Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors, 2354-2359 [2020-00233]
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(14) * * *
(i) * * *
(A) An entity under audit that is an:
(1) Investment company; or
(2) Investment adviser or sponsor;
(B) The investment adviser or sponsor
of any investment company identified
in paragraph (f)(14)(i)(A)(1) of this
section;
(C) Any entity controlled by or
controlling any investment adviser or
sponsor identified in paragraph
(f)(14)(i)(A)(2) or (B), or any investment
company identified in paragraph
(f)(14)(i)(A)(1), of this section;
(D) Any entity under common control
with any investment company
identified in paragraph (f)(14)(i)(A)(1) of
this section, any investment adviser or
sponsor identified in paragraph
(f)(14)(i)(A)(2) or (B) of this section, or
any entity identified in paragraph
(f)(14)(i)(C) of this section; if the entity:
(1) Is an investment company,
investment adviser or sponsor, unless
the entity is not material to the
controlling entity; or
(2) Is engaged in the business of
providing administrative, custodian,
underwriting, or transfer agent services
to any entity identified in paragraphs
(f)(14)(i)(A) through (f)(14)(i)(B);
(E) Any entity over which any entity
identified in paragraph (f)(14)(i)(A) of
this section has significant influence,
unless the entity is not material to the
entity identified in paragraph
(f)(14)(i)(A), or any entity that has
significant influence over any entity in
paragraph (f)(14)(i)(A) of this section,
unless the entity identified in paragraph
(f)(14)(i)(A) is not material to the entity
that has significant influence over it;
and
(F) Any investment company that has
an investment adviser or sponsor
included in this definition by
paragraphs (f)(14)(i)(A) through
(f)(14)(i)(D) of this section.
(ii) An investment adviser, for
purposes of this definition, does not
include a sub-adviser whose role is
primarily portfolio management and is
subcontracted with or overseen by
another investment adviser.
(iii) Sponsor, for purposes of this
definition, is an entity that establishes a
unit investment trust.
(iv) An investment company, for
purposes of paragraph (f)(14) of this
section, means any investment company
or entity that would be an investment
company but for the exclusions
provided by Section 3(c) of the
Investment Company Act of 1940 (15.
U.S.C. 80–a3(c)).
*
*
*
*
*
By the Commission.
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Dated: December 30, 2019.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2019–28476 Filed 1–14–20; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 100
[Docket No. FR–6138–P–01]
RIN 2529–AA99
Fair Housing Act Design and
Construction Requirements; Adoption
of Additional Safe Harbors
Office of the Assistant
Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Proposed rule.
AGENCY:
This rule proposes to amend
HUD’s Fair Housing Act design and
construction regulations by
incorporating by reference the 2009
edition of International Code Council
(ICC) Accessible and Usable Building
and Facilities (ICC A117.1–2009)
standard, as a safe harbor. The
Accessible and Usable Buildings and
Facilities standard is a technical
standard for the design of facilities that
are accessible to persons with
disabilities. HUD proposes to determine
that compliance with ICC A117.1–2009
satisfies the design and construction
requirements of the Fair Housing Act
and its amendments. This rule also
proposes to designate the 2009, 2012,
2015 and 2018 editions of the
International Building Code (IBC) as
safe harbors under the Fair Housing Act.
The IBC is a model building code and
not law, but it has been adopted as law
by various states and localities. The IBC
provides minimum standards for public
safety, health, and welfare as they are
affected by building construction.
DATES: Comment Due Date: March 16,
2020.
SUMMARY:
Interested persons are
invited to submit comments regarding
this proposed rule to the Office of
General Counsel, Rules Docket Clerk,
Department of Housing and Urban
Development, 451 Seventh Street SW,
Room 10276, Washington, DC 20410–
0500. Communications should refer to
the above docket number and title.
Electronic Submission of Comments.
Interested persons may submit
comments electronically through the
Federal eRulemaking Portal at
www.regulations.gov. HUD strongly
encourages commenters to submit
ADDRESSES:
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comments electronically. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt by HUD, and enables HUD to
make them immediately available to the
public. Comments submitted
electronically through the
www.regulations.gov website can be
viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
No Facsimile Comments. Facsimile
(FAX) comments are not acceptable. In
all cases, communications must refer to
the docket number and title.
Public Inspection of Public
Comments. All comments and
communications submitted to HUD will
be available, without charge, for public
inspection and copying between 8 a.m.
and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an
appointment to review the public
comments must be scheduled in
advance by calling the Regulations
Division at 202–708–3055 (this is not a
toll-free number). Hearing- or speech
impairments may access this number
through TTY by calling the toll-free
Federal Information Relay Service, tollfree at 800–877–8339. Copies of all
comments submitted are available for
inspection and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Lynn Grosso, Director, Office of
Enforcement, Office of Fair Housing and
Equal Opportunity, Department of
Housing and Urban Development, 451
Seventh Street SW, Washington, DC
20410–2000; telephone number 202708–2333 (this is not a toll-free
number). Hearing- or speech-impaired
individuals may access this number via
TTY by calling the Federal Information
Relay Service, toll-free, at 800–877–
8339.
SUPPLEMENTARY INFORMATION:
I. Background
Title VIII of the Civil Rights Act of
1968, as amended, (42 U.S.C. 3601 et
seq.) (the ‘‘Fair Housing Act’’ or ‘‘Act’’)
prohibits discrimination in housing and
housing-related transactions based on
race, color, religion, national origin, sex,
disability and familial status.1 The Act
1 The Fair Housing Act refers to people with
‘‘handicaps.’’ Subsequently, in the Americans with
Disabilities Act of 1990 and other legislation,
Congress adopted the term ‘‘persons with
disabilities’’ or ‘‘disability,’’ which is the preferred
usage. Accordingly, this document hereinafter uses
the terms ‘‘persons with disabilities,’’ ‘‘disability,’’
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provides, inter alia, that unlawful
discrimination against persons with
disabilities includes the failure to
design and construct covered
multifamily dwellings for first
occupancy after March 13, 1991, in a
manner that ‘‘(1) the public and
common use portions of such dwellings
are readily accessible to and usable by
handicapped persons; (2) all the doors
designed to allow passage into and
within all premises within such
dwellings are sufficiently wide to allow
passage by handicapped persons in
wheelchairs; and (3) all premises within
such dwellings contain the following
features of adaptive design: (a) An
accessible route into and through the
dwelling; (b) light switches, electrical
outlets, thermostats, and other
environmental controls in accessible
locations; (c) reinforcements in
bathroom walls to allow later
installation of grab bars; and (d) usable
kitchens and bathrooms such that an
individual in a wheelchair can
maneuver about the space.’’ The Fair
Housing Act does not contain specific
technical design criteria that need to be
followed to comply with the design and
construction requirements. It does
provide, however, that compliance with
the appropriate requirements of the
‘‘American National Standard for
buildings and facilities providing
accessibility and usability for physically
handicapped people (commonly
referred to as ANSI A117.1), suffices to
satisfy the requirements of [42 U.S.C.
3604(f)(3)(C)(iii)],’’ which states the
Act’s design and construction
requirements for the interiors of covered
multifamily dwellings.
On November 7, 1988 (53 FR 44992),
HUD published a proposed rule to
implement the design and construction
provisions of the Fair Housing Act, as
amended. HUD’s proposed rule
provided that ‘‘whenever ANSI A117.1
is used, the reference is to the most
recently published edition of ANSI
A117.1 as of the date bids for
construction of a particular building are
solicited.’’ Several commenters objected
that an ‘‘open-ended’’ reference to
future ANSI standards would represent
an unlawful delegation of the
Department’s rulemaking authority.
