Reconsideration of HUD's Implementation of the Fair Housing Act's Disparate Impact Standard, 28560-28562 [2018-13340]

Download as PDF 28560 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules 159979 (installation of non-data-loadable ELAC L99 P/N 3945128217). (ii) Airbus mod 160577 (installation of data-loadable ELAC P/N 3945129100 unit with L101 software P/N 3945129112) or mod 162042 (installation of non-data-loadable ELAC L101 P/N 3945128218). (2) An airplane on which any modification specified in paragraphs (k)(2)(i), (k)(2)(ii), or (k)(2)(iii) of this AD was done is not affected by the requirements of paragraph (h) of this AD, provided it is determined that no affected ELAC is installed as of the effective date of this AD. (i) A modification specified in Airbus Service Bulletin A320–27–1267, Revision 00, dated September 27, 2017 (ELAC L101 P/N 3945128218 non-data-loadable). (ii) A modification specified in Airbus Service Bulletin A320–27–1268, Revision 00, dated September 27, 2017 (ELAC P/N 3945129100 data-loadable with L101 software P/N 3945129112 for A320 NEO). (iii) A modification specified in Airbus Service Bulletin A320–27–1269, Revision 00, dated September 27, 2017 (ELAC P/N 3945129100 data-loadable with L101 software P/N 3945129112). sradovich on DSK3GMQ082PROD with PROPOSALS (l) Terminating Action for AD 2016–17–03 Accomplishing the actions required by paragraph (h) of this AD or complying with any method of compliance specified in paragraph (k) of this AD terminates all requirements of AD 2016–17–03. (m) Other FAA AD Provisions The following provisions also apply to this AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (n)(2) of this AD. Information may be emailed to: 9-ANM-116-AMOCREQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus’s EASA DOA. If approved by the DOA, the approval must include the DOAauthorized signature. (n) Related Information (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018–0007R1, dated January 19, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA–2018–0556. VerDate Sep<11>2014 16:51 Jun 19, 2018 Jkt 244001 (2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone 206–231– 3223; fax 206–231–3398. (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email account.airworth-eas@ airbus.com; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. Issued in Des Moines, Washington, on June 7, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service. [FR Doc. 2018–12885 Filed 6–19–18; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 100 [Docket No. FR–6111–A–01] RIN 2529–ZA01 Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Advance notice of proposed rulemaking. AGENCY: This advance notice of proposed rulemaking (ANPR) invites public comment on possible amendments to HUD’s 2013 final rule implementing the Fair Housing Act’s disparate impact standard, as well as the 2016 supplement to HUD’s responses to certain insurance industry comments made during the rulemaking. HUD is reviewing the final rule and supplement to determine what changes, if any, are appropriate following the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact claims were cognizable under the Fair Housing Act and discussed standards for, and the constitutional limitations on, such claims. As HUD conducts its review, it is soliciting SUMMARY: PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 public comment on the disparate impact standard set forth in the final rule and supplement, the burden-shifting approach, the relevant definitions, the causation standard, and whether changes to these or other provisions of the rule would be appropriate. HUD is also issuing this ANPR in response to public comments submitted on its May 15, 2017, Federal Register document seeking input on ineffective regulations and an October 26, 2017, recommendation from the Department of the Treasury. DATES: Comment Due Date: August 20, 2018. Interested persons are invited to submit comments to the Office of the General Counsel, Rules Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10276, Washington, DC 20410–0001. Communications should refer to the above docket number and title and should contain the information specified in the ‘‘Request for Comments’’ section. There are two methods for submitting public comments. 1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410–0500. Due to security measures at all federal agencies, however, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that comments submitted by mail be submitted at least two weeks in advance of the public comment deadline. 2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make comments immediately available to the public. Comments submitted electronically through the http://www.regulations.gov website can be viewed by other commenters and interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically. ADDRESSES: Note: To receive consideration as public comments, comments must be submitted through one of the two methods specified E:\FR\FM\20JNP1.SGM 20JNP1 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules above. Again, all submissions must refer to the docket number and title of the document. sradovich on DSK3GMQ082PROD with PROPOSALS No Facsimile Comments. Facsimile (fax) comments are not acceptable. Public Inspection of Comments. All comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at (202) 708– 3055 (this is not a toll-free number). Copies of all comments submitted are available for inspection and downloading at http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339. SUPPLEMENTARY INFORMATION: I. Background Title VIII of the Civil Rights Act of 1968, as amended (Fair Housing Act or Act),1 prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin. On February 15, 2013, HUD published a final rule, entitled ‘‘Implementation of the Fair Housing Act’s Discriminatory Effects Standard.’’ 