Preserving Community and Neighborhood Choice, 47899-47912 [2020-16320]
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Federal Register / Vol. 85, No. 153 / Friday, August 7, 2020 / Rules and Regulations
1979), and DOT Order 5610.1C,
Paragraph 16. Executive Order 12114
requires the FAA to be informed of
environmental considerations and take
those considerations into account when
making decisions on major Federal
actions that could have environmental
impacts anywhere beyond the borders of
the United States. The FAA has
determined that this action is exempt
pursuant to Section 2–5(a)(i) of
Executive Order 12114 because it does
not have the potential for a significant
effect on the environment outside the
United States.
In accordance with FAA Order
1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 8–
6(c), the FAA has prepared a
memorandum for the record stating the
reason(s) for this determination and has
placed it in the docket for this
rulemaking.
B. Executive Order 13132, Federalism
The FAA has analyzed this final rule
under the principles and criteria of
Executive Order 13132, Federalism. The
agency determined that this action will
not have a substantial direct effect on
the States, or the relationship between
the Federal Government and the States,
or on the distribution of power and
responsibilities among the various
levels of government, and, therefore,
does not have federalism implications.
C. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
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The FAA analyzed this final rule
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The
agency has determined that it is not a
‘‘significant energy action’’ under the
Executive order and it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
E. Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
This rule is not an Executive Order
13771 regulatory action because this
rule is not significant under Executive
Order 12866.
VI. How To Obtain Additional
Information
A. Availability of Rulemaking
Documents
An electronic copy of a rulemaking
document may be obtained by using the
internet —
1. Search the Federal eRulemaking
Portal (https://www.regulations.gov/);
2. Visit the FAA’s Regulations and
Policies web page at https://
www.faa.gov/regulations_policies/ or
3. Access the Government Printing
Office’s web page at https://
www.govinfo.gov/.
Copies may also be obtained by
sending a request (identified by notice,
amendment, or docket number of this
rulemaking) to the Federal Aviation
Administration, Office of Rulemaking,
ARM–1, 800 Independence Avenue SW,
Washington, DC 20591, or by calling
(202) 267–9677.
B. Small Business Regulatory
Enforcement Fairness Act
List of Subjects in 14 CFR Part 93
Air traffic control, Airspace,
Navigation (air).
Executive Order 13609, Promoting
International Regulatory Cooperation,
promotes international regulatory
cooperation to meet shared challenges
involving health, safety, labor, security,
environmental, and other issues and to
reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements. The FAA has analyzed
this action under the policies and
agency responsibilities of Executive
Order 13609, and has determined that
this action would have no effect on
international regulatory cooperation.
The Amendment
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PART 93—SPECIAL AIR TRAFFIC
RULES
1. The authority citation for part 93
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40103,
40106, 40109, 40113, 44502, 44514, 44701,
44715, 44719, 46301.
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Subpart H—Mandatory Use of the New York
North Shore Helicopter Route
Sec.
93.101 Applicability.
93.103 Helicopter operations.
§ 93.101
Applicability.
This subpart prescribes a special air
traffic rule for civil helicopters
operating VFR along the North Shore,
Long Island, New York, between August
5, 2020, and August 5, 2022.
§ 93.103
Helicopter operations.
(a) Unless otherwise authorized, each
person piloting a helicopter along Long
Island, New York’s northern shoreline
between the VPLYD waypoint and
Orient Point, shall utilize the North
Shore Helicopter route and altitude, as
published.
(b) Pilots may deviate from the route
and altitude requirements of paragraph
(a) of this section when necessary for
safety, weather conditions or
transitioning to or from a destination or
point of landing.
Issued under authority provided by 49
U.S.C. 106(f), 44701(a), and 44703 in
Washington, DC, on August 4, 2020.
Steve Dickson,
Administrator.
BILLING CODE 4910–13–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 5, 91, 92, 570, 574, 576,
903
[Docket No. FR 6228–F–01]
RIN 2501–AD95
Preserving Community and
Neighborhood Choice
Office of Fair Housing, HUD.
Final rule.
AGENCY:
ACTION:
HUD grantees are generally
required to certify that they will
‘‘affirmatively further fair housing’’
(AFFH) through HUD’s implementation
of the 1968 Fair Housing Act and other
applicable statutes. For years after this
certification was first required, it was
merely part of a general commitment to
use the funds in good faith and
accompanied similar certifications not
to violate various civil rights statutes.
Over time however, HUD began to use
this AFFH certification as a vehicle to
force states and localities to change
zoning and other land use laws. This
was done via a series of regulations and
guidance documents culminating with
SUMMARY:
In consideration of the foregoing, the
Federal Aviation Administration
amends chapter I of Title 14 of the Code
of Federal Regulations as follows:
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2. Revise Subpart H to read as follows:
[FR Doc. 2020–17334 Filed 8–5–20; 4:15 pm]
The Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with
small entity requests for information or
advice about compliance with statutes
and regulations within its jurisdiction.
A small entity with questions regarding
this document may contact its local
FAA official, or the person listed under
the FOR FURTHER INFORMATION CONTACT
heading at the beginning of the
preamble. To find out more about
SBREFA, visit https://www.faa.gov/
regulations_policies/rulemaking/sbre_
act/.
D. Executive Order 13609, Promoting
International Regulatory Cooperation
■
47899
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Federal Register / Vol. 85, No. 153 / Friday, August 7, 2020 / Rules and Regulations
the 2015 AFFH rule. This approach is
not required by applicable statutes,
which give HUD considerable discretion
in determining what ‘‘affirmatively
furthering fair housing’’ means, and it is
also at odds with both federalism
principles and specific statutes
protecting local control over housing
policy. For example, Congress
specifically barred HUD from using
funding to force grantees to change any
public policy, regulation, or law. HUD
has reexamined the 2015 AFFH rule and
the definition of AFFH. In the new rule,
HUD repeals the 2015 AFFH rule and its
related accretions. The new rule returns
to the original understanding of what
the AFFH certification was for the first
eleven years of its existence: AFFH
certifications will be deemed sufficient
provided grantees took affirmative steps
to further fair housing policy during the
relevant period.
DATES: Effective date: September 8,
2020.
FOR FURTHER INFORMATION CONTACT:
Andrew Hughes, Chief of Staff, or
Andrew McCall, Deputy Chief of Staff,
U.S. Department of Housing and Urban
Development, 451 7th Street SW,
Washington, DC 20410, telephone
number 202–402–5955 (this is not a tollfree number). Persons with hearing or
speech challenges may access this
number through TTY by calling the tollfree Federal Relay Service at 800–877–
8339.
SUPPLEMENTARY INFORMATION:
I. Background
The 1968 Fair Housing Act requires
that agencies administering housingrelated programs do so ‘‘in a manner
affirmatively to further the purposes’’ of
the Act.1 Similarly, HUD grantees are
generally required to certify that they
will ‘‘affirmatively further fair
housing.’’ 2
1 42
U.S.C. 3608(e)(5).
104(b)(2) of the Housing and
Community Development Act (HCD Act) (42 U.S.C.
5304(b)(2)) requires that, to receive a grant, the state
or local government must certify that it will
affirmatively further fair housing. Section
106(d)(7)(B) of the HCD Act (42 U.S.C.
5306(d)(7)(B)) requires a local government that
receives a grant from a state to certify that it will
affirmatively further fair housing. The Cranston
Gonzalez National Affordable Housing Act (NAHA)
(42 U.S.C. 12704 et seq.) provides in section 105 (42
U.S.C. 12705) that states and local governments that
receive certain grants from HUD must develop a
comprehensive housing affordability strategy to
identify their overall needs for affordable and
supportive housing for the ensuing 5 years,
including housing for homeless persons, and
outline their strategy to address those needs. As
part of this comprehensive planning process,
section 105(b)(15) of NAHA (42 U.S.C.
12705(b)(15)) requires that these program
participants certify that they will affirmatively
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This phrase is not defined in statute.
Until 1994, HUD did not define it by
regulation. It was simply among a series
of certifications designed to ensure that
the funds were generally used as
intended and consistent with civil rights
law. Since then, the obligations
surrounding the certification have
expanded significantly.
II. The Evolution of the AFFH
Obligation
In 1994, President Clinton signed an
Executive Order directing HUD to issue
AFFH regulations. Among other things,
the regulations were to ‘‘describe a
method to identify impediments in
programs or activities that restrict fair
housing choice.’’ 3 The same year, HUD
promulgated a rule dictating that a
grantee would fulfill its AFFH
obligation by conducting an analysis of
‘‘impediments to fair housing choice
within its jurisdiction’’ and ‘‘taking
appropriate actions to overcome the
effects of any impediments.’’ 4
Recipients were to gather data and keep
written records of their analyses. They
were encouraged to communicate with
the public about the process, but were
not required to submit materials to HUD
beyond a summary of the Analysis of
Impediments (AI).5 In 1996, HUD issued
a 170-page guidance document to
explain further the meaning of the fourword phrase ‘‘affirmatively further fair
housing.’’ 6
Once in place, the AI process became
a vehicle for interest groups and HUD to
impose even greater and more
controversial obligations on state and
local grantees. In 2006, a housing
organization sued Westchester County
under the Federal False Claims Act on
the theory that the AFFH certification
the County made to obtain funding was
further fair housing. The Quality Housing and Work
Responsibility Act of 1998 (QHWRA), enacted into
law on October 21, 1998, substantially modified the
United States Housing Act of 1937 (42 U.S.C. 1437
et seq.) (1937 Act), and the 1937 Act was more
recently amended by the Housing and Economic
Recovery Act of 2008, Public Law 110–289 (HERA).
QHWRA introduced formal planning processes for
PHAs—a 5-Year Plan and an Annual Plan. The
required contents of the Annual Plan included a
certification by the PHA that the PHA will, among
other things, affirmatively further fair housing.
3 Executive Order No. 12892, 59 FR 2939 (Jan. 20,
1994).
4 See 2014 regulations for CDBG entitlement
communities at 24 CFR 570.601. Regulations for the
consolidated plan process are the 2014 versions of
24 CFR 91.225 (local governments), § 91.325 (state
governments), and § 91.425 (consortia applicants).
5 Perl, The Fair Housing Act: HUD Oversight,
Programs, and Activities, Congressional Research
Service (Jun. 15, 2018).
6 HUD Fair Housing Planning Guide Volume I,
1996, available at https://www.hud.gov/sites/dfiles/
FHEO/documents/Fair%20Housing%20Planning
%20Guide_508.pdf.
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false.7 Meritorious False Claims Act
cases are typically taken on by the
government with the original litigant
sharing in any award. In fact of the
4,294 cases filed by the end of 2003,
DOJ declined to intervene in 2,653 cases
(62%); the United States intervened (or
the cases were otherwise pursued) in
750 cases, and the remainder (891 cases)
are still under investigation.8 After the
change in administrations in 2009,
however, HUD decided to intervene.
HUD negotiated a settlement forcing the
County to change its zoning laws and to
pass legislation requiring landlords to
accept Section 8 tenants, both highly
controversial propositions never
authorized by law.9
Following that expansion of
requirements imposed under the guise
of the AFFH certification, HUD
promulgated an even more aggressive
AFFH rule finalized in 2015. The 2015
rule, for the first time, provided a
detailed definition of AFFH and
provided a new process called an
Assessment of Fair Housing (AFH),
effectively replacing AI. The regulation
specifically required a detailed analysis
of the grantee jurisdiction’s ‘‘zoning and
land use’’ laws.10 Those were not the
only local matters targeted. The
regulation noted that fair housing issues
‘‘may arise from such factors as . . .
public services that may be offered in
connection with housing (e.g., water,
sanitation), and a host of other issues.11
Its accompanying assessment tool forced
Public Housing Authority grantees to
analyze and consider data and policies
beyond their jurisdictional control and
typical subject-matter expertise.12 For
example, the rule required identifying
disparities in ‘‘access to public
transportation, quality schools and jobs
. . . [and] environmental health
hazards’’ and ‘‘programs, policies, or
funding mechanisms that affect
disparities’’ to such access. In some
cases, grantees were required to gather
data going back to the 1990s.13
The process for grantees was also
overly burdensome and costly. The
number of questions, the open-ended
7 United States ex rel. Anti-Discrimination Ctr. of
Metro N.Y., Inc. v. Westchester Cty., 712 F.3d 761,
766 (2013).
8 Thomas L. Carson, et. al., Whistle-Blowing for
Profit: An Ethical Analysis of the Federal False
Claims Act, Journal of Business Ethics (2008) 77:
361–376.
9 United States ex rel. Anti-Discrimination Ctr. of
Metro N.Y. v. Westchester County, 712 F.3d 761,
766 (2013).
10 80 FR 42290 (Jul. 16, 2015).
11 80 FR 42286 (Jul. 16, 2015).
12 85 FR 2041 (Jan. 14, 2020).
13 Id., noting that while the assessment tool for
PHAs was not finally implemented, this was the
case under a published draft.
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nature of many questions, and the lack
of prioritization between questions
made the planning process both
inflexible and difficult to complete.
Unsurprisingly, the rule required
significant resources from grantees and
its complexity and demands resulted in
a high failure rate for jurisdictions to
gain approval for their AFH in the first
year of AFH submission. Grantees
complained that it was extremely
resource-intensive and complicated,
placing a strain on limited budgets.14
Pursuant to the 2015 AFFH rule, HUD
requested 64 full time staff at a cost of
approximately $9 million merely to
implement the new AFH process, with
a total cost estimate to HUD and HUD
grantees ranging anywhere from $15
million to $51.4 million annually.15
The vast reach of the 2015 rule was
well understood within the housing
community. At a livestreamed
conference, just weeks before it was
unveiled, speakers discussed how AFFH
would radically remake American
suburbs and localities, even though the
rule ‘‘sounds very obscure.’’ 16 One
participant remarked: ‘‘Perhaps it’s
important to keep it sounding obscure,
in order to get it through. Sometimes
obscurity is the best political
strategy.’’ 17
Critics, including many in Congress,
criticized the 2015 AFFH rule as an
assault on local decision making.
Senators Lee, Rubio and Enzi offered an
amendment to block the rule that was
supported by 37 Senators: ‘‘Every
American should be free to choose
where to live, and every community
should be free to zone its neighborhoods
and compete for new residents
according to its distinct values.’’ We
‘‘don’t need a National Zoning Board.
Washington should let Americans
‘govern local.’ ’’ 18 Similar bills passed
in the House.19
Under President Trump, HUD began
to change course. In 2018, HUD
withdrew the AFH assessment tool after
a review of early submissions found it
unduly burdensome and unworkable.20
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14 Id.
15 Affirmatively Furthering Fair Housing Final
Rule: Regulatory Impact Analysis, July 16, 2015
available at https://www.huduser.gov/portal/sites/
default/files/pdf/AFFH_Regulatory_Impact_
Analysis_FinalRule.pdf.
16 Kurtz, AFFH: Admission of Stealth Caught on
Video, National Review, (Jun 15, 2015).
17 Id.
18 Press Release, The Hon. Mike Lee, Lee
Introduces Bill to Stop HUD Zoning Rule (Jul. 30,
2015).
19 Local Zoning Decisions Protection Act of 2017,
H.R. 482, 115th Cong. (2017).
20 Affirmatively Furthering Fair Housing:
Withdrawal of the Assessment Tool for Local
Governments, 83 FR 23923 (May 23, 2018).
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In January 2020, HUD proposed a
revised AFFH rule.21 That proposed rule
took steps to reduce federal control of
local housing decisions and lessen the
burden of data requirements imposed on
local governments.22 However, when
the President reviewed the proposed
rule, he expressed concern that the HUD
approach did not go far enough on
either prong. For example, grantee
jurisdictions were still presented with a
HUD list of ‘‘inherent barriers’’ to
overcome, twelve of which directly
interfered with local land development
decisions.23 Grantees were also required
to submit a plan detailing how they
would overcome at least three obstacles
or achieve three fair housing goals
which resulted in an estimated annual
paperwork burden of $13 million.24
The President therefore asked HUD to
reconsider the rule to see whether HUD
could do more, consistent with the
AFFH obligation and other legal
requirements, to empower local
communities and to reduce the
regulatory burden of providing
unnecessary data to HUD. After review,
and based on prior internal discussions,
HUD produced the current rule.
III. HUD’s New Approach
‘‘HUD possesses broad discretionary
powers to develop, award, and
administer its grants and to decide the
degree to which they can be shaped to
help achieve Title VIII’s goals.’’ 25 AFFH
is a vague, undefined term that could be
open to several different plausible
meanings. HUD’s interpretation will be
entitled to deference as long as it is
reasonable.26
The Definition of ‘‘Fair Housing’’
It is imperative to note that the longstanding debate seeking to define ‘‘Fair
Housing’’ has spanned the political
spectrum. Senator Mondale, the chief
sponsor of the Fair Housing Act (FHA),
unambiguously acknowledged the
limited scope of the concept of fair
housing. He ‘‘made absolutely clear that
Title VIII’s policy to ‘provide . . . for
fair housing’ means ‘the elimination of
discrimination in the sale or rental of
housing. That is all it could possibly
mean.’ ’’ 27 Senator Mondale thus
defined fair housing as simply housing
that is free of discrimination. In this
definition, housing is ‘‘fair’’ if anyone
21 85
FR 2041 (Jan. 14, 2020).
at 2042.
23 85 FR 2041 (Jan. 14, 2020).
24 Id. at 2052, 2056.
25 NAACP v. Sec. of HUD, 817 F.2d 149, 157 (1st
Cir. 1987).
26 Chevron U.S.A. Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984).
27 NAACP at 154.
22 Id.
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47901
who can afford it faces no
discrimination-based barriers to
purchasing it. As the court in NAACP
observed, ‘‘the law’s supporters saw the
ending of discrimination as a means
toward truly opening the nation’s
housing stock to persons of every race
and creed.’’ 28 They believed that
‘‘[d]iscrimination in the sale and rental
of housing has been the root cause of the
widespread patterns of de facto
segregation.’’ Thus, by ensuring that
housing is free of discrimination, the
FHA would establish ‘‘a policy of
dispersal through open housing’’ to ‘‘the
point where the supply of genuinely
open housing increases.’’ 29
In 1971, President Richard Nixon
stated, ‘‘[t]he very fact that so much
progress is being made, however, has
sharpened the focus on what has come
to be called ‘fair housing’—a term
employed, but not defined, in the Civil
Rights Act of 1968, and to which many
persons and groups have ascribed their
own often widely varied meanings.’’ 30
In 1983, President Ronald Reagan
stated, ‘‘[f]airness is the foundation of
our way of life and reflects the best of
our traditional American values.
Invidious, discriminatory housing
practices undermine the strength and
vitality of America and her people.’’ 31
The FHA prohibited discrimination
based on race, color, religion, national
origin or sex, but Congress since
expanded it to prohibit discrimination
on the basis of handicap and familial
status.32 Congress also broadened
national housing policy grants
administered by HUD, requiring AFFH
certifications, to include goals such as a
‘‘decent, safe, and sanitary housing for
every American’’ and increasing the
supply of ‘‘affordable housing.’’ 33
Accordingly, HUD defines ‘‘fair
housing’’ to encompass nondiscrimination as well as these goals.
The Definition of ‘‘Affirmatively
Further’’
By statute, grantees must
‘‘affirmatively further’’ fair housing. In
interpreting this phrase, HUD is guided
28 Id.
at 55.
at 154–55.
30 See President Richard Nixon, Statement About
Federal Policies Relative to Equal Housing
Opportunity, June 11, 1971 available at https://
www.presidency.ucsb.edu/documents/statementabout-federal-policies-relative-equal-housingopportunity.
31 See President Ronald Reagan, Proclamation
5329—Fair Housing Month, April 25, 1985
available at https://www.presidency.ucsb.edu/
documents/proclamation-5329-fair-housing-month1985.
32 42 U.S.C. 3604.
33 Cranston-Gonzalez National Affordable
Housing Act of 1990, Public Law 101–625 102, 105.
