[Federal Register Volume 85, Number 236 (Tuesday, December 8, 2020)]
[Rules and Regulations]
[Pages 78957-78963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26376]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 100
[Docket No. FR-6138-F-02]
RIN 2529-AA99
Fair Housing Act Design and Construction Requirements; Adoption
of Additional Safe Harbors
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Final rule.
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SUMMARY: This rule amends HUD's Fair Housing Act design and
construction regulations by incorporating by reference the 2009 edition
of the International Code Council (ICC) Accessible and Usable Buildings
and Facilities (ICC A117.1-2009) standard, as a safe harbor. The
Accessible and Usable Buildings and Facilities standard is a technical
standard for the design of facilities that are accessible to persons
with disabilities. This rule also designates the 2009, 2012, 2015 and
2018 editions of the International Building Code (IBC) as safe harbors
under the Fair Housing Act. The IBC is a model building code and not
law, but it was adopted as law by various states and localities. The
IBC provides minimum standards for public safety, health, and welfare
as they are affected by building construction.
DATES: Effective Date: March 8, 2021. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of March 8, 2021. The incorporation by
reference of certain other publications listed in the rule is approved
by the Director of the Federal Register as of November 24, 2008.
FOR FURTHER INFORMATION CONTACT: Lynn Grosso, Director, Office of
Enforcement, Office of Fair Housing and Equal Opportunity, Department
of Housing and Urban Development, 451 Seventh Street SW, Washington, DC
20410-2000; telephone number (202) 708-2333 (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
(800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C.
3601 et seq.) (the ``Fair Housing Act'' or ``Act'') prohibits
discrimination in housing and housing-related transactions based on
race, color, religion, national origin, sex, disability and familial
status.\1\ The Act provides, inter alia, that unlawful discrimination
against persons with disabilities includes the failure to design and
construct covered multifamily dwellings for first occupancy after March
13, 1991, in a manner that ``(1) the public and common use portions of
such dwellings are readily accessible to and usable by handicapped
persons; (2) all the doors designed to allow passage into and within
all premises within such dwellings are sufficiently wide to allow
passage by handicapped 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.'' \2\ The Fair Housing Act does not contain
specific technical design criteria that need to be followed 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), suffices to satisfy the requirements of
[42 U.S.C. 3604(f)(3)(C)(iii)],'' which states the Act's design and
construction requirements for the interiors of covered multifamily
dwellings.
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\1\ 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 document hereinafter uses the terms ``persons with
disabilities,'' ``disability,'' or ``disabled,'' unless directly
quoting the Fair Housing Act.
\2\ 42 U.S.C. 3604(f)(3)(C).
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The Fair Housing Act directs HUD to ``provide technical assistance
to states and units of local government and other persons to implement
[the design and construction requirements].'' \3\ On March 6, 1991 (56
FR 9472), HUD 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, ``[t]hese 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), HUD published its
``Supplement to Notice of Fair Housing Accessibility Guidelines:
Questions and Answers about the Guidelines.'' HUD 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.\4\
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\3\ 42 U.S.C. 3604(f)(5)(C).
\4\ The Fair Housing Design Manual, August 1996, revised 1998,
is available at https://www.huduser.gov/portal/publications/PDF/FAIRHOUSING/fairfull.pdf.
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Since HUD published its Fair Housing Act final rule on January 23,
1989 (54 FR 3232), the ANSI A117.1 accessibility standard has been
updated several times. HUD, as a member of the A117 Committee that
updates the A117.1 standard, participates in these updates. HUD also
periodically reviewed these updated standards, as part of its mandate
to provide technical assistance to state and local governments to
incorporate the Act's design and construction requirements into their
laws and procedures for review and approval of newly constructed
multifamily dwellings. HUD published a final rule on October 24, 2008
(73 FR 63614) that incorporated by reference ICC/ANSI-2003 and
clarified that compliance with the appropriate requirements of CABO/
ANSI A117.1-1992 and ICC/ANSI-1998 continued to meet the design and
construction requirements of the Fair Housing Act. See 24 CFR
100.201a(b)(1). The 2008 final rule also updated the regulations to
reference certain editions of the IBC as safe harbors for compliance
with the accessibility requirements in the Fair Housing Act. HUD's
final rule codified these additional design and construction standards
that HUD recognized as safe harbors at Sec. 100.205(e).
