Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations 30779 

one industry association, and several 

individual entities endorsed the 

telework provisions and requested that 

these measures be extended, potentially 

indefinitely. DDTC agreed and extended 

the two measures because DDTC 

believed that a failure to extend the 

temporary suspensions, modifications, 

and exceptions would have a negative 

impact on regulated entities’ ability to 

safely engage in continued operations in 

the midst of the ongoing global public 

health emergency. Based upon the 

comments received and DDTC’s 

experience over the course of the 

pandemic, it is apparent that these 

measures support the current work 

environment and are expected to remain 

relevant in a post-pandemic 

environment. 

Although the Department is of the 

opinion that the notice and comment 

requirements of the Administrative 

Procedure Act are not applicable, in 

addition to the efforts described above, 

the Department published a notice of 

proposed rulemaking (NPRM) (86 FR 

28503, May 27, 2021), to solicit 

comments to proposed revisions to the 

ITAR provisions related to remote work. 

DDTC is seeking in this proposed rule 

to adapt to the new reality of how the 

regulated community is working and 

will work in the future. DDTC’s position 

is consistent with the Arms Export 

Control Act and informed by the 

regulated community’s comments and 

DDTC’s assessment of the security 

requirements appropriate for ITARcontrolled technical data. The NPRM is 

entitled ‘‘Amendment to the 

International Traffic in Arms 

Regulations: Regular Employee’’ (RIN 

1400–AF17). In the interest of ensuring 

sufficient time to adequately address 

comments and prepare publication of a 

final rule, and to ensure there is no 

disruption of regulated entities’ ability 

to safely engage in continued 

operations, DDTC is modifying and 

extending these temporary suspensions, 

modifications, and exceptions until it 

publishes a final rule for RIN 1400– 

AF17; the Department intends to 

terminate the temporary actions 

announced herein in that Federal 

Register publication. 

DDTC notes that the text of the 

temporary suspensions, modifications, 

and exceptions below differs slightly 

from that of the prior two documents in 

that specific reference to Russia has 

been removed from the clause ‘‘so long 

as the individual is not located in a 

country listed in ITAR § 126.1.’’ By 

rulemaking of March 18, 2021, DDTC 

amended ITAR § 126.1 to include Russia 

(86 FR 14802), thereby making specific 

reference here unnecessary. 

Pursuant to ITAR §§ 126.2 and 126.3, 

in the interest of the security and 

foreign policy of the United States and 

as warranted by the exceptional and 

undue hardships and risks to safety 

caused by the public health emergency 

related to the SARS–COV2 pandemic, 

notice is provided that the following 

temporary suspensions, modifications, 

and exceptions are being extended as 

follows: 

1. As of March 13, 2020, a temporary 

suspension, modification, and exception 

to the requirement that a regular 

employee, for purposes of ITAR 

§ 120.39(a)(2), work at the company’s 

facilities, to allow the individual to 

work at a remote work location, so long 

as the individual is not located in a 

country listed in ITAR § 126.1. The 

Department will terminate this 

suspension, modification, and exception 

by publication of a document in the 

Federal Register. 

2. As of March 13, 2020, a temporary 

suspension, modification, and exception 

to authorize regular employees of 

licensed entities who are working 

remotely in a country not currently 

authorized by a technical assistance 

agreement, manufacturing license 

agreement, or exemption to send, 

receive, or access any technical data 

authorized for export, reexport, or 

retransfer to their employer via a 

technical assistance agreement, 

manufacturing license agreement, or 

exemption so long as the regular 

employee is not located in a country 

listed in ITAR § 126.1. The Department 

will terminate this suspension, 

modification, and exception by 

publication of a document in the 

Federal Register. 

This document makes no other 

revision to the document published at 

85 FR 25287, nor does it make any other 

temporary suspension, modification, or 

exception to the requirements of the 

ITAR. 

(Authority: 22 CFR 126.2 and 126.3) 

Michael F. Miller, 

Deputy Assistant Secretary for Defense Trade 

Controls, U.S. Department of State. 

[FR Doc. 2021–12206 Filed 6–9–21; 8:45 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Parts 5, 91, 92, 570, 574, 576, 

903 

[Docket No. FR–6249–I–01] 

RIN 2529–AB01 

Restoring Affirmatively Furthering Fair 

Housing Definitions and Certifications 

AGENCY: Office of Fair Housing and 

Equal Opportunity, HUD. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Department of Housing 

and Urban Development (HUD) 

publishes this interim final rule to 

restore certain definitions and 

certifications that have been through 

notice-and-comment scrutiny and that 

are grounded in legal precedent to its 

regulations implementing the Fair 

Housing Act’s requirement to 

affirmatively further fair housing 

(AFFH) and reinstate a process by 

which HUD will provide technical 

assistance and other support to funding 

recipients who are engaged in fair 

housing planning to support their 

certifications. No program participant 

will be required to participate in this 

process, which is for the benefit of those 

who want assistance in fulfilling their 

statutory obligations. HUD will provide 

these services prior to the effective date 

of this interim final rule. HUD 

determined that it is necessary for this 

narrowly focused rule to go into effect 

on July 31, 2021, because HUD funding 

recipients must certify compliance with 

their duty to AFFH on an annual basis 

and HUD itself has a continuous 

statutory obligation to ensure that the 

Fair Housing Act’s AFFH obligations are 

followed. HUD finds that the definitions 

in the current regulation, which was 

promulgated in 2020 without noticeand-comment procedures, are at odds 

with the statutory AFFH duty as 

described in decades of judicial 

precedent and agency practice. This 

risks confusing funding recipients, who 

are certifying compliance with a 

regulatory definition that does not in 

fact satisfy their statutory AFFH 

obligation. While HUD therefore has 

determined that this rule will go into 

effect on July 31, it nonetheless solicits 

comments on this action so that it may 

consider public views before the 

effective date. HUD promulgates this 

interim final rule to ensure that program 

participants have regulatory certainty, 

while delaying the effective date long 

enough to provide time for HUD to 


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1The term ‘‘familial status’’ is defined in the Fair 

Housing Act at 42 U.S.C. 3602(k). It includes one 

or more children who are under the age of 18 years 

being domiciled with a parent or guardian. 