29 Id.
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by the ‘‘Ordinary-Meaning Canon’’ of
statutory interpretation which states
that ‘‘words are to be understood in
their ordinary, everyday meanings—
unless the context indicates that they
bear a technical sense.’’ 34 Given that the
context for the phrase ‘‘affirmatively
further’’ in the Fair Housing Act does
not bear a technical sense, the words are
assigned their generally-understood
meanings.35 In this context, ‘‘further’’ is
used as a verb. According to the
Merriam-Webster Dictionary, to
‘‘further’’ is ‘‘to help forward.’’ 36 In
seeking to further an objective, one acts
to help it forward. Accordingly, HUD
defines ‘‘further’’ to mean ‘‘promote.’’
Similarly, Ballentine’s Law Dictionary
defines ‘‘affirm’’ verbatim as the
following: ‘‘[. . .] to confirm or ratify a
statement, belief, opinion, decision or
judgement . . .’’ 37 The term
‘‘affirmative’’ is defined verbatim as the
following: ‘‘an answer ‘yes’; something
beyond passive tolerance or
acceptance.’’ 38 In the context of the
statute, the threshold to act
‘‘affirmatively’’ is met in undertaking an
action that confirms adherence to the
statute’s requirements to ‘‘further’’ fair
housing. In the housing context, the
quantum of action required promoting
fair housing to meet the requirement of
‘‘affirmatively’’ furthering fair housing
is not specified in the statute. HUD
interprets the phrase to be flexible and
unspecified, but to mean generally that
the grantee must take an active role
rather than be passive.
Accordingly, in this rule, HUD
determines that a grantees’ AFFH
certification will be deemed acceptable
if the grantee has taken some active step
to promote fair housing. HUD
recognizes that jurisdictions may find
many ways to advance fair housing that
HUD officials cannot predict. This
diversity of methods is a good thing that
ought to be encouraged. This approach
to the definition of ‘‘affirmatively
furthering fair housing’’ preserves
flexibility for jurisdictions to take action
based on the needs, interests, and means
of the local community, and respects the
34 See Antonin Scalia & Brian A. Garner, Reading
Law: The Interpretation of Legal Texts section 6
(‘‘Ordinary-Meaning Canon’’) (2012) (‘‘Reading
Law’’); see also, e.g., United States v. Marrufo, 661
F.3d 1204, 1207 (10th Cir. 2011) (‘‘When a term is
not defined in the Guidelines, we give it its plain
meaning’’).
35 Id. at section 7.
36 ‘‘Further.’’ Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriamwebster.com/dictionary/further. Accessed 22 Jul.
2020.
37 ‘‘Affirm.’’ Ballentine’s Law Dictionary, (3rd ed.
1969).
38 ‘‘Affirmative.’’ Ballentine’s Law Dictionary,
(3rd ed. 1969).
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proper role and expertise of state and
local authorities.
Court Interpretations of AFFH
There is case law that arguably takes
a broader view of the obligations
surrounding the AFFH requirement.
However, the principal precedents were
decided pre-1994, in the absence of an
administrative interpretation from
HUD.39 The statutory phrase AFFH is
concededly ambiguous.40 Accordingly,
under Chevron vs. NRDC, HUD retains
discretion to formulate a different
definition of this ambiguous phrase: 41
The seminal case on the meaning of
AFFH is the 1987 First Circuit decision
in NAACP v. Secretary of HUD.42 It held
that ‘‘affirmatively furthering’’ imposes
an obligation ‘‘to do more than simply
refrain from discriminating (and from
purposely aiding discrimination by
others).’’ 43 The question is how much
more.
HUD’s rule is consistent with the
judicial consensus that AFFH requires
more than simply not discriminating.
Grantees may not be passive. They must
actually promote fair housing for
example by fighting overt
discrimination. Thus in NAACP, HUD
failed in its own AFFH obligation
because, among other things, it failed to
demand actual fair housing enforcement
from the City of Boston.44
The courts making the broadest
claims of the AFFH requirement rely on
selective quotations from the legislative
history. Those decisions rely on
legislative history about the FHA aiming
to achieve ‘‘truly integrated and
balanced living patterns’’ and ending
patterns of segregation.45 The problem
39 Infra,
notes 44–46.
NAACP v. Harris, 567 F. Supp. 637, 644
(D. Mass. 1983) (Citing the AFFH and related
obligations and observing, ‘‘it is extremely difficult
to quantify HUD legal obligations under these
statutes.’’).
41 Chevron, 467 U.S. ([T]he court does not simply
impose its own construction on the statute, as
would be necessary in the absence of an
administrative interpretation. Rather, if the statute
is silent or ambiguous with respect to the specific
issue, the question for the court is whether the
agency’s answer is based on a permissible
construction of the statute.).
42 NAACP, Boston Chapter v. Secretary of
Housing and Urban Development, 817 F. 2d 149
(1st Cir. 1987).
43 Id., 817 F.2d at 154, citing Shannon v.
Department of Housing and Urban Development,
436 F.2d 809 (3d Cir. 1970); Otero v. New York City
Housing Authority, 484 F.2d 1122, 1134 (2d Cir.
1973); Alschuler v. Department of Housing and
Urban Development, 686 F.2d 1236, 1246–47 (6th
Cir. 1974); See also, Nat’l Fair Hous. Alliance v.
Carson, 330 F.Supp. 3d 14, 24–25 (D.C. Dist. 2018).
44 See NAACP v. Harris, 567 F. Supp. 637, 644
(D. Mass. 1983).
45 See, e.g., Otero v. New York City Housing
Authority, 484 F.2d 1122, 1134 (2d Cir. 1973);
Shannon v. U.S. Dep’t of Hous. & Urban Dev., 436
F.2d 809, 821 (3d Cir. 1970).
40 See,
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is that the same legislative history
makes clear that these were long-term
goals to be achieved through the narrow
means of eliminating overt housing
discrimination (e.g., restrictive
covenants).46 As the court in NAACP
observed, ‘‘the law’s supporters saw the
ending of discrimination as a means
toward truly opening the nation’s
housing stock to persons of every race
and creed.’’ 47 They believed that
‘‘[d]iscrimination in the sale and rental
of housing has been the root cause of the
widespread patterns of de facto
segregation.’’ 48 The FHA was seen by its
authors as only a ‘‘first step’’ in
achieving a grander vision.49 By
ensuring that housing is free of
discrimination, the FHA would
establish ‘‘a policy of dispersal through
open housing’’ to ‘‘the point where the
supply of genuinely open housing
increases.’’ 50 In short, enforcing nondiscrimination would produce open
housing which in turn would reduce
segregated living patterns by ensuring
that families regardless of race could
live where ‘‘where [they] wish . . . and
where [they] can afford.’’ 51 Any broader
construction of the AFFH obligation is
difficult to square with the sponsor
Senator Mondale’s unambiguous
pronouncement that the FHA’s policy to
‘‘provide . . . for fair housing’’ means
‘‘the elimination of discrimination in
the sale or rental of housing. That is all
it could possibly mean.’’ 52
HUD does not subscribe to broader
interpretations of AFFH to the extent
precedent for them may exist. The case
law is clear that ‘‘HUD maintains
discretion in determining how the
agency will fulfill its AFFH
obligation.’’ 53 Thus NAACP and its
sister cases were all interpreting an
ambiguous phrase that the agency
would otherwise have some discretion
to define. Indeed, those cases were
decided years before HUD had
formulated a definition by rule.
IV. Justification for the New Approach
Upon review, HUD concludes that
there are sound policy reasons for
abandoning its prior approach and
taking a narrower view of the extent of
the obligations surrounding the AFFH
certification. These reasons are rooted in
the principles of federalism.
46 See e.g., Cong. Rec. Feb. 7, 1968 p. 2535
(discussing restrictive covenants).
47 See NAACP v. Sec. of HUD at 155.
48 Id.
49 NAACP, 817 F.2d at 155.
50 Id. at 154–55.
51 Id. at 155.
52 Supra id. at 154.
53 Carson, 330 F. Supp. 3d at 25.
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Federalism & Preserving Local Control
HUD’s revised interpretation better
comports both with Congress’s explicit
intent to protect local decision making.
Federal law explicitly prohibits HUD
from using grants to interfere in local
decision making. 42 U.S.C. 12711,
under the heading ‘‘Protection of State
and local authority’’ provides:
The Secretary shall not establish any
criteria for allocating or denying funds made
available under programs administered by
the Secretary based on the adoption,
continuation, or discontinuation by a
jurisdiction of any public policy, regulation,
or law that is (1) adopted, continued, or
discontinued in accordance with the
jurisdiction’s duly established authority, and
(2) not in violation of any Federal law.54
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Other statutes also cut against
interpreting the AFFH certification to
require an AI or similar assessment of
housing barriers. To obtain Community
Development Program (CPD) funding,
States and localities are required to
submit a housing strategy. That strategy
must include an assessment of whether
regulatory barriers, including ‘‘building
codes, fees, growth limits, taxes, and
zoning, increase housing costs as well as
strategies to overcome any negative
effects of these policies.’’ 55 Yet the law
also independently requires an AFFH
certification, which would be redundant
if the certification inherently required a
housing barriers analysis.56
It is notable that even as Congress
required jurisdictions to analyze
housing barriers, it still acted
unambiguously to protect local control.
The law explicitly prohibits HUD from
denying CPD funds based on a
jurisdiction’s failure to alter any of the
regulatory barriers it identified in its
housing strategy.57
HUD’s amended AFFH rule gives
local communities maximum flexibility
in designing and implementing sound
policies responsive to unique local
needs, and eliminates overly
burdensome, intrusive and inconsistent
reporting and monitoring requirements.
The amended rule is consistent with
54 In the Westchester litigation, the Second Circuit
held this provision did not bar HUD tying funding
to the County changing its zoning laws. To reach
this conclusion, the court adopted the strained
reading that forcing the County to ‘‘overcome’’ its
zoning laws was not the same as requiring the
County to repeal them. The distinction between
overcoming and repealing is very fine and at war
with the both the spirit and the letter of the law.
HUD declines to read this explicit statute narrowly
so that the non-specific AFFH obligation can be
read broadly. See, County of Westchester v. U.S.
Department of Housing and Urban Development, et
al., 802 F.3d 413 (2d Cir. 2015).
55 42 U.S.C. 12705(b)(4).
56 42 U.S.C. 12705(b)(15).
57 42 U.S.C. 12705(c)(1).
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relevant legislative enactments. In other
instances, Congress has shown that it is
perfectly capable of imposing strict
reporting and monitoring requirements
on grantees when it deems such
requirements appropriate.58 Yet
Congress has not imposed such detailed
monitoring and reporting requirements
in connection with grantees’ AFFH
obligations. Therefore, the agency
exercises its discretion and declines to
impose detailed monitoring or reporting
requirements by regulation.59
Furthermore, the Supreme Court has
specifically held that the Fair Housing
Act ‘‘is not an instrument to force
housing authorities to reorder their
priorities.’’ 60 Indeed, the Fair Housing
Act ‘‘does not decree a particular vision
of urban development.’’ 61 In short, the
prescriptive nature of the prior rule was
in tension with Congress’s intent and
the current legal landscape, which
places trust in local jurisdictions to
make the best decisions for themselves,
within the broad confines of the Fair
Housing Act’s limitations, including its
requirement that HUD grantees AFFH.62
The AFFH Rule, as amended, is the
most faithful to the text and purpose of
the Fair Housing Act. It must be local
governments, not HUD, that exercise
control of administering local housing
policies, including zoning and
development policies that are unique to
a particular community.
This does not mean HUD will retreat
from its fair housing mission. Grantees’
failure to take active steps to address
discrimination in the rental and sale of
housing would be a violation of the
AFFH requirement at the most basic
level. Moreover, as discussed above,
entirely separate from the AFFH
certification, Congress required certain
CPD grantees, at a minimum, to evaluate
potential barriers to affordable housing
such as zoning and local land use
laws.63 CPD grantees cover as many as
58 See, e.g., 42 U.S.C. 7661(a)–(c), 7661(b)–(c)
(requiring that an applicant (1) submit a permit
application and a compliance plan describing how
it will comply with all EPA requirements, (2) certify
its compliance annually, and (3) submit to
inspection, entry, monitoring and reporting
requirements).
59 See Nat’l Fair Hous. Alliance at 25.
60 See Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 576 U.S. 519, 537.
61 Id. at 537; see also id. (‘‘Zoning officials,
moreover, must often make decisions based on a
mix of factors, both objective [such as cost and
traffic patterns] and, at least to some extent,
subjective [such as preserving historic architecture].
These factors contribute to a community’s quality
of life and are legitimate concerns for housing
authorities.’’)
62 Press Release, The Hon. Mike Lee, Lee
Introduces Bill to Stop HUD Zoning Rule (Jul. 30,
2015).
63 42 U.S.C. 12705(b)(4); CPD programs include
(1) the Community Development Block Grant
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47903
1200 states, counties, and cities, so HUD
retains authority to pursue analysis of
housing barriers through these grant
instruments.64 In all cases, grantees
must retain records sufficient to prove
that they are properly discharging their
obligations.
Federalism Considerations
HUD’s approach in the new rule is
also supported by HUD’s determination
that federal agencies addressing matters
that are traditionally within the
authority of the States (such as housing)
should take a narrow view of the scope
of their power. A growing body of
scholarship and judicial precedent is
raising the alarm that the ballooning
administrative state shifts important
policy choices from Congress to
comparatively unaccountable
administrative agencies.65
Recently, discussion of this broad
principle has centered on an important
concept in Administrative Law known
as ‘‘the major issues doctrine.’’ Under
this doctrine, judges ‘‘presume that
Congress does not delegate its authority
to settle or amend major social and
economic policy decisions.’’ 66 The
reason is that a ‘‘major policy change
should be made by the most
democratically accountable process.’’ 67
If an ‘‘agency wants to exercise
expansive regulatory authority over
some major social or regulatory activity
. . . an ambiguous grant of statutory
authority is not enough.’’ 68 As the
Supreme Court has put it, when it
comes to delegating authority to federal
agencies, Congress ‘‘does not one might
say, hide elephants in mouseholes.’’ 69
Thus, the Court has held that a
regulatory interpretation by an agency is
‘‘unreasonable’’ if it results in ‘‘an
enormous and transformative expansion
in . . . regulatory authority without
program (‘‘CDBG’’); (2) the Emergency Shelter Grant
program (‘‘ESG’’); and (3) the HOME Investment
Partnership program (‘‘HOME’’).
64 Community Development Fund: 2020
Summary of Resources. Department of Housing and
Urban Development, available at, https://
www.hud.gov/sites/dfiles/CFO/documents/2020CJCDFund.pdf.
65 See, Mike Jayne, As Far as Reasonably
Practicable: Reimagining the Role of Congress in
Agency Rulemaking, Fed. Soc. Rev. Vol. 21 (2020);
Adam Gustafson, The Major Questions Doctrine
Outside Chevron’s Domain, CSAS Working Paper
(Jul. 2019); Joseph Postell, Taking on the
Administrative State, Heritage.org. (Oct. 9, 2017).
66 Eskridge, William N. Interpreting Law: a Primer
on How to Read Statutes and the Constitution.
Foundation Press, 2016.
67 Id.
68 USTA v. FCC, et al., No. 15–1063 (D.C. Cir.
2017) (Kavanaugh, B., dissenting). Retrieved at:
https://apps.fcc.gov/edocs_public/attachmatch/
DOC-344654A1.pdf.
69 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001).
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clear congressional authorization.’’ 70
Indeed, ‘‘[w]hen an agency claims to
discover in a long-extant statute an
unheralded power to regulate a
significant portion of the American
economy,’’ the Supreme Court will
‘‘typically greet its announcement with
a measure of skepticism.’’ 71 Rather, the
Court expects that Congress will ‘‘speak
clearly if it wishes to assign an agency
decisions of vast economic and political
significance.’’ 72
In addition, it is states and local
jurisdictions that have traditionally
regulated zoning and development
policy, not the federal government, and
courts have readily acknowledged that
‘‘States retain substantial sovereign
powers under our constitutional
scheme, powers with which Congress
does not readily interfere.’’ 73 Indeed,
the District of Columbia Circuit has held
that federal law ‘‘may not be interpreted
to reach into areas of State sovereignty
unless the language of the federal law
compels the intrusion.’’ 74 Thus, ‘‘if
Congress intends to alter the usual
constitutional balance between the
States and the Federal Government, it
must make its intention to do so
unmistakably clear in the language of
the statute.’’ 75
The phrase ‘‘affirmatively further fair
housing’’ is vague and unclear. The
ordinary meaning of the phrase does not
invite a fundamental expansion of HUD
regulations to include cumbersome
policy, monitoring or reporting
requirements that will significantly
affect the economy by impacting local
zoning and development policies across
the nation. Hanging a massively
intrusive regulatory structure on such a
cryptic, four-word phrase is inconsistent
with the bedrock principles of
separation of powers.
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V. This Final Rule
The rule repeals the 2015 AFH and
1994 AI requirements where they
appear in regulation. Thus, it returns to
the original understanding of what the
statutory AFFH certification was prior
to the 1994 regulation: A general
commitment that grantees will use the
funds to take active steps to promote fair
housing. Thus, grantee AFFH
certifications will be deemed sufficient
provided they took any action during
the relevant period rationally related to
70 Utility Air Regulatory Group v. Environmental
Protection Agency, 573 U.S. 302, 324 (2014)
(citations and internal quotations omitted).
71 Id. (citations and internal quotations omitted).
72 Id. (citations and internal quotations omitted).
73 ABA v. FTC, 430 F.3d 457, 471–472 (D.C.C.
2005).
74 Id. at 471.
75 Id. at 471–472.
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promoting fair housing, such as helping
eliminate housing discrimination.
VI. Notice-and-Comment Does Not
Apply
The Administrative Procedure Act
exempts from notice-and-comment
rulemaking any ‘‘matter relating to
agency management or personnel or to
public property, loans, grants, benefits,
or contracts.’’ 76 Because this rule
applies only to the AFFH obligation of
grantees, it is exempt under the APA.
However, in 1969, the Administrative
Conference of the United States (ACUS)
urged Congress to amend the APA to
remove this exemption. Congress
declined. Still, several agencies,
including HUD, issued statements of
policy that had the effect of voluntarily
adopting ACUS’s recommendation.77
HUD’s policy still remains in force, and
while this policy can no longer be
repealed, the Secretary retains the
authority to waive the requirements of
24 CFR 10.1 in individual cases.78
The AFFH rule is particularly wellsuited to a waiver from public notice
and comment because it has already
been the subject of extensive public
debate. Over the past several years, HUD
has received extensive public feedback
about AFFH. Both through the noticeand-comment period in connection with
the July 2015 AFFH Rule and the noticeand-comment period that concluded
earlier this year, HUD has received tens
of thousands of comments covering a
wide range of stakeholders, including
public housing agencies, other housing
providers, organizations representative
of housing providers, governmental
jurisdictions and agencies, civil rights
organizations, tenant and other housing
advocacy organizations, and concerned
citizens. There has also been a thorough
public debate on these issues in print
and online. In light of this public
engagement, further notice and
comment concerning AFFH is
unnecessary and would simply be a
76 5
U.S.C. 553(a)(2).
CFR 10.1.
78 42 U.S.C. 3535(q); 24 CFR 5.110. In 1996, HUD
proposed a rule to eliminate part 10 from its
regulations entirely. (61 FR 42722). In response,
Congress passed an amendment to an
appropriations bill, continued in subsequent years,
requiring HUD to ‘‘maintain all current
requirements under part 10.’’ [Public Law 104–204,
Sec. 215] (See Statement of Amendment Sponsor:
‘‘this is a prohibition on a HUD rulemaking effort
to eliminate HUD public notice and comment’’). To
maintain is to keep in place. Just as prior to this
amendment the waiver provision existed, so too
afterward. Thus, although the broader framework
may not be altered, the previously permitted waiver
remains applicable. Thus, Public Law 104–204 does
not abrogate the Secretary’s independent statutory
authority under 42 U.S.C. 3535(q) to waive
regulations in specific circumstances.
77 24
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legal formality without adding
substance to the debate.
