DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal Opportunity
24 CFR Part 100
Fair Housing Accessibility Guidelines
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD.
ACTION: Notice of Adoption of Fair Housing Accessibility Guidelines -- Final Guidelines.
SUMMARY: This document presents guidelines adopted by the Department of Housing and Urban Development to provide builders and developers with technical guidance on how to comply with the specific accessibility requirements of the Fair Housing Amendments Act of 1988. Issuance of this document follows consideration of public comment received on proposed accessibility guidelines published in the Federal Register on June 15, 1990. The guidelines presented in this document are intended to provide technical guidance only, and are not mandatory. The guidelines will be codified in the 1991 edition of the Code of Federal Regulations as Appendix II to the Fair Housing regulations (24 CFR Ch. I, Subch. A, App. II). The preamble to the guidelines will be codified in the 1991 edition of the Code of Federal Regulations as Appendix III to the Fair Housing regulations (24 CFR Ch. I, Subch. A, App. III).
EFFECTIVE DATE: [Insert date of publication.]
FOR FURTHER INFORMATION CONTACT: Merle Morrow, Office of HUD Program Compliance, Room 5204, Department of Housing and Urban Development, 451 Seventh Street, S.W., Washington, D.C. 20410-0500, telephone (202) 708-2618 (voice) or (202) 708-0015 (TDD). (These are not toll-free numbers.)
I. Adoption of Final Guidelines
The Department of Housing and Urban Development (Department) is adopting as its Fair Housing Accessibility Guidelines, the design and construction guidelines set forth in this notice (Guidelines). Issuance of this document follows consideration of public comments received in response to an advance notice of intention to develop and publish Fair Housing Accessibility Guidelines, published in the Federal Register on August 2, 1989 (54 FR 31856), and in response to proposed accessibility guidelines published in the Federal Register on June 15, 1990 (55 FR 24730).
The Department is adopting as final Guidelines, the guidelines designated as Option One in the proposed guidelines published on June 15, 1990, with modifications to certain of the Option One design specifications. In developing the final Guidelines, the Department was cognizant of the need to provide technical guidance that appropriately implements the specific accessibility requirements of the Fair Housing Amendments Act of 1988, while avoiding design specifications that would impose an unreasonable burden on builders, and significantly increase the cost of new multifamily construction. The Department believes that the final Guidelines adopted by this notice
(1) are consistent with the level of accessibility envisioned by Congress;
(2) simplify compliance with the Fair Housing Amendments Act by providing guidance concerning what constitutes acceptable compliance with the Act; and (3) maintain the affordability of new multifamily construction by specifying reasonable design and construction methods.
The Option One design specifications substantially revised in the final Guidelines include the following:
(1) Site impracticality. The final Guidelines provide that covered multifamily dwellings with elevators shall be designed and constructed to provide at least one accessible entrance on an accessible route regardless of terrain or unusual characteristics of the site. Every dwelling unit on a floor served by an elevator must be on an accessible route, and must be made accessible in accordance with the Act's requirements for covered dwelling units.
For covered multifamily dwellings without elevators, the final Guidelines provide two alternative tests for determining site impracticality due to terrain. The first test is an individual building test which involves a two-step process: measurement of the slope of the undisturbed site between the planned entrance and all vehicular or pedestrian arrival points; and measurement of the slope of the planned finished grade between the entrance and all vehicular or pedestrian arrival points. The second test is a site analysis test which involves an analysis of the existing natural terrain (before grading) by topographic survey with 2 foot contour intervals, with slope determination made between each successive contour interval.
A site with a single building (without an elevator), having a common entrance for all units, may be analyzed only under the first test -- the individual building test. All other sites, including a site with a single building having multiple entrances serving either individual dwelling units or clusters of dwelling units, may be analyzed either under the first test or the second test. For sites for which either test is applicable (that is, all sites other than a site with a single nonelevator building having a common entrance for all units), the final Guidelines provide that regardless of which test is utilized by a builder or developer, at least 20% of the total ground floor units in nonelevator buildings, on any site, must comply with the Act's accessibility requirements.
(2) An accessible route into and through covered dwelling units.
The final Guidelines distinguish between (i) single-story dwelling units, and (ii) multistory dwelling units in elevator buildings, and provide guidance on designing an accessible entrance into and through each of these two types of dwelling units.
(a) Single-story dwelling units. For single-story dwelling units, the final Guidelines specify the same design specifications as presented in the proposed Option One guidelines, except that design features within the single-story dwelling unit, such as a loft or a sunken living room, are exempt from the access specifications, subject to certain requirements. Lofts are exempt provided that all other space within the unit is on an accessible route. Sunken or raised functional areas, such as a sunken living room, are also exempt from access specifications, provided that such areas do not interrupt the accessible route through the remainder of the unit. However, split-level entries or areas will need ramps or other means of providing an accessible route.
(b) Multistory dwelling units in buildings with elevators. For multistory dwelling units in buildings with elevators, the final Guidelines specify that only the story served by the building elevator must comply with the accessible features for dwelling units required by the Fair Housing Act. The other stories of the multistory dwelling unit are exempt from access specifications, provided that the story of the unit that is served by the building elevator (1) is the primary entry to the unit; (2) complies with Requirements 2 through 7 with respect to the rooms located on the entry/accessible level; and (3) contains a bathroom or powder room which complies with Requirement 7.
(c) Thresholds at patio, deck or balcony doors. The final Guidelines provide that exterior deck, patio, or balcony surfaces should be no more than 1/2 inch below the floor level of the interior of the dwelling unit, unless they are constructed of impervious materials such as concrete, brick or
flagstone, in which case the surface should be no more than 4 inches below the floor level of the interior dwelling unit, unless the local building code requires a lower drop. This provision and the following provision were included in order to minimize the possibility of interior water damage when exterior surfaces are constructed of impervious materials.