2Although the Fair Housing Act was amended in 

1988 to extend civil rights protections to persons 

with ‘‘handicaps,’’ the term ‘‘disability’’ is more 

commonly used and accepted today to refer to an 

individual’s physical or mental impairment that is 

protected under federal civil rights laws, the record 

of such an impairment, and being regarded as 

having such an impairment. For this reason, except 

where quoting from the Fair Housing Act, HUD uses 

the term ‘‘disability.’’ 

3Reflecting the era in which it was enacted, the 

Fair Housing Act’s legislative history and early 

review comments and, if necessary, act 

on them prior to the effective date. 

DATES:

Effective date: July 31, 2021. 

Comment due date: July 12, 2021. 

ADDRESSES: Interested persons are 

invited to submit comments regarding 

this interim final rule to the Regulations 

Division, Office of General Counsel, 

Department of Housing and Urban 

Development, 451 7th Street SW, Room 

10276, Washington, DC 20410–0500. 

Communications must refer to the above 

docket number and title. There are two 

methods for submitting public 

comments. All submissions must refer 

to the above docket number and title. 

1. Submission of Comments by Mail. 

Comments may be submitted by mail to 

the Regulations Division, Office of 

General Counsel, Department of 

Housing and Urban Development, 451 

7th Street SW, Room 10276, 

Washington, DC 20410–0500. 

2. Electronic Submission of 

Comments. Interested persons may 

submit comments electronically through 

the Federal eRulemaking Portal at 

www.regulations.gov. HUD strongly 

encourages commenters to submit 

comments electronically. Electronic 

submission of comments allows the 

commenter maximum time to prepare 

and submit a comment, ensures timely 

receipt by HUD, and enables HUD to 

make them immediately available to the 

public. Comments submitted 

electronically through the 

www.regulations.gov website can be 

viewed by other commenters and 

interested members of the public. 

Commenters should follow the 

instructions provided on that site to 

submit comments electronically. 

Note: To receive consideration as 

public comments, comments must be 

submitted through one of the two 

methods specified above. Again, all 

submissions must refer to the docket 

number and title of the rule. 

No Facsimile Comments. Facsimile 

(FAX) comments are not acceptable. 

Public Inspection of Public 

Comments. All properly submitted 

comments and communications 

submitted to HUD will be available for 

public inspection and copying between 

8 a.m. and 5 p.m. weekdays at the above 

address. Due to security measures at the 

HUD Headquarters building, an advance 

appointment to review the public 

comments must be scheduled by calling 

the Regulations Division at 202–402– 

3055 (this is not a toll-free number). 

Individuals with speech or hearing 

impairments may access this number 

via TTY by calling the Federal 

Information Relay Service, toll-free, at 

800–877–8339. Copies of all comments 

submitted are available for inspection 

and downloading at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sasha Samberg-Champion, Deputy 

General Counsel for Enforcement and 

Fair Housing, 451 7th Street SW, Room 

10110, Washington, DC 20410 telephone 

number 202–402–3413 (this is not a tollfree number). Persons with hearing or 

speech impairments may access these 

numbers via TTY by calling the Federal 

Relay Service at 800–877–8339 (this is 

a toll-free number). 

SUPPLEMENTARY INFORMATION:

I. Background 

The Affirmatively Furthering Fair 

Housing Mandate 

The Fair Housing Act (title VIII of the 

Civil Rights Act of 1968, 42 U.S.C. 

3601–3619) declares that ‘‘it is the 

policy of the United States to provide, 

within constitutional limitations, for fair 

housing throughout the United States.’’ 

See 42 U.S.C. 3601. The Fair Housing 

Act prohibits among other things, 

discrimination in the sale, rental, and 

financing of dwellings, and in other 

housing-related transactions, because of 

‘‘race, color, religion, sex, familial 

status,1 national origin, or 

handicap.’’ 2 See 42 U.S.C. 3604 and 

3605. The Fair Housing Act extends 

beyond this non-discrimination 

mandate, requiring HUD to administer 

its programs and activities relating to 

housing and urban development in a 

manner that affirmatively furthers the 

purposes of the Fair Housing Act. 42 

U.S.C. 3608(e)(5). While this mandate is 

directly imposed on HUD, HUD carries 

it out primarily by extending the 

obligation to certain recipients of HUD 

funding. Congress has repeatedly 

reinforced the AFFH mandate for 

funding recipients, embedding within 

the Housing and Community 

Development Act of 1974, the CranstonGonzalez National Affordable Housing 

Act of 1990, and the Quality Housing 

and Work Responsibility Act of 1998, 

the obligation that certain HUD program 

participants certify, as a condition of 

receiving Federal funds, that they will 

AFFH. See 42 U.S.C. 5304(b)(2), 

5306(d)(7)(B), 12705(b)(15), 1437C– 

1(d)(16). As described below, Congress 

enacted these requirements against the 

background of judicial and 

administrative construction of the Fair 

Housing Act’s AFFH requirement, 

which is presumed to have been 

incorporated in those later-enacted 

Congressional mandates. 

For decades, courts have held that the 

AFFH obligation imposes a duty on 

HUD and its grantees to affirmatively 

further the purposes of the Fair Housing 

Act. These courts have held that 

funding recipients, to meet their AFFH 

obligations, must, at a minimum, ensure 

that they make decisions informed by 

preexisting racial and socioeconomic 

residential segregation. The courts have 

further held that, informed by such 

information, funding recipients must 

strive to dismantle historic patterns of 

racial segregation; preserve integrated 

housing that already exists; and 

otherwise take meaningful steps to 

further the Fair Housing Act’s purposes 

beyond merely refraining from taking 

discriminatory actions and banning 

others from such discrimination. 

Soon after the enactment of the Fair 

Housing Act, the U.S. Court of Appeals 

for the Third Circuit, in Shannon v. 

