facilities that 
are required to be accessible except in rare circumstances outside the 
control of the owner where extreme terrain or impractical site 
characteristics result in a finished grade exceeding 8.33 percent or 
physical barriers or legal restrictions prevent the installation of an 
accessible pedestrian route. In these cases, Exception 1 allows access 
to be provided by means of a vehicular route leading from the 
accessible parking serving the Type B dwelling unit to the accessible 
parking serving the public use or common use facility. Accessible 
parking complying with IBC Section 1106 must be provided in each 
parking area. If a building containing Type B units also contains units 
with accessible features that are required by other code provisions or 
federal, state or local laws, then Exception 1 may not apply at all.
    It is important to understand that compliance with the accessible 
design and construction requirements of the Fair Housing Act is a legal 
obligation applicable to all architects, engineers, builders, 
developers, and others involved in the design and construction of 
housing that is required to meet the accessibility requirements of the 
Fair Housing Act. HUD's regulations implementing the Fair Housing Act 
make it clear that the burden of showing the applicability of 
exceptions is the responsibility of those individuals and entities 
involved in the design and construction of such housing. In order to 
ensure compliance with the Fair Housing Act, architects, engineers, 
developers, builders, and others who use the IBC must make 
accessibility a priority at the planning and design phase of Group I 
and Group R developments, including the siting of housing and public 
use or common use areas. To do this, at the initial stage of site 
planning and design for all sites, before considering whether Exception 
1 applies, persons and entities involved in the design of covered 
residential occupancies must have determined whether and how the 
exceptions at Sections 1107.7.4 and 1107.7.5 apply.
    After careful site planning and design has been completed, the 
following factors may then be considered to determine whether it is 
outside the control of the owner to provide an accessible pedestrian 
route between a building/Type B dwelling unit entrance and a given 
public use or common use facility. Each such route must be analyzed 
individually. Exception 1 will only apply when at least one of the 
following factors is present:

[[Page 39436]]

