Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors, 78957-78963 [2020-26376]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 85, Number 236 (Tuesday, December 8, 2020)]
[Rules and Regulations]
[Pages 78957-78963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26376]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 100

[Docket No. FR-6138-F-02]
RIN 2529-AA99


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

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

ACTION: Final rule.

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SUMMARY: This rule amends HUD's Fair Housing Act design and 
construction regulations by incorporating by reference the 2009 edition 
of the International Code Council (ICC) Accessible and Usable Buildings 
and Facilities (ICC A117.1-2009) standard, as a safe harbor. The 
Accessible and Usable Buildings and Facilities standard is a technical 
standard for the design of facilities that are accessible to persons 
with disabilities. This rule also designates the 2009, 2012, 2015 and 
2018 editions of the International Building Code (IBC) as safe harbors 
under the Fair Housing Act. The IBC is a model building code and not 
law, but it was adopted as law by various states and localities. The 
IBC provides minimum standards for public safety, health, and welfare 
as they are affected by building construction.

DATES: Effective Date: March 8, 2021. The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register as of March 8, 2021. The incorporation by 
reference of certain other publications listed in the rule is approved 
by the Director of the Federal Register as of November 24, 2008.

FOR FURTHER INFORMATION CONTACT: Lynn Grosso, Director, Office of 
Enforcement, Office of Fair Housing and Equal Opportunity, Department 
of Housing and Urban Development, 451 Seventh Street SW, Washington, DC 
20410-2000; telephone number (202) 708-2333 (this is not a toll-free 
number). Hearing- or speech-impaired individuals may access this number 
via TTY by calling the toll-free Federal Information Relay Service at 
(800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C. 
3601 et seq.) (the ``Fair Housing Act'' or ``Act'') prohibits 
discrimination in housing and housing-related transactions based on 
race, color, religion, national origin, sex, disability and familial 
status.\1\ The Act provides, inter alia, that unlawful discrimination 
against persons with disabilities includes the failure to design and 
construct covered multifamily dwellings for first occupancy after March 
13, 1991, in a manner that ``(1) the public and common use portions of 
such dwellings are readily accessible to and usable by handicapped 
persons; (2) all the doors designed to allow passage into and within 
all premises within such dwellings are sufficiently wide to allow 
passage by handicapped persons in wheelchairs; and (3) all premises 
within such dwellings contain the following features of adaptive 
design: (a) An accessible route into and through the dwelling; (b) 
light switches, electrical outlets, thermostats, and other 
environmental controls in accessible locations; (c) reinforcements in 
bathroom walls to allow later installation of grab bars; and (d) usable 
kitchens and bathrooms such that an individual in a wheelchair can 
maneuver about the space.'' \2\ The Fair Housing Act does not contain 
specific technical design criteria that need to be followed to comply 
with the design and construction requirements. It does provide, 
however, that compliance with the appropriate requirements of the 
``American National Standard for buildings and facilities providing 
accessibility and usability for physically handicapped people (commonly 
referred to as ANSI A117.1), suffices to satisfy the requirements of 
[42 U.S.C. 3604(f)(3)(C)(iii)],'' which states the Act's design and 
construction requirements for the interiors of covered multifamily 
dwellings.
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    \1\ The Fair Housing Act refers to people with ``handicaps.'' 
Subsequently, in the Americans with Disabilities Act of 1990 and 
other legislation, Congress adopted the term ``persons with 
disabilities'' or ``disability,'' which is the preferred usage. 
Accordingly, this document hereinafter uses the terms ``persons with 
disabilities,'' ``disability,'' or ``disabled,'' unless directly 
quoting the Fair Housing Act.
    \2\ 42 U.S.C. 3604(f)(3)(C).
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    The Fair Housing Act directs HUD to ``provide technical assistance 
to states and units of local government and other persons to implement 
[the design and construction requirements].'' \3\ On March 6, 1991 (56 
FR 9472), HUD published the ``Final Fair Housing Accessibility 
Guidelines'' which set forth specific technical guidance for designing 
covered multifamily dwellings to be consistent with the Act. Section I 
of the Guidelines states, ``[t]hese guidelines are intended to provide 
a safe harbor for compliance with the accessibility requirements of the 
Fair Housing Act.'' On June 24, 1994 (59 FR 33362), HUD published its 
``Supplement to Notice of Fair Housing Accessibility Guidelines: 
Questions and Answers about the Guidelines.'' HUD published a Fair 
Housing Act Design Manual (Design Manual) in 1996 that was reissued in 
1998 with minor changes. The Design Manual is also a safe harbor for 
compliance with the Act.\4\
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    \3\ 42 U.S.C. 3604(f)(5)(C).
    \4\ The Fair Housing Design Manual, August 1996, revised 1998, 
is available at https://www.huduser.gov/portal/publications/PDF/FAIRHOUSING/fairfull.pdf.
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    Since HUD published its Fair Housing Act final rule on January 23, 
1989 (54 FR 3232), the ANSI A117.1 accessibility standard has been 
updated several times. HUD, as a member of the A117 Committee that 
updates the A117.1 standard, participates in these updates. HUD also 
periodically reviewed these updated standards, as part of its mandate 
to provide technical assistance to state and local governments to 
incorporate the Act's design and construction requirements into their 
laws and procedures for review and approval of newly constructed 
multifamily dwellings. HUD published a final rule on October 24, 2008 
(73 FR 63614) that incorporated by reference ICC/ANSI-2003 and 
clarified that compliance with the appropriate requirements of CABO/
ANSI A117.1-1992 and ICC/ANSI-1998 continued to meet the design and 
construction requirements of the Fair Housing Act. See 24 CFR 
100.201a(b)(1). The 2008 final rule also updated the regulations to 
reference certain editions of the IBC as safe harbors for compliance 
with the accessibility requirements in the Fair Housing Act. HUD's 
final rule codified these additional design and construction standards 
that HUD recognized as safe harbors at Sec.  100.205(e).