Accordingly, HUD has waived its
policy that would otherwise voluntarily
subject the new AFFH rule to noticeand-comment. As required by law, the
waiver will be printed in the Federal
Register.
VII. Findings and Certifications
Executive Orders 12866 and 13563,
Regulatory Planning and Review
Pursuant to 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
Executive Order. In light of the waiver
executed by Secretary Carson and the
status of this regulation as exempt from
notice and comment under 5 U.S.C.
553(a)(2), review of this regulation has
been waived under Executive Order
12866 section 6(a)(3)(A).
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. HUD believes that
this final rule would provide maximum
flexibility and freedom for HUD
grantees to AFFH and is consistent with
Executive Order 13563.
Executive Order 13771, Regulatory Costs
Executive Order 13771, entitled
‘‘Reducing Regulation and Controlling
Regulatory Costs,’’ was issued on
January 30, 2017. This final rule is an
Executive Order 13771 deregulatory
action. The burden for the lengthy
Assessment of Fair Housing (AFH), with
its separate community engagement and
reporting requirements, would be
eliminated under this proposal.
Jurisdictions would be able to determine
their actions to AFFH based on their
capacity and needs, allowing
jurisdictions to avoid burdensome
requirements beyond their abilities.
The previously approved information
collections for the AFFH Local
Government and PHA and Assessment
Tools (2529–0054 and 2529–0055,
respectively) had a total, combined
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665,862 burden hours for all
respondents. This was due to the
extensive nature of the tools and the
additional public meeting requirements
to complete an AFH. HUD has already
temporarily withdrawn the Local
Government Assessment Tool, and this
final rule makes that removal
permanent. By removing these
requirements, HUD expects that the
AFFH process will result in a significant
reduction from the previous process
requirements.
The final rule significantly reduces
the reporting burden for jurisdictions in
the formulation of AFFH strategies,
reducing costs by an estimated of no
less than $23.7 million per year.
Executive Order 12612, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule either imposes
substantial direct compliance costs on
state and local governments and is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of Section 6 of the Executive Order. This
rule would not have federalism
implications and would not impose
substantial direct compliance costs on
state and local governments or preempt
state law within the meaning of the
Executive Order.
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Environmental Impact
This final rule is a policy document
that sets out fair housing and
nondiscrimination standards.
Accordingly, under 24 CFR 50.19(c)(3),
this final rule is categorically excluded
from environmental review under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) generally requires an
agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Because HUD
has determined that good cause exists to
issue this rule without prior public
comment, this rule is not subject to the
requirement to publish an initial or final
regulatory flexibility analysis under the
RFA as part of such action.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520), an agency may not conduct or
sponsor, and a person is not required to
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respond to, a collection of information,
unless the collection displays a
currently valid Office of Management
and Budget (OMB) control number. The
information collection requirements for
Affirmatively Furthering Fair Housing
collected have previously been
approved by OMB under the Paperwork
Reduction Act and assigned OMB
control number 2506–0117
(Consolidated Plan, Annual Action Plan
& Annual Performance Report).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4;
approved March 22, 1995) (UMRA)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments, and on the private
sector. This rule does not impose any
Federal mandates on any state, local, or
tribal government, or on the private
sector, within the meaning of the
UMRA.
List of Subjects
24 CFR Part 5
Administrative practice and
procedure, Aged, Claims, Crime,
Government contracts, Grant
programs—housing and community
development, Individuals with
disabilities, Intergovernmental relations,
Loan programs—housing and
community development, Low and
moderate income housing, Mortgage
insurance, Penalties, Pets, Public
housing, Rent subsidies, Reporting and
recordkeeping requirements, Social
security, Unemployment compensation,
Wages.
24 CFR Part 91
Aged; Grant programs—housing and
community development; Homeless;
Individuals with disabilities; Low and
moderate income housing; Reporting
and recordkeeping requirements.
24 CFR Part 92
Administrative practice and
procedure; Low and moderate income
housing; Manufactured homes; Rent
subsidies; Reporting and recordkeeping
requirements.
24 CFR Part 570
Administrative practice and
procedure; American Samoa;
Community development block grants;
Grant programs—education; Grant
programs—housing and community
development; Guam; Indians; Loan
programs—housing and community
development; Low and moderate
income housing; Northern Mariana
Islands; Pacific Islands Trust Territory;
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47905
Puerto Rico; Reporting and
recordkeeping requirements; Student
aid; Virgin Islands.
24 CFR Part 574
Community facilities; Grant
programs—housing and community
development; Grant programs—social
programs; HIV/AIDS; Low- and
moderate-income housing; Reporting
and recordkeeping requirements.
24 CFR Part 576
Community facilities; Grant
programs—housing and community
development; Grant programs—social
programs; Homeless; Reporting and
recordkeeping requirements.
24 CFR Part 903
Administrative practice and
procedure; Public housing; Reporting
and recordkeeping requirements.
Accordingly, for the reasons described
in the preamble, HUD amends 24 CFR
parts 5, 91, 92, 570, 574, 576, and 903
as follows:
PART 5—GENERAL HUD PROGRAM
REQUIREMENTS; WAIVERS
1. The authority citation for part 5,
subpart A, continues to read as follows:
■
Authority: 29 U.S.C. 794, 42 U.S.C. 1437a,
1437c, 1437c–1(d), 1437d, 1437f, 1437n,
3535(d), and Sec. 327, Pub. L. 109–115, 119
Stat. 2936; 42 U.S.C. 3600–3620; 42 U.S.C.
5304(b); 42 U.S.C. 12101 et seq.; 42 U.S.C.
12704–12708; Executive Order 11063, 27 FR
11527, 3 CFR, 1958–1963 Comp., p. 652;
Executive Order 12892, 59 FR 2939, 3 CFR,
1994 Comp., p. 849.
■
2. Revise § 5.150 to read as follows:
§ 5.150 Affirmatively Further Fair Housing;
Definition.
(a) The phrase ‘‘fair housing’’ in 42
U.S.C. 5304(b)(2), 5306(d)(7)(B),
12705(b)(15), and 1437c–1(d)(16) means
housing that, among other attributes, is
affordable, safe, decent, free of unlawful
discrimination, and accessible as
required under civil rights laws.
(b) The phrase ‘‘affirmatively further’’
in 42 U.S.C. 5304(b)(2), 5306(d)(7)(B),
12705(b)(15), and 1437c–1(d)(16) means
to take any action rationally related to
promoting any attribute or attributes of
fair housing as defined in the preceding
subsection.
■ 3. Revise § 5.151 as follows:
§ 5.151
AFFH Certifications.
A HUD program participant’s
certification that it will affirmatively
further fair housing is sufficient if the
participant takes, in the relevant period,
any action that is rationally related to
promoting one or more attributes of fair
housing as defined in section 5.150(a).
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Nothing in this paragraph relieves
jurisdictions of their other obligations
under civil rights and fair housing
statutes and regulations.
§§ 5.152 through 5.168
Reserved]
■
[Removed and
4. Remove §§ 5.152 through 5.168.
PART 91—CONSOLIDATED
SUBMISSIONS FOR COMMUNITY
PLANNING AND DEVELOPMENT
PROGRAMS
5. The authority citation for part 91
continues to read as follows:
■
Authority: 42 U.S.C. 3535(d), 3601–19,
5301–5315, 11331–11388, 12701–12711,
12741–12756, and 12901–12912.
6. In § 91.5, revise the introductory
paragraph to read as follows.
■
§ 91.5
Definitions.
The terms Affirmatively Furthering
Fair Housing, elderly person, and HUD
are defined in 24 CFR part 5.
*
*
*
*
*
■ 7. Amend § 91.100 to revise
paragraphs (a)(1), (c)(1), and remove (e)
to read as follows:
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§ 91.100
Consultation; local governments.
(a) General. (1) When preparing the
consolidated plan, the jurisdiction shall
consult with other public and private
agencies that provide assisted housing,
health services, and social services
(including those focusing on services to
children, elderly persons, persons with
disabilities, persons with HIV/AIDS and
their families, homeless persons),
community-based and regionally-based
organizations that represent protected
class members, and organizations that
enforce fair housing laws. When
preparing the consolidated plan, the
jurisdiction shall also consult with
public and private organizations.
Commencing with consolidated plans
submitted on or after January 1, 2018,
such consultations shall include
broadband internet service providers,
organizations engaged in narrowing the
digital divide, agencies whose primary
responsibilities include the management
of flood prone areas, public land or
water resources, and emergency
management agencies.
*
*
*
*
*
(c) Public housing agencies (PHAs).
(1) The jurisdiction shall consult with
local PHAs operating in the jurisdiction
regarding consideration of public
housing needs, planned programs and
activities, strategies for affirmatively
furthering fair housing, and proposed
actions to affirmatively further fair
housing in the consolidated plan. This
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consultation will help provide a better
basis for the certification by the
authorized official that the PHA Plan is
consistent with the consolidated plan
and the local government’s description
of its strategy for affirmatively
furthering fair housing and the manner
in which it will address the needs of
public housing and, where necessary,
the manner in which it will provide
financial or other assistance to a
troubled PHA to improve the PHA’s
operations and remove the designation
of troubled, as well as obtaining PHA
input on addressing fair housing issues
in the Public Housing and Housing
Choice Voucher programs.
*
*
*
*
*
■ 8. Amend § 91.105 by:
■ a. Revising paragraphs (a)(2)(i)
through (iii);
■ b. Revising (b) introductory text;
■ c. Revising paragraph (b)(1)(i);
■ d. Revising paragraphs (b)(2) through
(5);
■ e. Revising paragraph (c);
■ f. Revising paragraph (e)(1)(i);
■ g. Removing paragraph (e)(1)(iii);
■ h. Revising paragraphs (g) through (j);
and
■ i. Removing paragraph (l).
The revisions read as follows:
§ 91.105 Citizen participation plan; local
governments.
(a) * * *
(2) Encouragement of citizen
participation. (i) The citizen
participation plan must provide for and
encourage citizens to participate in the
development of the consolidated plan,
any substantial amendment to the
consolidated plan, and the performance
report. These requirements are designed
especially to encourage participation by
low- and moderate-income persons,
particularly those persons living in
areas designated by the jurisdiction as a
revitalization area or in a slum and
blighted area and in areas where CDBG
funds are proposed to be used, and by
residents of predominantly low- and
moderate-income neighborhoods, as
defined by the jurisdiction. A
jurisdiction must take appropriate
actions to encourage the participation of
all its citizens, including minorities and
non-English speaking persons, as
provided in paragraph (a)(4) of this
section, as well as persons with
disabilities.
(ii) The jurisdiction shall encourage
the participation of local and regional
institutions, Continuums of Care, and
other organizations (including
businesses, developers, nonprofit
organizations, philanthropic
organizations, and community-based
and faith-based organizations) in the
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process of developing and
implementing the consolidated plan.
(iii) The jurisdiction shall encourage,
in conjunction with consultation with
public housing agencies, the
participation of residents of public and
assisted housing developments
(including any resident advisory boards,
resident councils, and resident
management corporations) in the
process of developing and
implementing the consolidated plan,
along with other low-income residents
of targeted revitalization areas in which
the developments are located. The
jurisdictions shall make an effort to
provide information to the PHA about
affirmatively furthering fair housing
strategy, and consolidated plan
activities related to its developments
and surrounding communities so that
the PHA can make this information
available at the annual public hearing(s)
required for the PHA Plan.
*
*
*
*
*
(b) Development of the consolidated
plan. The citizen participation plan
must include the following minimum
requirements for the development of the
consolidated plan:
(1)(i) The citizen participation plan
must require that at or as soon as
feasible after the start of the public
participation process the jurisdiction
will make the HUD-provided data and
any other supplemental information the
jurisdiction plans to incorporate into its
consolidated plan available to its
residents, public agencies, and other
interested parties. The jurisdiction may
make the HUD-provided data available
to the public by cross-referencing to the
data on HUD’s website.
*
*
*
*
*
(2) The citizen participation plan
must require the jurisdiction to publish
the proposed consolidated plan in a
manner that affords its residents, public
agencies, and other interested parties a
reasonable opportunity to examine its
content and to submit comments. The
citizen participation plan must set forth
how the jurisdiction will publish the
proposed consolidated plan and give
reasonable opportunity to examine each
document’s content. The requirement
for publishing may be met by publishing
a summary of each document in one or
more newspapers of general circulation,
and by making copies of each document
available on the internet, on the
jurisdiction’s official government
website, and as well at libraries,
government offices, and public places.
The summary must describe the content
and purpose of the consolidated plan
and must include a list of the locations
where copies of the entire proposed
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document may be examined. In
addition, the jurisdiction must provide
a reasonable number of free copies of
the plan to residents and groups that
request it.
(3) The citizen participation plan
must provide for at least one public
hearing during the development of the
consolidated plan. See paragraph (e) of
this section for public hearing
requirements, generally.
(4) The citizen participation plan
must provide a period, not less than 30
calendar days, to receive comments
from residents of the community on the
consolidated plan.
(5) The citizen participation plan
shall require the jurisdiction to consider
any comments or views of residents of
the community received in writing, or
orally at the public hearings, in
preparing the final consolidated plan. A
summary of these comments or views,
and a summary of any comments or
views not accepted and the reasons
why, shall be attached to the final
consolidated plan.
(c) Consolidated plan amendments.
(1) The citizen participation plan must
specify the criteria the jurisdiction will
use for determining what changes in the
jurisdiction’s planned or actual
activities constitute a substantial
amendment to the consolidated plan.
(See § 91.505.) The citizen participation
plan must include, among the criteria
for a substantial amendment, changes in
the use of CDBG funds from one eligible
activity to another.
(2) The citizen participation plan
must provide community residents with
reasonable notice and an opportunity to
comment on substantial amendments to
the consolidated plan. The citizen
participation plan must state how
reasonable notice and an opportunity to
comment will be given. The citizen
participation plan must provide a
period, of not less than 30 calendar
days, to receive comments on the
consolidated plan substantial
amendment before the consolidated
plan substantial amendment is
implemented is submitted to HUD for
review.
(3) The citizen participation plan
shall require the jurisdiction to consider
any comments or views of residents of
the community received in writing, or
orally at public hearings, if any, in
preparing the substantial amendment of
the consolidated plan. A summary of
these comments or views, and a
summary of any comments or views not
accepted and the reasons why, shall be
attached to the substantial amendment
of the consolidated plan.
*
*
*
*
*
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(e) Public hearings—(1)(i).
Consolidated plan. The citizen
participation plan must provide for at
least two public hearings per year to
obtain residents’ views and to respond
to proposals and questions, to be
conducted at a minimum of two
different stages of the program year.
Together, the hearings must address
housing and community development
needs, development of proposed
activities, proposed strategies and
actions for affirmatively furthering fair
housing, and a review of program
performance.
*
*
*
*
*
(g) Availability to the public. The
citizen participation plan must provide
that the consolidated plan as adopted,
consolidated plan substantial
amendments, and the performance
report will be available to the public,
including the availability of materials in
a form accessible to persons with
disabilities, upon request. The citizen
participation plan must state how these
documents will be available to the
public.
(h) Access to records. The citizen
participation plan must require the
jurisdiction to provide residents of the
community, public agencies, and other
interested parties with reasonable and
timely access to information and records
relating to the jurisdiction’s
consolidated plan and use of assistance
under the programs covered by this part
during the preceding 5 years.
(i) Technical assistance. The citizen
participation plan must provide for
technical assistance to groups
representative of persons of low- and
moderate-income that request such
assistance in developing proposals for
funding assistance under any of the
programs covered by the consolidated
plan, with the level and type of
assistance determined by the
jurisdiction. The assistance need not
include the provision of funds to the
groups.
(j) Complaints. The citizen
participation plan shall describe the
jurisdiction’s appropriate and
practicable procedures to handle
complaints from its residents related to
the consolidated plan, amendments,
revisions, and the performance report.
At a minimum, the citizen participation
plan shall require that the jurisdiction
must provide a timely, substantive
written response to every written
resident complaint, within an
established period of time (within 15
working days, where practicable, if the
jurisdiction is a CDBG grant recipient).
*
*
*
*
*
■ 9. Revise § 91.110 to read as follows:
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§ 91.110
47907
Consultation; States.
(a) When preparing the consolidated
plan, the State shall consult with other
public and private agencies that provide
assisted housing (including any state
housing agency administering public
housing), health services, and social and
fair housing services (including those
focusing on services to children, elderly
persons, persons with disabilities,
persons with HIV/AIDS and their
families, and homeless persons) during
preparation of the consolidated plan.
(b) When preparing the portions of the
consolidated plan describing the State’s
homeless strategy and the resources
available to address the needs of
homeless persons (particularly
chronically homeless individuals and
families, families with children,
veterans and their families, and
unaccompanied youth) and persons at
risk of homelessness, the State must
consult with:
(1) Each Continuum of Care within
the state;
(2) Public and private agencies that
address housing, health, social services,
victim services, employment, or
education needs of low-income
individuals and families; of homeless
individuals and families, including
homeless veterans; youth; and/or of
other persons with special needs;
(3) Publicly funded institutions and
systems of care that may discharge
persons into homelessness (such as
health-care facilities, mental health
facilities, foster care and other youth
facilities, and corrections programs and
institutions); and
(4) Business and civic leaders.
(c) When preparing the portion of its
consolidated plan concerning leadbased paint hazards, the State shall
consult with state or local health and
child welfare agencies and examine
existing data related to lead-based paint
hazards and poisonings, including
health department data on the addresses
of housing units in which children have
been identified as lead-poisoned.
(d) When preparing its method of
distribution of assistance under the
CDBG program, a State must consult
with local governments in
nonentitlement areas of the state.
(e) The State must also consult with
each Continuum of Care within the state
in determining how to allocate its ESG
grant for eligible activities; developing
the performance standards for, and
evaluating the outcomes of, projects and
activities assisted by ESG funds; and
developing funding, policies, and
procedures for the operation and
administration of the HMIS.
■ 10. Amend § 91.115 by:
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a. Revising paragraph (a)(2)(i) and (ii);
b. Revising paragraph (b);
c. Redesignating paragraph (c)(1)(i) as
paragraph (c)(1) and removing
paragraph (c)(1)(ii);
■ d. Revising paragraphs (c)(2) and (3);
and
■ e. Revising paragraphs (f) through (h)
The revisions read as follows:
■
■
■
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§ 91.115
Citizen participation plan; States.
(a) * * *
(2) Encouragement of citizen
participation. (i) The citizen
participation plan must provide for and
encourage citizens to participate in the
development of the consolidated plan,
any substantial amendments to the
consolidated plan, and the performance
report. These requirements are designed
especially to encourage participation by
low- and moderate-income persons,
particularly those living in slum and
blighted areas and in areas where CDBG
funds are proposed to be used and by
residents of predominantly low- and
moderate-income neighborhoods. A
State must take appropriate actions to
encourage the participation of all its
residents, including minorities and nonEnglish speaking persons, as provided
in paragraph (a)(4) of this section, as
well as persons with disabilities.
(ii) The State shall encourage the
participation of Statewide and regional
institutions, Continuums of Care, and
other organizations (including
businesses, developers, nonprofit
organizations, philanthropic
organizations, and community-based
and faith-based organizations) that are
involved with or affected by the
programs or activities covered by the
consolidated plan in the process of
developing and implementing the
consolidated plan. Commencing with
consolidated plans submitted in or after
January 1, 2018, the State shall also
encourage the participation of public
and private organizations, including
broadband internet service providers,
organizations engaged in narrowing the
digital divide, agencies whose primary
responsibilities include the management
of flood prone areas, public land or
water resources, and emergency
management agencies in the process of
developing the consolidated plan.
*
*
*
*
*
(b) Development of the consolidated
plan. The citizen participation plan
must include the following minimum
requirements for the development of the
consolidated plan:
(1) The citizen participation plan
must require that, before the State
adopts a consolidated plan, the State
will make available to its residents,
public agencies, and other interested
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parties information that includes the
amount of assistance the State expects
to receive and the range of activities that
may be undertaken, including the
estimated amount that will benefit
persons of low- and moderate-income
and the plans to minimize displacement
of persons and to assist any persons
displaced. The citizen participation
plan must state when and how the State
will make this information available.
