[Federal Register Volume 79, Number 100 (Friday, May 23, 2014)]
[Rules and Regulations]
[Pages 29671-29676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11844]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 8
[Docket No. FR-5784-N-01]
Nondiscrimination on the Basis of Disability in Federally
Assisted Programs and Activities
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Instructions for use of alternative accessibility standard.
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SUMMARY: HUD is issuing this document to permit recipients of Federal
financial assistance from HUD (HUD recipients) to use an alternative
accessibility standard for purposes of complying with Section 504 of
the Rehabilitation Act of 1973 (Section 504) and HUD's implementing
regulation at 24 CFR part 8 (Section 504 regulation) until HUD formally
revises its Section 504 regulation to adopt an updated accessibility
standard. In March 2011, the Department of Justice (DOJ), pursuant to
its coordination authority under Section 504, advised Federal agencies
that they may permit covered entities to use the 2010 ADA Standards for
Accessible Design (2010 Standards) as an acceptable alternative to the
Uniform Federal Accessibility Standards (UFAS) until such time as they
update their agency's regulation implementing the Federally assisted
provisions of Section 504. Consistent with DOJ's advice, this document
provides HUD recipients the option of using the 2010 Standards under
title II of the ADA, except for certain specific provisions identified
in this document, as an alternative accessibility standard to UFAS for
purposes of complying with Section 504 and HUD's Section 504 regulation
for new construction and alterations commenced on or after May 23,
2014. This document is in effect until HUD formally revises its Section
504 regulation to adopt an updated accessibility standard.
DATES: Effective Date: May 23, 2014.
FOR FURTHER INFORMATION CONTACT: Cheryl Kent, Special Advisor for
Disability Policy, Office of Program Compliance and Disability Rights,
Department of Housing and Urban Development, 451 Seventh Street, SW.,
Washington, DC 20410, telephone 202-402-7058 (this is not a toll-free
number). Individuals who are deaf, are hard of hearing, or have speech
impairments may access this number via TTY by calling the toll-free
Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Overview
HUD's Section 504 regulation requires that programs or activities
receiving Federal financial assistance be readily accessible to and
usable by persons with disabilities. HUD's Section 504 regulation
provides that the design, construction, or alteration of buildings and
facilities in conformance with UFAS is deemed to be in compliance with
the accessibility requirements of Section 504 (24 CFR 8.32). Many of
the programs or activities that are subject to HUD's Section 504
regulation, however, are also subject to title II of the ADA, which
applies to public entities, or title III of the ADA, which covers
certain private entities, including public accommodations, and are
therefore required to comply with the 2010 Standards. When more than
one law and accessibility standard applies, it is currently necessary
for the recipient to determine on a section-by-section basis which
standard affords greater accessibility.
In March 2011, DOJ advised Federal agencies that they may provide
covered entities the option of using the 2010 Standards as an
acceptable alternative to UFAS (www.ada.gov/504_memo_standards.htm)
until such time as they update their agency's regulation implementing
the Federally assisted provisions of Section 504. Because many
recipients of Federal financial assistance are also subject to the
Americans with Disabilities Act (ADA), Federal agencies requested this
authority to minimize the number of accessibility standards with which
recipients of Federal financial assistance must comply.
HUD has identified certain provisions in the 2010 Standards that
provide less accessibility than is currently required by UFAS and/or
HUD's Section 504 regulation. As a result, HUD is not deeming use of
those specific provisions of the 2010 Standards as a means of providing
accessibility under Section 504 because HUD cannot decrease the level
of accessibility currently required by its Section 504 regulation
without engaging in notice and comment rulemaking. Those provisions are
summarized in the Appendix of this document.
The option to utilize the 2010 Standards under title II of the ADA,
except for certain provisions identified in this document, is available
to all HUD recipients for purposes of complying with HUD's Section 504
regulation whether they are private or
[[Page 29672]]
public entities, including HUD recipients covered by Section 504 but
not title II or III of the ADA. For purposes of complying with Section
504, a HUD recipient must designate the accessibility standard it is
using: The 2010 Standards with identified exceptions outlined in this
document or UFAS. Recipients that prefer to use UFAS as the
accessibility standard under Section 504 may continue to do so. If a
recipient subject to both Section 504 and the ADA decides to continue
to use UFAS to comply with HUD's Section 504 requirements, it must
determine, section-by-section, which standard (2010 Standards or UFAS)
affords greater accessibility and comply with that provision. If
choosing the 2010 Standards for purposes of compliance with Section
504, the recipient need only comply with the 2010 Standards except that
it must not apply those provisions not deemed as compliant in this
document and must continue to apply those provisions of UFAS or the HUD
regulation that are specifically identified in this document. HUD also
reminds recipients that the design and construction requirements of the
Fair Housing Act (FHAct) continue to apply to new construction of
covered multifamily dwellings. These requirements are not affected by
this document. However, some of these requirements impose greater
accessibility requirements than the 2010 Standards.