[[Page 78958]]

II. This Final Rule

    On Wednesday, January 15, 2020, HUD published a proposed rule in 
the Federal Register (85 FR 2354) to amend HUD's Fair Housing Act 
design and construction regulations by incorporating by reference the 
2009 edition of International Code Council (ICC) Accessible and Usable 
Buildings and Facilities (ICC A117.1-2009) \5\ standard, as a safe 
harbor. HUD is adopting the proposed rule as final with no substantive 
changes.
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    \5\ Unlike prior versions of the American National Standard, the 
ICC A117.1-2009 does contain ANSI in its title.
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    This rule does not change either the scoping requirements or the 
substance of the existing accessible design and construction 
requirements contained in the Fair Housing Act or its regulation. This 
final rule also designates the 2009, 2012, 2015 and 2018 editions of 
the IBC as safe harbors under the Fair Housing Act. Unlike the Act, the 
IBC is a model building code and not a law. It provides minimum 
standards for public safety, health, and welfare as they are affected 
by building construction. The IBC is published by the International 
Code Council, which was formed to bring national uniformity to building 
codes. Representatives of three former national model code bodies 
joined together to develop what are now called the International Codes 
or I-Codes. The IBC is a major volume of the I-Codes and contains 
provisions for accessibility designed to reflect the intent of the Act, 
the regulations, and the Guidelines. Compliance with the IBC or another 
model building code is not required unless mandated by a state or local 
jurisdiction. A jurisdiction may adopt a model building code in its 
entirety or with modifications.
    With respect to housing, the IBC contains requirements for three 
different types of accessible units, which include sleeping units (when 
such units are used as a residence). The most accessible of these three 
types is an ``Accessible Unit,'' which is wheelchair accessible and may 
be found in numerous types of residential buildings. A second 
accessibility level is set forth in the requirements for ``Type A'' 
dwelling units. The IBC specifies that a percentage of ``Type A'' units 
must be provided containing a high level of accessibility, especially 
in kitchens and bathrooms, as well as some features of adaptability. 
The third accessibility level is a ``Type B'' dwelling unit, which is a 
unit that is intended to comply with those features of accessible and 
adaptable design required under the Act. Like the Act, the requirements 
for Type B dwelling units apply to a greater number of dwelling units 
in a building, but the level of accessibility is less than that of the 
Type A dwelling units.
    In addition, the IBC provides scoping requirements for the three 
types of dwelling units described above. The scoping requirements for 
the Type B dwelling units are intended to be consistent with the 
scoping requirements in the Act, the regulations, and the Guidelines. 
For the technical requirements, the IBC references the A117.1 
accessibility standard. Thus, the IBC contains both scoping 
requirements and technical requirements that are consistent with the 
Act, the regulations, and the Guidelines. After reviewing the 2009, 
2012, 2015 and 2018 IBC editions, HUD found that the accessibility 
provisions in these IBC editions are consistent with the requirements 
in the Act, HUD's regulations, and the Guidelines. HUD did not find any 
provision that it believes provides for less accessibility than what is 
required in the Act, the regulations, and the Guidelines, and HUD notes 
that in certain respects, the IBC provides for greater accessibility. 
Similarly, in its review of the ICC A117.1-2009, HUD did not find any 
provisions that provide for less accessibility than what is required in 
the Act, HUD's regulations, and the Guidelines.
    HUD is also amending 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 30-day public comment period and, after 
considering public comment, publish a final notice announcing any new 
safe harbor. HUD will periodically codify new safe harbors in part 100 
in the course of later rulemaking. Compliance with safe harbors 
established by Federal Register notice will satisfy the requirements of 
paragraphs (a) and (c) of Sec.  100.205.

