Nondiscrimination on the Basis of Disability in Federally Assisted Programs and Activities, 29671-29676 [2014-11844]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 79, Number 100 (Friday, May 23, 2014)]
[Rules and Regulations]
[Pages 29671-29676]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11844]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 8

[Docket No. FR-5784-N-01]


Nondiscrimination on the Basis of Disability in Federally 
Assisted Programs and Activities

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Instructions for use of alternative accessibility standard.

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SUMMARY: HUD is issuing this document to permit recipients of Federal 
financial assistance from HUD (HUD recipients) to use an alternative 
accessibility standard for purposes of complying with Section 504 of 
the Rehabilitation Act of 1973 (Section 504) and HUD's implementing 
regulation at 24 CFR part 8 (Section 504 regulation) until HUD formally 
revises its Section 504 regulation to adopt an updated accessibility 
standard. In March 2011, the Department of Justice (DOJ), pursuant to 
its coordination authority under Section 504, advised Federal agencies 
that they may permit covered entities to use the 2010 ADA Standards for 
Accessible Design (2010 Standards) as an acceptable alternative to the 
Uniform Federal Accessibility Standards (UFAS) until such time as they 
update their agency's regulation implementing the Federally assisted 
provisions of Section 504. Consistent with DOJ's advice, this document 
provides HUD recipients the option of using the 2010 Standards under 
title II of the ADA, except for certain specific provisions identified 
in this document, as an alternative accessibility standard to UFAS for 
purposes of complying with Section 504 and HUD's Section 504 regulation 
for new construction and alterations commenced on or after May 23, 
2014. This document is in effect until HUD formally revises its Section 
504 regulation to adopt an updated accessibility standard.

DATES: Effective Date: May 23, 2014.

FOR FURTHER INFORMATION CONTACT: Cheryl Kent, Special Advisor for 
Disability Policy, Office of Program Compliance and Disability Rights, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Washington, DC 20410, telephone 202-402-7058 (this is not a toll-free 
number). Individuals who are deaf, are hard of hearing, or have speech 
impairments may access this number via TTY by calling the toll-free 
Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Overview

    HUD's Section 504 regulation requires that programs or activities 
receiving Federal financial assistance be readily accessible to and 
usable by persons with disabilities. HUD's Section 504 regulation 
provides that the design, construction, or alteration of buildings and 
facilities in conformance with UFAS is deemed to be in compliance with 
the accessibility requirements of Section 504 (24 CFR 8.32). Many of 
the programs or activities that are subject to HUD's Section 504 
regulation, however, are also subject to title II of the ADA, which 
applies to public entities, or title III of the ADA, which covers 
certain private entities, including public accommodations, and are 
therefore required to comply with the 2010 Standards. When more than 
one law and accessibility standard applies, it is currently necessary 
for the recipient to determine on a section-by-section basis which 
standard affords greater accessibility.
    In March 2011, DOJ advised Federal agencies that they may provide 
covered entities the option of using the 2010 Standards as an 
acceptable alternative to UFAS (www.ada.gov/504_memo_standards.htm) 
until such time as they update their agency's regulation implementing 
the Federally assisted provisions of Section 504. Because many 
recipients of Federal financial assistance are also subject to the 
Americans with Disabilities Act (ADA), Federal agencies requested this 
authority to minimize the number of accessibility standards with which 
recipients of Federal financial assistance must comply.
    HUD has identified certain provisions in the 2010 Standards that 
provide less accessibility than is currently required by UFAS and/or 
HUD's Section 504 regulation. As a result, HUD is not deeming use of 
those specific provisions of the 2010 Standards as a means of providing 
accessibility under Section 504 because HUD cannot decrease the level 
of accessibility currently required by its Section 504 regulation 
without engaging in notice and comment rulemaking. Those provisions are 
summarized in the Appendix of this document.
    The option to utilize the 2010 Standards under title II of the ADA, 
except for certain provisions identified in this document, is available 
to all HUD recipients for purposes of complying with HUD's Section 504 
regulation whether they are private or

[[Page 29672]]

public entities, including HUD recipients covered by Section 504 but 
not title II or III of the ADA. For purposes of complying with Section 
504, a HUD recipient must designate the accessibility standard it is 
using: The 2010 Standards with identified exceptions outlined in this 
document or UFAS. Recipients that prefer to use UFAS as the 
accessibility standard under Section 504 may continue to do so. If a 
recipient subject to both Section 504 and the ADA decides to continue 
to use UFAS to comply with HUD's Section 504 requirements, it must 
determine, section-by-section, which standard (2010 Standards or UFAS) 
affords greater accessibility and comply with that provision. If 
choosing the 2010 Standards for purposes of compliance with Section 
504, the recipient need only comply with the 2010 Standards except that 
it must not apply those provisions not deemed as compliant in this 
document and must continue to apply those provisions of UFAS or the HUD 
regulation that are specifically identified in this document. HUD also 
reminds recipients that the design and construction requirements of the 
Fair Housing Act (FHAct) continue to apply to new construction of 
covered multifamily dwellings. These requirements are not affected by 
this document. However, some of these requirements impose greater 
accessibility requirements than the 2010 Standards.

