Comment. Several commenters stated that this design specification was
unclear in two respects. First, they stated that it was unclear when it is
necessary for a designer to provide space for a T-turn. The commenters stated
that it was difficult to envision circumstances where a wheelchair could be
pulled into a position traveling forward and then not be capable of backing
out. Second, the commenters stated that the two descriptions of the T-turn
provided by the Department were contradictory. The commenters stated that the
preamble to the proposed guidelines provided one description of the T-turn
(55 FR 24380), while Figure 2 of the guideline 4 (55 FR 24392), presented a
different description of the T-turn.
Response. The Department has decided to delete the reference to the
T-turn dimensions in the Guidelines for Requirement 4. The Guidelines
adequately address the accessible route into and through the dwelling unit by
the minimum corridor width and door width specifications, given typical
apartment layouts. Should a designer find that a unique layout in a
particular unit made a T-turn necessary for a wheelchair user, the
specifications provided in the ANSI Standard sections referenced for public
and common use areas could be used.
Minimum Clear Headroom
Comment. Several commenters from the building industry objected to the
specification for a minimum clear headroom of 80 inches. The commenters
stated that standard doors provide a height range from 75 to 79 inches, and
that an 80-inch specification would considerably increase the cost of each
door installed.
Response. The specification for minimum clear headroom of 80 inches was
included in the proposed guidelines because it is a specification included in
the major accessibility codes. This design specification was not expected to
conflict with typical door heights. However, since the principal purpose of
the requirement is to restrict obstructions such as overhanging signs in
public walkways, the Department has determined that this specification is not
needed for accessible routes within individual dwellings units, and has
therefore deleted this standard from the final Guidelines for such routes.
(The requirement, however, still applies in public and common use spaces.)
Changes in Level within a Dwelling Unit
In the preamble to the proposed guidelines, the Department advised that
the Act appears to require that dwelling units with design features such as
lofts or with more than one floor in elevator buildings be equipped with
internal elevators, chair lifts, or other means of access to the upper levels
(55 FR 24377). The Department stated that, although it is not clear that
Congress intended this result, the Department's preliminary assessment was
that the statute appears to offer little flexibility in this regard. The Department noted that several commenters, including the NAHB and the NCCSCI, suggested that units with more than one floor in elevator buildings should be required to comply with the Act's accessibility requirements only on the floor that is served by the building elevator. (This was the position taken by Option Two.) The Department solicited comments on this issue, and received a number of responses opposing the Department's interpretation.
Comment. The commenters opposing the Department's interpretation stated
that the Department's interpretation would place an undue burden on developers
and needlessly increase housing costs for everyone; defeat the purpose of
having multilevel units, which is to provide additional space at a lower cost;
eliminate multilevel designs which may be desirable to disabled residents
(e.g., to provide living accommodations for live-in attendants); and "create a
backlash" against the Accessibility Guidelines.
Response. Following careful consideration of these comments, and a
reexamination of the Act and its legislative history, the Department has
determined that its previous interpretation of the Act's application to units
with changes in level (whether lofts, or additional stories in elevator
buildings), which would have required installation of chair lifts or internal elevators in such units, runs contrary to the purpose and intent of the Fair Housing Act, which is to place "modest accessibility requirements on covered multifamily dwellings." (See House Report at 25.)
In House Report No. 711, the Congress repeatedly emphasized that the
accessibility requirements of the Fair Housing Act were minimal basic
requirements of accessibility.
"Accessibility requirements can vary across a wide range. A standard of total accessibility would require that every entrance, doorway, bathroom, parking space, and portion of buildings and grounds be accessible. Many designers and builders have interpreted the term `accessible' to mean this type of standard. The Committee does not intend to impose such a standard. Rather, the Committee intends to use a standard of `adaptable' design, a standard developed in recent years by the building industry and by advocates for handicapped individuals to provide usable housing for handicapped persons without necessarily being significantly different from conventional housing." (House Report at 26)
The Department has determined that a requirement that units with lofts
or multiple stories in elevator buildings be equipped with internal elevators,
chair lifts, or other means of access to lofts or upper stories would make
accessible housing under the Fair Housing Act significantly different from
conventional housing, and would be inconsistent with the Act's "modest
accessibility requirements". (See House Report at 25.)