(d) Outside surface at entry door. The final Guidelines also provide that at the primary entry door to a dwelling units with direct exterior access, outside landing surfaces constructed of impervious materials such as concrete, brick, or flagstone should be no more than 1/2 inch below the interior of the dwelling unit. The Guidelines further provide that the finished surface of this area, located immediately outside the entry door, may be sloped for drainage, but the sloping may be no more than 1/8 inch per foot.
(3) Usable bathrooms. The final Guidelines provide two alternative sets of specifications for making bathrooms accessible in accordance with the Act's requirements. The Act requires that an accessible or "usable" bathroom is one which provides sufficient space for an individual in a wheelchair to maneuver about. The two sets of specifications provide different approaches as to how compliance with this maneuvering space requirement may be achieved. The final Guidelines for usable bathrooms also provide that the usable bathroom specifications (either set of specifications) are applicable to powder rooms (i.e., a room with only a toilet and a sink) when the powder room is the only toilet facility on the accessible level of a covered multistory dwelling unit.
The details about, and the reasons for these modifications, and additional minor technical modifications made to certain design specifications of the Option One guidelines, are discussed more fully in the section-by-section analysis which appears later in this preamble.
Principal features of the Option One guidelines that were not changed in the final Guidelines include the following:
(1) Accessible entrance and an accessible route. The Option One guidelines for these two requirements remain unchanged in the final Guidelines.
(2) Accessible and usable public and common use areas. The Option One guidelines for public and common use areas remain unchanged in the final Guidelines.
(3) Doors within individual dwelling units. The final Guidelines recommend that doors intended for user passage within individual dwelling units have a clear opening of at least 32 inches nominal width when the door is open 90 degrees.
(4) Doors to public and common use areas. The final Guidelines continued to provide that on accessible routes in public and common use areas, and for primary entry doors to covered units, doors that comply with ANSI 4.13 meet the Act's requirement for "usable" doors.
(4) Thresholds at exterior doors. Subject to the exceptions for thresholds and changes in level at exterior areas constructed of impervious materials, the final Guidelines continue to specify that thresholds at exterior doors, including sliding door tracks, be no higher than 3/4 inch.
(5) Reinforced walls for grab bars. The final Guidelines for bathroom wall reinforcement remains essentially unchanged from the Option One guidelines. The only change made to these guidelines has been to subject powder rooms to the reinforced wall requirement when the powder room is the only toilet facility on the accessible floor of a covered multistory dwelling unit.
The text of the final Guidelines follows the preamble, which includes a discussion of the public comments received on the proposed guidelines, and the section-by-section analysis referenced above.
The design specifications presented in the Fair Housing Accessibility Guidelines provide technical guidance to builders and developers in complying with the specific accessibility requirements of the Fair Housing Amendments Act of 1988. The Guidelines are intended to provide a safe harbor for compliance with the accessibility requirements of the Fair Housing Amendments Act, as implemented by 24 CFR 100.205 of the Department's Fair Housing regulations. THE GUIDELINES ARE NOT MANDATORY. Additionally, the Guidelines DO NOT prescribe specific requirements which must be met, and which, if not met, would constitute unlawful discrimination under the Fair Housing Amendments Act. Builders and developers may choose to depart from the Guidelines, and seek alternate ways to demonstrate that they have met the requirements of the Fair Housing Act.
II. Statutory and Regulatory Background
Title VIII of the Civil Rights Act of 1968 makes it unlawful to discriminate in any aspect relating to the sale, rental or financing of dwellings, or in the provision of brokerage services or facilities in connection with the sale or rental of a dwelling, because of race, color, religion, sex or national origin. The Fair Housing Amendments Act of 1988 (Pub.L. 100-430, approved September 13, 1988) (Fair Housing Act or the Act) expanded coverage of Title VIII (42 U.S.C. 3601-3620) to prohibit discriminatory housing practices based on handicap and familial status. As amended, Section 804(f)(3)(C) of the Act provides that unlawful discrimination includes a failure to design and construct covered multifamily dwellings for first occupancy after March 13, 1991 (30 months after the date of enactment) in accordance with certain accessibility requirements. The Act defines "covered multifamily dwellings" as "(a) buildings consisting of 4 or more units if such buildings have one or more elevators; and (b) ground floor units in other buildings consisting of 4 or more units" (42 U.S.C. 3604).
The Act makes it unlawful to fail to design and construct covered multifamily dwellings so that:
(1) public use and common use portions of the dwellings are readily accessible to and usable by persons with handicaps;
(2) all doors within such dwellings which are designed to allow passage into and within the premises are sufficiently wide to allow passage by persons in wheelchairs; and
(3) all premises within such dwellings contain the following features of adaptive design:
(a) an accessible route into and through the dwelling;
(b) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.
(c) reinforcements in bathroom walls to allow later installation of grab bars; and
(d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
The Act provides that compliance with (1) 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"), or (2) with the laws of a State or unit of general local government, that has incorporated into such laws the accessibility requirements of the Act, shall be deemed to satisfy the accessibility requirements of the Act. (See Section 804(f)(4) and (5)(A).) The Act also provides that the Secretary of the Department of Housing and Urban Development shall provide technical assistance to States and units of local government and other persons to implement the accessibility requirements of the Act. (See Section 804(f)(5)(C).)
