FR Doc 05-3640

[Federal Register: February 28, 2005 (Volume 70, Number 38)]
[Notices]
[Page 9737-9749]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe05-148]

[[Page 9737]]

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Part III

Department of Housing and Urban Development

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Final Report of HUD Review of the Fair Housing Accessibility
Requirements in the 2003 International Building Code; Notice

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4943-N-02]

Final Report of HUD Review of the Fair Housing Accessibility
Requirements in the 2003 International Building Code

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

ACTION: Notice.

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SUMMARY: The purpose of this notice is to present a final report of the
Department of Housing and Urban Development's review of certain
accessibility provisions of the International Building Code, 2003
edition (2003 IBC), published by the International Code Council
(ICC).\1\ ICC requested that the Department review the accessibility
provisions of the 2003 IBC to determine whether those provisions are
consistent with the accessibility requirements of the Fair Housing Act
(the Act), the regulations implementing the 1988 Amendments to the Act,
and the Fair Housing Accessibility Guidelines (the Guidelines) and,
therefore, that the 2003 IBC could be recognized by the Department as a
safe harbor for compliance with the law.
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\1\ The 2003 International Building Code (8(copyright)) is a
copyrighted work owned by the International Code Council, Inc.
Quotations are included in this notice by permission of the Council.
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The Department published a draft report on its review of the
accessibility provisions of the 2003 IBC on August 6, 2004, soliciting
comments on preliminary findings made by a Departmental Task Force that
identified eight issues in which it appeared that the 2003 IBC was not
consistent with the Act or the Guidelines, and an additional issue
(Issue 9) which related to changes made to the 2003 IBC in the 2004
Supplement.
The Task Force reviewed and analyzed the comments responding to the
draft report. Based on this analysis, of the eight issues that apply to
the 2003 IBC, the Department has concluded that it can withdraw seven
of its areas of concern, leaving one major issue that is clearly
inconsistent with the Act and the Guidelines.
The Department is aware of the benefits of having a more recent
edition of the IBC recognized by the Department as a safe harbor for
compliance with the Act. Then buildings will be built with the
accessible features required by the Act. Rather than declining to grant
safe harbor status to the 2003 IBC in total, the Department has decided
to grant safe harbor status conditioned upon ICC publishing and
distributing a statement to jurisdictions and past and future
purchasers of the 2003 IBC stating that:

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.

The Department expects that ICC will publish and disseminate this
statement in the following ways:
1. Placement on its Web site, especially on pages where technical
aspects of 2003 IBC are described;
2. Including the statement with all versions of 2003 IBC that are
distributed 30 days after publication of HUD's final report;
3. Within 45 days of the publication of HUD's final report, sending
the statement by U.S. Mail or e-mail to jurisdictions and individuals
on ICC's marketing lists for code materials, and
4. Providing the statement orally or in writing whenever technical
assistance is provided concerning the 2003 IBC requirements for
accessible routes between site arrival points and accessible building
entrances.
During the next code change cycle, if ICC seeks to have the 2006
edition of the IBC declared a safe harbor, ICC must modify the IBC to
clearly state, in a manner acceptable to the Department, that an
accessible pedestrian route must be provided from site arrival points
to accessible building entrances of buildings required to provide Type
B dwelling units, unless site impracticality applies.
The Department's final report is intended to provide technical
assistance to ICC and other interested parties. The Department is not
promulgating any new technical requirements or standards by way of this
final report, nor is this final report an endorsement of a model
building code. The Department recognizes however, that one important
way to increase compliance with the design and construction
requirements of the Act is to incorporate those requirements into state
and local building codes.

FOR FURTHER INFORMATION CONTACT: Cheryl Kent, Special Advisor for
Disability Policy, Office of Fair Housing and Equal Opportunity,
Department of Housing and Urban Development, 451 Seventh Street, SW.,
Room 5240, Washington, DC 20410-0500; telephone (202) 708-2333,
extension 7058 (voice). (This is not a toll free number.) Hearing- or
speech-impaired individuals may access this number TTY by calling the
toll-free Federal Information Relay Service at 1-800-877-8339 (TTY).
Location of Documents: This final report is located at http://www.hud.gov/offices/fheo/disabilities/modelcodes/.
The Fair Housing

Act, the Fair Housing Act regulations, and the Fair Housing
Accessibility Guidelines can also be obtained through links provided at
this Web site.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Fair Housing Act Accessibility Provisions

Title VIII of the Civil Rights Act (the Fair Housing Act) (42
U.S.C. 3601 et seq.) prohibits discrimination in housing and housing-
related transactions based on race, color, religion, national origin,
sex, familial status, and disability.\2\ In its 1988 Amendments to the
Act, Congress provided that all covered multifamily dwellings built for
first occupancy after March 13, 1991 shall be designed and constructed
so that: (1) The public and common use portions of such dwellings are
readily accessible to and usable by persons with disabilities; (2) all
the doors designed to allow passage into and within all premises within
such dwellings are sufficiently wide to allow passage by disabled
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. (42
U.S.C. 3604(f)(3)(C)). These basic accessibility requirements are known
as the Act's design and construction requirements.
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\2\ The Fair Housing Act refers to people with ``handicaps.''
Subsequently, in the Americans with Disabilities Act of 1990 and
other legislation, Congress adopted the term ``persons with
disabilities,'' or ``disability,'' which is the preferred usage.
Accordingly, this Report hereinafter uses the terms ``persons with
disabilities,'' ``disability,'' or ``disabled.''
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The Act does not set forth specific technical design criteria that
have to be followed in order to comply with the design and construction
requirements. It does provide, however, that compliance with the
appropriate requirements of the ``American National Standard for
buildings and facilities providing

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accessibility and usability for physically handicapped people,''
commonly referred to as ANSI A117.1, satisfies the Act's design and
construction requirements for the interiors of dwelling units (42
U.S.C. 3604(f)(4)).
In 1989, the Department issued its regulations implementing the
design and construction requirements of the Act. 24 CFR 100.205. In the
regulations, the Department specifically stated that compliance with
the appropriate requirements of ANSI A117.1-1986 satisfies the
technical requirements of the Act relating to interiors of dwelling
units. 24 CFR 100.205(e). In addition, the Department's regulations
reference the requirements of ANSI A117.1-1986 as a means of compliance
with respect to the following features of covered multifamily
dwellings: (a) public and common use areas, (b) accessible routes, and
(c) building entrances on an accessible route. (24 CFR 100.201).
Congress directed the Secretary of HUD to ``provide technical
assistance to states and units of local government and other persons to
implement [the design and construction requirements].'' (42 U.S.C.
3604(f)(5)(C)). Over the last 13 years, the Department has undertaken
numerous activities to provide technical guidance and has published
several technical guidance documents. For example, on March 6, 1991,
the Department published the ``Final Fair Housing Accessibility
Guidelines'' (56 FR 9472-9515), which set forth specific technical
guidance for designing covered multifamily dwellings to be consistent
with the Act. Section I of the Guidelines states: ``These guidelines
are intended to provide a safe harbor for compliance with the
accessibility requirements of the Fair Housing Act.'' (56 FR at 9499).
On June 24, 1994, the Department published its ``Supplement to
Notice of Fair Housing Accessibility Guidelines: Questions and Answers
about the Guidelines'' (59 FR 33362-33368). The Department published a
Fair Housing Act Design Manual (Design Manual) in 1996 that was
reissued in 1998 with minor changes. The Design Manual is also a safe
harbor for compliance with the Act.
The Act states that Congress did not intend the Department to
require states and units of local government to include the Act's
accessibility requirements in their state and local procedures for the
review and approval of newly constructed covered multifamily dwellings
(42 U.S.C. 3604(f)(5)(C)). However, Congress authorized the Department
to encourage the inclusion of these requirements into their state and
local procedures. Id.
The Department's review of model codes falls within its mandate to
provide technical assistance to state and local governments to
incorporate the design and construction requirements of the Act into
their laws and procedures for review and approval of newly constructed
multifamily dwellings.\3\ In the course of its review of model codes
over the past several years, the Department has made every effort to
ensure that any code or version of a code it deems a safe harbor
provides at least the same level of accessibility that is required
under the Act.
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\31\ The Act also makes it clear that it does not invalidate or
limit any other state or federal laws that require dwellings to be
designed or constructed in a manner that affords persons with
disabilities greater access than that required under the Act. 42
U.S.C. 3604(f)(8). Further, federally funded facilities and dwelling
units covered by section 504 of the Rehabilitation Act of 1973
(Section 504), the Architectural Barriers Act (ABA), the Uniform
Federal Accessibility Standard, or the Americans with Disabilities
Act (ADA), must comply with the regulatory requirements of those
laws in addition to the requirements of the Act, when applicable.
For Section 504, regulatory requirements may be found at 24 CFR part
8; for the ABA, 24 CFR part 40; and for the ADA, 28 CFR parts 35
and/or 36, as applicable.
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B. The 2000 International Building Code, 2001 Supplement to the
International Codes and the Code Requirements for Housing Accessibility