III. The Public Comments

    HUD received 60 public comments on the proposed rule from various 
interested parties, including advocacy groups, members of the general 
public, and architects. One comment discussed another HUD rulemaking, 
and will not be addressed here.

General Support

    Many commenters overwhelmingly supported the rule and urged HUD to 
promulgate it. Several commenters stated that A117.1-2009 and IBC-2009, 
2012, 2015 and 2018 meet or exceed HUD's Guidelines. Some commenters 
stated that making the newer A117.1 and International Building Codes 
safe harbors would improve compliance with the Fair Housing Act's 
design and construction requirements. Other commenters stated that the 
rule will provide code officials, architects, and builders with needed 
tools to ensure that buildings are accessible to persons with 
disabilities, eliminate confusion concerning the use of older codes, 
and increase accessibility. Some commenters stated the new standards' 
incorporation and safe harbor designation will align the Act's 
requirements with the requirements of many U.S. jurisdictions, which 
already adopt and enforce one of these IBC editions and, by reference, 
ICC A117.1-2009. A commenter expressed that because the proposed safe 
harbors are more current, they provide clarity on certain aspects of 
design.
    HUD Response: HUD thanks the public commenters for their support.

Clarifications

    Comment: A commenter asked that HUD clarify who needs to be aware 
of the rule to ensure accessible housing, including developers, 
designers, and others involved in the design and construction of 
covered multifamily dwellings.
    HUD Response: HUD agreed with the comment that there are many 
building industry professionals who are involved in the design and 
construction of multifamily housing covered by the Act (e.g., owners, 
developers, architects, engineers, construction contractors). Any 
person or entity involved in the noncompliant design and construction 
of buildings or facilities subject to the Act's design and construction 
requirements may be held liable for violations of the Act. This 
includes a person or entity involved in only the design, only the 
construction, or both the design and construction of covered 
multifamily housing.\6\ So all such persons should be aware of the 
requirements.
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    \6\ See 42 U.S.C. 3604(f)(3)(C); Joint Statement Q&A 56.
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    Comment: Several commenters requested that HUD make clear in the 
rule that the technical specifications in the HUD-identified safe 
harbors must be read in conjunction with the scoping requirements in 
the Fair Housing Act, its implementing regulations and the Fair Housing 
Act Accessibility Guidelines. One commenter expressed difficulty in 
finding the requirements in the IBC. Another commenter stated that HUD 
should clarify that use of one of the IBCs as a safe harbor must be in 
conjunction with use of the incorporated A117.1.

[[Page 78959]]