The Department also has determined that a requirement that dwelling
units with design features, such as sunken living rooms, must provide some
means of access, such as ramps or lifts, as submitted in the proposed
guidelines (55 FR 24380) is inconsistent with the Act's modest accessibility
requirements. Sunken living rooms are not an uncommon design feature. To
require a ramp or other means of access to such an area, at the time of
construction, would reduce, perhaps significantly, the space provided by the
area. The reduced space might interfere with the use and enjoyment of this
area by a resident who is not disabled, or whose disability does not require
access by means of a ramp or lift. The Department believes that had it
maintained in the final Guidelines the access specifications for design
features, such as sunken living rooms, as set forth in the proposed
guidelines, the final Guidelines would have interfered unduly with a
developer's choice of design, or would have eliminated a popular design
choice. Accordingly, the final Guidelines provide that access is not required
to design features, such as a sunken living room, provided that the area does
not have the effect of interrupting the accessible route through the remainder of the unit.
The Department believes that the installation of a ramp or deck in order
to make a sunken room accessible is the type of later adaptation that easily
can be made by a tenant. The Department, however, does require that design
features, such as a split-level entry, which is critical to providing an
accessible route into and through the unit, must provide a ramp or other means
of access to the accessible route.
In order to comply with the Act's requirement of an accessible route
into and through covered dwelling units, the Department has revised the
Guidelines for Requirement 4 to provide separate technical guidance for two
types of dwelling units:
multistory dwelling units in elevator buildings. (Definitions for "single-story dwelling unit," "loft," "multistory dwelling unit" and "story" have been included in Section 2 of the final Guidelines.)
"Single-story dwelling unit" is defined as a dwelling unit with all finished living space located on one floor.
"Loft" is defined as an intermediate level between the floor and ceiling of any story, located within a room or rooms of a dwelling.
"Multistory dwelling unit" is defined as a dwelling unit with finished living space located on one floor and the floor or floors immediately above or below it.
"Story" is defined as that portion of a dwelling unit between the upper surface of any floor and the upper surface of the floor next above, or the roof of the unit. Within the context of dwelling units, the terms "story" and "floor" are synonymous.
For single-story dwelling units and multistory dwelling units, the Guidelines for Requirement 4 are as follows:
The Department believes that the foregoing revisions to the Guidelines for Requirement 4 will provide individuals with handicaps the degree of accessibility intended by the Fair Housing Act, without increasing significantly the cost of multifamily housing.
Comment. Two commenters suggested that the same adaptability
requirement that is applied to bathrooms should be applied to dwelling units
with more than one story, or with lofts, i.e. that stairs, and the wall along
the stairs, contain the appropriate reinforcement to provide for later
installation of a wheelchair lift by a disabled resident, if so desired.
Response. The only blocking or wall reinforcement required by the Fair
Housing Act is the reinforcement in bathroom walls for later installation of
grab bars. As noted earlier in this preamble, the Fair Housing Act does not
actually require that features in covered units be "adaptable", except for
bathrooms. The adaptable feature is the reinforcement in bathroom walls which
allows later installation of grab bars. Accordingly, the Department believes
that a specification for reinforcement of the walls along stairs would exceed
the Act's requirements, because the necessary reinforcement could vary by type
of lift chosen, and more appropriately would be specified and installed as
part of the installation of the lift.
Thresholds at Exterior Doors/Thresholds to Balconies or Decks
Comment. A number of commenters from the building industry objected to
the provision of the Option One guidelines that specified that an exterior
deck, balcony, patio, or similar surface may be no more than 3/4 inch below
the adjacent threshold. Several commenters stated that, in many situations,
this height is unworkable for balconies and decks because of waterproofing and
safety concerns. This was a particular concern among commenters from the
South Florida building industry, who stated that the 3/4" height is
ineffective for upper floors of high rise buildings in a coastal environment
and invites water control problems. Others noted that the suggestion of a
wooden decking insert, or the specification of a 3/4 inch maximum change in
level, in general, might conflict with fire codes.