    Factors:
    1. Legal restrictions outside the control of the owner. These 
include setback requirements, tree-save ordinances, easements, 
environmental restrictions, and other limitations that prevent 
installation of an accessible pedestrian route without violating the 
law.
    2. Physical barriers outside the control of the owner. These 
include physical characteristics of the site, which are outside the 
control of the owner, that prevent the installation of an accessible 
pedestrian route.
    3. On sites that qualify for the exceptions at 1107.7.4 and 
1107.7.5, the presence of extreme terrain or other unusual site 
characteristics (e.g., flood plain, wetlands) outside the control of 
the owner that would require substantial additional grading to achieve 
a slope that will allow for an accessible pedestrian route.
    In considering whether the additional grading is substantial enough 
to qualify for Exception 1, one must consider the extent to which the 
builder has elected to grade the site for other purposes unassociated 
with accessibility. If grading for those other purposes is extensive, 
then substantial additional grading would be required to provide the 
required accessible pedestrian route. If grading for other purposes is 
not extensive, and substantial additional grading is necessary to 
provide an accessible pedestrian route, then reliance on Exception 1 
would be appropriate. Note: In determining whether the additional 
grading is substantial, one may not consider the grading that the 
builder must perform to provide accessible pedestrian routes from site 
arrival points to the accessible entrances of Type B dwelling or 
sleeping units.
    If none of the factors above are present, Exception 1 does not 
apply. If one or more of these factors is present, then the next step 
in determining whether Exception 1 applies (i.e., the vehicular route 
is the only feasible option), is to consider alternative locations and 
designs for buildings, facilities, and accessible pedestrian routes 
connecting each accessible building/Type B dwelling unit entrance and 
each public use or common use area required to be accessible to ensure 
that there is no other way to provide the required accessible 
pedestrian routes. It is important to recognize that if a road sloping 
8.33 percent or less can be provided, then an accessible pedestrian 
route would also be feasible and must be provided.
    Following are some examples to illustrate the proper application of 
Exception 1:
    Example 1: An undisturbed site has slopes of 8.33 percent or less 
between planned accessible entrances to Type B dwelling units and 
public use or common use areas and no legal restrictions or other 
unique characteristics preventing the construction of accessible 
routes. For aesthetic reasons, the developer would like to create some 
hills or decorative berms on the site. Because there are no extreme 
site conditions (severe terrain or unusual site characteristics such as 
floodplains), and no legal barriers that prevent installation of an 
accessible pedestrian route between the buildings/Type B dwelling units 
and any planned public use or common use facilities, the developer will 
still be obligated to provide accessible pedestrian routes. Exception 1 
to Section 1107.4 is inapplicable in this circumstance.
    Example 2: A developer plans to build several buildings with Type B 
units clustered in a level area of a site that has some slopes of 10 
percent. A swimming pool and tennis court will be added on the two 
opposing sides of the site. The builder plans grading that will result 
in a finished grade exceeding a slope of 8.33 percent along the route 
between the Type B units and the swimming pool and tennis court. There 
are no physical barriers or legal restrictions outside the control of 
the owner or builder that prevent the builder from reducing the 
existing grade to provide an accessible pedestrian route between the 
Type B units and the pool and tennis courts. Therefore, the builder's 
building plan would not be approved under the IBC because it is within 
the owner's control to assure that the final grading falls below 8.33 
percent and meets the slope and other requirements for an accessible 
pedestrian route. Accessible pedestrian routes between the Type B 
units, pool and tennis court must be provided.
    Example 3: A multi-family housing complex is built on two sections 
of a large piece of property, which is divided by a wide stream running 
through protected wetlands. Both sections of the property are at the 
same relative elevation and have dwelling units with accessible routes 
from site arrival points. However, a combination clubhouse and swimming 
pool is located on one section of the property. Access to each section 
is provided by an existing public road outside the boundary of the 
site, which includes a bridge over the stream. Environmental 
restrictions prevent construction of any type of paved surface between 
the two sections within the boundary of the site. If environmental 
restrictions do not prevent the construction of an accessible 
pedestrian route such as a boardwalk through the wetlands connecting 
the two sections, then the accessible pedestrian route must be provided 
even if a road cannot be provided. If construction of any type of 
pedestrian route is prohibited, then a vehicular route that utilizes 
the public road and bridge is permitted with parking complying with IBC 
1106 located at the clubhouse/swimming pool, even though the vehicular 
route relies on a public road instead of a road through the 
development.
    Example 4: A narrow and deep site has a level section in the front 
taking up most of the site and another level section at the back that 
is located up a steep incline. The developer will place all of the 
buildings/Type B dwelling units on the front section, assuring 
accessible routes from site arrival points to building entrances. After 
considering all options for siting buildings and facilities in 
different locations, including the priority of accessibility, the only 
feasible location for a planned swimming pool is at the top of the 
higher section to the rear of the property. Because of the narrowness 
of the site and the relative elevation of the upper level at the rear 
of the property, it is not possible to construct an accessible 
pedestrian route to the pool. However, a road that slopes more than 
8.33 percent can be provided. Under these circumstances, Exception 1 is 
applicable and access to the swimming pool on the upper level of the 
site may be provided by means of a vehicular route with parking 
complying with Section 1106 provided at the pool.
    Example 5: A developer plans to build a multi-family housing 
complex with non-elevator buildings on a site with hilly terrain. All 
of these buildings will have some Type B dwelling units. The developer 
plans to locate tennis courts on the site. There are gentle slopes 
exceeding 8.33 percent with existing trees between the entrances to the 
Type B units and the tennis courts. There is also a tree-save ordinance 
in place. If the builder can grade the site to allow for an accessible 
pedestrian route to the tennis courts without disturbing the trees in 
violation of the tree-save ordinance, then an accessible pedestrian 
route between the Type B units and the planned location of the tennis 
courts must be provided. If however, the grading necessary to reduce 
the slope of the site near the trees to provide an accessible route 
would cause tree loss or damage in violation of the ordinance, then the

