63610 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 

1The Fair Housing Act refers to people with 

‘‘handicaps.’’ Subsequently, in the Americans with 

Disabilities Act of 1990 and other legislation, 

Congress adopted the terms ‘‘persons with 

disabilities’’ and ‘‘disability,’’ which are the 

preferred usage. Accordingly, this document 

hereinafter uses the terms ‘‘persons with 

disabilities,’’ ‘‘disability,’’ or ‘‘disabled,’’ unless 

directly quoting the Fair Housing Act. 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 100 

[Docket No. FR–5006–F–02] 

RIN 2529–AA92 

Design and Construction 

Requirements; Compliance With ANSI 

A117.1 Standards 

AGENCY: Office of the Assistant 

Secretary for Fair Housing and Equal 

Opportunity and construction 

requirements of the Fair Housing Act 

and its amendments, by: Updating and 

clarifying the references to the 

American National Standards Institute 

(ANSI) building standard for 

accessibility; and codifying the current 

HUD recognized safe harbors under the 

Act. The ANSI A117.1 standard is the 

technical standard for the design of 

housing and other facilities that are 

accessible to persons with disabilities 

referenced in the Fair Housing Act, and 

is commonly referred to as ‘‘ANSI 

A117.1.’’ This final rule updates the 

references to the ANSI A117.1 to adopt 

the 2003 edition of the standard, and 

clarifies that compliance with the 

appropriate requirements of the 1986, 

1992, and 1998 editions also remains 

sufficient to meet the design and 

construction requirements of the Fair 

Housing Act and its amendments. This 

final rule follows a July 18, 2007, 

proposed rule and takes into 

consideration the public comments 

received on that rule. This final rule 

makes no substantive changes to the 

proposed rule, but adds a new section 

on incorporation by reference and 

makes other technical revisions 

consistent with recent guidelines on 

incorporation by reference. 

DATES: Effective date: November 24, 

2008. 

The standards incorporated by 

reference in this final rule are approved 

by the Director of the Federal Register 

as of November 24, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Cheryl Kent, Special Advisor for 

Disability Policy, 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). Hearingor 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 (42 U.S.C. 3601 et seq.) (the Fair 

Housing Act) prohibits discrimination 

in housing and housing-related 

transactions based on race, color, 

religion, national origin, and sex. The 

Fair Housing Amendments Act of 1988 

expands the coverage of the Fair 

Housing Act to include families with 

children and persons with disabilities.1

The Fair Housing Act, as amended, 

provides 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 such a manner that: (1) The public 

use 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. Additionally, 

the Fair Housing Act states that 

compliance with the appropriate 

requirements of the American National 

Standard for buildings and facilities 

providing accessibility and usability for 

physically handicapped people 

(commonly cited as ‘‘ANSI A117.1’’) 

suffices to satisfy the above-listed 

requirements. 

On January 23, 1989, at 54 FR 3232, 

HUD published its final regulation 

implementing the Fair Housing 

Amendments Act of 1988 (HUD’s 

regulation). In the final regulation, HUD 

adopted the 1986 edition of ANSI 

A117.1, which was the edition in effect 

at that time, as the appropriate edition 

for acceptable compliance with the Fair 

Housing Act. HUD’s regulation adopting 

ANSI A117.1 is located at 24 CFR 

100.201, and HUD’s regulation 

implementing the design and 

construction requirements is located at 

24 CFR 100.205. 

II. This Final Rule 

This final rule updates the references 

to the ANSI A117.1 standard to adopt 

the 2003 edition, and to stipulate that 

compliance with the appropriate 

requirements of the 1998, 1992, and 

1986 editions continues to satisfy the 

requirements of the Fair Housing Act. 

Since the ANSI standards are 

incorporated by reference, this final rule 

also adds a section on incorporation by 

reference and otherwise revises the 

language incorporating the ANSI 

standards. This change is technical and 

not substantive. 

The final rule also updates the 

regulation to acknowledge all 10 safe 

harbors currently recognized by HUD. 

This rule does not change either the 

scoping requirements or the substance 

of the existing accessible design and 

construction requirements contained in 

the regulations, nor does the rule state 

that compliance with the 1986 ANSI 

standard is no longer appropriate. The 

appropriate requirements of the 1986, 

1992, 1998, and 2003 editions of ANSI 

A117.1 all constitute safe harbors for 

compliance with the accessibility 

requirements of the Fair Housing Act, 

when used together with the Act, HUD’s 

regulations, and HUD’s Fair Housing 

Accessibility Guidelines (or Guidelines 

in this preamble) for the scoping 

requirements. 

In addition, the final rule makes an 

editorial change to the definitions of 

‘‘Accessible,’’ ‘‘Accessible route,’’ 

‘‘Building entrance on an accessible 

route,’’ and to § 100.205(e) to combine 

the two sentences in the proposed rule 

that referred to the editions of ANSI 

A117.1 that are safe harbors into a single 

sentence. This is an editorial change 

only for purposes of greater clarity. 