Response. In response to these concerns, and mindful that Congress did
not intend the accessibility requirements of the Act to override the need to
protect the physical integrity of multifamily housing, the Department has
included two additional provisions for changes in level at thresholds leading
to certain exterior surfaces, as a protective measure against possible water
damage. The final Guidelines provide that exterior deck, patio or balcony
surfaces should be no more than 1/2 inch below the floor level of the interior
of the dwelling unit, unless they are constructed of impervious material such
as concrete, brick or flagstone. In such case, the surface should be no more
than 4 inches below the floor level of the interior dwelling unit, unless the
local code requires a lower drop. Additionally, the final Guidelines provide
that at the primary entry doors to dwelling units with direct exterior access,
outside landing surfaces constructed of impervious materials such as concrete,
brick, or flagstone should be no more than 1/2 inch below the floor level of
the interior of the dwelling unit. The Guidelines further provide that the
finished surface of this area, located immediately outside the entry door, may
be sloped for drainage, but the sloping may be no more than 1/8 inch per foot.
In response to commenters' concern that the Guidelines for an accessible route to balconies and decks may conflict with certain building codes that require higher thresholds, or balconies or decks lower than the 3/4 inch specified by the Guidelines, the Department notes that the Guidelines are "recommended" design specifications, not building code "requirements". Accordingly, the Guidelines cannot preempt State or local law. However, the builder confronted with local requirements that thwart the particular means of providing accessibility suggested by the Guidelines is under a duty to take reasonable steps to provide for accessibility by other means consistent with local law constraints and considerations of cost-effectiveness, in order to provide dwelling units that meet the specific accessibility requirements of the Fair Housing Act.
Guidelines for Requirement 5
The Guidelines for Requirement 5 present design specifications for
providing dwelling units that contain light switches, electrical outlets,
thermostats, and other environmental controls in accessible locations, as
required by §100.205(c)(2)(ii).
The Department has adopted the Option One guidelines for Requirement 5 with minor technical changes. The final Guidelines clarify that to be in an accessible location within the meaning of the Act, the maximum height for an environmental control, for which reach is over an obstruction, is 44 inches for forward approach (as was proposed in the Option One guidelines), or 46 inches for side approach, provided that the obstruction is no more than 24 inches in depth. The inclusion of this additional specification for side approach is consistent with the comparable provisions in the ANSI Standard.
Specific comments on the Guidelines for Requirement 5 are as follows:
Comments. Three commenters stated that lowered thermostats could pose a
safety hazard for children. However, the majority of comments requested
clarification as to what is meant by "other environmental controls". Several
commenters from the disability community requested that circuit breakers be
categorized as environmental controls. Other commenters asked whether light
and fan switches on range hoods fall within the category of light switches and
environmental controls.
Response. With regard to concerns about lowered thermostats, the Act
specifically identifies "thermostats" as one of the controls that must be in
accessible locations, and the mounting heights specified in the Guidelines are
necessary for an accessible location. The only other environmental controls
covered by the Guidelines for Requirement 5 would be heating, air conditioning
or ventilation controls (e.g., ceiling fan controls). The Department
interprets the Act's requirement of placing environmental controls in
accessible locations as referring to those environmental controls that are
used by residents or tenants on a daily or regular basis. Circuit breakers do
not fall into this category, and therefore are not subject to accessible
location specifications. Light and fan switches on range hoods are appliance
controls and therefore are not covered by the Act.
Comment. Other commenters asked whether light switches and electrical
outlets in the inside corners of kitchen counter areas, and floor outlets are
permissible.
Response. Light switches and electrical outlets in the inside corners
of kitchen counters, and floor outlets, are permissible, if they are not the
only light switches and electrical outlets provided for the area.
Comment. Another commenter pointed out that some electrical outlets
that are installed specifically to serve individual appliances, such as
refrigerators or microwave ovens, cannot realistically be mounted in an
accessible location.
Response. Electrical outlets installed to serve individual appliances,
such as refrigerators or built-in microwave ovens, may be mounted in non-
accessible locations. These are not the type of electrical outlets which a
disabled resident or tenant would need access to on a regular or frequent
basis.