HUD, 436 F.2d 809 (3d Cir. 1970), held 

that HUD is obligated to ‘‘utilize some 

institutionalized method whereby, in 

considering site selection or type 

selection, it has before it the relevant 

racial and socio-economic information 

necessary for compliance with its 

duties’’ under the Fair Housing Act. Id. 

at 821. The Third Circuit further held 

that any HUD discretion must be 

exercised to not just prevent 

discrimination in housing, but to align 

the federal government ‘‘in favor of fair 

housing.’’ Id. at 819–20. It follows that, 

where HUD delegates decision-making 

responsibility to its grantees, HUD 

grantees must likewise gather and 

consider relevant information such as 

racial and socioeconomic segregation in 

housing to inform decisions that will 

foster integration and not further 

perpetuate segregation. 

Only a few years later, the U.S. Court 

of Appeals for the Second Circuit, in 

Otero v. New York City Housing Auth., 

et al., 484 F.2d 1122 (2d Cir. 1973), 

similarly held that the obligation to 

AFFH requires that ‘‘[a]ction must be 

taken to fulfill, as much as possible, the 

goal of open, integrated residential 

housing patterns and to prevent the 

increase of segregation, in ghettos,3 of 


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court decisions, including those referenced 

throughout this preamble, refer to ‘‘ghettos’’ when 

discussing racially concentrated areas of poverty. 

racial groups whose lack of opportunity 

the Act was designed to combat.’’ Id. at 

1134. Otero further held that, to 

accomplish this goal, HUD and funding 

recipients must take into account the 

socioeconomic and demographic 

makeup of the neighborhoods they 

govern, reasoning that ‘‘the affirmative 

duty placed on the Secretary of HUD by 

§ 3608(e)(5) and through him on other 

agencies administering federallyassisted housing programs also requires 

that consideration be given to the 

impact of proposed public housing 

programs on the racial concentration in 

the area in which the proposed housing 

is to be built.’’ Id. at 1133–34. 

In NAACP, Boston Chapter v. HUD, 

817 F.2d 149 (1st Cir. 1987), the U.S. 

Court of Appeals for the First Circuit 

likewise found that the AFFH mandate 

in 42 U.S.C. 3608(e)(5) requires, ‘‘as a 

matter of language and of logic,’’ that 

HUD and its funding recipients do more 

than refrain from discrimination. Id. at 

154. NAACP involved a claim that HUD 

and Boston officials knew the city’s 

neighborhoods and housing were 

racially segregated, yet they failed to 

utilize the ‘‘immense leverage’’ of 

federal funds to ‘‘provide desegregated 

housing so that the housing stock is 

sufficiently large to give minority 

families a true choice of location.’’ Id. at 

152. The court held that HUD’s 

obligation to AFFH requires that ‘‘HUD 

do more than simply not discriminate 

itself’’; rather, HUD must ‘‘use its grant 

programs to assist in ending 

discrimination and segregation, to the 

point where the supply of genuinely 

open housing increases.’’ Id. at 155. Like 

Shannon, NAACP explained that, to 

carry out this AFFH obligation 

effectively, HUD and its grantees must 

‘‘consider the effect of a HUD grant on 

the racial and socio-economic 

composition of the surrounding area,’’ 

including historical patterns of 

segregation. Id. at 156. 

Thus, each federal court of appeals 

that has construed the Fair Housing 

Act’s AFFH requirement has recognized 

that the AFFH obligation requires a 

funding recipient to consider existing 

segregation, including racial 

segregation, and other barriers to fair 

housing, and then take meaningful 

action to address them. These cases 

make plain that the AFFH obligation 

requires HUD and recipients of its 

funding to take proactive steps towards 

fair housing in this manner, beyond 

merely refraining from discrimination. 

These judicially recognized AFFH 

principles cannot be reconciled with 

PCNC’s far more limited definition of 

affirmatively furthering fair housing, 

which a funding recipient satisfies by 

taking any step rationally related to any 

of a large set of objectives, some of 

which are not intrinsically about fair 

housing at all. More recently, courts 

applying and construing the AFFH 

requirement, and the precedents 

described above, have recognized that 

discretion and flexibility that HUD and 

its funding recipients have are inherent 

to the statutory obligation, because the 

precise actions needed depend on the 

local context. At the same time, they 

have continued to recognize that this 

discretion is cabined by the obligations 

to meaningfully assess racial and other 

forms of segregation and other 

impediments to fair housing and then 

take meaningful actions to address 

them. For example, in Thompson v. 

HUD, 348 F. Supp. 2d 398, 409 (D. Md. 

2005), the court found that HUD 

violated its duty to AFFH by limiting its 

efforts to desegregate public housing in 

Baltimore to the city limits, as opposed 

to widening its focus to the Baltimore 

region as a whole. Id. at 459, 461. In 

ordering HUD to take a regional 

approach, the court found that the 

AFFH mandate requires HUD to adopt 

policies ‘‘whereby the effects of past 

segregation in Baltimore City public 

housing may be ameliorated by the 

provision of public housing 

opportunities beyond the boundaries of 

Baltimore City.’’ Id. at 462. See also U.S. 

ex rel. Anti-Discrimination Ctr. v. 

Westchester Cnty., 2009 WL 455269 

(S.D.N.Y. Feb. 24, 2009) (finding 

program participant’s certification that 

it would AFFH deficient where it failed 

to adequately consider the impact of 

race on housing opportunities in the 

county). 

While the Supreme Court has never 

had occasion to consider the scope of 

the AFFH provision, it has consistently 

recognized and noted the Fair Housing 

Act’s broad and remedial goals and has 

repeatedly observed that the Act is 

meant not just to bar discrete 

discriminatory acts, but to affirmatively 

counteract the nation’s long history of 

racial segregation and discriminatory 

housing practices and policies. 

In Trafficante v. Metro. Life Ins. Co., 

409 U.S. 205, 211 (1972), while 

analyzing the scope and purpose of the 

Act soon after the law was enacted and 

finding that it conferred very broad 

standing on private litigants to 

challenge discrimination, the Court 

relied on the statements of the Act’s cosponsor Senator Walter F. Mondale that: 

‘‘the reach of the proposed law was to 

replace the ghettos ‘by truly integrated 

and balanced living patterns.’ ’’ Decades 

later, in confirming the unanimous view 

of the courts of appeals that the Act 

permits disparate-impact claims, the 

Court further explained that ‘‘[m]uch 

progress remains to be made in our 

Nation’s continuing struggle against 

racial isolation. . . . The Court 

acknowledges the Fair Housing Act’s 

continuing role in moving the Nation 

toward a more integrated society.’’ Tex. 