This final rule applies only to the 

accessibility requirements of the Fair 

Housing Act. When more than one law 

applies to a project, and there are 

different accessibility standards for each 

law, the governing principle to follow is 

that the more stringent requirements of 

each law apply. For example, when a 

residential property that is covered by 

the Fair Housing Act receives federal 

financial assistance, it must also comply 

with the accessibility requirements of 

Section 504 of the Rehabilitation Act of 

1973 (Section 504) and 24 CFR part 8. 

A complex that is covered by the Fair 

Housing Act may also be covered, in 

part, by the Americans with Disabilities 

Act (ADA), e.g., the rental office and any 

other place of public accommodation 

that is leased or used by persons other 

than the residents and their guests. 

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Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 63611 

Therefore, this final rule does not 

constitute a change in the requirements 

for compliance for federally funded 

facilities and dwelling units covered by 

Section 504 or the Architectural Barriers 

Act (ABA); such facilities and units 

must comply with their respective 

regulatory requirements at 24 CFR parts 

8 and 24 CFR part 40, including the 

Uniform Federal Accessibility Standard 

(UFAS), the ADA, and the Department 

of Justice’s regulations for the ADA. 

However, to the extent that the 

requirements of the Fair Housing Act 

apply to the same dwelling units that 

are subject to the requirements of 

Section 504, the ABA, or the ADA, the 

safe harbors for compliance outlined in 

this final rule shall be applied to those 

dwelling units that are subject to the 

Fair Housing Act, but may not be used 

in lieu of more stringent accessibility 

requirements mandated by Section 504 

and the ABA, or the ADA, where 

applicable. 

III. Discussion of Public Comments 

The Department published its 

proposed rule on July 18, 2007 (72 FR 

39540), for public comment. The public 

comment period ended on September 

17, 2007. A total of eight comments 

were received from the following: An 

individual building owner; a consultant 

who monitors compliance with the Fair 

Housing Act; a nonprofit organization 

that addresses design issues for persons 

with disabilities and older persons; a 

nonprofit organization representing 

paralyzed veterans; an organization 

representing building safety and fire 

prevention professionals; a coalition 

representing both the multifamily rental 

housing industry and an international 

federation representing owners and 

managers of commercial properties; a 

national, nonprofit organization of 

diverse communities within the 

disability community; and an 

organization representing wheelchair 

users. 

A. The ANSI A117.1 Standard 

Comment: Several commenters 

expressed support for HUD’s proposal to 

update its regulations and to clarify the 

accessibility building requirements. The 

commenters wrote that each new 

edition of ANSI A117.1 yields 

additional information and that 

updating the technical specifications to 

ANSI 1998 and 2003 would be valuable. 

Two commenters expressed concerns 

regarding the continued use of previous 

editions of ANSI A117.1. One of the 

commenters, while agreeing with HUD 

that covered multifamily buildings 

should be constructed using the 

technical specifications of ANSI 1998 or 

ANSI 2003, objected regarding ANSI 

1992, writing that ANSI 1992 is no 

longer in print and is generally difficult 

to locate. Another commenter objected 

to use of the 1986, 1992, and 1998 

editions, writing that only the 2003 

edition of ANSI meets the design and 

construction requirements of the Fair 

Housing Act. Conversely, certain 

building industry commenters objected 

to HUD’s adopting any edition of ANSI 

except for the 1986 edition, arguing that 

Congress adopted the 1986 edition as 

the version meeting the Act. 

Response: The Department agrees 

with the commenters’ support of the 

ANSI standard. Congress, in the Fair 

Housing Act, specifically referenced the 

ANSI standard and encouraged its use 

for compliance with the Act’s 

accessibility requirements. Contrary to 

the commenters’ assertion that Congress 

adopted the 1986 edition, the Fair 

Housing Act did not reference a specific 

edition of the standard. In its final 

regulations implementing the Fair 

Housing Act, the Department elected to 

specify the 1986 edition—the edition in 

effect at that time—in response to public 

comments that the Department should 

refer to a specific edition and 

incorporate future editions through 

rulemaking proceedings. 

The Department’s review and 

recognition of new editions of the ANSI 

A117.1 standard is well established. 

This issue was addressed during the 

Department’s initial review of several 

model building codes, all of which 

referenced a more recent edition of the 

ANSI standard. In its final report, 

published in the Federal Register, on its 

review of these model building codes, 

the Department noted that many 

commenters commended the 

Department for recognizing the 1998 

ANSI A117.1 as a safe harbor (65 FR 

15740, March 23, 2000). Several 

commenters pointed out that ANSI 

A117.1–1998 is the basis for the 

accessibility provisions in the model 

codes and that HUD’s acceptance of 

ANSI A117.1–1998 as a safe harbor 

resolved many of the concerns of the 

multifamily housing industry. 