[[Page 78958]]
II. This Final Rule
On Wednesday, January 15, 2020, HUD published a proposed rule in
the Federal Register (85 FR 2354) to amend HUD's Fair Housing Act
design and construction regulations by incorporating by reference the
2009 edition of International Code Council (ICC) Accessible and Usable
Buildings and Facilities (ICC A117.1-2009) \5\ standard, as a safe
harbor. HUD is adopting the proposed rule as final with no substantive
changes.
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\5\ Unlike prior versions of the American National Standard, the
ICC A117.1-2009 does contain ANSI in its title.
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This rule does not change either the scoping requirements or the
substance of the existing accessible design and construction
requirements contained in the Fair Housing Act or its regulation. This
final rule also designates the 2009, 2012, 2015 and 2018 editions of
the IBC as safe harbors under the Fair Housing Act. 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. The IBC is published by the International
Code Council, which was formed 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 IBC 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. Compliance with the IBC or another
model building code is not required unless mandated by a state or local
jurisdiction. 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 residential buildings. A second
accessibility level is set forth in the requirements for ``Type A''
dwelling units. The IBC specifies that a percentage of ``Type A'' units
must be provided containing a high level of accessibility, especially
in kitchens and bathrooms, as well as some features of adaptability.
The third accessibility level 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
for Type B dwelling units apply to a greater number of dwelling units
in a building, but the level of accessibility is less than that of the
Type A dwelling units.
In addition, the IBC provides scoping requirements for the three
types of dwelling units described above. The scoping requirements for
the Type B dwelling units are intended to be consistent with the
scoping requirements in the Act, the regulations, and the Guidelines.
For the technical requirements, the IBC references the A117.1
accessibility standard. Thus, the IBC contains both scoping
requirements and technical requirements that are consistent with the
Act, the regulations, and the Guidelines. After reviewing the 2009,
2012, 2015 and 2018 IBC editions, HUD found that the accessibility
provisions in these IBC editions are consistent with the requirements
in the Act, HUD's regulations, and the Guidelines. HUD did not find any
provision that it believes provides for less accessibility than what is
required in the Act, the regulations, and the Guidelines, and HUD notes
that in certain respects, the IBC provides for greater accessibility.
Similarly, in its review of the ICC A117.1-2009, HUD did not find any
provisions that provide for less accessibility than what is required in
the Act, HUD's regulations, and the Guidelines.
HUD is also amending Sec. 100.205(e)(3) to provide that, in the
future, HUD may propose new safe harbors by Federal Register notice.
HUD would provide a minimum 30-day public comment period and, after
considering public comment, publish a final notice announcing any new
safe harbor. HUD will periodically codify new safe harbors in part 100
in the course of later rulemaking. Compliance with safe harbors
established by Federal Register notice will satisfy the requirements of
paragraphs (a) and (c) of Sec. 100.205.
III. The Public Comments
HUD received 60 public comments on the proposed rule from various
interested parties, including advocacy groups, members of the general
public, and architects. One comment discussed another HUD rulemaking,
and will not be addressed here.
General Support
Many commenters overwhelmingly supported the rule and urged HUD to
promulgate it. Several commenters stated that A117.1-2009 and IBC-2009,
2012, 2015 and 2018 meet or exceed HUD's Guidelines. Some commenters
stated that making the newer A117.1 and International Building Codes
safe harbors would improve compliance with the Fair Housing Act's
design and construction requirements. Other commenters stated that the
rule will provide code officials, architects, and builders with needed
tools to ensure that buildings are accessible to persons with
disabilities, eliminate confusion concerning the use of older codes,
and increase accessibility. Some commenters stated the new standards'
incorporation and safe harbor designation will align the Act's
requirements with the requirements of many U.S. jurisdictions, which
already adopt and enforce one of these IBC editions and, by reference,
ICC A117.1-2009. A commenter expressed that because the proposed safe
harbors are more current, they provide clarity on certain aspects of
design.