According to these commenters, HUD
should refer to a specific edition of the
ANSI standards and should incorporate
future editions only through
rulemaking. As a result of these
concerns, HUD’s Fair Housing Act final
rule, published on January 23, 1989 (54
FR 3232), specifically stated that
or ‘‘disabled,’’ unless directly quoting the Fair
Housing Act.
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compliance with the appropriate
requirements of ANSI A117.1–1986, the
edition in effect at the time of the final
rule, functions as a safe harbor and
satisfies the technical requirements of
the Act. HUD also stated that it would
propose amending the definition of
ANSI as future editions of ANSI A117.1
are published.
The Fair Housing Act directs HUD to
‘‘provide technical assistance to states
and units of local government and other
persons to implement [the design and
construction requirements].’’ On March
6, 1991 (56 FR 9472), the Department
published the ‘‘Final Fair Housing
Accessibility Guidelines’’ which set
forth specific technical guidance for
designing covered multifamily
dwellings to be consistent with the Act.
Section I of the Guidelines states,
‘‘[t]hese guidelines are intended to
provide a safe harbor for compliance
with the accessibility requirements of
the Fair Housing Act.’’ On June 24, 1994
(59 FR 33362), the Department
published its ‘‘Supplement to Notice of
Fair Housing Accessibility Guidelines:
Questions and Answers about the
Guidelines.’’ The Department published
a Fair Housing Act Design Manual
(Design Manual) in 1996 that was
reissued in 1998 with minor changes.
The Design Manual is also a safe harbor
for compliance with the Act.2
Since HUD published its Fair Housing
Act final rule in 1989, the ANSI A117.1
accessibility standard has been updated
several times. HUD, as a member of the
A117 Committee that updates the
A117.1 standard, participates in these
updates. In addition, HUD, as part of its
mandate to provide technical assistance
to state and local governments to
incorporate the design and construction
requirements of the Act into their laws
and procedures for review and approval
of newly constructed multifamily
dwellings, has periodically reviewed
these updated standards. HUD
published a final rule on October 24,
2008 (73 FR 63614) that incorporated by
reference ICC/ANSI–2003 and clarified
that compliance with the appropriate
requirements of CABO/ANSI A117.1–
1992 and ICC/ANSI–1998 continued to
meet the design and construction
requirements of the Fair Housing Act.
See 24 CFR 100.201a(b)(1). As a result
of HUD’s 2008 final rule, HUD’s current
regulations specify that compliance
with the appropriate requirements of
ICC/ANSI A117.1–2003, ICC/ANSI
A117.1–1998, CABO/ANSI A117.1–
2 The Fair Housing Design Manual, August 1996,
revised 1998, is available at https://
www.huduser.gov/portal/publications/PDF/
FAIRHOUSING/fairfull.pdf.
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1992 and ANSI A117.1–1986 satisfy the
Fair Housing Act’s accessibility
requirements at subsection
804(f)(3)(C)(iii) of the Act. The 2008
final rule also updated the regulations to
reference certain editions of the IBC as
safe harbors for compliance with the
accessibility requirements in the Fair
Housing Act. HUD’s final rule codified
these additional design and
construction standards that HUD
recognized as safe harbors at
§ 100.205(e).
II. This Proposed Rule
This proposed rule would amend
HUD’s regulations with respect to the
design and construction requirements of
the Fair Housing Act by incorporating
by reference the 2009 edition of
International Code Council (ICC)
Accessible and Usable Building and
Facilities (ICC A117.1–2009) 3 as
satisfying the design and construction
requirements of the Fair Housing Act.
This rule would not change either the
scoping requirements or the substance
of the existing accessible design and
construction requirements contained in
the Fair Housing Act or its regulation.
This proposed rule would also
designate the 2009, 2012, 2015 and 2018
editions of the IBC as safe harbors under
the Fair Housing Act. Unlike the Act,
the IBC is a model building code, and
not a law. It provides standards for
public safety, health, and welfare as
they are affected by building
construction. The IBC is published by
the ICC, which was formed to bring
national uniformity to building codes.
Representatives of three former national
model code bodies joined together to
develop what are now called the
International Codes, or I-Codes. The IBC
is a major volume of the I-Codes and
contains provisions for accessibility
designed to reflect the intent of the Act,
the regulations, and the Guidelines.
Compliance with the IBC or another
model building code is not required
unless mandated by a state or local
jurisdiction. A jurisdiction may adopt a
model building code in its entirety or
with modifications.
With respect to housing, the IBC
contains requirements for three different
types of accessible units, which include
sleeping units (when such units are
used as a residence). The most
accessible of these three types is an
‘‘Accessible Unit,’’ which is wheelchair
accessible and may be found in
numerous types of residential buildings.
A second level of accessibility is set
3 Unlike prior versions of the American National
Standard, the ICC A117.1–2009 does contain ANSI
in its title.
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forth in the requirements for ‘‘Type A’’
dwelling units. The IBC specifies that a
percentage of ‘‘Type A’’ units must be
provided containing a high level of
accessibility, especially in kitchens and
bathrooms, as well as some features of
adaptability. The third level of
accessibility is a ‘‘Type B’’ dwelling
unit, which is a unit that is intended to
comply with those features of accessible
and adaptable design required under the
Act. Like the Act, the requirements for
Type B dwelling units apply to a greater
number of dwelling units in a building,
but the level of accessibility is less than
that of the Type A dwelling units.
In addition, the IBC provides scoping
requirements for the three types of
dwelling units described above. The
scoping requirements for the Type B
dwelling units are intended to be
consistent with the scoping
requirements in the Act, the regulations,
and the Guidelines. For the technical
requirements, the IBC references the
A117.1 accessibility standard. Thus, the
IBC contains both scoping requirements
and technical requirements that are
consistent with the Act, the regulations
and the Guidelines.
HUD is also proposing to amend
§ 100.205(e)(3) to provide that, in the
future, HUD may propose new safe
harbors by Federal Register notice. HUD
would provide a minimum of 30 days
public comment period and, after
considering public comment, publish a
final notice announcing any new safe
harbor. HUD will periodically codify
new safe harbors in part 100 in the
course of later rulemaking. HUD
proposes to provide that compliance
with safe harbors established by Federal
Register notice will satisfy the
requirements of paragraphs (a) and (c) of
§ 100.205.
III. HUD’s Review of ICC A117.1–2009,
and 2009, 2012, 2015 and 2018 IBC
In 2013 and 2015, and most recently
in 2018, representatives of the
multifamily housing industry contacted
the Department to request that HUD
review the accessibility requirements
contained in the 2009, 2012, 2015 and
2018 editions of the IBC to make a
determination as to whether these
editions would be deemed safe harbors
for compliance with the Act’s design
and construction requirements. These
organizations also made this request
with respect to ICC A117.1–2009,
Accessible and Usable Buildings and
Facilities. Based on assistance provided
specifically by ICC in the past, the
Department requested, and ICC
provided, a side-by-side matrix
comparing the relevant 2006 provisions
of the IBC, which HUD had previously
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reviewed and declared as a safe harbor,
with the 2009, 2012, 2015 and 2018
provisions in the IBC and related code
documents. ICC also provided copies of
the 2009, 2012, 2015 and 2018 IBC,
related Code Commentary, and other
relevant code documents. In addition,
ICC provided a similar matrix for ICC/
ANSI A117.1–2003 and ICC A117.1–
2009, along with copies of ICC A117.1–
2009 and related documents.
In conducting its review of these
documents, the Department carefully
reviewed the matrices provided by ICC,
as well as the code documents and the
accessibility standards. The Department
determined that the accessibility
provisions in the IBC and the ICC
A117.1 standard provide at least the
same level of accessibility as that
required by the Act, HUD’s
implementing regulations, and the
Guidelines.
The Department also notes that
following its earlier reviews of the
model building codes, the Department
worked with representatives from the
building industry, code organizations
and advocacy groups to develop code
text for certain editions of the IBC and
participated in public hearings to aid in
the passage of these code text changes.