2 The final rule codified HUD’s interpretation that the Fair Housing Act creates liability for practices with an unjustified discriminatory effect, even if those practices were not motivated by discriminatory intent.3 Relying in part on case law under the Fair Housing Act and Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination), HUD’s Disparate Impact Rule established a burdenshifting framework for analyzing claims of disparate impact under the Fair Housing Act.4 In 2016, HUD published a supplement to its responses to certain insurance industry comments made 1 42 U.S.C. 3601–3619, 3631. FR 11460. 3 See 24 CFR 100.5(b), 100.70(d)(5), 100.120(b), 100.130(b), and 100.500. 4 See 24 CFR 100.500(c). 2 78 VerDate Sep<11>2014 16:51 Jun 19, 2018 Jkt 244001 during the rulemaking.5 This ANPR uses the term ‘‘Disparate Impact Rule’’ to refer collectively to the 2013 final rule and 2016 supplement. In 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.,6 (Inclusive Communities), the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act. The Court’s opinion referenced HUD’s Disparate Impact Rule, but the Court did not extensively review the rule or rely on it for its holding. Rather, the Court undertook its own analysis of the Fair Housing Act and discussed the standards for, and constitutional limitations on, disparate impact claims. The Supreme Court’s ruling in Inclusive Communities recognized the availability of disparate impact claims under the Fair Housing Act independent of HUD’s Disparate Impact Rule. HUD is reviewing the Disparate Impact Rule to determine what changes, if any, may be necessary in light of the Inclusive Communities decision. As it conducts this review, HUD welcomes public comment on other amendments to the Disparate Impact Rule that may be necessary or helpful. The request for comments contained in this ANPR is also consistent with HUD’s efforts to carry out the Administration’s regulatory reform efforts. On May 15, 2017, HUD published a Federal Register document pursuant to Executive Orders 13771, ‘‘Reducing Regulation and Controlling Regulatory Costs,’’ and 13777, ‘‘Enforcing the Regulatory Reform Agenda,’’ inviting public comments to assist HUD in identifying existing regulations that may be outdated, ineffective, or excessively burdensome.7 In response, HUD received numerous comments asserting that the Disparate Impact Rule created uncertainty for commercial decisionmaking, as well as public policymaking, and that the rule is inconsistent with Inclusive Communities. On the other hand, HUD also received comments in support of the Disparate Impact Rule, asserting that it was cited in Inclusive Communities and is consistent with that decision. Additionally, in October 2017, the Secretary of the Treasury issued a report that explicitly recommended that HUD reconsider applications of the Disparate Impact Rule, especially in the context of the insurance industry.8 5 See ‘‘Application of the Fair Housing Act’s Discriminatory Effects Standard to Insurance,’’ 81 FR 69012 (Oct. 5, 2016). 6 135 S. Ct. 2507 (2015). 7 82 FR 22344. 8 See U.S. Department of the Treasury Report: A Financial System That Creates Economic PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 28561 In light of Inclusive Communities, public comments submitted in response to HUD’s May 15, 2017, Federal Register document, and the recommendation from the Department of the Treasury, HUD is seeking public comment on whether the Disparate Impact Rule should be revised for any considerations of law or policy raised in those fora or that are otherwise appropriate. II. This Advance Notice of Proposed Rulemaking HUD seeks public comment on appropriate changes, if any, to the Disparate Impact Rule. While the following list is not exhaustive, HUD is particularly interested in comments on the following questions: 1. Does the Disparate Impact Rule’s burden of proof standard for each of the three steps of its burden-shifting framework clearly assign burdens of production and burdens of persuasion, and are such burdens appropriately assigned? 2. Are the second and third steps of the Disparate Impact Rule’s burdenshifting framework sufficient to ensure that only challenged practices that are artificial, arbitrary, and unnecessary barriers result in disparate impact liability? 3. Does the Disparate Impacts Rule’s definition of ‘‘discriminatory effect’’ in 24 CFR 100.500(a) in conjunction with the burden of proof for stating a prima facie case in 24 CFR 100.500(c) strike the proper balance in encouraging legal action for legitimate disparate impact cases while avoiding unmeritorious claims? 4. Should the Disparate Impact Rule be amended to clarify the causality standard for stating a prima facie case under Inclusive Communities and other Supreme Court rulings? 5. Should the Disparate Impact Rule provide defenses or safe harbors to claims of disparate impact liability (such as, for example, when another federal statute substantially limits a defendant’s discretion or another federal statute requires adherence to state statutes)? 