The International Building Code (IBC) represents an effort to bring
national uniformity to building codes. Representatives of three
national model code bodies developed drafts of the proposed code under
the auspices of the International Code Council (ICC), an umbrella
organization created in 1994 to assist common code development. The IBC
includes provisions for accessibility intended to reflect the intent of
the Act, the regulations, and the Guidelines.
Unlike the Act, the IBC is a model building code and not a law. It
provides minimum standards for public safety, health, and welfare as
they are affected by building construction. Compliance with the IBC or
any other model code is not required unless adopted by a state or local
jurisdiction's governing body. A jurisdiction may adopt a model
building code in its entirety or with modifications.
With respect to housing, the IBC contains requirements for three
different types of accessible dwelling units, which include sleeping
units when such units are used as a residence. The most accessible of
these three types is an ``Accessible Unit,'' which is wheelchair
accessible and meets the requirements of those chapters of the ICC/ANSI
A117.1-1998 standard that apply to numerous types of buildings, and not
just dwelling units. A second level of accessibility is set forth in
the requirements for ``Type A'' dwelling units. Under the IBC, a
percentage of units must provide for a high level of accessibility,
especially in kitchens and bathrooms, but will also have some features
of adaptability. The third level of accessibility is a ``Type B''
dwelling unit, which is a unit that is intended to comply with those
features of accessible and adaptable design required under the Fair
Housing Act. The requirements set forth for Type B dwelling units apply
to a greater number of dwelling units in a building but do not require
as great a level of accessibility as Type A dwelling units, and instead
provide a basic degree of accessibility as well as some features of
adaptable design, particularly in kitchens and bathrooms.
In 1999, at the request of the model code organizations, the
Department reviewed three existing model building codes and the draft
2000 International Building Code (2000 IBC) for the purpose of
determining if these codes met the design and construction requirements
in the Act. In conjunction with its review of the model building codes,
the Department also reviewed the 1992 and 1998 editions of ANSI A117.1
(CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998).
On March 23, 2000, the Department published its Final Report of HUD
Review of Model Building Codes in the Federal Register (65 FR 15740).
This report concluded that with revisions, the 2000 IBC could be made
consistent with the Act's design and construction requirements. In this
report, the Department also stated that it reviewed the 1992 CABO/ANSI
A117.1 and the 1998 ICC/ANSI A117.1, and believes that CABO/ANSI
A117.1-1992 and ICC/ANSI A117.1-1998 are consistent with the Act and
are additional safe harbors for compliance with the Act's technical
accessibility requirements. It is important to note, however, that ANSI
A117.1 contains only technical criteria, whereas the Act, the
implementing regulations, and the Guidelines contain both ``scoping''
and technical criteria. Scoping criteria define when a building element
or space must be accessible; technical criteria provide the technical
specifications on how to make an element accessible. Therefore,
designers and builders relying on ANSI A117.1 also need to consult the
Act, the Department's regulations, and the Guidelines for the scoping
criteria.
Following publication of this report, at the request of a group of
representatives from ICC, major building industry groups and disability
advocacy groups, the Department provided

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technical assistance to ICC in developing code text changes to address
HUD's concerns with the accessibility provisions in the code. The
resulting code text changes were incorporated into the IBC in the 2001
Supplement to the International Codes. In addition, at the request of
this same group of representatives, HUD provided technical assistance
to ICC in the review of a document that compiled all of the housing-
related accessibility provisions in the 2000 IBC as amended by the 2001
Supplement in a separate, stand-alone document which also includes
related commentary entitled, ``Code Requirements for Housing
Accessibility'' (CRHA), published by ICC in October 2000. The ICC
subsequently issued an errata sheet to the CRHA. This errata sheet
includes corrections that are reflected in the 2001 Supplement to the
IBC.
Based upon HUD's review, the 2000 IBC, as amended by the 2001
Supplement, and the CRHA have been deemed by the Department to
constitute additional safe harbors for compliance with the design and
construction requirements of the Act.

II. HUD-Recognized Safe Harbors for Compliance With the Fair Housing
Act Design and Construction Requirements

As a result of the review and subsequent actions outlined above,
the Department has recognized seven documents as safe harbors for
compliance with the Act's design and construction requirements. These
documents are:
1. Fair Housing Accessibility Guidelines, March 6, 1991, in
conjunction with the June 28, 1994 Supplement to Notice of Fair Housing
Accessibility Guidelines: Questions and Answers About the Guidelines;
2. Fair Housing Act Design Manual, published by HUD in 1996,
updated in 1998;
3. ANSI A117.1-1986, Accessible and Usable Buildings and
Facilities, 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, 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, in conjunction with the Fair Housing Act, HUD's
regulations, and the Guidelines for the scoping requirements;
6. 2000 ICC Code Requirements for Housing Accessibility (CRHA),
published by the International Code Council (ICC), October 2000; and
7. 2000 International Building Code (IBC), as amended by the 2001
Supplement to the International Building Code.
If a state or locality has adopted one of the above documents,
covered residential buildings that are built to those specifications
will be designed and constructed in accordance with the Act as long as
the building code official does not waive or incorrectly interpret or
apply one or more of those requirements. See HUD Policy Statement, 65
FR 15756 (March 23, 2000).

III. The 2003 International Building Code Review and Comment Process

The International Building Code is updated on a regular basis by
means of a code development process. Under this process, any interested
person may submit proposed changes to the code and participate in the
proceedings under which proposed changes are considered for adoption.
At present, ICC is utilizing an 18-month development cycle. Changes
approved during the 2003/2004 code development cycle will appear in the
2004 Supplement; followed by another 18-month cycle that will result in
the 2006 IBC.
ICC contacted HUD in 2003 to request that HUD review the
accessibility requirements contained in the 2003 IBC to make a
determination as to whether the 2003 IBC would also be deemed a safe
harbor for compliance with the Act's design and construction
requirements. The Department convened a Task Force that consisted of
representatives of HUD's Offices of Fair Housing and Equal Opportunity
and General Counsel, and the Department of Justice's (DOJ) Civil Rights
Division, Housing and Civil Enforcement Section, to review the changes
to the 2003 IBC from the 2000 IBC, as amended by the 2001 Supplement,
to ascertain whether, with those changes, the 2003 IBC meets the
accessibility requirements of the Act.
The Task Force was provided with a matrix and a briefing by ICC
representatives concerning the changes to the accessibility provisions
reflected in the 2003 IBC. The Task Force did not review any other
sections of the 2003 IBC except as necessary to analyze the changed
provisions identified by the ICC. The Task Force consulted only with
the ICC during its preliminary review, because that organization is the
official interpreter of the code. However, in order to ensure the
possibility of receiving input from the broadest range of interested
individuals and groups, the Department published a draft report in the
Federal Register on August 6, 2004 (69 FR 47947) with a request for
comments on the recommendations as well as on any other sections of the
2003 IBC that may be of concern to members of the public.
HUD received comments from forty-six individuals and organizations.
Those comments are discussed in the section-by-section analysis of this
Final Report. The ICC, the National Association of Homebuilders (NAHB),
and the United Spinal Association commented on all of the issues that
the Department had identified as problematic in granting safe harbor
status to the 2003 IBC. Other organizations, including Paralyzed
Veterans of America and R. C. Quinn Consulting, Inc., commented on some
of the provisions.
In addition, HUD received a number of comments that did not
specifically relate to the recommendations in the Draft Report, but
which related to the enforcement of the Act and the Guidelines in
general. Since the Task Force's charge was only to address whether the
2003 IBC could qualify as a safe harbor, a response to those comments
is beyond the scope of this Final Report.