The Department is also a voting member
of the A117 Committee, which is the
Committee that reviews and makes
changes to the A117.1 accessibility
standard, and in this role, the
Department has been actively involved
in updating all editions of the A117.1
standard that have followed the 1986
edition.
Having reviewed the 2009, 2012, 2015
and 2018 editions of the IBC, the
Department finds that the accessibility
provisions in these editions of the IBC
are consistent with the requirements in
the Act, HUD’s regulations and the
Guidelines. The Department did not
find any provision that it believes
provides for less accessibility than what
is required in the Act, the regulations
and the Guidelines, and the Department
notes that in certain respects, the IBC
provides for greater accessibility.
Similarly, in its review of the ICC
A117.1–2009, the Department did not
find any provisions that provide for less
accessibility than what is required in
the Act, HUD’s regulations and the
Guidelines. However, the Department
welcomes comments concerning
provisions that may provide for less
accessibility than what is required in
the Act, HUD’s regulations and the
Guidelines.
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IV. HUD-Recognized Safe Harbors for
Compliance With the Fair Housing
Act’s Design and Construction
Requirements and HUD Policy
Regarding These Safe Harbors
This proposed rule would amend
§ 100.205(e) to add ICC A117.1–2009,
and the 2009, 2012, 2015 and 2018
versions of the IBC to HUD’s current list
of safe harbors for compliance with the
design and construction requirements of
the Fair Housing Act.
The Department reiterates its policy
with respect to safe harbors. A covered
multifamily building will be deemed
compliant with the Act’s design and
construction requirements if the State or
locality where the building is located
has adopted one of HUD’s safe harbors
without modification of the provisions
that address the Act’s design and
construction requirements, 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. The fact
that a jurisdiction has adopted a code
that conforms to the accessibility
requirements of the Fair Housing Act or
that construction of a building subject to
the Act was approved under such a
code, however, does not alter 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 and
to issue a charge of discrimination if
warranted. Similarly, neither fact
precludes the Department of Justice
from investigating whether violations of
the Act’s design and construction
provisions may have occurred and filing
a lawsuit in federal court to enforcement
compliance with the Act where
appropriate. The Fair Housing Act
provides that, ‘‘[d]eterminations by a
State or unit of general local government
under [the Act] shall not be conclusive
in enforcement proceedings under this
title.’’ 42 U.S.C. 3604(f)(6)(a).
HUD’s investigation of a complaint
under the Fair Housing Act’s design and
construction requirements 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
of the property. All parties to the
complaint have an opportunity to
present evidence concerning, inter alia,
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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 Act, a prima facie
case may be established by proving that
the covered multifamily dwellings were
not designed and constructed in
accordance with HUD’s Fair Housing
Accessibility Guidelines. This prima
facie case may be rebutted by evidence
demonstrating compliance with a
recognized, comparable, objective
measure of accessibility. See Order on
Secretarial Review, U.S. Dept. of
Housing and Urban Development v.
Nelson, HUD ALJ 05–068FH, 2006 HUD
ALJ LEXIS 56, *14 (Sept. 21, 2006)
(2006 WL 4540542), aff’d, Nelson v.
HUD, 320 Fed. Appx. 635, 2009 US
App. LEXIS 6142, *4–5 (9th Cir. Mar.
26, 2009). In making a determination as
to whether the design and construction
requirements of the Act have been
violated, HUD uses the Act, the
regulations, and the Guidelines, all of
which reference the technical standards
found in ANSI A117.1–1986.
The standards and codes adopted by
HUD as safe harbors represent safe
harbors only when used in their
entirety; that is, once a specific safe
harbor document has been selected, the
covered multifamily dwellings in
question should comply with all of the
provisions in that document that
address the Act’s design and
construction requirements. The benefit
of safe harbor status may be lost if, for
example, a designer or builder chooses
to select provisions from more than one
of the above safe harbor documents or
from a variety of sources. In addition,
the benefit of safe harbor status will be
lost if waivers of accessibility provisions
are requested and/or obtained from state
or local governmental agencies. HUD’s
purpose in recognizing a number of safe
harbors for compliance with the Act’s
design and construction requirements is
to provide a range of options that, if
followed in their entirety during the
design and construction phase without
modification or waiver, will result in
residential buildings that comply with
the Act’s design and construction
requirements.
As part of its review of the various
editions of the IBC, the Department also
reviewed the related IBC Commentary to
determine whether certain commentary
that the Department drafted for
inclusion in the IBC Commentary
continues to appear in the IBC
Commentary from one edition to the
next. The Department reviewed the IBC
Commentary only in this respect and
did not review the Commentary with
respect to other sections of Chapter 11
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of the IBC or to commentary not drafted
by the Department. Therefore, the
Department’s review of the code
commentary applies only to the code
commentary the Department previously
provided to ICC. The commentary
which the Department previously
provided to ICC is commentary that
relates to Exception 1 under Section
1107.4 of the IBC, which addresses
requirements for an Accessible Route.
This commentary is intended to ensure
that the IBC’s Accessible Route
requirements do not provide for less
accessibility than the Act’s Accessible
Route requirements. The Department
reviewed the IBC Commentary for the
2009, 2012, 2015 and 2018 editions of
the IBC and notes that this commentary
is included and remains unchanged. For
a detailed discussion of this
commentary, see 72 FR 39432 (July 18,
2007).
V. Incorporation by Reference
Before HUD issues a final rule, the
referenced standard proposed for
incorporation must be approved by the
Director of the Federal Register, in
accordance with 5 U.S.C. 552(a) and 1
CFR part 51. This rulemaking proposes
to incorporate the voluntary consensus
standard ICC A117.1–2009 Accessible
and Usable Building and Facilities, as
satisfying the design and construction
requirements of the Fair Housing Act. It
would not incorporate interpretations of
ICC A117.1–2009 issued by the ICC or
any other entity or person. The
rulemaking also cannot account for
editions of ICC A117.1 issued after the
2009 edition. Therefore, if HUD wishes
to revise the standard in the future to
codify newer editions of ICC A117.1,
further rulemaking would be required.
ICC A117.1–2009 is available online
for review during this rule’s comment
period, via read-only access, at https://
codes.iccsafe.org/content/ICCA117_
12009?site_type=public. Members of the
public may visit the link and create a
username and password to view the
free-access edition. The standard may
also be obtained from the International
Code Council, 500 New Jersey Avenue
NW, 6th Floor, Washington, DC 20001–
2070, telephone number 1–888–422–
7233, https://www.iccsafe.org/e/
category.html.
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
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that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small not-forprofit organizations, and small
governmental jurisdictions.
The purpose of this proposed rule is
to update a codified regulation that
provides technical standards for the
design of covered multifamily dwellings
to ensure accessibility for persons with
disabilities as required by the Fair
Housing Act. Specifically, the rule
would incorporate by reference the 2009
edition of ICC A117.1 as a safe harbor,
compliance with which would satisfy
the requirements of the Fair Housing
Act. The proposed rule also retains as
safe harbors the 1986, 1992, 1998 and
2003 editions of ANSI A117.1, as well
as the 2000, 2003 and 2006 IBC, which
HUD has previously adopted. In
addition, the rule would add the 2009,
2012, 2015 and 2018 versions of the IBC
as safe harbors. Consequently, small
entities would not incur a significant
economic impact as they may continue
to use any of the previously codified
standards. Additionally, adopting the
2009 ICC A117.1 and the other new safe
harbors may alleviate a significant
economic impact for small entities, as
those entities may find compliance with
these standards to be less burdensome
because their state or local building
codes may use these later editions of the
A117.1 standard or the IBC. Therefore,
the undersigned certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities.