II. Definitions of Standards and Guidelines Referenced in This Document
1991 Standards means the requirements in the ADA Standards for
Accessible Design published as Appendix A to 28 CFR part 36 on July 26,
1991, and republished as Appendix D to 28 CFR part 36 on September 15,
2010. For purposes of compliance with title II of the ADA, covered
entities were not permitted to use the elevator exemption contained at
sections 4.1.3(5) and 4.1.6(1)(j) of the 1991 Standards.
2004 ADA and ABA Accessibility Guidelines means the minimum
accessibility guidelines published by the United States Access Board in
2004 for both the ADA and the Architectural Barriers Act (ABA).\1\
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\1\ 36 CFR part 1191. The full text of the 2004 ADA and ABA
Accessibility Guidelines is available at the U.S. Access Board's Web
site, http://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/background/ada-aba-accessibility-guidelines-2004.
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2004 ADAAG means the requirements set forth in Appendices B and D
to 36 CFR 1191 which are the ADA scoping chapters and the common
technical requirements in the ADA and ABA Accessibility Guidelines.
2004 ABAAG means the requirements set forth in Appendices C and D
to 36 CFR 1191 which are the ABA scoping chapters and the common
technical requirements in the ADA and ABA Accessibility Guidelines.
UFAS means the Uniform Federal Accessibility Standards. HUD's
Section 504 regulation references sections 3 through 8 of UFAS for
purposes of compliance with Section 504.\2\
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\2\ 24 CFR 8.32.
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2010 Standards means the 2010 ADA Standards for Accessible Design
as defined in the regulation implementing title II of the ADA and
consists of the 2004 ADAAG as applied to entities covered by title II
of the ADA (i.e., public entities) and the requirements contained in 28
CFR 35.151.
III. Background
A. Section 504
Section 504 and HUD's Section 504 regulation prohibit
discrimination on the basis of disability in any program or activity
that receives Federal financial assistance from the Department.\3\
HUD's Section 504 regulation specifically prohibits the denial of
benefits of, exclusion from participation in, or other discrimination
against qualified individuals with disabilities in Federally assisted
programs or activities because a recipient's facilities are
inaccessible to or unusable by individuals with disabilities.\4\ Among
other things, the regulation requires that the design, construction,
and alteration of projects meet physical accessibility requirements.\5\
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\3\ 29 U.S.C. 794.
\4\ 24 CFR 8.20.
\5\ 24 CFR 8.21, 8.22, 8.23, 8.24, 8.25.
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Currently, pursuant to HUD's Section 504 regulation, the design,
construction, or alteration of buildings in conformance with UFAS is
deemed to be in compliance with the accessibility requirements of
Section 504.\6\ UFAS is based on the minimum accessibility guidelines
developed by the United States Access Board (Access Board) that were
adopted as enforceable standards by the General Services
Administration, the Department of Defense, the Department of Housing
and Urban Development, and the United States Postal Service for
purposes of compliance with the ABA. Subsequently, UFAS was also
adopted as the referenced accessibility standard in HUD's Section 504
regulation. HUD's Section 504 regulation provides that departures from
particular technical and scoping requirements of UFAS by the use of
other methods are permitted where substantially equivalent or greater
access to and usability of the building is provided (24 CFR 8.32).
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\6\ 24 CFR 8.32.
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B. 2004 ADA and ABA Accessibility Guidelines
On July 23, 2004, the Access Board published updated minimum
accessibility guidelines for both the ADA and the ABA known as the
Americans with Disabilities Act and Architectural Barriers Act
Accessibility Guidelines (2004 ADA and ABA Accessibility Guidelines).
The 2004 ADA and ABA Accessibility Guidelines updated the accessibility
provisions contained in UFAS and the 1991 ADA Accessibility Guidelines.