HUD Response: HUD thanks the public commenters for their support.
Clarifications
Comment: A commenter asked that HUD clarify who needs to be aware
of the rule to ensure accessible housing, including developers,
designers, and others involved in the design and construction of
covered multifamily dwellings.
HUD Response: HUD agreed with the comment that there are many
building industry professionals who are involved in the design and
construction of multifamily housing covered by the Act (e.g., owners,
developers, architects, engineers, construction contractors). Any
person or entity involved in the noncompliant design and construction
of buildings or facilities subject to the Act's design and construction
requirements may be held liable for violations of the Act. This
includes a person or entity involved in only the design, only the
construction, or both the design and construction of covered
multifamily housing.\6\ So all such persons should be aware of the
requirements.
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\6\ See 42 U.S.C. 3604(f)(3)(C); Joint Statement Q&A 56.
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Comment: Several commenters requested that HUD make clear in the
rule that the technical specifications in the HUD-identified safe
harbors must be read in conjunction with the scoping requirements in
the Fair Housing Act, its implementing regulations and the Fair Housing
Act Accessibility Guidelines. One commenter expressed difficulty in
finding the requirements in the IBC. Another commenter stated that HUD
should clarify that use of one of the IBCs as a safe harbor must be in
conjunction with use of the incorporated A117.1.
[[Page 78959]]
HUD Response: Persons designing and constructing covered
multifamily dwellings should understand that, to be correctly applied
to ensure compliance with the design and construction requirements of
the Act, each safe harbor must be read in the context of the
requirements of the Act itself, HUD's implementing regulations, and the
Fair Housing Act Accessibility Guidelines. The IBC provides scoping
requirements for Type B dwelling units that are intended to be
consistent with the scoping requirements in the Act, the regulations,
and the Guidelines. For the technical requirements, the IBC references
the A117.1 accessibility standard. Thus, the IBC contains both scoping
requirements and technical requirements that are consistent with the
Act, the regulations, and the Guidelines.\7\
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\7\ Preamble to NPRM.
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Comment: Some commenters urged HUD to specify, consistent with its
prior safe harbor rule at 72 FR 39432, 39438 (July 18, 2007) and the
HUD-DOJ Joint Statement, that to avail oneself of a safe harbor, the
owner, developer and designer must comply with the safe harbor in its
entirety without modification or waiver.
HUD Response: When HUD adopts a safe harbor for compliance with the
Fair Housing Act, it has determined that compliance with all elements
of the safe harbor, read in conjunction with the Act, HUD's
implementing regulations, and the Fair Housing Accessibility
Guidelines, will provide accessibility consistent with the Act's
requirements. This level of overall accessibility permits individuals
with a wide variety of disabilities to access and use the public and
common use areas of the housing without adaptation and the dwelling
units with or without certain minimum adaptations, such as the
installation of grab bars. To ensure compliance with the Act, covered
entities must select one safe harbor; once a specific safe harbor
document has been selected, the building in question must 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, from a variety of sources,
or if waivers of provisions are requested and received. If it is shown
that the designers and builders departed from the provisions of a safe
harbor document, they bear the burden of demonstrating that the
dwelling units nonetheless comply with the Act's design and
construction requirements.\8\
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\8\ Joint Statement, Q&A 38.
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ANSI
Comment: One commenter opposed HUD's adoption of ANSI A117.1-2009,
stating that HUD should permit use only of ANSI A117.1-1986 as it
provides greater usability and access than subsequent ANSI A117.1
codes.
HUD Response: HUD disagreed with the comment. HUD notes that
although there may be slight differences between ANSI A117.1-2009 and
ANSI A117.1-1986, those differences do not result in decreased
accessibility. Nor are they inconsistent with the Act's requirements.
While there are some differences among the designated safe harbors,
there is broad consensus about what is required for accessibility based
on the ANSI standards and the safe harbors. These standards result from
a process that includes input from a variety of stakeholders, including
builders, designers, managers, and disability-rights advocates.