IV. Overview of Comments, Final Analysis, and Conclusions

HUD's draft report identified eight sections of the 2003 IBC that
the Department's Task Force determined may not be consistent with the
requirements of the Act and the Guidelines. In addition, the draft
report identified certain issues of concern to the Task Force that did
not directly affect safe harbor status of the 2003 IBC. All of these
issues are individually discussed in the section-by-section analysis
under Part V, below.
Several organizations, including the ICC, submitted comments
referring the Department to Section 102.1 of the 2003 IBC. That
provision reads:

102.1 General. Where, in any specific case, different sections of
this code specify different materials, methods of construction or
other requirements, the most restrictive shall govern. Where there
is a conflict between a general requirement and a specific
requirement, the specific requirement shall be applicable.

As the section-by-section analysis that follows demonstrates, the
Department understands that Section 102.1 of the 2003 IBC requires code
officials to interpret the accessibility sections in Chapters 10 and 11
of the 2003 IBC in a manner that ensures that the code section with the
highest level of accessibility applies in any given circumstance. With
that understanding,

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the Department has withdrawn many of the concerns contained in the
draft report.
In addition, many of the comments the Department received pointed
out that the code changes to the 2003 IBC were the result of the ICC's
efforts to incorporate the accessibility requirements of the Americans
with Disabilities Act of 1990 and the ADA Accessibility Guidelines. The
Department understands the importance of taking steps to harmonize the
federal government's requirements for facilities that are subject to
the ADA with accessibility requirements used by the private sector and
supports the ICC's efforts in that regard. In those instances where
such efforts had the unintended consequence of apparently conflicting
with the accessible design and construction requirements of the Act,
the Department's comments focused on clarifications that would achieve
consistency with Act's design and construction requirements without
undermining the provisions in the code addressing ADA requirements. The
Department has concluded that, with one exception, any perceived
conflicts between 2003 IBC language intended to incorporate ADA
standards and the Act's requirements are resolved by the application of
Section 102.1 of the 2003 IBC.

V. Analysis

A. General--Use of the Term ICC/ICC/ANSI A117.1-1998

In the draft report, HUD had noted that the 2003 IBC does not use
the full acronym ICC/ANSI A117.1-1998 throughout the code, and instead
uses ``ICC A117.1.'' Because the Act and the Guidelines reference the
``ANSI'' standard, the Department had recommended that the next edition
of the IBC be revised to include ``ANSI'' in the abbreviation that is
used in the text throughout various chapters of the code, as has been
done in previous versions.
The Department received two comments in response to this
recommendation, both opposing the recommended change and explaining
that the American National Standards Institute (ANSI) no longer
promulgates standards as it did when the Act and the Guidelines were
drafted. Currently the promulgator of the A117.1 standard is the ICC,
and ANSI is only the accrediting group for the standard. The commenters
explained that the current convention in all ICC codes is to reference
the promulgator (development secretary and publisher) of the standards,
and not the process or accrediting group.
Based on the comments received and the fact that the 2003 IBC does
reference ICC/ANSI A117.1-1998 in Chapter 3, Referenced Standards, page
591, the Department withdraws this recommendation.

B. 2003 IBC Provisions Identified in Draft Report That Were of Concern
to the Department as Not Meeting Accessibility Requirements

1. Chapter 10: Means of Egress; Section 1008.1.4, Floor Elevation:
Exception 3
The draft report concluded that Exception 3 to Section 1008.1.4 of
the 2003 IBC did not meet the accessibility requirements of the Act and
the Guidelines and recommended that it be revised to add clarifying
language such as that in the 2003 IBC Commentary (Commentary). Based
upon the Task Force analysis of the comments received about this issue,
the Department has concluded that this section of the 2003 IBC does not
preclude recognition of the Code as a safe harbor.
Section 1008.1.4, entitled ``Floor elevation,'' specifies the
general requirement that there be a level landing on each side of a
door. Exception 3 exempts Group R-3 occupancies from this requirement,
permitting a landing at an exterior door of up to 7\3/4\ inches. Since
Group R-3 occupancies include multilevel townhouses with interior
elevators and group homes that do not operate as a single-family
residence, the Department concluded that Exception 3 permits these
structures to have a step of up to 7\3/4\ inches at their exterior
doors, thus leading to less accessibility than is required by the Act
and the Guidelines. Although the Commentary for Exception 3 explains
that the exception does not apply to the primary entrance door or to
exterior doors that open to decks, patios or balconies in Type B
dwelling or sleeping units. See Commentary, p. 10-39. Exception 3
itself does not contain similar limiting language.
The commenters, including the ICC, generally did not agree with the
draft report's conclusion that Exception 3 to Section 1008.1.4 is
inconsistent with the Act and HUD's Guidelines. They stated that
Exception 3 is not applicable to covered multifamily dwellings under
the Act. To support this conclusion, they first noted that Section
102.1 of the IBC provides that if different sections of the IBC specify
different requirements, ``the most restrictive shall govern.'' They
note further that because other provisions in the IBC require
accessible entrances and accessible routes to Type B units, and thus
are more restrictive than Section 1008.1.4 Exception 3, the more
restrictive provisions apply and nullify Exception 3. As one example,
the commenters, including the ICC, pointed to Section 1107.4, which by
virtue of Section 102.1, mandates an accessible route at the primary
entrance of all Type B units. Thus, Group R-3 occupancies that are
required to be designed and constructed as Type B accessible dwellings,
including a multilevel townhouse with an interior elevator and a group
home that does not operate as a single-family residence, must have
primary entrances on an accessible route. In other words, these
dwellings are not permitted to have a landing of up to 7\3/4\ inches at
their exterior doors.
The commenters provided the following additional examples of other
provisions that supersede Exception 3: (1) Section 1107.2, because it
mandates that Type B units comply with the applicable portions of ICC
A117.1, Chapter 10, which requires, inter alia, an accessible primary
entrance on an accessible route from public and common areas (see ICC
A117.1 Section 1003.2, 1998 Edition); (2) Section 1104.3, which
mandates when a building or portion thereof is required to be
accessible, an accessible route must be provided to each portion of the
building, to accessible building entrances connecting accessible
pedestrian walkways, and to the public way; (3) Section 1107.3, because
it specifies that rooms and spaces available for use by residents,
including ``any exterior spaces, including patios, terraces and
balconies'' must be accessible; and (4) Section 1008.1.4 Exception 5,
which permits a 4-inch, not a 7\3/4\-inch, landing at exterior decks,
patios or balconies made of impervious surfaces.
The Department has carefully considered the above comments and
determined that it agrees that the provisions discussed above
sufficiently supersede Exception 3 of Section 1008.1.4 with respect to
Type B dwelling units in buildings subject to the Act. Therefore, the
Department withdraws its earlier finding that the Exception may be
problematic.
Some of the commenters stated that they believed that the Act's
design and construction requirements do not apply to townhouses with
interior elevators in multifamily buildings of four or more dwellings
or group homes with four or more units. This is incorrect. It has been
the Department's longstanding position that the Act's design and
construction requirements include townhouses with interior elevators if
those townhouses are part of multifamily buildings of four or more
units. HUD's position on this

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has been stated in numerous public documents. (See, e.g., 54 FR 3244,
3251 (January 23, 1989) preamble to the Department's regulations
implementing the Act; 55 FR 24377 (June 15, 1990) preamble to proposed
Guidelines; 56 FR 9481 preamble to Guidelines; 59 FR 33362-68 (June 28,
1994) Supplement to Notice of Fair Housing Accessibility Guidelines:
Questions and Answers About the Guidelines, Question 13.) In addition,
this view is acknowledged in ICC's ``Code Requirements for Housing
Accessibility,'' Commentary to Section 406.7.2 (IBC 1107.7.2).
In addition, the Act's design and construction requirements apply
to group homes that do not operate as single-family residences. This
was discussed in detail in the policy statement in the Department's
Final Report on IBC 2000. (See 65 FR 15745, 15759 (March 23, 2000). The
Department also notes that the 2003 IBC is consistent with this
approach. Group homes with four or more sleeping units and five or
fewer residents are characterized as Group R-3 and are required to meet
the Act's design and construction requirements. Such group homes are
not, as two commenters asserted, Group R-4 occupancies, i.e.,
residential care/assisted living facilities with six to sixteen
occupants.
2. Section 1008.1.6, Thresholds: Exception
The Department's draft report stated that as drafted, the new
Exception to Section 1008.1.6 could be confusing. Section 1008.1.6 sets
forth the general requirement that a doorway threshold cannot exceed
\3/4\ inch for a sliding glass door and \1/2\ inch for other doors. The
new exception allows for a threshold of 7\3/4\ inches in Group R-2 and
Group R-3 housing if the door is an exterior door that is not a
component of the required means of egress and is not on an accessible
route. HUD noted that while the ``means of egress'' and ``accessible
route'' limitations would appear to ensure that the 7\3/4\ inch
threshold is not permitted in Group R-2 and Group R-3 housing that is
subject to the Act, there might be confusion regarding patio doors and
other exterior doors that are not a means of egress.
Two commenters, including the ICC, wrote that they did not believe
the new Exception could lead to confusion. They stated that the
Exception's language is clear that it does not apply to doors that are
part of the route required to be accessible, including patio doors and
any other exterior doors that are part of the accessible route.
After carefully considering these comments and reviewing the plain
language of the code, the Department has now concluded that the
language of the Exception is sufficiently clear and does not require
revision.
3. Chapter 11: Accessibility: Section 1104.1, Site Arrival Points:
Exception
The Department's draft report concluded that the new exception to
Section 1104.1, Site arrival points, does not meet the requirements in
the Act for an accessible entrance on an accessible route, or for
accessible routes within the boundary of the site, such as routes from
public transportation stops (where applicable), and public streets and
sidewalks (hereinafter identified as vehicular or pedestrian arrival
points). As the Department's draft report indicated, the 2003 IBC adds
a new exception to Section 1104.1, Site Arrival points. The 2003 IBC
text states:

1104.1 Site arrival points. Accessible routes within the site shall
be provided from public transportation stops, accessible parking and
accessible passenger loading zones and public streets or sidewalks
to the accessible building entrance served.

Exception: An accessible route shall not be required between
site arrival points and the building or facility entrance if the
only means of access between them is a vehicular way not providing
for pedestrian access.

It is the Department's view that the language of this section
allows the builder much greater latitude to decide whether to provide a
pedestrian route than the Guidelines and other current HUD recognized
safe harbors allow.
The Department's draft report explained that the Guidelines'
Requirements 1 and 2 require an accessible pedestrian route, within the
boundary of the site, from vehicular and pedestrian arrival points to
the entrances of covered buildings and dwelling units, except in very
limited circumstances where a site is impractical due to steep terrain
or unusual characteristics. However, the new Exception at Section
1104.1 apparently could allow a developer to provide only a vehicular
route from a public street or sidewalk at the entry point of the site
to the covered dwellings, regardless of the conditions of the site.
Application of this Exception could lead to development of housing
which would have had an accessible pedestrian route from site arrival
points if any of the current HUD recognized safe harbors were followed,
but would not have an accessible pedestrian route from site arrival
points if the 2003 IBC Exception to Section 1104.1 were followed.
The Department's draft report recommended that the 2003 IBC be
amended to include a new provision under Section 1107 to address site
arrival points and that this new provision be worded in a manner that
is similar to Section 1104.1, but without the Exception. The Department
has carefully reviewed the comments received on this issue.
After considering the comments, the Department now believes that
Sections 1104.1 and 1107.4, properly interpreted, require an accessible
pedestrian route to the same extent as other HUD recognized safe
harbors. As explained in the discussion below, however, the Department
continues to believe that the language of the Exception to Section
1104.1 could lead to less accessibility than that required by the Act
and the Guidelines unless ICC informs jurisdictions and past and future
purchasers of the 2003 IBC that such an interpretation is inconsistent
with the intent of the 2003 IBC. Therefore, in order to have safe
harbor status for this Section, ICC must publish and distribute a
statement to jurisdictions and past and future purchasers of the 2003
IBC stating that: 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.
The Department expects that ICC will publish and disseminate this
statement in the following ways:
1. Placement on its Web site, especially on pages where technical
aspects of 2003 IBC are described;
2. Including the statement with all versions of 2003 IBC that are
distributed 30 days after publication of HUD's final report;
3. Within 45 days of the publication of HUD's final report, sending
the statement by U.S. Mail and/or e-mail to jurisdictions and
individuals on ICC's marketing lists for code materials, and
4. Providing the statement orally or in writing whenever technical
assistance is provided concerning the 2003 IBC requirements for
accessible routes between site arrival points and accessible building
entrances.
This statement of intent is consistent with the interpretation that
ICC and NAHB proffered in their comments on the draft report as
discussed below.
During the next code change cycle, if ICC seeks to have the 2006
edition of the IBC declared a safe harbor, ICC must modify the IBC to
clearly state, in a

[[Page 9743]]

manner acceptable to the Department, that an accessible pedestrian
route must be provided from site arrival points to accessible building
entrances of buildings required to provide Type B dwelling units,
unless site impracticality applies.
The Department's regulations implementing the Act require that
dwellings subject to the Act's design and construction requirements be
designed and constructed to provide an accessible entrance on an
accessible route to covered buildings and dwelling units, unless it is
impractical due to terrain or unusual site characteristics. The
Guidelines describe the conditions that must be met for establishing
this site impracticality. See 56 FR 9504-9504 (March 6, 1991). The
regulations and the Guidelines also require accessible and usable
public and common use areas, which includes accessible routes.
Specifically, Requirement 2 of the Guidelines requires an accessible
route, within the boundary of the site, from public transportation
stops, accessible parking spaces, accessible passenger loading zones,
and public streets and sidewalks to accessible building entrances,
unless site impracticality applies.
Section 2 of the Guidelines defines an ``accessible route'' as a
continuous and unobstructed path that can be negotiated by a person
with a severe disability using a wheelchair and that is also safe for
and usable by persons with other disabilities. The definition further
states that under the circumstances described in Section 5,
Requirements 1 and 2, an accessible route may include a vehicular
route. Once again, however, the circumstances that allow a vehicular
route are very limited. See discussion under Issue 4.
The Department received a number of comments on this issue. Two of
the commenters, ICC and NAHB, acknowledged a potential conflict.
However, these commenters were of the opinion that the 2003 IBC
provision at Section 1107.4 controls. As support, they cite Section
102.1, which states that where different sections of the code specify
different requirements, the most restrictive shall govern; and where
there is a conflict between a general requirement and a specific
requirement, the specific requirement shall be applicable. These
commenters proffered that Section 1107.4 contains more restrictive
criteria. Section 1107.4 states:

1107.4 Accessible route. At least one accessible route shall
connect accessible building or facility entrances with the primary
entrance of each Accessible unit, Type A unit and Type B unit within
the building or facility and with those exterior and interior spaces
and facilities that serve the units.\4\
---------------------------------------------------------------------------

\4\ Section 1107.4 includes exceptions, one of which deals with
situations when a vehicular route will be allowed between entrances
of covered buildings and dwelling units and public and common use
facilities elsewhere on the site. This exception is discussed under
Issue 4.

Based on the statement in the above text that an accessible route
must connect building or facility entrances with the primary entrance
of each * * * Type B unit and with exterior and interior spaces and
facilities that serve the units, ICC took the position that site
arrival points ``do serve units on the site.''
Another commenter expressed a belief that Section 1107.2, which
requires compliance with ICC/ANSI A117.1-1998, addresses the
Department's concern.
The Department has given careful consideration to these comments.
However, the Department does not believe the commenters' interpretation
is supported by a plain reading of the code. First, the Department does
not agree that the text of Section 1107.4, on its face, effectively
cancels out the Exception at Section 1104.1. The text of Section 1107.4
does not address site arrival points; therefore, the text of Exception
1 to Section 1107.4 cannot, on plain reading, be construed to apply to
site arrival points. In addition, Exception 1 to Section 1107.4 does
not apply to site arrival points because that exception is addressing
the narrow circumstances when a vehicular route is allowed between
building entrances and public and common use facilities elsewhere on
the site. Instead, Section 1107.7 of the 2003 IBC addresses site
impracticality.
Moreover, the Department does not believe that the term
``facility'' would be readily construed to include the edge of the
public right-of-way where a site arrival point may be located. Further,
as Section 1104.1 is entitled ``Site arrival points,'' we do not
believe that a local jurisdiction would readily interpret Section
1107.4 as being applicable to site arrival points.
The Department also disagrees with the comment that Section 1107.2
addresses the Department's concern because Section 1107.2 requires Type
B dwelling units to comply with Chapter 10 of ICC/ANSI A117.1-1998. The
only provision in Chapter 10 that deals with areas exterior to the
dwelling unit is Section 1003.2, which simply states that the
accessible primary entrance shall be on an accessible route from public
and common areas. This text does not specifically refer to site arrival
points and the 2003 IBC definitions for the terms ``common use'' and
``public use areas'' do not include all site arrival points. Further,
as scoping requirements are contained in the building code itself, it
does not appear that a provision in the ICC/ANSI A117.1-1998 would
nullify the exception at Section 1104.1 of the 2003 IBC.
None of the commenters addressed the Department's primary concern,
which is that the new exception in Section 1104.1 would allow builders
to choose to design and construct sites that do not have an accessible
pedestrian route and only a road or driveway from site arrival points
to accessible dwelling unit entrances, regardless of whether the site
meets the criteria for site impracticality established in the
Guidelines.
Without ICC's public dissemination of a statement to jurisdictions
and past and future purchasers of the 2003 IBC of its interpretation
that sites required to provide Type B dwelling units are required to
provide an accessible route connecting site arrival points and
accessible building entrances (unless site impracticality applies), the
Department believes that the new exception at Section 1104.1, in the
absence of a specific provision under Section 1107 addressing site
arrival points, would be interpreted as creating a conflict with the
requirements in the Act and the Guidelines. That conflict is not
resolved by the provisions of Section 1107.4. The Department believes
that its objection could be resolved, however, and safe harbor status
could apply, if ICC publishes and distributes a statement to
jurisdictions and past and future purchasers of the 2003 IBC stating
that:

[[Page 9744]]

jurisdictions and individuals on ICC's marketing lists for code
materials, and
4. Providing the statement orally or in writing whenever technical
assistance is provided concerning the 2003 IBC requirements for
accessible routes between site arrival points and accessible building
entrances.
During the next code change cycle, if ICC seeks to have the 2006
edition of the IBC declared a safe harbor, ICC must modify the IBC to
clearly state, in a manner acceptable to the Department, that an
accessible pedestrian route must be provided from site arrival points
to accessible building entrances of buildings required to provide Type
B dwelling units, unless site impracticality applies.
The Department offers the following as one possible method to
provide the requisite clarity during the next code change cycle:
addition of a provision to Section 1107 to address site arrival points,
as set forth in 1107.X below. Text in brackets is optional, but
included below for consistency with other provisions in 2003 IBC
Section 1107.

1107.X Site arrival points. Accessible routes within the site shall
be provided from public transportation stops, accessible parking and
accessible passenger loading zones, and public streets and sidewalks
to the building entrance(s) for each building containing [Accessible
units, Type A units, and] Type B dwelling units.

The Department does not believe the above provision will require
more than is required by the Act or the Guidelines since the 2003 IBC
addresses site impracticality, consistent with the Guidelines, under
2003 IBC Section 1107.7.
4. Section 1104.2 Within a Site
The Department's draft report raised two concerns about the
language of the treatment of accessible routes within a site in the
2003 IBC. First, the Department raised the concern that it has had a
number of reports that some users of the code had been applying Section
1104.2 to sites having dwelling units that are subject to the Act's
requirements, rather than Section 1107.4 which contains more specific
accessibility requirements. The report sought comments on how to revise
Section 1104.2 to make its applicability clearer. Second, although
Section 1107.4 in the 2003 IBC, which describes an accessible route,
had not changed from the 2000 IBC as amended by the 2001 Supplement,
the Department has had a number of reports that some users of the code
are misinterpreting Exception 1 to that section so as to entitle them
to an exemption from the obligation to build accessible pedestrian
routes by merely planning for or constructing routes with running
slopes in excess of 8.33 percent. Such an interpretation would produce
a result that is inconsistent with the requirements of the Act and
Guidelines. In this respect, the Department sought comments on how to
clarify that Section 1107.4, Exception 1, applies only to situations
where the finished grade of the site exceeds 8.33 percent due to
factors beyond the control of the designer, builder or owner.
The Act, the Department's regulations implementing the Act, and the
Guidelines require that dwellings subject to the Act's design and
construction requirements be designed and constructed to provide an
accessible entrance on an accessible route and accessible and usable
public and common use areas. The requirements for accessible routes are
covered under both Requirements 1 and 2 of the Guidelines. The
Guidelines allow only a narrow exception. Specifically, paragraph (5)
of Requirement 1 states:

(5) Accessible route. An accessible route that complies with
ANSI 4.3 would meet section 100.205(a). If the slope of the finished
grade between covered multifamily dwellings and a public or common
use facility (including parking) exceeds 8.33 percent, or where
other physical barriers (natural or manmade) or legal restrictions,
all of which are outside the control of the owner, prevent the
installation of an accessible pedestrian route, an acceptable
alternative is to provide access via a vehicular route, so long as
necessary site provisions such as parking spaces and curb ramps are
provided at the public or common use facility. Emphasis added.

Similarly, under Requirement 2 of the Guidelines, item 1(d) in the
chart addressing requirements for accessible public and common use
areas, states:

1(d) Where site or legal constraints prevent a route accessible to
wheelchair users between covered multifamily dwellings and public or
common use facilities elsewhere on the site, an acceptable
alternative is the provision of access via a vehicular route so long
as there is accessible parking on an accessible route to at least
two percent of covered dwelling units, and necessary site provisions
such as parking and curb cuts are available at the public or common
use facility.

The 2003 IBC includes provisions intended to address accessible
routes within a site. Specifically, Section 1104.2 of the 2003 IBC
reads as follows:

1104.2 Within a site. At least one accessible route shall connect
accessible buildings, accessible facilities, accessible elements,
and accessible spaces that are on the same site.

Exception: An accessible route is not required between
accessible buildings, accessible facilities, accessible elements and
accessible spaces that have, as the only means of access between
them, a vehicular way not providing for pedestrian access.

However, Section 2003 IBC Section 1107.4 contains language similar
to the Guidelines, Requirement 1, Paragraph (5), and Requirement 2,
Chart Item 1(d). This language states:

1107.4 Accessible route. At least one accessible route shall connect
accessible building or facility entrances with the primary entrance
of each Accessible unit, Type A unit and Type B unit within the
building or facility and with those exterior and interior spaces and
facilities that serve the units.

Exceptions: 1. If the slope of the finished ground level between
accessible facilities and buildings exceeds one unit vertical in 12
units horizontal (1:12), or where physical barriers prevent the
installation of an accessible route, a vehicular route with parking
that complies with Section 110 at each public or common use facility
or building is permitted in place of the accessible route.
2. * * *

The Department's interpretation of the code is that it is 2003 IBC
Section 1107.4--and not Section 1104.2--which applies to sites that are
subject to the Act. However, as noted above, some users of the code
have misinterpreted the code and applied Section 1104.2 to sites that
are subject to the Act. In addition, some users are misinterpreting or
misapplying Exception 1 of Section 1107.4 so as to entitle them to an
exemption from the obligation to build accessible pedestrian routes by
merely planning for or constructing routes with slopes in excess of
8.33 percent. This is an incorrect interpretation of the code.
The Department received several comments on HUD Issue 4.
These commenters disagreed with the Departments concerns regarding
misinterpretations of these two sections of the 2003 IBC. These
commenters, including the ICC, again pointed to Section 102.1 of the
IBC, which provides that if different sections of the IBC specify
different requirements, ``the most restrictive shall govern.'' The
commenters stated that Section 1107.4, Exception 1 has more restrictive
criteria for an accessible route between all Accessible, Type A and
Type B units and exterior and interior spaces and facilities that serve
that unit, and that this provision, therefore, would control.
The Department has carefully considered the above comments. In
light of these comments, in particular, ICC's assertion that the more
restrictive Section 1107.4 applies to sites having dwelling units
subject to the Act, and not Section 1104.2, the Department is

