[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]


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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.

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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\
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    \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.
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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 four-word phrase ``affirmatively further 
fair housing.'' \6\
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    \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.
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    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\
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    \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).
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    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\
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    \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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    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\
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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.
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    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\
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    \16\ Kurtz, AFFH: Admission of Stealth Caught on Video, National 
Review, (Jun 15, 2015).
    \17\ Id.
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    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\
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    \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).
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    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).
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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\
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    \27\ NAACP at 154.
    \28\ Id. at 55.
    \29\ Id. at 154-55.
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    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\
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    \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.
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    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\
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    \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.
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    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.
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    \32\ 42 U.S.C. 3604.
    \33\ Cranston-Gonzalez National Affordable Housing Act of 1990, 
Public Law 101-625 102, 105.
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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.''
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    \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.
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    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.
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    \37\ ``Affirm.'' Ballentine's Law Dictionary, (3rd ed. 1969).
    \38\ ``Affirmative.'' Ballentine's Law Dictionary, (3rd ed. 
1969).
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    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.).
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    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.
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    \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).
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    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\
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    \44\ See NAACP v. Harris, 567 F. Supp. 637, 644 (D. Mass. 1983).
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    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\
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    \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.
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    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.
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    \53\ Carson, 330 F. Supp. 3d at 25.
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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\
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    \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\
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    \55\ 42 U.S.C. 12705(b)(4).
    \56\ 42 U.S.C. 12705(b)(15).
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    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\
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    \57\ 42 U.S.C. 12705(c)(1).
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    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\
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    \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.
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    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\
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    \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).
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    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