Comment: A commenter stated that ANSI A117.1-2009 is less
restrictive than the Act because while HUD's Guidelines require all
fixtures in a Specification A Bathroom to be accessible, A117.1-2009
requires only one lavatory to be accessible, even when a dual sink is
provided in the bathroom. The commenter asked HUD to provide
clarification as to this difference.
HUD Response: As indicated above, while there may be slight
differences among the various editions of the A117.1 standard, those
differences do not result in bathrooms that provide less accessibility
and are consistent with the Act's requirements. While there are some
differences among the designated safe harbors, these standards result
from a process that includes input from a variety of stakeholders with
broad consensus about what is required for accessibility based on the
ANSI standards and the safe harbors.
Comment: A commenter recommended that HUD add language to the rule
stating that if a jurisdiction mandates a higher level of accessibility
than ICC 2009, the jurisdiction's standard should be favored over the
ICC standard.
HUD Response: Some states and localities adopt accessibility
requirements that provide for a higher level of accessibility for
individuals with disabilities than the basic level of accessibility
required by the Act. HUD noted that the adoption of a safe harbor for
compliance with the Act does not diminish the legal obligation to
comply with more stringent accessibility requirements imposed by state
or local law. The Act is not intended to invalidate or limit any state
or local law that requires dwellings to be designed and constructed in
a manner that affords greater access for persons with disabilities.\9\
HUD agreed that compliance with a safe harbor does not ensure
compliance with a state or local law that mandates greater
accessibility.
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\9\ 42 U.S.C. 3604(f)(8).
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IBC
Comment: A commenter stated that HUD should specify in the final
regulation that the covered multifamily dwelling must be designed and
constructed in accordance with plans and specifications approved during
the permitting process and that the building code official must not
waive, incorrectly interpret or misapply any of the accessibility
requirements of the safe harbor. If not, the safe harbor status is
forfeited.
HUD Response: HUD agreed with the comment. HUD's purpose in
recognizing a number of safe harbors for compliance with the 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 without modification or waiver, will result in residential
buildings that comply with the Act's design and construction
requirements. The standards and codes adopted by HUD as safe harbors
represent safe harbors only when used in their entirety; that is, once
a specific safe harbor document has been selected, the covered
multifamily dwellings in question need to comply with all of the
provisions in that document that address the Act's design and
construction requirements. 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 safe harbor documents or from a
variety of sources. In addition, the benefit of safe harbor status will
be lost if any waivers of accessibility provisions are requested and/or
obtained from state or local governmental agencies. 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 Act, designers and builders that
choose to depart from provisions of a specific safe harbor bear the
burden of demonstrating that their actions nevertheless result in
covered
[[Page 78960]]
multifamily dwellings that comport with the Act's design and
construction requirements.\10\
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\10\ Joint Statement, Q&A 38.
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Comment: Several commenters stated that the rule should explicitly
state that a developer must comply with one of the new IBC standards to
claim a safe harbor. These commenters stated further that HUD should
include language in the rule specifying that a state or local entity
must adopt the IBC without any revisions that reduce the level of
accessibility required by the IBC standard and the entities responsible
for the design and construction must fully comply with the chosen safe
harbor.
HUD Response: HUD declined to mandate that the new IBC standards
are the only safe harbors that may be used. Rather, any of the
designated safe harbors may be used. If a state or locality has adopted
one of these safe harbor documents without amendment or deviation that
reduces the level of accessibility, then 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. Moreover, as noted above, the entities responsible for
the design and construction must fully comply with the chosen safe
harbor.\11\
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\11\ Joint Statement, Q&A 38.
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Comment: One commenter asked a question about meeting the Act's
design and construction requirements. Specifically, the commenter
asked: If units are designed to comply with the Fair Housing Act, as
well as with HUD's Uniform Federal Accessibility Standards (UFAS) or
ADA if there is federal assistance, would the stricter requirements of
an IBC Type A unit apply; and Alternatively, if one were to choose to
design to the IBC standard, would this be considered in compliance with
the Act?
HUD Response: As discussed above, if a covered multifamily dwelling
is designed in accordance with one of the IBC standards designated as
safe harbors, it will comply with the Act so far as no deviation from
the standard has occurred. If the property is also subject to multiple
accessibility laws and standards, such as UFAS and the ADA, it must be
designed and built in accordance with the accessibility requirements of
each law. To the extent that the requirements of different federal laws
apply to the same feature, the requirements of the law imposing greater
accessibility requirements must be met, in terms of both scoping and
technical requirements.