II. Definitions of Standards and Guidelines Referenced in This Document

    1991 Standards means the requirements in the ADA Standards for 
Accessible Design published as Appendix A to 28 CFR part 36 on July 26, 
1991, and republished as Appendix D to 28 CFR part 36 on September 15, 
2010. For purposes of compliance with title II of the ADA, covered 
entities were not permitted to use the elevator exemption contained at 
sections 4.1.3(5) and 4.1.6(1)(j) of the 1991 Standards.
    2004 ADA and ABA Accessibility Guidelines means the minimum 
accessibility guidelines published by the United States Access Board in 
2004 for both the ADA and the Architectural Barriers Act (ABA).\1\
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    \1\ 36 CFR part 1191. The full text of the 2004 ADA and ABA 
Accessibility Guidelines is available at the U.S. Access Board's Web 
site, https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/background/ada-aba-accessibility-guidelines-2004.
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    2004 ADAAG means the requirements set forth in Appendices B and D 
to 36 CFR 1191 which are the ADA scoping chapters and the common 
technical requirements in the ADA and ABA Accessibility Guidelines.
    2004 ABAAG means the requirements set forth in Appendices C and D 
to 36 CFR 1191 which are the ABA scoping chapters and the common 
technical requirements in the ADA and ABA Accessibility Guidelines.
    UFAS means the Uniform Federal Accessibility Standards. HUD's 
Section 504 regulation references sections 3 through 8 of UFAS for 
purposes of compliance with Section 504.\2\
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    \2\ 24 CFR 8.32.
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    2010 Standards means the 2010 ADA Standards for Accessible Design 
as defined in the regulation implementing title II of the ADA and 
consists of the 2004 ADAAG as applied to entities covered by title II 
of the ADA (i.e., public entities) and the requirements contained in 28 
CFR 35.151.

III. Background

A. Section 504

    Section 504 and HUD's Section 504 regulation prohibit 
discrimination on the basis of disability in any program or activity 
that receives Federal financial assistance from the Department.\3\ 
HUD's Section 504 regulation specifically prohibits the denial of 
benefits of, exclusion from participation in, or other discrimination 
against qualified individuals with disabilities in Federally assisted 
programs or activities because a recipient's facilities are 
inaccessible to or unusable by individuals with disabilities.\4\ Among 
other things, the regulation requires that the design, construction, 
and alteration of projects meet physical accessibility requirements.\5\
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    \3\ 29 U.S.C. 794.
    \4\ 24 CFR 8.20.
    \5\ 24 CFR 8.21, 8.22, 8.23, 8.24, 8.25.
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    Currently, pursuant to HUD's Section 504 regulation, the design, 
construction, or alteration of buildings in conformance with UFAS is 
deemed to be in compliance with the accessibility requirements of 
Section 504.\6\ UFAS is based on the minimum accessibility guidelines 
developed by the United States Access Board (Access Board) that were 
adopted as enforceable standards by the General Services 
Administration, the Department of Defense, the Department of Housing 
and Urban Development, and the United States Postal Service for 
purposes of compliance with the ABA. Subsequently, UFAS was also 
adopted as the referenced accessibility standard in HUD's Section 504 
regulation. HUD's Section 504 regulation provides that departures from 
particular technical and scoping requirements of UFAS by the use of 
other methods are permitted where substantially equivalent or greater 
access to and usability of the building is provided (24 CFR 8.32).
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    \6\ 24 CFR 8.32.
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B. 2004 ADA and ABA Accessibility Guidelines

    On July 23, 2004, the Access Board published updated minimum 
accessibility guidelines for both the ADA and the ABA known as the 
Americans with Disabilities Act and Architectural Barriers Act 
Accessibility Guidelines (2004 ADA and ABA Accessibility Guidelines). 
The 2004 ADA and ABA Accessibility Guidelines updated the accessibility 
provisions contained in UFAS and the 1991 ADA Accessibility Guidelines. 
The 2004 ADA and ABA Accessibility Guidelines contain three parts: 
application and scoping requirements for facilities covered by the ADA 
(ADA Chapters 1 and 2); application and scoping requirements for 
facilities covered by the ABA (ABA Chapters 1 and 2); and a common set 
of technical provisions (Chapters 3 through 10). The 2004 ABAAG refers 
to ABA scoping Chapters 1 and 2 and technical provisions in Chapters 3 
through 10, and the 2004 ADAAG refers to ADA scoping Chapters 1 and 2 
and technical provisions in Chapters 3 through 10.
    HUD will engage in the rulemaking process in order to replace UFAS 
with a new accessibility standard based on the updated guidelines for 
purposes of both Section 504 and ABA compliance. Until HUD adopts a new 
accessibility standard, HUD recipients who undertake alterations or new 
construction of a project may continue to utilize UFAS and HUD's 
Section 504 or ABA regulations.