The 2004 ADA and ABA Accessibility Guidelines contain three parts:
application and scoping requirements for facilities covered by the ADA
(ADA Chapters 1 and 2); application and scoping requirements for
facilities covered by the ABA (ABA Chapters 1 and 2); and a common set
of technical provisions (Chapters 3 through 10). The 2004 ABAAG refers
to ABA scoping Chapters 1 and 2 and technical provisions in Chapters 3
through 10, and the 2004 ADAAG refers to ADA scoping Chapters 1 and 2
and technical provisions in Chapters 3 through 10.
HUD will engage in the rulemaking process in order to replace UFAS
with a new accessibility standard based on the updated guidelines for
purposes of both Section 504 and ABA compliance. Until HUD adopts a new
accessibility standard, HUD recipients who undertake alterations or new
construction of a project may continue to utilize UFAS and HUD's
Section 504 or ABA regulations.
C. Title II of the ADA
Title II of the ADA prohibits discrimination on the basis of
disability by state and local government entities, including by
requiring facilities designed, constructed, or altered by or on behalf
of a public entity, or as part of a public entity's program, to be
readily accessible to and usable by individuals with disabilities.\7\
Except for transportation facilities, DOJ is the Federal agency
responsible for adopting accessibility standards under title II of the
ADA.\8\ The Department of
[[Page 29673]]
Transportation establishes accessibility standards for transportation
facilities subject to title II of the ADA. In 1991, DOJ issued a
regulation establishing the 1991 Standards or UFAS as legally
enforceable accessibility standards under title II.
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\7\ 42 U.S.C. 12131 et. seq.
\8\ The Department of Justice (DOJ) is also the Federal agency
responsible for adopting accessibility standards under title III of
the ADA, which prohibits discrimination on the basis of disability
by public accommodations and requires places of public accommodation
and commercial facilities to be designed, constructed, and altered
in compliance with established accessibility standards. The DOJ
implementing regulation is at 28 CFR part 36.
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On September 15, 2010, DOJ published a final rule revising its
title II regulation at 28 CFR part 35. Among other requirements, the
revised regulation adopted a new accessibility standard referred to as
the 2010 ADA Standards for Accessible Design (2010 Standards).\9\ For
new construction and alterations that commence on or after March 15,
2012, entities covered by title II must comply with the 2010
Standards.\10\ The 2010 Standards can be found at http://www.ada.gov/2010ADAstandards_index.htm.
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\9\ DOJ's September 15, 2010 final rule also revised its title
III regulation. For title III entities, the 2010 Standards consist
of the 2004 ADAAG and requirements under 28 CFR Part 36--Subpart D.
\10\ See 28 CFR 35.151(c) for accessibility standards and
compliance dates prior to March 15, 2012.
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For title II entities, the 2010 Standards consist of the 2004 ADAAG
and requirements contained in 28 CFR 35.151. Section 35.151 sets forth
requirements that have the effect of modifying provisions in 2004 ADAAG
and include scoping and technical requirements for social service
center establishments, housing at places of education, assembly areas,
medical care facilities, residential dwelling units for sale to
individuals, and detention and correctional facilities. For example,
social service center establishments, which include group homes,
halfway houses, shelters, and similar facilities providing temporary
sleeping accommodations, must comply with the 2010 Standards applicable
to residential facilities including certain requirements specified at
28 CFR 35.151(e). Most housing at a place of education (defined in the
title II and title III regulations) must comply with the 2010 Standards
applicable to transient lodging including certain requirements
specified at 28 CFR 35.151(f).
IV. Deeming 2010 Standards as an Alternative Accessibility Standard for
Section 504 Compliance
In March 2011, pursuant to its coordination authority under Section
504, DOJ advised Federal agencies that until such time as they update
their agency's regulation implementing the Federally assisted
provisions of Section 504, they may notify covered entities that they
may use the 2010 Standards as an acceptable alternative to UFAS.
Consistent with this guidance, HUD will permit, but not require HUD
recipients to use the 2010 Standards under title II of the ADA, except
for those provisions identified in this document, as an alternative
accessibility standard to UFAS until HUD revises its Section 504
regulation to formally adopt an updated accessibility standard.\11\ HUD
is not permitting use of certain identified provisions in the 2010
Standards because those provisions provide a lower level of
accessibility than is currently required under UFAS and/or HUD's
Section 504 regulation and HUD cannot reduce the level of accessibility
provided under its Section 504 regulation without engaging in notice
and comment rulemaking.
