Date: September 12, 2007

On September 17, NMHC/NAA and a coalition of organizations submitted comments on a U.S. Department of Housing and Urban Development (HUD) proposal (72 FR 39540) to amend the rules implementing the Fair Housing Act’s design and construction requirements.  The stated intent of the proposal was to recognize the updated versions of the ANSI A117.1 standard as a safe harbor for compliance with the accessibility requirements and to codify the 10 safe harbors previously recognized by HUD.  We believe, however, that HUD is using the regulatory process and its enforcement actions to change the law. 

Specifically, our objections focused on the following provisions or statements by HUD:

1. failure to follow the HUD Design Guidelines establishes a prima facie case of noncompliance;
2. safe harbor protections are only effective when using the stated safe harbor in its entirety;
3. HUD's attempt to make the use of a stated safe harbor mandatory; and
4. the proposed sunset of earlier ANSI A117.1 versions as safe harbors. 

The coalition forcefully objected to the expansion of HUD’s interpretation of the Fair Housing Act, and we strongly encouraged the Department to withdraw those sections of the proposal where HUD lacks authority to make such changes.