Specific Accessibility Features
Comment: A commenter inquired whether a project that designates the
2009, 2012, 2015, or 2018 editions of the IBC as its safe harbor, and
fails to meet all requirements of the 2009 ICC A117.1, but still meets
the requirements of the Guidelines, would violate the Fair Housing Act?
The commenter provided the following example: Kitchens in Type A units
require a work surface to be 34'' Above Finished Floor (AFF) max and
provide for a forward approach, whereas the Guidelines have no
requirements for work surfaces within kitchens. A failure to provide a
work surface will not meet the requirements of the 2009 ICC A117.1, but
will meet the Guidelines' requirements.
HUD Response: The IBC standards specify that a percentage of ``Type
A'' units must be provided containing a high level of accessibility,
especially in kitchens and bathrooms, as well as some features of
adaptability. The IBC also provides for ``Type B'' dwelling units,
which are intended to comply with those features of accessible and
adaptable design required under the Act. Like the Act, the requirements
for Type B dwelling units apply to a greater number of dwelling units
in a building, but the level of accessibility is less than that of the
Type A dwelling units. The IBC provides scoping requirements for Type B
dwelling units that are intended to be consistent with the scoping
requirements in the Act, the regulations, and the Guidelines. For the
technical requirements, the IBC references the A117.1 accessibility
standard. A case of discrimination may be established by showing that
the housing does not meet HUD's Guidelines. As discussed above, the
building in question must comply with all of the provisions in that
document that address the Fair Housing Act design and construction
requirements to ensure the safe harbor's full benefit.\12\
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\12\ Joint Statement, Q&A 40.
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Comment: A commenter hoped the safe harbor status would supersede
the dimensional conflict that currently exists for centerline of water
closets to the adjacent walls supporting the grab bar.
HUD Response: As noted above, while there may be slight differences
among the various editions of the A117.1 standard, the standards are
consistent with the Act's requirements and the differences do not
result in bathrooms that provide less accessibility.
Comment: A commenter asked: In ICC A117.1-2009, Type A and Type B
units require that blocking be provided for the future installation of
grab bars at toilets, showers, and bathtubs but describes only the
location of the grab bars, not where blocking is to be provided. In
contrast, the Guidelines provide diagrams for where blocking is to be
located. If the 2012, 2015 or 2018 editions of the IBC are chosen as a
safe harbor and blocking is provided for the grab bar locations
described in the ICC A117.1-2009, but blocking is not provided to meet
the requirements of the Guidelines, would this be a Fair Housing Act
violation?
HUD Response: If the 2012, 2015 or 2018 editions of the IBC are
chosen as a safe harbor, blocking should be provided as specified in
chapters 6 and 10 of ICC A117.1-2009.
Requests for Additional Guidance
Comment: Some commenters urged HUD to also update guidance
documents, including the Fair Housing Act Design Manual, the HUD-DOJ
Joint Statement, and Fair Housing First to reflect current construction
practices. A commenter stated that this would allow HUD's guidance
documents and the Design Manual to be consistent with and fully reflect
the current accepted safe harbors, the additional safe harbors as
proposed in this rulemaking, and the various building codes used across
the country by state and local communities. One commenter suggested HUD
develop ``Fact Sheets'' covering the Act's design requirements that
highlight each requirement with text and examples, along with links for
users to access additional information.
HUD Response: The commenters' request is outside this rule's scope.
HUD will, however, consider the commenters' recommendations to provide
additional guidance on the Act's design and construction requirements.
Comment: One commenter asked that HUD provide additional guidance
on what dwellings and buildings containing elevators are covered by the
design and construction requirements.
HUD Response: HUD notes that the comment is outside the rulemaking
scope, but directs the commenter to its prior guidance on this topic,
including the Fair Housing Act Design Manual \13\ and the Joint
Statement of the Department of Housing and Urban Development and the
Department of Justice on the Accessibility (Design and Construction)
Requirements for Covered
[[Page 78961]]
Multifamily Dwellings under the Fair Housing Act,\14\ which contain
detailed discussions of dwellings and buildings with elevators.