Congress believed that the accessibility provisions of the Act would
(1) facilitate the ability of persons with handicaps to enjoy full use of their homes without imposing unreasonable requirements on homebuilders, landlords and non-handicapped tenants; (2) be essential for equal access and to avoid future de facto exclusion of persons with handicaps; and (3) be easy to incorporate in housing design and construction. Congress predicted that compliance with these minimal accessibility design and construction standards would eliminate many of the barriers which discriminate against persons with disabilities in their attempts to obtain equal housing opportunities. (See H.R. Rep. No. 711, 100th Cong. 2d Sess. 27-28 (1988) ("House Report").)
The Fair Housing Act became effective on March 12, 1989. The Department implemented the Act by a final rule published January 23, 1989 (54 FR 3232), and which became effective on March 12, 1989. Section 100.205 of that rule incorporates the Act's design and construction requirements, including the requirement that multifamily dwellings for first occupancy after March 13, 1991 be designed and constructed in accordance with the Act's accessibility requirements. The final rule clarified which multifamily dwellings are subject to the Act's requirements. Section 100.205 provides, in paragraph (a), that covered multifamily dwellings shall be deemed to be designed and constructed for first occupancy on or before March 13, 1991, if they are occupied by that date, or if the last building permit or renewal thereof for the covered multifamily dwellings is issued by a State, County or local government on or before January 13, 1990. The Department selected the date of January 13, 1990 because it is fourteen months before March 13, 1991. Based on data contained in the Marshall Valuation Service, the Department found that fourteen months represented a reasonable median construction time for multifamily housing projects of all sizes. The Department chose the issuance of a building permit as the appropriate point in the building process because such permits are issued in writing by governmental authorities. The issuance of a building permit has the advantage of being a clear and objective standard. In addition, any project that actually achieves first occupancy before March 13, 1991 will be judged to have met this standard even if the last building permit or renewal thereof was issued after January 13, 1990 (55 FR 3251).
Section 100.205 of the final rule also incorporates the Act's provisions that compliance with the appropriate requirements of ANSI A117.1, or with State or local laws that have incorporated the Act's accessibility requirements, suffices to satisfy the accessibility requirements of the Act as codified in §100.205. In the preamble to the final rule, the Department stated that it would provide more specific guidance on the Act's accessibility requirements in a notice of proposed guidelines that would provide a reasonable period for public comment on the guidelines.
III. Proposed Accessibility Guidelines
On August 2, 1989, the Department published in the Federal Register an advance notice of intention to develop and publish Fair Housing Accessibility Guidelines (54 FR 31856). The purpose of this document was to solicit early comment from the public concerning the content of the Accessibility Guidelines, and to outline the Department's procedures for their development. To the extent practicable, the Department considered all public comments submitted in response to the August 2, 1989 advance notice in its preparation of the proposed accessibility guidelines.
On June 15, 1990, the Department published proposed Fair Housing Accessibility guidelines (55 FR 24370). The proposed guidelines presented, and requested public comment on, three options for accessible design:
(1) Option one (Option One) provided guidelines developed by the Department with the assistance of the Southern Building Code Congress International (SBCCI), and incorporated suggestions received in response to the August 2, 1989 advance notice;
(2) Option two (Option Two) offered guidelines developed by the National Association of Home Builders (NAHB) and the National Coordinating Council on Spinal Cord Injuries (NCCSCI); and
(3) Option three (Option Three) offered "adaptable accommodations" guidelines, an approach that provides for identification of certain features in dwelling units that could be made accessible to people with handicaps on a case-by-case basis.
In the June 15, 1990 notice of proposed guidelines, the Department recognized that projects then being designed, in advance of publication of the final Guidelines may not become available for occupancy until after March 13, 1991. The Department advised that efforts to comply with the proposed guidelines, Option One, in the design of projects which would be completed before issuance of the final Guidelines, would be considered as evidence of compliance with the Act in connection with the Department's investigation of any complaints. Following publication of the June 15, 1990 notice, the Department received a number of inquiries concerning whether certain design and construction activities in connection with projects likely to be completed before issuance of final Guidelines would be considered by the Department to be in compliance with the Act.
In order to resolve these questions, the Department, on August 1, 1990, published in the Federal Register a supplementary notice to the proposed guidelines (55 FR 31191). In the supplementary notice, the Department advised that it only would consider efforts to comply with the proposed guidelines, Option One, as evidence of compliance with the Act. The Department stated that evidence of compliance with the Option One guidelines, under the circumstances described in the supplementary notice, would be a basis for determination that there is no reasonable cause to believe that a discriminatory housing practice under Section 804(f)(3) has occurred, or is about to occur in connection with the investigation of complaints filed with the Department relating to covered multifamily dwellings. The circumstances described in the August 1, 1990 supplementary notice that the Department found would be in compliance with the Act, were limited to:
(1) Any covered multifamily dwellings which are designed in accordance with the Option One guidelines, and for which construction is completed before publication of the final Fair Housing Accessibility Guidelines; and
(2) Any covered multifamily dwellings which have been designed in accordance with the Option One guidelines, but for which construction is not completed by the date of publication of the final Guidelines provided:
(a) Construction begins before the final Guidelines are published; or
(b) A building permit is issued less than 60 days after the final Guidelines are published.
On September 7, 1990, the Department published for public comment a Preliminary Regulatory Impact Analysis on the Department's assessment of the economic impact of the Guidelines, as implemented by each of the three design options then under consideration (55 FR 37072-37129).
