[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Rules and Regulations]
[Pages 63610-63616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23785]
[[Page 63609]]
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Part IV
Department of Housing and Urban Development
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24 CFR Part 100
Design and Construction Requirements; Compliance With ANSI A117.1
Standards; Final Rule
Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 /
Rules and Regulations
[[Page 63610]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 100
[Docket No. FR-5006-F-02]
RIN 2529-AA92
Design and Construction Requirements; Compliance With ANSI A117.1
Standards
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity and construction requirements of the Fair Housing Act and
its amendments, by: Updating and clarifying the references to the
American National Standards Institute (ANSI) building standard for
accessibility; and codifying the current HUD recognized safe harbors
under the Act. The ANSI A117.1 standard is the technical standard for
the design of housing and other facilities that are accessible to
persons with disabilities referenced in the Fair Housing Act, and is
commonly referred to as ``ANSI A117.1.'' This final rule updates the
references to the ANSI A117.1 to adopt the 2003 edition of the
standard, and clarifies that compliance with the appropriate
requirements of the 1986, 1992, and 1998 editions also remains
sufficient to meet the design and construction requirements of the Fair
Housing Act and its amendments. This final rule follows a July 18,
2007, proposed rule and takes into consideration the public comments
received on that rule. This final rule makes no substantive changes to
the proposed rule, but adds a new section on incorporation by reference
and makes other technical revisions consistent with recent guidelines
on incorporation by reference.
DATES: Effective date: November 24, 2008.
The standards incorporated by reference in this final rule are
approved by the Director of the Federal Register as of November 24,
2008.
FOR FURTHER INFORMATION CONTACT: Cheryl Kent, Special Advisor for
Disability Policy, 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 (42 U.S.C. 3601 et seq.)
(the Fair Housing Act) prohibits discrimination in housing and housing-
related transactions based on race, color, religion, national origin,
and sex. The Fair Housing Amendments Act of 1988 expands the coverage
of the Fair Housing Act to include families with children and persons
with disabilities.\1\ The Fair Housing Act, as amended, provides 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 such a manner that: (1) The public
use 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. Additionally,
the Fair Housing Act states that compliance with the appropriate
requirements of the American National Standard for buildings and
facilities providing accessibility and usability for physically
handicapped people (commonly cited as ``ANSI A117.1'') suffices to
satisfy the above-listed requirements.
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\1\ The Fair Housing Act refers to people with ``handicaps.''
Subsequently, in the Americans with Disabilities Act of 1990 and
other legislation, Congress adopted the terms ``persons with
disabilities'' and ``disability,'' which are the preferred usage.
Accordingly, this document hereinafter uses the terms ``persons with
disabilities,'' ``disability,'' or ``disabled,'' unless directly
quoting the Fair Housing Act.
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On January 23, 1989, at 54 FR 3232, HUD published its final
regulation implementing the Fair Housing Amendments Act of 1988 (HUD's
regulation). In the final regulation, HUD adopted the 1986 edition of
ANSI A117.1, which was the edition in effect at that time, as the
appropriate edition for acceptable compliance with the Fair Housing
Act. HUD's regulation adopting ANSI A117.1 is located at 24 CFR
100.201, and HUD's regulation implementing the design and construction
requirements is located at 24 CFR 100.205.
II. This Final Rule
This final rule updates the references to the ANSI A117.1 standard
to adopt the 2003 edition, and to stipulate that compliance with the
appropriate requirements of the 1998, 1992, and 1986 editions continues
to satisfy the requirements of the Fair Housing Act. Since the ANSI
standards are incorporated by reference, this final rule also adds a
section on incorporation by reference and otherwise revises the
language incorporating the ANSI standards. This change is technical and
not substantive.
The final rule also updates the regulation to acknowledge all 10
safe harbors currently recognized by HUD. This rule does not change
either the scoping requirements or the substance of the existing
accessible design and construction requirements contained in the
regulations, nor does the rule state that compliance with the 1986 ANSI
standard is no longer appropriate. The appropriate requirements of the
1986, 1992, 1998, and 2003 editions of ANSI A117.1 all constitute safe
harbors for compliance with the accessibility requirements of the Fair
Housing Act, when used together with the Act, HUD's regulations, and
HUD's Fair Housing Accessibility Guidelines (or Guidelines in this
preamble) for the scoping requirements.
In addition, the final rule makes an editorial change to the
definitions of ``Accessible,'' ``Accessible route,'' ``Building
entrance on an accessible route,'' and to Sec. 100.205(e) to combine
the two sentences in the proposed rule that referred to the editions of
ANSI A117.1 that are safe harbors into a single sentence. This is an
editorial change only for purposes of greater clarity.