    HUD Response: Persons designing and constructing covered 
multifamily dwellings should understand that, to be correctly applied 
to ensure compliance with the design and construction requirements of 
the Act, each safe harbor must be read in the context of the 
requirements of the Act itself, HUD's implementing regulations, and the 
Fair Housing Act Accessibility Guidelines. The IBC provides scoping 
requirements for Type B dwelling units that are intended to be 
consistent with the scoping requirements in the Act, the regulations, 
and the Guidelines. For the technical requirements, the IBC references 
the A117.1 accessibility standard. Thus, the IBC contains both scoping 
requirements and technical requirements that are consistent with the 
Act, the regulations, and the Guidelines.\7\
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    \7\ Preamble to NPRM.
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    Comment: Some commenters urged HUD to specify, consistent with its 
prior safe harbor rule at 72 FR 39432, 39438 (July 18, 2007) and the 
HUD-DOJ Joint Statement, that to avail oneself of a safe harbor, the 
owner, developer and designer must comply with the safe harbor in its 
entirety without modification or waiver.
    HUD Response: When HUD adopts a safe harbor for compliance with the 
Fair Housing Act, it has determined that compliance with all elements 
of the safe harbor, read in conjunction with the Act, HUD's 
implementing regulations, and the Fair Housing Accessibility 
Guidelines, will provide accessibility consistent with the Act's 
requirements. This level of overall accessibility permits individuals 
with a wide variety of disabilities to access and use the public and 
common use areas of the housing without adaptation and the dwelling 
units with or without certain minimum adaptations, such as the 
installation of grab bars. To ensure compliance with the Act, covered 
entities must select one safe harbor; once a specific safe harbor 
document has been selected, the building in question must comply with 
all of the provisions in that document that address the Fair Housing 
Act design and construction requirements to ensure the full benefit of 
the safe harbor. The benefit of safe harbor status may be lost if, for 
example, a designer or builder chooses to select provisions from more 
than one of the above safe harbor documents, from a variety of sources, 
or if waivers of provisions are requested and received. If it is shown 
that the designers and builders departed from the provisions of a safe 
harbor document, they bear the burden of demonstrating that the 
dwelling units nonetheless comply with the Act's design and 
construction requirements.\8\
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    \8\ Joint Statement, Q&A 38.
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ANSI

    Comment: One commenter opposed HUD's adoption of ANSI A117.1-2009, 
stating that HUD should permit use only of ANSI A117.1-1986 as it 
provides greater usability and access than subsequent ANSI A117.1 
codes.
    HUD Response: HUD disagreed with the comment. HUD notes that 
although there may be slight differences between ANSI A117.1-2009 and 
ANSI A117.1-1986, those differences do not result in decreased 
accessibility. Nor are they inconsistent with the Act's requirements. 
While there are some differences among the designated safe harbors, 
there is broad consensus about what is required for accessibility based 
on the ANSI standards and the safe harbors. These standards result from 
a process that includes input from a variety of stakeholders, including 
builders, designers, managers, and disability-rights advocates.
    Comment: A commenter stated that ANSI A117.1-2009 is less 
restrictive than the Act because while HUD's Guidelines require all 
fixtures in a Specification A Bathroom to be accessible, A117.1-2009 
requires only one lavatory to be accessible, even when a dual sink is 
provided in the bathroom. The commenter asked HUD to provide 
clarification as to this difference.
    HUD Response: As indicated above, while there may be slight 
differences among the various editions of the A117.1 standard, those 
differences do not result in bathrooms that provide less accessibility 
and are consistent with the Act's requirements. While there are some 
differences among the designated safe harbors, these standards result 
from a process that includes input from a variety of stakeholders with 
broad consensus about what is required for accessibility based on the 
ANSI standards and the safe harbors.
    Comment: A commenter recommended that HUD add language to the rule 
stating that if a jurisdiction mandates a higher level of accessibility 
than ICC 2009, the jurisdiction's standard should be favored over the 
ICC standard.
    HUD Response: Some states and localities adopt accessibility 
requirements that provide for a higher level of accessibility for 
individuals with disabilities than the basic level of accessibility 
required by the Act. HUD noted that the adoption of a safe harbor for 
compliance with the Act does not diminish the legal obligation to 
comply with more stringent accessibility requirements imposed by state 
or local law. The Act is not intended to invalidate or limit any state 
or local law that requires dwellings to be designed and constructed in 
a manner that affords greater access for persons with disabilities.\9\ 
HUD agreed that compliance with a safe harbor does not ensure 
compliance with a state or local law that mandates greater 
accessibility.
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    \9\ 42 U.S.C. 3604(f)(8).
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IBC