[[Page 9745]]

withdrawing its concerns regarding Section 1104.2.
The Department also received a number of comments on its concern
that Exception 1 to Section 1107.4 was being misinterpreted. The ICC
has characterized the Department's concern as with the manipulation of
the site to achieve a slope greater 8.33 percent in order to avoid the
accessible route requirements. The ICC stated in its comments that the
intent of the code was not to exempt such situations from the
accessible route requirement. While the Department agrees with the ICC
that deliberate conduct to avoid the requirements of law does not
qualify for an exception, the Department's concern with the
misinterpretation of Exception 1 to Section 1107.4 is greater.
Paragraph (5) of Requirement 1 of FHAG does not permit builders and
designers to circumvent the requirement of providing an accessible
route from accessible building entrances to public and common use
facilities by simply planning or building finished grades with slopes
in excess of 8.33 percent. It is expected that accessible routes to
public and common use facilities will be provided. To receive an
exemption from this requirement, builders, designers, and owners must
show that factors beyond their control prevent them from providing such
routes with finished grades of 8.33 percent or less. Thus, the
Guidelines allow use of vehicles only upon a showing that accessible
routes cannot be provided, and vehicles or accessible routes are not
simply treated as alternatives to builders and designers of covered
units. See also Requirement 2 of the Guidelines, item 1(d) of the
chart.
The Department recognizes that the text, ``all of which are outside
the control of the owner,'' which is in the Guidelines, Requirement 1,
paragraph (5), does not appear in Exception 1 to Section 1107.4.
However, the Department reads Section 1107 as the overarching
requirement to provide accessible routes, including to public or common
use facilities. Simply electing to design or build slopes in excess of
8.33 percent would make the accessible routes optional, and would not
be consistent with the limited circumstances under which the Guidelines
would permit vehicles to be used in lieu of accessible routes.
Designers and builders who choose not to provide accessible routes
based on an interpretation of this provision that differs from the
Department's interpretation may not avail themselves of this safe
harbor and may, accordingly, be subject to an enforcement action to
make those routes accessible after they are built.
Commenters have pointed out that the requirements from any standard
or code may be subject to misinterpretation, but believe the best way
to address these issues is through additional information provided
through commentaries or other educational means. The Department is in
agreement with this. Further clarifying commentary by the ICC is
recommended to reinforce that Exception 1 to Section 1107.4 is to be
interpreted and applied to Type B units consistent with paragraph (5)
of Requirement 1. Thus, the Department recommends ICC take steps to
modify the commentary to Section 1107.4 consistent with the above
discussion, in the next code change cycle.
5. Section 1104.3, Connected Spaces, and Section 1104.4, Multilevel
Buildings and Facilities
The Department's draft report concluded that two new Exceptions
added to the 2003 IBC, specifically, Exception 2 under Section 1104.3,
and Exception 4 under Section 1104.4, did not appear to meet the
requirements of the Act and the Guidelines for accessible and usable
public and common use areas. The report raised a similar concern
regarding Exception 1 of Section 1104.4, even though this Exception was
in the 2001 Supplement previously considered by the Department. The
draft report recommended that these sections be clarified to ensure
compliance with the design and construction requirements of the Act and
the Guidelines.
The Act, HUD's regulations implementing the Act, and the Guidelines
require that covered multifamily dwellings be designed and constructed
in such a manner that the public and common use areas are readily
accessible to and usable by persons with disabilities. Requirement 2 of
the Guidelines specifically addresses public and common use areas.
Sections 1104.3 and 1104.4 of the 2003 IBC read as follows, with
the text of concern emphasized:

1104.3 Connected spaces. When a building, or portion of a building,
is required to be accessible, an accessible route shall be provided
to each portion of the building, to accessible building entrances
connecting accessible pedestrian walkways and the public way. Where
only one accessible route is provided, the accessible route shall
not pass through kitchens, storage rooms, restrooms, closets, or
similar spaces.

Exceptions: 1. In assembly areas with fixed seating required to
be accessible, an accessible route shall not be required to serve
fixed seating where wheelchair spaces or designated aisle seats
required to be on an accessible route are not provided.
2. Accessible routes shall not be required to mezzanines
provided that the building or facility has no more than one story,
or where multiple stories are not connected by an accessible route
as permitted by Section 1104.4.
3. A single accessible route is permitted to pass through a
kitchen or storage room in an accessible dwelling unit.

1104.4 Multilevel buildings and facilities. At least one accessible
route shall connect each accessible level, including mezzanines, in
multilevel buildings and facilities.
Exceptions: 1. An accessible route is not required to stories
and mezzanines above and below accessible levels that have an
aggregate area of not more than 3,000 square feet (278.7 m \2\).
This exception shall not apply to:
1.1. Multiple tenant facilities of Group M occupancies
containing five or more tenant spaces;
1.2. Levels containing offices of health care providers (Group B
or I); or
1.3. Passenger transportation facilities and airports (Group A-3
or B).
2. In Group A, I, R and S occupancies, levels that do not
contain accessible elements or other spaces required by Section 1107
or 1108 are not required to be served by an accessible route from an
accessible level.
3. In air traffic control towers, an accessible route is not
required to serve the cab and the floor immediately below the cab.
4. Where a two-story building or facility has one story with an
occupant load of five or fewer persons that does not contain public
use space, that story shall not be required to be connected by an
accessible route to the story above or below.

In the draft report, the Department expressed concern that while
the second clause of Exception 2 of Section 1104.3 references the
accessibility requirements for mezzanines contained in Section 1104.4,
the first clause does not. Therefore, it appeared that the first clause
of this exception would allow a development subject to the design and
construction requirements to construct a one-story clubhouse with a
mezzanine that contained a common element, such as an exercise room,
that was not also available on an accessible route. This would conflict
with the Act's requirements for accessible and usable public and common
use facilities, which would not permit the only exercise area available
to residents to be placed in a mezzanine of a one-story clubhouse.
In its report, the Department acknowledged that Exception 2 of
Section 1104.4 exempts from the requirement for an accessible route
only those levels of Group I and Group R occupancies that do not
contain accessible elements or other spaces that Sections 1107 or 1108
require to be served by an accessible route. However, the Department
raised a concern as to

[[Page 9746]]

whether Sections 1107 and 1108 clearly reached all of the types of
public and common use areas that typically serve residential sites
subject to the Act. The examples given in Section 1107.3 focus on
toilet and bathing rooms, kitchen, living and dining areas, patios and
terraces, all of which could be spaces interior to a dwelling unit.
This raises the concern that spaces exterior to the unit are excluded
from Section 1107.3.
The comments the Department received on this issue, including those
comments from ICC, reiterated that when applying the code, specific
requirements override general requirements (Section 102.1). ICC pointed
out that Section 1107.3 of the code is more specific than Sections
1104.3 \5\ and 1104.4 In response to the Department's concern that
Section 1107.3 did not appear to reach all of the types of public and
common use facilities that typically serve residential units that are
subject to the Act's accessibility requirements, the ICC expressed the
view that no list may reasonably include all possible types of such
facilities and that the focus must be placed on the first sentence in
this code section, which states, ``Rooms and spaces available to the
general public or available for use by residents and serve Accessible
Units, Type A units and Type B units shall be accessible.'' This
sentence would not limit coverage to interior spaces of dwelling units.
---------------------------------------------------------------------------

\5\ ICC pointed out in its comments, as a related note, that
Exception 2 to Section 1104.3 has since been deleted under changes
to the 2003 IBC that appear in the 2004 Supplement, based on the
view that Exception 2 was redundant with issues addressed under
Section 1104.4.
---------------------------------------------------------------------------

The Department's concern about Exception 4 of Section 1104.4 was
that it could be read to allow construction of a 2-story building to
include a common use element, e.g., a storage area, which is an element
that is not for public use and is provided only for residents on a site
with Type B dwelling units, on the inaccessible story. One commenter
stated that Exception 4 to Section 1104.4 was added in the effort to
coordinate with requirements under the ADA, and there should not be a
higher level of access under the Act than that specified for other
types of facilities. According to the Commentary, Exception 4 permits
small nonpublic second floors to be inaccessible, such as the second
floor in a doctor's office that is used only for storage. Commenters
also pointed out that the specific requirements of Section 1107.3 would
prevent Section 1104.4 Exception 4 from being used to permit the
creation of inaccessible common use spaces where they would otherwise
be required by the Act.
The Department has carefully considered these public comments and
the Sections of the code in question. In light of the public comments,
in particular ICC's assertion that Section 1107.3 is more specific and
overrides Sections 1104.3 and 1104.4, the Department is withdrawing its
concerns.
The Department is also withdrawing its concern about Exception 1 to
Section 1104.4 because it was already reviewed and accepted as part of
the safe harbor given to the IBC 2000 as amended by the 2001
Supplement. Notwithstanding, some commenters misinterpreted the
Department's recommendations in its draft report to mean that all
public and common use spaces on all floors, including upper floors of a
non-elevator building, must be accessible. The Department wishes to
clarify that the Act and the Guidelines' requirement for accessible and
usable public and common use spaces does not require such spaces that
serve dwelling units on inaccessible stories of a non-elevator building
to be accessible as long as comparable public and common use facilities
are made available on an accessible route to covered dwelling units in
the building.
6. Section 1105 Accessible Entrances: Section 1105.1.3, Restricted
Entrances
The draft report concluded that 2003 IBC Section 1105.1.3 did not
meet the accessibility requirements of the Act and the Guidelines. The
draft report recommended adding clarifying language to that section to
ensure that at least one restricted entrance to each common use area
serving a covered building be accessible. Based on the Department's
review of the public comments, the Department has concluded that this
provision is not an obstacle to safe harbor status for the 2003 IBC.
As the draft report noted, 2003 IBC Section 1105 has been revised
in its entirety. It is the Department's understanding that the
revisions were intended to incorporate and be consistent with the new
ADAAG. The revised section requires that in addition to accessible
entrances required by six subsections, at least 50 percent of all
public entrances must be accessible. Section 1105.1.3 reads as follows:

1105.1.3 Restricted entrances. Where restricted entrances are
provided to a building or facility, at least one restricted entrance
to the building or facility shall be accessible.