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\11\ Memorandum dated March 29, 2011, from Thomas E. Perez,
Assistant Attorney General, Division of Civil Rights, U.S.
Department of Justice, to Federal Agency Civil Rights Directors and
General Counsels, ``Permitting Entities Covered by the Federally
Assisted Provisions of Section 504 of the Rehabilitation Act to Use
the 2010 ADA Standards for Accessible Design as an Alternative
Accessibility Standard for New Construction and Alterations,''
http://www.ada.gov/504_memo_standards.htm.
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It is important to emphasize that HUD recipients electing to use
the 2010 Standards must use the 2010 Standards applicable to public
entities under title II of the ADA, with the exceptions noted below, to
the entire project; they may not rely on some requirements contained in
the 2010 Standards and some requirements contained in UFAS. For
purposes of Section 504 compliance, this does not mean that existing
buildings that are part of a project and which are not being altered
must be brought up to the 2010 Standards. Rather, it means that when a
HUD recipient undertakes new construction or alterations and chooses to
use the 2010 Standards with the exceptions outlined in this document,
the recipient must apply the 2010 Standards to all of the new
construction or alterations. It should be noted that the 2010 Standards
include a safe harbor for portions of a path of travel complying with
UFAS or the 1991 Standards (28 CFR 35.151(b)(4)(ii)(C)). This safe
harbor does not apply to existing elements that are altered. The 2010
Standards are available at http://www.ada.gov/2010ADAstandards_index.htm.
This option applies to all HUD recipients for purposes of
compliance with HUD's Section 504 regulation, including private and
public entities, and entities covered by Section 504 but not title II
or III of the ADA. Most recipients covered by Section 504 based on the
receipt of Federal financial assistance from HUD are state or local
government entities or private entities covered by the ADA, and are
therefore required to comply with ADA accessibility requirements.\12\
By issuing this document, HUD is offering covered entities the option
of reducing the burden of complying with different accessibility
standards under Section 504 and the ADA until HUD issues a rule
adopting a new accessibility standard under Section 504. HUD recipients
may utilize the 2010 Standards, with the exceptions outlined in this
document, for compliance with both statutes.
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\12\ State or local governments are ``public entities'' covered
by title II of the ADA, 42 U.S.C. 12131-12134. ``Public
accommodations'' include private for-profit or not-for-profit
entities that are subject to the requirements of title III of the
ADA, 42 U.S.C. 12181-12189.
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This document makes no changes for entities that choose to use UFAS
for purposes of Section 504 compliance along with HUD's Section 504
regulation when undertaking alterations or new construction. HUD
recipients may continue to use HUD's Section 504 regulation and UFAS
for Section 504 compliance until HUD formally adopts an updated
accessibility standard through rulemaking. However, because UFAS is no
longer an option for ensuring compliance with title II of the ADA, HUD
recipients subject to both Section 504 and title II of the ADA must
take an additional step in order to ensure compliance with the ADA if
they use UFAS for purposes of Section 504. Specifically, in addition to
complying with each scoping and technical provision of UFAS, they must
also comply with each scoping and technical provision of the 2010
Standards that affords greater accessibility than UFAS.\13\
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\13\ HUD's scoping continues to apply regarding the required
number of accessible residential dwelling units.
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V. Utilizing the 2010 Standards
As stated above, the 2010 Standards under title II consist of the
2004 ADAAG and requirements in 28 CFR 35.151. HUD is permitting use of
the 2010 Standards as an alternative accessibility standard with the
following exceptions. These exceptions are necessary to ensure that HUD
recipients construct or alter buildings and facilities with at least
the same degree of accessibility as is currently required under HUD's
Section 504 regulation and UFAS. The Department lacks the authority to
allow the use of an alternative standard that would reduce
accessibility or usability for individuals with disabilities in housing
[[Page 29674]]
settings below the level required by its Section 504 regulation without
engaging in notice and comment rulemaking. As discussed below, these
exceptions will also maintain consistency with certain requirements of
the FHAct.
Definitions
The 2010 Standards define some terms that are also defined in HUD's
Section 504 regulation. In such cases, the definition in HUD's Section
504 regulation shall control.