    Comment: A commenter stated that HUD should specify in the final 
regulation that the covered multifamily dwelling must be designed and 
constructed in accordance with plans and specifications approved during 
the permitting process and that the building code official must not 
waive, incorrectly interpret or misapply any of the accessibility 
requirements of the safe harbor. If not, the safe harbor status is 
forfeited.
    HUD Response: HUD agreed with the comment. HUD's purpose in 
recognizing a number of safe harbors for compliance with the Act's 
design and construction requirements is to provide a range of options 
that, if followed in their entirety during the design and construction 
phase without modification or waiver, will result in residential 
buildings that comply with the Act's design and construction 
requirements. The standards and codes adopted by HUD as safe harbors 
represent safe harbors only when used in their entirety; that is, once 
a specific safe harbor document has been selected, the covered 
multifamily dwellings in question need to comply with all of the 
provisions in that document that address the Act's design and 
construction requirements. The benefit of safe harbor status may be 
lost if, for example, a designer or builder chooses to select 
provisions from more than one of the safe harbor documents or from a 
variety of sources. In addition, the benefit of safe harbor status will 
be lost if any waivers of accessibility provisions are requested and/or 
obtained from state or local governmental agencies. A designer or 
builder taking this approach runs the risk of building an inaccessible 
property. While this does not necessarily mean that failure to meet all 
of the respective provisions of a specific safe harbor will result in 
unlawful discrimination under the Act, designers and builders that 
choose to depart from provisions of a specific safe harbor bear the 
burden of demonstrating that their actions nevertheless result in 
covered

[[Page 78960]]

multifamily dwellings that comport with the Act's design and 
construction requirements.\10\
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    \10\ Joint Statement, Q&A 38.
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    Comment: Several commenters stated that the rule should explicitly 
state that a developer must comply with one of the new IBC standards to 
claim a safe harbor. These commenters stated further that HUD should 
include language in the rule specifying that a state or local entity 
must adopt the IBC without any revisions that reduce the level of 
accessibility required by the IBC standard and the entities responsible 
for the design and construction must fully comply with the chosen safe 
harbor.
    HUD Response: HUD declined to mandate that the new IBC standards 
are the only safe harbors that may be used. Rather, any of the 
designated safe harbors may be used. If a state or locality has adopted 
one of these safe harbor documents without amendment or deviation that 
reduces the level of accessibility, then covered residential buildings 
that are built to those specifications will be designed and constructed 
in accordance with the Act as long as the building code official does 
not waive or incorrectly interpret or apply one or more of those 
requirements. Moreover, as noted above, the entities responsible for 
the design and construction must fully comply with the chosen safe 
harbor.\11\
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    \11\ Joint Statement, Q&A 38.
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    Comment: One commenter asked a question about meeting the Act's 
design and construction requirements. Specifically, the commenter 
asked: If units are designed to comply with the Fair Housing Act, as 
well as with HUD's Uniform Federal Accessibility Standards (UFAS) or 
ADA if there is federal assistance, would the stricter requirements of 
an IBC Type A unit apply; and Alternatively, if one were to choose to 
design to the IBC standard, would this be considered in compliance with 
the Act?
    HUD Response: As discussed above, if a covered multifamily dwelling 
is designed in accordance with one of the IBC standards designated as 
safe harbors, it will comply with the Act so far as no deviation from 
the standard has occurred. If the property is also subject to multiple 
accessibility laws and standards, such as UFAS and the ADA, it must be 
designed and built in accordance with the accessibility requirements of 
each law. To the extent that the requirements of different federal laws 
apply to the same feature, the requirements of the law imposing greater 
accessibility requirements must be met, in terms of both scoping and 
technical requirements.