C. Title II of the ADA

    Title II of the ADA prohibits discrimination on the basis of 
disability by state and local government entities, including by 
requiring facilities designed, constructed, or altered by or on behalf 
of a public entity, or as part of a public entity's program, to be 
readily accessible to and usable by individuals with disabilities.\7\ 
Except for transportation facilities, DOJ is the Federal agency 
responsible for adopting accessibility standards under title II of the 
ADA.\8\ The Department of

[[Page 29673]]

Transportation establishes accessibility standards for transportation 
facilities subject to title II of the ADA. In 1991, DOJ issued a 
regulation establishing the 1991 Standards or UFAS as legally 
enforceable accessibility standards under title II.
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    \7\ 42 U.S.C. 12131 et. seq.
    \8\ The Department of Justice (DOJ) is also the Federal agency 
responsible for adopting accessibility standards under title III of 
the ADA, which prohibits discrimination on the basis of disability 
by public accommodations and requires places of public accommodation 
and commercial facilities to be designed, constructed, and altered 
in compliance with established accessibility standards. The DOJ 
implementing regulation is at 28 CFR part 36.
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    On September 15, 2010, DOJ published a final rule revising its 
title II regulation at 28 CFR part 35. Among other requirements, the 
revised regulation adopted a new accessibility standard referred to as 
the 2010 ADA Standards for Accessible Design (2010 Standards).\9\ For 
new construction and alterations that commence on or after March 15, 
2012, entities covered by title II must comply with the 2010 
Standards.\10\ The 2010 Standards can be found at https://www.ada.gov/2010ADAstandards_index.htm.
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    \9\ DOJ's September 15, 2010 final rule also revised its title 
III regulation. For title III entities, the 2010 Standards consist 
of the 2004 ADAAG and requirements under 28 CFR Part 36--Subpart D.
    \10\ See 28 CFR 35.151(c) for accessibility standards and 
compliance dates prior to March 15, 2012.
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    For title II entities, the 2010 Standards consist of the 2004 ADAAG 
and requirements contained in 28 CFR 35.151. Section 35.151 sets forth 
requirements that have the effect of modifying provisions in 2004 ADAAG 
and include scoping and technical requirements for social service 
center establishments, housing at places of education, assembly areas, 
medical care facilities, residential dwelling units for sale to 
individuals, and detention and correctional facilities. For example, 
social service center establishments, which include group homes, 
halfway houses, shelters, and similar facilities providing temporary 
sleeping accommodations, must comply with the 2010 Standards applicable 
to residential facilities including certain requirements specified at 
28 CFR 35.151(e). Most housing at a place of education (defined in the 
title II and title III regulations) must comply with the 2010 Standards 
applicable to transient lodging including certain requirements 
specified at 28 CFR 35.151(f).