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\13\ https://www.huduser.gov/portal/publications/PDF/FAIRHOUSING/fairfull.pdf.
\14\ https://www.hud.gov/sites/documents/JOINTSTATEMENT.PDF.
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Other Issues
Comment: Commenters stated that going forward, HUD should designate
new safe harbors in a timely fashion. Commenters requested that HUD
review and adopt more recent versions of ANSI A117.1 and the IBC. Two
commenters supported HUD's proposal to designate new safe harbors by
Federal Register notice with a minimum 30-day comment period, stating
that establishing a procedure to evaluate new editions of codes and
standards against the Act's accessibility requirements will help ensure
HUD's safe harbor list stays current.
HUD Response: HUD agrees that the process for adopting new safe
harbors can be more timely and expects that the addition of Sec.
100.205(e)(3) will serve that end. The new provision permits HUD to
propose new safe harbors by Federal Register notice with a minimum
public comment period of 30 days and, after considering public comment,
to publish a final notice announcing any new safe harbor. HUD will also
periodically codify new safe harbors in part 100 in the course of later
rulemaking.
Comment: Several commenters requested that HUD continue to make the
matrix, prepared by the ICC and forming a basis for the proposed rule,
publicly available on its website as well as through the Fair Housing
FIRST program. They stated that the continued availability of the
matrix will enable designers, developers, and advocates to understand
key components of the safe harbors, vis a vis the Act's requirements.
HUD Response: HUD notes that the matrix is part of this
rulemaking's administrative record. Interested parties may contact the
ICC concerning the electronic public posting of this document.
Comment: A commenter asked HUD to explain how this rule's adoption
contributes to tackling the affordability crisis among people with
disabilities so that they can afford to live in these advantageous
living spaces.
HUD Response: As many commenters have noted, the adoption of
additional safe harbors will make it easier for persons who design and
construct covered multifamily dwellings to comply with the Act and
state and local building codes. HUD believes this will also facilitate
greater availability of accessible housing across all affordability
levels.
Outside the Rulemaking Scope
Comment: Some commenters stated that the Act and HUD's Guidelines
should provide for accessibility meeting universal design and promoting
visitability. One commenter noted that bathtubs are not usable to
people with serious mobility impairments. The commenter added that
accessible bathtubs are not expensive to build from the design phase,
but are expensive to retrofit, and urged HUD to compel developers to
plan for the needs of older adults and people with disabilities.
HUD Response: HUD notes that the comment is beyond this
rulemaking's scope. HUD notes further that the Act is intended to place
``modest accessibility requirements on covered multifamily dwellings''
that will ensure accessibility for a broad range of individuals with
disabilities.\15\ Universal design often provides a greater level of
accessibility design and visitability than the Act. HUD agreed with the
commenter though that developers and designers should consider the
needs of the aging population as they plan and build new housing or
modernize existing housing.
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\15\ House Report No. 711, 100th Congress, 2nd Session.
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Comment: A commenter thought that using these documents as default
standards would undermine the other design codes like the Americans
with Disabilities Act (ADA) and state building codes, which built upon
them for better accessibility.
HUD Response: In many instances, multifamily housing is subject to
the accessibility requirements of more than one statute, such as the
Fair Housing Act, the Americans with Disabilities Act (ADA) or Section
504 of the Rehabilitation Act of 1973. In such circumstances, the
housing must comply with the law that provides for the greatest level
of accessibility in a particular element. Furthermore, the Act
specifically provides that it does not invalidate or limit any state or
local law that requires dwellings to be designed and constructed in a
manner that affords greater accessibility than the Act does. For these
reasons, the adoption of safe harbors does not undermine the
requirements of any standard that is applicable under other laws.
Comment: Two commenters suggested changes concerning the Uniform
Federal Accessibility Standards (UFAS), with one commenter recommending
that HUD adopt a rule creating consistency between UFAS and building
codes to facilitate Section 504 compliance in rehabilitation projects.