[[Page 39437]]

developer cannot grade without violating the tree-save ordinance. The 
developer must then consider whether the tennis courts can be relocated 
so they are served by an accessible pedestrian route and if yes, the 
tennis courts must be relocated. If the tennis courts cannot be 
relocated so they can be served by an accessible pedestrian route, then 
the developer may provide a vehicular route from the Type B dwelling 
units to the tennis court with parking complying with Section 1106 at 
the tennis courts. Note, however, that if the developer can provide an 
accessible pedestrian route from some of the buildings without 
violating the ordinance, the developer must do so, even if it is 
necessary to provide a vehicular route from other buildings. 
Additionally, if the grading and construction of the proposed vehicular 
route can be limited to 8.33 percent by design and would not violate 
the tree-save ordinance, it is likely that an additional accessible 
walkway adjacent to the vehicular route would also fall under the scope 
of work that would not violate the tree-save ordinance and, therefore, 
must be provided, eliminating the use of Exception 1.

D. ICC/ANSI A117.1-2003 Edition

    The 2006 IBC requires buildings and facilities to be accessible in 
accordance with the code and ICC/ANSI A117.1-2003, Accessible Buildings 
and Facilities. With respect to the design and construction of Type B 
dwelling units, the 2006 IBC references the requirements of Chapter 10 
of 2003 ICC/ANSI A117.1. The Department has reviewed the technical 
standards of the 2003 ICC/ANSI A117.1, particularly the technical 
criteria for the Type B dwelling unit in Chapter 10, to determine if 
these technical criteria provide at least the same level of 
accessibility as the 1986 edition of ANSI A117.1, which is the edition 
that was in effect at the time the Act was passed. Having completed 
this review, the Department believes that the technical criteria of the 
2003 ICC/ANSI A117.1 are consistent with the Act and constitute a safe 
harbor when used together with the Act, HUD's regulations and the 
Guidelines for the scoping requirements. Similarly, the technical 
criteria of the 2003 ICC/ANSI A117.1 constitute a safe harbor when used 
together with one of the other HUD-recognized safe harbors that provide 
scoping requirements. ANSI A117.1 is a technical standard on how to 
make buildings, elements or spaces accessible. Since it lacks specific 
details on scoping requirements, it is necessary to consult a safe 
harbor document that provides scoping information.
    Elsewhere in today's Federal Register, the Department is publishing 
a proposed rule proposing to adopt the 2003 ICC/ANSI A117.1 
accessibility standard, and stipulating that the 1998, 1992 and 1986 
editions of ANSI A117.1 continue to be available as safe harbors. In 
its proposed rule, the Department is seeking comments on the efficacy 
of continuing to recognize older editions of the ANSI standard.

E. HUD Determination of 2006 IBC as a Safe Harbor

    Through this report, HUD is formally announcing that it has 
assessed the provisions of the 2006 edition of the International 
Building Code, with the January 31, 2007 erratum, that relate to 
facilities covered by the Act. HUD has determined that these 
provisions, when interpreted in accordance with relevant 2006 IBC 
Commentary, are consistent with the Act, HUD's regulations, and the 
Fair Housing Accessibility Guidelines. Therefore, the 2006 IBC, with 
the 2007 erratum, constitute a safe harbor for compliance with the 
design and construction requirements of the Act, HUD's regulations and 
the Guidelines, when used in accordance with HUD policy, as discussed 
below.
    The 2006 IBC is a publication of the International Code Council. 
The Department is not promulgating any new regulatory, legal or 
technical requirements or standards by way of this report, nor is this 
report an endorsement of a model building code. Further, the Department 
is not shifting its responsibility for enforcement of the Act's 
accessibility requirements. The Department's report explains under what 
conditions the 2006 IBC will serve as a safe harbor for compliance with 
the design and construction requirements of the Act, and provides 
guidance on the Department's enforcement policies concerning the 
requirements of the Act and HUD-recognized safe harbor documents.