Comment. One commenter stated that Figure 3 in the proposed guidelines
(Figure 2 in the final Guidelines) specifies a reach requirement more
stringent than the ANSI Standard.
Response. The ANSI Standard presents reach ranges for both forward and
side approaches for two situations:
The proposed guidelines specified only the heights for forward reach, because those heights also are usable in side approach. The diagram in Figure 2 (formerly Figure 3) showing forward reach is identical to that of Figure 5 in the ANSI Standard. The ANSI Standard also includes a figure (Figure 6) for side reach that permits higher placement. The reach range for forward approach was the only one referenced in the proposed guidelines for use in the dwelling unit, because it was considered simpler and easier to use a single specification that would work in all situations. The reach range for forward approach has been retained in the final Guidelines for situations where there is no built-in obstruction in order to assure usability when the unit was furnished. However, the final Guidelines have added the specification for side reach over a built-in obstruction that is consistent with the ANSI requirement, and that permits placement two inches higher than forward reach.
Guidelines for Requirement 6
The Guidelines for Requirement 6 present design standards for
installation of reinforcement in bathroom walls to allow for later
installation of grab bars around the toilet, tub, shower stall and shower seat
where such facilities are provided, as required by §100.205(c)(3)(iii).
The Department adopted the Option One guidelines for Requirement 6 with two modifications. First, the final Guidelines provide that a powder room is subject to the requirement for reinforced walls for grab bars when the powder room is the only toilet facility located on the accessible level of a covered multistory dwelling unit. Second, the final Guidelines further clarify that reinforced bathroom walls will meet the accessibility requirement of §100.205(c)(3)(iii), if reinforced areas are provided at least at those points where grab bars will be mounted.
Specific comments on this guideline were as follows:
Comment. A number of commenters requested that the Department specify
the dimensions for grab bar reinforcement, and suggested that grab bar
reinforcing material run horizontally throughout the entire length of the
space given for grab bars, as provided by the ANSI standard. These commenters
stated that if this type of reinforcement was required, residents could locate more easily the studs for future grab bar installation, and have flexibility
in the placement of grab bars for optimal use, and safety in bathrooms. One
commenter noted that many grab bars are of such a length that they require an
intermediate fastener, but the proposed standard does not permit intermediate
fastening. Two commenters recommended that the final Guidelines follow ANSI
and UFAS standards for requirements for mounting grab bars. One commenter
recommended the installation of panels of plywood behind bathroom walls
because this would provide greater flexibility in the installation of grab
bars.
Response. The illustrations of grab bar wall reinforcement accompanying
the Guidelines for Requirement 6 are intended only to show where reinforcement
for grab bars is needed. The illustrations are not intended to prescribe how
the reinforcing should be provided, or that the bathtub or shower is required
to be surrounded by three walls of reinforcement. The additional language
added to the Guidelines is to clarify that the Act's accessibility requirement
for grab bar reinforcement is met if reinforced areas are provided, at a
minimum, at those points where grab bars will be mounted. The Department
recognizes that reinforcing for grab bars may be accomplished in a variety of
ways, such as by providing plywood panels in the areas illustrated, or by
installing vertical reinforcement (in the form of double studs, for example)
at the points noted on the figures accompanying the Guidelines.
Comment. Several commenters stated that the final Guidelines should
incorporate Option Two's specification of reinforcement for shower seats when
shower stalls are provided.
Response. The Fair Housing Act only requires reinforcement for later
installation of grab bars. The Act does not cover reinforcement for shower
seats; rather, it mentions shower seats (if provided) as an area where grab
bar reinforcement would be needed. However, as will be discussed more fully
in the following section concerning the Guidelines for Requirement 7 (Usable
Bathrooms), reinforcement for shower seats would provide adaptability to increase usability of shower stalls, and is a design option available to
builders and developers in designing "usable" bathrooms.
Comment. One commenter recommended that the final Guidelines
incorporate Option Two's specification that prefabricated tub/shower
enclosures would have to be fabricated with reinforcement for grab bar
enclosures.
Response. The Department did not incorporate this specification in the
final Guidelines. The Department believes that it is inappropriate to specify
product design. A builder should have the flexibility to choose how
reinforcement for grab bars will be provided.