HUD Response: HUD declined to respond because the rule concerns
safe harbors under the Fair Housing Act, not Section 504, so the
comment is outside this rulemaking's scope.
IV. Incorporation by Reference
The referenced standard incorporated in this rule was approved by
the Director of the Federal Register, in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. This rule incorporates the voluntary
consensus standard ICC A117.1-2009 Accessible and Usable Buildings and
Facilities, as satisfying the Fair Housing Act's design and
construction requirements. It does not incorporate interpretations of
ICC A117.1-2009 issued by the ICC or any other entity or person. The
rule also cannot account for editions of ICC A117.1 issued after the
2009 edition. Therefore, if HUD were to revise the standard in the
future to codify newer editions of ICC A117.1, further rulemaking would
be required.
ICC A117.1-2009 is available online for review, via read-only
access, at https://codes.iccsafe.org/content/ICCA117_12009?site_type=public. Members of the public may visit the
link and create a username and password to view the free-access
edition. The standard may also be obtained from the International Code
Council, 500 New Jersey Avenue NW, 6th Floor, Washington, DC 20001-
2070, telephone number 1-888-422-7233, http://www.iccsafe.org/e/category.html. This phone number may also be reached by persons who are
deaf or hard of hearing, or have speech disabilities, by dialing 711
via teletype (TTY).
The following standards, included in the regulatory text, were all
previously approved for incorporation by reference in their respective
locations and those references remain unchanged: ICC/ANSI A117.1-2003,
ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986.
V. Findings and Certifications
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis on any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
organizations, and small governmental jurisdictions.
[[Page 78962]]
This final rule's purpose is to update a codified regulation that
provides technical standards for the design of covered multifamily
dwellings to ensure accessibility for persons with disabilities as
required by the Fair Housing Act. Specifically, the rule incorporates
by reference the 2009 edition of ICC A117.1 as a safe harbor,
compliance with which would satisfy the Fair Housing Act's
requirements. The final rule also retains as safe harbors the 1986,
1992, 1998 and 2003 editions of ANSI A117.1, as well as the 2000, 2003
and 2006 IBC editions, which HUD has previously adopted. In addition,
the rule adds the 2009, 2012, 2015 and 2018 IBC editions as safe
harbors. Consequently, small entities would not incur a significant
economic impact as they may continue to use any of the previously
codified standards. Additionally, adopting the 2009 ICC A117.1 and the
other new safe harbors may alleviate a significant economic impact for
small entities, as those entities may find compliance with these
standards to be less burdensome because their state or local building
codes may use these later editions of the A117.1 standard or the IBC.
Therefore, the undersigned certifies that this final rule will not have
a significant economic impact on a substantial number of small
entities.
Federalism Impact
Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from promulgating a
regulation that has federalism implications and either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Environmental Impact
This final rule is a policy document that sets out fair housing and
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3),
this final rule is categorically excluded from environmental review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (2
U.S.C. 1531-1538) requires federal agencies to assess the effects of
their regulatory actions on state, local, and tribal governments, and
on the private sector. This rule does not impose, within the meaning of
the UMRA, any federal mandates on any state, local, or tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number for this program
is 14.400.
List of Subjects in 24 CFR Part 100
Aged, Fair housing, Incorporation by reference, Individuals with
disabilities, Mortgages, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD is amending 24 CFR part
100 as follows:
PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
0
1. The authority for 24 CFR part 100 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
0
2. In Sec. 100.201, revise the definitions of ``Accessible,''
``Accessible route,'' and ``Building entrance on an accessible route''
to read as follows:
Sec. 100.201 Definitions.
Accessible when used with respect to the public and common use
areas of a building containing covered multifamily dwellings, means
that the public or common use areas of the building can be approached,
entered, and used by individuals with physical disabilities. The phrase
``readily accessible to and usable by'' is synonymous with accessible.
A public or common use area that complies with the appropriate
requirements of ICC A117.1-2009, ICC/ANSI A117.1-2003, ICC/ANSI A117.1-
1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986 (all incorporated by
reference, see Sec. 100.201a) or a comparable standard is deemed
``accessible'' within the meaning of this paragraph.