The code definition of ``public entrance'' is an entrance that is
not a service entrance or a restricted entrance. The definition of a
``restricted entrance'' is an entrance that is made available for
common use on a controlled basis, but not public use, and that is not a
service entrance. There is a new code definition of ``common use
area,'' which states: ``Interior or exterior circulation paths, rooms,
spaces or elements that are not for public use and are made available
for the shared use of two or more people.'' A ``public use area'' is
defined as ``Interior or exterior rooms or spaces that are made
available to the general public.''
The draft report's conclusion was based on the interpretation of
Section 1105.1.3 that only one of the common use areas must be
accessible in a building which is subject to the Act and has multiple
separate common use areas, each having a restricted entrance. The Act,
the Department's regulations implementing the Act, and Requirement 2 of
the Guidelines require that the public and common use areas that serve
covered multifamily dwelling units must be readily accessible to and
usable by persons with disabilities.
Three organizations commented on and disagreed with the conclusion
in the draft report. They all believed that Section 1105.1.3 complies
with the requirements of the Act. However, each commenter had a
different rationale. The ICC stated that the correct interpretation of
Section 1105.1.3 is that ``if all entrances to a common use space are
restricted entrances, then at a minimum, one accessible entrance is
required to each common use space serving Accessible, Type A or Type B
units.'' The ICC also referenced Section 1107.3 and Section 1107.4 of
the 2003 IBC, which require an accessible route from the units to this
accessible entrance. A second commenter believed that the examples of
common use areas with restricted entrances in a covered building were
``so remote they do not merit consideration.'' Without elaboration,
this commenter stated that Section 1105.1.3 does meet the requirements
of the Act for entrances even if Sections 1107.3 and 1107.4 were
ignored.
The third commenter on this issue acknowledged that the Code
provision could be misinterpreted. However, this commenter pointed out
that the code definition of ``facility'' is ``All or any portion of
buildings, structures, site improvements, element and pedestrian or
vehicular routes located on a site.'' (Emphasis added by the
commenter.) The commenter concluded that based on this definition,
particularly the words, ``or any portion of,'' and using the example in
the draft report, if there

[[Page 9747]]

is controlled access to a building's weight room, laundry room,
recreation room, and clubhouse, Section 1105.1.3 would require at least
four accessible restricted entrances, that is, at least one for each
facility.
The draft report noted that 2003 IBC Section 1107.3 requires that
rooms and spaces available to the general public or available for use
by residents and serving Type B units shall be accessible. Additionally
2003 IBC Section 1107.4 provides that at least one accessible route
must connect the primary entrance of Type B dwelling units within a
building or facility ``and with those exterior and interior spaces and
facilities that serve the units.''
It is clear from the ICC's unambiguous interpretation of Section
1105.1.3, in response to the draft report, that this section was not
intended to pre-empt the requirements of Sections 1107.3 and 1107.4.
Additionally, the Department agrees that the inclusion of the term
``facility'' in Section 1105.1.3 may obviate an incorrect
interpretation of this code revision. Therefore, the Department
withdraws its objections to Section 1105.1.3. However, the Department
recommends that ICC modify the language of Section 1105.1.3 in a
subsequent code change cycle to add the following clarifying language
in response to this concern: ``Section 1105.1.3 Restricted entrances.
Where restricted entrances are provided to a building or facility at
least one of each type of restricted entrance to the building shall be
accessible.''
7. Section 1107.7.5 Design Flood Elevation
The Department's draft report concluded that the change in
terminology used in Section 1107.7.5 from ``base flood elevation'' to
``design flood elevation'' did not meet the requirements of the Act and
the Guidelines. The Department recommended that if the new terminology
is retained, that there also be a change in the text of Section
1107.7.5. As discussed below, based on the comments received, and the
Department's review of the legislative history of the Act with respect
to site impracticality and flooding issues, the Department believes the
intent of this section of the 2003 IBC is consistent with the intent of
the Act, the Department's regulations and the Guidelines, and
therefore, it is withdrawing this issue as an obstacle to safe harbor
status for the 2003 IBC.
Requirement 1(2)(b) of the Guidelines states:

Site impracticality due to unusual characteristics. Unusual
characteristics include sites located in a federally-designated
floodplain or coastal high-hazard area and sites subject to other
similar requirements of law or code that the lowest floor or the
lowest structural member of the lowest floor must be raised to a
specified level at or above the base flood elevation. (Emphasis
added.) An accessible route to a building entrance is impractical
due to unusual characteristics of the site when:
i. The unusual site characteristics result in a difference in
finished grade elevation exceeding 30 inches and 10 percent measured
between an entrance and all vehicular or pedestrian arrival points
within 50 feet of the planned entrance; or
ii. If there are no vehicular or pedestrian arrival points
within 50 feet of the planned entrance, the unusual characteristics
result in a difference in finished grade elevation exceeding 30
inches and 10 percent measured between an entrance and the closest
vehicular or pedestrian arrival point.

The phrase in the Guidelines ``the lowest floor or the lowest
structural member of the lowest floor must be raised to a specified
level at or above the base flood elevation'' is the same thing as the
``design flood elevation.'' Therefore, the Guidelines allow using the
design flood elevation.
The 2003 IBC changes the term ``base flood elevation'' to ``design
flood elevation.'' The 2003 IBC text reads as follows:

1107.7.5 Design flood elevation. The required number of Type A and
Type B units shall not apply to a site where the lowest floor or the
lowest structural building members of nonelevator buildings are
required to be at or above the design flood elevation resulting in:
1. A difference in elevation between the minimum required floor
elevation at the primary entrances and vehicular and pedestrian
arrival points within 50 feet (15 240 mm) exceeding 30 inches (762
mm), and
2. A slope exceeding 10 percent between the minimum required
floor elevation at the primary entrances and vehicular and
pedestrian arrival points within 50 feet (15 240 mm).

According to ICC documents, the change from the term ``base flood
elevation'' to ``design flood elevation,'' was done to harmonize
terminology with the Federal Emergency Management Agency (FEMA).
FEMA encourages local authorities to establish design flood
elevations above the base flood plain. However, the Department's
concern was that a local zoning or regulatory authority may impose an
additional minimum height above the design flood elevation established
by an authority having jurisdiction over the design flood elevation.
Therefore, replacing the word ``Base'' with ``Design'' without deleting
the words ``or above'' that permit additional height requirements above
the design flood elevation established by the governing jurisdiction
appeared to permit more site impracticality.
The Department concluded in the draft report that this change does
not meet the requirements of the Act and the Guidelines, and
recommended that Section 1107.7.5 be revised as follows:

Design flood elevation. The required number of Type A and Type B
units shall not apply to a site where the required design flood
elevation results in: * * *

Several commenters, including ICC, reminded the Department that the
phrase in the Guidelines which states, ``the lowest floor or the lowest
structural member of the lowest floor must be raised to a specified
level at or above the base flood elevation'' is the same as ``design
flood elevation.'' One commenter said that only 5 percent of the
communities that participate in the National Flood Insurance Program
have established design flood elevations that are above the base flood
elevation. Another commenter said that only 3 percent of the
incorporated jurisdictions in the U.S. have a design flood elevation
above the base flood elevation.
While the Department has given consideration to comments it
received on this issue, none of the commenters addressed our concern
that a local zoning rule may require an additional height above the
design flood elevation established by the governing authority. However,
the Department is also cognizant of the fact that both the Department's
regulations implementing the Act and the Guidelines recognize the need
to adopt site impracticality criteria for sites with unusual
characteristics such as floodplains or coastal high hazard areas which
require the lowest floor to be raised a certain level at or above the
base flood elevation. While the Act itself did not specify an
impracticality standard for such situations, the legislative history
indicated that Congress was sensitive to the possibility that certain
natural terrain may pose unique building problems, and that in some
locales, it is common to construct housing on stilts because of
flooding problems. The Department believes the intent of this section
of the 2003 IBC is consistent with the intent of the Act, HUD's
regulations and the Guidelines; therefore, withdrawing the objection.
However, ICC may wish to consider, in the future, revising the first
sentence of Section 1107.7.5 as follows:

1107.7.5 Design flood elevation. The required number of Type A and
Type B units shall not apply to nonelevator buildings on a site
where the required design flood elevation results in:

[[Page 9748]]

1. A difference in elevation between the minimum required floor
elevation at the primary entrances and vehicular and pedestrian
arrival points within 50 feet (15 240 mm) exceeding 30 inches (762
mm), and
2. A slope exceeding 10 percent between the minimum required
floor elevation at the primary entrances and vehicular and
pedestrian arrival points within 50 feet (15 240 mm).
8. Section 1109.13 Controls, Operating Mechanisms and Hardware:
Exception 6
The Department's draft report concluded that Exception 6 to Section
1109.13, ``Controls, operating mechanisms and hardware,'' did not
appear to meet the accessibility requirements of the Act since the text
of Exception 6 is worded more broadly than the example included in the
Commentary, which cited a ceiling fan with both a wall switch and a
chain on the fan itself. The Department sought comments on whether the
broader text of new Exception 6 for redundant controls should be
revised to be more restrictive. Based on the Department's consideration
of the comments it received on this issue, the Department is
withdrawing this issue and does not consider it an obstacle to safe
harbor status for the 2003 IBC.
The 2003 IBC text reads as follows:

1109.13 Controls, operating mechanisms and hardware. Controls,
operating mechanisms and hardware intended for operation by the
occupant, including switches that control lighting and ventilation,
and electrical convenience outlets, in accessible spaces, along
accessible routes or as parts of accessible elements shall be
accessible.
Exceptions:
* * * * *

6. Except for light switches, where redundant controls are provided
for a single element, one control in each space shall not be required
to be accessible.
The draft report noted that IBC Resource Handbook (Code Change E81-
02, 11 page 442) states that the exceptions to Section 1109.13
are similar to the exceptions already located in ICC/ANSI A117.1
(1998). The Department currently recognizes ICC/ANSI A117.1-1998 as an
acceptable means of complying with the Act's technical requirements.
Further, the Department is a member of the ANSI A117 Committee and
worked with the Committee to draft the text of Section 1003.9 of
Chapter 10 of ICC/ANSI. Section 1003.9 of the ICC/ANSI A117.1-1998
specifically exempts ``ceiling fan mounted controls.'' However, 2003
IBC Section 1109.13, Exception 6, contains broader language. In
addition, the IBC Commentary Vol. I (page 11-49) gave only one example
of how Exception 6 would apply, citing a ceiling fan that could be
operated by a wall switch and by the chain on the fan itself.
The Department received three comments on this issue. Two
commenters disagreed with the Department's conclusion that the language
in Exception 6 is too broad. The ICC specifically said that other than
ceiling fans (for which redundant controls are acceptable by the
Guidelines), the most common example is range hood controls (which are
not required by the Guidelines to be accessible). Another commenter, a
proponent of the code text in Exception 6, pointed out that the text of
ICC/ANSI A117.1, Section 1003.9, is not related to redundant controls,
but rather, to controls mounted on the appliance itself. The commenter
added that ceiling fans have a direction switch on ceiling fan housings
which change the rotation from clockwise to counterclockwise, and it is
impossible to provide an accessible control for this function short of
disassembling the unit housing and voiding any warranty. This commenter
pointed out that without the text of Exception 6, the concern is that
some code officials could demand that inaccessible controls be removed
even where redundant accessible controls are provided. Prohibiting any
inaccessible controls could lead to requiring removal of fan and light
switches on range hoods, which would also void the equipment's
warranties.
In light of the public comments, the Department believes its
concerns have been sufficiently addressed and is, therefore,
withdrawing its earlier finding. Based on the comments received, the
Department concludes that Exception 6 is only likely to impact controls
on fixtures and appliances which are not required by the Guidelines,
i.e., ceiling fan and range hood controls.
9. 2004 IBC Supplement
In its draft report, under HUD Issue 9, the Department outlined two
areas of concern with a change to the 2003 IBC, Change E120-03/04,
which was approved for the 2004 Supplement to the IBC. These two areas
of concern are: (1) A change to Section 1107.7, General Exceptions,
that impacts scoping for Type B dwelling units, and whether IBC Section
1107 treats structures made up of buildings separated by firewalls as a
single structure (as provided for in the Guidelines), or as separate
buildings; and (2) a change to the text affecting the provision of
accessibility in situations where there is an elevated walkway between
a building entrance and opposing vehicular or pedestrian arrival
points: specifically, whether the test for determining practicality
will apply to the slope between the building entrance and vehicular or
pedestrian arrival points (as provided for in the Guidelines), or
between the building entrance and the opposing entrance to the walkway.
The public comments received on Issue 9 have satisfied the
Department that it can withdraw its first concern to the extent that
concern related to the 2003 IBC. Therefore, the Department is
withdrawing these concerns with respect to the 2003 IBC as they have no
impact on safe harbor status for the 2003 IBC. However, the Department
continues to maintain that the two areas of concern outlined under
Issue 9 of the Department's August 6, 2004 draft report, would
negatively impact safe harbor status for the 2004 Supplement and any
future edition of the code, such as the 2006 IBC, that incorporates
those changes.
In the course of their comments on issue nine, the ICC and other
organizations suggested that the Department should become more involved
in the ICC model code change development process as it occurs, so that
potential inconsistencies between future IBC code publications and
HUD's interpretation of the accessibility requirements of the Act and
the Guidelines can be avoided. The Department agrees that its
participation would be beneficial, and if sufficient resources are
available in the future, Department representatives will explore ways
in which the Department can contribute to the ICC code change
development process with respect to those code sections that relate to
the accessibility requirements of the Act.

VII. Conclusion

After full consideration of the comments received, the Department
has been able to resolve seven of the eight issues that it raised in
the draft report which relate specifically to the 2003 IBC. The
Department has determined that with respect to the remaining issues, it
can grant safe harbor status to the 2003 IBC conditioned upon ICC
publishing and distributing a statement to jurisdictions and past and
future purchasers of the 2003 IBC, stating that:

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

[[Page 9749]]

impracticality is addressed under Section 1107.7.

The Department expects that ICC will publish and disseminate this
statement in the following ways:
1. Placement on its Web site, especially on pages where technical
aspects of 2003 IBC are described;
2. Including the statement with all versions of 2003 IBC that are
distributed 30 days after publication of HUD's final report;
3. Within 45 days of the publication of HUD's final report, sending
the statement by U.S. Mail and/or e-mail to jurisdictions and
individuals on ICC's marketing lists for code materials, and
4. Providing the statement orally or in writing whenever technical
assistance is provided concerning the 2003 IBC requirements for
accessible routes between site arrival points and accessible building
entrances.
During the next code change cycle, if ICC seeks to have the 2006
edition of the IBC declared a safe harbor, ICC must modify the IBC to
clearly state, in a manner acceptable to the Department, that an
accessible pedestrian route must be provided from site arrival points
to accessible building entrances of buildings required to provide Type
B dwelling units, unless site impracticality applies.
The Department has proffered one option of how ICC could modify the
2003 IBC in the next code change cycle to meet this condition.
Furthermore, the Department will explore with ICC ways that the
Department can contribute to the ICC code change development process
with respect to those code sections that relate to the accessibility
requirements of the Act. While its resources are limited, the
Department recognizes the importance of the inclusion in building codes
of accessibility requirements that are consistent with the Act, the
Department's implementing regulations, and Guidelines.

Environmental Impact

This report is a policy document that sets out fair housing and
nondiscrimination standards and provides for assistance in promoting
fair housing and nondiscrimination. Accordingly, under 24 CFR
50.19(c)(3), this report is categorically excluded from environmental
review under the National Environmental Policy Act (42 U.S.C. 4321).

Dated: February 18, 2005.
Carolyn Peoples,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 05-3640 Filed 2-23-05; 10:31 am]

BILLING CODE 4210-28-P