1. Discussion of General Comments on the Guidelines
ANSI Standard
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 [sic], 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 advance of 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 the 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.
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