IV. Deeming 2010 Standards as an Alternative Accessibility Standard for 
Section 504 Compliance

    In March 2011, pursuant to its coordination authority under Section 
504, DOJ advised Federal agencies that until such time as they update 
their agency's regulation implementing the Federally assisted 
provisions of Section 504, they may notify covered entities that they 
may use the 2010 Standards as an acceptable alternative to UFAS. 
Consistent with this guidance, HUD will permit, but not require HUD 
recipients to use the 2010 Standards under title II of the ADA, except 
for those provisions identified in this document, as an alternative 
accessibility standard to UFAS until HUD revises its Section 504 
regulation to formally adopt an updated accessibility standard.\11\ HUD 
is not permitting use of certain identified provisions in the 2010 
Standards because those provisions provide a lower level of 
accessibility than is currently required under UFAS and/or HUD's 
Section 504 regulation and HUD cannot reduce the level of accessibility 
provided under its Section 504 regulation without engaging in notice 
and comment rulemaking.
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    \11\ Memorandum dated March 29, 2011, from Thomas E. Perez, 
Assistant Attorney General, Division of Civil Rights, U.S. 
Department of Justice, to Federal Agency Civil Rights Directors and 
General Counsels, ``Permitting Entities Covered by the Federally 
Assisted Provisions of Section 504 of the Rehabilitation Act to Use 
the 2010 ADA Standards for Accessible Design as an Alternative 
Accessibility Standard for New Construction and Alterations,'' 
https://www.ada.gov/504_memo_standards.htm.
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    It is important to emphasize that HUD recipients electing to use 
the 2010 Standards must use the 2010 Standards applicable to public 
entities under title II of the ADA, with the exceptions noted below, to 
the entire project; they may not rely on some requirements contained in 
the 2010 Standards and some requirements contained in UFAS. For 
purposes of Section 504 compliance, this does not mean that existing 
buildings that are part of a project and which are not being altered 
must be brought up to the 2010 Standards. Rather, it means that when a 
HUD recipient undertakes new construction or alterations and chooses to 
use the 2010 Standards with the exceptions outlined in this document, 
the recipient must apply the 2010 Standards to all of the new 
construction or alterations. It should be noted that the 2010 Standards 
include a safe harbor for portions of a path of travel complying with 
UFAS or the 1991 Standards (28 CFR 35.151(b)(4)(ii)(C)). This safe 
harbor does not apply to existing elements that are altered. The 2010 
Standards are available at https://www.ada.gov/2010ADAstandards_index.htm.
    This option applies to all HUD recipients for purposes of 
compliance with HUD's Section 504 regulation, including private and 
public entities, and entities covered by Section 504 but not title II 
or III of the ADA. Most recipients covered by Section 504 based on the 
receipt of Federal financial assistance from HUD are state or local 
government entities or private entities covered by the ADA, and are 
therefore required to comply with ADA accessibility requirements.\12\ 
By issuing this document, HUD is offering covered entities the option 
of reducing the burden of complying with different accessibility 
standards under Section 504 and the ADA until HUD issues a rule 
adopting a new accessibility standard under Section 504. HUD recipients 
may utilize the 2010 Standards, with the exceptions outlined in this 
document, for compliance with both statutes.
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    \12\ State or local governments are ``public entities'' covered 
by title II of the ADA, 42 U.S.C. 12131-12134. ``Public 
accommodations'' include private for-profit or not-for-profit 
entities that are subject to the requirements of title III of the 
ADA, 42 U.S.C. 12181-12189.
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    This document makes no changes for entities that choose to use UFAS 
for purposes of Section 504 compliance along with HUD's Section 504 
regulation when undertaking alterations or new construction. HUD 
recipients may continue to use HUD's Section 504 regulation and UFAS 
for Section 504 compliance until HUD formally adopts an updated 
accessibility standard through rulemaking. However, because UFAS is no 
longer an option for ensuring compliance with title II of the ADA, HUD 
recipients subject to both Section 504 and title II of the ADA must 
take an additional step in order to ensure compliance with the ADA if 
they use UFAS for purposes of Section 504. Specifically, in addition to 
complying with each scoping and technical provision of UFAS, they must 
also comply with each scoping and technical provision of the 2010 
Standards that affords greater accessibility than UFAS.\13\
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    \13\ HUD's scoping continues to apply regarding the required 
number of accessible residential dwelling units.
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V. Utilizing the 2010 Standards

    As stated above, the 2010 Standards under title II consist of the 
2004 ADAAG and requirements in 28 CFR 35.151. HUD is permitting use of 
the 2010 Standards as an alternative accessibility standard with the 
following exceptions. These exceptions are necessary to ensure that HUD 
recipients construct or alter buildings and facilities with at least 
the same degree of accessibility as is currently required under HUD's 
Section 504 regulation and UFAS. The Department lacks the authority to 
allow the use of an alternative standard that would reduce 
accessibility or usability for individuals with disabilities in housing

[[Page 29674]]

settings below the level required by its Section 504 regulation without 
engaging in notice and comment rulemaking. As discussed below, these 
exceptions will also maintain consistency with certain requirements of 
the FHAct.

Definitions

    The 2010 Standards define some terms that are also defined in HUD's 
Section 504 regulation. In such cases, the definition in HUD's Section 
504 regulation shall control.