Comment. Two commenters stated that half-baths should also contain
grab-bar reinforcements.
Response. Half-baths are not considered "bathrooms", as this term is
commonly used, and, therefore are not subject to the bathroom wall
reinforcement requirement, unless a half-bath facility is the only restroom
facility on the accessible level of a covered multistory dwelling unit.
Comment. One commenter requested that the final Guidelines incorporate
language clearly to specify that the builder's responsibility is limited
solely to wall reinforcement, and later installation is the responsibility of
the resident or tenant.
Response. It is unnecessary to incorporate the suggested language in
the final Guidelines. The Guidelines for Requirement 6 are solely directed to
reinforcement. No guidelines are provided for the actual installation of grab
bars. Accordingly, there should be no confusion on this issue.
Guidelines for Requirement 7
The Guidelines for Requirement 7 present design specifications for providing usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space, as required by §100.205(c)(3)(iv).
For usable kitchens, the Department adopted the Option One guidelines with one change. The Department has eliminated the specification that
controls for ranges and cooktops be placed so that reaching across burners is
not required.
For usable bathrooms, the final Guidelines provide two alternative sets
of design specifications. The Fair Housing Act requires that an accessible or
"usable" bathroom is one which provides sufficient space for an individual in
a wheelchair to maneuver about. The two sets of specifications provide
different approaches as to how compliance with this maneuvering space
requirement may be accomplished. The first set of specifications also
includes size dimensions for shower stalls, but only when a shower stall is
the only bathing facility provided in a dwelling unit. Additionally, either set of specifications is applicable to powder rooms, when a powder room is the
only restroom facility on the accessible level of a covered multistory dwelling unit.
With the exception of the inclusion of shower stall dimensions, the
first set of "usable bathroom" specifications remain the same as the Option
One guidelines for usable bathrooms. The second set of "usable bathroom"
specifications provide somewhat greater accessibility than the first set, but
would be applicable only to one bathroom in a dwelling unit that has two or
more bathrooms. The second set of specifications include clear space
specifications for bathrooms with in-swinging doors and for bathrooms with
outswinging doors. This second set of specifications also provides that
toilets must be located in a manner that permits a grab bar to be installed on
one side of the fixture, and provides specifications on the installation of
vanities and lavatories.
To meet the Act's requirements for usable bathrooms, the final Guidelines provide that
However, in multistory dwelling units, only those bathrooms on the accessible level are subject to the Act's requirements for
usable bathrooms. Where a powder room is the only restroom facility provided on the accessible level of a multistory dwelling unit, the powder must meet
either the first set of specifications or the second set of specifications.
All bathrooms and powder rooms that are subject to Requirement 7, must have
reinforcements for grab bars as provided in the Guideline for Requirement 6.
In developing the final Guidelines for the usable bathroom requirement,
the Department recognized that the Option One guidelines for usable bathrooms
presented the minimum specifications necessary to meet the Act's requirements.
Accordingly, the Department believes that it is appropriate to provide a
second set of specifications which provide somewhat different accessibility
accommodations than the Option One guidelines. The Department believes that
by offering two sets of specifications for usable bathrooms, the Department is
providing builders and developers with more development choices in designing
dwelling units that contain more than one bathroom; and it is providing
individuals and families with more housing options. Builders and developers
may design all bathrooms to meet the minimal specifications of the first set
of specifications, or they may design only one bathroom to meet the somewhat
greater accessibility specifications of the second set. Regardless of which
set of usable bathroom specifications is selected by a builder or developer,
all doors to bathrooms and powder rooms must meet the minimum door width
specifications of Requirement 3.
The following presents a discussion of the specific comments received on
usable kitchens and usable bathrooms.
Controls for Ranges and Cooktops
Comment. A few commenters stated that the Department lacks authority
under the Fair Housing Act to impose design standards on appliances. The
commenter stated that standards that specify certain design features for
appliances in individual dwelling units exceed the scope of the Department's
statutory authority. Other commenters objected to front range controls as a
safety hazard for children. Commenters from the disability community were
strongly supportive of this design specification.