Notwithstanding HUD’s
determination that this rule will not
have a significant economic effect on a
substantial number of small entities,
HUD specifically invites comments
regarding any less burdensome
alternatives to this rule that will meet
HUD’s objectives as described in this
preamble.
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.
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Environmental Impact
This proposed rule is a policy
document that sets out fair housing and
nondiscrimination standards.
Accordingly, under 24 CFR 50.19(c)(3),
this proposed rule is categorically
excluded from environmental review
under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act (UMRA) of 1995 (2 U.S.C.
1531–1538) requires federal agencies to
assess the effects of their regulatory
actions on state, local, and tribal
governments, and on the private sector.
This rule does not impose, within the
meaning of the UMRA, any federal
mandates on any state, local, or tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance number for this program is
14.400.
List of Subjects in 24 CFR Part 100
Aged, Fair housing, Incorporation by
reference, Individuals with disabilities,
Mortgages, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, HUD proposes to amend 24
CFR part 100 as follows:
PART 100—DISCRIMINATORY
CONDUCT UNDER THE FAIR HOUSING
ACT
1. The authority for 24 CFR part 100
continues to read as follows:
■
Authority: 42 U.S.C. 3535(d), 3600–3620.
2. In § 100.201, revise the definitions
of ‘‘Accessible,’’ ‘‘Accessible route,’’
‘‘ANSI A117.1,’’ and ‘‘Building entrance
on an accessible route’’ to read as
follows:
■
jbell on DSKJLSW7X2PROD with PROPOSALS
§ 100.201
Definitions.
‘‘Accessible’’ when used with respect
to the public and common use areas of
a building containing covered
multifamily dwellings, means that the
public or common use areas of the
building can be approached, entered,
and used by individuals with physical
disabilities. The phrase ‘‘readily
accessible to and usable by’’ is
synonymous with accessible. A public
or common use area that complies with
the appropriate requirements of ICC
A117.1–2009 (proposed for
incorporation by reference, see
§ 100.201a), ICC/ANSI A117.1–2003
(incorporated by reference, see
§ 100.201a), ICC/ANSI A117.1–1998
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(incorporated by reference, see
§ 100.201a), CABO/ANSI A117.1–1992
(incorporated by reference, see
§ 100.201a), ANSI A117.1–1986
(incorporated by reference, see
§ 100.201a) or a comparable standard is
deemed ‘‘accessible’’ within the
meaning of this paragraph.
*
*
*
*
*
‘‘Accessible route’’ means a
continuous unobstructed path
connecting accessible elements and
spaces in a building or within a site that
can be negotiated by a person with a
severe disability using a wheelchair and
that is also safe for and usable by people
with other disabilities. Interior
accessible routes may include corridors,
floors, ramps, elevators, and lifts.
Exterior accessible routes may include
parking access aisles, curb ramps,
walks, ramps, and lifts. A route that
complies with the appropriate
requirements of ICC A117.1–2009
(proposed for incorporation by
reference, see § 100.201a), ICC/ANSI
A117.1–2003 (incorporated by
reference, see § 100.201a), ICC/ANSI
A117.1–1998 (incorporated by
reference, see § 100.201a), CABO/ANSI
A117.1–1992 (incorporated by
reference, see § 100.201a), ANSI
A117.1–1986 (incorporated by
reference, see § 100.201a) or a
comparable standard is an ‘‘accessible
route’’ within the meaning of this
paragraph.
*
*
*
*
*
‘‘Building entrance on an accessible
route’’ means an accessible entrance to
a building that is connected by an
accessible route to public transportation
stops, to accessible parking and
passenger loading zones, or to public
streets or sidewalks, if available. A
building entrance that complies with
ICC A117.1–2009 (proposed for
incorporation by reference, see
§ 100.201a), ICC/ANSI A117.1–2003
(incorporated by reference, see
§ 100.201a), ICC/ANSI A117.1–1998
(incorporated by reference, see
§ 100.201a), CABO/ANSI A117.1–1992
(incorporated by reference, see
§ 100.201a), ANSI A117.1–1986
(incorporated by reference, see
§ 100.201a) or a comparable standard is
a ‘‘building entrance on an accessible
route’’ within the meaning of this
paragraph.
*
*
*
*
*
■ 3. Revise § 100.201a to read as
follows:
§ 100.201a
Incorporation by reference.
Certain material is incorporated by
reference into this part with the
approval of the Director of the Federal
PO 00000
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Register under 5 U.S.C. 552(a) and 1
CFR part 51. All approved material is
available for inspection at Department
of Housing and Urban Development,
451 Seventh Street SW, Room 5240,
Washington, DC 20410–0001, telephone
number 202–708–2333, and is available
from the sources listed in the following
paragraphs. It is also available for
inspection at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, email fedreg.legal@
nara.gov or go to www.archives.gov/
federal-register/cfr/ibr-locations.html.
The effect of compliance with this
material is as stated in 24 CFR 100.205.
(a) American National Standards
Institute (ANSI), 25 W 43rd Street, 4th
Floor, New York, NY 10036, Telephone
(212) 642–4980, ANSI Webstore, https://
webstore.ansi.org.
(1) ANSI A117.1–1986, American
National Standard for Buildings and
Facilities: Providing Accessibility and
Usability for Physically Handicapped
People, 1986 edition, IBR approved for
§§ 100.201, 100.205.
(2) [Reserved]
(b) International Code Council, 500
New Jersey Avenue NW, 6th Floor,
Washington, DC 20001–2070, telephone
number 1–888–422–7233, https://
www.iccsafe.org/e/category.html.
(1) CABO/ANSI A117.1–1992,
American National Standard: Accessible
and Usable Buildings and Facilities,
1992 edition, IBR approved for
§§ 100.201, 100.205.
(2) ICC/ANSI A117.1–1998, American
National Standard: Accessible and
Usable Buildings and Facilities, 1998
edition, IBR approved for §§ 100.201,
100.205.
(3) ICC/ANSI A117.1–2003, American
National Standard: Accessible and
Usable Buildings and Facilities, 2003
edition, IBR approved for §§ 100.201,
100.205.
(4) ICC A117.1–2009, American
National Standard: Accessible and
Usable Buildings and Facilities, 2009
edition, IBR approved for §§ 100.201,
100.205.
■ 4. In § 100.205, revise paragraph
(e)(1), add paragraphs (e)(2)(vii) through
(x), and revise paragraph (e)(3), to read
as follows:
§ 100.205 Design and construction
requirements.
*
*
*
*
*
(e)(1) Compliance with the
appropriate requirements of ICC
A117.1–2009 (proposed to be
incorporated by reference, see
§ 100.201a), ICC/ANSI A117.1–2003
(incorporated by reference, see
§ 100.201a), ICC/ANSI A117.1–1998
E:\FR\FM\15JAP1.SGM
15JAP1
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
(incorporated by reference, see
§ 100.201a), CABO/ANSI A117.1–1992
(incorporated by reference, see
§ 100.201a), or ANSI A117.1–1986
(incorporated by reference, see
§ 100.201a), or suffices to satisfy the
requirements of paragraph (c)(3) of this
section.
(2) * * *
(vii) 2009 International Building
Code, published by ICC (https://
www.iccsafe.org), and interpreted in
accordance with the relevant 2009 IBC
Commentary;
(viii) 2012 International Building
Code, published by ICC (https://
www.iccsafe.org), and interpreted in
accordance with the relevant 2012 IBC
Commentary;
(ix) 2015 International Building Code,
published by ICC (https://
www.iccsafe.org), and interpreted in
accordance with the relevant 2015 IBC
Commentary; and
(x) 2018 International Building Code,
published by ICC (https://
www.iccsafe.org), and interpreted in
accordance with the relevant 2018 IBC
Commentary.