Scoping for Residential Dwelling Units
The 2010 Standards generally defer to HUD on scoping of residential
dwelling units provided by entities subject to HUD's Section 504
regulation.\14\ Specifically, entities receiving Federal financial
assistance from the Department must provide residential dwelling units
containing mobility features and residential dwelling units containing
communication features complying with the 2010 Standards in a quantity
identified in HUD's Section 504 regulation. For purposes of this
document, HUD is not changing its scoping requirements for residential
dwelling units under its part 8 regulation.\15\ HUD recipients
designing, constructing, altering, or operating residential facilities
must utilize HUD's scoping to determine the number of required
accessible units and utilize the 2010 Standards, with the identified
exceptions noted below, for other scoping requirements as well as for
the technical standards. If HUD's Section 504 rule does not provide
scoping, a HUD recipient using the 2010 Standards for Section 504
compliance must use the scoping provided in the 2010 Standards. This
does not preclude HUD from considering scoping or other changes when it
undertakes rulemaking to adopt a new accessibility standard.
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\14\ Section 233.2 Residential Dwelling Units Provided by
Entities Subject to HUD Section 504 Regulations.
\15\ 24 CFR part 8, subpart C.
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Structural Impracticability--28 CFR 35.151
Under Sec. 35.151(a)(2) full compliance with the requirements of
the 2010 Standards is not required in new construction where a public
entity can demonstrate that it is structurally impracticable to do so.
Full compliance is considered structurally impracticable ``only in
those rare circumstances when the unique characteristics of terrain
prevent the incorporation of accessibility features.'' \16\ HUD's
Section 504 regulation does not contain a comparable exception from
compliance with the applicable accessibility requirements when HUD
recipients undertake new construction of facilities. HUD's regulation
also precludes a HUD recipient from selecting a site or location of a
facility which would have the purpose or effect of excluding qualified
individuals with disabilities from, denying benefits of, or otherwise
subjecting them to discrimination under, any program or activity that
receives Federal financial assistance.\17\ Under HUD's Section 504
regulation, if a site cannot be made accessible to individuals with
disabilities, it must not be selected. As emphasized above, HUD cannot
allow the use of an alternative standard which conflicts with HUD's
regulatory requirements and may reduce accessibility in housing
settings without the opportunity for public input through notice and
comment rulemaking. Accordingly, recipients may not apply the
structural impracticability exception contained in Sec. 35.151(a)(2)
of the 2010 Standards through this document.
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\16\ 28 CFR 35.151(a)(2)(i).
\17\ 24 CFR 8.4(b)(5).
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Alterations--28 CFR 35.151
The 2010 Standards at 28 CFR 35.151(b) and section 202 contain
criteria detailing when alterations of facilities must be made
accessible. In certain situations, application of the 2010 Standards
may result in fewer units containing accessibility features. Because
HUD cannot use this document to permit the use of a lesser requirement
than that required by its Section 504 regulation, HUD is not permitting
use of Sec. 35.151(b). Therefore, multifamily housing projects must
continue to utilize the terms ``substantial alterations'' and ``other
alterations'' as defined in HUD's Section 504 regulation to determine
accessibility requirements.\18\ This does not preclude HUD from
considering changes to its alterations criteria for residential
dwelling units when it revises its regulation to adopt a new
accessibility standard.
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\18\ 24 CFR part 8, subpart C.
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Additions--Section 202.2 of the 2010 Standards
Section 202.2 of the 2010 Standards contains scoping requirements
which may, in certain situations, afford less accessibility for
individuals with disabilities than is currently provided by HUD's rules
at 24 CFR part 8 and UFAS. Because the Department is precluded from
permitting the use of an alternative standard that might reduce
accessibility for individuals with disabilities in housing settings
without notice and comment rulemaking, HUD is not permitting use of the
scoping requirements for additions at section 202.2 of the 2010
Standards.
Alterations Affecting Primary Function Areas--Exception to Section
202.4 of the 2010 Standards
Section 202.4 of the 2010 Standards includes a path of travel
obligation when areas containing a primary function are altered. Under
the Exception to Section 202.4, residential dwelling units are exempted
from this requirement. Under HUD's Section 504 regulation, when
accessible dwelling units are newly constructed or where alterations
include the provision of accessible dwelling units, the dwelling units
must be on an accessible route. HUD is not permitting use of the
Exception to Section 202.4 because this may conflict with HUD's Section
504 regulation.