6. Are there revisions to the Disparate Impact Rule that could add to the clarity, reduce uncertainty, decrease regulatory burden, or otherwise assist the regulated entities and other members of the public in determining what is lawful? Opportunities, Asset Management and Insurance (Oct. 26, 2017), available at: https:// www.treasury.gov/press-center/press-releases/ Documents/A-Financial-System-That-CreatesEconomic-Opportunities-Asset_ManagementInsurance.pdf. E:\FR\FM\20JNP1.SGM 20JNP1 28562 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules II. Findings and Certifications Environmental Impact This ANPR is exclusively concerned with nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), it is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321–4347). Regulatory Review—Executive Orders 12866 and 13563 Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are ‘‘outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This ANPR was reviewed by OMB and determined to likely result in a ‘‘significant regulatory action,’’ as defined in section 3(f) of Executive Order 12866. Dated: June 18, 2018. ´ Anna Maria Farıas, Assistant Secretary for Fair Housing and Equal Opportunity. [FR Doc. 2018–13340 Filed 6–18–18; 4:15 pm] BILLING CODE 4210–67–P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1926 [Docket ID–OSHA–2007–0066] sradovich on DSK3GMQ082PROD with PROPOSALS RIN 1218–AC96 Cranes and Derricks in Construction: Operator Qualification Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice of proposed rulemaking; extension of public comment period. AGENCY: On May 21, 2018, OSHA published a notice of proposed rulemaking (NPRM) titled ‘‘Cranes and SUMMARY: VerDate Sep<11>2014 16:51 Jun 19, 2018 Jkt 244001 Derricks in Construction: Operator Qualification.’’ The period for submitting public comments is being extended by 15 days to allow parties affected by the rule additional time to review the proposed rule and collect information and data necessary for comment. DATES: Comments: The comment period for the proposed rule published in the Federal Register on May 21, 2018 (83 FR 23534), is extended. Submit comments to the proposed rule, including comments to the information collection requirements (described under the section titled ‘‘Agency Determinations’’), hearing requests, and other information by July 5, 2018. All submissions must bear a postmark or provide other evidence of the date submitted. ADDRESSES: Submit comments, hearing requests, and other material, identified by Docket No. OSHA–2007–0066, using any of the following methods: Electronically: Submit comments and attachments, as well as hearing requests and other information, electronically at http://www.regulations.gov, the Federal e-Rulemaking Portal. This docket may include several Federal Register notices for active rulemakings; therefore it is necessary to select the correct notice, or its ID number, to submit comments for this rulemaking. After accessing the docket (OSHA–2007–0066), check the ‘‘proposed rule’’ box in the column headed ‘‘Document Type,’’ find the document posted on the date of publication of this document, and click the ‘‘Submit a Comment’’ link. Additional instructions for submitting comments are available on the http:// www.regulations.gov homepage. Facsimile: OSHA allows facsimile transmission of comments that are ten pages or fewer in length (including attachments). Fax these documents to the OSHA Docket Office at (202) 693– 1648. OSHA does not require submission of hard copies of these documents. For additional attachments that supplement comments submitted by facsimile (e.g., studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Technical Data Center, Room N–3653, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210. These attachments must clearly identify the sender’s name, the date, subject, and the docket number (OSHA– 2007–0066). Regular mail, express delivery, hand delivery, and messenger (courier) service: Submit comments and any additional material to the OSHA Docket Office, RIN No. 1218–AC86, Technical PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 Data Center, Room N–3653, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210; telephone: (202) 693–2350, TTY number: (877) 889–5627. Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The Docket Office will accept deliveries (express delivery, hand delivery, messenger service) during the Docket Office’s normal business hours, 10:00 a.m. to 3:00 p.m., ET. Information Collection Requirements: OSHA welcomes comments on the information collection requirements contained in this rule on the same basis as for any other aspect of the rule. Interested parties may also submit comments about the information collection requirements directly to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OSHA (RIN 1218–AC96), Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395–6881 (this is not a toll-free number), email: OIRA_ submission@omb.eop.gov. See Paperwork Reduction Act section of this preamble for particular areas of interest. Instructions: All submissions must include the agency’s name, the title of the rulemaking (Cranes and Derricks in Construction: Operator Qualification), and the docket number (OSHA–2007– 0066). Absent copyright protections or other restrictions, OSHA will place comments and other material, including any personal information, in the public docket without revision, and the comments and other material will be available online at http:// www.regulations.gov. Therefore, commenters should not submit statements they do not want made available to the public, or submit comments that contain personal information (either about themselves or others) such as Social Security Numbers, birth dates, and medical data. Docket: To read or download comments or other material in the electronic docket, go to http:// www.regulations.gov or to the OSHA Docket Office at the above address. Some information submitted (e.g., copyrighted material) is not available publicly to read or download through this website. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions. FOR FURTHER INFORMATION CONTACT: E:\FR\FM\20JNP1.SGM 20JNP1