Further, as newer editions of ANSI 

have been developed, many 

organizations have encouraged the 

Department to adopt these newer 

editions. One major organization that 

represents home builders wrote to the 

Department in 1998, pointing out that a 

1998 edition of the ANSI standard was 

about to be published and that it is 

logical to rely on the latest version of a 

standard, unless the statute specifically 

refers to a specific edition. This 

organization stated that there are sound 

policy reasons for adopting the latest 

version of the ANSI standard, since it 

reflects new developments in accessible 

design. The organization pointed out 

that since the Fair Housing Act does not 

refer to a particular edition of the ANSI 

standard, it would be reasonable for the 

Department to permit use of the 1998 

ANSI standard. Also, the organization 

stated that the 1998 standard would be 

used by state and local officials around 

the country and urged the Department 

to state that the most recent edition of 

the ANSI standard meets the 

requirements of the Fair Housing Act. 

Other comments the Department 

received on its proposed rule support 

the need to continue to recognize earlier 

editions of the standard because state 

and local building codes are not 

updated on any particular established 

schedule nor are they updated as 

frequently as the model building code is 

updated. Similarly, there are state and 

local jurisdictions that have adopted 

HUD’s Fair Housing Accessibility 

Guidelines into their building code or 

state fair housing law. Accordingly, the 

Department believes that it is 

appropriate at this time to continue to 

recognize all four editions of the ANSI 

A117.1 standard—1986, 1992, 1998, and 

2003, as previously proposed. 

With respect to one of the 

commenter’s concerns that ANSI 1992 is 

no longer in print and is generally 

difficult to locate, the Department 

determined that the standard, 1992 

CABO/ANSI A117.1 Accessible and 

Usable Buildings and Facilities, is 

available in print and on compact disc 

(CD–Rom) from the International Code 

Council, Washington DC (1–800–786– 

4452 and http://www.iccsafe.org/e/ 

category.html), which addresses the 

commenter’s concern. 

B. Concern With the Department’s 

Discussion of Its Enforcement of the Fair 

Housing Act 

Comment: One of the commenters 

expressed concern that the Department’s 

discussion of how it enforces the Fair 

Housing Act was an announcement of 

new enforcement policy and did not 

belong in the preamble of a proposed 

rule relating to the adoption of the 1992, 

1998, and 2003 ANSI standards. 

Response: The commenter does not 

correctly characterize HUD’s statements 

about enforcement of the Fair Housing 

Act in the preamble to the proposed 

rule. Rather than announcing new 

policy, the preamble merely restated 

HUD’s existing enforcement policy as 

part of the agency’s effort to explain the 

safe harbor provisions. 

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C. Concern With Expanding the Intent of 

the Fair Housing Act 

Comment: One commenter wrote that 

if the proposed rule is promulgated, it 

would directly contradict the creativity 

and diversity of solutions to 

accessibility needs that the Fair Housing 

Act encourages and that it would also 

establish a national building code. The 

commenter wrote that the lack of 

specificity under the Fair Housing Act 

reflects the intent of Congress that 

builders retain flexibility in designing 

housing covered by the law. The 

commenter wrote that, in enacting the 

Fair Housing Act, Congress did not 

direct or empower HUD to promulgate 

binding regulations for accessible design 

features. 

Response: The Department disagrees 

that its proposal either expands the 

intent of the Fair Housing Act or limits 

designers and builders with respect to 

the design and construction of covered 

multifamily dwellings. In this final rule, 

the Department is adopting the 2003 

edition of the ANSI A117.1 standard, 

while at the same time continuing to 

recognize the earlier 1986, 1992, and 

1998 editions. Moreover, the recognition 

of additional safe harbors does not in 

any way result in the adoption of a 

mandatory national building code. 

Rather, designers and builders may 

continue to use alternative methods of 

complying, with the following caveat, 

which the Department has stated since 

the publication of the regulations and 

the Fair Housing Accessibility 

Guidelines in 1991. If a designer or 

builder does not rely on one of the 

HUD-recognized safe harbors, that 

designer or builder has the burden of 

demonstrating how its efforts comply 

with the accessibility requirements of 

the Fair Housing Act. 

D. Codification of HUD-Recognized Safe 

Harbors 

Comment: One commenter wrote that 

while HUD’s effort to list in a binding 

regulation the standards and codes 

accepted as safe harbors for compliance 

with the Fair Housing Act’s accessibility 

requirements is appreciated, the many 

limiting comments and exceptions 

attending HUD’s designation of these 

standards as safe harbors detracts 

significantly from their usefulness and 

reliability. The commenter wrote that to 

follow the safe harbors as described by 

the proposed rule assumes extensive 

prior knowledge and study not only of 

the standards themselves, but also of the 

administrative guidance, enforcement 

actions, and judicial decisions 

surrounding them. The commenter 

wrote that it is unrealistic to expect 

multifamily housing professionals to 

have that sort of complex understanding 

of the difficult technical nuances. 

Response: The Department does not 

agree that including the 10 currently 

recognized safe harbors in its 

regulations will create difficulty in 

complying with the Act. The 

Department has placed very few 

conditions on the use of the building 

codes as safe harbors. Indeed, the few 

conditions that the Department has set 

on the International Building Code (IBC) 

were determined necessary to ensure 

that the declared safe harbor for IBC 

provided at least the same degree of 

accessibility as the Fair Housing Act, 

HUD’s regulations, and the Guidelines. 