III. HUD Recognized Safe Harbors and HUD Policy

    With its review of the 2006 International Building Code and the 
2003 ICC/ANSI A117.1 as safe harbors, the Department currently 
recognizes ten safe harbors for compliance with the design and 
construction requirements of the Act. These documents are:
    1. Fair Housing Accessibility Guidelines, March 6, 1991 (http://www.hud.gov/offices/fheo/disabilities/fhefhag.cfm), in conjunction with 
the June 28, 1994 Supplement to Notice of Fair Housing Accessibility 
Guidelines: Questions and Answers About the Guidelines (http://www.hud.gov/offices/fheo/disabilities/fhefhasp.cfm);
    2. Fair Housing Act Design Manual (http://www.huduser.org/publications/destech/fairhousing.html), 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 (available from 
Global Engineering Documents, 15 Inverness Way East, Englewood, 
Colorado 90112), 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 (http://www.iccsafe.org), 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 (http://www.iccsafe.org), HUD's regulations, and the Guidelines for the scoping 
requirements;
    6. ICC/ANSI A117.1-2003, Accessible and Usable Buildings and 
Facilities (http://www.iccsafe.org), in conjunction with the Fair 
Housing Act, HUD's regulations, and the Guidelines for the scoping 
requirements;
    7. 2000 ICC Code Requirements for Housing Accessibility (CRHA), 
published by the International Code Council (ICC), October 2000 (http://www.iccsafe.org) (ICC has issued an errata sheet to the CRHA);
    8. 2000 International Building Code (IBC), as amended by the 2001 
Supplement to the International Building Code (2001 IBC Supplement);
    9. 2003 International Building Code (IBC) (http://www.iccsafe.org), 
\4\ published by ICC December 2002, with one condition: Effective 
February 28, 2005, HUD determined that the IBC 2003 is a safe harbor, 
conditioned upon ICC publishing and distributing a statement to 
jurisdictions and past and future purchasers of the 2003 IBC stating, 
``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

[[Page 39438]]

units because site impracticality is addressed under Section 1107.7''; 
and
---------------------------------------------------------------------------

    \4\ ICC's website includes information about the condition on 
the 2003 IBC at the following links: http://www.iccsafe.org/news/nr/2005/index.html; http://www.iccsafe.org/government/news/; http://www.iccsafe.org/news/ePeriodicals/eNews/archive/ICCeNews_0305.html.
---------------------------------------------------------------------------