This final rule applies only to the accessibility requirements of
the Fair Housing Act. When more than one law applies to a project, and
there are different accessibility standards for each law, the governing
principle to follow is that the more stringent requirements of each law
apply. For example, when a residential property that is covered by the
Fair Housing Act receives federal financial assistance, it must also
comply with the accessibility requirements of Section 504 of the
Rehabilitation Act of 1973 (Section 504) and 24 CFR part 8. A complex
that is covered by the Fair Housing Act may also be covered, in part,
by the Americans with Disabilities Act (ADA), e.g., the rental office
and any other place of public accommodation that is leased or used by
persons other than the residents and their guests.
[[Page 63611]]
Therefore, this final rule does not constitute a change in the
requirements for compliance for federally funded facilities and
dwelling units covered by Section 504 or the Architectural Barriers Act
(ABA); such facilities and units must comply with their respective
regulatory requirements at 24 CFR parts 8 and 24 CFR part 40, including
the Uniform Federal Accessibility Standard (UFAS), the ADA, and the
Department of Justice's regulations for the ADA. However, to the extent
that the requirements of the Fair Housing Act apply to the same
dwelling units that are subject to the requirements of Section 504, the
ABA, or the ADA, the safe harbors for compliance outlined in this final
rule shall be applied to those dwelling units that are subject to the
Fair Housing Act, but may not be used in lieu of more stringent
accessibility requirements mandated by Section 504 and the ABA, or the
ADA, where applicable.
III. Discussion of Public Comments
The Department published its proposed rule on July 18, 2007 (72 FR
39540), for public comment. The public comment period ended on
September 17, 2007. A total of eight comments were received from the
following: An individual building owner; a consultant who monitors
compliance with the Fair Housing Act; a nonprofit organization that
addresses design issues for persons with disabilities and older
persons; a nonprofit organization representing paralyzed veterans; an
organization representing building safety and fire prevention
professionals; a coalition representing both the multifamily rental
housing industry and an international federation representing owners
and managers of commercial properties; a national, nonprofit
organization of diverse communities within the disability community;
and an organization representing wheelchair users.
A. The ANSI A117.1 Standard
Comment: Several commenters expressed support for HUD's proposal to
update its regulations and to clarify the accessibility building
requirements. The commenters wrote that each new edition of ANSI A117.1
yields additional information and that updating the technical
specifications to ANSI 1998 and 2003 would be valuable.
Two commenters expressed concerns regarding the continued use of
previous editions of ANSI A117.1. One of the commenters, while agreeing
with HUD that covered multifamily buildings should be constructed using
the technical specifications of ANSI 1998 or ANSI 2003, objected
regarding ANSI 1992, writing that ANSI 1992 is no longer in print and
is generally difficult to locate. Another commenter objected to use of
the 1986, 1992, and 1998 editions, writing that only the 2003 edition
of ANSI meets the design and construction requirements of the Fair
Housing Act. Conversely, certain building industry commenters objected
to HUD's adopting any edition of ANSI except for the 1986 edition,
arguing that Congress adopted the 1986 edition as the version meeting
the Act.
Response: The Department agrees with the commenters' support of the
ANSI standard. Congress, in the Fair Housing Act, specifically
referenced the ANSI standard and encouraged its use for compliance with
the Act's accessibility requirements. Contrary to the commenters'
assertion that Congress adopted the 1986 edition, the Fair Housing Act
did not reference a specific edition of the standard. In its final
regulations implementing the Fair Housing Act, the Department elected
to specify the 1986 edition--the edition in effect at that time--in
response to public comments that the Department should refer to a
specific edition and incorporate future editions through rulemaking
proceedings.
The Department's review and recognition of new editions of the ANSI
A117.1 standard is well established. This issue was addressed during
the Department's initial review of several model building codes, all of
which referenced a more recent edition of the ANSI standard. In its
final report, published in the Federal Register, on its review of these
model building codes, the Department noted that many commenters
commended the Department for recognizing the 1998 ANSI A117.1 as a safe
harbor (65 FR 15740, March 23, 2000). Several commenters pointed out
that ANSI A117.1-1998 is the basis for the accessibility provisions in
the model codes and that HUD's acceptance of ANSI A117.1-1998 as a safe
harbor resolved many of the concerns of the multifamily housing
industry.
Further, as newer editions of ANSI have been developed, many
organizations have encouraged the Department to adopt these newer
editions. One major organization that represents home builders wrote to
the Department in 1998, pointing out that a 1998 edition of the ANSI
standard was about to be published and that it is logical to rely on
the latest version of a standard, unless the statute specifically
refers to a specific edition. This organization stated that there are
sound policy reasons for adopting the latest version of the ANSI
standard, since it reflects new developments in accessible design. The
organization pointed out that since the Fair Housing Act does not refer
to a particular edition of the ANSI standard, it would be reasonable
for the Department to permit use of the 1998 ANSI standard. Also, the
organization stated that the 1998 standard would be used by state and
local officials around the country and urged the Department to state
that the most recent edition of the ANSI standard meets the
requirements of the Fair Housing Act.