Dep’t of Hous. & Cmty. Affairs v. 

Inclusive Cmtys. Project, Inc., 576 U.S. 

519, 546–47 (2015). As the Supreme 

Court held in Inclusive Communities 

Project, the Act’s broad remedial 

purposes cannot be accomplished 

simply by banning intentional 

discrimination. The AFFH requirement 

plays a key role in the accomplishment 

of those purposes, requiring HUD and 

recipients of federal financial assistance 

to take affirmative steps to create an 

open, integrated society and to 

eliminate the barriers that stand in the 

way of truly equal housing 

opportunities for underserved 

populations. 

Moreover, Congress has repeatedly 

confirmed its view that the AFFH 

mandate imposes affirmative obligations 

on HUD funding recipients. In three 

separate statutes post-dating the Fair 

Housing Act—the Housing and 

Community Development Act of 1974, 

the Cranston-Gonzalez National 

Affordable Housing Act, and the Quality 

Housing and Work Responsibility Act of 

1998—Congress has required covered 

HUD program participants to certify, as 

a condition of receiving Federal funds, 

that they will AFFH. See Public Law 

93–383, the Housing and Community 

Development Act of 1974, 88 Stat. 633, 

(Aug. 22, 1974), as amended by Public 

Law 98–181, Supplemental 

Appropriations Act of 1984, 97 Stat. 

1153, (Nov. 30, 1984) (codified at 42 

U.S.C. 5304(b)(2), Pub. L. 101–625, 

Cranston-Gonzalez National Affordable 

Housing Act, 104 Stat. 4079 (Nov. 28, 

1990) (codified at 42 U.S.C. 

5306(d)(7)(B), 12705(b)(15); Pub. L. 105– 

276, Quality Housing and Work 

Responsibility Act of 1998, 112 Stat. 

2461, (Oct. 21, 1998) (codified at 42 

U.S.C. 42 1437C–1(d)(16). The 

certifications these laws require are 

designed to ensure compliance with a 

term that Congress necessarily 

understood to have the content given it 

by the courts and the agency tasked 

with overseeing compliance. See e.g., 42 

U.S.C. 5304(b)(2) (requiring certification 

‘‘that the grantee will affirmatively 

further fair housing’’); 5306(d)(7)(B) 

(‘‘No amount may be distributed by any 

State or the Secretary under this 


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30782 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations 

4The requirement of recipients of Federal 

housing and urban development funds and other 

Federal funds to affirmatively further fair housing 

has also been reiterated through executive order 

predating the PCNC rule. Executive Order 12892, 

entitled ‘‘Leadership and Coordination of Fair 

Housing in Federal Programs: Affirmatively 

Furthering Fair Housing,’’ issued January 17, 1994, 

vests primary authority in the Secretary of HUD for 

all federal executive departments and agencies to 

administer their programs and activities relating to 

housing and urban development in a manner that 

furthers the purposes of the Fair Housing Act. 

5Program participants subject to the requirements 

of the 2015 rulemaking included jurisdictions and 

insular areas required to submit consolidated plans 

for the Community Development Block Grant 

(CDBG) program (see 24 CFR part 570, subparts D 

and I); the Emergency Solutions Grants (ESG) 

program (see 24 CFR part 576); the HOME 

Investment Partnerships (HOME) program (see 24 

CFR part 92); and the Housing Opportunities for 

Persons With AIDS (HOPWA) program (see 24 CFR 

part 574); as well as Public housing agencies (PHAs) 

receiving assistance under sections 8 or 9 of the 

United States Housing Act of 1937 (42 U.S.C. 1437f 

or 42 U.S.C.1437g). 

6Along with a HUD-provided assessment tool, 

HUD-provided data also needed to be available to 

program participants to trigger the obligation to 

conduct an AFH under the 2015 AFFH rule. 

7The third Federal Register Notice withdrew an 

earlier Notice that had extended the deadline for 

submitting an AFH for certain program participants. 

83 FR 23928. 

subsection . . . unless such unit of 

general local government certifies that 

. . . it will affirmatively further fair 

housing’’), 12705(b)(15) (requiring 

certification ‘‘that the jurisdiction will 

affirmatively further fair housing’’), 

1437C–1(d)(16) (requiring the public 

housing agency’s certification that it 

‘‘will affirmatively further fair 

housing’’). It is well-settled that 

Congress is presumed to be aware of an 

administrative or judicial interpretation 

of a statutory provision and to adopt 

that interpretation when it re-enacts that 

statute or uses the same statutory 

language elsewhere without change. 

Lamar, Archer & Cofrin, LLP v. Appling, 

138 S. Ct. 1752 (2018) (citing Lorillard 

v. Pons, 434 U.S. 575, 580 (1978); 

Bragdon v. Abbott, 524 U.S. 624, 645 

(1998) (explaining that ‘‘[w]hen 

administrative and judicial 

interpretations have settled the meaning 

of an existing statutory provision, 

repetition of the same language in a new 

statute indicates, as a general matter, the 

intent to incorporate its administrative 

and judicial interpretations as well.’’). 

See also Tex. Dep’t of Hous. & Cmty. 

Affairs, 576 U.S. at 536–38 (applying the 

concept of ‘‘implicit ratification’’ to the 

Fair Housing Act). 

HUD’s Implementation of the 

Affirmatively Furthering Fair Housing 

Mandate 

For decades, consistent with this 

judicial precedent, HUD interpreted the 

AFFH mandate as requiring the agency 

to use its programs to do more than 

simply not discriminate and bar others 

from discriminating. HUD instead 

interpreted this obligation to mean that 

it was required to use its programs to 

take affirmative steps to proactively 

overcome historic patterns of 

segregation, promote fair housing 

choice, and foster inclusive 

communities for all.4 Since 1996, HUD 

required its grantees to support their 

certifications that they were 

affirmatively furthering fair housing by 

undertaking an Analysis of 

Impediments to Fair Housing Choice 

(AI), a form of fair housing planning. 