Scoping for Residential Dwelling Units

    The 2010 Standards generally defer to HUD on scoping of residential 
dwelling units provided by entities subject to HUD's Section 504 
regulation.\14\ Specifically, entities receiving Federal financial 
assistance from the Department must provide residential dwelling units 
containing mobility features and residential dwelling units containing 
communication features complying with the 2010 Standards in a quantity 
identified in HUD's Section 504 regulation. For purposes of this 
document, HUD is not changing its scoping requirements for residential 
dwelling units under its part 8 regulation.\15\ HUD recipients 
designing, constructing, altering, or operating residential facilities 
must utilize HUD's scoping to determine the number of required 
accessible units and utilize the 2010 Standards, with the identified 
exceptions noted below, for other scoping requirements as well as for 
the technical standards. If HUD's Section 504 rule does not provide 
scoping, a HUD recipient using the 2010 Standards for Section 504 
compliance must use the scoping provided in the 2010 Standards. This 
does not preclude HUD from considering scoping or other changes when it 
undertakes rulemaking to adopt a new accessibility standard.
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    \14\ Section 233.2 Residential Dwelling Units Provided by 
Entities Subject to HUD Section 504 Regulations.
    \15\ 24 CFR part 8, subpart C.
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Structural Impracticability--28 CFR 35.151

    Under Sec.  35.151(a)(2) full compliance with the requirements of 
the 2010 Standards is not required in new construction where a public 
entity can demonstrate that it is structurally impracticable to do so. 
Full compliance is considered structurally impracticable ``only in 
those rare circumstances when the unique characteristics of terrain 
prevent the incorporation of accessibility features.'' \16\ HUD's 
Section 504 regulation does not contain a comparable exception from 
compliance with the applicable accessibility requirements when HUD 
recipients undertake new construction of facilities. HUD's regulation 
also precludes a HUD recipient from selecting a site or location of a 
facility which would have the purpose or effect of excluding qualified 
individuals with disabilities from, denying benefits of, or otherwise 
subjecting them to discrimination under, any program or activity that 
receives Federal financial assistance.\17\ Under HUD's Section 504 
regulation, if a site cannot be made accessible to individuals with 
disabilities, it must not be selected. As emphasized above, HUD cannot 
allow the use of an alternative standard which conflicts with HUD's 
regulatory requirements and may reduce accessibility in housing 
settings without the opportunity for public input through notice and 
comment rulemaking. Accordingly, recipients may not apply the 
structural impracticability exception contained in Sec.  35.151(a)(2) 
of the 2010 Standards through this document.
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    \16\ 28 CFR 35.151(a)(2)(i).
    \17\ 24 CFR 8.4(b)(5).
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Alterations--28 CFR 35.151

    The 2010 Standards at 28 CFR 35.151(b) and section 202 contain 
criteria detailing when alterations of facilities must be made 
accessible. In certain situations, application of the 2010 Standards 
may result in fewer units containing accessibility features. Because 
HUD cannot use this document to permit the use of a lesser requirement 
than that required by its Section 504 regulation, HUD is not permitting 
use of Sec.  35.151(b). Therefore, multifamily housing projects must 
continue to utilize the terms ``substantial alterations'' and ``other 
alterations'' as defined in HUD's Section 504 regulation to determine 
accessibility requirements.\18\ This does not preclude HUD from 
considering changes to its alterations criteria for residential 
dwelling units when it revises its regulation to adopt a new 
accessibility standard.
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    \18\ 24 CFR part 8, subpart C.
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Additions--Section 202.2 of the 2010 Standards

    Section 202.2 of the 2010 Standards contains scoping requirements 
which may, in certain situations, afford less accessibility for 
individuals with disabilities than is currently provided by HUD's rules 
at 24 CFR part 8 and UFAS. Because the Department is precluded from 
permitting the use of an alternative standard that might reduce 
accessibility for individuals with disabilities in housing settings 
without notice and comment rulemaking, HUD is not permitting use of the 
scoping requirements for additions at section 202.2 of the 2010 
Standards.

Alterations Affecting Primary Function Areas--Exception to Section 
202.4 of the 2010 Standards

    Section 202.4 of the 2010 Standards includes a path of travel 
obligation when areas containing a primary function are altered. Under 
the Exception to Section 202.4, residential dwelling units are exempted 
from this requirement. Under HUD's Section 504 regulation, when 
accessible dwelling units are newly constructed or where alterations 
include the provision of accessible dwelling units, the dwelling units 
must be on an accessible route. HUD is not permitting use of the 
Exception to Section 202.4 because this may conflict with HUD's Section 
504 regulation.

Common Use Areas in Residential Facilities--Section 203.8 of the 2010 
Standards

    Section 203.8 of the 2010 Standards provides that, in residential 
facilities, common use areas that do not serve residential dwelling 
units required to provide mobility features are not required to be 
accessible or on an accessible route. By contrast, common use areas in 
residential facilities subject to the new construction requirements of 
the FHAct must comply with FHAct accessibility requirements, including 
the requirement to be on an accessible route, regardless of whether or 
not the common use areas serve units required to have mobility features 
pursuant to the ADA or Section 504. The only exception would be common 
use areas provided on upper stories of a non-elevator building provided 
the same common use areas are provided on the ground floor. In 
addition, this general exception for common use areas may result in 
less accessibility than is currently required under HUD's Section 504 
regulation and UFAS. Accordingly, HUD is not permitting use of Section 
203.8 under this document.