Specific Accessibility Features

    Comment: A commenter inquired whether a project that designates the 
2009, 2012, 2015, or 2018 editions of the IBC as its safe harbor, and 
fails to meet all requirements of the 2009 ICC A117.1, but still meets 
the requirements of the Guidelines, would violate the Fair Housing Act? 
The commenter provided the following example: Kitchens in Type A units 
require a work surface to be 34'' Above Finished Floor (AFF) max and 
provide for a forward approach, whereas the Guidelines have no 
requirements for work surfaces within kitchens. A failure to provide a 
work surface will not meet the requirements of the 2009 ICC A117.1, but 
will meet the Guidelines' requirements.
    HUD Response: The IBC standards specify that a percentage of ``Type 
A'' units must be provided containing a high level of accessibility, 
especially in kitchens and bathrooms, as well as some features of 
adaptability. The IBC also provides for ``Type B'' dwelling units, 
which are intended to comply with those features of accessible and 
adaptable design required under the Act. Like the Act, the requirements 
for Type B dwelling units apply to a greater number of dwelling units 
in a building, but the level of accessibility is less than that of the 
Type A dwelling units. The IBC provides scoping requirements for Type B 
dwelling units that are intended to be consistent with the scoping 
requirements in the Act, the regulations, and the Guidelines. For the 
technical requirements, the IBC references the A117.1 accessibility 
standard. A case of discrimination may be established by showing that 
the housing does not meet HUD's Guidelines. As discussed above, the 
building in question must comply with all of the provisions in that 
document that address the Fair Housing Act design and construction 
requirements to ensure the safe harbor's full benefit.\12\
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    \12\ Joint Statement, Q&A 40.
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    Comment: A commenter hoped the safe harbor status would supersede 
the dimensional conflict that currently exists for centerline of water 
closets to the adjacent walls supporting the grab bar.
    HUD Response: As noted above, while there may be slight differences 
among the various editions of the A117.1 standard, the standards are 
consistent with the Act's requirements and the differences do not 
result in bathrooms that provide less accessibility.
    Comment: A commenter asked: In ICC A117.1-2009, Type A and Type B 
units require that blocking be provided for the future installation of 
grab bars at toilets, showers, and bathtubs but describes only the 
location of the grab bars, not where blocking is to be provided. In 
contrast, the Guidelines provide diagrams for where blocking is to be 
located. If the 2012, 2015 or 2018 editions of the IBC are chosen as a 
safe harbor and blocking is provided for the grab bar locations 
described in the ICC A117.1-2009, but blocking is not provided to meet 
the requirements of the Guidelines, would this be a Fair Housing Act 
violation?
    HUD Response: If the 2012, 2015 or 2018 editions of the IBC are 
chosen as a safe harbor, blocking should be provided as specified in 
chapters 6 and 10 of ICC A117.1-2009.

Requests for Additional Guidance

    Comment: Some commenters urged HUD to also update guidance 
documents, including the Fair Housing Act Design Manual, the HUD-DOJ 
Joint Statement, and Fair Housing First to reflect current construction 
practices. A commenter stated that this would allow HUD's guidance 
documents and the Design Manual to be consistent with and fully reflect 
the current accepted safe harbors, the additional safe harbors as 
proposed in this rulemaking, and the various building codes used across 
the country by state and local communities. One commenter suggested HUD 
develop ``Fact Sheets'' covering the Act's design requirements that 
highlight each requirement with text and examples, along with links for 
users to access additional information.
    HUD Response: The commenters' request is outside this rule's scope. 
HUD will, however, consider the commenters' recommendations to provide 
additional guidance on the Act's design and construction requirements.
    Comment: One commenter asked that HUD provide additional guidance 
on what dwellings and buildings containing elevators are covered by the 
design and construction requirements.
    HUD Response: HUD notes that the comment is outside the rulemaking 
scope, but directs the commenter to its prior guidance on this topic, 
including the Fair Housing Act Design Manual \13\ and the Joint 
Statement of the Department of Housing and Urban Development and the 
Department of Justice on the Accessibility (Design and Construction) 
Requirements for Covered

[[Page 78961]]

Multifamily Dwellings under the Fair Housing Act,\14\ which contain 
detailed discussions of dwellings and buildings with elevators.
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    \13\ https://www.huduser.gov/portal/publications/PDF/FAIRHOUSING/fairfull.pdf.
    \14\ https://www.hud.gov/sites/documents/JOINTSTATEMENT.PDF.
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Other Issues

    Comment: Commenters stated that going forward, HUD should designate 
new safe harbors in a timely fashion. Commenters requested that HUD 
review and adopt more recent versions of ANSI A117.1 and the IBC. Two 
commenters supported HUD's proposal to designate new safe harbors by 
Federal Register notice with a minimum 30-day comment period, stating 
that establishing a procedure to evaluate new editions of codes and 
standards against the Act's accessibility requirements will help ensure 
HUD's safe harbor list stays current.
    HUD Response: HUD agrees that the process for adopting new safe 
harbors can be more timely and expects that the addition of Sec.  
100.205(e)(3) will serve that end. The new provision permits HUD to 
propose new safe harbors by Federal Register notice with a minimum 
public comment period of 30 days and, after considering public comment, 
to publish a final notice announcing any new safe harbor. HUD will also 
periodically codify new safe harbors in part 100 in the course of later 
rulemaking.
    Comment: Several commenters requested that HUD continue to make the 
matrix, prepared by the ICC and forming a basis for the proposed rule, 
publicly available on its website as well as through the Fair Housing 
FIRST program. They stated that the continued availability of the 
matrix will enable designers, developers, and advocates to understand 
key components of the safe harbors, vis a vis the Act's requirements.
    HUD Response: HUD notes that the matrix is part of this 
rulemaking's administrative record. Interested parties may contact the 
ICC concerning the electronic public posting of this document.
    Comment: A commenter asked HUD to explain how this rule's adoption 
contributes to tackling the affordability crisis among people with 
disabilities so that they can afford to live in these advantageous 
living spaces.
    HUD Response: As many commenters have noted, the adoption of 
additional safe harbors will make it easier for persons who design and 
construct covered multifamily dwellings to comply with the Act and 
state and local building codes. HUD believes this will also facilitate 
greater availability of accessible housing across all affordability 
levels.

