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

• Published date: 08 December 2020
• Citation: 85 FR 78957
• Record Number: 2020-26376
• Section: Rules and Regulations
• Court: Housing And Urban Development Department

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).

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78958

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

5

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.

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78959

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

7

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

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78960

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

10

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 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

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

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78961

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

14

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.

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78962

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

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

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES

78963

Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations

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

VerDate Sep<11>2014 16:00 Dec 07, 2020 Jkt 253001 PO 00000 Frm 00015 Fmt 4700 Sfmt 9990 E:\FR\FM\08DER1.SGM 08DER1

jbell on DSKJLSW7X2PROD with RULES