The 2003 IBC was deemed a safe harbor 

with only one condition, and this 

condition is spelled out in the same 

paragraph in which the Department 

specified the 2003 IBC. The 2006 IBC 

had text missing, upon its initial 

publication, and it was necessary to 

alert users about the text that was 

missing. In addition, it was determined 

that it would be helpful to alert users of 

the IBC code about its 2006 

Commentary because users may not 

have been aware that a Commentary 

with guidance exists or they may need 

additional guidance on how to interpret 

the code. 

E. References to the Fair Housing Act in 

the IBC 

Comment: One commenter wrote that 

HUD should seek greater inclusion in 

technical code documents such as the 

ANSI standard of references to HUD’s 

Fair Housing Accessibility Guidelines. 

The commenter wrote that this would 

avoid circumstances where people 

relying on ANSI overlook the need to 

reference those Guidelines. 

Response: The Department is mindful 

of the importance of the Guidelines in 

the Department’s work as a member of 

the ANSI A117 Committee and its 

involvement in the code development 

process. The 2003 and the 1998 editions 

of ANSI A117.1 include an explanation 

in their ‘‘Purpose’’ statements that the 

Type B dwelling units are intended to 

be consistent with the intent of the 

criteria of the Guidelines. The 

Department also wishes to point out that 

individuals using an edition of the IBC 

that has been recognized by HUD as a 

safe harbor will not need to refer to the 

Guidelines because these editions of the 

IBC contain scoping requirements 

consistent with the Fair Housing Act, 

HUD’s regulations implementing the 

Act, and the Guidelines. The 

International Code Council (ICC) has 

included references to the Fair Housing 

Act, HUD’s regulations, and the Fair 

Housing Accessibility Guidelines in its 

2006 IBC Code Commentary. The 

Department also provided commentary 

to ICC, which ICC included in this same 

document, to provide guidance in 

interpreting language that the 

Department recommended and which 

the code body accepted for inclusion in 

Chapter 11 of the IBC. 

F. HUD Participation in the ANSI and 

IBC Development Process 

Comment: One commenter 

recommended that HUD continue to 

participate in the model code 

development process. Two commenters 

recommended that HUD participate as a 

full and equal partner on the A117.1 

Committee and offer proposals 

regardless of possible objection from 

committee members. 

Response: The Department agrees 

with these comments and intends to 

continue its active role as a member of 

the ANSI A117 Committee. The 

Department also hopes to be actively 

engaged in the IBC code development 

process, and has participated in recent 

code hearings. The Department 

proposed changes to the code that it 

believes will ensure greater compliance 

with the Fair Housing Act. 

G. Clarification of Requirements for 

Type B Dwelling Units as Designated in 

ANSI 

Comment: One commenter asked 

about requirements for townhouse units 

in the State of California, stating that in 

buildings with four or more townhouse 

style units, the State requires 10 percent 

(at least one) of these units to be 

accessible on the primary entrance 

level. The commenter stated that neither 

the townhouse units nor the buildings 

have an elevator, and that the units are 

multistory with garage, living room, 

powder room, and den on the first floor 

(ground level) and the kitchen, dining 

room, bathrooms, and bedrooms on the 

second level. The commenter asked for 

clarification on whether it was intended 

that the ground floors of such 

townhouse units comply with the Fair 

Housing Act’s accessibility 

requirements or be ‘‘Type B units’’ as 

provided for in the ANSI A117.1–2003 

accessibility standard when there are no 

elevators, either in the unit or in the 

building. 

Response: The Fair Housing Act and 

HUD’s Fair Housing Accessibility 

Guidelines require multistory 

townhouse units to be accessible only if 

they have an internal elevator, or if they 

are located in a building that has one or 

more elevators. However, the Fair 

Housing Act does not preclude states or 

units of local government from 

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Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 63613 

establishing requirements that are more 

stringent than the requirements of the 

Act. It appears that the State of 

California may have established a more 

stringent requirement. However, if the 

commenter would like further technical 

guidance on this matter, the Department 

has established a technical guidance 

program called Fair Housing 

Accessibility FIRST, to provide 

technical guidance to the building 

industry on the accessibility 

requirements of the Fair Housing Act. 

This program includes a technical 

guidance telephone hotline (1–888– 

341–7781) and a comprehensive 

technical guidance Web site (http:// 

www.fairhousingfirst.org/). 

H. Comments in Response to Proposed 

Rule’s Request for Public Comment on 

Sunsetting Earlier Safe Harbors 

Comment: In its proposed rule, the 

Department requested public comments 

on both the efficacy of continuing to 

recognize older editions of ANSI 

A117.1, and on how long the 

Department should continue to 

recognize earlier editions of the IBC. 

The Department made this request to 

obtain feedback for consideration for 

possible future rulemaking. Two 

commenters expressed concerns 

regarding the continued use of previous 

editions of ANSI A117.1. One of the 

commenters, while agreeing with HUD 

that covered multifamily buildings 

should be constructed using the 

technical specifications of ANSI 1998 or 

ANSI 2003, demurred regarding the 

1992 edition, writing that ANSI A117.1– 

1992 is no longer in print and is 

generally difficult to locate. Another 

commenter objected to use of the 1986, 

1992, and 1998 editions, writing that 

only the 2003 edition of the ANSI meets 

the design and construction 

requirements of the Fair Housing Act. 