(2) The citizen participation plan
must require the State to publish the
proposed consolidated plan in a manner
that affords residents, units of general
local governments, public agencies, and
other interested parties a reasonable
opportunity to examine the document’s
content and to submit comments. The
citizen participation plan must set forth
how the State will make publicly
available the proposed consolidated
plan and give reasonable opportunity to
examine each document’s content. To
ensure that the consolidated plan and
the PHA plan are informed by
meaningful community participation,
program participants should employ
communications means designed to
reach the broadest audience. Such
communications may be met by
publishing a summary of each
document in one or more newspapers of
general circulation, and by making
copies of each document available on
the internet, on the grantee’s official
government website, and as well at
libraries, government offices, and public
places. The summary must describe the
content and purpose of the consolidated
plan, and must include a list of the
locations where copies of the entire
proposed document(s) may be
examined. In addition, the State must
provide a reasonable number of free
copies of the plan to its residents and
groups that request a copy of the plan.
(3) The citizen participation plan
must provide for at least one public
hearing on housing and community
development needs before the proposed
consolidated plan is published for
comment.
(i) The citizen participation plan must
state how and when adequate advance
notice of the hearing will be given to
residents, with sufficient information
published about the subject of the
hearing to permit informed comment.
(Publishing small print notices in the
newspaper a few days before the hearing
does not constitute adequate notice.
Although HUD is not specifying the
length of notice required, HUD would
consider 2 weeks adequate.)
(ii) The citizen participation plan
must provide that the hearing be held at
a time and accessible location
convenient to potential and actual
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beneficiaries, and with accommodation
for persons with disabilities. The citizen
participation plan must specify how it
will meet these requirements.
(iii) The citizen participation plan
must identify how the needs of nonEnglish speaking residents will be met
in the case of a public hearing where a
significant number of non-English
speaking residents can be reasonably
expected to participate.
(4) The citizen participation plan
must provide a period, of not less than
30 calendar days, to receive comments
from residents and units of general local
government on the consolidated plan.
(5) The citizen participation plan
shall require the State to consider any
comments or views of its residents and
units of general local government
received in writing, or orally at the
public hearings, in preparing the final
consolidated plan. A summary of these
comments or views, and a summary of
any comments or views not accepted
and the reasons therefore, shall be
attached to the final consolidated plan
(as applicable).
(c) Amendments. The citizen
participation plan must specify the
criteria the State will use for
determining what changes in the State’s
planned or actual activities constitute a
substantial amendment to the
consolidated plan. (See § 91.505.) The
citizen participation plan must include,
among the criteria for a consolidated
plan, substantial amendment changes in
the method of distribution of such
funds.
(2) The citizen participation plan
must provide residents and units of
general local government with
reasonable notice and an opportunity to
comment on consolidated plan
substantial amendments. The citizen
participation plan must state how
reasonable notice and an opportunity to
comment will be given. The citizen
participation plan must provide a
period, of not less than 30 calendar
days, to receive comments on the
consolidated plan substantial
amendment before the consolidated
plan substantial amendment is
implemented.
(3) The citizen participation plan
shall require the State to consider any
comments or views of its residents and
units of general local government
received in writing, or orally at public
hearings, if any, in preparing the
substantial amendment of the
consolidated plan. A summary of these
comments or views, and a summary of
any comments or views not accepted
and the reasons why, shall be attached
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to the substantial amendment of the
consolidated plan.
*
*
*
*
*
(f) Availability to the public. The
citizen participation plan must provide
that the consolidated plan as adopted,
consolidated plan substantial
amendments and the performance
report will be available to the public,
including the availability of materials in
a form accessible to persons with
disabilities, upon request. The citizen
participation plan must state how these
documents will be available to the
public.
(g) Access to records. The citizen
participation plan must require the State
to provide its residents, public agencies,
and other interested parties with
reasonable and timely access to
information and records relating to the
State’s consolidated plan and use of
assistance under the programs covered
by this part during the preceding 5
years.
(h) Complaints. The citizen
participation plan shall describe the
State’s appropriate and practicable
procedures to handle complaints from
its residents related to the consolidated
plan, consolidated plan amendments,
and the performance report. At a
minimum, the citizen participation plan
shall require that the State must provide
a timely, substantive written response to
every written resident complaint, within
an established period of time (within 15
working days, where practicable, if the
State is a CDBG grant recipient).
*
*
*
*
*
■ 11. Revise § 91.205(b)(2) to read as
follows:
§ 91.205 Housing and homeless needs
assessment.
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*
*
*
*
*
(b) * * *
(2) For any of the income categories
enumerated in paragraph (b)(1) of this
section, to the extent that any racial or
ethnic group has disproportionately
greater need in comparison to the needs
of that category as a whole, assessment
of that specific need shall be included.
For this purpose, disproportionately
greater need exists when the percentage
of persons in a category of need who are
members of a particular racial or ethnic
group in a category of need is at least
10 percentage points higher than the
percentage of persons in the category as
a whole.
*
*
*
*
*
§ 91.215
12. Amend § 91.215 by removing
paragraph (a)(5).
■
15:54 Aug 06, 2020
[Amended]
13. Amend § 91.220 by removing
paragraph (k)(1) and redesignating
paragraph (k)(2) as paragraph (k).
■ 14. Revise § 91.225(a)(1) to read as
follows:
■
§ 91.225
Certifications.
(a) * * *
(1) Affirmatively furthering fair
housing. Each jurisdiction is required to
submit a certification that it will
affirmatively further fair housing. This
includes certification that the grantee
will affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this chapter.
*
*
*
*
*
■ 15. Revise § 91.230 to read as follows:
§ 91.230
Monitoring.
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The plan must describe the standards
and procedures that the jurisdiction will
use to monitor activities carried out in
furtherance of the plan and will use to
ensure long-term compliance with
requirements of the programs involved,
including civil rights related program
requirements, minority business
outreach, and the comprehensive
planning requirements.
■ 16. Amend § 91.235, by revising
paragraphs (c)(1) and (4) to read as
follows:
§ 91.235 Special case; abbreviated
consolidated plan.
*
*
*
*
*
(c) What is an abbreviated plan?—(1)
Assessment of needs, resources, and
planned activities. An abbreviated plan
must contain sufficient information
about needs, resources, and planned
activities to address the needs to cover
the type and amount of assistance
anticipated to be funded by HUD.
*
*
*
*
*
(4) Submissions, certifications,
amendments, and performance reports.
An Insular Area grantee that submits an
abbreviated consolidated plan under
this section must comply with the
submission, certification, amendment,
and performance report requirements of
24 CFR 570.440. This includes
certification that the grantee will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this chapter.
*
*
*
*
*
■ 17. Revise § 91.305(b)(2) to read as
follows:
§ 91.305 Housing and homeless needs
assessment.
*
*
*
*
(b) * * *
(2) For any of the income categories
enumerated in paragraph (b)(1) of this
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section, to the extent that any racial or
ethnic group has disproportionately
greater need in comparison to the needs
of that category as a whole, assessment
of that specific need shall be included.
For this purpose, disproportionately
greater need exists when the percentage
of persons in a category of need who are
members of a particular racial or ethnic
group in a category of need is at least
10 percentage points higher than the
percentage of persons in the category as
a whole.
*
*
*
*
*
§ 91.315
[Amended]
18. Amend § 91.315 by removing
paragraph (a)(5).
■
§ 91.320
[Amended]
19. Amend § 91.320 by removing
paragraph (j)(1) and redesignating
paragraph (j)(2) as (j).
■ 20. Revise § 91.325(a)(1) to read as
follows:
■
*
[Amended]
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47909
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§ 91.325
Certifications.
(a) * * *
(1) Affirmatively furthering fair
housing. Each State is required to
submit a certification that the grantee
will affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this chapter.
*
*
*
*
*
■ 21. Revise § 91.415 to read as follows:
§ 91.415
Strategic plan.
Strategies and priority needs must be
described in the consolidated plan, in
accordance with the provisions of
§ 91.215, for the entire consortium. The
consortium is not required to submit a
nonhousing Community Development
Plan; however, if the consortium
includes CDBG entitlement
communities, the consolidated plan
must include the nonhousing
Community Development Plans of the
CDBG entitlement community members
of the consortium. The consortium must
set forth its priorities for allocating
housing (including CDBG and ESG,
where applicable) resources
geographically within the consortium,
describing how the consolidated plan
will address the needs identified (in
accordance with § 91.405), describing
the reasons for the consortium’s
allocation priorities, and identifying any
obstacles there are to addressing
underserved needs.
■ 22. Revise § 91.420(b) to read as
follows:
§ 91.420
Action plan.
*
*
*
*
*
(b) Description of resources and
activities. The action plan must describe
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the resources to be used and activities
to be undertaken to pursue its strategic
plan. The consolidated plan must
provide this description for all resources
and activities within the entire
consortium as a whole, as well as a
description for each individual
community that is a member of the
consortium.
*
*
*
*
*
■ 23. Revise § 91.425(a)(1)(i) to read as
follows:
§ 91.425
Certifications.
(a) * * *
(1) General—(i) Affirmatively
furthering fair housing. Each consortium
must submit a certification that it will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this chapter.
*
*
*
*
*
§ 91.505
[Amended]
24. Amend § 91.505 by removing
paragraph (d).
■
PART 92—HOME INVESTMENT
PARTNERSHIPS PROGRAM
25. The authority citation for part 92
continues to read as follows:
■
Authority: 42 U.S.C. 3535(d), 12 U.S.C.
1701x and 4568.
■
26. Revise § 92.104 to read as follows:
§ 92.104
plan.
Recordkeeping.
(a) * * *
(7) * * *
(i) * * *
(C) Documentation that the
participating jurisdiction submitted a
certification that it will affirmatively
further fair housing, consistent with
§§ 5.150 and 5.151 of this chapter.
*
*
*
*
*
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PART 570—COMMUNITY
DEVELOPMENT BLOCK GRANTS
28. The authority citation for part 570
continues to read as follows:
■
Authority: 12 U.S.C. 1701x, 1701 x–1; 42
U.S.C. 3535(d) and 5301–5320.
29. Amend § 570.3 to revise the
introductory text to read as follows:
■
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Definitions.
The terms Affirmatively Furthering
Fair Housing, HUD, and Secretary are
defined in 24 CFR part 5. All of the
following definitions in this section that
rely on data from the United States
Bureau of the Census shall rely upon the
data available from the latest decennial
census or the American Community
Survey.
*
*
*
*
*
■ 30. Amend § 570.205 by:
■ a. Removing paragraph (a)(4)(vii); and,
■ b. Redesignating paragraph (a)(4)(viii)
as (a)(4)(vii) and revise the newly
redesignated paragraph.
The revision reads as follows:
§ 570.205 Eligible planning, urban
environmental design and policy-planningmanagement-capacity building activities.
(a) * * *
(4) * * *
(vii) Developing an inventory of
properties with known or suspected
environmental contamination.
*
*
*
*
*
■ 31. Amend § 570.441 by:
■ a. Revising (b) introductory text;
■ b. Revising paragraphs (b)(2) and (3);
■ c. Revising the paragraph heading to
paragraph (c) and revising paragraph
(c)(1);
■ d. Revising paragraphs (d) and (e);
and,
§ 570.441
areas.
Submission of a consolidated
A jurisdiction that has not submitted
a consolidated plan to HUD must
submit to HUD, not later than 90
calendar days after providing
notification under § 92.103, a
consolidated plan in accordance with 24
CFR part 91.
■ 27. Amend § 92.508 by revising
paragraph (a)(7)(i)(C) to read as follows:
§ 92.508
§ 570.3
Citizen participation—insular
*
*
*
*
*
(b) Citizen participation plan. The
insular area jurisdiction must develop
and follow a detailed citizen
participation plan and must make the
plan public. The plan must be
completed and available before the
statement for assistance is submitted to
HUD, and the jurisdiction must certify
that it is following the plan. The plan
must set forth the jurisdiction’s policies
and procedures for:
*
*
*
*
*
(2) Providing technical assistance to
groups that are representative of persons
of low- and moderate-income that
request assistance in developing
proposals. The level and type of
assistance to be provided is at the
discretion of the jurisdiction. The
assistance need not include the
provision of funds to the groups;
(3) Holding a minimum of two public
hearings for the purpose of obtaining
residents’ views and formulating or
responding to proposals and questions.
Each public hearing must be conducted
at a different stage of the CDBG program
year. Together, the hearings must
address, community development and
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housing needs, development of
proposed activities, and a review of
program performance. There must be
reasonable notice of the hearings, and
the hearings must be held at times and
accessible locations convenient to
potential or actual beneficiaries, with
reasonable accommodations, including
materials in accessible formats, for
persons with disabilities. The
jurisdiction must specify in its citizen
participation plan how it will meet the
requirement for hearings at times and
accessible locations convenient to
potential or actual beneficiaries;
*
*
*
*
*
(c) Publication of proposed statement.
(1) The insular area jurisdiction shall
publish a proposed statement consisting
of the proposed community
development activities and community
development objectives (as applicable)
in order to afford affected residents an
opportunity to:
*
*
*
*
*
(d) Preparation of the final statement.
An insular area jurisdiction must
prepare a final statement. In the
preparation of the final statement, the
jurisdiction shall consider comments
and views received relating to the
proposed document and may, if
appropriate, modify the final document.
The final statement shall be made
available to the public. The final
statement shall include the community
development objectives, projected use of
funds, and the community development
activities.
(e) Program amendments. To assure
citizen participation on program
amendments to final statements, the
insular area grantee shall:
(1) Furnish its residents with
information concerning the amendment
to the consolidated plan;
(2) Hold one or more public hearings
to obtain the views of residents on the
proposed amendment to the
consolidated plan;
(3) Develop and publish the proposed
amendment to the consolidated plan in
such a manner as to afford affected
residents an opportunity to examine the
contents, and to submit comments on
the proposed amendment to the
consolidated plan;
(4) Consider any comments and views
expressed by residents on the proposed
amendment to the consolidated plan,
and, if the grantee finds it appropriate,
make modifications accordingly; and
(5) Make the final amendment to the
community development program
available to the public before its
submission to HUD.
*
*
*
*
*
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Federal Register / Vol. 85, No. 153 / Friday, August 7, 2020 / Rules and Regulations
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
■ 35. Revise § 570.601(a)(2) to read as
follows:
32. Revise § 570.487(b) to read as
follows:
■
§ 570.487 Other applicable laws and
related program requirements.
*
*
*
*
*
(b) Affirmatively furthering fair
housing. Each State is required to
submit a certification that it will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title. Each unit of general local
government is required to submit a
certification that it will affirmatively
further fair housing, consistent with
§§ 5.150 and 5.151 of this title.
*
*
*
*
*
■ 33. Amend § 570.490 by revising
paragraphs (a)(1) and (b) to read as
follows:
jbell on DSKJLSW7X2PROD with RULES
§ 570.490
§ 570.601 Public Law 88–352 and Public
Law 90–284; affirmatively furthering fair
housing; Executive Order 11063.
Recordkeeping requirements.
(a) * * *
(1) The State shall establish and
maintain such records as may be
necessary to facilitate review and audit
by HUD of the State’s administration of
CDBG funds under § 570.493. The
content of records maintained by the
State shall be as jointly agreed upon by
HUD and the States and sufficient to
enable HUD to make the determinations
described at § 570.493. For fair housing
and equal opportunity purposes,
whereas such data is already being
collected and where applicable, such
records shall include data on the racial,
ethnic, and gender characteristics of
persons who are applicants for,
participants in, or beneficiaries of the
program. The records shall also permit
audit of the States in accordance with
24 CFR part 85.
*
*
*
*
*
(b) Unit of general local government’s
record. The State shall establish
recordkeeping requirements for units of
general local government receiving
CDBG funds that are sufficient to
facilitate reviews and audits of such
units of general local government under
§§ 570.492 and 570.493. For fair
housing and equal opportunity
purposes, whereas such data is already
being collected and where applicable,
such records shall include data on the
racial, ethnic, and gender characteristics
of persons who are applicants for,
participants in, or beneficiaries of the
program.
*
*
*
*
*
■ 34. In § 570.506, revise paragraph
(g)(1) to read as follows:
§ 570.506
Records to be maintained.
*
*
*
*
*
(g) * * *
(1) Documentation that the recipient
submitted a certification that it will
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15:54 Aug 06, 2020
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(a) * * *
(2) Public Law 90–284, which is the
Fair Housing Act (42 U.S.C. 3601–3620).
In accordance with the Fair Housing
Act, the Secretary requires that grantees
administer all programs and activities
related to housing and urban
development in a manner to
affirmatively further the policies of the
Fair Housing Act. Each community
receiving a grant under subpart D of this
part, shall submit a certification that it
will affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
*
*
*
*
*
PART 574—HOUSING
OPPORTUNITIES FOR PERSONS WITH
AIDS
36. The authority citation for part 574
continues to read as follows:
■
Authority: 12 U.S.C. 1701x, 1701x–1; 42
U.S.C. 3535(d) and 5301–5320.
37. In § 574.530. revise paragraph (b)
to read as follows:
■
§ 574.530
Recordkeeping.
*
*
*
*
*
(b) Documentation that the grantee
submitted a certification that it will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
*
*
*
*
*
PART 576—EMERGENCY SOLUTIONS
GRANTS PROGRAM
38. The authority citation for part 576
continues to read as follows:
■
Authority: 12 U.S.C. 1701x, 1701x–1; 42
U.S.C. 11371 et seq., 42 U.S.C. 3535(d).
39. Amend § 576.500 by revising
paragraph (s)(1)(ii) to read as follows:
■
§ 576.500 Recordkeeping and reporting
requirements.
*
*
*
*
*
(s) * * *
(1) * * *
(ii) Documentation that the recipient
submitted a certification that it will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
*
*
*
*
*
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47911
PART 903—PUBLIC HOUSING
AGENCY PLANS
40. The authority citation for part 903
continues to read as follows:
■
Authority: 42 U.S.C. 1437c; 42 U.S.C.
1437c–1; Pub. L. 110–289; 42 U.S.C. 3535d.
41. Amend § 903.7 by revising
paragraphs (a)(1)(iii) and (o) to read as
follows:
■
§ 903.7 What information must a PHA
provide in the Annual Plan?
*
*
*
*
*
(a) * * *
(1) * * *
(iii) Households with individuals
with disabilities and households of
various races and ethnic groups residing
in the jurisdiction or on the waiting list.
*
*
*
*
*
(o) Civil rights certification. (1) The
PHA must certify that it will carry out
its plan in conformity with title VI of
the Civil Rights Act of 1964 (42 U.S.C.
2000d–2000d–4), the Fair Housing Act
(42 U.S.C. 3601–19), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C.
794), title II of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101
et seq.), and other applicable Federal
civil right laws, and that it will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
(2) The certification is applicable to
both the 5-Year Plan and the Annual
Plan, including any plan incorporated
therein.
*
*
*
*
*
■ 42. Revise § 903.15 to read as follows:
§ 903.15 What is the relationship of the
public housing agency plans to the
Consolidated Plan and a PHA’s Fair
Housing Requirements?
(a) The PHA must ensure that the
Annual Plan is consistent with any
applicable Consolidated Plan for the
jurisdiction in which the PHA is
located.
(1) The PHA must submit a
certification by the appropriate State or
local officials that the Annual Plan is
consistent with the Consolidated Plan
and include a description of the manner
in which the applicable plan contents
are consistent with the Consolidated
Plans.
(2) For State agencies that are PHAs,
the applicable Consolidated Plan is the
State Consolidated Plan.
(b) A PHA may request to change its
fiscal year to better coordinate its
planning with the planning done under
the Consolidated Plan process, by the
State or local officials, as applicable.
■ 43. Amend § 903.23 by revising
paragraph (f) to read as follows:
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§ 903.23 What is the process by which
HUD reviews, approves, or disapproves an
Annual Plan?