IV. Public Comments and Commenters
The proposed guidelines provided a 90-day period for the submission of comments by the public, ending September 13, 1990. The Department received 562 timely comments. In addition, a substantial number of comments were received by the Department after the September 13, 1990 deadline. Although those comments were not timely filed, they were reviewed to assure that any major issues raised had been adequately addressed in comments that were received by the deadline. Each of the timely comments was read, and a list of all significant issues raised by those comments was compiled. All these issues were considered in the development of the final Guidelines.
Of the 562 comments received, approximately 200 were from disability advocacy organizations, or units of State or local government concerned with disability issues. Sixty-eight (68) additional commenters identified themselves as members of the disability community; 61 commenters identified themselves as individuals who work with members of the disability community (e.g., vocational or physical therapists or counselors), or who have family members with disabilities; and 96 commenters were members of the building industry, including architects, developers, designers, design consultants, manufacturers of home building products, and rental managers. Approximately 292 commenters supported Option One without any recommendation for change.
An additional 155 commenters supported Option One, but recommended changes to certain Option One design standards. Twenty-six (26) commenters supported Option Two, and 10 commenters supported Option Three. The remaining commenters submitted questions, comments and recommendations for changes on certain design features of one or more of the three options, but expressed no preference for any particular option, or, alternatively, recommended final guidelines that combine features from two or all three of the options.
The commenters included several national, State and local organizations and agencies, private firms, and individuals that have been involved in the development of State and local accessibility codes. These commenters offered valuable information, including copies of State and local accessibility codes, on accessibility design standards. These commenters included: the Southern Building Code Congress International (SBCCI); the U.S. Architectural and Transportation Barriers Compliance Board (ATBCB); the Building Officials & Code Administrators International, Inc. (BOCA); the State of Washington Building Code Council; the Seattle Department of Construction and Land Use; the Barrier-free Subcode Committee of the New Jersey Uniform Construction Code Advisory Board; the Department of Community Planning, Housing and Development of Arlington County, Virginia; the City of Atlanta Department of Community Development, Bureau of Buildings; and members of the Department of Architecture, the State University of New York at Buffalo. In addition to the foregoing organizations, a number of the commenters from the building industry submitted detailed comments on the proposed guidelines.
The commenters also included a number of disability organizations, several of which prepared detailed comments on the proposed guidelines. The comments of two disability organizations also were submitted as concurring comments by many individuals and other disability advocacy organizations. These two organizations are the Disability Rights Education & Defense Fund, and the Consortium for Citizens with Disabilities (CCD). The CCD represents the following organizations: the Association for Education and Rehabilitation of the Blind and Visually Impaired, Association for Retarded Citizens of the United States, International Association of Psychological Rehabilitation Facilities, National Alliance for the Mentally Ill, National Association of Protection and Advocacy Systems, National Association of Developmental Disabilities Councils, National Association of State Mental Health Program Directors, National Council of Community Mental Health Centers, National HeadInjury Foundation, National Mental Health Association, United Cerebral Palsy Associations, Inc. Both the Disability Rights Education and Defense Fund and the CCD were strongly supportive of Option One.
A coalition of 20 organizations (Coalition), representing both the building industry and the disability community, also submitted detailed comments on the proposed guidelines. The members of the Coalition include: American Institute of Architects, American Paralysis Association, American Resort and Residential Development Association, American Society of Landscape Architects, Apartment and Office Building Association, Association of Home Appliance Manufacturers, Bridge Housing Corporation, Marriott Corporation, Mortgage Bankers Association, National Apartment Association, National Assisted Housing Management Association, National Association of Home Builders (NAHB), National Association of Realtors, National Association of Senior Living Industries, National Conference of States on Building Codes and Standards, National Coordinating Council on Spinal Cord Injury (NCCSCI), National Leased Housing Association, National Multi Housing Council, National Organization on Disability, and the Paralyzed Veterans of America.
The commenters also included U.S. Representatives Don Edwards, Barney Frank and Hamilton Fish, Jr., who advised that they were the primary sponsors of the Fair Housing Act, and who expressed their support of Option One.
Comments on the Three Options
In addition to specific issues and questions raised about the design standards recommended by the proposed guidelines, a number of commenters simply submitted comments on their overall opinion of one or more of the options. Following is a summary of the opinions typically expressed on each of the options.
Option One. The Option One guidelines drew a strong reaction from commenters. Supporters stated that the Option One guidelines provided a faithful and clearly stated interpretation of the Act's intent. Opponents of Option One stated that its design standards would increase housing costs significantly -- for everyone. Several commenters who supported some features of Option One were concerned that adoption of Option One in its entirety would escalate housing costs. Another frequent criticism was that Option One's design guidelines were too complex and cumbersome.
Option Two. Supporters of Option Two stated that this option presented a reasonable compromise between Option One and Option Three. Supporters stated that the Option Two guidelines provided more design flexibility than the Option One guidelines, and that this flexibility would allow builders to deliver the required accessibility features at a lower cost. Opponents of Option Two stated that this option allowed builders to circumvent the Act's intent with respect to several essential accessibility features.
Option Three. Supporters of Option Three stated that Option Three presented the best method of achieving the accessibility objectives of the Act, at the lowest possible cost. Supporters stated that Option Three would contain housing costs, because design adaptation only would be made to those units which actually would be occupied by a disabled resident, and the adaptation would be tailored to the specific accessibility needs of the individual tenant. Opponents of Option Three stated that this option, with its "add-on" approach to accessibility, was contrary to the Act's intent, which, the commenters claimed, mandates accessible features at the time of construction.
Comments on the Costs of Implementation.