One commenter also wrote that it is 

illogical to suggest that older standards 

and safe harbors, which have been 

recognized to provide accessible 

housing over the past 20 years, are no 

longer adequate because a newer 

standard for compliance is being 

recognized as an additional safe harbor 

by HUD. The commenter wrote that 

neither the Fair Housing Act nor its 

legislative history indicates that 

Congress intended future versions of 

ANSI to replace ANSI 1986 as a safe 

harbor. The commenter urged HUD to 

withdraw its proposed regulatory 

changes. This commenter also proffered 

that rather than requiring full 

compliance with any particular safe 

harbor document, HUD should 

encourage the flexibility of using 

standards from more than one such 

document without losing benefits of the 

safe harbor status. 

One commenter wrote that given the 

likelihood that state and local 

jurisdictions will continue to rely on 

legal adoptions of or references to the 10 

safe harbor documents, it is incumbent 

on HUD to maintain its regulatory 

recognition of these documents. In 

addition, the commenter wrote that any 

action regarding the recognition of a safe 

harbor should be understood to preserve 

the legal status of buildings constructed 

using that safe harbor. Another 

commenter wrote that the numerous 

conditions imposed on the use of the 

2003 IBC make it possible that the full 

complement of required information 

will not be conveyed to every intended 

recipient and user. The commenter 

wrote that since there are other versions 

of the IBC available as safe harbors, 

HUD should drop the 2003 IBC from 

this designation. 

One commenter recommended that 

HUD move to sunset older safe harbors 

over the next few years, with the 

exception of the HUD Fair Housing Act 

Design Manual. The Design Manual has, 

in the commenter’s view, proven to be 

the most useful and popular safe harbor 

and offers a significant number of 

illustrations that enhance the users’ 

understanding of the Fair Housing 

design and construction requirements. 

The commenter wrote that once the 

final rule is published, the next step 

should be the updating of the Design 

Manual, referencing ANSI 1998 and 

2003. 

Several commenters suggested that 

HUD phase out all safe harbors other 

than the 2003 edition of ANSI A117.1. 

The commenters wrote that reliance on 

the latest edition would avoid any 

confusion regarding the applicable 

accessibility requirements. One of the 

commenters wrote that, in reference to 

a building with dwelling units to which 

the Fair Housing Act and Section 504 

apply, these dual standards for housing 

accessibility coupled with the 

multiplicity of safe harbors could result 

in confusion. 

Response: The Department has 

considered all of the comments offered 

on its request for comment on the 

appropriateness of sunsetting some of 

the current HUD-recognized safe 

harbors at some future time. At present, 

the Department has not determined 

whether in the future it might be 

appropriate to sunset some of the safe 

harbors. If it decides to do so in the 

future, the Department will give the 

public appropriate notice and 

opportunity to comment at that time. 

With respect to one of the commenter’s 

concerns that ANSI 1992 is no longer in 

print, as noted earlier in this preamble, 

the 1992 edition of ANSI 117.1 is 

available from the International Code 

Council. 

IV. HUD Policy Regarding HUDRecognized Safe Harbors for 

Compliance With the Fair Housing 

Act’s Design and Construction 

Requirements 

As the Department noted in the 

preamble to the proposed rule, with the 

recognition of ICC/ANSI A117.1–2003 

and the 2006 IBC as safe harbors, the 

Department currently recognizes 10 safe 

harbors for compliance with the design 

and construction requirements of the 

Fair Housing Act. (See 72 FR 39541– 

39542.) These documents are: 

1. Fair Housing Accessibility 

Guidelines, March 6, 1991 (http:// 

www.hud.gov/offices/fheo/disabilities/ 

fhefhag.cfm), in conjunction with the 

June 28, 1994, Supplement to Notice of 

Fair Housing Accessibility Guidelines: 

Questions and Answers About the 

Guidelines (http://www.hud.gov/offices/ 

fheo/disabilities/fhefhasp.cfm); 

2. Fair Housing Act Design Manual 

(http://www.huduser.org/publications/ 

destech/fairhousing.html), published by 

HUD in 1996 and updated in 1998; 

3. ANSI A117.1–1986, Accessible and 

Usable Buildings and Facilities 

(available from Global Engineering 

Documents, 15 Inverness Way East, 

Englewood, Colorado 90112), in 

conjunction with the Fair Housing Act, 

HUD’s regulations, and the Guidelines 

for the scoping requirements; 

4. CABO/ANSI A117.1–1992, 

Accessible and Usable Buildings and 

Facilities (http://www.iccsafe.org), in 

conjunction with the Fair Housing Act, 

HUD’s regulations, and the Guidelines 

for the scoping requirements; 

5. ICC/ANSI A117.1–1998, Accessible 

and Usable Buildings and Facilities 

(http://www.iccsafe.org), in conjunction 

with the Fair Housing Act, HUD’s 

regulations, and the Guidelines for the 

scoping requirements; 