For example, HUD regulations for 

program participants that submit 

Consolidated Plans require an AFFH 

compliance certification. For many 

years, these regulations provided that, 

in making such certification, a grantee 

would commit to conducting an 

‘‘analysis of impediments to fair 

housing choice within the jurisdiction, 

take appropriate actions to overcome the 

effects of any impediments identified 

through that analysis, and maintain 

records reflecting the analysis and 

actions in this regard.’’ 24 CFR 

91.225(a)(1), 91.325(a)(1) and 

91.425(a)(1) (1996). The AI is meant to 

be an assessment of conditions, both 

public and private, that affect fair 

housing choice within a grantee’s 

jurisdiction. HUD’s Fair Housing 

Planning Guide (FHPG) provided 

extensive guidance on how to AFFH by 

supplying a framework for fair housing 

planning. 

The 2015 AFFH Rule 

In July 2013, HUD proposed 

regulations that codified and 

implemented the agency’s longstanding 

interpretation of the AFFH requirement. 

After undertaking an extensive review 

of comments, HUD issued its 2015 final 

AFFH rule to implement the statutory 

requirement with respect to 

consolidated plan and public housing 

agency program participants, published 

on July 16, 2015 at 80 FR 42272. 

Consistent with decades of 

understanding of the obligation to AFFH 

as discussed throughout this preamble, 

the rule defined a funding recipient’s 

AFFH duty as ‘‘taking meaningful 

actions that, taken together, address 

significant disparities in housing needs 

and in access to opportunity, replacing 

segregated living patterns with racially 

balanced living patterns, transforming 

racially or ethnically concentrated areas 

of poverty into areas of opportunity, and 

fostering and maintaining compliance 

with civil rights and fair housing laws.’’ 

The rule further defined ‘‘meaningful 

actions’’ as ‘‘significant actions that are 

designed and can be reasonably 

expected to achieve a material positive 

change that affirmatively furthers fair 

housing by, for example, increasing fair 

housing choice or decreasing disparities 

in access to opportunity.’’ The AFFH 

rule defined ‘‘fair housing choice,’’ in 

turn, to mean that ‘‘individuals and 

families have the information, 

opportunity, and options to live where 

they choose without unlawful 

discrimination and other barriers related 

to race, color, religion, sex, familiar 

status, national origin, or disability.’’ In 

sum, HUD restated and memorialized 

the substantive content of the statutory 

obligation to AFFH, based on 

longstanding precedent in caselaw, 

administrative practice, and 

congressional intent and ratification, in 

various definitions in the 2015 AFFH 

rule. 

In addition, the 2015 AFFH rule 

established a process whereby program 

participants 5 would conduct a more 

standardized Assessment of Fair 

Housing (AFH) instead of an AI. The 

rule further required the program 

participant to certify that it would take 

meaningful actions to further the goals 

identified in its AFH. Program 

participants were not required to 

conduct and submit an AFH until after 

HUD had made available its Assessment 

Tool available for their use.6 and instead 

were instructed to continue conducting 

AIs (i.e., a variant of the same process 

they had followed for many years) to 

meet their AFFH obligations. 24 CFR 

5.160(a)(3) (2015). 

Following promulgation of the 2015 

AFFH rule, HUD began to implement 

the process contemplated by its 2015 

AFFH rule, including producing 

assessment tools for program 

participants to use to conduct AFHs. 

HUD reviewed forty-nine submitted 

AFHs. In 2018, however, HUD paused 

implementation. HUD published three 

Federal Register Notices on May 23, 

2018, one of which withdrew the 

Assessment Tool for Local 

Governments, the only available HUDprovided Assessment Tool for program 

participants to use when conducting an 

AFH. 83 FR 23927 (May 23, 2018). As 

explained in a second Federal Register 

Notice published that same day, HUD 

directed all program participants who 

had not yet completed an AFH that they 

would continue to be required to 

conduct an AI. 83 FR 23927–23928.7

This well-established AI obligation and 

planning process continued to be in 

place until the PCNC regulation took 

effect on September 8, 2020. 


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8Partial Waiver of 24 CFR 10.1 Notice-andComment Requirement (July 23, 2020), https://

www.hud.gov/sites/dfiles/ENF/documents/6228-F01%20PCNC%20-%20SIGNED%20Waiver%20- 

%207.23.20.11.42.pdf. 

The 2020 Proposed Rule and PCNC 

HUD published a proposed rule in 

January 2020, 85 FR 2014 (January 14, 

2020), to repeal and replace the 2015 

AFFH rule. However, on August 7, 

2020, at 85 FR 47899, HUD abandoned 

that proposed rulemaking and instead 

promulgated the PCNC final rule, which 

not only repealed the 2015 AFFH rule, 

but eliminated the regulatory framework 

that preexisted that rule. It thus left 

program participants without any 

obligation to undertake any type of fair 

housing planning (whether an AFH, an 

AI, or any other) and leaving HUD 

without any mechanism to assist 

jurisdictions that wished to continue 

such activity. As described below, and 

of particular relevance to this 

rulemaking, the PCNC rule also 

redefined the AFFH obligation to which 

funding recipients must certify, without 

reconciling the new definition with the 

statutory requirement and judicial 

precedent. 

HUD promulgated PCNC without 

following notice-and-comment 

rulemaking procedures deciding that the 

PCNC rule was exempt from the 

Administrative Procedure Act (APA)’s 

notice and comment requirement 

because the regulation ‘‘applies only to 

the AFFH obligation of grantees.’’ The 

APA exempts from notice-and-comment 

rulemaking any ‘‘matter relating to 

agency management or personnel or to 

public property, loans, grants, benefits, 

or contracts.’’ 5 U.S.C. 553(a)(2). 