Response. With respect to usable kitchens, the Act solely requires
that kitchens have sufficient space such that an individual in a wheelchair
can maneuver about. Accordingly, a specification that controls for ranges and
cooktops be placed so that they can be used without reaching across burners is
not consistent with the Act's requirement for usable kitchens.
In the proposed guidelines, the Option One guidelines for usable kitchens specified that controls should be located so as to be usable without reaching across burners. As the preamble to the proposed guidelines noted, many standard styles of ranges and cooktops meeting this specification (other than those with front controls) are available on the market. However, in reviewing the entire rulemaking history on the design and constructions requirements, the Department has concluded that the requirements of the Fair Housing Act did not cover any appliance controls. Accordingly, this specification was not included in the final Guidelines.
Maneuvering Space, Adjustable Cabinetry, Fixtures and Plumbing
Comment. A number of commenters from the disability community stated
that it was important that the Guidelines for both kitchens and bathrooms
specify a five-foot turning radius; adjustable cabinetry, fixtures and
plumbing; and fixture controls that comply with the appropriate provisions of
the ANSI Standard.
Response. The legislative history of the Fair Housing Act clearly
indicates that Congress did not envision usable kitchens and bathrooms to be
designed in accordance with the specifications suggested by the commenters.
In House Report No. 711, the Congress stated as follows:
Accordingly, the Department is unable to adopt any of the proposals suggested by the commenters. The Act's requirement for usable kitchens and bathrooms only specifies maneuverability for wheelchair users, and this maneuverability does not require the specification advocated by the commenters. (See previous discussion of this issue in the preamble to the proposed Fair Housing regulations at 53 FR 45005.)
Comment. Two commenters requested clarification concerning what is
meant by "sufficient maneuvering space". One of the commenters recommended
that this term be defined to include "such space as shall permit a person in a
wheelchair to use the features and appliances of a room without having to
leave the room to obtain an approach to an appliance, work surface, or
cabinet".
Response. The Guidelines for Requirement 7 (usable kitchens and
bathrooms) describe what constitutes sufficient maneuvering space in the
kitchen and the bathroom. Additionally, the preamble to the proposed
guidelines explicitly states that sufficient maneuvering space for kitchens
does not require a wheelchair turning radius (55 FR 24381). As noted in
response to the preceding comment, a wheelchair turning radius also is not required for either usable kitchens or usable bathrooms. The Guidelines for
usable bathroom state that sufficient maneuvering space is provided within the
bathroom for a person using a wheelchair or other assistive device to enter
and close the door, use the fixtures, reopen the door and exit. This
specification was not changed in the final Guidelines.
Kitchen Work Surfaces
Comment. One commenter stated that "Element 12" in the chart
accompanying the Guidelines for Requirement 2 (public and common use areas)
seems to require a portion of the kitchen counters to be accessible since they
are work surfaces. This commenter stated that if this interpretation is
correct then it should be made clear in the Guidelines.
Response. The commenter's interpretation is not correct. The chart
accompanying the Guidelines for Requirement 2 is only applicable to the public
and common use areas, not to individual dwelling units.
Showers
Comments. Several commenters requested that the final Guidelines
provide dimensions on the appropriate width and height of showers and shower
doors. Another commenter asked whether showers were required to comply with
dimensions specified by the ANSI Standard.
Response. The final Guidelines for usable bathrooms (the first set of
specifications) specify size dimensions for shower stalls in only one
situation -- when the shower stall is the only bathing facility provided in a
covered dwelling unit. The Department believes that, where a shower stall is
the only bathing facility provided, size specification for the shower stall is
consistent with the Act's requirement for usable bathrooms. However, if a
shower stall is not the only bathing facility provided in the dwelling unit,
then the only specification for showers, appropriate under the Act, concerns
reinforced walls in showers. (The titles under the illustrations (figures)
related to showers in the final Guidelines for Requirement 6 have been revised
to make it clear that the figures are specifying only the different areas
required to be reinforced in showers of different sizes, not the required
sizes of the shower stalls.)