*
*
*
*
*
(f) Recordkeeping. PHAs must
maintain records reflecting a
certification that the PHA will
affirmatively further fair housing,
consistent with §§ 5.150 and 5.151 of
this title.
Dated: July 23, 2020.
Benjamin S. Carson, Sr.,
Secretary.
[FR Doc. 2020–16320 Filed 8–6–20; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket No. USCG–2020–0402]
Special Local Regulation; Southern
California Annual Marine Events for
San Diego—San Diego Bayfair
Coast Guard, DHS.
Notice of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
the San Diego Bayfair special local
regulations on the waters of Mission
Bay, California from September 18
through September 20, 2020. These
special local regulations are necessary to
provide for the safety of the
participants, crew, spectators, sponsor
vessels, and general users of the
waterway. During the enforcement
period, persons and vessels are
prohibited from anchoring, blocking,
loitering, or impeding within this
regulated area unless authorized by the
Captain of the Port, or his designated
representative.
SUMMARY:
The regulations in 33 CFR
100.1101, Item 9, will be enforced from
6 a.m. until 6 p.m., each day from
September 18, 2020 through September
20, 2020.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this notice of
enforcement, call or email Lieutenant
Briana Biagas, Waterways Management,
U.S. Coast Guard Sector San Diego, CA;
telephone (619) 278–7656, email
D11MarineEventsSD@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce special local
regulations in 33 CFR 100.1101 for the
San Diego Bayfair race regulated area
from 6 a.m. to 6 p.m. from September
18, 2020 through September 20, 2020.
jbell on DSKJLSW7X2PROD with RULES
DATES:
VerDate Sep<11>2014
15:54 Aug 06, 2020
Jkt 250001
This action is being taken to provide for
the safety of life on navigable waterways
during this 3-day event. Our regulation
for marine events within the Eleventh
Coast Guard District, § 100.1101,
specifies the location of the regulated
area for the San Diego Bayfair which
encompasses the waters of Mission Bay
to include Fiesta Bay, the east side of
Vacation Isle, and Crown Point shores.
Under the provisions of § 100.1101,
persons and vessels are prohibited from
anchoring, blocking, loitering, or
impeding within this regulated area
unless authorized by the Captain of the
Port, or his designated representative.
The Coast Guard may be assisted by
other Federal, State, or local law
enforcement agencies in enforcing this
regulation.
In addition to this notice of
enforcement in the Federal Register, the
Coast Guard plans to provide
notification of this enforcement period
via the Local Notice to Mariners and
local advertising by the event sponsor.
If the Captain of the Port Sector San
Diego or his designated representative
determines that the regulated area need
not be enforced for the full duration
stated on this document, he or she may
use a Safety Marine Information
Broadcast or other communications
coordinated with the event sponsor to
grant general permission to enter the
regulated area.
Dated: July 29, 2020.
T.J. Barelli,
Captain, U.S. Coast Guard, Captain of the
Port San Diego.
[FR Doc. 2020–17011 Filed 8–6–20; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2020–0464]
Safety Zone; Commencement Bay,
Tacoma, WA
Coast Guard, DHS.
Notice of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
safety zone regulations for the Tacoma
Freedom Fair Air Show on
Commencement Bay from 1 p.m. to 4
p.m. on both September 12, 2020, and
September 13, 2020. This action is
necessary to ensure the safety of the
public from inherent dangers associated
with the annual aerial displays. During
the enforcement periods, no person or
SUMMARY:
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Fmt 4700
Sfmt 9990
vessel may enter or transit this safety
zone unless authorized by the Captain
of the Port Puget Sound or her
designated representative.
The regulations in 33 CFR
165.1305 will be enforced from 1 p.m.
until 4 p.m. on September 12, 2020, and
September 13, 2020.
DATES:
If
you have questions about this notice of
enforcement, call or email Chief
Warrant Officer William E. Martinez,
Sector Puget Sound Waterways
Management Division, U.S. Coast
Guard; telephone 206–217–6051, email
SectorPugetSoundWWM@uscg.mil.
FOR FURTHER INFORMATION CONTACT:
The Coast
Guard will enforce the safety zone in 33
CFR 165.1305 from 1 p.m. to 4 p.m. on
September 12, 2020, and September 13,
2020 unless the COTP of Puget Sound
grants general permission to enter the
regulated area during these stated
enforcement periods. This action is
being taken to provide for the safety of
life on navigable waterways during the
aerial demonstrations above the
waterway.
The safety zone resembles a rectangle
protruding from the shoreline along
Ruston Way and will be marked by the
event sponsor. The specific coordinates
of the safety zone location are listed in
33 CFR 165.1305.
As specified in § 165.1305(c), during
the enforcement periods, no vessel may
transit the regulated area without
approval from the COTP or a COTP
designated representative. The COTP
may be assisted by other federal, state,
and local law enforcement agencies in
enforcing this regulation.
In addition to this notice of
enforcement in the Federal Register, the
Coast Guard plans to provide
notification of this enforcement period
via the Local Notice to Mariners, marine
information broadcasts during the day
of the event. If the COTP determines the
safety zone need not be enforced for the
full duration stated in the notice of
enforcement, she may use a Broadcast
Notice to Mariners to grant general
permission to enter the regulated area.
SUPPLEMENTARY INFORMATION:
Dated: July 30, 2020.
L.A. Sturgis,
Captain, U.S. Coast Guard, Captain of the
Port Puget Sound.
[FR Doc. 2020–17035 Filed 8–6–20; 8:45 am]
BILLING CODE 9110–04–P
E:\FR\FM\07AUR1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 153 (Friday, August 7, 2020)]
[Rules and Regulations]
[Pages 47899-47912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16320]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 91, 92, 570, 574, 576, 903
[Docket No. FR 6228-F-01]
RIN 2501-AD95
Preserving Community and Neighborhood Choice
AGENCY: Office of Fair Housing, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: HUD grantees are generally required to certify that they will
``affirmatively further fair housing'' (AFFH) through HUD's
implementation of the 1968 Fair Housing Act and other applicable
statutes. For years after this certification was first required, it was
merely part of a general commitment to use the funds in good faith and
accompanied similar certifications not to violate various civil rights
statutes. Over time however, HUD began to use this AFFH certification
as a vehicle to force states and localities to change zoning and other
land use laws. This was done via a series of regulations and guidance
documents culminating with
[[Page 47900]]
the 2015 AFFH rule. This approach is not required by applicable
statutes, which give HUD considerable discretion in determining what
``affirmatively furthering fair housing'' means, and it is also at odds
with both federalism principles and specific statutes protecting local
control over housing policy. For example, Congress specifically barred
HUD from using funding to force grantees to change any public policy,
regulation, or law. HUD has reexamined the 2015 AFFH rule and the
definition of AFFH. In the new rule, HUD repeals the 2015 AFFH rule and
its related accretions. The new rule returns to the original
understanding of what the AFFH certification was for the first eleven
years of its existence: AFFH certifications will be deemed sufficient
provided grantees took affirmative steps to further fair housing policy
during the relevant period.
DATES: Effective date: September 8, 2020.
FOR FURTHER INFORMATION CONTACT: Andrew Hughes, Chief of Staff, or
Andrew McCall, Deputy Chief of Staff, U.S. Department of Housing and
Urban Development, 451 7th Street SW, Washington, DC 20410, telephone
number 202-402-5955 (this is not a toll-free number). Persons with
hearing or speech challenges may access this number through TTY by
calling the toll-free Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The 1968 Fair Housing Act requires that agencies administering
housing-related programs do so ``in a manner affirmatively to further
the purposes'' of the Act.\1\ Similarly, HUD grantees are generally
required to certify that they will ``affirmatively further fair
housing.'' \2\
---------------------------------------------------------------------------
\1\ 42 U.S.C. 3608(e)(5).
\2\ Section 104(b)(2) of the Housing and Community Development
Act (HCD Act) (42 U.S.C. 5304(b)(2)) requires that, to receive a
grant, the state or local government must certify that it will
affirmatively further fair housing. Section 106(d)(7)(B) of the HCD
Act (42 U.S.C. 5306(d)(7)(B)) requires a local government that
receives a grant from a state to certify that it will affirmatively
further fair housing. The Cranston Gonzalez National Affordable
Housing Act (NAHA) (42 U.S.C. 12704 et seq.) provides in section 105
(42 U.S.C. 12705) that states and local governments that receive
certain grants from HUD must develop a comprehensive housing
affordability strategy to identify their overall needs for
affordable and supportive housing for the ensuing 5 years, including
housing for homeless persons, and outline their strategy to address
those needs. As part of this comprehensive planning process, section
105(b)(15) of NAHA (42 U.S.C. 12705(b)(15)) requires that these
program participants certify that they will affirmatively further
fair housing. The Quality Housing and Work Responsibility Act of
1998 (QHWRA), enacted into law on October 21, 1998, substantially
modified the United States Housing Act of 1937 (42 U.S.C. 1437 et
seq.) (1937 Act), and the 1937 Act was more recently amended by the
Housing and Economic Recovery Act of 2008, Public Law 110-289
(HERA). QHWRA introduced formal planning processes for PHAs--a 5-
Year Plan and an Annual Plan. The required contents of the Annual
Plan included a certification by the PHA that the PHA will, among
other things, affirmatively further fair housing.
---------------------------------------------------------------------------
This phrase is not defined in statute. Until 1994, HUD did not
define it by regulation. It was simply among a series of certifications
designed to ensure that the funds were generally used as intended and
consistent with civil rights law. Since then, the obligations
surrounding the certification have expanded significantly.
II. The Evolution of the AFFH Obligation
In 1994, President Clinton signed an Executive Order directing HUD
to issue AFFH regulations. Among other things, the regulations were to
``describe a method to identify impediments in programs or activities
that restrict fair housing choice.'' \3\ The same year, HUD promulgated
a rule dictating that a grantee would fulfill its AFFH obligation by
conducting an analysis of ``impediments to fair housing choice within
its jurisdiction'' and ``taking appropriate actions to overcome the
effects of any impediments.'' \4\ Recipients were to gather data and
keep written records of their analyses. They were encouraged to
communicate with the public about the process, but were not required to
submit materials to HUD beyond a summary of the Analysis of Impediments
(AI).\5\ In 1996, HUD issued a 170-page guidance document to explain
further the meaning of the four-word phrase ``affirmatively further
fair housing.'' \6\
---------------------------------------------------------------------------
\3\ Executive Order No. 12892, 59 FR 2939 (Jan. 20, 1994).
\4\ See 2014 regulations for CDBG entitlement communities at 24
CFR 570.601. Regulations for the consolidated plan process are the
2014 versions of 24 CFR 91.225 (local governments), Sec. 91.325
(state governments), and Sec. 91.425 (consortia applicants).
\5\ Perl, The Fair Housing Act: HUD Oversight, Programs, and
Activities, Congressional Research Service (Jun. 15, 2018).
\6\ HUD Fair Housing Planning Guide Volume I, 1996, available at
https://www.hud.gov/sites/dfiles/FHEO/documents/Fair%20Housing%20Planning%20Guide_508.pdf.
---------------------------------------------------------------------------
Once in place, the AI process became a vehicle for interest groups
and HUD to impose even greater and more controversial obligations on
state and local grantees. In 2006, a housing organization sued
Westchester County under the Federal False Claims Act on the theory
that the AFFH certification the County made to obtain funding was
false.\7\ Meritorious False Claims Act cases are typically taken on by
the government with the original litigant sharing in any award. In fact
of the 4,294 cases filed by the end of 2003, DOJ declined to intervene
in 2,653 cases (62%); the United States intervened (or the cases were
otherwise pursued) in 750 cases, and the remainder (891 cases) are
still under investigation.\8\ After the change in administrations in
2009, however, HUD decided to intervene. HUD negotiated a settlement
forcing the County to change its zoning laws and to pass legislation
requiring landlords to accept Section 8 tenants, both highly
controversial propositions never authorized by law.\9\
---------------------------------------------------------------------------
\7\ United States ex rel. Anti-Discrimination Ctr. of Metro
N.Y., Inc. v. Westchester Cty., 712 F.3d 761, 766 (2013).
\8\ Thomas L. Carson, et. al., Whistle-Blowing for Profit: An
Ethical Analysis of the Federal False Claims Act, Journal of
Business Ethics (2008) 77: 361-376.
\9\ United States ex rel. Anti-Discrimination Ctr. of Metro N.Y.
v. Westchester County, 712 F.3d 761, 766 (2013).
---------------------------------------------------------------------------
Following that expansion of requirements imposed under the guise of
the AFFH certification, HUD promulgated an even more aggressive AFFH
rule finalized in 2015. The 2015 rule, for the first time, provided a
detailed definition of AFFH and provided a new process called an
Assessment of Fair Housing (AFH), effectively replacing AI. The
regulation specifically required a detailed analysis of the grantee
jurisdiction's ``zoning and land use'' laws.\10\ Those were not the
only local matters targeted. The regulation noted that fair housing
issues ``may arise from such factors as . . . public services that may
be offered in connection with housing (e.g., water, sanitation), and a
host of other issues.\11\ Its accompanying assessment tool forced
Public Housing Authority grantees to analyze and consider data and
policies beyond their jurisdictional control and typical subject-matter
expertise.\12\ For example, the rule required identifying disparities
in ``access to public transportation, quality schools and jobs . . .
[and] environmental health hazards'' and ``programs, policies, or
funding mechanisms that affect disparities'' to such access. In some
cases, grantees were required to gather data going back to the
1990s.\13\
---------------------------------------------------------------------------
\10\ 80 FR 42290 (Jul. 16, 2015).
\11\ 80 FR 42286 (Jul. 16, 2015).
\12\ 85 FR 2041 (Jan. 14, 2020).
\13\ Id., noting that while the assessment tool for PHAs was not
finally implemented, this was the case under a published draft.
---------------------------------------------------------------------------
The process for grantees was also overly burdensome and costly. The
number of questions, the open-ended
[[Page 47901]]
nature of many questions, and the lack of prioritization between
questions made the planning process both inflexible and difficult to
complete. Unsurprisingly, the rule required significant resources from
grantees and its complexity and demands resulted in a high failure rate
for jurisdictions to gain approval for their AFH in the first year of
AFH submission. Grantees complained that it was extremely resource-
intensive and complicated, placing a strain on limited budgets.\14\
Pursuant to the 2015 AFFH rule, HUD requested 64 full time staff at a
cost of approximately $9 million merely to implement the new AFH
process, with a total cost estimate to HUD and HUD grantees ranging
anywhere from $15 million to $51.4 million annually.\15\
---------------------------------------------------------------------------
\14\ Id.
\15\ Affirmatively Furthering Fair Housing Final Rule:
Regulatory Impact Analysis, July 16, 2015 available at https://www.huduser.gov/portal/sites/default/files/pdf/AFFH_Regulatory_Impact_Analysis_FinalRule.pdf.
---------------------------------------------------------------------------
The vast reach of the 2015 rule was well understood within the
housing community. At a livestreamed conference, just weeks before it
was unveiled, speakers discussed how AFFH would radically remake
American suburbs and localities, even though the rule ``sounds very
obscure.'' \16\ One participant remarked: ``Perhaps it's important to
keep it sounding obscure, in order to get it through. Sometimes
obscurity is the best political strategy.'' \17\
---------------------------------------------------------------------------
\16\ Kurtz, AFFH: Admission of Stealth Caught on Video, National
Review, (Jun 15, 2015).
\17\ Id.
---------------------------------------------------------------------------
Critics, including many in Congress, criticized the 2015 AFFH rule
as an assault on local decision making. Senators Lee, Rubio and Enzi
offered an amendment to block the rule that was supported by 37
Senators: ``Every American should be free to choose where to live, and
every community should be free to zone its neighborhoods and compete
for new residents according to its distinct values.'' We ``don't need a
National Zoning Board. Washington should let Americans `govern local.'
'' \18\ Similar bills passed in the House.\19\
---------------------------------------------------------------------------
\18\ Press Release, The Hon. Mike Lee, Lee Introduces Bill to
Stop HUD Zoning Rule (Jul. 30, 2015).
\19\ Local Zoning Decisions Protection Act of 2017, H.R. 482,
115th Cong. (2017).
---------------------------------------------------------------------------
Under President Trump, HUD began to change course. In 2018, HUD
withdrew the AFH assessment tool after a review of early submissions
found it unduly burdensome and unworkable.\20\ In January 2020, HUD
proposed a revised AFFH rule.\21\ That proposed rule took steps to
reduce federal control of local housing decisions and lessen the burden
of data requirements imposed on local governments.\22\ However, when
the President reviewed the proposed rule, he expressed concern that the
HUD approach did not go far enough on either prong. For example,
grantee jurisdictions were still presented with a HUD list of
``inherent barriers'' to overcome, twelve of which directly interfered
with local land development decisions.\23\ Grantees were also required
to submit a plan detailing how they would overcome at least three
obstacles or achieve three fair housing goals which resulted in an
estimated annual paperwork burden of $13 million.\24\
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\20\ Affirmatively Furthering Fair Housing: Withdrawal of the
Assessment Tool for Local Governments, 83 FR 23923 (May 23, 2018).
\21\ 85 FR 2041 (Jan. 14, 2020).
\22\ Id. at 2042.
\23\ 85 FR 2041 (Jan. 14, 2020).
\24\ Id. at 2052, 2056.
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The President therefore asked HUD to reconsider the rule to see
whether HUD could do more, consistent with the AFFH obligation and
other legal requirements, to empower local communities and to reduce
the regulatory burden of providing unnecessary data to HUD. After
review, and based on prior internal discussions, HUD produced the
current rule.
III. HUD's New Approach
``HUD possesses broad discretionary powers to develop, award, and
administer its grants and to decide the degree to which they can be
shaped to help achieve Title VIII's goals.'' \25\ AFFH is a vague,
undefined term that could be open to several different plausible
meanings. HUD's interpretation will be entitled to deference as long as
it is reasonable.\26\
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\25\ NAACP v. Sec. of HUD, 817 F.2d 149, 157 (1st Cir. 1987).
\26\ Chevron U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984).
---------------------------------------------------------------------------
The Definition of ``Fair Housing''
It is imperative to note that the long-standing debate seeking to
define ``Fair Housing'' has spanned the political spectrum. Senator
Mondale, the chief sponsor of the Fair Housing Act (FHA), unambiguously
acknowledged the limited scope of the concept of fair housing. He
``made absolutely clear that Title VIII's policy to `provide . . . for
fair housing' means `the elimination of discrimination in the sale or
rental of housing. That is all it could possibly mean.' '' \27\ Senator
Mondale thus defined fair housing as simply housing that is free of
discrimination. In this definition, housing is ``fair'' if anyone who
can afford it faces no discrimination-based barriers to purchasing it.
As the court in NAACP observed, ``the law's supporters saw the ending
of discrimination as a means toward truly opening the nation's housing
stock to persons of every race and creed.'' \28\ They believed that
``[d]iscrimination in the sale and rental of housing has been the root
cause of the widespread patterns of de facto segregation.'' Thus, by
ensuring that housing is free of discrimination, the FHA would
establish ``a policy of dispersal through open housing'' to ``the point
where the supply of genuinely open housing increases.'' \29\
---------------------------------------------------------------------------
\27\ NAACP at 154.
\28\ Id. at 55.
\29\ Id. at 154-55.
---------------------------------------------------------------------------
In 1971, President Richard Nixon stated, ``[t]he very fact that so
much progress is being made, however, has sharpened the focus on what
has come to be called `fair housing'--a term employed, but not defined,
in the Civil Rights Act of 1968, and to which many persons and groups
have ascribed their own often widely varied meanings.'' \30\
---------------------------------------------------------------------------
\30\ See President Richard Nixon, Statement About Federal
Policies Relative to Equal Housing Opportunity, June 11, 1971
available at https://www.presidency.ucsb.edu/documents/statement-about-federal-policies-relative-equal-housing-opportunity.