6. ICC/ANSI A117.1–2003, Accessible 

and Usable Buildings and Facilities 

(http://www.iccsafe.org), in conjunction 

with the Fair Housing Act, HUD’s 

regulations, and the Guidelines for the 

scoping requirements; 

7. 2000 ICC Code Requirements for 

Housing Accessibility (CRHA), 

published by the International Code 

Council (ICC), October 2000 (http:// 

www.iccsafe.org) (ICC has issued an 

errata sheet to the CRHA); 

8. 2000 International Building Code, 

as amended by the 2001 Supplement to 

the International Building Code (2001 

IBC Supplement); 

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63614 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 

2 ICC’s Web site includes information about the 

condition placed on HUD’s approval of the 2003 

IBC as a safe harbor at the following links: 

http://www.iccsafe.org/news/nr/2005/index.html; 

http://www.iccsafe.org/government/news/; and 

http://www.iccsafe.org/news/ePeriodicals/eNews/ 

archive/ICCeNews_0305.html. 

9. 2003 International Building Code, 

published by ICC (http:// 

www.iccsafe.org), December 2002, with 

one condition: Effective February 28, 

2005, HUD determined that the IBC 

2003 is a safe harbor, conditioned upon 

ICC publishing and distributing a 

statement to jurisdictions and past and 

future purchasers of the 2003 IBC 

stating, ‘‘ICC interprets Section 1104.1, 

and specifically the Exception to 

Section 1104.1, to be read together with 

Section 1107.4, and that the Code 

requires an accessible pedestrian route 

from site arrival points to accessible 

building entrances, unless site 

impracticality applies. Exception 1 to 

Section 1107.4 is not applicable to site 

arrival points for any Type B dwelling 

units because site impracticality is 

addressed under Section 1107.7 2’’; and 

10. 2006 International Building Code, 

published by ICC (http:// 

www.iccsafe.org) in January 2006, with 

a January 31, 2007, erratum to correct 

the text missing from Section 1107.7.5 

and interpreted in accordance with the 

relevant 2006 IBC Commentary. 

The Department is also reiterating, in 

this preamble to the final rule, its policy 

with respect to the above safe harbors, 

as it did in the preamble to the proposed 

rule. If a State or locality has adopted 

one of the above documents without 

modification to the provisions that 

address the Fair Housing Act 

requirements, a building covered by the 

Act’s design and construction 

requirements will be deemed compliant, 

provided: (1) The building is designed 

and constructed in accordance with 

plans and specifications approved 

during the building permitting process 

and (2) the building code official does 

not waive, incorrectly interpret, or 

misapply one or more of those 

requirements. However, neither the fact 

that a jurisdiction has adopted a code 

that conforms with the accessibility 

requirements of the Fair Housing Act, 

nor that construction of a building 

subject to the Fair Housing Act was 

approved under such a code, changes 

HUD’s statutory responsibility to 

conduct an investigation, following 

receipt of a complaint from an aggrieved 

person, to determine whether the 

requirements of the Fair Housing Act 

have been met. Nor does either fact 

prohibit the Department of Justice from 

investigating whether violations of the 

Fair Housing Act’s design and 

construction provisions may have 

occurred. The Fair Housing Act 

provides that: ‘‘Determinations by a 

State or unit of general local government 

under paragraphs 5(A) and (B) shall not 

be conclusive in enforcement 

proceedings under this title.’’ 42 U.S.C. 

3604(f)(6)(a). 

HUD’s investigation of an 

accessibility discrimination complaint 

under the Fair Housing Act typically 

involves, inter alia, a review of building 

permits, certificates of occupancy, and 

construction documents showing the 

design of the buildings and the site, and 

an on-site survey of the buildings and 

property. During the investigation, HUD 

investigators take measurements of 

relevant interior and exterior elements 

on the property. All parties to the 

complaint have an opportunity to 

present evidence concerning, inter alia, 

whether HUD has jurisdiction over the 

complaint, and whether the Act has 

been violated as alleged. In enforcing 

the design and construction 

requirements of the Fair Housing Act, a 

prima facie case may be established by 

proving a violation of HUD’s Fair 

Housing Accessibility Guidelines. This 

prima facie case may be rebutted by 

demonstrating compliance with a 

recognized, comparable, objective 

measure of accessibility. See Order on 

Secretarial Review, U.S. Department of 

Housing and Urban Development and 

Montana Fair Housing, Inc. v. Brent 

Nelson, HUD ALJ 05–068FH (September 

21, 2006) (2006 WL 4540542). In making 

a determination as to whether the 

design and construction requirements of 

the Fair Housing Act have been 

violated, HUD uses the Fair Housing 

Act, the regulations, and the Guidelines, 

all of which reference the technical 

standards found in ANSI A117.1–1986. 