(3) HUD may propose safe harbors by
Federal Register notice that provides for
a minimum of 30 days public comment
period. HUD will publish a final notice
announcing safe harbors after
considering public comments.
Compliance with safe harbors
established by Federal Register notice
will satisfy the requirements of
paragraphs (a) and (c) of this section.
*
*
*
*
*
Dated: January 6, 2020.
David H. Enzel,
General Deputy Assistant Secretary for Fair
Housing and Equal Opportunity.
[FR Doc. 2020–00233 Filed 1–14–20; 8:45 am]
BILLING CODE 4210–67–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 62
jbell on DSKJLSW7X2PROD with PROPOSALS
[EPA–R06–OAR–2011–0513; FRL–10003–
61–Region 6]
Approval and Promulgation of State
Air Quality Plans for Designated
Facilities and Pollutants; New Mexico
and Albuquerque-Bernalillo County,
New Mexico; Control of Emissions
From Existing Other Solid Waste
Incineration Units
Environmental Protection Agency (EPA)
is notifying the public that we have
received CAA section 111(d)/129
negative declarations from New Mexico
and Albuquerque-Bernalillo County,
New Mexico for existing Other Solid
Waste Incineration (OSWI) units. These
negative declarations certify that
existing OSWI units subject to the
requirements of sections 111(d) and 129
of the CAA do not exist within the
specified jurisdictions in New Mexico.
Written comments should be
received on or before February 14, 2020.
DATES:
Submit your comments,
identified by EPA–R06–OAR–2011–
0513, at https://www.regulations.gov or
via email to ruan-lei.karolina@epa.gov.
For additional information on how to
submit comments see the detailed
instructions in the ADDRESSES section of
the direct final rule located in the rules
section of this Federal Register.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Karolina Ruan Lei, (214) 665–7346,
ruan-lei.karolina@epa.gov.
In the
final rules section of this Federal
Register, the EPA is accepting the
State’s 111(d)/129 negative declarations
and amending 40 CFR part 62, subpart
GG, as a direct final rule without prior
proposal because the Agency views this
as a noncontroversial submittal and
anticipates no adverse comments. A
detailed rationale for the EPA’s action is
set forth in the direct final rule. If no
relevant adverse comments are received
in response to this action, no further
activity is contemplated. If the EPA
receives relevant adverse comments, the
direct final rule will be withdrawn and
all public comments received will be
addressed in a subsequent final rule
based on this proposed rule. The EPA
will not institute a second comment
period. Any parties interested in
commenting on this action should do so
at this time.
For additional information, see the
direct final rule which is located in the
rules section of this Federal Register.
SUPPLEMENTARY INFORMATION:
Dated: December 23, 2019.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020–00287 Filed 1–14–20; 8:45 am]
BILLING CODE 6560–50–P
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
SUMMARY:
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2359
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 52
[WC Docket No. 18–336; FCC 19–128; FRS
16369]
Implementation of the National Suicide
Hotline Improvement Act of 2018
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission proposes
to designate 988 as a simple, easy-toremember, 3-digit dialing code for a
national suicide prevention and mental
health crisis hotline. We propose that all
telecommunications carriers and
interconnected VoIP providers be
required to implement 988 in their
networks within 18 months. We seek
comment on these proposals and related
issues, such as technical barriers to
implementation and costs.
DATES: Comments are due on or before
February 14, 2020, and reply comments
are due on or before March 16, 2020.
ADDRESSES: You may submit comments,
identified by WC Docket No. 18–336, by
any of the following methods:
• Federal Communications
Commission’s Website: https://
www.fcc.gov/ecfs/. Follow the
instructions for submitting comments.
• Mail: Parties who choose to file by
paper must file an original and one copy
of each filing. If more than one docket
or rulemaking number appears in the
caption of this proceeding, filers must
submit two additional copies for each
additional docket or rulemaking
number. Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission. All hand-delivered or
messenger-delivered paper filings for
the Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW, Room TW–A325,
Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes and boxes must be disposed
of before entering the building.
Commercial overnight mail (other than
U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701. U.S. Postal Service first-class,
Express, and Priority mail must be
SUMMARY:
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]]>Agencies
[Federal Register Volume 85, Number 10 (Wednesday, January 15, 2020)]
[Proposed Rules]
[Pages 2354-2359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00233]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 100
[Docket No. FR-6138-P-01]
RIN 2529-AA99
Fair Housing Act Design and Construction Requirements; Adoption
of Additional Safe Harbors
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to amend HUD's Fair Housing Act design and
construction regulations by incorporating by reference the 2009 edition
of International Code Council (ICC) Accessible and Usable Building and
Facilities (ICC A117.1-2009) standard, as a safe harbor. The Accessible
and Usable Buildings and Facilities standard is a technical standard
for the design of facilities that are accessible to persons with
disabilities. HUD proposes to determine that compliance with ICC
A117.1-2009 satisfies the design and construction requirements of the
Fair Housing Act and its amendments. This rule also proposes to
designate the 2009, 2012, 2015 and 2018 editions of the International
Building Code (IBC) as safe harbors under the Fair Housing Act. The IBC
is a model building code and not law, but it has been adopted as law by
various states and localities. The IBC provides minimum standards for
public safety, health, and welfare as they are affected by building
construction.
DATES: Comment Due Date: March 16, 2020.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of General Counsel, Rules Docket
Clerk, Department of Housing and Urban Development, 451 Seventh Street
SW, Room 10276, Washington, DC 20410-0500. Communications should refer
to the above docket number and title.
Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
In all cases, communications must refer to the docket number and title.
Public Inspection of Public Comments. All comments and
communications submitted to HUD will be available, without charge, for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an appointment to review the public comments must be
scheduled in advance by calling the Regulations Division at 202-708-
3055 (this is not a toll-free number). Hearing- or speech impairments
may access this number through TTY by calling the toll-free Federal
Information Relay Service, toll-free at 800-877-8339. Copies of all
comments submitted are available for inspection and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lynn Grosso, Director, Office of
Enforcement, Office of Fair Housing and Equal Opportunity, Department
of Housing and Urban Development, 451 Seventh Street SW, Washington, DC
20410-2000; telephone number 202- 708-2333 (this is not a toll-free
number). Hearing- or speech-impaired individuals may access this number
via TTY by calling the Federal Information Relay Service, toll-free, at
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C.
3601 et seq.) (the ``Fair Housing Act'' or ``Act'') prohibits
discrimination in housing and housing-related transactions based on
race, color, religion, national origin, sex, disability and familial
status.\1\ The Act
[[Page 2355]]
provides, inter alia, that unlawful discrimination against persons with
disabilities includes the failure to design and construct covered
multifamily dwellings for first occupancy after March 13, 1991, in a
manner that ``(1) the public and common use portions of such dwellings
are readily accessible to and usable by handicapped persons; (2) all
the doors designed to allow passage into and within all premises within
such dwellings are sufficiently wide to allow passage by handicapped
persons in wheelchairs; and (3) all premises within such dwellings
contain the following features of adaptive design: (a) An accessible
route into and through the dwelling; (b) light switches, electrical
outlets, thermostats, and other environmental controls in accessible
locations; (c) reinforcements in bathroom walls to allow later
installation of grab bars; and (d) usable kitchens and bathrooms such
that an individual in a wheelchair can maneuver about the space.'' The
Fair Housing Act does not contain specific technical design criteria
that need to be followed to comply with the design and construction
requirements. It does provide, however, that compliance with the
appropriate requirements of the ``American National Standard for
buildings and facilities providing accessibility and usability for
physically handicapped people (commonly referred to as ANSI A117.1),
suffices to satisfy the requirements of [42 U.S.C.
3604(f)(3)(C)(iii)],'' which states the Act's design and construction
requirements for the interiors of covered multifamily dwellings.
---------------------------------------------------------------------------
\1\ The Fair Housing Act refers to people with ``handicaps.''