In addition to the comments on the specific features of the three design options, one of the issues most widely commented upon was the cost of compliance with the Act's accessibility requirements, as implemented by the Guidelines. Several commenters disputed the Department's estimate of the cost of compliance, as presented in the Initial Regulatory Flexibility Analysis, published with the proposed guidelines on June 15, 1990 (55 FR 24384-24385), and in the Preliminary Regulatory Impact Analysis published on September 7, 1990 (55 FR 37072-37129). The Department's response to these comments is discussed in the Final Regulatory Impact Analysis, which is available for public inspection during regular business hours in the Office of the Rules Docket Clerk, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, S.W., Washington, D.C. 20410-0500.
V. Discussion of Principal Public Comment Issues, and Section-by-Section Analysis of the Final Guidelines
The following presents a discussion of the principal issues raised by the commenters, and the Department's response to each issue. This discussion includes a section-by-section analysis of the final Guidelines that addresses many of the specific concerns raised by the commenters, and highlights the differences between the proposed Option One guidelines and the final Guidelines. Comments related to issues outside the purview of the Guidelines, but related to the Act (e.g., enforcement procedures, statutory effective date), are discussed in the final section of the preamble under the preamble heading "Discussion of Comments on Related Fair Housing Issues".
1. Discussion of General Comments on the Guidelines
Comment. Many commenters expressed their support for the ANSI Standard as the basis for the Act's Guidelines, because ANSI is a familiar and accepted accessibility standard.
Response. In developing the proposed and final Guidelines, the Department was cognizant of the need for uniformity, and of the widespread application of the ANSI Standard. The original ANSI A117.1, adopted in 1961, formed the technical basis for the first accessibility standards adopted by the Federal Government, and most State governments. The 1980 edition of that standard was based on research funded by the Department, and became the basis for the Uniform Federal Accessibility Standards (UFAS), published in the Federal Register on August 4, 1984 (47 FR 33862). The 1980 edition also was generally accepted by the private sector, and was recommended for use in State and local building codes by the Council of American Building Officials. Additionally, Congress, in the Fair Housing Act, specifically referenced the ANSI Standard, thereby encouraging utilization of the ANSI Standard as guidance for compliance with the Act's accessibility requirements. Accordingly, in using the ANSI Standard as a reference point for the Fair Housing Act Accessibility Guidelines, the Department is issuing Guidelines based on existing and familiar design standards, and is promoting uniformity between Federal accessibility standards, and those commonly used in the private sector. However, the ANSI Standard and the final Guidelines have differing purposes and goals, and they are by no means identical. The purpose of the Guidelines is to describe minimum standards of compliance with the specific accessibility requirements of the Act.
Comment. Two commenters suggested that the Department adopt the ANSI Standard as the guidelines for the Fair Housing Act's accessibility requirements, and not issue new guidelines.
Response. The Department has incorporated in the Guidelines those technical provisions of the ANSI Standard that are consistent with the Act's accessibility requirements. However, with respect to certain of the Act's requirements, the applicable ANSI provisions impose more stringent design standards than required by the Act. (In the preamble to the proposed rule (55 FR 3251), and again in the preamble to the proposed guidelines (55 FR 24370), the Department advised that a dwelling unit that complies fully with the ANSI Standard goes beyond what is required by the Fair Housing Act.) The Department has developed Guidelines for those requirements of the Act where departures from ANSI were appropriate.
Comment. A few commenters questioned whether the Department would revise the Guidelines to correspond to ANSI's periodic update of its standard.
Response. The ANSI Standard is reviewed at five-year intervals. As the ANSI Standard is revised in the future, the Department intends to review each version, and, if appropriate, to make revisions to the Guidelines in accordance with any revisions made to the ANSI Standard. Modifications of the Guidelines, whether or not reflective of changes to the ANSI Standard, will be subject to notice and prior public comment.
Comment. A few commenters requested that the Department republish the ANSI Standard in its entirety in the final Guidelines.
Response. The American National Standards Institute (ANSI) is a private, national organization, and is not connected with the Federal Government. The Department received permission from ANSI to print the ANSI Standard in its entirety, at the time of publication of the proposed guidelines (55 FR 24404-24487), specifically for the purpose of assisting readers of the proposed guidelines in developing timely comments. In the preamble to the proposed guidelines, the Department stated that since it was printing the entire ANSI Standard, as an appendix to the proposed guidelines, the final notice of the Accessibility Guidelines would not include the complete text of the ANSI Standard (55 FR 24371). Copies of the ANSI Standard may be purchased from the American National Standards Institute, 1430 Broadway, New York, NY 10018.
Comment. Another commenter requested that the Department confirm that any ANSI provision not cited in the final Guidelines is not necessary for compliance with the Act. Response. In the proposed guidelines, the Department stated that: "Where the guidelines rely on sections of the ANSI Standard, the ANSI sections are cited. * * * For those guidelines that differ from the ANSI Standard, recommended specifications are provided" (55 FR 24385). The final Guidelines include this statement, and further state that the ANSI sections not cited in the Guidelines have been determined by the Department not to be necessary for compliance with the Act's requirements.
Bias Toward Wheelchair Users.
Comment. Two commenters stated that the proposed guidelines were biased toward wheelchair users, and that the Department has erroneously assumed that the elderly and the physically disabled have similar needs. The commenters stated that the physical problems suffered by the elderly often involve arthritic and back problems, which make bending and stooping difficult.