Other comments the Department received on its proposed rule support
the need to continue to recognize earlier editions of the standard
because state and local building codes are not updated on any
particular established schedule nor are they updated as frequently as
the model building code is updated. Similarly, there are state and
local jurisdictions that have adopted HUD's Fair Housing Accessibility
Guidelines into their building code or state fair housing law.
Accordingly, the Department believes that it is appropriate at this
time to continue to recognize all four editions of the ANSI A117.1
standard--1986, 1992, 1998, and 2003, as previously proposed.
With respect to one of the commenter's concerns that ANSI 1992 is
no longer in print and is generally difficult to locate, the Department
determined that the standard, 1992 CABO/ANSI A117.1 Accessible and
Usable Buildings and Facilities, is available in print and on compact
disc (CD-Rom) from the International Code Council, Washington DC (1-
800-786-4452 and http://www.iccsafe.org/e/category.html), which
addresses the commenter's concern.
B. Concern With the Department's Discussion of Its Enforcement of the
Fair Housing Act
Comment: One of the commenters expressed concern that the
Department's discussion of how it enforces the Fair Housing Act was an
announcement of new enforcement policy and did not belong in the
preamble of a proposed rule relating to the adoption of the 1992, 1998,
and 2003 ANSI standards.
Response: The commenter does not correctly characterize HUD's
statements about enforcement of the Fair Housing Act in the preamble to
the proposed rule. Rather than announcing new policy, the preamble
merely restated HUD's existing enforcement policy as part of the
agency's effort to explain the safe harbor provisions.
[[Page 63612]]
C. Concern With Expanding the Intent of the Fair Housing Act
Comment: One commenter wrote that if the proposed rule is
promulgated, it would directly contradict the creativity and diversity
of solutions to accessibility needs that the Fair Housing Act
encourages and that it would also establish a national building code.
The commenter wrote that the lack of specificity under the Fair Housing
Act reflects the intent of Congress that builders retain flexibility in
designing housing covered by the law. The commenter wrote that, in
enacting the Fair Housing Act, Congress did not direct or empower HUD
to promulgate binding regulations for accessible design features.
Response: The Department disagrees that its proposal either expands
the intent of the Fair Housing Act or limits designers and builders
with respect to the design and construction of covered multifamily
dwellings. In this final rule, the Department is adopting the 2003
edition of the ANSI A117.1 standard, while at the same time continuing
to recognize the earlier 1986, 1992, and 1998 editions. Moreover, the
recognition of additional safe harbors does not in any way result in
the adoption of a mandatory national building code. Rather, designers
and builders may continue to use alternative methods of complying, with
the following caveat, which the Department has stated since the
publication of the regulations and the Fair Housing Accessibility
Guidelines in 1991. If a designer or builder does not rely on one of
the HUD-recognized safe harbors, that designer or builder has the
burden of demonstrating how its efforts comply with the accessibility
requirements of the Fair Housing Act.
D. Codification of HUD-Recognized Safe Harbors
Comment: One commenter wrote that while HUD's effort to list in a
binding regulation the standards and codes accepted as safe harbors for
compliance with the Fair Housing Act's accessibility requirements is
appreciated, the many limiting comments and exceptions attending HUD's
designation of these standards as safe harbors detracts significantly
from their usefulness and reliability. The commenter wrote that to
follow the safe harbors as described by the proposed rule assumes
extensive prior knowledge and study not only of the standards
themselves, but also of the administrative guidance, enforcement
actions, and judicial decisions surrounding them. The commenter wrote
that it is unrealistic to expect multifamily housing professionals to
have that sort of complex understanding of the difficult technical
nuances.
Response: The Department does not agree that including the 10
currently recognized safe harbors in its regulations will create
difficulty in complying with the Act. The Department has placed very
few conditions on the use of the building codes as safe harbors.
Indeed, the few conditions that the Department has set on the
International Building Code (IBC) were determined necessary to ensure
that the declared safe harbor for IBC provided at least the same degree
of accessibility as the Fair Housing Act, HUD's regulations, and the
Guidelines. The 2003 IBC was deemed a safe harbor with only one
condition, and this condition is spelled out in the same paragraph in
which the Department specified the 2003 IBC. The 2006 IBC had text
missing, upon its initial publication, and it was necessary to alert
users about the text that was missing. In addition, it was determined
that it would be helpful to alert users of the IBC code about its 2006
Commentary because users may not have been aware that a Commentary with
guidance exists or they may need additional guidance on how to
interpret the code.
