Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors, 2354-2359 [2020-00233]

Download as PDF jbell on DSKJLSW7X2PROD with PROPOSALS 2354 Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules (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. VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 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: PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 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,’’ E:\FR\FM\15JAP1.SGM 15JAP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules 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. VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 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. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 2355 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. E:\FR\FM\15JAP1.SGM 15JAP1 2356 Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS 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 VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 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. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 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, E:\FR\FM\15JAP1.SGM 15JAP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules 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 VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 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, http://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 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 2357 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. E:\FR\FM\15JAP1.SGM 15JAP1 2358 Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules 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 VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 (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 Frm 00032 Fmt 4702 Sfmt 4702 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, http:// 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 (http:// www.iccsafe.org), and interpreted in accordance with the relevant 2009 IBC Commentary; (viii) 2012 International Building Code, published by ICC (http:// www.iccsafe.org), and interpreted in accordance with the relevant 2012 IBC Commentary; (ix) 2015 International Building Code, published by ICC (http:// www.iccsafe.org), and interpreted in accordance with the relevant 2015 IBC Commentary; and (x) 2018 International Building Code, published by ICC (http:// www.iccsafe.org), and interpreted in accordance with the relevant 2018 IBC Commentary. (3) HUD may propose safe harbors by Federal Register 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: VerDate Sep<11>2014 16:46 Jan 14, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 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: E:\FR\FM\15JAP1.SGM 15JAP1

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]


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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.

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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.
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    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\
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    \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, http://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, 
http://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 (http://www.iccsafe.org), and interpreted in accordance with the relevant 2009 
IBC Commentary;
    (viii) 2012 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2012 
IBC Commentary;
    (ix) 2015 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2015 
IBC Commentary; and
    (x) 2018 International Building Code, published by ICC (http://www.iccsafe.org), and interpreted in accordance with the relevant 2018 
IBC Commentary.
    (3) HUD may propose safe harbors by Federal Register 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