Response. The proposed guidelines, and the final Guidelines, reflect the accessibility requirements contained in the Fair Housing Act. These requirements largely are directed toward individuals with mobility impairments, particularly those who require mobility aids, such as wheelchairs, walkers, or crutches. In two of the Act's accessibility requirements, specific reference is made to wheelchair users. The emphasis of the law and the Guidelines on design and construction standards that are compatible with the needs of wheelchair users is realistic because the requirements for wheelchair access (e.g., wider doorways) are met more easily at the construction stage. (See House Report at 27.) Individuals with non-mobility impairments more easily can be accommodated by later nonstructural adaptations to dwelling units. The Fair Housing Act and the Fair Housing regulations assure the right of these individuals to make such later adaptations. (See Section 804(f)(3)(A) of the Act and 24 CFR 100.203 of the regulations. See also discussion of adaptations made to units in this preamble under the heading "Costs of Adaptation" in the section entitled "Discussion of Comments on Related Fair Housing Issues".)
Compliance Problems Due to Lack of Accessibility Guidelines
Comment. A number of commenters from the building industry attributed difficulty in meeting the Act's March 13, 1991 compliance deadline, in part, to the lack of accessibility guidelines. The commenters complained about the time that it has taken the Department to publish proposed guidelines, and the additional time it has taken to publish final Guidelines.
Response. The Department acknowledges that the development and issuance of final Fair Housing Accessibility Guidelines has been a time-consuming process. However, the building industry has not been without guidance on compliance with the Act's accessibility requirements. The Fair Housing Act identifies the ANSI Standard as providing design standards that would achieve compliance with the Act's accessibility requirements. Additionally, in the preamble to both the proposed and final Fair Housing rule, and in the text of §100.205, the Department provided examples of how certain of the Act's accessibility requirements may be met. (See 53 FR 45004-45005, 54 FR 3249-3252 (24 CFR Ch. I, Subch. A, App. I, at 583-586 (1990)), 24 CFR 100.205.)
The delay in publication of the final Guidelines has resulted, in part, because of the Department's pledge, at the time of publication of the final Fair Housing regulations, that the public would be provided an opportunity to comment on the Guidelines (54 FR 3251, 24 CFR Ch. I, Subch. A, at 585-586 (1990)). The delay in publication of the final Guidelines also is attributable in part to the Department's effort to develop Guidelines that would (1) ensure that persons with disabilities are afforded the degree of accessibility provided for in the Fair Housing Act, and (2) avoid the imposition of unreasonable requirements on builders.
Comment. Two commenters requested that interim accessibility guidelines should be adopted for projects "caught in the middle", i.e. those projects started before publication of the final Guidelines.
Response. The preamble to the June 15, 1990 proposed guidelines and the August 1, 1990 supplementary notice directly addressed this issue. In both documents, the Department recognized that projects being designed in advanceof publication of the Guidelines may not become available for occupancy until after March 13, 1991. The Department advised that efforts to comply with the Option One guidelines, in the design of projects that would be completed before issuance of the final Guidelines, would be considered as evidence of compliance with the Act in connection with the Department's investigation of any complaints. The August 1, 1990 supplementary notice restated the Department's position on compliance with the Act's requirements prior to publication of the final Guidelines, and addressed what "evidence of compliance" will mean in a complaint situation.
Conflict with Historic Preservation Design Codes.
Comment. Two commenters expressed concern about a possible conflict between the Act's accessibility requirements and local historic preservation codes (including compatible design requirements). The commenters stated that their particular concerns are: (1) the conversion of warehouse and commercial space to dwelling units; and (2) new housing construction on vacant lots in historically designated neighborhoods.
Response. Existing facilities that are converted to dwelling units are not subject to the Act's accessibility requirements. Additionally, alteration, rehabilitation or repair of covered multifamily dwellings are not subject to the Act's accessibility requirements. The Act's accessibility requirements only apply to new construction. With respect to new construction in neighborhoods subject to historic codes, the Department believes that the Act's accessibility requirements should not conflict with, or preclude building designs compatible with historic preservation codes.
Conflict with Local Accessibility Codes.
Comment. Several commenters inquired about the appropriate course of action to follow when confronted with a conflict between the Act's accessibility requirements and local accessibility requirements.
Response. Section 100.205(i) of the Fair Housing regulations implements Section 804(f)(8) of the Act, which provides that the Act's accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards (53 FR 45005). For accessibility standards, as for other code requirements, the governing principle to follow when Federal and State (or local) codes differ is that the more stringent requirement applies.
This principle is equally applicable when multifamily dwellings are subject to more than one Federal law requiring accessibility for persons with physical disabilities. For example, a multifamily dwelling may be subject both to the Fair Housing Amendments Act and to Section 504 of the Rehabilitation Act of 1973. Section 504 requires that 5% of units in a covered multifamily dwelling be fully accessible -- thus imposing a stricter accessibility standard for those units than would be imposed by the Fair Housing Act. However, compliance only with the Section 504 requirements would not satisfy the requirements of the Fair Housing Act. The remaining units in he covered multifamily dwelling would be required to meet the specific accessibility requirements of the Fair Housing Act.
Comment. One commenter, the Seattle Department of Construction and Land Use, presented an example of how a local accessibility code that is more stringent with respect to some accessibility provisions may interact with the Act's accessibility requirements, where they are more stringent with respect to other provisions. The commenter pointed out that the State of Washington is very hilly, and that the State of Washington's accessibility code requires accessible buildings on sites that would be deemed impractical under the Option One guidelines. The commenter stated that the State of Washington's accessibility code may require installation of a ramp, and that the ramp may then create an accessible entrance for the ground floor, making it subject to the Act's accessibility requirements. The commenter asked that, since the project was not initially subject to the Act's requirements, whether the creation of an accessible ground floor in accordance with the State code provisions would require all units on the ground floor to be made accessible in accordance with the Fair Housing Act. (The State of Washington's accessibility code would require only a percentage of the units to be accessible.)