Common Use Areas in Residential Facilities--Section 203.8 of the 2010
Standards
Section 203.8 of the 2010 Standards provides that, in residential
facilities, common use areas that do not serve residential dwelling
units required to provide mobility features are not required to be
accessible or on an accessible route. By contrast, common use areas in
residential facilities subject to the new construction requirements of
the FHAct must comply with FHAct accessibility requirements, including
the requirement to be on an accessible route, regardless of whether or
not the common use areas serve units required to have mobility features
pursuant to the ADA or Section 504. The only exception would be common
use areas provided on upper stories of a non-elevator building provided
the same common use areas are provided on the ground floor. In
addition, this general exception for common use areas may result in
less accessibility than is currently required under HUD's Section 504
regulation and UFAS. Accordingly, HUD is not permitting use of Section
203.8 under this document.
Employee Work Areas--Section 203.9 of the 2010 Standards, and Similar
Sections
The 2010 Standards require a more limited level of access within
employee work areas in ADA-covered facilities than UFAS, which requires
employee work areas to be fully accessible. As stated above, the
Department has no authority to allow the use of an alternative standard
that may reduce accessibility for individuals with disabilities without
notice and comment rulemaking. Section 203.9, as well as
[[Page 29675]]
Section 206.2.8, the Exception to Section 403.5, and the Exception to
Section 405.8, all require less accessibility in employee work areas
than UFAS. For this reason, HUD is not permitting use of the
aforementioned sections of the 2010 Standards for employee work areas.
Vehicular Route Exceptions--Sections 206.2.1 and 206.2.2 of the 2010
Standards
The 2010 Standards contain an exception for accessibility at site
arrival points which provides that 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 pedestrian access'' (Section 206.2.1 Site Arrival Points,
Exception 2). The 2010 Standards also contain an exception for
accessibility within a site which provides that an ``accessible route
shall not be required between accessible buildings, accessible
facilities, accessible elements, and accessible spaces if the only
means of access between them is a vehicular way not providing
pedestrian access'' (Section 206.2.2 Within a Site, Exception). Neither
exception is in UFAS,\19\ which requires pedestrian access routes, and
both conflict with HUD's Section 504 regulation, which requires that
all programs and activities receiving Federal funds be readily
accessible to and usable by persons with disabilities, as well as the
requirements of the FHAct and HUD's Fair Housing Accessibility
Guidelines. Accordingly, HUD is not permitting the use of Exception 2
to Section 206.2.1 Site Arrival Points, and the Exception to Section
206.2.2 Within a Site.
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\19\ See, e.g., UFAS, Section 4.1.1(1): At least one accessible
route complying with 4.3 shall be provided within the boundary of
the site from public transportation stops, accessible parking
spaces, passenger loading zones if provided, and public streets or
sidewalks to an accessible building entrance. UFAS, Section
4.1.1(2): At least one accessible route complying with 4.3 shall
connect accessible buildings, facilities, elements, and spaces that
are on the same site. See also, UFAS, Section 4.3 Accessible Route.
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Elevator Exception 1--Section 206.2.3 of the 2010 Standards
The 2010 Standards contain specific exceptions to the general
provision requiring at least one accessible route to connect each story
and mezzanine in multi-story buildings or facilities (Section 206.2.3).
Exception 1 to Section 206.2.3 of the 2010 Standards contains an
elevator exception for private buildings or facilities that are less
than three stories or that have less than 3,000 square feet per story
(unless the type of building is omitted in the standard from the
exception, e.g., a shopping center, a shopping mall, the professional
office of a health care provider, etc.). HUD's Section 504 regulation
does not impose different requirements on recipients that are public
entities as compared to recipients that are private entities. In order
to ensure that all HUD recipients are subject to the same accessibility
requirements, regardless of whether they are public or private
entities, HUD is not permitting use of Exception 1 to Section 206.2.3
by private entities subject to its Section 504 regulation.
Washing Machines; Clothes Dryers--Sections 214.2 and 214.3 of the 2010
Standards
UFAS requires front loading washing machines and clothes dryers in
common use laundry rooms in facilities serving accessible residential
dwelling units.\20\ UFAS' requirements for front-loading machines
reflect the fact that not all persons with disabilities will be able to
use top loading machines. The 2010 Standards, however, permit either
top loading or front loading machines in such facilities (Section 214.2
Washing Machines; Section 214.3 Clothes Dryers). Consequently, HUD is
not permitting application of the scoping requirements for washing and
drying machines found at sections 214.2 and 214.3 of the 2010
Standards. Recipients must continue to comply with section 4.34.7 of
UFAS. These requirements apply to each laundry room except that HUD's
Section 504 regulation and UFAS would not require a laundry room on an
upper story of a non-elevator building to be accessible provided that
there is an accessible laundry room serving that same building on the
ground floor. HUD recipients should also be aware that, when washing
machines and clothes dryers are provided in individual dwelling units,
front loading accessible washing machines and clothes dryers may be
required in accessible dwelling units as a reasonable accommodation for
individuals with disabilities.