Agencies

[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28560-28562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13340]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 100

[Docket No. FR-6111-A-01]
RIN 2529-ZA01


Reconsideration of HUD's Implementation of the Fair Housing Act's 
Disparate Impact Standard

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

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This advance notice of proposed rulemaking (ANPR) invites 
public comment on possible amendments to HUD's 2013 final rule 
implementing the Fair Housing Act's disparate impact standard, as well 
as the 2016 supplement to HUD's responses to certain insurance industry 
comments made during the rulemaking. HUD is reviewing the final rule 
and supplement to determine what changes, if any, are appropriate 
following the Supreme Court's 2015 ruling in Texas Department of 
Housing and Community Affairs v. Inclusive Communities Project, Inc., 
which held that disparate impact claims were cognizable under the Fair 
Housing Act and discussed standards for, and the constitutional 
limitations on, such claims. As HUD conducts its review, it is 
soliciting public comment on the disparate impact standard set forth in 
the final rule and supplement, the burden-shifting approach, the 
relevant definitions, the causation standard, and whether changes to 
these or other provisions of the rule would be appropriate. HUD is also 
issuing this ANPR in response to public comments submitted on its May 
15, 2017, Federal Register document seeking input on ineffective 
regulations and an October 26, 2017, recommendation from the Department 
of the Treasury.

DATES: Comment Due Date: August 20, 2018.

ADDRESSES: Interested persons are invited to submit comments to the 
Office of the General Counsel, Rules Docket Clerk, Department of 
Housing and Urban Development, 451 Seventh Street SW, Room 10276, 
Washington, DC 20410-0001. Communications should refer to the above 
docket number and title and should contain the information specified in 
the ``Request for Comments'' section. There are two methods for 
submitting public comments.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW, Room 10276, 
Washington, DC 20410-0500. Due to security measures at all federal 
agencies, however, submission of comments by mail often results in 
delayed delivery. To ensure timely receipt of comments, HUD recommends 
that comments submitted by mail be submitted at least two weeks in 
advance of the public comment deadline.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. HUD strongly encourages commenters to 
submit comments electronically. Electronic submission of comments 
allows the commenter maximum time to prepare and submit a comment, 
ensures timely receipt by HUD, and enables HUD to make comments 
immediately available to the public. Comments submitted electronically 
through the http://www.regulations.gov website can be viewed by other 
commenters and interested members of the public. Commenters should 
follow instructions provided on that site to submit comments 
electronically.