E. References to the Fair Housing Act in the IBC
Comment: One commenter wrote that HUD should seek greater inclusion
in technical code documents such as the ANSI standard of references to
HUD's Fair Housing Accessibility Guidelines. The commenter wrote that
this would avoid circumstances where people relying on ANSI overlook
the need to reference those Guidelines.
Response: The Department is mindful of the importance of the
Guidelines in the Department's work as a member of the ANSI A117
Committee and its involvement in the code development process. The 2003
and the 1998 editions of ANSI A117.1 include an explanation in their
``Purpose'' statements that the Type B dwelling units are intended to
be consistent with the intent of the criteria of the Guidelines. The
Department also wishes to point out that individuals using an edition
of the IBC that has been recognized by HUD as a safe harbor will not
need to refer to the Guidelines because these editions of the IBC
contain scoping requirements consistent with the Fair Housing Act,
HUD's regulations implementing the Act, and the Guidelines. The
International Code Council (ICC) has included references to the Fair
Housing Act, HUD's regulations, and the Fair Housing Accessibility
Guidelines in its 2006 IBC Code Commentary. The Department also
provided commentary to ICC, which ICC included in this same document,
to provide guidance in interpreting language that the Department
recommended and which the code body accepted for inclusion in Chapter
11 of the IBC.
F. HUD Participation in the ANSI and IBC Development Process
Comment: One commenter recommended that HUD continue to participate
in the model code development process. Two commenters recommended that
HUD participate as a full and equal partner on the A117.1 Committee and
offer proposals regardless of possible objection from committee
members.
Response: The Department agrees with these comments and intends to
continue its active role as a member of the ANSI A117 Committee. The
Department also hopes to be actively engaged in the IBC code
development process, and has participated in recent code hearings. The
Department proposed changes to the code that it believes will ensure
greater compliance with the Fair Housing Act.
G. Clarification of Requirements for Type B Dwelling Units as
Designated in ANSI
Comment: One commenter asked about requirements for townhouse units
in the State of California, stating that in buildings with four or more
townhouse style units, the State requires 10 percent (at least one) of
these units to be accessible on the primary entrance level. The
commenter stated that neither the townhouse units nor the buildings
have an elevator, and that the units are multistory with garage, living
room, powder room, and den on the first floor (ground level) and the
kitchen, dining room, bathrooms, and bedrooms on the second level. The
commenter asked for clarification on whether it was intended that the
ground floors of such townhouse units comply with the Fair Housing
Act's accessibility requirements or be ``Type B units'' as provided for
in the ANSI A117.1-2003 accessibility standard when there are no
elevators, either in the unit or in the building.
Response: The Fair Housing Act and HUD's Fair Housing Accessibility
Guidelines require multistory townhouse units to be accessible only if
they have an internal elevator, or if they are located in a building
that has one or more elevators. However, the Fair Housing Act does not
preclude states or units of local government from
[[Page 63613]]
establishing requirements that are more stringent than the requirements
of the Act. It appears that the State of California may have
established a more stringent requirement. However, if the commenter
would like further technical guidance on this matter, the Department
has established a technical guidance program called Fair Housing
Accessibility FIRST, to provide technical guidance to the building
industry on the accessibility requirements of the Fair Housing Act.
This program includes a technical guidance telephone hotline (1-888-
341-7781) and a comprehensive technical guidance Web site (http://www.fairhousingfirst.org/).
H. Comments in Response to Proposed Rule's Request for Public Comment
on Sunsetting Earlier Safe Harbors
Comment: In its proposed rule, the Department requested public
comments on both the efficacy of continuing to recognize older editions
of ANSI A117.1, and on how long the Department should continue to
recognize earlier editions of the IBC. The Department made this request
to obtain feedback for consideration for possible future rulemaking.
Two commenters expressed concerns regarding the continued use of
previous editions of ANSI A117.1. One of the commenters, while agreeing
with HUD that covered multifamily buildings should be constructed using
the technical specifications of ANSI 1998 or ANSI 2003, demurred
regarding the 1992 edition, writing that ANSI A117.1-1992 is no longer
in print and is generally difficult to locate. Another commenter
objected to use of the 1986, 1992, and 1998 editions, writing that only
the 2003 edition of the ANSI meets the design and construction
requirements of the Fair Housing Act.
One commenter also wrote that it is illogical to suggest that older
standards and safe harbors, which have been recognized to provide
accessible housing over the past 20 years, are no longer adequate
because a newer standard for compliance is being recognized as an
additional safe harbor by HUD. The commenter wrote that neither the
Fair Housing Act nor its legislative history indicates that Congress
intended future versions of ANSI to replace ANSI 1986 as a safe harbor.