Outside the Rulemaking Scope

    Comment: Some commenters stated that the Act and HUD's Guidelines 
should provide for accessibility meeting universal design and promoting 
visitability. One commenter noted that bathtubs are not usable to 
people with serious mobility impairments. The commenter added that 
accessible bathtubs are not expensive to build from the design phase, 
but are expensive to retrofit, and urged HUD to compel developers to 
plan for the needs of older adults and people with disabilities.
    HUD Response: HUD notes that the comment is beyond this 
rulemaking's scope. HUD notes further that the Act is intended to place 
``modest accessibility requirements on covered multifamily dwellings'' 
that will ensure accessibility for a broad range of individuals with 
disabilities.\15\ Universal design often provides a greater level of 
accessibility design and visitability than the Act. HUD agreed with the 
commenter though that developers and designers should consider the 
needs of the aging population as they plan and build new housing or 
modernize existing housing.
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    \15\ House Report No. 711, 100th Congress, 2nd Session.
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    Comment: A commenter thought that using these documents as default 
standards would undermine the other design codes like the Americans 
with Disabilities Act (ADA) and state building codes, which built upon 
them for better accessibility.
    HUD Response: In many instances, multifamily housing is subject to 
the accessibility requirements of more than one statute, such as the 
Fair Housing Act, the Americans with Disabilities Act (ADA) or Section 
504 of the Rehabilitation Act of 1973. In such circumstances, the 
housing must comply with the law that provides for the greatest level 
of accessibility in a particular element. Furthermore, the Act 
specifically provides that it does not invalidate or limit any state or 
local law that requires dwellings to be designed and constructed in a 
manner that affords greater accessibility than the Act does. For these 
reasons, the adoption of safe harbors does not undermine the 
requirements of any standard that is applicable under other laws.
    Comment: Two commenters suggested changes concerning the Uniform 
Federal Accessibility Standards (UFAS), with one commenter recommending 
that HUD adopt a rule creating consistency between UFAS and building 
codes to facilitate Section 504 compliance in rehabilitation projects.
    HUD Response: HUD declined to respond because the rule concerns 
safe harbors under the Fair Housing Act, not Section 504, so the 
comment is outside this rulemaking's scope.

IV. Incorporation by Reference

    The referenced standard incorporated in this rule was approved by 
the Director of the Federal Register, in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. This rule incorporates the voluntary 
consensus standard ICC A117.1-2009 Accessible and Usable Buildings and 
Facilities, as satisfying the Fair Housing Act's design and 
construction requirements. It does not incorporate interpretations of 
ICC A117.1-2009 issued by the ICC or any other entity or person. The 
rule also cannot account for editions of ICC A117.1 issued after the 
2009 edition. Therefore, if HUD were to revise the standard in the 
future to codify newer editions of ICC A117.1, further rulemaking would 
be required.
    ICC A117.1-2009 is available online for review, via read-only 
access, at https://codes.iccsafe.org/content/ICCA117_12009?site_type=public. Members of the public may visit the 
link and create a username and password to view the free-access 
edition. The standard may also be obtained from the International Code 
Council, 500 New Jersey Avenue NW, 6th Floor, Washington, DC 20001-
2070, telephone number 1-888-422-7233, https://www.iccsafe.org/e/category.html. This phone number may also be reached by persons who are 
deaf or hard of hearing, or have speech disabilities, by dialing 711 
via teletype (TTY).
    The following standards, included in the regulatory text, were all 
previously approved for incorporation by reference in their respective 
locations and those references remain unchanged: ICC/ANSI A117.1-2003, 
ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986.

V. Findings and Certifications

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis on any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
organizations, and small governmental jurisdictions.