* * * * *
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or within a site that can
be negotiated by a person with a severe disability using a wheelchair
and that is also safe for and usable by people with other disabilities.
Interior accessible routes may include corridors, floors, ramps,
elevators, and lifts. Exterior accessible routes may include parking
access aisles, curb ramps, walks, ramps, and lifts. A route that
complies with the appropriate requirements of ICC A117.1-2009, ICC/ANSI
A117.1-2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-
1986 (all incorporated by reference, see Sec. 100.201a) or a
comparable standard is an ``accessible route'' within the meaning of
this paragraph.
* * * * *
``Building entrance on an accessible route'' means an accessible
entrance to a building that is connected by an accessible route to
public transportation stops, to accessible parking and passenger
loading zones, or to public streets or sidewalks, if available. A
building entrance that complies with ICC A117.1-2009, ICC/ANSI A117.1-
2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986
(all incorporated by reference, see Sec. 100.201a) or a comparable
standard is a ``building entrance on an accessible route'' within the
meaning of this paragraph.
* * * * *
0
3. Revise Sec. 100.201a to read as follows:
Sec. 100.201a Incorporation by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. All approved material is available for
inspection at Department of Housing and Urban Development, 451 Seventh
Street SW, Room 5240, Washington, DC 20410-0001, telephone number 202-
708-2333, and is available from the sources listed below. It is also
available for inspection at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected] or go to
www.archives.gov/federal-register/cfr/ibr-locations.html. The phone
numbers included in this section may also be reached by persons who are
deaf or hard of hearing, or have speech disabilities, by dialing 711
via teletype (TTY).
(b) American National Standards Institute (ANSI), 25 West 43rd
Street, 4th Floor, New York, NY 10036, 212.642.4900, [email protected].
https://webstore.ansi.org.
(1) ANSI A117.1-1986, American National Standard for Buildings and
Facilities: Providing Accessibility and Usability for Physically
Handicapped People, 1986 edition, into Sec. Sec. 100.201 and 100.205.
(2) [Reserved]
(c) International Code Council (ICC), 500 New Jersey Avenue NW, 6th
Floor, Washington, DC 20001-2070, telephone
[[Page 78963]]
number 1-888-422-7233, http://www.iccsafe.org/e/category.html.
(1) CABO/ANSI A117.1-1992, American National Standard: Accessible
and Usable Buildings and Facilities, 1992 edition, into Sec. Sec.
100.201 and 100.205.
(2) ICC/ANSI A117.1-1998, American National Standard: Accessible
and Usable Buildings and Facilities, 1998 edition, into Sec. Sec.
100.201 and 100.205.
(3) ICC/ANSI A117.1-2003, American National Standard: Accessible
and Usable Buildings and Facilities, 2003 edition, into Sec. Sec.
100.201 and 100.205.
(4) ICC A117.1-2009, Accessible and Usable Buildings and
Facilities, 2009 edition, approved October 20, 2010, into Sec. Sec.
100.201 and 100.205.
0
4. In Sec. 100.205, revise paragraph (e)(1), add paragraphs
(e)(2)(vii) through (x), and revise paragraph (e)(3), to read as
follows:
Sec. 100.205 Design and construction requirements.
* * * * *
(e)(1) Compliance with the appropriate requirements of ICC A117.1-
2009, ICC/ANSI A117.1-2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-
1992, or ANSI A117.1-1986 (all incorporated by reference, see Sec.
100.201a), or suffices to satisfy the requirements of paragraph (c)(3)
of this section.
(2) * * *
(vii) 2009 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2009
IBC Commentary;
(viii) 2012 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2012
IBC Commentary;
(ix) 2015 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2015
IBC Commentary; and
(x) 2018 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2018
IBC Commentary.
(3) HUD may propose safe harbors by Federal Register notification
that provides for a minimum of 30 days public comment period. HUD will
publish a final notification announcing safe harbors after considering
public comments. Compliance with safe harbors established by Federal
Register notification will satisfy the requirements of paragraphs (a)
and (c) of this section.
* * * * *
Anna Maria Far[iacute]as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2020-26376 Filed 12-7-20; 8:45 am]
BILLING CODE 4210-67-P