Subsequently, in the Americans with Disabilities Act of 1990 and
other legislation, Congress adopted the term ``persons with
disabilities'' or ``disability,'' which is the preferred usage.
Accordingly, this document hereinafter uses the terms ``persons with
disabilities,'' ``disability,'' or ``disabled,'' unless directly
quoting the Fair Housing Act.
---------------------------------------------------------------------------
On November 7, 1988 (53 FR 44992), HUD published a proposed rule to
implement the design and construction provisions of the Fair Housing
Act, as amended. HUD's proposed rule provided that ``whenever ANSI
A117.1 is used, the reference is to the most recently published edition
of ANSI A117.1 as of the date bids for construction of a particular
building are solicited.'' Several commenters objected that an ``open-
ended'' reference to future ANSI standards would represent an unlawful
delegation of the Department's rulemaking authority. According to these
commenters, HUD should refer to a specific edition of the ANSI
standards and should incorporate future editions only through
rulemaking. As a result of these concerns, HUD's Fair Housing Act final
rule, published on January 23, 1989 (54 FR 3232), specifically stated
that compliance with the appropriate requirements of ANSI A117.1-1986,
the edition in effect at the time of the final rule, functions as a
safe harbor and satisfies the technical requirements of the Act. HUD
also stated that it would propose amending the definition of ANSI as
future editions of ANSI A117.1 are published.
The Fair Housing Act directs HUD to ``provide technical assistance
to states and units of local government and other persons to implement
[the design and construction requirements].'' On March 6, 1991 (56 FR
9472), the Department published the ``Final Fair Housing Accessibility
Guidelines'' which set forth specific technical guidance for designing
covered multifamily dwellings to be consistent with the Act. Section I
of the Guidelines states, ``[t]hese guidelines are intended to provide
a safe harbor for compliance with the accessibility requirements of the
Fair Housing Act.'' On June 24, 1994 (59 FR 33362), the Department
published its ``Supplement to Notice of Fair Housing Accessibility
Guidelines: Questions and Answers about the Guidelines.'' The
Department published a Fair Housing Act Design Manual (Design Manual)
in 1996 that was reissued in 1998 with minor changes. The Design Manual
is also a safe harbor for compliance with the Act.\2\
---------------------------------------------------------------------------
\2\ The Fair Housing Design Manual, August 1996, revised 1998,
is available at https://www.huduser.gov/portal/publications/PDF/FAIRHOUSING/fairfull.pdf.
---------------------------------------------------------------------------
Since HUD published its Fair Housing Act final rule in 1989, the
ANSI A117.1 accessibility standard has been updated several times. HUD,
as a member of the A117 Committee that updates the A117.1 standard,
participates in these updates. In addition, HUD, as part of its mandate
to provide technical assistance to state and local governments to
incorporate the design and construction requirements of the Act into
their laws and procedures for review and approval of newly constructed
multifamily dwellings, has periodically reviewed these updated
standards. HUD published a final rule on October 24, 2008 (73 FR 63614)
that incorporated by reference ICC/ANSI-2003 and clarified that
compliance with the appropriate requirements of CABO/ANSI A117.1-1992
and ICC/ANSI-1998 continued to meet the design and construction
requirements of the Fair Housing Act. See 24 CFR 100.201a(b)(1). As a
result of HUD's 2008 final rule, HUD's current regulations specify that
compliance with the appropriate requirements of ICC/ANSI A117.1-2003,
ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992 and ANSI A117.1-1986
satisfy the Fair Housing Act's accessibility requirements at subsection
804(f)(3)(C)(iii) of the Act. The 2008 final rule also updated the
regulations to reference certain editions of the IBC as safe harbors
for compliance with the accessibility requirements in the Fair Housing
Act. HUD's final rule codified these additional design and construction
standards that HUD recognized as safe harbors at Sec. 100.205(e).
II. This Proposed Rule
This proposed rule would amend HUD's regulations with respect to
the design and construction requirements of the Fair Housing Act by
incorporating by reference the 2009 edition of International Code
Council (ICC) Accessible and Usable Building and Facilities (ICC
A117.1-2009) \3\ as satisfying the design and construction requirements
of the Fair Housing Act. This rule would not change either the scoping
requirements or the substance of the existing accessible design and
construction requirements contained in the Fair Housing Act or its
regulation.
---------------------------------------------------------------------------
\3\ Unlike prior versions of the American National Standard, the
ICC A117.1-2009 does contain ANSI in its title.
---------------------------------------------------------------------------
This proposed rule would also designate the 2009, 2012, 2015 and
2018 editions of the IBC as safe harbors under the Fair Housing Act.
Unlike the Act, the IBC is a model building code, and not a law. It
provides standards for public safety, health, and welfare as they are
affected by building construction. The IBC is published by the ICC,
which was formed to bring national uniformity to building codes.
Representatives of three former national model code bodies joined
together to develop what are now called the International Codes, or I-
Codes. The IBC is a major volume of the I-Codes and contains provisions
for accessibility designed to reflect the intent of the Act, the
regulations, and the Guidelines. Compliance with the IBC or another
model building code is not required unless mandated by a state or local
jurisdiction. A jurisdiction may adopt a model building code in its
entirety or with modifications.
With respect to housing, the IBC contains requirements for three
different types of accessible units, which include sleeping units (when
such units are used as a residence). The most accessible of these three
types is an ``Accessible Unit,'' which is wheelchair accessible and may
be found in numerous types of residential buildings. A second level of
accessibility is set
[[Page 2356]]
forth in the requirements for ``Type A'' dwelling units. The IBC
specifies that a percentage of ``Type A'' units must be provided
containing a high level of accessibility, especially in kitchens and
bathrooms, as well as some features of adaptability. The third level of
accessibility is a ``Type B'' dwelling unit, which is a unit that is
intended to comply with those features of accessible and adaptable
design required under the Act. Like the Act, the requirements for Type
B dwelling units apply to a greater number of dwelling units in a
building, but the level of accessibility is less than that of the Type
A dwelling units.
In addition, the IBC provides scoping requirements for the three
types of dwelling units described above. The scoping requirements for
the Type B dwelling units are intended to be consistent with the
scoping requirements in the Act, the regulations, and the Guidelines.
For the technical requirements, the IBC references the A117.1
accessibility standard. Thus, the IBC contains both scoping
requirements and technical requirements that are consistent with the
Act, the regulations and the Guidelines.
HUD is also proposing to amend Sec. 100.205(e)(3) to provide that,
in the future, HUD may propose new safe harbors by Federal Register
notice. HUD would provide a minimum of 30 days public comment period
and, after considering public comment, publish a final notice
announcing any new safe harbor. HUD will periodically codify new safe
harbors in part 100 in the course of later rulemaking. HUD proposes to
provide that compliance with safe harbors established by Federal
Register notice will satisfy the requirements of paragraphs (a) and (c)
of Sec. 100.205.
III. HUD's Review of ICC A117.1-2009, and 2009, 2012, 2015 and 2018 IBC
In 2013 and 2015, and most recently in 2018, representatives of the
multifamily housing industry contacted the Department to request that
HUD review the accessibility requirements contained in the 2009, 2012,
2015 and 2018 editions of the IBC to make a determination as to whether
these editions would be deemed safe harbors for compliance with the
Act's design and construction requirements. These organizations also
made this request with respect to ICC A117.1-2009, Accessible and
Usable Buildings and Facilities. Based on assistance provided
specifically by ICC in the past, the Department requested, and ICC
provided, a side-by-side matrix comparing the relevant 2006 provisions
of the IBC, which HUD had previously reviewed and declared as a safe
harbor, with the 2009, 2012, 2015 and 2018 provisions in the IBC and
related code documents. ICC also provided copies of the 2009, 2012,
2015 and 2018 IBC, related Code Commentary, and other relevant code
documents. In addition, ICC provided a similar matrix for ICC/ANSI
A117.1-2003 and ICC A117.1-2009, along with copies of ICC A117.1-2009
and related documents.