[[Page 78962]]

    This final rule's purpose is to update a codified regulation that 
provides technical standards for the design of covered multifamily 
dwellings to ensure accessibility for persons with disabilities as 
required by the Fair Housing Act. Specifically, the rule incorporates 
by reference the 2009 edition of ICC A117.1 as a safe harbor, 
compliance with which would satisfy the Fair Housing Act's 
requirements. The final rule also retains as safe harbors the 1986, 
1992, 1998 and 2003 editions of ANSI A117.1, as well as the 2000, 2003 
and 2006 IBC editions, which HUD has previously adopted. In addition, 
the rule adds the 2009, 2012, 2015 and 2018 IBC editions as safe 
harbors. Consequently, small entities would not incur a significant 
economic impact as they may continue to use any of the previously 
codified standards. Additionally, adopting the 2009 ICC A117.1 and the 
other new safe harbors may alleviate a significant economic impact for 
small entities, as those entities may find compliance with these 
standards to be less burdensome because their state or local building 
codes may use these later editions of the A117.1 standard or the IBC. 
Therefore, the undersigned certifies that this final rule will not have 
a significant economic impact on a substantial number of small 
entities.

Federalism Impact

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from promulgating a 
regulation that has federalism implications and either imposes 
substantial direct compliance costs on state and local governments and 
is not required by statute, or preempts state law, unless the relevant 
requirements of section 6 of the Executive Order are met. This rule 
does not have federalism implications and does not impose substantial 
direct compliance costs on state and local governments or preempt state 
law within the meaning of the Executive Order.

Environmental Impact

    This final rule is a policy document that sets out fair housing and 
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), 
this final rule is categorically excluded from environmental review 
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 
U.S.C. 1531-1538) requires federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments, and 
on the private sector. This rule does not impose, within the meaning of 
the UMRA, any federal mandates on any state, local, or tribal 
governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for this program 
is 14.400.

List of Subjects in 24 CFR Part 100

    Aged, Fair housing, Incorporation by reference, Individuals with 
disabilities, Mortgages, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, HUD is amending 24 CFR part 
100 as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

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,'' 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, ICC/ANSI A117.1-2003, ICC/ANSI A117.1-
1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986 (all 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, ICC/ANSI 
A117.1-2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-
1986 (all 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, ICC/ANSI A117.1-
2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-1992, ANSI A117.1-1986 
(all 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.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. All approved material is available for 
inspection at Department of Housing and Urban Development, 451 Seventh 
Street SW, Room 5240, Washington, DC 20410-0001, telephone number 202-
708-2333, and is available from the sources listed below. It is also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html. The phone 
numbers included in this section may also be reached by persons who are 
deaf or hard of hearing, or have speech disabilities, by dialing 711 
via teletype (TTY).
    (b) American National Standards Institute (ANSI), 25 West 43rd 
Street, 4th Floor, New York, NY 10036, 212.642.4900, [email protected]. 
https://webstore.ansi.org.
    (1) ANSI A117.1-1986, American National Standard for Buildings and 
Facilities: Providing Accessibility and Usability for Physically 
Handicapped People, 1986 edition, into Sec. Sec.  100.201 and 100.205.
    (2) [Reserved]
    (c) International Code Council (ICC), 500 New Jersey Avenue NW, 6th 
Floor, Washington, DC 20001-2070, telephone

[[Page 78963]]

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, into Sec. Sec.  
100.201 and 100.205.
    (2) ICC/ANSI A117.1-1998, American National Standard: Accessible 
and Usable Buildings and Facilities, 1998 edition, into Sec. Sec.  
100.201 and 100.205.
    (3) ICC/ANSI A117.1-2003, American National Standard: Accessible 
and Usable Buildings and Facilities, 2003 edition, into Sec. Sec.  
100.201 and 100.205.
    (4) ICC A117.1-2009, Accessible and Usable Buildings and 
Facilities, 2009 edition, approved October 20, 2010, into Sec. Sec.  
100.201 and 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, ICC/ANSI A117.1-2003, ICC/ANSI A117.1-1998, CABO/ANSI A117.1-
1992, or ANSI A117.1-1986 (all incorporated by reference, see 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 notification 
that provides for a minimum of 30 days public comment period. HUD will 
publish a final notification announcing safe harbors after considering 
public comments. Compliance with safe harbors established by Federal 
Register notification will satisfy the requirements of paragraphs (a) 
and (c) of this section.
* * * * *

Anna Maria Far[iacute]as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2020-26376 Filed 12-7-20; 8:45 am]
BILLING CODE 4210-67-P