It is the Department’s position that 

these documents represent safe harbors 

only when used in their entirety; that is, 

once a specific safe harbor document 

has been selected, the building in 

question should 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 or from a variety of sources, 

and will be lost if waivers of provisions 

are requested and 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 document will result in 

unlawful discrimination under the Fair 

Housing Act, designers and builders 

that choose to depart from the 

provisions of a specific safe harbor bear 

the burden of demonstrating that their 

actions result in compliance with the 

Act’s design and construction 

requirements. HUD’s purpose in 

recognizing a number of safe harbors for 

compliance with the Fair Housing 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 design and construction 

requirements of the Act. 

V. Additional Information 

A link to the Department’s report of 

its review of the 2006 IBC, as well as the 

February 28, 2005, and March 23, 2000, 

reports, is located at http:// 

www.hud.gov/offices/fheo/disabilities/ 

modelcodes/. The Fair Housing Act, as 

amended in 1988, and the Fair Housing 

Accessibility Guidelines can also be 

obtained through links provided at this 

Web site. The Fair Housing Act 

regulations are located at http:// 

www.access.gpo.gov/nara/cfr/ 

waisidx_00/24cfr100_00.html. CABO/ 

ANSI A117.1–1992, ICC/ANSI A117.1– 

1998, and ICC/ANSI A117.1–2003 are 

available for purchase at http:// 

www.iccsafe.org/e/category.html. ANSI 

A117.1–1986 is available from Global 

Engineering Documents, 15 Inverness 

Way East, Englewood, CO 80112, 

telephone number 1–800–854–7179, 

and can be purchased at global.ihs.com. 

VI. Findings and Certifications 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.) generally requires 

an agency to conduct a regulatory 

flexibility analysis on any rule subject to 

notice and comment rulemaking 

requirements, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. This final rule 

adopts the 2003 edition of ANSI A117.1 

for purposes of defining technical 

standards for accessibility for covered 

multifamily dwellings. The final rule 

also provides that compliance with the 

1986 edition of ANSI A117.1 that HUD 

previously adopted, as well as with the 

1992 and 1998 editions of ANSI A117.1, 

would meet the requirements of the Fair 

Housing Act and of HUD-recognized 

safe harbors. Small entities need not 

incur a significant economic impact, as 

small entities can still be in compliance 

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Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 63615 

with the requirements of the Fair 

Housing Act if they continue to use the 

1986 ANSI A117.1 technical standard. 

Adopting the 2003 edition, as well as 

the 1992 and 1998 editions of the 

standard, may even alleviate a 

significant economic impact for small 

entities, as those entities may find 

compliance with more recent editions of 

the ANSI A117.1 standard to be less 

burdensome than compliance with the 

1986 edition. The final rule does not 

impose an undue burden on small 

entities, as the rule would merely codify 

the use of more recent ANSI A117.1 

standards as satisfying the design and 

construction requirements of the Fair 

Housing Act. 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 final 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. 

VII. Incorporation by Reference 

These reference standards are 

approved by the Director of the Federal 

Register for incorporation by reference 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. Copies of these standards 

may be obtained from the following 

organizations: 

ICC/ANSI A117.1–2003, ICC/ANSI 

A117.1–1998, and CABO/ANSI A117.1– 

1992 may be obtained from the 

International Code Council, 500 New 

Jersey Avenue, NW., 6th Floor, 

Washington, DC 20001–2070, telephone 

number 1–888–422–7233, and may be 

ordered online at http:// 

www.iccsafe.org/cs/standards/a117/ 

order.html. 

ANSI A117.1–1986 may be obtained 

from Global Engineering Documents, 15 

Inverness Way East, Englewood, CO 

80112, telephone number 1–800–854– 

7179, and may be ordered online at 

global.ihs.com. 

The 1986, 1992, 1998, and 2003 

editions of ANSI A117.1 may be 

inspected at the Department of Housing 

and Urban Development, 451 Seventh 

Street, SW., Room 5240, Washington, 

DC 20410–0001, telephone number 202– 

708–2333. 

List of Subjects in 24 CFR Part 100 

Fair housing, Incorporation by 

reference, Individuals with disabilities. 

■ For the reasons stated in the preamble, 

HUD amends 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, remove the definition 

of ‘‘ANSI A117.1–1986’’ and 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/ANSI A117.1–2003 

(incorporated by reference at 

§ 100.201a), ICC/ANSI A117.1–1998 

(incorporated by reference at 

§ 100.201a), CABO/ANSI A117.1–1992 

(incorporated by reference at 

§ 100.201a), ANSI A117.1–1986 

(incorporated by reference at 

§ 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/ANSI 

A117.1–2003 (incorporated by reference 

at § 100.201a), ICC/ANSI A117.1–1998 

(incorporated by reference at 

§ 100.201a), CABO/ANSI A117.1–1992, 

ANSI A117.1–1986 (incorporated by 

reference at § 100.201a), or a comparable 

standard is an ‘‘accessible route.’’ 

* * * * * 

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/ANSI A117.1–2003 (incorporated 

by reference at § 100.201a), ICC/ANSI 

A117.1–1998 (incorporated by reference 

at § 100.201a), CABO/ANSI A117.1– 

1992 (incorporated by reference at 

§ 100.201a), ANSI A117.1–1986 

(incorporated by reference at 

§ 100.201a), or a comparable standard 

complies with the requirements of this 

paragraph. 

