Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors

Cited as:85 FR 78957
Court:Housing And Urban Development Department
Publication Date:08 Dec 2020
Record Number:2020-26376
78957
Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations
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).
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.
(7) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA,
email fedreg.legal@nara.gov, or go to: https://
www.archives.gov/federal-register/cfr/ibr-
locations.html.
Issued on November 17, 2020.
Lance T. Gant,
Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2020–26867 Filed 12–7–20; 8:45 am]
BILLING CODE 4910–13–P
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.
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.
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
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
§ 100.205(e).
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Unlike prior versions of the American National
Standard, the ICC A117.1–2009 does contain ANSI
in its title.
6
See 42 U.S.C. 3604(f)(3)(C); Joint Statement Q&A
56.
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.
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 § 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 § 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.
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.
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Preamble to NPRM.
8
Joint Statement, Q&A 38.
9
42 U.S.C. 3604(f)(8).
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
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
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.
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
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Joint Statement, Q&A 38.
11
Joint Statement, Q&A 38.
12
Joint Statement, Q&A 40.
13
https://www.huduser.gov/portal/publications/
PDF/FAIRHOUSING/fairfull.pdf.
multifamily dwellings that comport
with the Act’s design and construction
requirements.
10
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
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 34Above 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
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
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https://www.hud.gov/sites/documents/
JOINTSTATEMENT.PDF.
15
House Report No. 711, 100th Congress, 2nd
Session.
Multifamily Dwellings under the Fair
Housing Act,
14
which contain detailed
discussions of dwellings and buildings
with elevators.
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 § 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.
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.
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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
1. The authority for 24 CFR part 100
continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3600–3620.
2. In § 100.201, revise the definitions
of ‘‘Accessible,’’ ‘‘Accessible route,’’ and
‘‘Building entrance on an accessible
route’’ to read as follows:
§ 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 § 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
§ 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
§ 100.201a) or a comparable standard is
a ‘‘building entrance on an accessible
route’’ within the meaning of this
paragraph.
* * * * *
3. Revise § 100.201a to read as
follows:
§ 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 fedreg.legal@nara.gov 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, info@ansi.org. 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 §§ 100.201
and 100.205.
(2) [Reserved]
(c) International Code Council (ICC),
500 New Jersey Avenue NW, 6th Floor,
Washington, DC 20001–2070, telephone
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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 §§ 100.201 and
100.205.
(2) ICC/ANSI A117.1–1998, American
National Standard: Accessible and
Usable Buildings and Facilities, 1998
edition, into §§ 100.201 and 100.205.
(3) ICC/ANSI A117.1–2003, American
National Standard: Accessible and
Usable Buildings and Facilities, 2003
edition, into §§ 100.201 and 100.205.
(4) ICC A117.1–2009, Accessible and
Usable Buildings and Facilities, 2009
edition, approved October 20, 2010, into
§§ 100.201 and 100.205.
4. In § 100.205, revise paragraph
(e)(1), add paragraphs (e)(2)(vii) through
(x), and revise paragraph (e)(3), to read
as follows:
§ 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
§ 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 Farı
´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
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