The commenter urged HUD to withdraw its proposed regulatory changes.
This commenter also proffered that rather than requiring full
compliance with any particular safe harbor document, HUD should
encourage the flexibility of using standards from more than one such
document without losing benefits of the safe harbor status.
One commenter wrote that given the likelihood that state and local
jurisdictions will continue to rely on legal adoptions of or references
to the 10 safe harbor documents, it is incumbent on HUD to maintain its
regulatory recognition of these documents. In addition, the commenter
wrote that any action regarding the recognition of a safe harbor should
be understood to preserve the legal status of buildings constructed
using that safe harbor. Another commenter wrote that the numerous
conditions imposed on the use of the 2003 IBC make it possible that the
full complement of required information will not be conveyed to every
intended recipient and user. The commenter wrote that since there are
other versions of the IBC available as safe harbors, HUD should drop
the 2003 IBC from this designation.
One commenter recommended that HUD move to sunset older safe
harbors over the next few years, with the exception of the HUD Fair
Housing Act Design Manual. The Design Manual has, in the commenter's
view, proven to be the most useful and popular safe harbor and offers a
significant number of illustrations that enhance the users'
understanding of the Fair Housing design and construction requirements.
The commenter wrote that once the final rule is published, the next
step should be the updating of the Design Manual, referencing ANSI 1998
and 2003.
Several commenters suggested that HUD phase out all safe harbors
other than the 2003 edition of ANSI A117.1. The commenters wrote that
reliance on the latest edition would avoid any confusion regarding the
applicable accessibility requirements. One of the commenters wrote
that, in reference to a building with dwelling units to which the Fair
Housing Act and Section 504 apply, these dual standards for housing
accessibility coupled with the multiplicity of safe harbors could
result in confusion.
Response: The Department has considered all of the comments offered
on its request for comment on the appropriateness of sunsetting some of
the current HUD-recognized safe harbors at some future time. At
present, the Department has not determined whether in the future it
might be appropriate to sunset some of the safe harbors. If it decides
to do so in the future, the Department will give the public appropriate
notice and opportunity to comment at that time. With respect to one of
the commenter's concerns that ANSI 1992 is no longer in print, as noted
earlier in this preamble, the 1992 edition of ANSI 117.1 is available
from the International Code Council.
IV. HUD Policy Regarding HUD-Recognized Safe Harbors for Compliance
With the Fair Housing Act's Design and Construction Requirements
As the Department noted in the preamble to the proposed rule, with
the recognition of ICC/ANSI A117.1-2003 and the 2006 IBC as safe
harbors, the Department currently recognizes 10 safe harbors for
compliance with the design and construction requirements of the Fair
Housing Act. (See 72 FR 39541-39542.) These documents are:
1. Fair Housing Accessibility Guidelines, March 6, 1991 (http://www.hud.gov/offices/fheo/disabilities/fhefhag.cfm), in conjunction with
the June 28, 1994, Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers About the Guidelines (http://www.hud.gov/offices/fheo/disabilities/fhefhasp.cfm);
2. Fair Housing Act Design Manual (http://www.huduser.org/publications/destech/fairhousing.html), published by HUD in 1996 and
updated in 1998;
3. ANSI A117.1-1986, Accessible and Usable Buildings and Facilities
(available from Global Engineering Documents, 15 Inverness Way East,
Englewood, Colorado 90112), in conjunction with the Fair Housing Act,
HUD's regulations, and the Guidelines for the scoping requirements;
4. CABO/ANSI A117.1-1992, Accessible and Usable Buildings and
Facilities (http://www.iccsafe.org), in conjunction with the Fair
Housing Act, HUD's regulations, and the Guidelines for the scoping
requirements;
5. ICC/ANSI A117.1-1998, Accessible and Usable Buildings and
Facilities (http://www.iccsafe.org), in conjunction with the Fair
Housing Act, HUD's regulations, and the Guidelines for the scoping
requirements;
6. ICC/ANSI A117.1-2003, Accessible and Usable Buildings and
Facilities (http://www.iccsafe.org), in conjunction with the Fair
Housing Act, HUD's regulations, and the Guidelines for the scoping
requirements;
7. 2000 ICC Code Requirements for Housing Accessibility (CRHA),
published by the International Code Council (ICC), October 2000 (http://www.iccsafe.org) (ICC has issued an errata sheet to the CRHA);
8. 2000 International Building Code, as amended by the 2001
Supplement to the International Building Code (2001 IBC Supplement);
[[Page 63614]]
9. 2003 International Building Code, published by ICC (http://www.iccsafe.org), December 2002, with one condition: Effective February
28, 2005, HUD determined that the IBC 2003 is a safe harbor,
conditioned upon ICC publishing and distributing a statement to
jurisdictions and past and future purchasers of the 2003 IBC stating,
``ICC interprets Section 1104.1, and specifically the Exception to
Section 1104.1, to be read together with Section 1107.4, and that the
Code requires an accessible pedestrian route from site arrival points
to accessible building entrances, unless site impracticality applies.