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\20\ UFAS, Section 4.34.7.2.
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Visible Alarms--Exception to Section 215.1 of the 2010 Standards
Section 215.1 includes a new exception for visible alarms in the
alteration of existing facilities, providing that visible alarms must
be installed only when an existing fire alarm system is upgraded or
replaced, or a new fire alarm system is installed. Under this
exception, visible alarms would not be required as part of alterations
unless the alarm system is upgraded, replaced, or newly installed. HUD
is not permitting use of this exception because its application may
result in less accessibility than is currently required under HUD's
Section 504 regulation. Instead, recipients engaged in alterations must
refer to HUD's regulation at 24 CFR 8.22, 8.23, 8.24, and 8.25 to
determine whether visible alarms must be installed. For recipients
engaged in substantial alterations, the new construction requirements
apply (with the exception that building alterations are not required
that have little likelihood of being accomplished without removing or
altering a load-bearing structural member) and visible alarms would be
included in the alterations. For recipients engaged in other
alterations not rising to the level of substantial alterations, any
alterations (including alterations to dwelling units, common areas, or
parts of facilities that affect accessibility of existing housing
facilities) must, to the maximum extent feasible, be made to be readily
accessible to and usable by individuals with disabilities. ``To the
maximum extent feasible'' means recipients are not required to make
alterations if doing so would impose undue financial and administrative
burdens on the operation of the multifamily housing project, but must
provide for accessibility up to the point of undue financial and
administrative burdens. This is a high threshold to meet. Therefore,
HUD recipients must continue to comply with the provisions in HUD's
Section 504 regulation, and not utilize the exception in the 2010
Standards. If visible alarms are not provided, there must be an
effective means of alerting individuals who are deaf or hard of hearing
to fires and other emergencies in order to afford them an equal
opportunity to evacuate to safety.
For the convenience of the reader, the Appendix to this document
provides a table that lists in column one the exceptions contained in
the document and in the second column, the UFAS and/or HUD Section 504
regulation provisions that would need to be complied with because the
entity could not use that section of the ADA 2010 Standards. The table
is provided so that it can be used by HUD recipients as a stand-alone
chart that lists, in a single table, not only what the exceptions are,
but what actions recipients must undertake in lieu of using the
exceptions.
VI. Relationship to Other Laws
Recipients of HUD funding must be aware of and comply with the
accessibility requirements of all
[[Page 29676]]
applicable laws, including Section 504, the ABA, the ADA, and the
FHAct. Compliance with one of these statutes does not ensure compliance
with other Federal disability nondiscrimination laws. For example,
compliance with Section 504, the ABA, or the ADA does not ensure
compliance with the FHAct; similarly, compliance with FHAct
accessibility requirements does not ensure compliance with the
accessibility requirements of Section 504, the ABA, or the ADA. The
FHAct prohibits discrimination in housing because of race, color,
religion, sex, national origin, familial status, and disability.\21\
One type of disability discrimination prohibited by the FHAct is the
failure to design and construct covered multifamily dwellings with
certain features of accessible design.\22\
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\21\ The Act uses the term ``handicap'' instead of
``disability.'' Both terms have the same legal meaning.
\22\ 42 U.S.C. 3604(f).
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The FHAct design and construction requirements apply to ``covered
multifamily dwellings'' designed and constructed for first occupancy
after March 13, 1991. ``Covered multifamily dwellings'' means all
buildings consisting of four or more dwelling units: In buildings
without an elevator, all of the ground floor dwelling units are
covered; in buildings with one or more elevators, all of the dwelling
units are covered. HUD encourages entities to refer to HUD's FHAct
regulation and technical guidance issued by HUD to ensure compliance
with FHAct accessibility requirements.\23\
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\23\ See HUD regulation implementing the design and construction
provisions at 24 CFR 100.200 et seq.; Final Fair Housing
Accessibility Guidelines (``Guidelines''), 56 FR 9472 (Mar. 6,
1991); Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers About the Guidelines (``Questions
and Answers''), 59 FR 33362-68 (June 28, 1994); Fair Housing Act
Design Manual (``Design Manual'') (August 1996, Revised April 1998).