---------------------------------------------------------------------------
In 1983, President Ronald Reagan stated, ``[f]airness is the
foundation of our way of life and reflects the best of our traditional
American values. Invidious, discriminatory housing practices undermine
the strength and vitality of America and her people.'' \31\
---------------------------------------------------------------------------
\31\ See President Ronald Reagan, Proclamation 5329--Fair
Housing Month, April 25, 1985 available at https://www.presidency.ucsb.edu/documents/proclamation-5329-fair-housing-month-1985.
---------------------------------------------------------------------------
The FHA prohibited discrimination based on race, color, religion,
national origin or sex, but Congress since expanded it to prohibit
discrimination on the basis of handicap and familial status.\32\
Congress also broadened national housing policy grants administered by
HUD, requiring AFFH certifications, to include goals such as a
``decent, safe, and sanitary housing for every American'' and
increasing the supply of ``affordable housing.'' \33\ Accordingly, HUD
defines ``fair housing'' to encompass non-discrimination as well as
these goals.
---------------------------------------------------------------------------
\32\ 42 U.S.C. 3604.
\33\ Cranston-Gonzalez National Affordable Housing Act of 1990,
Public Law 101-625 102, 105.
---------------------------------------------------------------------------
The Definition of ``Affirmatively Further''
By statute, grantees must ``affirmatively further'' fair housing.
In interpreting this phrase, HUD is guided
[[Page 47902]]
by the ``Ordinary-Meaning Canon'' of statutory interpretation which
states that ``words are to be understood in their ordinary, everyday
meanings--unless the context indicates that they bear a technical
sense.'' \34\ Given that the context for the phrase ``affirmatively
further'' in the Fair Housing Act does not bear a technical sense, the
words are assigned their generally-understood meanings.\35\ In this
context, ``further'' is used as a verb. According to the Merriam-
Webster Dictionary, to ``further'' is ``to help forward.'' \36\ In
seeking to further an objective, one acts to help it forward.
Accordingly, HUD defines ``further'' to mean ``promote.''
---------------------------------------------------------------------------
\34\ See Antonin Scalia & Brian A. Garner, Reading Law: The
Interpretation of Legal Texts section 6 (``Ordinary-Meaning Canon'')
(2012) (``Reading Law''); see also, e.g., United States v. Marrufo,
661 F.3d 1204, 1207 (10th Cir. 2011) (``When a term is not defined
in the Guidelines, we give it its plain meaning'').
\35\ Id. at section 7.
\36\ ``Further.'' Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/further.
Accessed 22 Jul. 2020.
---------------------------------------------------------------------------
Similarly, Ballentine's Law Dictionary defines ``affirm'' verbatim
as the following: ``[. . .] to confirm or ratify a statement, belief,
opinion, decision or judgement . . .'' \37\ The term ``affirmative'' is
defined verbatim as the following: ``an answer `yes'; something beyond
passive tolerance or acceptance.'' \38\ In the context of the statute,
the threshold to act ``affirmatively'' is met in undertaking an action
that confirms adherence to the statute's requirements to ``further''
fair housing. In the housing context, the quantum of action required
promoting fair housing to meet the requirement of ``affirmatively''
furthering fair housing is not specified in the statute. HUD interprets
the phrase to be flexible and unspecified, but to mean generally that
the grantee must take an active role rather than be passive.
---------------------------------------------------------------------------
\37\ ``Affirm.'' Ballentine's Law Dictionary, (3rd ed. 1969).
\38\ ``Affirmative.'' Ballentine's Law Dictionary, (3rd ed.
1969).
---------------------------------------------------------------------------
Accordingly, in this rule, HUD determines that a grantees' AFFH
certification will be deemed acceptable if the grantee has taken some
active step to promote fair housing. HUD recognizes that jurisdictions
may find many ways to advance fair housing that HUD officials cannot
predict. This diversity of methods is a good thing that ought to be
encouraged. This approach to the definition of ``affirmatively
furthering fair housing'' preserves flexibility for jurisdictions to
take action based on the needs, interests, and means of the local
community, and respects the proper role and expertise of state and
local authorities.
Court Interpretations of AFFH
There is case law that arguably takes a broader view of the
obligations surrounding the AFFH requirement. However, the principal
precedents were decided pre-1994, in the absence of an administrative
interpretation from HUD.\39\ The statutory phrase AFFH is concededly
ambiguous.\40\ Accordingly, under Chevron vs. NRDC, HUD retains
discretion to formulate a different definition of this ambiguous
phrase: \41\
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\39\ Infra, notes 44-46.
\40\ See, NAACP v. Harris, 567 F. Supp. 637, 644 (D. Mass. 1983)
(Citing the AFFH and related obligations and observing, ``it is
extremely difficult to quantify HUD legal obligations under these
statutes.'').
\41\ Chevron, 467 U.S. ([T]he court does not simply impose its
own construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the statute
is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a
permissible construction of the statute.).
---------------------------------------------------------------------------
The seminal case on the meaning of AFFH is the 1987 First Circuit
decision in NAACP v. Secretary of HUD.\42\ It held that ``affirmatively
furthering'' imposes an obligation ``to do more than simply refrain
from discriminating (and from purposely aiding discrimination by
others).'' \43\ The question is how much more.
---------------------------------------------------------------------------
\42\ NAACP, Boston Chapter v. Secretary of Housing and Urban
Development, 817 F. 2d 149 (1st Cir. 1987).
\43\ Id., 817 F.2d at 154, citing Shannon v. Department of
Housing and Urban Development, 436 F.2d 809 (3d Cir. 1970); Otero v.
New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir. 1973);
Alschuler v. Department of Housing and Urban Development, 686 F.2d
1236, 1246-47 (6th Cir. 1974); See also, Nat'l Fair Hous. Alliance
v. Carson, 330 F.Supp. 3d 14, 24-25 (D.C. Dist. 2018).
---------------------------------------------------------------------------
HUD's rule is consistent with the judicial consensus that AFFH
requires more than simply not discriminating. Grantees may not be
passive. They must actually promote fair housing for example by
fighting overt discrimination. Thus in NAACP, HUD failed in its own
AFFH obligation because, among other things, it failed to demand actual
fair housing enforcement from the City of Boston.\44\
---------------------------------------------------------------------------
\44\ See NAACP v. Harris, 567 F. Supp. 637, 644 (D. Mass. 1983).
---------------------------------------------------------------------------
The courts making the broadest claims of the AFFH requirement rely
on selective quotations from the legislative history. Those decisions
rely on legislative history about the FHA aiming to achieve ``truly
integrated and balanced living patterns'' and ending patterns of
segregation.\45\ The problem is that the same legislative history makes
clear that these were long-term goals to be achieved through the narrow
means of eliminating overt housing discrimination (e.g., restrictive
covenants).\46\ As the court in NAACP observed, ``the law's supporters
saw the ending of discrimination as a means toward truly opening the
nation's housing stock to persons of every race and creed.'' \47\ They
believed that ``[d]iscrimination in the sale and rental of housing has
been the root cause of the widespread patterns of de facto
segregation.'' \48\ The FHA was seen by its authors as only a ``first
step'' in achieving a grander vision.\49\ By ensuring that housing is
free of discrimination, the FHA would establish ``a policy of dispersal
through open housing'' to ``the point where the supply of genuinely
open housing increases.'' \50\ In short, enforcing non-discrimination
would produce open housing which in turn would reduce segregated living
patterns by ensuring that families regardless of race could live where
``where [they] wish . . . and where [they] can afford.'' \51\ Any
broader construction of the AFFH obligation is difficult to square with
the sponsor Senator Mondale's unambiguous pronouncement that the FHA's
policy to ``provide . . . for fair housing'' means ``the elimination of
discrimination in the sale or rental of housing. That is all it could
possibly mean.'' \52\
---------------------------------------------------------------------------
\45\ See, e.g., Otero v. New York City Housing Authority, 484
F.2d 1122, 1134 (2d Cir. 1973); Shannon v. U.S. Dep't of Hous. &
Urban Dev., 436 F.2d 809, 821 (3d Cir. 1970).
\46\ See e.g., Cong. Rec. Feb. 7, 1968 p. 2535 (discussing
restrictive covenants).
\47\ See NAACP v. Sec. of HUD at 155.
\48\ Id.
\49\ NAACP, 817 F.2d at 155.
\50\ Id. at 154-55.
\51\ Id. at 155.
\52\ Supra id. at 154.
---------------------------------------------------------------------------
HUD does not subscribe to broader interpretations of AFFH to the
extent precedent for them may exist. The case law is clear that ``HUD
maintains discretion in determining how the agency will fulfill its
AFFH obligation.'' \53\ Thus NAACP and its sister cases were all
interpreting an ambiguous phrase that the agency would otherwise have
some discretion to define. Indeed, those cases were decided years
before HUD had formulated a definition by rule.
---------------------------------------------------------------------------
\53\ Carson, 330 F. Supp. 3d at 25.
---------------------------------------------------------------------------
IV. Justification for the New Approach
Upon review, HUD concludes that there are sound policy reasons for
abandoning its prior approach and taking a narrower view of the extent
of the obligations surrounding the AFFH certification. These reasons
are rooted in the principles of federalism.
[[Page 47903]]
Federalism & Preserving Local Control
HUD's revised interpretation better comports both with Congress's
explicit intent to protect local decision making. Federal law
explicitly prohibits HUD from using grants to interfere in local
decision making. 42 U.S.C. 12711, under the heading ``Protection of
State and local authority'' provides:
The Secretary shall not establish any criteria for allocating or
denying funds made available under programs administered by the
Secretary based on the adoption, continuation, or discontinuation by
a jurisdiction of any public policy, regulation, or law that is (1)
adopted, continued, or discontinued in accordance with the
jurisdiction's duly established authority, and (2) not in violation
of any Federal law.\54\
---------------------------------------------------------------------------
\54\ In the Westchester litigation, the Second Circuit held this
provision did not bar HUD tying funding to the County changing its
zoning laws. To reach this conclusion, the court adopted the
strained reading that forcing the County to ``overcome'' its zoning
laws was not the same as requiring the County to repeal them. The
distinction between overcoming and repealing is very fine and at war
with the both the spirit and the letter of the law. HUD declines to
read this explicit statute narrowly so that the non-specific AFFH
obligation can be read broadly. See, County of Westchester v. U.S.
Department of Housing and Urban Development, et al., 802 F.3d 413
(2d Cir. 2015).
Other statutes also cut against interpreting the AFFH certification
to require an AI or similar assessment of housing barriers. To obtain
Community Development Program (CPD) funding, States and localities are
required to submit a housing strategy. That strategy must include an
assessment of whether regulatory barriers, including ``building codes,
fees, growth limits, taxes, and zoning, increase housing costs as well
as strategies to overcome any negative effects of these policies.''
\55\ Yet the law also independently requires an AFFH certification,
which would be redundant if the certification inherently required a
housing barriers analysis.\56\
---------------------------------------------------------------------------
\55\ 42 U.S.C. 12705(b)(4).
\56\ 42 U.S.C. 12705(b)(15).
---------------------------------------------------------------------------
It is notable that even as Congress required jurisdictions to
analyze housing barriers, it still acted unambiguously to protect local
control. The law explicitly prohibits HUD from denying CPD funds based
on a jurisdiction's failure to alter any of the regulatory barriers it
identified in its housing strategy.\57\
---------------------------------------------------------------------------
\57\ 42 U.S.C. 12705(c)(1).
---------------------------------------------------------------------------
HUD's amended AFFH rule gives local communities maximum flexibility
in designing and implementing sound policies responsive to unique local
needs, and eliminates overly burdensome, intrusive and inconsistent
reporting and monitoring requirements. The amended rule is consistent
with relevant legislative enactments. In other instances, Congress has
shown that it is perfectly capable of imposing strict reporting and
monitoring requirements on grantees when it deems such requirements
appropriate.\58\ Yet Congress has not imposed such detailed monitoring
and reporting requirements in connection with grantees' AFFH
obligations. Therefore, the agency exercises its discretion and
declines to impose detailed monitoring or reporting requirements by
regulation.\59\
---------------------------------------------------------------------------
\58\ See, e.g., 42 U.S.C. 7661(a)-(c), 7661(b)-(c) (requiring
that an applicant (1) submit a permit application and a compliance
plan describing how it will comply with all EPA requirements, (2)
certify its compliance annually, and (3) submit to inspection,
entry, monitoring and reporting requirements).
\59\ See Nat'l Fair Hous. Alliance at 25.
---------------------------------------------------------------------------
Furthermore, the Supreme Court has specifically held that the Fair
Housing Act ``is not an instrument to force housing authorities to
reorder their priorities.'' \60\ Indeed, the Fair Housing Act ``does
not decree a particular vision of urban development.'' \61\ In short,
the prescriptive nature of the prior rule was in tension with
Congress's intent and the current legal landscape, which places trust
in local jurisdictions to make the best decisions for themselves,
within the broad confines of the Fair Housing Act's limitations,
including its requirement that HUD grantees AFFH.\62\
---------------------------------------------------------------------------
\60\ See Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys.
Project, Inc., 576 U.S. 519, 537.
\61\ Id. at 537; see also id. (``Zoning officials, moreover,
must often make decisions based on a mix of factors, both objective
[such as cost and traffic patterns] and, at least to some extent,
subjective [such as preserving historic architecture]. These factors
contribute to a community's quality of life and are legitimate
concerns for housing authorities.'')
\62\ Press Release, The Hon. Mike Lee, Lee Introduces Bill to
Stop HUD Zoning Rule (Jul. 30, 2015).
---------------------------------------------------------------------------
The AFFH Rule, as amended, is the most faithful to the text and
purpose of the Fair Housing Act. It must be local governments, not HUD,
that exercise control of administering local housing policies,
including zoning and development policies that are unique to a
particular community.
This does not mean HUD will retreat from its fair housing mission.
Grantees' failure to take active steps to address discrimination in the
rental and sale of housing would be a violation of the AFFH requirement
at the most basic level. Moreover, as discussed above, entirely
separate from the AFFH certification, Congress required certain CPD
grantees, at a minimum, to evaluate potential barriers to affordable
housing such as zoning and local land use laws.\63\ CPD grantees cover
as many as 1200 states, counties, and cities, so HUD retains authority
to pursue analysis of housing barriers through these grant
instruments.\64\ In all cases, grantees must retain records sufficient
to prove that they are properly discharging their obligations.
---------------------------------------------------------------------------
\63\ 42 U.S.C. 12705(b)(4); CPD programs include (1) the
Community Development Block Grant program (``CDBG''); (2) the
Emergency Shelter Grant program (``ESG''); and (3) the HOME
Investment Partnership program (``HOME'').
\64\ Community Development Fund: 2020 Summary of Resources.
Department of Housing and Urban Development, available at, https://www.hud.gov/sites/dfiles/CFO/documents/2020CJ-CDFund.pdf.
---------------------------------------------------------------------------
Federalism Considerations
HUD's approach in the new rule is also supported by HUD's
determination that federal agencies addressing matters that are
traditionally within the authority of the States (such as housing)
should take a narrow view of the scope of their power. A growing body
of scholarship and judicial precedent is raising the alarm that the
ballooning administrative state shifts important policy choices from
Congress to comparatively unaccountable administrative agencies.\65\
---------------------------------------------------------------------------
\65\ See, Mike Jayne, As Far as Reasonably Practicable:
Reimagining the Role of Congress in Agency Rulemaking, Fed. Soc.
Rev. Vol. 21 (2020); Adam Gustafson, The Major Questions Doctrine
Outside Chevron's Domain, CSAS Working Paper (Jul. 2019); Joseph
Postell, Taking on the Administrative State, Heritage.org. (Oct. 9,
2017).
---------------------------------------------------------------------------
Recently, discussion of this broad principle has centered on an
important concept in Administrative Law known as ``the major issues
doctrine.'' Under this doctrine, judges ``presume that Congress does
not delegate its authority to settle or amend major social and economic
policy decisions.'' \66\ The reason is that a ``major policy change
should be made by the most democratically accountable process.'' \67\
If an ``agency wants to exercise expansive regulatory authority over
some major social or regulatory activity . . . an ambiguous grant of
statutory authority is not enough.'' \68\ As the Supreme Court has put
it, when it comes to delegating authority to federal agencies, Congress
``does not one might say, hide elephants in mouseholes.'' \69\ Thus,
the Court has held that a regulatory interpretation by an agency is
``unreasonable'' if it results in ``an enormous and transformative
expansion in . . . regulatory authority without
[[Page 47904]]
clear congressional authorization.'' \70\ Indeed, ``[w]hen an agency
claims to discover in a long-extant statute an unheralded power to
regulate a significant portion of the American economy,'' the Supreme
Court will ``typically greet its announcement with a measure of
skepticism.'' \71\ Rather, the Court expects that Congress will ``speak
clearly if it wishes to assign an agency decisions of vast economic and
political significance.'' \72\
---------------------------------------------------------------------------
\66\ Eskridge, William N. Interpreting Law: a Primer on How to
Read Statutes and the Constitution. Foundation Press, 2016.
\67\ Id.
\68\ USTA v. FCC, et al., No. 15-1063 (D.C. Cir. 2017)
(Kavanaugh, B., dissenting). Retrieved at: https://apps.fcc.gov/edocs_public/attachmatch/DOC-344654A1.pdf.
\69\ Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001).
\70\ Utility Air Regulatory Group v. Environmental Protection
Agency, 573 U.S. 302, 324 (2014) (citations and internal quotations
omitted).
\71\ Id. (citations and internal quotations omitted).
\72\ Id. (citations and internal quotations omitted).
---------------------------------------------------------------------------
In addition, it is states and local jurisdictions that have
traditionally regulated zoning and development policy, not the federal
government, and courts have readily acknowledged that ``States retain
substantial sovereign powers under our constitutional scheme, powers
with which Congress does not readily interfere.'' \73\ Indeed, the
District of Columbia Circuit has held that federal law ``may not be
interpreted to reach into areas of State sovereignty unless the
language of the federal law compels the intrusion.'' \74\ Thus, ``if
Congress intends to alter the usual constitutional balance between the
States and the Federal Government, it must make its intention to do so
unmistakably clear in the language of the statute.'' \75\
---------------------------------------------------------------------------
\73\ ABA v. FTC, 430 F.3d 457, 471-472 (D.C.C. 2005).
\74\ Id. at 471.
\75\ Id. at 471-472.
---------------------------------------------------------------------------
The phrase ``affirmatively further fair housing'' is vague and
unclear. The ordinary meaning of the phrase does not invite a
fundamental expansion of HUD regulations to include cumbersome policy,
monitoring or reporting requirements that will significantly affect the
economy by impacting local zoning and development policies across the
nation. Hanging a massively intrusive regulatory structure on such a
cryptic, four-word phrase is inconsistent with the bedrock principles
of separation of powers.
V. This Final Rule
The rule repeals the 2015 AFH and 1994 AI requirements where they
appear in regulation. Thus, it returns to the original understanding of
what the statutory AFFH certification was prior to the 1994 regulation:
A general commitment that grantees will use the funds to take active
steps to promote fair housing. Thus, grantee AFFH certifications will
be deemed sufficient provided they took any action during the relevant
period rationally related to promoting fair housing, such as helping
eliminate housing discrimination.
VI. Notice-and-Comment Does Not Apply
The Administrative Procedure Act exempts from notice-and-comment
rulemaking any ``matter relating to agency management or personnel or
to public property, loans, grants, benefits, or contracts.'' \76\
Because this rule applies only to the AFFH obligation of grantees, it
is exempt under the APA.
---------------------------------------------------------------------------
\76\ 5 U.S.C. 553(a)(2).
---------------------------------------------------------------------------
However, in 1969, the Administrative Conference of the United
States (ACUS) urged Congress to amend the APA to remove this exemption.
Congress declined. Still, several agencies, including HUD, issued
statements of policy that had the effect of voluntarily adopting ACUS's
recommendation.\77\ HUD's policy still remains in force, and while this
policy can no longer be repealed, the Secretary retains the authority
to waive the requirements of 24 CFR 10.1 in individual cases.\78\
---------------------------------------------------------------------------
\77\ 24 CFR 10.1.
