Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations 78957 

1The 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). 

3 42 U.S.C. 3604(f)(5)(C). 

4The Fair Housing Design Manual, August 1996, 

revised 1998, is available at https://

www.huduser.gov/portal/publications/PDF/ 

FAIRHOUSING/fairfull.pdf. 

(7) You may view this service information 

that is incorporated by reference 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: https:// 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued on November 17, 2020. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2020–26867 Filed 12–7–20; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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. 

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

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 

§ 100.205(e). 


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78958 Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations 

5Unlike prior versions of the American National 

Standard, the ICC A117.1–2009 does contain ANSI 

in its title. 

6See 42 U.S.C. 3604(f)(3)(C); Joint Statement Q&A 

56. 

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. 

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 § 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 § 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. 

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. 


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7Preamble to NPRM. 8 Joint Statement, Q&A 38. 9 42 U.S.C. 3604(f)(8). 

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

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

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. 

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 


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78960 Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations 

10 Joint Statement, Q&A 38. 

11 Joint Statement, Q&A 38. 12 Joint Statement, Q&A 40. 

13https://www.huduser.gov/portal/publications/ 

PDF/FAIRHOUSING/fairfull.pdf. 

multifamily dwellings that comport 

with the Act’s design and construction 

requirements.10

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

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

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 


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14https://www.hud.gov/sites/documents/ 

JOINTSTATEMENT.PDF. 

15House Report No. 711, 100th Congress, 2nd 

Session. 

Multifamily Dwellings under the Fair 

Housing Act,14 which contain detailed 

discussions of dwellings and buildings 

with elevators. 

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 § 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. 

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, http://

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-forprofit organizations, and small 

governmental jurisdictions. 


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78962 Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations 

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 

■ 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,’’ and 

‘‘Building entrance on an accessible 

route’’ to read as follows: 

§ 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 § 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 

§ 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 

§ 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. 

(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 fedreg.legal@nara.gov 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, info@ansi.org. 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 §§ 100.201 

and 100.205. 

(2) [Reserved] 

(c) International Code Council (ICC), 

500 New Jersey Avenue NW, 6th Floor, 

Washington, DC 20001–2070, telephone 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Rules and Regulations 78963 

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, into §§ 100.201 and 

100.205. 

(2) ICC/ANSI A117.1–1998, American 

National Standard: Accessible and 

Usable Buildings and Facilities, 1998 

edition, into §§ 100.201 and 100.205. 

(3) ICC/ANSI A117.1–2003, American 

National Standard: Accessible and 

Usable Buildings and Facilities, 2003 

edition, into §§ 100.201 and 100.205. 

(4) ICC A117.1–2009, Accessible and 

Usable Buildings and Facilities, 2009 

edition, approved October 20, 2010, into 

§§ 100.201 and 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, 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 

§ 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 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 Farı ́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 


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