Response. The answer to the commenter's question is that a nonelevator building with an accessible entrance on an accessible route is required to have the ground floor units designed and constructed in compliance with the Act's accessibility requirements. This response is consistent with the principle that the stricter accessibility requirement applies.
Design Guidelines for Environmental Illness
Comment. Twenty-three (23) commenters advised the Department that many individuals are disabled because of severe allergic reactions to certain chemicals used in construction, and in construction materials. These commenters requested that the Department develop guidelines for constructing or renovating housing that are sensitive to the problems of individuals who suffer from these allergic reactions (commonly referred to as environmental illnesses). These commenters further advised that, as of February 1988, the Social Security Administration lists as a disability "Environmental Illness" (P.O.M.S. Manual No. 24515.065).
Response. The Guidelines developed by the Department are limited to providing guidance relating to the specific accessibility requirements of the Fair Housing Act. As discussed above, under the preamble heading "Bias Toward Wheelchair Users," the Act's requirements primarily are directed to providing housing that is accessible to individuals with mobility impairments. There is no statutory authority for the Department to create the type of design and construction standards suggested by the commenters.
Design Guidelines for the Hearing and Visually-Impaired
Comment. Several commenters stated that the proposed guidelines failed to provide design features for people with hearing and visual impairments. These commenters stated that visual and auditory design features must be included in the final Guidelines.
Response. As noted in the response to the preceding comment, the Department is limited to providing Guidelines for the specific accessibility requirements of the Act. The Act does not require fully accessible individual dwelling units. For individual dwelling units, the Act requires the following: doors sufficiently wide to allow passage by handicapped persons in wheelchairs; accessible route into and through the dwelling unit; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforcements in bathroom walls to allow later installation of grab bars; and usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. To specify visual and auditory design features for individual dwelling units would be to recommend standards beyond those necessary for compliance with the Act. Such features were among those identified in Congressional statements discussing modifications that would be made by occupants.
The Act, however, requires public and common use portions of covered multifamily dwellings to be "readily accessible to and usable by handicapped persons." The more comprehensive accessibility requirement for public and common use areas of dwellings necessitates a more comprehensive accessibility standard for these areas. Accordingly, for public and common use areas, the final Guidelines recommend compliance with the appropriate provisions of the ANSI Standard. The ANSI Standard for public and common use areas specifies certain design features to accommodate people with hearing and visual impairments.
Guidelines as Minimum Requirements
Comment. A number of commenters requested that the Department categorize the final Guidelines as minimum requirements, and not as performance standards, because "recommended" guidelines are less effective in achieving the objectives of the Act. Another commenter noted that a safe harbor provision becomes a de facto minimum requirement, and that it should therefore be referred to as a minimum requirement.
Response. The Department has not categorized the final Guidelines as either performance standards or minimum requirements. The minimum accessibility requirements are contained in the Act. The Guidelines adopted by the Department provide one way in which a builder or developer may achieve compliance with the Act's accessibility requirements. There are other ways to achieve compliance with the Act's accessibility requirements, as for example, full compliance with ANSI A117.1. Given this fact, it would be inappropriate on the part of the Department to constrain designers by presenting the Fair Housing Accessibility Guidelines as minimum requirements. Builders and developers should be free to use any reasonable design that obtains a result consistent with the Act's requirements. Accordingly, the design specifications presented in the final Guidelines are appropriately referred to as "recommended guidelines".
It is true, however, that compliance with the Fair Housing Accessibility Guidelines will provide builders with a safe harbor. Evidence of compliance with the Fair Housing Accessibility Guidelines adopted by this notice shall be a basis for a determination that there is no reasonable cause to believe that a discriminatory housing practice under Section 804(f)(3) has occurred or is about to occur in connection with the investigation of complaints filed with the Department relating to covered multifamily dwellings.
National Accessibility Code
Comment. Several commenters stated that there are too many accessibility codes -- ANSI, UFAS, and State and local accessibility codes. These commenters requested that the Department work with the individual States to arrive at one national uniform set of accessibility guidelines.
Response. There is no statutory authority to establish one nationally uniform set of accessibility standards. The Department is in agreement with the commenters' basic theme that increased uniformity in accessibility standards is desirable. In furtherance of this objective, the Department has relied upon the ANSI Standard as the design basis for the Fair Housing Accessibility Guidelines. The Department notes that the ANSI Standard also serves as the design basis for the Uniform Federal Accessibility Standards (UFAS), the Minimum Guidelines and Requirements for Accessible Design (MGRAD) issued by the U.S. Architectural and Transportation Barriers Compliance Board, and many State and local government accessibility codes.
One Set of Design Standards
Comment. A number of commenters objected to the fact that the proposed guidelines included more than one set of design standards. The commenters stated that the final Guidelines should present only one set of design standards so as not to weaken the Act's accessibility requirements.
Response. The inclusion of options for accessibility design in the proposed guidelines was both to encourage a maximum range of public comment, and to illustrate that there may be several ways to achieve compliance with the Act's accessibility requirements. Congress made clear that compliance with the Act's accessibility standards did not require adherence to a single set of design specifications. In Section 804(f)(4) of the Act, the Congress stated that compliance with the appropriate requirements of the ANSI Standard suffices to satisfy the accessibility requirements of the Act. In House Report No. 711, the Congress further stated as follows:
"However this section [Section 804(f)(4)] is not intended to require that designers follow this standard exclusively, for there may be other local or State standards with which compliance is required or there may be other creative methods of meeting these standards." (House Report at 27)
Similarly, the Department's Guidelines are not the exclusive standard for compliance with the Act's accessibility requirements. Since the Department's Guidelines are a safe harbor, and not minimum requirements, builders and developers may follow alternative standards that achieve compliance with the Act's accessibility requirements. This policy is consistent with the intent of Congress, which was to encourage creativity and flexibility in meeting the requirements of the Act.