\78\ 42 U.S.C. 3535(q); 24 CFR 5.110. In 1996, HUD proposed a
rule to eliminate part 10 from its regulations entirely. (61 FR
42722). In response, Congress passed an amendment to an
appropriations bill, continued in subsequent years, requiring HUD to
``maintain all current requirements under part 10.'' [Public Law
104-204, Sec. 215] (See Statement of Amendment Sponsor: ``this is a
prohibition on a HUD rulemaking effort to eliminate HUD public
notice and comment''). To maintain is to keep in place. Just as
prior to this amendment the waiver provision existed, so too
afterward. Thus, although the broader framework may not be altered,
the previously permitted waiver remains applicable. Thus, Public Law
104-204 does not abrogate the Secretary's independent statutory
authority under 42 U.S.C. 3535(q) to waive regulations in specific
circumstances.
---------------------------------------------------------------------------
The AFFH rule is particularly well-suited to a waiver from public
notice and comment because it has already been the subject of extensive
public debate. Over the past several years, HUD has received extensive
public feedback about AFFH. Both through the notice-and-comment period
in connection with the July 2015 AFFH Rule and the notice-and-comment
period that concluded earlier this year, HUD has received tens of
thousands of comments covering a wide range of stakeholders, including
public housing agencies, other housing providers, organizations
representative of housing providers, governmental jurisdictions and
agencies, civil rights organizations, tenant and other housing advocacy
organizations, and concerned citizens. There has also been a thorough
public debate on these issues in print and online. In light of this
public engagement, further notice and comment concerning AFFH is
unnecessary and would simply be a legal formality without adding
substance to the debate.
Accordingly, HUD has waived its policy that would otherwise
voluntarily subject the new AFFH rule to notice-and-comment. As
required by law, the waiver will be printed in the Federal Register.
VII. Findings and Certifications
Executive Orders 12866 and 13563, Regulatory Planning and Review
Pursuant to 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 Executive Order. In
light of the waiver executed by Secretary Carson and the status of this
regulation as exempt from notice and comment under 5 U.S.C. 553(a)(2),
review of this regulation has been waived under Executive Order 12866
section 6(a)(3)(A).
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. HUD believes that this final rule would provide
maximum flexibility and freedom for HUD grantees to AFFH and is
consistent with Executive Order 13563.
Executive Order 13771, Regulatory Costs
Executive Order 13771, entitled ``Reducing Regulation and
Controlling Regulatory Costs,'' was issued on January 30, 2017. This
final rule is an Executive Order 13771 deregulatory action. The burden
for the lengthy Assessment of Fair Housing (AFH), with its separate
community engagement and reporting requirements, would be eliminated
under this proposal. Jurisdictions would be able to determine their
actions to AFFH based on their capacity and needs, allowing
jurisdictions to avoid burdensome requirements beyond their abilities.
The previously approved information collections for the AFFH Local
Government and PHA and Assessment Tools (2529-0054 and 2529-0055,
respectively) had a total, combined
[[Page 47905]]
665,862 burden hours for all respondents. This was due to the extensive
nature of the tools and the additional public meeting requirements to
complete an AFH. HUD has already temporarily withdrawn the Local
Government Assessment Tool, and this final rule makes that removal
permanent. By removing these requirements, HUD expects that the AFFH
process will result in a significant reduction from the previous
process requirements.
The final rule significantly reduces the reporting burden for
jurisdictions in the formulation of AFFH strategies, reducing costs by
an estimated of no less than $23.7 million per year.
Executive Order 12612, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of Section 6 of the Executive Order. This rule would not have
federalism implications and would not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
Environmental Impact
This final rule is a policy document that sets out fair housing and
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3),
this final rule is categorically excluded from environmental review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements, unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Because HUD has
determined that good cause exists to issue this rule without prior
public comment, this rule is not subject to the requirement to publish
an initial or final regulatory flexibility analysis under the RFA as
part of such action.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless the
collection displays a currently valid Office of Management and Budget
(OMB) control number. The information collection requirements for
Affirmatively Furthering Fair Housing collected have previously been
approved by OMB under the Paperwork Reduction Act and assigned OMB
control number 2506-0117 (Consolidated Plan, Annual Action Plan &
Annual Performance Report).
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on state,
local, and tribal governments, and on the private sector. This rule
does not impose any Federal mandates on any state, local, or tribal
government, or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Crime,
Government contracts, Grant programs--housing and community
development, Individuals with disabilities, Intergovernmental
relations, Loan programs--housing and community development, Low and
moderate income housing, Mortgage insurance, Penalties, Pets, Public
housing, Rent subsidies, Reporting and recordkeeping requirements,
Social security, Unemployment compensation, Wages.
24 CFR Part 91
Aged; Grant programs--housing and community development; Homeless;
Individuals with disabilities; Low and moderate income housing;
Reporting and recordkeeping requirements.
24 CFR Part 92
Administrative practice and procedure; Low and moderate income
housing; Manufactured homes; Rent subsidies; Reporting and
recordkeeping requirements.
24 CFR Part 570
Administrative practice and procedure; American Samoa; Community
development block grants; Grant programs--education; Grant programs--
housing and community development; Guam; Indians; Loan programs--
housing and community development; Low and moderate income housing;
Northern Mariana Islands; Pacific Islands Trust Territory; Puerto Rico;
Reporting and recordkeeping requirements; Student aid; Virgin Islands.
24 CFR Part 574
Community facilities; Grant programs--housing and community
development; Grant programs--social programs; HIV/AIDS; Low- and
moderate-income housing; Reporting and recordkeeping requirements.
24 CFR Part 576
Community facilities; Grant programs--housing and community
development; Grant programs--social programs; Homeless; Reporting and
recordkeeping requirements.
24 CFR Part 903
Administrative practice and procedure; Public housing; Reporting
and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD amends
24 CFR parts 5, 91, 92, 570, 574, 576, and 903 as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
0
1. The authority citation for part 5, subpart A, continues to read as
follows:
Authority: 29 U.S.C. 794, 42 U.S.C. 1437a, 1437c, 1437c-1(d),
1437d, 1437f, 1437n, 3535(d), and Sec. 327, Pub. L. 109-115, 119
Stat. 2936; 42 U.S.C. 3600-3620; 42 U.S.C. 5304(b); 42 U.S.C. 12101
et seq.; 42 U.S.C. 12704-12708; Executive Order 11063, 27 FR 11527,
3 CFR, 1958-1963 Comp., p. 652; Executive Order 12892, 59 FR 2939, 3
CFR, 1994 Comp., p. 849.
0
2. Revise Sec. 5.150 to read as follows:
Sec. 5.150 Affirmatively Further Fair Housing; Definition.
(a) The phrase ``fair housing'' in 42 U.S.C. 5304(b)(2),
5306(d)(7)(B), 12705(b)(15), and 1437c-1(d)(16) means housing that,
among other attributes, is affordable, safe, decent, free of unlawful
discrimination, and accessible as required under civil rights laws.
(b) The phrase ``affirmatively further'' in 42 U.S.C. 5304(b)(2),
5306(d)(7)(B), 12705(b)(15), and 1437c-1(d)(16) means to take any
action rationally related to promoting any attribute or attributes of
fair housing as defined in the preceding subsection.
0
3. Revise Sec. 5.151 as follows:
Sec. 5.151 AFFH Certifications.
A HUD program participant's certification that it will
affirmatively further fair housing is sufficient if the participant
takes, in the relevant period, any action that is rationally related to
promoting one or more attributes of fair housing as defined in section
5.150(a).
[[Page 47906]]
Nothing in this paragraph relieves jurisdictions of their other
obligations under civil rights and fair housing statutes and
regulations.
Sec. Sec. 5.152 through 5.168 [Removed and Reserved]
0
4. Remove Sec. Sec. 5.152 through 5.168.
PART 91--CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND
DEVELOPMENT PROGRAMS
0
5. The authority citation for part 91 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3601-19, 5301-5315, 11331-11388,
12701-12711, 12741-12756, and 12901-12912.
0
6. In Sec. 91.5, revise the introductory paragraph to read as follows.
Sec. 91.5 Definitions.
The terms Affirmatively Furthering Fair Housing, elderly person,
and HUD are defined in 24 CFR part 5.
* * * * *
0
7. Amend Sec. 91.100 to revise paragraphs (a)(1), (c)(1), and remove
(e) to read as follows:
Sec. 91.100 Consultation; local governments.
(a) General. (1) When preparing the consolidated plan, the
jurisdiction shall consult with other public and private agencies that
provide assisted housing, health services, and social services
(including those focusing on services to children, elderly persons,
persons with disabilities, persons with HIV/AIDS and their families,
homeless persons), community-based and regionally-based organizations
that represent protected class members, and organizations that enforce
fair housing laws. When preparing the consolidated plan, the
jurisdiction shall also consult with public and private organizations.
Commencing with consolidated plans submitted on or after January 1,
2018, such consultations shall include broadband internet service
providers, organizations engaged in narrowing the digital divide,
agencies whose primary responsibilities include the management of flood
prone areas, public land or water resources, and emergency management
agencies.
* * * * *
(c) Public housing agencies (PHAs). (1) The jurisdiction shall
consult with local PHAs operating in the jurisdiction regarding
consideration of public housing needs, planned programs and activities,
strategies for affirmatively furthering fair housing, and proposed
actions to affirmatively further fair housing in the consolidated plan.
This consultation will help provide a better basis for the
certification by the authorized official that the PHA Plan is
consistent with the consolidated plan and the local government's
description of its strategy for affirmatively furthering fair housing
and the manner in which it will address the needs of public housing
and, where necessary, the manner in which it will provide financial or
other assistance to a troubled PHA to improve the PHA's operations and
remove the designation of troubled, as well as obtaining PHA input on
addressing fair housing issues in the Public Housing and Housing Choice
Voucher programs.
* * * * *
0
8. Amend Sec. 91.105 by:
0
a. Revising paragraphs (a)(2)(i) through (iii);
0
b. Revising (b) introductory text;
0
c. Revising paragraph (b)(1)(i);
0
d. Revising paragraphs (b)(2) through (5);
0
e. Revising paragraph (c);
0
f. Revising paragraph (e)(1)(i);
0
g. Removing paragraph (e)(1)(iii);
0
h. Revising paragraphs (g) through (j); and
0
i. Removing paragraph (l).
The revisions read as follows:
Sec. 91.105 Citizen participation plan; local governments.
(a) * * *
(2) Encouragement of citizen participation. (i) The citizen
participation plan must provide for and encourage citizens to
participate in the development of the consolidated plan, any
substantial amendment to the consolidated plan, and the performance
report. These requirements are designed especially to encourage
participation by low- and moderate-income persons, particularly those
persons living in areas designated by the jurisdiction as a
revitalization area or in a slum and blighted area and in areas where
CDBG funds are proposed to be used, and by residents of predominantly
low- and moderate-income neighborhoods, as defined by the jurisdiction.
A jurisdiction must take appropriate actions to encourage the
participation of all its citizens, including minorities and non-English
speaking persons, as provided in paragraph (a)(4) of this section, as
well as persons with disabilities.
(ii) The jurisdiction shall encourage the participation of local
and regional institutions, Continuums of Care, and other organizations
(including businesses, developers, nonprofit organizations,
philanthropic organizations, and community-based and faith-based
organizations) in the process of developing and implementing the
consolidated plan.
(iii) The jurisdiction shall encourage, in conjunction with
consultation with public housing agencies, the participation of
residents of public and assisted housing developments (including any
resident advisory boards, resident councils, and resident management
corporations) in the process of developing and implementing the
consolidated plan, along with other low-income residents of targeted
revitalization areas in which the developments are located. The
jurisdictions shall make an effort to provide information to the PHA
about affirmatively furthering fair housing strategy, and consolidated
plan activities related to its developments and surrounding communities
so that the PHA can make this information available at the annual
public hearing(s) required for the PHA Plan.
* * * * *
(b) Development of the consolidated plan. The citizen participation
plan must include the following minimum requirements for the
development of the consolidated plan:
(1)(i) The citizen participation plan must require that at or as
soon as feasible after the start of the public participation process
the jurisdiction will make the HUD-provided data and any other
supplemental information the jurisdiction plans to incorporate into its
consolidated plan available to its residents, public agencies, and
other interested parties. The jurisdiction may make the HUD-provided
data available to the public by cross-referencing to the data on HUD's
website.
* * * * *
(2) The citizen participation plan must require the jurisdiction to
publish the proposed consolidated plan in a manner that affords its
residents, public agencies, and other interested parties a reasonable
opportunity to examine its content and to submit comments. The citizen
participation plan must set forth how the jurisdiction will publish the
proposed consolidated plan and give reasonable opportunity to examine
each document's content. The requirement for publishing may be met by
publishing a summary of each document in one or more newspapers of
general circulation, and by making copies of each document available on
the internet, on the jurisdiction's official government website, and as
well at libraries, government offices, and public places. The summary
must describe the content and purpose of the consolidated plan and must
include a list of the locations where copies of the entire proposed
[[Page 47907]]
document may be examined. In addition, the jurisdiction must provide a
reasonable number of free copies of the plan to residents and groups
that request it.
(3) The citizen participation plan must provide for at least one
public hearing during the development of the consolidated plan. See
paragraph (e) of this section for public hearing requirements,
generally.
(4) The citizen participation plan must provide a period, not less
than 30 calendar days, to receive comments from residents of the
community on the consolidated plan.
(5) The citizen participation plan shall require the jurisdiction
to consider any comments or views of residents of the community
received in writing, or orally at the public hearings, in preparing the
final consolidated plan. A summary of these comments or views, and a
summary of any comments or views not accepted and the reasons why,
shall be attached to the final consolidated plan.
(c) Consolidated plan amendments. (1) The citizen participation
plan must specify the criteria the jurisdiction will use for
determining what changes in the jurisdiction's planned or actual
activities constitute a substantial amendment to the consolidated plan.
(See Sec. 91.505.) The citizen participation plan must include, among
the criteria for a substantial amendment, changes in the use of CDBG
funds from one eligible activity to another.
(2) The citizen participation plan must provide community residents
with reasonable notice and an opportunity to comment on substantial
amendments to the consolidated plan. The citizen participation plan
must state how reasonable notice and an opportunity to comment will be
given. The citizen participation plan must provide a period, of not
less than 30 calendar days, to receive comments on the consolidated
plan substantial amendment before the consolidated plan substantial
amendment is implemented is submitted to HUD for review.
(3) The citizen participation plan shall require the jurisdiction
to consider any comments or views of residents of the community
received in writing, or orally at public hearings, if any, in preparing
the substantial amendment of the consolidated plan. A summary of these
comments or views, and a summary of any comments or views not accepted
and the reasons why, shall be attached to the substantial amendment of
the consolidated plan.
* * * * *
(e) Public hearings--(1)(i). Consolidated plan. The citizen
participation plan must provide for at least two public hearings per
year to obtain residents' views and to respond to proposals and
questions, to be conducted at a minimum of two different stages of the
program year. Together, the hearings must address housing and community
development needs, development of proposed activities, proposed
strategies and actions for affirmatively furthering fair housing, and a
review of program performance.
* * * * *
(g) Availability to the public. The citizen participation plan must
provide that the consolidated plan as adopted, consolidated plan
substantial amendments, and the performance report will be available to
the public, including the availability of materials in a form
accessible to persons with disabilities, upon request. The citizen
participation plan must state how these documents will be available to
the public.
(h) Access to records. The citizen participation plan must require
the jurisdiction to provide residents of the community, public
agencies, and other interested parties with reasonable and timely
access to information and records relating to the jurisdiction's
consolidated plan and use of assistance under the programs covered by
this part during the preceding 5 years.
(i) Technical assistance. The citizen participation plan must
provide for technical assistance to groups representative of persons of
low- and moderate-income that request such assistance in developing
proposals for funding assistance under any of the programs covered by
the consolidated plan, with the level and type of assistance determined
by the jurisdiction. The assistance need not include the provision of
funds to the groups.
(j) Complaints. The citizen participation plan shall describe the
jurisdiction's appropriate and practicable procedures to handle
complaints from its residents related to the consolidated plan,
amendments, revisions, and the performance report. At a minimum, the
citizen participation plan shall require that the jurisdiction must
provide a timely, substantive written response to every written
resident complaint, within an established period of time (within 15
working days, where practicable, if the jurisdiction is a CDBG grant
recipient).
* * * * *
0
9. Revise Sec. 91.110 to read as follows:
Sec. 91.110 Consultation; States.
(a) When preparing the consolidated plan, the State shall consult
with other public and private agencies that provide assisted housing
(including any state housing agency administering public housing),
health services, and social and fair housing services (including those
focusing on services to children, elderly persons, persons with
disabilities, persons with HIV/AIDS and their families, and homeless
persons) during preparation of the consolidated plan.
(b) When preparing the portions of the consolidated plan describing
the State's homeless strategy and the resources available to address
the needs of homeless persons (particularly chronically homeless
individuals and families, families with children, veterans and their
families, and unaccompanied youth) and persons at risk of homelessness,
the State must consult with:
(1) Each Continuum of Care within the state;
(2) Public and private agencies that address housing, health,
social services, victim services, employment, or education needs of
low-income individuals and families; of homeless individuals and
families, including homeless veterans; youth; and/or of other persons
with special needs;
(3) Publicly funded institutions and systems of care that may
discharge persons into homelessness (such as health-care facilities,
mental health facilities, foster care and other youth facilities, and
corrections programs and institutions); and
(4) Business and civic leaders.
(c) When preparing the portion of its consolidated plan concerning
lead-based paint hazards, the State shall consult with state or local
health and child welfare agencies and examine existing data related to
lead-based paint hazards and poisonings, including health department
data on the addresses of housing units in which children have been
identified as lead-poisoned.
(d) When preparing its method of distribution of assistance under
the CDBG program, a State must consult with local governments in
nonentitlement areas of the state.
(e) The State must also consult with each Continuum of Care within
the state in determining how to allocate its ESG grant for eligible
activities; developing the performance standards for, and evaluating
the outcomes of, projects and activities assisted by ESG funds; and
developing funding, policies, and procedures for the operation and
administration of the HMIS.
0
10. Amend Sec. 91.115 by:
[[Page 47908]]
0
a. Revising paragraph (a)(2)(i) and (ii);
0
b. Revising paragraph (b);
0
c. Redesignating paragraph (c)(1)(i) as paragraph (c)(1) and removing
paragraph (c)(1)(ii);
0
d. Revising paragraphs (c)(2) and (3); and
0
e. Revising paragraphs (f) through (h)
The revisions read as follows:
Sec. 91.115 Citizen participation plan; States.
(a) * * *
(2) Encouragement of citizen participation. (i) The citizen
participation plan must provide for and encourage citizens to
participate in the development of the consolidated plan, any
substantial amendments to the consolidated plan, and the performance
report. These requirements are designed especially to encourage
participation by low- and moderate-income persons, particularly those
living in slum and blighted areas and in areas where CDBG funds are
proposed to be used and by residents of predominantly low- and
moderate-income neighborhoods. A State must take appropriate actions to
encourage the participation of all its residents, including minorities
and non-English speaking persons, as provided in paragraph (a)(4) of
this section, as well as persons with disabilities.
(ii) The State shall encourage the participation of Statewide and
regional institutions, Continuums of Care, and other organizations
(including businesses, developers, nonprofit organizations,
philanthropic organizations, and community-based and faith-based
organizations) that are involved with or affected by the programs or
activities covered by the consolidated plan in the process of
developing and implementing the consolidated plan. Commencing with
consolidated plans submitted in or after January 1, 2018, the State
shall also encourage the participation of public and private
organizations, including broadband internet service providers,
organizations engaged in narrowing the digital divide, agencies whose
primary responsibilities include the management of flood prone areas,
public land or water resources, and emergency management agencies in
the process of developing the consolidated plan.
* * * * *
(b) Development of the consolidated plan. The citizen participation
plan must include the following minimum requirements for the
development of the consolidated plan:
(1) The citizen participation plan must require that, before the
State adopts a consolidated plan, the State will make available to its
residents, public agencies, and other interested parties information
that includes the amount of assistance the State expects to receive and
the range of activities that may be undertaken, including the estimated
amount that will benefit persons of low- and moderate-income and the
plans to minimize displacement of persons and to assist any persons
displaced. The citizen participation plan must state when and how the
State will make this information available.