Employee Work Areas--Section 203.9 of the 2010 Standards, and Similar 
Sections

    The 2010 Standards require a more limited level of access within 
employee work areas in ADA-covered facilities than UFAS, which requires 
employee work areas to be fully accessible. As stated above, the 
Department has no authority to allow the use of an alternative standard 
that may reduce accessibility for individuals with disabilities without 
notice and comment rulemaking. Section 203.9, as well as

[[Page 29675]]

Section 206.2.8, the Exception to Section 403.5, and the Exception to 
Section 405.8, all require less accessibility in employee work areas 
than UFAS. For this reason, HUD is not permitting use of the 
aforementioned sections of the 2010 Standards for employee work areas.

Vehicular Route Exceptions--Sections 206.2.1 and 206.2.2 of the 2010 
Standards

    The 2010 Standards contain an exception for accessibility at site 
arrival points which provides that an ``accessible route shall not be 
required between site arrival points and the building or facility 
entrance if the only means of access between them is a vehicular way 
not providing pedestrian access'' (Section 206.2.1 Site Arrival Points, 
Exception 2). The 2010 Standards also contain an exception for 
accessibility within a site which provides that an ``accessible route 
shall not be required between accessible buildings, accessible 
facilities, accessible elements, and accessible spaces if the only 
means of access between them is a vehicular way not providing 
pedestrian access'' (Section 206.2.2 Within a Site, Exception). Neither 
exception is in UFAS,\19\ which requires pedestrian access routes, and 
both conflict with HUD's Section 504 regulation, which requires that 
all programs and activities receiving Federal funds be readily 
accessible to and usable by persons with disabilities, as well as the 
requirements of the FHAct and HUD's Fair Housing Accessibility 
Guidelines. Accordingly, HUD is not permitting the use of Exception 2 
to Section 206.2.1 Site Arrival Points, and the Exception to Section 
206.2.2 Within a Site.
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    \19\ See, e.g., UFAS, Section 4.1.1(1): At least one accessible 
route complying with 4.3 shall be provided within the boundary of 
the site from public transportation stops, accessible parking 
spaces, passenger loading zones if provided, and public streets or 
sidewalks to an accessible building entrance. UFAS, Section 
4.1.1(2): At least one accessible route complying with 4.3 shall 
connect accessible buildings, facilities, elements, and spaces that 
are on the same site. See also, UFAS, Section 4.3 Accessible Route.
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Elevator Exception 1--Section 206.2.3 of the 2010 Standards

    The 2010 Standards contain specific exceptions to the general 
provision requiring at least one accessible route to connect each story 
and mezzanine in multi-story buildings or facilities (Section 206.2.3). 
Exception 1 to Section 206.2.3 of the 2010 Standards contains an 
elevator exception for private buildings or facilities that are less 
than three stories or that have less than 3,000 square feet per story 
(unless the type of building is omitted in the standard from the 
exception, e.g., a shopping center, a shopping mall, the professional 
office of a health care provider, etc.). HUD's Section 504 regulation 
does not impose different requirements on recipients that are public 
entities as compared to recipients that are private entities. In order 
to ensure that all HUD recipients are subject to the same accessibility 
requirements, regardless of whether they are public or private 
entities, HUD is not permitting use of Exception 1 to Section 206.2.3 
by private entities subject to its Section 504 regulation.

Washing Machines; Clothes Dryers--Sections 214.2 and 214.3 of the 2010 
Standards

    UFAS requires front loading washing machines and clothes dryers in 
common use laundry rooms in facilities serving accessible residential 
dwelling units.\20\ UFAS' requirements for front-loading machines 
reflect the fact that not all persons with disabilities will be able to 
use top loading machines. The 2010 Standards, however, permit either 
top loading or front loading machines in such facilities (Section 214.2 
Washing Machines; Section 214.3 Clothes Dryers). Consequently, HUD is 
not permitting application of the scoping requirements for washing and 
drying machines found at sections 214.2 and 214.3 of the 2010 
Standards. Recipients must continue to comply with section 4.34.7 of 
UFAS. These requirements apply to each laundry room except that HUD's 
Section 504 regulation and UFAS would not require a laundry room on an 
upper story of a non-elevator building to be accessible provided that 
there is an accessible laundry room serving that same building on the 
ground floor. HUD recipients should also be aware that, when washing 
machines and clothes dryers are provided in individual dwelling units, 
front loading accessible washing machines and clothes dryers may be 
required in accessible dwelling units as a reasonable accommodation for 
individuals with disabilities.
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    \20\ UFAS, Section 4.34.7.2.
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Visible Alarms--Exception to Section 215.1 of the 2010 Standards