For additional technical assistance, see the Fair Housing Act
Accessibility FIRST Web site, www.fairhousingfirst.org.
Date: May 16, 2014.
David R. Ziaya,
Deputy Assistant Secretary for Operations and Programs.
Appendix to May 23, 2014 Document
Exceptions to the 2010 Standards
This table is provided for HUD recipients that elect to use the
2010 Standards under title II of the Americans with Disabilities Act
(ADA) as an alternative accessibility standard to UFAS for purposes
of complying with Section 504 until HUD formally revises its Section
504 regulation. Please note that, for purposes of Section 504
compliance, the 2010 Standards may be used with the following
exceptions.
------------------------------------------------------------------------
Provisions HUD recipients must
Provisions in 2010 standards not deemed comply with for purposes of
as equivalent alternatives to UFAS section 504 compliance
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1. Section 35.151(a)(2) Exception for 2010 Standards at Section
structural impracticability. 35.151 without Section
35.151(a)(2) and (b) (see
below) and HUD's Section 504
regulation at 24 CFR Sec.
8.4(b)(5).
2. Section 35.151(b) Alterations....... HUD's Section 504 regulation at
24 CFR Sec. Sec. 8.20,
8.21, 8.22, 8.23, 8.24, 8.25,
8.26 and UFAS 4.1.6.
3. Section 202.2 Additions............. HUD's Section 504 regulation at
24 CFR Sec. Sec. 8.20,
8.21, 8.22, 8.23, 8.24, 8.25,
8.26 and UFAS 4.1.5.
4. Exception to Section 202.4 2010 Standards at Section 202.4
Alterations Affecting Primary Function without the Exception and
Areas. HUD's Section 504 regulation
at 24 CFR Sec. Sec. 8.20,
8.21, 8.22, 8.23, 8.24, 8.25,
and 8.26.
5. Section 203.8 General Exceptions-- 2010 Standards without Section
Residential Facilities. 203.8 and HUD's Section 504
regulation at 24 CFR Sec.
Sec. 8.20, 8.21, 8.22, 8.23,
8.24, 8.25, and 8.26.
6. Employee Work Areas: Sections 203.9 2010 Standards without these
(General exception for employee work provisions; Note that HUD is
areas), 206.2.8 (Circulation paths in permitting use of Section
employee work areas), and the 215.3 (Fire Alarm Systems in
Exceptions to 403.5 (Clearances within Employee Work Areas).
employee work areas) and 405.8
(Handrails within employee work areas).
7. Exception 2 to Section 206.2.1 Site 2010 Standards at Section
Arrival Points. 206.2.1 without Exception 2.
8. Exception to Section 206.2.2 Within 2010 Standards at Section
a Site. 206.2.2 without the Exception.
9. Exception 1 to Section 206.2.3 Multi- 2010 Standards at Section
Story Buildings and Facilities. 206.2.3 without Exception 1.
10. Section 214--Scoping of Washing HUD's Section 504 regulation
Machines and Clothes Dryers. and UFAS 4.34.7 Laundry
Facilities. HUD recipients
should also be aware that,
when washing machines and
clothes dryers are provided in
individual dwelling units,
front loading accessible
washing machines and clothes
dryers may be required in
accessible dwelling units as a
reasonable accommodation for
individuals with disabilities.
11. Exception to Section 215.1 Visible 2010 Standards at Section 215
Alarms. without the Exception to
Section 215.1 and HUD's
Section 504 regulation at 24
CFR 8.20, 8.21, 8.22, 8.23,
8.24, 8.25, and 8.26.
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The option to use the 2010 Standards under title II of the ADA,
with identified exceptions, is available to all HUD recipients for
purposes of complying with Section 504. HUD recipients must
designate the accessibility standard they are using: The 2010
Standards with the identified exceptions outlined in this May 23,
2014 Notice, or UFAS. If HUD recipients choose to use the 2010
Standards, they must apply the 2010 Standards, with the identified
exceptions, to the entire project. This option applies until HUD
revises its Section 504 regulation to adopt an updated accessibility
standard. This table provides a summary. Additional explanatory
information is provided in other parts of the May 23, 2014 document.
[FR Doc. 2014-11844 Filed 5-22-14; 8:45 am]
BILLING CODE 4210-67-P