However, as PCNC acknowledged, 

HUD’s ‘‘rule on rules’’ at 24 CFR part 10 

requires HUD generally to follow the 

APA notice-and-comment rulemaking 

procedures notwithstanding any 

statutory exception that might otherwise 

apply, such as the grantmaking 

exception. HUD instead relied upon the 

Secretary’s general regulatory waiver 

authority at 24 CFR 5.110 and codified 

at 42 U.S.C. 3535(q) to waive any 

regulatory requirement ‘‘[u]pon 

determination of good cause.’’ As 

justification, the preamble to the PCNC 

rule stated that ‘‘AFFH has been the 

subject of significant debate and public 

comment over the course of many years 

and this rule will ensure that program 

participants have the timely clarity they 

need concerning their legal obligations 

as grantees.’’ 85 FR 47901. In the waiver 

notice accompanying the PCNC 

regulation, HUD asserted that ‘‘[i]n light 

of this public engagement, continued 

notice and comment concerning AFFH 

is unnecessary and would simply be a 

legal formality without adding 

substance to the debate.’’ 8 The waiver 

did not acknowledge that, while other 

issues related to the AFFH requirement 

had been the subject of notice and 

public comment, the definition of AFFH 

that appears in the PCNC rule had never 

been published for public comment. 

Notwithstanding this lack of prior 

notice and comment, the PCNC rule 

withdrew the 2015 rule’s definition of 

the AFFH obligation and replaced it 

with a novel definition that HUD now 

finds was not a reasonable 

interpretation of the statutory mandate. 

The PCNC rule acknowledged that, 

under any reasonable reading of the 

AFFH requirement, compliance 

‘‘requires more than simply not 

discriminating,’’ and grantees are 

required to ‘‘actually promote fair 

housing.’’ 85 FR 47902. Nevertheless, 

the rule went on to define ‘‘fair 

housing’’ as ‘‘housing that, among other 

attributes, is affordable, safe, decent, 

free of unlawful discrimination, and 

accessible as required under civil rights 

laws.’’ 85 FR 47905. The rule thus 

redefined ‘‘fair housing’’ to include 

attributes such as ‘‘safe’’ and ‘‘decent’’ 

that, while laudable and consistent with 

HUD’s mission, are legally distinct from 

the requirements of the Fair Housing 

Act’s AFFH obligation. It then revised 

the regulatory definition of 

‘‘affirmatively further’’ to mean ‘‘to take 

any action rationally related to 

promoting any attribute or attributes of 

fair housing . . .’’ Id. (emphasis added). 

Finally, the PCNC rule provided that a 

program participant’s certification of 

compliance with this statutory duty 

would be deemed sufficient if the 

participant took, during the relevant 

period, ‘‘any action that is rationally 

related to promoting one or more 

attributes of fair housing. . . ,’’ using 

the definition of ‘‘fair housing’’ 

described above. 85 FR 47906. 

Thus, under the PCNC rule, a program 

participant’s certification of compliance 

with the AFFH obligation amounted to 

a certification that the program 

participant would take any action 

rationally related to promoting one or 

more of the following ‘‘attributes’’: 

Housing that is affordable, safe, decent, 

free of unlawful discrimination, or 

accessible as required under civil rights 

laws. This certification requirement can 

be satisfied with minimal or no action 

not already required by other non-civil 

rights statutes and HUD rules, and 

without doing anything to remedy fair 

housing issues. For example, a 

jurisdiction taking any steps to meet 

HUD’s programmatic requirements for 

maintaining the physical condition of 

federally supported housing, such as 

ensuring that fire exits are not blocked, 

smoke detectors are in good working 

order, or lighting is adequate, could 

certify compliance under the PCNC rule, 

despite taking no steps to stop 

discrimination that violates the Fair 

Housing Act, let alone any proactive 

steps of the kind the AFFH statutory 

mandate requires. Put simply, the PCNC 

rule made a participant’s certification 

insufficient to ensure compliance with 

the AFFH obligation. 

HUD thus finds that the PCNC rule 

did not interpret the AFFH mandate in 

a manner consistent with statutory 

requirements, HUD’s prior 

interpretations, or judicial precedent. 

Nor did it provide sufficient 

justification for this substantial 

departure. Rather than attempting to 

reconcile its definition with these 

precedents, the PCNC rule dismissed 

them as mistaken in conclusory fashion. 

85 FR 47902. 

Through this rule, HUD is repealing 

the PCNC rule and publishing this 

interim final rule to reinstate the 

relevant definitions that were 

promulgated pursuant to the APA’s 

notice and comment requirements in 

HUD’s 2015 AFFH rule, as well as 

appropriate certifications that 

incorporate these definitions, effective 

on July 31, 2021. This interim final rule 

thus reinstates the regulatory 

requirement, consistent with the 

statutory mandate, agency 

interpretations, and judicial precedent, 

that program participants certify that 

they take meaningful actions that, taken 

together, address significant disparities 

in housing needs and in access to 

opportunity, replacing segregated living 

patterns with truly integrated and 

balanced living patterns, transforming 

racially or ethnically concentrated areas 

of poverty into areas of opportunity, and 

fostering and maintaining compliance 

with civil rights and fair housing laws. 

Program participants have long been 

accustomed to certifying compliance 

with this substantive standard and 

comparable procedural requirements 

(such as completion of the AI process). 

Additionally, while this interim final 

rule does not require program 

participants to undertake any specific 

type of fair housing planning to support 

their certifications, it provides notice 

that HUD will once again offer technical 

support and other assistance for 

jurisdictions that wish to undertake 

AFHs, AIs, or other forms of fair 

housing planning. 


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9HUD’s full response to public comment on the 

restored definitions is contained in the preamble to 

the original publication of the 2015 AFFH rule at 

80 FR 42272. Cf. Citronelle-Mobile Gathering, Inc. 

v. Gulf Oil Corp., 420 F. Supp. 162, 170–71 (S.D. 

Ala. 1975), remanded on other grounds, 578 F.2d 

1149 (5th Cir. 1978) (noting that the agency could 

have invoked ‘‘good cause’’ if it had been required 

to repromulgate its existing regulations because the 

regulations had previously been promulgated 

pursuant to notice and comment, stating, ‘‘No real 

purpose would have been served by requiring the 

redundant solicitation of public comment. This had 

already been previously accorded for exactly the 

same regulation in question . . . Repromulgation 

would have required the administrative procedures 

be once more employed, necessitating delay and a 

lapse in regulatory enforcement. This would have 

served no useful purpose.’’). 