    Section 215.1 includes a new exception for visible alarms in the 
alteration of existing facilities, providing that visible alarms must 
be installed only when an existing fire alarm system is upgraded or 
replaced, or a new fire alarm system is installed. Under this 
exception, visible alarms would not be required as part of alterations 
unless the alarm system is upgraded, replaced, or newly installed. HUD 
is not permitting use of this exception because its application may 
result in less accessibility than is currently required under HUD's 
Section 504 regulation. Instead, recipients engaged in alterations must 
refer to HUD's regulation at 24 CFR 8.22, 8.23, 8.24, and 8.25 to 
determine whether visible alarms must be installed. For recipients 
engaged in substantial alterations, the new construction requirements 
apply (with the exception that building alterations are not required 
that have little likelihood of being accomplished without removing or 
altering a load-bearing structural member) and visible alarms would be 
included in the alterations. For recipients engaged in other 
alterations not rising to the level of substantial alterations, any 
alterations (including alterations to dwelling units, common areas, or 
parts of facilities that affect accessibility of existing housing 
facilities) must, to the maximum extent feasible, be made to be readily 
accessible to and usable by individuals with disabilities. ``To the 
maximum extent feasible'' means recipients are not required to make 
alterations if doing so would impose undue financial and administrative 
burdens on the operation of the multifamily housing project, but must 
provide for accessibility up to the point of undue financial and 
administrative burdens. This is a high threshold to meet. Therefore, 
HUD recipients must continue to comply with the provisions in HUD's 
Section 504 regulation, and not utilize the exception in the 2010 
Standards. If visible alarms are not provided, there must be an 
effective means of alerting individuals who are deaf or hard of hearing 
to fires and other emergencies in order to afford them an equal 
opportunity to evacuate to safety.
    For the convenience of the reader, the Appendix to this document 
provides a table that lists in column one the exceptions contained in 
the document and in the second column, the UFAS and/or HUD Section 504 
regulation provisions that would need to be complied with because the 
entity could not use that section of the ADA 2010 Standards. The table 
is provided so that it can be used by HUD recipients as a stand-alone 
chart that lists, in a single table, not only what the exceptions are, 
but what actions recipients must undertake in lieu of using the 
exceptions.

VI. Relationship to Other Laws

    Recipients of HUD funding must be aware of and comply with the 
accessibility requirements of all

[[Page 29676]]

applicable laws, including Section 504, the ABA, the ADA, and the 
FHAct. Compliance with one of these statutes does not ensure compliance 
with other Federal disability nondiscrimination laws. For example, 
compliance with Section 504, the ABA, or the ADA does not ensure 
compliance with the FHAct; similarly, compliance with FHAct 
accessibility requirements does not ensure compliance with the 
accessibility requirements of Section 504, the ABA, or the ADA. The 
FHAct prohibits discrimination in housing because of race, color, 
religion, sex, national origin, familial status, and disability.\21\ 
One type of disability discrimination prohibited by the FHAct is the 
failure to design and construct covered multifamily dwellings with 
certain features of accessible design.\22\
---------------------------------------------------------------------------

    \21\ The Act uses the term ``handicap'' instead of 
``disability.'' Both terms have the same legal meaning.
    \22\ 42 U.S.C. 3604(f).
---------------------------------------------------------------------------

    The FHAct design and construction requirements apply to ``covered 
multifamily dwellings'' designed and constructed for first occupancy 
after March 13, 1991. ``Covered multifamily dwellings'' means all 
buildings consisting of four or more dwelling units: In buildings 
without an elevator, all of the ground floor dwelling units are 
covered; in buildings with one or more elevators, all of the dwelling 
units are covered. HUD encourages entities to refer to HUD's FHAct 
regulation and technical guidance issued by HUD to ensure compliance 
with FHAct accessibility requirements.\23\
---------------------------------------------------------------------------

    \23\ See HUD regulation implementing the design and construction 
provisions at 24 CFR 100.200 et seq.; Final Fair Housing 
Accessibility Guidelines (``Guidelines''), 56 FR 9472 (Mar. 6, 
1991); Supplement to Notice of Fair Housing Accessibility 
Guidelines: Questions and Answers About the Guidelines (``Questions 
and Answers''), 59 FR 33362-68 (June 28, 1994); Fair Housing Act 
Design Manual (``Design Manual'') (August 1996, Revised April 1998). 
For additional technical assistance, see the Fair Housing Act 
Accessibility FIRST Web site, www.fairhousingfirst.org.