    Note:  To receive consideration as public comments, comments 
must be submitted through one of the two methods specified

[[Page 28561]]

above. Again, all submissions must refer to the docket number and 
title of the document.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Comments. All comments and communications 
submitted to HUD will be available for public inspection and copying 
between 8 a.m. and 5 p.m. weekdays at the above address. Due to 
security measures at the HUD Headquarters building, an advance 
appointment to review the public comments must be scheduled by calling 
the Regulations Division at (202) 708-3055 (this is not a toll-free 
number). Copies of all comments submitted are available for inspection 
and downloading at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant 
Secretary, Office of Policy, Legislative Initiatives, and Outreach, 
Office Fair Housing and Equal Opportunity, Department of Housing and 
Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; 
telephone number 202-402-6577. Individuals with hearing or speech 
impediments may access this number via TTY by calling the toll-free 
Federal Relay Service during working hours at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    Title VIII of the Civil Rights Act of 1968, as amended (Fair 
Housing Act or Act),\1\ prohibits discrimination in the sale, rental, 
or financing of dwellings and in other housing-related activities on 
the basis of race, color, religion, sex, disability, familial status, 
or national origin. On February 15, 2013, HUD published a final rule, 
entitled ``Implementation of the Fair Housing Act's Discriminatory 
Effects Standard.'' \2\ The final rule codified HUD's interpretation 
that the Fair Housing Act creates liability for practices with an 
unjustified discriminatory effect, even if those practices were not 
motivated by discriminatory intent.\3\ Relying in part on case law 
under the Fair Housing Act and Title VII of the Civil Rights Act of 
1964 (prohibiting employment discrimination), HUD's Disparate Impact 
Rule established a burden-shifting framework for analyzing claims of 
disparate impact under the Fair Housing Act.\4\ In 2016, HUD published 
a supplement to its responses to certain insurance industry comments 
made during the rulemaking.\5\ This ANPR uses the term ``Disparate 
Impact Rule'' to refer collectively to the 2013 final rule and 2016 
supplement.
---------------------------------------------------------------------------

    \1\ 42 U.S.C. 3601-3619, 3631.
    \2\ 78 FR 11460.
    \3\ See 24 CFR 100.5(b), 100.70(d)(5), 100.120(b), 100.130(b), 
and 100.500.
    \4\ See 24 CFR 100.500(c).
    \5\ See ``Application of the Fair Housing Act's Discriminatory 
Effects Standard to Insurance,'' 81 FR 69012 (Oct. 5, 2016).
---------------------------------------------------------------------------

    In 2015, in Texas Department of Housing and Community Affairs v. 
Inclusive Communities Project, Inc.,\6\ (Inclusive Communities), the 
Supreme Court held that disparate impact claims are cognizable under 
the Fair Housing Act. The Court's opinion referenced HUD's Disparate 
Impact Rule, but the Court did not extensively review the rule or rely 
on it for its holding. Rather, the Court undertook its own analysis of 
the Fair Housing Act and discussed the standards for, and 
constitutional limitations on, disparate impact claims. The Supreme 
Court's ruling in Inclusive Communities recognized the availability of 
disparate impact claims under the Fair Housing Act independent of HUD's 
Disparate Impact Rule. HUD is reviewing the Disparate Impact Rule to 
determine what changes, if any, may be necessary in light of the 
Inclusive Communities decision. As it conducts this review, HUD 
welcomes public comment on other amendments to the Disparate Impact 
Rule that may be necessary or helpful.
---------------------------------------------------------------------------

    \6\ 135 S. Ct. 2507 (2015).
---------------------------------------------------------------------------