* * * * * 

■ 3. Add § 100.201a to read as follows: 

§ 100.201a Incorporation by reference. 

(a) The following standards are 

incorporated by reference into 24 CFR 

part 100 pursuant to 5 U.S.C. 552(a) and 

1 CFR part 51, as though set forth in full. 

The incorporation by reference of these 

standards has been approved by the 

Director of the Federal Register. The 

effect of compliance with these 

standards is as stated in 24 CFR 

100.205. 

(b) The addresses of organizations 

from which the referenced standards 

can be obtained appear below: 

(1) American National Standard: 

Accessible and Usable Buildings and 

Facilities, 2003 edition, (ICC/ANSI 

A117.1–2003), may be obtained from the 

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63616 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Rules and Regulations 

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. 

(2) American National Standard: 

Accessible and Usable Buildings and 

Facilities, 1998 edition, (ICC/ANSI 

A117.1–1998), may 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. 

(3) American National Standard: 

Accessible and Usable Buildings and 

Facilities, 1992 edition, (CABO/ANSI 

A117.1–1992), may 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. 

(4) American National Standard for 

Buildings and Facilities: Providing 

Accessibility and Usability for 

Physically Handicapped People, 1986 

edition, (ANSI A117.1–1986) may be 

obtained from Global Engineering 

Documents, 15 Inverness Way East, 

Englewood, CO 80112, telephone 

number 1–800–854–7179, 

global.ihs.com. 

(c) The 1986, 1992, 1998, and 2003 

editions of ANSI A117.1 may be 

inspected at the Department of Housing 

and Urban Development, 451 Seventh 

Street, SW., Room 5240, Washington, 

DC 20410–0001, telephone number 202– 

708–2333. 

■ 4. Revise § 100.205(e) to read as 

follows: 

§ 100.205 Design and construction 

requirements. 

* * * * * 

(e)(1) Compliance with the 

appropriate requirements of ICC/ANSI 

A117.1–2003 (incorporated by reference 

at § 100.201a), ICC/ANSI A117.1–1998 

(incorporated by reference at 

§ 100.201a), CABO/ANSI A117.1–1992 

(incorporated by reference at 

§ 100.201a), or ANSI A117.1–1986 

(incorporated by reference at § 100.201a) 

suffices to satisfy the requirements of 

paragraph (c)(3) of this section. 

(2) The following also qualify as HUDrecognized safe harbors for compliance 

with the Fair Housing Act design and 

construction requirements: 

(i) Fair Housing Accessibility 

Guidelines, March 6, 1991, in 

conjunction with the Supplement to 

Notice of Fair Housing Accessibility 

Guidelines: Questions and Answers 

About the Guidelines, June 28, 1994; 

(ii) Fair Housing Act Design Manual, 

published by HUD in 1996, updated in 

1998; 

(iii) 2000 ICC Code Requirements for 

Housing Accessibility (CRHA), 

published by the International Code 

Council (ICC), October 2000 (with 

corrections contained in ICC-issued 

errata sheet), if adopted without 

modification and without waiver of any 

of the provisions; 

(iv) 2000 International Building Code 

(IBC), as amended by the 2001 

Supplement to the International 

Building Code (2001 IBC Supplement), 

if adopted without modification and 

without waiver of any of the provisions 

intended to address the Fair Housing 

Act’s design and construction 

requirements; 

(v) 2003 International Building Code 

(IBC), if adopted without modification 

and without waiver of any of the 

provisions intended to address the Fair 

Housing Act’s design and construction 

requirements, and conditioned upon the 

ICC publishing and distributing a 

statement to jurisdictions and past and 

future purchasers of the 2003 IBC 

stating, ‘‘ICC interprets Section 1104.1, 

and specifically, the Exception to 

Section 1104.1, to be read together with 

Section 1107.4, and that the Code 

requires an accessible pedestrian route 

from site arrival points to accessible 

building entrances, unless site 

impracticality applies. Exception 1 to 

Section 1107.4 is not applicable to site 

arrival points for any Type B dwelling 

units because site impracticality is 

addressed under Section 1107.7.’’ 

(vi) 2006 International Building Code; 

published by ICC, January 2006, with 

the January 31, 2007, erratum to correct 

the text missing from Section 1107.7.5, 

if adopted without modification and 

without waiver of any of the provisions 

intended to address the Fair Housing 

Act’s design and construction 

requirements, and interpreted in 

accordance with the relevant 2006 IBC 

Commentary; 

(3) Compliance with any other safe 

harbor recognized by HUD in the future 

and announced in the Federal Register 

will also suffice to satisfy the 

requirements of paragraph (c)(3) of this 

section. 

* * * * * 

Dated: September 11, 2008. 

Kim Kendrick, 

Assistant Secretary for Fair Housing and 

Equal Opportunity. 

[FR Doc. E8–23785 Filed 10–23–08; 8:45 am] 

BILLING CODE 4210–67–P 

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