In conducting its review of these documents, the Department
carefully reviewed the matrices provided by ICC, as well as the code
documents and the accessibility standards. The Department determined
that the accessibility provisions in the IBC and the ICC A117.1
standard provide at least the same level of accessibility as that
required by the Act, HUD's implementing regulations, and the
Guidelines.
The Department also notes that following its earlier reviews of the
model building codes, the Department worked with representatives from
the building industry, code organizations and advocacy groups to
develop code text for certain editions of the IBC and participated in
public hearings to aid in the passage of these code text changes. The
Department is also a voting member of the A117 Committee, which is the
Committee that reviews and makes changes to the A117.1 accessibility
standard, and in this role, the Department has been actively involved
in updating all editions of the A117.1 standard that have followed the
1986 edition.
Having reviewed the 2009, 2012, 2015 and 2018 editions of the IBC,
the Department finds that the accessibility provisions in these
editions of the IBC are consistent with the requirements in the Act,
HUD's regulations and the Guidelines. The Department did not find any
provision that it believes provides for less accessibility than what is
required in the Act, the regulations and the Guidelines, and the
Department notes that in certain respects, the IBC provides for greater
accessibility. Similarly, in its review of the ICC A117.1-2009, the
Department did not find any provisions that provide for less
accessibility than what is required in the Act, HUD's regulations and
the Guidelines. However, the Department welcomes comments concerning
provisions that may provide for less accessibility than what is
required in the Act, HUD's regulations and the Guidelines.
IV. HUD-Recognized Safe Harbors for Compliance With the Fair Housing
Act's Design and Construction Requirements and HUD Policy Regarding
These Safe Harbors
This proposed rule would amend Sec. 100.205(e) to add ICC A117.1-
2009, and the 2009, 2012, 2015 and 2018 versions of the IBC to HUD's
current list of safe harbors for compliance with the design and
construction requirements of the Fair Housing Act.
The Department reiterates its policy with respect to safe harbors.
A covered multifamily building will be deemed compliant with the Act's
design and construction requirements if the State or locality where the
building is located has adopted one of HUD's safe harbors without
modification of the provisions that address the Act's design and
construction requirements, 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. The fact that a jurisdiction has adopted a code that
conforms to the accessibility requirements of the Fair Housing Act or
that construction of a building subject to the Act was approved under
such a code, however, does not alter 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 and to issue a charge of discrimination if
warranted. Similarly, neither fact precludes the Department of Justice
from investigating whether violations of the Act's design and
construction provisions may have occurred and filing a lawsuit in
federal court to enforcement compliance with the Act where appropriate.
The Fair Housing Act provides that, ``[d]eterminations by a State or
unit of general local government under [the Act] shall not be
conclusive in enforcement proceedings under this title.'' 42 U.S.C.
3604(f)(6)(a).
HUD's investigation of a complaint under the Fair Housing Act's
design and construction requirements 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 of the property. All parties to the complaint have an
opportunity to present evidence concerning, inter alia,
[[Page 2357]]
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 Act, a prima facie case may be established by
proving that the covered multifamily dwellings were not designed and
constructed in accordance with HUD's Fair Housing Accessibility
Guidelines. This prima facie case may be rebutted by evidence
demonstrating compliance with a recognized, comparable, objective
measure of accessibility. See Order on Secretarial Review, U.S. Dept.
of Housing and Urban Development v. Nelson, HUD ALJ 05-068FH, 2006 HUD
ALJ LEXIS 56, *14 (Sept. 21, 2006) (2006 WL 4540542), aff'd, Nelson v.
HUD, 320 Fed. Appx. 635, 2009 US App. LEXIS 6142, *4-5 (9th Cir. Mar.
26, 2009). In making a determination as to whether the design and
construction requirements of the Act have been violated, HUD uses the
Act, the regulations, and the Guidelines, all of which reference the
technical standards found in ANSI A117.1-1986.
The standards and codes adopted by HUD as safe harbors represent
safe harbors only when used in their entirety; that is, once a specific
safe harbor document has been selected, the covered multifamily
dwellings in question should comply with all of the provisions in that
document that address the Act's design and construction requirements.
The benefit of safe harbor status may be lost if, for example, a
designer or builder chooses to select provisions from more than one of
the above safe harbor documents or from a variety of sources. In
addition, the benefit of safe harbor status will be lost if waivers of
accessibility provisions are requested and/or obtained from state or
local governmental agencies. HUD's purpose in recognizing a number of
safe harbors for compliance with the Act's design and construction
requirements is to provide a range of options that, if followed in
their entirety during the design and construction phase without
modification or waiver, will result in residential buildings that
comply with the Act's design and construction requirements.
As part of its review of the various editions of the IBC, the
Department also reviewed the related IBC Commentary to determine
whether certain commentary that the Department drafted for inclusion in
the IBC Commentary continues to appear in the IBC Commentary from one
edition to the next. The Department reviewed the IBC Commentary only in
this respect and did not review the Commentary with respect to other
sections of Chapter 11 of the IBC or to commentary not drafted by the
Department. Therefore, the Department's review of the code commentary
applies only to the code commentary the Department previously provided
to ICC. The commentary which the Department previously provided to ICC
is commentary that relates to Exception 1 under Section 1107.4 of the
IBC, which addresses requirements for an Accessible Route. This
commentary is intended to ensure that the IBC's Accessible Route
requirements do not provide for less accessibility than the Act's
Accessible Route requirements. The Department reviewed the IBC
Commentary for the 2009, 2012, 2015 and 2018 editions of the IBC and
notes that this commentary is included and remains unchanged. For a
detailed discussion of this commentary, see 72 FR 39432 (July 18,
2007).
V. Incorporation by Reference
Before HUD issues a final rule, the referenced standard proposed
for incorporation must be approved by the Director of the Federal
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. This
rulemaking proposes to incorporate the voluntary consensus standard ICC
A117.1-2009 Accessible and Usable Building and Facilities, as
satisfying the design and construction requirements of the Fair Housing
Act. It would not incorporate interpretations of ICC A117.1-2009 issued
by the ICC or any other entity or person. The rulemaking also cannot
account for editions of ICC A117.1 issued after the 2009 edition.
Therefore, if HUD wishes to revise the standard in the future to codify
newer editions of ICC A117.1, further rulemaking would be required.
ICC A117.1-2009 is available online for review during this rule's
comment period, via read-only access, at https://codes.iccsafe.org/content/ICCA117_12009?site_type=public. Members of the public may visit
the link and create a username and password to view the free-access
edition. The standard may also be obtained from the International Code
Council, 500 New Jersey Avenue NW, 6th Floor, Washington, DC 20001-
2070, telephone number 1-888-422-7233, https://www.iccsafe.org/e/category.html.
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.
Small entities include small businesses, small not-for-profit
organizations, and small governmental jurisdictions.
The purpose of this proposed rule is to update a codified
regulation that provides technical standards for the design of covered
multifamily dwellings to ensure accessibility for persons with
disabilities as required by the Fair Housing Act. Specifically, the
rule would incorporate by reference the 2009 edition of ICC A117.1 as a
safe harbor, compliance with which would satisfy the requirements of
the Fair Housing Act. The proposed rule also retains as safe harbors
the 1986, 1992, 1998 and 2003 editions of ANSI A117.1, as well as the
2000, 2003 and 2006 IBC, which HUD has previously adopted. In addition,
the rule would add the 2009, 2012, 2015 and 2018 versions of the IBC as
safe harbors. Consequently, small entities would not incur a
significant economic impact as they may continue to use any of the
previously codified standards. Additionally, adopting the 2009 ICC
A117.1 and the other new safe harbors may alleviate a significant
economic impact for small entities, as those entities may find
compliance with these standards to be less burdensome because their
state or local building codes may use these later editions of the
A117.1 standard or the IBC. Therefore, the undersigned certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities.