    Date: May 16, 2014.
David R. Ziaya,
Deputy Assistant Secretary for Operations and Programs.

Appendix to May 23, 2014 Document

Exceptions to the 2010 Standards

    This table is provided for HUD recipients that elect to use the 
2010 Standards under title II of the Americans with Disabilities Act 
(ADA) as an alternative accessibility standard to UFAS for purposes 
of complying with Section 504 until HUD formally revises its Section 
504 regulation. Please note that, for purposes of Section 504 
compliance, the 2010 Standards may be used with the following 
exceptions.

------------------------------------------------------------------------
                                          Provisions HUD recipients must
Provisions in 2010 standards not deemed    comply with for purposes of
   as equivalent alternatives to UFAS         section 504 compliance
------------------------------------------------------------------------
1. Section 35.151(a)(2) Exception for    2010 Standards at Section
 structural impracticability.             35.151 without Section
                                          35.151(a)(2) and (b) (see
                                          below) and HUD's Section 504
                                          regulation at 24 CFR Sec.
                                          8.4(b)(5).
2. Section 35.151(b) Alterations.......  HUD's Section 504 regulation at
                                          24 CFR Sec.  Sec.   8.20,
                                          8.21, 8.22, 8.23, 8.24, 8.25,
                                          8.26 and UFAS 4.1.6.
3. Section 202.2 Additions.............  HUD's Section 504 regulation at
                                          24 CFR Sec.  Sec.   8.20,
                                          8.21, 8.22, 8.23, 8.24, 8.25,
                                          8.26 and UFAS 4.1.5.
4. Exception to Section 202.4            2010 Standards at Section 202.4
 Alterations Affecting Primary Function   without the Exception and
 Areas.                                   HUD's Section 504 regulation
                                          at 24 CFR Sec.  Sec.   8.20,
                                          8.21, 8.22, 8.23, 8.24, 8.25,
                                          and 8.26.
5. Section 203.8 General Exceptions--    2010 Standards without Section
 Residential Facilities.                  203.8 and HUD's Section 504
                                          regulation at 24 CFR Sec.
                                          Sec.   8.20, 8.21, 8.22, 8.23,
                                          8.24, 8.25, and 8.26.
6. Employee Work Areas: Sections 203.9   2010 Standards without these
 (General exception for employee work     provisions; Note that HUD is
 areas), 206.2.8 (Circulation paths in    permitting use of Section
 employee work areas), and the            215.3 (Fire Alarm Systems in
 Exceptions to 403.5 (Clearances within   Employee Work Areas).
 employee work areas) and 405.8
 (Handrails within employee work areas).
7. Exception 2 to Section 206.2.1 Site   2010 Standards at Section
 Arrival Points.                          206.2.1 without Exception 2.
8. Exception to Section 206.2.2 Within   2010 Standards at Section
 a Site.                                  206.2.2 without the Exception.
9. Exception 1 to Section 206.2.3 Multi- 2010 Standards at Section
 Story Buildings and Facilities.          206.2.3 without Exception 1.
10. Section 214--Scoping of Washing      HUD's Section 504 regulation
 Machines and Clothes Dryers.             and UFAS 4.34.7 Laundry
                                          Facilities. HUD recipients
                                          should also be aware that,
                                          when washing machines and
                                          clothes dryers are provided in
                                          individual dwelling units,
                                          front loading accessible
                                          washing machines and clothes
                                          dryers may be required in
                                          accessible dwelling units as a
                                          reasonable accommodation for
                                          individuals with disabilities.
11. Exception to Section 215.1 Visible   2010 Standards at Section 215
 Alarms.                                  without the Exception to
                                          Section 215.1 and HUD's
                                          Section 504 regulation at 24
                                          CFR 8.20, 8.21, 8.22, 8.23,
                                          8.24, 8.25, and 8.26.
------------------------------------------------------------------------

    The option to use the 2010 Standards under title II of the ADA, 
with identified exceptions, is available to all HUD recipients for 
purposes of complying with Section 504. HUD recipients must 
designate the accessibility standard they are using: The 2010 
Standards with the identified exceptions outlined in this May 23, 
2014 Notice, or UFAS. If HUD recipients choose to use the 2010 
Standards, they must apply the 2010 Standards, with the identified 
exceptions, to the entire project. This option applies until HUD 
revises its Section 504 regulation to adopt an updated accessibility 
standard. This table provides a summary. Additional explanatory 
information is provided in other parts of the May 23, 2014 document.

[FR Doc. 2014-11844 Filed 5-22-14; 8:45 am]
BILLING CODE 4210-67-P