(2) The citizen participation plan must require the State to
publish the proposed consolidated plan in a manner that affords
residents, units of general local governments, public agencies, and
other interested parties a reasonable opportunity to examine the
document's content and to submit comments. The citizen participation
plan must set forth how the State will make publicly available the
proposed consolidated plan and give reasonable opportunity to examine
each document's content. To ensure that the consolidated plan and the
PHA plan are informed by meaningful community participation, program
participants should employ communications means designed to reach the
broadest audience. Such communications may be met by publishing a
summary of each document in one or more newspapers of general
circulation, and by making copies of each document available on the
internet, on the grantee's official government website, and as well at
libraries, government offices, and public places. The summary must
describe the content and purpose of the consolidated plan, and must
include a list of the locations where copies of the entire proposed
document(s) may be examined. In addition, the State must provide a
reasonable number of free copies of the plan to its residents and
groups that request a copy of the plan.
(3) The citizen participation plan must provide for at least one
public hearing on housing and community development needs before the
proposed consolidated plan is published for comment.
(i) The citizen participation plan must state how and when adequate
advance notice of the hearing will be given to residents, with
sufficient information published about the subject of the hearing to
permit informed comment. (Publishing small print notices in the
newspaper a few days before the hearing does not constitute adequate
notice. Although HUD is not specifying the length of notice required,
HUD would consider 2 weeks adequate.)
(ii) The citizen participation plan must provide that the hearing
be held at a time and accessible location convenient to potential and
actual beneficiaries, and with accommodation for persons with
disabilities. The citizen participation plan must specify how it will
meet these requirements.
(iii) The citizen participation plan must identify how the needs of
non-English speaking residents will be met in the case of a public
hearing where a significant number of non-English speaking residents
can be reasonably expected to participate.
(4) The citizen participation plan must provide a period, of not
less than 30 calendar days, to receive comments from residents and
units of general local government on the consolidated plan.
(5) The citizen participation plan shall require the State to
consider any comments or views of its residents and units of general
local government received in writing, or orally at the public hearings,
in preparing the final consolidated plan. A summary of these comments
or views, and a summary of any comments or views not accepted and the
reasons therefore, shall be attached to the final consolidated plan (as
applicable).
(c) Amendments. The citizen participation plan must specify the
criteria the State will use for determining what changes in the State's
planned or actual activities constitute a substantial amendment to the
consolidated plan. (See Sec. 91.505.) The citizen participation plan
must include, among the criteria for a consolidated plan, substantial
amendment changes in the method of distribution of such funds.
(2) The citizen participation plan must provide residents and units
of general local government with reasonable notice and an opportunity
to comment on consolidated plan substantial amendments. The citizen
participation plan must state how reasonable notice and an opportunity
to comment will be given. The citizen participation plan must provide a
period, of not less than 30 calendar days, to receive comments on the
consolidated plan substantial amendment before the consolidated plan
substantial amendment is implemented.
(3) The citizen participation plan shall require the State to
consider any comments or views of its residents and units of general
local government received in writing, or orally at public hearings, if
any, in preparing the substantial amendment of the consolidated plan. A
summary of these comments or views, and a summary of any comments or
views not accepted and the reasons why, shall be attached
[[Page 47909]]
to the substantial amendment of the consolidated plan.
* * * * *
(f) Availability to the public. The citizen participation plan must
provide that the consolidated plan as adopted, consolidated plan
substantial amendments and the performance report will be available to
the public, including the availability of materials in a form
accessible to persons with disabilities, upon request. The citizen
participation plan must state how these documents will be available to
the public.
(g) Access to records. The citizen participation plan must require
the State to provide its residents, public agencies, and other
interested parties with reasonable and timely access to information and
records relating to the State's consolidated plan and use of assistance
under the programs covered by this part during the preceding 5 years.
(h) Complaints. The citizen participation plan shall describe the
State's appropriate and practicable procedures to handle complaints
from its residents related to the consolidated plan, consolidated plan
amendments, and the performance report. At a minimum, the citizen
participation plan shall require that the State must provide a timely,
substantive written response to every written resident complaint,
within an established period of time (within 15 working days, where
practicable, if the State is a CDBG grant recipient).
* * * * *
0
11. Revise Sec. 91.205(b)(2) to read as follows:
Sec. 91.205 Housing and homeless needs assessment.
* * * * *
(b) * * *
(2) For any of the income categories enumerated in paragraph (b)(1)
of this section, to the extent that any racial or ethnic group has
disproportionately greater need in comparison to the needs of that
category as a whole, assessment of that specific need shall be
included. For this purpose, disproportionately greater need exists when
the percentage of persons in a category of need who are members of a
particular racial or ethnic group in a category of need is at least 10
percentage points higher than the percentage of persons in the category
as a whole.
* * * * *
Sec. 91.215 [Amended]
0
12. Amend Sec. 91.215 by removing paragraph (a)(5).
Sec. 91.220 [Amended]
0
13. Amend Sec. 91.220 by removing paragraph (k)(1) and redesignating
paragraph (k)(2) as paragraph (k).
0
14. Revise Sec. 91.225(a)(1) to read as follows:
Sec. 91.225 Certifications.
(a) * * *
(1) Affirmatively furthering fair housing. Each jurisdiction is
required to submit a certification that it will affirmatively further
fair housing. This includes certification that the grantee will
affirmatively further fair housing, consistent with Sec. Sec. 5.150
and 5.151 of this chapter.
* * * * *
0
15. Revise Sec. 91.230 to read as follows:
Sec. 91.230 Monitoring.
The plan must describe the standards and procedures that the
jurisdiction will use to monitor activities carried out in furtherance
of the plan and will use to ensure long-term compliance with
requirements of the programs involved, including civil rights related
program requirements, minority business outreach, and the comprehensive
planning requirements.
0
16. Amend Sec. 91.235, by revising paragraphs (c)(1) and (4) to read
as follows:
Sec. 91.235 Special case; abbreviated consolidated plan.
* * * * *
(c) What is an abbreviated plan?--(1) Assessment of needs,
resources, and planned activities. An abbreviated plan must contain
sufficient information about needs, resources, and planned activities
to address the needs to cover the type and amount of assistance
anticipated to be funded by HUD.
* * * * *
(4) Submissions, certifications, amendments, and performance
reports. An Insular Area grantee that submits an abbreviated
consolidated plan under this section must comply with the submission,
certification, amendment, and performance report requirements of 24 CFR
570.440. This includes certification that the grantee will
affirmatively further fair housing, consistent with Sec. Sec. 5.150
and 5.151 of this chapter.
* * * * *
0
17. Revise Sec. 91.305(b)(2) to read as follows:
Sec. 91.305 Housing and homeless needs assessment.
* * * * *
(b) * * *
(2) For any of the income categories enumerated in paragraph (b)(1)
of this section, to the extent that any racial or ethnic group has
disproportionately greater need in comparison to the needs of that
category as a whole, assessment of that specific need shall be
included. For this purpose, disproportionately greater need exists when
the percentage of persons in a category of need who are members of a
particular racial or ethnic group in a category of need is at least 10
percentage points higher than the percentage of persons in the category
as a whole.
* * * * *
Sec. 91.315 [Amended]
0
18. Amend Sec. 91.315 by removing paragraph (a)(5).
Sec. 91.320 [Amended]
0
19. Amend Sec. 91.320 by removing paragraph (j)(1) and redesignating
paragraph (j)(2) as (j).
0
20. Revise Sec. 91.325(a)(1) to read as follows:
Sec. 91.325 Certifications.
(a) * * *
(1) Affirmatively furthering fair housing. Each State is required
to submit a certification that the grantee will affirmatively further
fair housing, consistent with Sec. Sec. 5.150 and 5.151 of this
chapter.
* * * * *
0
21. Revise Sec. 91.415 to read as follows:
Sec. 91.415 Strategic plan.
Strategies and priority needs must be described in the consolidated
plan, in accordance with the provisions of Sec. 91.215, for the entire
consortium. The consortium is not required to submit a nonhousing
Community Development Plan; however, if the consortium includes CDBG
entitlement communities, the consolidated plan must include the
nonhousing Community Development Plans of the CDBG entitlement
community members of the consortium. The consortium must set forth its
priorities for allocating housing (including CDBG and ESG, where
applicable) resources geographically within the consortium, describing
how the consolidated plan will address the needs identified (in
accordance with Sec. 91.405), describing the reasons for the
consortium's allocation priorities, and identifying any obstacles there
are to addressing underserved needs.
0
22. Revise Sec. 91.420(b) to read as follows:
Sec. 91.420 Action plan.
* * * * *
(b) Description of resources and activities. The action plan must
describe
[[Page 47910]]
the resources to be used and activities to be undertaken to pursue its
strategic plan. The consolidated plan must provide this description for
all resources and activities within the entire consortium as a whole,
as well as a description for each individual community that is a member
of the consortium.
* * * * *
0
23. Revise Sec. 91.425(a)(1)(i) to read as follows:
Sec. 91.425 Certifications.
(a) * * *
(1) General--(i) Affirmatively furthering fair housing. Each
consortium must submit a certification that it will affirmatively
further fair housing, consistent with Sec. Sec. 5.150 and 5.151 of
this chapter.
* * * * *
Sec. 91.505 [Amended]
0
24. Amend Sec. 91.505 by removing paragraph (d).
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
0
25. The authority citation for part 92 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 12 U.S.C. 1701x and 4568.
0
26. Revise Sec. 92.104 to read as follows:
Sec. 92.104 Submission of a consolidated plan.
A jurisdiction that has not submitted a consolidated plan to HUD
must submit to HUD, not later than 90 calendar days after providing
notification under Sec. 92.103, a consolidated plan in accordance with
24 CFR part 91.
0
27. Amend Sec. 92.508 by revising paragraph (a)(7)(i)(C) to read as
follows:
Sec. 92.508 Recordkeeping.
(a) * * *
(7) * * *
(i) * * *
(C) Documentation that the participating jurisdiction submitted a
certification that it will affirmatively further fair housing,
consistent with Sec. Sec. 5.150 and 5.151 of this chapter.
* * * * *
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
0
28. The authority citation for part 570 continues to read as follows:
Authority: 12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 3535(d) and
5301-5320.
0
29. Amend Sec. 570.3 to revise the introductory text to read as
follows:
Sec. 570.3 Definitions.
The terms Affirmatively Furthering Fair Housing, HUD, and Secretary
are defined in 24 CFR part 5. All of the following definitions in this
section that rely on data from the United States Bureau of the Census
shall rely upon the data available from the latest decennial census or
the American Community Survey.
* * * * *
0
30. Amend Sec. 570.205 by:
0
a. Removing paragraph (a)(4)(vii); and,
0
b. Redesignating paragraph (a)(4)(viii) as (a)(4)(vii) and revise the
newly redesignated paragraph.
The revision reads as follows:
Sec. 570.205 Eligible planning, urban environmental design and
policy-planning-management-capacity building activities.
(a) * * *
(4) * * *
(vii) Developing an inventory of properties with known or suspected
environmental contamination.
* * * * *
0
31. Amend Sec. 570.441 by:
0
a. Revising (b) introductory text;
0
b. Revising paragraphs (b)(2) and (3);
0
c. Revising the paragraph heading to paragraph (c) and revising
paragraph (c)(1);
0
d. Revising paragraphs (d) and (e); and,
Sec. 570.441 Citizen participation--insular areas.
* * * * *
(b) Citizen participation plan. The insular area jurisdiction must
develop and follow a detailed citizen participation plan and must make
the plan public. The plan must be completed and available before the
statement for assistance is submitted to HUD, and the jurisdiction must
certify that it is following the plan. The plan must set forth the
jurisdiction's policies and procedures for:
* * * * *
(2) Providing technical assistance to groups that are
representative of persons of low- and moderate-income that request
assistance in developing proposals. The level and type of assistance to
be provided is at the discretion of the jurisdiction. The assistance
need not include the provision of funds to the groups;
(3) Holding a minimum of two public hearings for the purpose of
obtaining residents' views and formulating or responding to proposals
and questions. Each public hearing must be conducted at a different
stage of the CDBG program year. Together, the hearings must address,
community development and housing needs, development of proposed
activities, and a review of program performance. There must be
reasonable notice of the hearings, and the hearings must be held at
times and accessible locations convenient to potential or actual
beneficiaries, with reasonable accommodations, including materials in
accessible formats, for persons with disabilities. The jurisdiction
must specify in its citizen participation plan how it will meet the
requirement for hearings at times and accessible locations convenient
to potential or actual beneficiaries;
* * * * *
(c) Publication of proposed statement. (1) The insular area
jurisdiction shall publish a proposed statement consisting of the
proposed community development activities and community development
objectives (as applicable) in order to afford affected residents an
opportunity to:
* * * * *
(d) Preparation of the final statement. An insular area
jurisdiction must prepare a final statement. In the preparation of the
final statement, the jurisdiction shall consider comments and views
received relating to the proposed document and may, if appropriate,
modify the final document. The final statement shall be made available
to the public. The final statement shall include the community
development objectives, projected use of funds, and the community
development activities.
(e) Program amendments. To assure citizen participation on program
amendments to final statements, the insular area grantee shall:
(1) Furnish its residents with information concerning the amendment
to the consolidated plan;
(2) Hold one or more public hearings to obtain the views of
residents on the proposed amendment to the consolidated plan;
(3) Develop and publish the proposed amendment to the consolidated
plan in such a manner as to afford affected residents an opportunity to
examine the contents, and to submit comments on the proposed amendment
to the consolidated plan;
(4) Consider any comments and views expressed by residents on the
proposed amendment to the consolidated plan, and, if the grantee finds
it appropriate, make modifications accordingly; and
(5) Make the final amendment to the community development program
available to the public before its submission to HUD.
* * * * *
[[Page 47911]]
0
32. Revise Sec. 570.487(b) to read as follows:
Sec. 570.487 Other applicable laws and related program requirements.
* * * * *
(b) Affirmatively furthering fair housing. Each State is required
to submit a certification that it will affirmatively further fair
housing, consistent with Sec. Sec. 5.150 and 5.151 of this title. Each
unit of general local government is required to submit a certification
that it will affirmatively further fair housing, consistent with
Sec. Sec. 5.150 and 5.151 of this title.
* * * * *
0
33. Amend Sec. 570.490 by revising paragraphs (a)(1) and (b) to read
as follows:
Sec. 570.490 Recordkeeping requirements.
(a) * * *
(1) The State shall establish and maintain such records as may be
necessary to facilitate review and audit by HUD of the State's
administration of CDBG funds under Sec. 570.493. The content of
records maintained by the State shall be as jointly agreed upon by HUD
and the States and sufficient to enable HUD to make the determinations
described at Sec. 570.493. For fair housing and equal opportunity
purposes, whereas such data is already being collected and where
applicable, such records shall include data on the racial, ethnic, and
gender characteristics of persons who are applicants for, participants
in, or beneficiaries of the program. The records shall also permit
audit of the States in accordance with 24 CFR part 85.
* * * * *
(b) Unit of general local government's record. The State shall
establish recordkeeping requirements for units of general local
government receiving CDBG funds that are sufficient to facilitate
reviews and audits of such units of general local government under
Sec. Sec. 570.492 and 570.493. For fair housing and equal opportunity
purposes, whereas such data is already being collected and where
applicable, such records shall include data on the racial, ethnic, and
gender characteristics of persons who are applicants for, participants
in, or beneficiaries of the program.
* * * * *
0
34. In Sec. 570.506, revise paragraph (g)(1) to read as follows:
Sec. 570.506 Records to be maintained.
* * * * *
(g) * * *
(1) Documentation that the recipient submitted a certification that
it will affirmatively further fair housing, consistent with Sec. Sec.
5.150 and 5.151 of this title.
0
35. Revise Sec. 570.601(a)(2) to read as follows:
Sec. 570.601 Public Law 88-352 and Public Law 90-284; affirmatively
furthering fair housing; Executive Order 11063.
(a) * * *
(2) Public Law 90-284, which is the Fair Housing Act (42 U.S.C.
3601-3620). In accordance with the Fair Housing Act, the Secretary
requires that grantees administer all programs and activities related
to housing and urban development in a manner to affirmatively further
the policies of the Fair Housing Act. Each community receiving a grant
under subpart D of this part, shall submit a certification that it will
affirmatively further fair housing, consistent with Sec. Sec. 5.150
and 5.151 of this title.
* * * * *
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
0
36. The authority citation for part 574 continues to read as follows:
Authority: 12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 3535(d) and
5301-5320.
0
37. In Sec. 574.530. revise paragraph (b) to read as follows:
Sec. 574.530 Recordkeeping.
* * * * *
(b) Documentation that the grantee submitted a certification that
it will affirmatively further fair housing, consistent with Sec. Sec.
5.150 and 5.151 of this title.
* * * * *
PART 576--EMERGENCY SOLUTIONS GRANTS PROGRAM
0
38. The authority citation for part 576 continues to read as follows:
Authority: 12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 11371 et seq.,
42 U.S.C. 3535(d).
0
39. Amend Sec. 576.500 by revising paragraph (s)(1)(ii) to read as
follows:
Sec. 576.500 Recordkeeping and reporting requirements.
* * * * *
(s) * * *
(1) * * *
(ii) Documentation that the recipient submitted a certification
that it will affirmatively further fair housing, consistent with
Sec. Sec. 5.150 and 5.151 of this title.
* * * * *
PART 903--PUBLIC HOUSING AGENCY PLANS
0
40. The authority citation for part 903 continues to read as follows:
Authority: 42 U.S.C. 1437c; 42 U.S.C. 1437c-1; Pub. L. 110-289;
42 U.S.C. 3535d.
0
41. Amend Sec. 903.7 by revising paragraphs (a)(1)(iii) and (o) to
read as follows:
Sec. 903.7 What information must a PHA provide in the Annual Plan?
* * * * *
(a) * * *
(1) * * *
(iii) Households with individuals with disabilities and households
of various races and ethnic groups residing in the jurisdiction or on
the waiting list.
* * * * *
(o) Civil rights certification. (1) The PHA must certify that it
will carry out its plan in conformity with title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d-2000d-4), the Fair Housing Act (42 U.S.C.
3601-19), section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), title II of the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.), and other applicable Federal civil right laws,
and that it will affirmatively further fair housing, consistent with
Sec. Sec. 5.150 and 5.151 of this title.
(2) The certification is applicable to both the 5-Year Plan and the
Annual Plan, including any plan incorporated therein.
* * * * *
0
42. Revise Sec. 903.15 to read as follows:
Sec. 903.15 What is the relationship of the public housing agency
plans to the Consolidated Plan and a PHA's Fair Housing Requirements?
(a) The PHA must ensure that the Annual Plan is consistent with any
applicable Consolidated Plan for the jurisdiction in which the PHA is
located.
(1) The PHA must submit a certification by the appropriate State or
local officials that the Annual Plan is consistent with the
Consolidated Plan and include a description of the manner in which the
applicable plan contents are consistent with the Consolidated Plans.
(2) For State agencies that are PHAs, the applicable Consolidated
Plan is the State Consolidated Plan.
(b) A PHA may request to change its fiscal year to better
coordinate its planning with the planning done under the Consolidated
Plan process, by the State or local officials, as applicable.
0
43. Amend Sec. 903.23 by revising paragraph (f) to read as follows:
[[Page 47912]]
Sec. 903.23 What is the process by which HUD reviews, approves, or
disapproves an Annual Plan?
* * * * *
(f) Recordkeeping. PHAs must maintain records reflecting a
certification that the PHA will affirmatively further fair housing,
consistent with Sec. Sec. 5.150 and 5.151 of this title.
Dated: July 23, 2020.
Benjamin S. Carson, Sr.,
Secretary.
[FR Doc. 2020-16320 Filed 8-6-20; 8:45 am]
BILLING CODE 4210-67-P