    10. 2006 International Building Code (http://www.iccsafe.org), 
published by ICC, January 2006, with the 2007 erratum (to correct the 
text missing from Section 1107.7.5), and interpreted in accordance with 
relevant 2006 IBC Commentary.
    HUD's March 23, 2000 Final Report addresses HUD's policy with 
respect to the above safe harbors. If a state or locality has adopted 
one of the above documents without modification to the provisions that 
address the Act's design and construction requirements, a building that 
is subject to these requirements will be deemed compliant provided the 
building is designed and constructed in accordance with construction 
documents approved during the building permitting process and the 
building code official does not waive, incorrectly interpret, or 
misapply one or more of those requirements. However, neither the fact 
that a jurisdiction has adopted a code that conforms with the 
accessibility requirements of the Act, nor that construction of a 
building subject to the Act was approved under such a code, changes 
HUD's statutory responsibility to conduct an investigation, following 
receipt of a complaint from an aggrieved person, to determine whether 
the requirements of the Act have been met. Nor does either fact 
prohibit the Department of Justice from investigating whether 
violations of the Act's design and construction provisions may have 
occurred. The Act provides that: ``determinations by a State or unit of 
general local government under paragraphs 5(A) and (B) shall not be 
conclusive in enforcement proceedings under this title.''
    HUD's investigation of an accessibility discrimination complaint 
under the Act typically involves a review of building permits, 
certificates of occupancy, and construction documents showing the 
design of the buildings and the site, and an on-site survey of the 
buildings and property. During the investigation, HUD investigators 
take measurements of relevant interior and exterior elements on the 
property. All parties to the complaint have an opportunity to present 
evidence concerning whether HUD has jurisdiction over the complaint, 
and whether the Act has been violated, as alleged. In enforcing the 
design and construction requirements of the Fair Housing Act, a prima 
facie case may be established by proving a violation of HUD's Fair 
Housing Accessibility Guidelines. This prima facie case may be rebutted 
by demonstrating compliance with a recognized, comparable, objective 
measure of accessibility. See Order on Secretarial Review, U.S. 
Department of Housing and Urban Development and Montana Fair Housing, 
Inc. v. Brent Nelson, HUD ALJ 05-068FH (September 21, 2006) (2006 WL 
4540542).
    In making a determination as to whether the design and construction 
requirements of the Fair Housing Act have been violated, HUD uses the 
Fair Housing Act, the regulations, and the Guidelines, which reference 
the technical standards found in ANSI A117.1-1986.
    It is the Department's position that the above-named documents 
represent safe harbors only when used in their entirety; that is, once 
a specific safe harbor document has been selected, the building in 
question should comply with all of the provisions in that document that 
address the Fair Housing Act design and construction requirements to 
ensure the full benefit of the safe harbor. The benefit of safe harbor 
status may be lost if, for example, a designer or builder chooses to 
select provisions from more than one of the above safe harbor documents 
or from a variety of sources, and will be lost if waivers of provisions 
are requested and received. A designer or builder taking this approach 
runs the risk of building an inaccessible property. While this does not 
necessarily mean that failure to meet all of the respective provisions 
of a specific safe harbor will result in unlawful discrimination under 
the Fair Housing Act, designers and builders that choose to depart from 
the provisions of a specific safe harbor bear the burden of 
demonstrating that their actions result in compliance with the Act's 
design and construction requirements. HUD's purpose in recognizing a 
number of safe harbors for compliance with the Fair Housing Act's 
design and construction requirements is to provide a range of options 
that, if followed in their entirety during the design and construction 
phase, will result in residential buildings that comply with the design 
and construction requirements of the Fair Housing Act, so long as they 
are applied without modification or waiver.

IV. Conclusion

    Through this report, the Department is formally announcing that it 
has assessed the provisions of the 2006 International Building Code, as 
corrected by the January 31, 2007 erratum, that relate to facilities 
covered by the Act. HUD has determined that these provisions, when 
interpreted in accordance with relevant 2006 IBC commentary, are 
consistent with the Act, HUD's regulations, and the Fair Housing 
Accessibility Guidelines. Therefore, the 2006 IBC, as corrected by the 
January 31, 2007 erratum to the IBC, if adopted without modification 
and without waiver of any of the provisions intended to address the 
Fair Housing Act's design and construction requirements, constitute a 
safe harbor for compliance with the design and construction 
requirements of the Act, HUD's regulations and the Guidelines, and 
interpreted in accordance with relevant 2006 IBC commentary. The 
Department looks forward to continuing to work with members of the 
housing industry, persons with disabilities and advocacy organizations, 
model code officials, state and local governments, fair housing 
organizations and all other interested parties on our common goal of 
eliminating discrimination against persons with disabilities and 
eliminating structural barriers to housing choice for persons with 
disabilities.

Environmental Impact

    This report is a policy document that sets out fair housing and 
nondiscrimination standards. 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: May 31, 2007.
Kim Kendrick,
Assistant Secretary for Fair Housing and Equal Opportunity.
 [FR Doc. E7-13885 Filed 7-17-07; 8:45 am]
BILLING CODE 4210-67-P