Notwithstanding HUD's determination that this rule will not have a
significant economic effect on a substantial number of small entities,
HUD specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.
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.
[[Page 2358]]
Environmental Impact
This proposed rule is a policy document that sets out fair housing
and nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3),
this proposed rule is categorically excluded from environmental review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (2
U.S.C. 1531-1538) requires federal agencies to assess the effects of
their regulatory actions on state, local, and tribal governments, and
on the private sector. This rule does not impose, within the meaning of
the UMRA, any federal mandates on any state, local, or tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number for this program
is 14.400.
List of Subjects in 24 CFR Part 100
Aged, Fair housing, Incorporation by reference, Individuals with
disabilities, Mortgages, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD proposes to amend 24
CFR part 100 as follows:
PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
0
1. The authority for 24 CFR part 100 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3600-3620.
0
2. In Sec. 100.201, revise the definitions of ``Accessible,''
``Accessible route,'' ``ANSI A117.1,'' and ``Building entrance on an
accessible route'' to read as follows:
Sec. 100.201 Definitions.
``Accessible'' when used with respect to the public and common use
areas of a building containing covered multifamily dwellings, means
that the public or common use areas of the building can be approached,
entered, and used by individuals with physical disabilities. The phrase
``readily accessible to and usable by'' is synonymous with accessible.
A public or common use area that complies with the appropriate
requirements of ICC A117.1-2009 (proposed for incorporation by
reference, see Sec. 100.201a), ICC/ANSI A117.1-2003 (incorporated by
reference, see Sec. 100.201a), ICC/ANSI A117.1-1998 (incorporated by
reference, see Sec. 100.201a), CABO/ANSI A117.1-1992 (incorporated by
reference, see Sec. 100.201a), ANSI A117.1-1986 (incorporated by
reference, see Sec. 100.201a) or a comparable standard is deemed
``accessible'' within the meaning of this paragraph.
* * * * *
``Accessible route'' means a continuous unobstructed path
connecting accessible elements and spaces in a building or within a
site that can be negotiated by a person with a severe disability using
a wheelchair and that is also safe for and usable by people with other
disabilities. Interior accessible routes may include corridors, floors,
ramps, elevators, and lifts. Exterior accessible routes may include
parking access aisles, curb ramps, walks, ramps, and lifts. A route
that complies with the appropriate requirements of ICC A117.1-2009
(proposed for incorporation by reference, see Sec. 100.201a), ICC/ANSI
A117.1-2003 (incorporated by reference, see Sec. 100.201a), ICC/ANSI
A117.1-1998 (incorporated by reference, see Sec. 100.201a), CABO/ANSI
A117.1-1992 (incorporated by reference, see Sec. 100.201a), ANSI
A117.1-1986 (incorporated by reference, see Sec. 100.201a) or a
comparable standard is an ``accessible route'' within the meaning of
this paragraph.
* * * * *
``Building entrance on an accessible route'' means an accessible
entrance to a building that is connected by an accessible route to
public transportation stops, to accessible parking and passenger
loading zones, or to public streets or sidewalks, if available. A
building entrance that complies with ICC A117.1-2009 (proposed for
incorporation by reference, see Sec. 100.201a), ICC/ANSI A117.1-2003
(incorporated by reference, see Sec. 100.201a), ICC/ANSI A117.1-1998
(incorporated by reference, see Sec. 100.201a), CABO/ANSI A117.1-1992
(incorporated by reference, see Sec. 100.201a), ANSI A117.1-1986
(incorporated by reference, see Sec. 100.201a) or a comparable
standard is a ``building entrance on an accessible route'' within the
meaning of this paragraph.
* * * * *
0
3. Revise Sec. 100.201a to read as follows:
Sec. 100.201a Incorporation by reference.
Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved material is available for
inspection at Department of Housing and Urban Development, 451 Seventh
Street SW, Room 5240, Washington, DC 20410-0001, telephone number 202-
708-2333, and is available from the sources listed in the following
paragraphs. It is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, email [email protected] or
go to www.archives.gov/federal-register/cfr/ibr-locations.html. The
effect of compliance with this material is as stated in 24 CFR 100.205.
(a) American National Standards Institute (ANSI), 25 W 43rd Street,
4th Floor, New York, NY 10036, Telephone (212) 642-4980, ANSI Webstore,
https://webstore.ansi.org.
(1) ANSI A117.1-1986, American National Standard for Buildings and
Facilities: Providing Accessibility and Usability for Physically
Handicapped People, 1986 edition, IBR approved for Sec. Sec. 100.201,
100.205.
(2) [Reserved]
(b) International Code Council, 500 New Jersey Avenue NW, 6th
Floor, Washington, DC 20001-2070, telephone number 1-888-422-7233,
https://www.iccsafe.org/e/category.html.
(1) CABO/ANSI A117.1-1992, American National Standard: Accessible
and Usable Buildings and Facilities, 1992 edition, IBR approved for
Sec. Sec. 100.201, 100.205.
(2) ICC/ANSI A117.1-1998, American National Standard: Accessible
and Usable Buildings and Facilities, 1998 edition, IBR approved for
Sec. Sec. 100.201, 100.205.
(3) ICC/ANSI A117.1-2003, American National Standard: Accessible
and Usable Buildings and Facilities, 2003 edition, IBR approved for
Sec. Sec. 100.201, 100.205.
(4) ICC A117.1-2009, American National Standard: Accessible and
Usable Buildings and Facilities, 2009 edition, IBR approved for
Sec. Sec. 100.201, 100.205.
0
4. In Sec. 100.205, revise paragraph (e)(1), add paragraphs
(e)(2)(vii) through (x), and revise paragraph (e)(3), to read as
follows:
Sec. 100.205 Design and construction requirements.
* * * * *
(e)(1) Compliance with the appropriate requirements of ICC A117.1-
2009 (proposed to be incorporated by reference, see Sec. 100.201a),
ICC/ANSI A117.1-2003 (incorporated by reference, see Sec. 100.201a),
ICC/ANSI A117.1-1998
[[Page 2359]]
(incorporated by reference, see Sec. 100.201a), CABO/ANSI A117.1-1992
(incorporated by reference, see Sec. 100.201a), or ANSI A117.1-1986
(incorporated by reference, see Sec. 100.201a), or suffices to satisfy
the requirements of paragraph (c)(3) of this section.
(2) * * *
(vii) 2009 International Building Code, published by ICC (https://www.iccsafe.org), and interpreted in accordance with the relevant 2009
IBC Commentary;
(viii) 2012 International Building Code, published by ICC (https://www.iccsafe.org), and interpreted in accordance with the relevant 2012
IBC Commentary;
(ix) 2015 International Building Code, published by ICC (https://www.iccsafe.org), and interpreted in accordance with the relevant 2015
IBC Commentary; and
(x) 2018 International Building Code, published by ICC (https://www.iccsafe.org), and interpreted in accordance with the relevant 2018
IBC Commentary.
(3) HUD may propose safe harbors by Federal Register notice that
provides for a minimum of 30 days public comment period. HUD will
publish a final notice announcing safe harbors after considering public
comments. Compliance with safe harbors established by Federal Register
notice will satisfy the requirements of paragraphs (a) and (c) of this
section.
* * * * *
Dated: January 6, 2020.
David H. Enzel,
General Deputy Assistant Secretary for Fair Housing and Equal
Opportunity.
[FR Doc. 2020-00233 Filed 1-14-20; 8:45 am]
BILLING CODE 4210-67-P