In-swinging Bathroom Doors
Comment. One commenter stated that in-swinging bathroom doors generally
are problematic, unless the bathroom is unusually large. The commenter noted
that an in-swinging door makes it extremely difficult to enter and exit. The
commenter recommended that in-swinging doors be prohibited unless there is
sufficient internal bathroom space, exclusive of the swing of the door, which
allows either a five foot turning radius or two mutually exclusive 30" x 48"
wheelchair spaces. Another commenter stated that in-swinging bathroom doors
create a serious obstacle for the wheelchair user.
Response. The Department declines to prohibit in-swinging bathroom
doors. Adjusting an in-swinging door to swing out is the type of later
adaptation that can be made fairly easily by a resident or tenant. Once a
minimum door width is provided, a tenant who finds a bathroom not readily
usable can have the door rehung as an outswinging door. Note, however, that
the second set of guidelines for usable bathrooms specifies clear space for
bathrooms with in-swinging doors.
Bathroom Design Illustrations
Comment. A number of commenters from the disability community stated
that two of the six bathroom drawings in the preamble to the proposed
guidelines (numbers 4 and 6 at 55 FR 24374-24375) did not allow for a parallel
approach to the tub. These commenters requested that these drawings be
removed from the final Guidelines. Other commenters stated that the
Department's bathroom design illustrations at 55 FR 24374-24375 are not
consistent with the Figure 8 bathroom design illustrations at 55 FR 24401.
Response. While a parallel approach to the tub would provide somewhat
greater accessibility, the Department believes that to indicate, through the
Guidelines, that a parallel approach to the tub is necessary to meet the Act's
requirements, exceeds the Fair Housing Act's minimal design expectations for
bathrooms. Accordingly, the first set of specifications for usable bathrooms
does not specify a parallel approach to the tub. However, the second set of
specifications provides for a clear access aisle adjacent to the tub that
would permit a parallel approach to the tub. Either method would meet the
Act's requirements. With respect to the comments on the bathroom design
illustrations, these illustrations have been revised to make the clear floor
space requirements more readily understood. The illustrations are adapted
from ANSI A117.1.
Number of Accessible Bathrooms
Comment. A number of comments were received on how many bathrooms in a
dwelling unit should be subject to the Act's "usable" bathroom requirement.
Many commenters recommended that all full bathrooms be made accessible. Other
commenters recommended that only one full bathroom be required to be made
accessible. A few commenters recommended that half-baths/powder rooms also be
subject to the Act's requirement.
Response. In House Report No. 711, the Congress distinguished between
"total accessibility" and the level of accessibility required by the Fair
Housing Act. The report referred to standards requiring every aspect or
portion of buildings to be totally accessible, and pointed out that this was
not the level of accessibility required by the Act. The final Guidelines for
bathrooms are consistent with the Act's usable bathroom requirement, and
provide the level of accessibility intended by Congress. As discussed
previously in this preamble, the final Guidelines for usable bathrooms provide
two sets of specifications. The second set of specifications provides
somewhat greater accessibility than the first set of specifications. In view
of this fact, the final Guidelines provide that in a dwelling unit with a
single bathroom, the bathroom may be designed in accordance with either set of
specifications -- the first set or the second set. However, in a dwelling
unit with more than one bathroom, all bathrooms in the unit must comply with
the first set of specifications, or a minimum of one bathroom must comply with
the second set of specifications, and all other bathrooms must be on an
accessible route, and must have a usable entry door in accordance with the
guidelines for Requirements 3 and 4. Additionally, the final Guidelines
provide that a powder room must comply with the Act's usable bathroom
requirements when the powder room is the only restroom facility provided on
the accessible level of a multistory dwelling unit.
Comment. The Department received a number of comments on the March 13,
1991 compliance deadline, and on methods of achieving compliance. Many
commenters objected to the March 13, 1991 compliance deadline on the basis
that this deadline was unreasonable. Several commenters from the building
industry stated that, in many cases, design plans for buildings now under
construction were submitted over two years ago, and it would be very expensive
to make changes to buildings near completion. Other commenters stated that it
is unreasonable to impose additional requirements on a substantially completed
project that unexpectedly has been delayed for occupancy beyond the March 13,
1991 effective date.