10See Departments of Veterans Affairs and 

Housing and Urban Development, and Independent 

Agencies Appropriations Act, 1998, Public Law 

105–65, 111 Stat. 1344, 1365, § 208 (Oct. 27, 1997). 

II. Justification for Interim Rule 

Good Cause Under the Administrative 

Procedure Act 

In general, HUD publishes a rule for 

public comment in accordance with 

both the APA, 5 U.S.C. 553, and the 

agency’s regulation on rulemaking at 24 

CFR part 10. Both the APA and Part 10, 

however, provide for exceptions from 

that general rule where HUD finds good 

cause to omit advance notice of the 

opportunity for public comment. The 

good cause requirement is satisfied 

when prior public procedure is 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(B). In order to publish a rule for 

effect prior to receiving and responding 

to public comments (i.e., an interim 

final rule), the agency must make a 

finding that ‘‘good cause’’ exists. 

HUD has determined that good cause 

exists to promulgate this interim final 

rule because it is in the public interest 

to publish this rule without advance 

notice and public comment in light of 

the present circumstances, and that 

subjecting the rule to notice and 

comment prior to publication would be 

impracticable and unnecessary. HUD’s 

determination is based on, among other 

things, a combination of the following 

considerations. This interim final rule 

rescinds the PCNC regulation, currently 

codified at 24 CFR parts 5, 91, 92, 570, 

574, and 903. HUD finds that the PCNC 

rule was promulgated improperly 

without notice and comment, and 

without sufficient explanation for its 

substantial departure from prior agency 

interpretations and judicial precedent 

concerning the AFFH obligation. As a 

result, the PCNC Rule creates 

substantial risks that reliance on the 

rule’s certifications by HUD funding 

recipients, many of which are in 

jurisdictions where caselaw is 

irreconcilable with the PCNC rule, may 

place them in jeopardy of violation of 

their statutory AFFH obligations, and, 

were HUD to accept these certifications, 

may place the agency at risk of violating 

its own statutory duty to affirmatively 

further fair housing. While the PCNC 

rule fundamentally altered the 

regulatory landscape, this interim final 

rule is limited in scope and imposes no 

new requirements that have not already 

been the subject of prior notice and 

comment. It reinstates provisions that 

were in effect prior to the PCNC rule’s 

promulgation. Under the unique 

circumstances here, HUD has good 

cause to omit advance notice and public 

comment prior to this rule taking effect. 

Notwithstanding these good cause 

determinations for this IFR interim final 

rule to take effect without advance 

notice and comment, HUD still requests 

and encourages public comments on all 

matters addressed in this rule. 

Moreover, HUD recognizes that program 

participants may need some time to 

adjust to this restoration and may 

choose to seek assistance from HUD in 

doing so, and therefore delays the 

effective date until July 31, 2021. HUD 

has determined this is the longest delay 

it can provide consistent with the need 

to reinstate AFFH certifications that 

help ensure program participants’ 

compliance with their statutory AFFH 

obligations in their expenditure of 

billions of federal dollars prior to the 

date on which many program 

participants make their annual 

certifications of compliance. HUD thus 

requests comments within 30 days of 

publication so that it may consider 

public views prior to the effective date. 

This Limited Rulemaking Is Consistent 

With Notice-and-Comment Principles, 

Because It Restores Provisions That 

Have Gone Through Notice and 

Comment While Rescinding Provisions 

That Have Not 

This limited rulemaking reinstates 

definitions and corresponding 

certifications from the 2015 AFFH rule 

and provides notice of the reinstatement 

of a voluntary process by which HUD 

will assist program participants in 

complying with their AFFH obligations. 

HUD previously promulgated these 

provisions after extensive notice-andcomment process, so they are familiar to 

HUD program participants. HUD 

published a Notice of Proposed 

Rulemaking (NPRM) for its AFFH rule 

in 2013 and received over one thousand 

public comments. 78 FR 43709. HUD 

reviewed and considered those 

comments and then promulgated the 

AFFH rule in 2015.9 In this interim final 

rule, HUD is reinstating definitions 

already promulgated in the 2015 rule, 

with a few technical changes to conform 

provisions that previously assumed the 

existence of mandatory fair housing 

planning process and other procedures, 

such as completing an AFH or AI, to the 

more limited structure of this interim 

final rule. 

Reinstating these definitions and 

corresponding certifications prior to 

public notice and comment is also 

necessary because the PCNC rule 

provided no opportunity for the public 

to comment before comprehensively 

redefining the AFFH mandate and the 

content of corresponding certifications 

that funding recipients make on a 

regular basis. Where, as here, a familiar 

regulatory definition that has passed 

through extensive notice and comment 

scrutiny is available, HUD believes the 

public interest is disserved by requiring 

funding recipients to certify compliance 

to a definition that has not benefited 

from public comment. 

As an initial matter, HUD now 

believes it is doubtful that PCNC’s 

invocation of notice and comment 

waiver authority was appropriate. PCNC 

invoked HUD’s general regulatory 

waiver authority under 24 CFR 5.110 to 

waive its Part 10 regulations, which 

otherwise would have required noticeand-comment procedures, but in doing 

so it downplayed the statutory 

requirement that HUD maintain its Part 

10 regulation, as well as the general 

principle that notice-and-comment 

rulemaking for major legal change best 

serves the public interest. A 

longstanding statutory provision 

requires HUD to maintain its Part 10 

requirements, i.e., to comply with 

notice-and-comment requirements.10 In 

the PCNC rule, HUD minimized the 

significance of this provision, stating 

that Congress did ‘‘not abrogate the 

Secretary’s independent statutory 

authority under 42 U.S.C. 3535(q) to 

waive regulations in specific 

circumstances.’’ 85 FR 47904 (FN 78). 

HUD now believes that this was an 

overly restrictive reading of this 

provision that ignored Congress’s clear 

intent to limit HUD’s authority to 

eschew notice-and-comment 

requirements. 

