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.
The standards incorporated by reference in this final rule are approved by the Director of the Federal Register as of
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). Hearing-or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 800–877–8339.
Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601
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.
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),
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.
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.
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
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
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.
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 (
2. Fair Housing Act Design Manual (
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 (
5. ICC/ANSI A117.1–1998, Accessible and Usable Buildings and Facilities (
6. ICC/ANSI A117.1–2003, Accessible and Usable Buildings and Facilities (
7. 2000 ICC Code Requirements for Housing Accessibility (CRHA), published by the International Code Council (ICC), October 2000 (
8. 2000 International Building Code, as amended by the 2001 Supplement to the International Building Code (2001 IBC Supplement);
9. 2003 International Building Code, published by ICC (
10. 2006 International Building Code, published by ICC (
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,
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.
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
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
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.
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
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.
The Catalog of Federal Domestic Assistance number for this program is 14.400.
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
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
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.
Fair housing, Incorporation by reference, Individuals with disabilities.
42 U.S.C. 3535(d), 3600–3620.
(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
(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,
(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,
(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,
(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.
(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 HUD-recognized 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