Reliance on Preamble to Guidelines
Comment. One commenter asked whether the explanatory information in the background section of the final Guidelines may be relied upon, and deemed to have the same force and effect as the Guidelines themselves.
Response. The Fair Housing Accessibility Guidelines are -- as the name indicates -- only guidelines, not regulations or minimum requirements. The Guidelines consist of recommended design specifications for compliance with the specific accessibility requirements of the Fair Housing Act. The final Guidelines provide builders with a safe harbor that, short of specifying all of the provisions of the ANSI Standard, illustrate acceptable methods of compliance with the Act. To the extent that the preamble to the Guidelines provides clarification on certain provisions of the Guidelines, or illustrates additional acceptable methods of compliance with the Act's requirements, the preamble may be relied upon as additional guidance. As noted in the "Summary" portion of this document, the preamble to the Guidelines will be codified in the 1991 edition of the Code of Federal Regulations as Appendix III to the Fair Housing regulations (24 CFR Ch. I, Subch. A, App. III.).
"User Friendly" Guidelines
Comment. A number of commenters criticized the proposed guidelines for being too complicated, too ambiguous, and for requiring reference to a number of different sources. These commenters requested that the final Guidelines be clear, concise and "user friendly". One commenter requested that the final Guidelines use terms that conform to terms used by each of the three major building code organizations: the Building Officials and Code Administrators International, Inc. (BOCA); the International Conference of Building Officials (ICBO), and the Southern Building Code Congress International (SBCCI). Response. The Department recognizes that the Accessibility Guidelines include several highly technical provisions. In drafting the final Guidelines, the Department has made every effort to explain these provisions as clearly as possible, to use technical and building terms consistent with the terms used by the major building code organizations, to define terms clearly, and to provide additional explanatory information on certain of the provisions of the Guidelines.
2. Section-by-Section Analysis of Final Guidelines
The following presents a section-by-section analysis of the final Guidelines. The text of the final Guidelines is organized into five sections. The first four sections of the Guidelines provide background and explanatory information on the Guidelines. Section 1, the Introduction, describes the purpose, scope and organization of the Guidelines. Section 2 defines relevant terms used. Section 3 reprints the text of 24 CFR 100.205, which implements the Fair Housing Act's accessibility requirements, and Section 4 describes the application of the Guidelines. Section 5, the final section, presents the design specifications recommended by the Department for meeting the Act's accessibility requirements, as codified in 24 CFR 100.205. Section 5 is subdivided into seven areas, to address each of the seven areas of accessible design required by the Act.
The following section-by-section analysis discusses the comments received on each of the sections of the proposed Option One Guidelines, and the Department's response to these comments. Where no discussion of comments is provided under a section heading, no comments were received on this section.
Section 1. Introduction
Section 1, the Introduction, describes the purpose, scope and organization of the Fair Housing Accessibility Guidelines. This section also clarifies that the accessibility guidelines apply only to the design and construction requirements of 24 CFR 100.205, and do not relieve persons participating in a federal or federally-assisted program or activity from other requirements, such as those required by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). (The design provisions for those laws are found at 24 CFR Part 8 and 24 CFR Part 40, respectively.) Additionally, Section 1 explains that only those sections of the ANSI Standard cited in the Guidelines are required for compliance with the accessibility requirements of the Fair Housing Act. Revisions to Section 1 reflect the Department's response to the request of several commenters for further clarification on the purpose and scope of the Guidelines.
Section 2. Definitions
This section incorporates appropriate definitions from 100.201 of the Department's Fair Housing regulations, and provides additional definitions for terms used in the Guidelines. A number of comments were received on the definitions. Clarifications were made to certain definitions, and additional terms were defined. New terms defined in the final Guidelines include: "adaptable," "assistive device," "ground floor," "loft," "multistory dwelling unit," "single-story dwelling unit," and "story". The inclusion of newdefinitions reflects the comments received, and also reflects new terms introduced by changes to certain of the Option One design specifications. In several instances, the clarifications of existing definitions, or the new terms defined, were derived from definitions of certain terms used by one or more of the major building code organizations. Comments on specific definitions are discussed either below or in that portion of the preamble under the particular section heading of the Guidelines in which these terms appear.
Comment. A number of commenters stated that the Department used the terms "accessible" and "adaptable" interchangeably, and requested clarification of the meaning of each. The commenters noted that, under several State building codes, these terms denote different standards for compliance. The commenters requested that if the Department intends these two terms to have the same meaning, this should be clearly stated in the final Guidelines, and, if the terms have different meanings, "adaptable" should also be defined.
Response. The Department's use of the terms "adaptable" and "accessible" in the preamble to the proposed guidelines generally reflected Congress' use of the terms in the text of the Act, and in the House and Senate conference reports. However, to respond to commenters' concerns about the distinctions between these terms, the Department has included a definition of "adaptable dwelling units" to clarify the meaning of this term, within the context of the Fair Housing Act. In the final Guidelines, "adaptable dwelling units", when used with respect to covered multifamily dwellings, means dwelling units that include features of adaptable design specified in 24 CFR 100.205(c)(2)-(3).
The Fair Housing Act refers to design features that include both the minimal "accessibility" features required to be built into the unit, and the "adaptable" feature of reinforcement for bathroom walls for the futureinstallation of grab bars. Accordingly, under the Fair Housing Act, an "adaptable dwelling unit" is one that meets the minimal accessibility requi