Exception 1 to Section 1107.4 is not applicable to site arrival points
for any Type B dwelling units because site impracticality is addressed
under Section 1107.7 \2\''; and
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\2\ ICC's Web site includes information about the condition
placed on HUD's approval of the 2003 IBC as a safe harbor at the
following links: http://www.iccsafe.org/news/nr/2005/index.html;
http://www.iccsafe.org/government/news/; and http://www.iccsafe.org/news/ePeriodicals/eNews/archive/ICCeNews_0305.html.
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10. 2006 International Building Code, published by ICC (http://www.iccsafe.org) in January 2006, with a January 31, 2007, erratum to
correct the text missing from Section 1107.7.5 and interpreted in
accordance with the relevant 2006 IBC Commentary.
The Department is also reiterating, in this preamble to the final
rule, its policy with respect to the above safe harbors, as it did in
the preamble to the proposed rule. If a State or locality has adopted
one of the above documents without modification to the provisions that
address the Fair Housing Act requirements, a building covered by the
Act's design and construction requirements will be deemed compliant,
provided: (1) The building is designed and constructed in accordance
with plans and specifications approved during the building permitting
process and (2) the building code official does not waive, incorrectly
interpret, or misapply one or more of those requirements. However,
neither the fact that a jurisdiction has adopted a code that conforms
with the accessibility requirements of the Fair Housing Act, nor that
construction of a building subject to the Fair Housing Act was approved
under such a code, changes HUD's statutory responsibility to conduct an
investigation, following receipt of a complaint from an aggrieved
person, to determine whether the requirements of the Fair Housing Act
have been met. Nor does either fact prohibit the Department of Justice
from investigating whether violations of the Fair Housing Act's design
and construction provisions may have occurred. The Fair Housing Act
provides that: ``Determinations by a State or unit of general local
government under paragraphs 5(A) and (B) shall not be conclusive in
enforcement proceedings under this title.'' 42 U.S.C. 3604(f)(6)(a).
HUD's investigation of an accessibility discrimination complaint
under the Fair Housing Act typically involves, inter alia, a review of
building permits, certificates of occupancy, and construction documents
showing the design of the buildings and the site, and an on-site survey
of the buildings and property. During the investigation, HUD
investigators take measurements of relevant interior and exterior
elements on the property. All parties to the complaint have an
opportunity to present evidence concerning, inter alia, whether HUD has
jurisdiction over the complaint, and whether the Act has been violated
as alleged. In enforcing the design and construction requirements of
the Fair Housing Act, a prima facie case may be established by proving
a violation of HUD's Fair Housing Accessibility Guidelines. This prima
facie case may be rebutted by demonstrating compliance with a
recognized, comparable, objective measure of accessibility. See Order
on Secretarial Review, U.S. Department of Housing and Urban Development
and Montana Fair Housing, Inc. v. Brent Nelson, HUD ALJ 05-068FH
(September 21, 2006) (2006 WL 4540542). In making a determination as to
whether the design and construction requirements of the Fair Housing
Act have been violated, HUD uses the Fair Housing Act, the regulations,
and the Guidelines, all of which reference the technical standards
found in ANSI A117.1-1986.
It is the Department's position that these documents represent safe
harbors only when used in their entirety; that is, once a specific safe
harbor document has been selected, the building in question should
comply with all of the provisions in that document that address the
Fair Housing Act design and construction requirements to ensure the
full benefit of the safe harbor. The benefit of safe harbor status may
be lost if, for example, a designer or builder chooses to select
provisions from more than one of the above safe harbor documents or
from a variety of sources, and will be lost if waivers of provisions
are requested and 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 document will result in unlawful discrimination under the Fair
Housing Act, designers and builders that choose to depart from the
provisions of a specific safe harbor bear the burden of demonstrating
that their actions result in compliance with the Act's design and
construction requirements. HUD's purpose in recognizing a number of
safe harbors for compliance with the Fair Housing Act's design and
construction requirements is to provide a range of options that, if
followed in their entirety during the design and construction phase
without modification or waiver, will result in residential buildings
that comply with the design and construction requirements of the Act.