    The request for comments contained in this ANPR is also consistent 
with HUD's efforts to carry out the Administration's regulatory reform 
efforts. On May 15, 2017, HUD published a Federal Register document 
pursuant to Executive Orders 13771, ``Reducing Regulation and 
Controlling Regulatory Costs,'' and 13777, ``Enforcing the Regulatory 
Reform Agenda,'' inviting public comments to assist HUD in identifying 
existing regulations that may be outdated, ineffective, or excessively 
burdensome.\7\ In response, HUD received numerous comments asserting 
that the Disparate Impact Rule created uncertainty for commercial 
decisionmaking, as well as public policymaking, and that the rule is 
inconsistent with Inclusive Communities. On the other hand, HUD also 
received comments in support of the Disparate Impact Rule, asserting 
that it was cited in Inclusive Communities and is consistent with that 
decision. Additionally, in October 2017, the Secretary of the Treasury 
issued a report that explicitly recommended that HUD reconsider 
applications of the Disparate Impact Rule, especially in the context of 
the insurance industry.\8\
---------------------------------------------------------------------------

    \7\ 82 FR 22344.
    \8\ See U.S. Department of the Treasury Report: A Financial 
System That Creates Economic Opportunities, Asset Management and 
Insurance (Oct. 26, 2017), available at: https://www.treasury.gov/press-center/press-releases/Documents/A-Financial-System-That-Creates-Economic-Opportunities-Asset_Management-Insurance.pdf.
---------------------------------------------------------------------------

    In light of Inclusive Communities, public comments submitted in 
response to HUD's May 15, 2017, Federal Register document, and the 
recommendation from the Department of the Treasury, HUD is seeking 
public comment on whether the Disparate Impact Rule should be revised 
for any considerations of law or policy raised in those fora or that 
are otherwise appropriate.

II. This Advance Notice of Proposed Rulemaking

    HUD seeks public comment on appropriate changes, if any, to the 
Disparate Impact Rule. While the following list is not exhaustive, HUD 
is particularly interested in comments on the following questions:
    1. Does the Disparate Impact Rule's burden of proof standard for 
each of the three steps of its burden-shifting framework clearly assign 
burdens of production and burdens of persuasion, and are such burdens 
appropriately assigned?
    2. Are the second and third steps of the Disparate Impact Rule's 
burden-shifting framework sufficient to ensure that only challenged 
practices that are artificial, arbitrary, and unnecessary barriers 
result in disparate impact liability?
    3. Does the Disparate Impacts Rule's definition of ``discriminatory 
effect'' in 24 CFR 100.500(a) in conjunction with the burden of proof 
for stating a prima facie case in 24 CFR 100.500(c) strike the proper 
balance in encouraging legal action for legitimate disparate impact 
cases while avoiding unmeritorious claims?
    4. Should the Disparate Impact Rule be amended to clarify the 
causality standard for stating a prima facie case under Inclusive 
Communities and other Supreme Court rulings?
    5. Should the Disparate Impact Rule provide defenses or safe 
harbors to claims of disparate impact liability (such as, for example, 
when another federal statute substantially limits a defendant's 
discretion or another federal statute requires adherence to state 
statutes)?
    6. Are there revisions to the Disparate Impact Rule that could add 
to the clarity, reduce uncertainty, decrease regulatory burden, or 
otherwise assist the regulated entities and other members of the public 
in determining what is lawful?

[[Page 28562]]

II. Findings and Certifications

Environmental Impact

    This ANPR is exclusively concerned with nondiscrimination 
standards. Accordingly, under 24 CFR 50.19(c)(3), it is categorically 
excluded from environmental review under the National Environmental 
Policy Act (42 U.S.C. 4321-4347).

Regulatory Review--Executive Orders 12866 and 13563

    Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made whether a regulatory action is significant 
and therefore, subject to review by the Office of Management and Budget 
(OMB) in accordance with the requirements of the order. Executive Order 
13563 (Improving Regulations and Regulatory Review) directs executive 
agencies to analyze regulations that are ``outmoded, ineffective, 
insufficient, or excessively burdensome, and to modify, streamline, 
expand, or repeal them in accordance with what has been learned. 
Executive Order 13563 also directs that, where relevant, feasible, and 
consistent with regulatory objectives, and to the extent permitted by 
law, agencies are to identify and consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public. This ANPR was reviewed by OMB and determined to likely result 
in a ``significant regulatory action,'' as defined in section 3(f) of 
Executive Order 12866.

    Dated: June 18, 2018.
Anna Maria Far[iacute]as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018-13340 Filed 6-18-18; 4:15 pm]
 BILLING CODE 4210-67-P