Response. Section 804(f)(3)(C) of the Fair Housing Act states that the
design and construction standards will be applied to covered multifamily
dwelling units for first occupancy after the date that is 30 months after the
date of enactment of the Fair Housing Amendments Act. The Fair Housing Act
was enacted on September 13, 1988. The date that is 30 months from that date
is March 13, 1991. Accordingly, the inclusion of a March 13, 1991 compliance
date in §100.205 is a codification of the Act's compliance deadline. The
Department has no authority to change that date. Only Congress may extend the
March 13, 1991 deadline.
The Department, however, has been attentive to the concerns of the
building industry, and has addressed these concerns, to the extent that it
could, in prior published documents. In the preamble to the final Fair
Housing rule, the Department addressed the objections of the building industry
to the Department's reliance on "actual occupancy" as the sole basis for
determining "first occupancy". (See 54 FR 3251; 24 CFR Ch. I, Subch. A, App. I
at 585 (1990).) Commenters to the proposed Fair Housing rule, like the
commenters to the proposed guidelines, argued that coverage of the design and
construction requirements must be determinable at the beginning of planning
and development, and that projects delayed by unplanned and uncontrollable
events (labor strikes, Acts of God, etc.) should not be subject to the Act.
In order to accommodate the "legitimate concerns on the part of the
building industry" the Department expanded §100.205 of the final rule to
provide that covered multifamily dwellings would be deemed to be for first
occupancy if the last building permit or renewal thereof was issued on or
before January 13, 1990. A date of fourteen months before the March 13, 1991
deadline was selected because the median construction time for multifamily
housing projects of all sizes was determined to be fourteen months, based on
data provided by the Marshall Valuation Service.
More recently, the Department addressed similar concerns of the building
industry in the preamble to the proposed accessibility guidelines. In the
June 15, 1990 publication, the Department recognized that projects designed in
advance of the publication of the final Guidelines, may not become available
for first occupancy until after March 13, 1991. To provide some guidance, the
Department stated in the June 15, 1990 notice that compliance with the Option
One guidelines would be considered as evidence of compliance with the Act, in
projects designed before the issuance of the final Guidelines. The Department
restated its position on this issue in a supplementary notice published in the
Federal Register on August 1, 1990 (55 FR 31131). The specific circumstances
under which the Department would consider compliance with the Option One
guidelines as compliance with the accessibility requirements of the Act were
more fully addressed in the August 1, 1990 notice.
Comment. A number of commenters requested extending the date of
issuance of the last building permit from January 13, 1990 to some other date,
such as June 15, 1990, the date of publication of the proposed guidelines;
August 1, 1990, the date of publication of the supplementary notice; or
today's date, the date publication of the final Guidelines.
Response. The date of January 13, 1990 was not randomly selected by the
Department. This date was selected because it was fourteen months before the
compliance deadline of March 13, 1991. As previously noted in this preamble,
fourteen months was found to represent a reasonable median construction time
for multifamily housing projects of all sizes, based on data contained in the
Marshall Valuation Service. Builders have been on notice since January 23,
1989 -- the publication date of the final Fair Housing rule, that undertaking
construction after January 13, 1990 without adequate attention to
accessibility considerations would be at the builder's risk.
Comment. One commenter requested that the applicable building permit be
the "primary" building permit for a particular building. Other commenters
inquired about the status of building permits that are issued in stages, or
about small modifications to building plans during construction which
necessitate a reissued building permit.
Response. Following publication of the proposed Fair Housing
regulation, and the many comments received at that time from the building
industry expressing concern that "actual occupancy" was the only standard for
determining "first occupancy", the Department gave careful consideration to
the steps and stages involved in the building process. On the basis of this
study, the Department determined that an appropriate standard to determine
"first occupancy", other than actual occupancy, would be issuance of the last
building permit on or before January 13, 1990. This additional standard was
added to the final Fair Housing Act regulation. The Department believes that,
aside from actual occupancy, issuance of the last building permit remains the
appropriate standard.
Compliance Determinations by State and Local Jurisdictions
Comment. A few commenters questioned the role of States and units of local government in determining compliance with the Act's accessibility requirements. The commenters noted that