V. Additional Information
A link to the Department's report of its review of the 2006 IBC, as
well as the February 28, 2005, and March 23, 2000, reports, is located
at http://www.hud.gov/offices/fheo/disabilities/modelcodes/. The Fair
Housing Act, as amended in 1988, and the Fair Housing Accessibility
Guidelines can also be obtained through links provided at this Web
site. The Fair Housing Act regulations are located at http://www.access.gpo.gov/nara/cfr/waisidx_00/24cfr100_00.html. CABO/ANSI
A117.1-1992, ICC/ANSI A117.1-1998, and ICC/ANSI A117.1-2003 are
available for purchase at http://www.iccsafe.org/e/category.html. ANSI
A117.1-1986 is available from Global Engineering Documents, 15
Inverness Way East, Englewood, CO 80112, telephone number 1-800-854-
7179, and can be purchased at global.ihs.com.
VI. 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.
This final rule adopts the 2003 edition of ANSI A117.1 for purposes of
defining technical standards for accessibility for covered multifamily
dwellings. The final rule also provides that compliance with the 1986
edition of ANSI A117.1 that HUD previously adopted, as well as with the
1992 and 1998 editions of ANSI A117.1, would meet the requirements of
the Fair Housing Act and of HUD-recognized safe harbors. Small entities
need not incur a significant economic impact, as small entities can
still be in compliance
[[Page 63615]]
with the requirements of the Fair Housing Act if they continue to use
the 1986 ANSI A117.1 technical standard. Adopting the 2003 edition, as
well as the 1992 and 1998 editions of the standard, may even alleviate
a significant economic impact for small entities, as those entities may
find compliance with more recent editions of the ANSI A117.1 standard
to be less burdensome than compliance with the 1986 edition. The final
rule does not impose an undue burden on small entities, as the rule
would merely codify the use of more recent ANSI A117.1 standards as
satisfying the design and construction requirements of the Fair Housing
Act. 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 final 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.
VII. Incorporation by Reference
These reference standards are approved by the Director of the
Federal Register for incorporation by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of these standards may be
obtained from the following organizations:
ICC/ANSI A117.1-2003, ICC/ANSI A117.1-1998, and CABO/ANSI A117.1-
1992 may be obtained from the International Code Council, 500 New
Jersey Avenue, NW., 6th Floor, Washington, DC 20001-2070, telephone
number 1-888-422-7233, and may be ordered online at http://www.iccsafe.org/cs/standards/a117/order.html.
ANSI A117.1-1986 may be obtained from Global Engineering Documents,
15 Inverness Way East, Englewood, CO 80112, telephone number 1-800-854-
7179, and may be ordered online at global.ihs.com.
The 1986, 1992, 1998, and 2003 editions of ANSI A117.1 may be
inspected at the Department of Housing and Urban Development, 451
Seventh Street, SW., Room 5240, Washington, DC 20410-0001, telephone
number 202-708-2333.
List of Subjects in 24 CFR Part 100
Fair housing, Incorporation by reference, Individuals with
disabilities.
0
For the reasons stated in the preamble, HUD amends 24 CFR part 100 as
follows:
PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
0
1. The authority for 24 CFR part 100 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
0
2. In Sec. 100.201, remove the definition of ``ANSI A117.1-1986'' and
revise the definitions of ``Accessible,'' ``Accessible route,'' and
``Building entrance on an accessible route'' to read as follows:
Sec. 100.201 Definitions.
Accessible, when used with respect to the public and common use
areas of a building containing covered multifamily dwellings, means
that the public or common use areas of the building can be approached,
entered, and used by individuals with physical disabilities. The phrase
``readily accessible to and usable by'' is synonymous with accessible.
A public or common use area that complies with the appropriate
requirements of ICC/ANSI A117.1-2003 (incorporated by reference at
Sec. 100.201a), ICC/ANSI A117.1-1998 (incorporated by reference at
Sec. 100.201a), CABO/ANSI A117.1-1992 (incorporated by reference at
Sec. 100.201a), ANSI A117.1-1986 (incorporated by reference at Sec.
100.201a), or a comparable standard is deemed ``accessible'' within the
meaning of this paragraph.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or within a site that can
be negotiated by a person with a severe disability using a wheelchair
and that is also safe for and usable by people with other disabilities.
Interior accessible routes may include corridors, floors, ramps,
elevators, and lifts. Exterior accessible routes may include parking
access aisles, curb ramps, walks, ramps, and lifts. A route that
complies with the appropriate requirements of ICC/ANSI A117.1-2003
(incorporated by reference at Sec. 100.201a), ICC/ANSI A117.1-1998
(incorporated by reference at Sec. 100.201a), CABO/ANSI A117.1-1992,
ANSI A117.1-1986 (incorporated by reference at Sec. 100.201a), or a
comparable standard is an ``accessible route.''
* * * * *
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/ANSI A117.1-2003 (incorporated
by reference at Sec. 100.201a), ICC/ANSI A117.1-1998 (incorporated by
reference at Sec. 100.201a), CABO/ANSI A117.1-1992 (incorporated by
reference at Sec. 100.201a), ANSI A117.1-1986 (incorporated by
reference at Sec. 100.201a), or a comparable standard complies with
the requirements of this paragraph.
* * * * *
0
3. Add Sec. 100.201a to read as follows:
Sec. 100.201a Incorporation by reference.
(a) The following standards are incorporated by reference into 24
CFR part 100 pursuant to 5 U.S.C. 552(a) and 1 CFR part 51, as though
set forth in full. The incorporation by reference of these standards
has been approved by the Director of the Federal Register. The effect
of compliance with these standards is as stated in 24 CFR 100.205.
(b) The addresses of organizations from which the referenced
standards can be obtained appear below:
(1) American National Standard: Accessible and Usable Buildings and
Facilities, 2003 edition, (ICC/ANSI A117.1-2003), may be obtained from
the
[[Page 63616]]
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.
(2) American National Standard: Accessible and Usable Buildings and
Facilities, 1998 edition, (ICC/ANSI A117.1-1998), may 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.
(3) American National Standard: Accessible and Usable Buildings and
Facilities, 1992 edition, (CABO/ANSI A117.1-1992), may 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.
(4) American National Standard for Buildings and Facilities:
Providing Accessibility and Usability for Physically Handicapped
People, 1986 edition, (ANSI A117.1-1986) may be obtained from Global
Engineering Documents, 15 Inverness Way East, Englewood, CO 80112,
telephone number 1-800-854-7179, global.ihs.com.
(c) The 1986, 1992, 1998, and 2003 editions of ANSI A117.1 may be
inspected at the Department of Housing and Urban Development, 451
Seventh Street, SW., Room 5240, Washington, DC 20410-0001, telephone
number 202-708-2333.
0
4. Revise Sec. 100.205(e) to read as follows:
Sec. 100.205 Design and construction requirements.
* * * * *
(e)(1) Compliance with the appropriate requirements of ICC/ANSI
A117.1-2003 (incorporated by reference at Sec. 100.201a), ICC/ANSI
A117.1-1998 (incorporated by reference at Sec. 100.201a), CABO/ANSI
A117.1-1992 (incorporated by reference at Sec. 100.201a), or ANSI
A117.1-1986 (incorporated by reference at Sec. 100.201a) suffices to
satisfy the requirements of paragraph (c)(3) of this section.
(2) The following also qualify as HUD-recognized safe harbors for
compliance with the Fair Housing Act design and construction
requirements:
(i) Fair Housing Accessibility Guidelines, March 6, 1991, in
conjunction with the Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers About the Guidelines, June 28, 1994;
(ii) Fair Housing Act Design Manual, published by HUD in 1996,
updated in 1998;
(iii) 2000 ICC Code Requirements for Housing Accessibility (CRHA),
published by the International Code Council (ICC), October 2000 (with
corrections contained in ICC-issued errata sheet), if adopted without
modification and without waiver of any of the provisions;
(iv) 2000 International Building Code (IBC), as amended by the 2001
Supplement to the International Building Code (2001 IBC Supplement), if
adopted without modification and without waiver of any of the
provisions intended to address the Fair Housing Act's design and
construction requirements;
(v) 2003 International Building Code (IBC), if adopted without
modification and without waiver of any of the provisions intended to
address the Fair Housing Act's design and construction requirements,
and conditioned upon the ICC publishing and distributing a statement to
jurisdictions and past and future purchasers of the 2003 IBC stating,
``ICC interprets Section 1104.1, and specifically, the Exception to
Section 1104.1, to be read together with Section 1107.4, and that the
Code requires an accessible pedestrian route from site arrival points
to accessible building entrances, unless site impracticality applies.
Exception 1 to Section 1107.4 is not applicable to site arrival points
for any Type B dwelling units because site impracticality is addressed
under Section 1107.7.''
(vi) 2006 International Building Code; published by ICC, January
2006, with the January 31, 2007, erratum to correct the text missing
from Section 1107.7.5, if adopted without modification and without
waiver of any of the provisions intended to address the Fair Housing
Act's design and construction requirements, and interpreted in
accordance with the relevant 2006 IBC Commentary;
(3) Compliance with any other safe harbor recognized by HUD in the
future and announced in the Federal Register will also suffice to
satisfy the requirements of paragraph (c)(3) of this section.
* * * * *
Dated: September 11, 2008.
Kim Kendrick,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. E8-23785 Filed 10-23-08; 8:45 am]
BILLING CODE 4210-67-P