In any event, regardless of whether 

PCNC’s reliance on the regulatory 

waiver to bypass notice-and-comment 

requirements was lawful, HUD believes 

it disserved the public interest such that 

there is a strong interest in immediately 

restoring a regulatory definition that has 

gone through notice-and-comment 

scrutiny and more sustained agency and 

public consideration. PCNC abandoned 

the agency’s longstanding 


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11PCNC’s preamble pointed to the Cranston 

Gonzales National Affordable Housing Act, of 1990, 

Public Law 101–625 102, 105, for the proposition 

that ‘‘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.’’’ See 85 FR 47901. But this statute has 

several purposes. While one of its purposes was to 

promote decent, safe, and sanitary housing, and it 

incorporated a requirement that covered entities 

certify that they would affirmatively further fair 

housing, the statute does not include a nexus 

between that purpose and fair housing. As a result, 

HUD’s prior reliance on Cranston Gonzalez to 

justify this novel definition of fair housing was 

misplaced. 

understanding of the AFFH obligation, 

declined to follow judicial precedent, 

and suddenly altered the duties and 

obligations of funding recipients around 

the country. No judicial authority or 

HUD guidance exists that would help 

program participants, communities, and 

fair housing stakeholders reconcile this 

newly minted definition with betterestablished understandings of the AFFH 

requirement. PCNC acknowledged this 

lack of judicial or agency precedent 

supporting its redefinition of the AFFH 

requirement. See 85 FR 47902, 47903 

FN 54, 62.11 It relied solely on 

dictionaries, id. at 47901–902, but 

without explaining how this approach 

justified the redefinition of the term 

‘‘fair housing’’ to include actions that do 

not constitute fair housing as this term 

is ordinarily used. HUD relied heavily 

on a policy-driven conclusion that it is 

too burdensome for program 

participants to conduct any fair housing 

analysis, not just of the sort that was 

required by the 2015 rule, but of the sort 

that was required for decades before. Id. 

at 47902–903. These fundamental 

changes in how the agency understands 

and implements a statutory obligation 

are of the magnitude that should 

warrant notice and comment. 

In this context, this interim final rule 

is not an attempt to avoid notice and 

comment obligations; instead, it 

suspends a rule that is inconsistent with 

the AFFH statutory mandate, HUD’s 

prior interpretations, and judicial 

precedent and was improperly 

promulgated without notice and 

opportunity for comment in favor of 

provisions drawn from a rule that 

assiduously followed that process. HUD 

believes that leaving the PCNC rule in 

place—thus causing grant recipients to 

rely upon a confusing rule that was 

promulgated in disregard of notice and 

comment obligations—while seeking 

comment prior to publication on a 

proposal to reinstate provisions from the 

2015 rule would subvert rather than 

honor the purposes of the notice and 

comment process. Cf. Friends of 

Animals v. Bernhardt, 961 F.3d 1197, 

1206 (D.C. Cir. 2020) (‘‘But we do not 

see how a government action that 

illegally never went through notice and 

comment gains the same status as a 

properly promulgated rule such that 

notice and comment is required to 

withdraw it. . . we are faced only with 

the repeal of a ‘‘rule’’ that illegally never 

went through notice and comment—in 

other words, a ‘non-rule rule.’’’). The 

notice-and-comment requirement is 

intended to ‘‘serve the public interest by 

providing a forum for the robust debate 

of competing and frequently 

complicated policy considerations.’’ 

Nat. Res. Def. Council v. Nat’l Highway 

Traffic Safety Admin., 894 F.3d 95, 115 

(2d Cir. 2018); see also Consumer 

Energy, Etc. v. F.E.R.C., 673 F.2d 425, 

446 (D.C. Cir. 1982) (‘‘The value of 

notice and comment prior to repeal of 

a final rule is that it ensures that an 

agency will not undo all that it 

accomplished through its rulemaking 

without giving all parties an 

opportunity to comment on the wisdom 

of repeal.’’). HUD has determined that 

these salutary purposes are best served 

by reinstating provisions that have been 

subject to this ‘‘robust debate’’ but were 

undone without notice and comment, 

particularly as there has been little 

reliance on the PCNC rule’s definitions 

and certifications, which have been in 

place for only a short period of time. 

Consistent with its commitment to 

principles of notice-and-comment 

rulemaking, HUD now solicits 

comments on the provisions it now 

promulgates on an interim basis and 

will consider all comments prior to the 

effective date of this interim final rule. 

HUD anticipates separately issuing an 

NPRM, which (unlike this interim final 

rule) will propose provisions that have 

not previously gone through notice and 

comment rulemaking. That notice will 

set forth and seek comment on more 

detailed proposed implementation of a 

program participant’s AFFH obligations 

and will seek to build on and improve 

the processes set forth in the 2015 AFFH 

rule to further help funding recipients 

comply with their statutory obligation 

while reducing the regulatory burden on 

them. HUD welcomes public 

participation in these efforts to continue 

to strengthen fair housing outcomes 

while reducing burden on program 

participants. 

HUD Believes the PCNC Rule Is Not 

Based on a Reasonable Construction of 

the AFFH Requirement as Construed by 

the Courts and Ratified by Congress 

While HUD has ample discretion to 

construe and apply the AFFH 

requirement, the PCNC regulation is 

fundamentally inconsistent with the 

agency’s longstanding interpretation of 

its and funding recipients’ statutory 

obligation to AFFH, as well as the 

decades of authority described above 

interpreting the scope of this obligation. 

The current regulation does not require 

that program participants take any steps 

to further any fair housing outcomes as 

the term ‘‘fair housing’’ is generally 

understood, whereas the Housing and 

Community Development Act of 1974, 

the Cranston-Gonzalez National 

Affordable Housing Act, and the Quality 

Housing and Work Responsibility Act of 

1998 all require program participants to 

certify that they will affirmatively 

further fair housing as Congress 

understood and ratified the term. This 

conflict puts program participants at 

risk of confusion and violation of a 

statutory duty. It is in the public interest 

not to expose program participants to 

that risk. 

As explained above, under the current 

regulation, a program participant’s 

certification of compliance with the 

AFFH obligation amounts only to a 

certification that the program 

participant will take any single action 

rationally related to promoting one or 

more of the following ‘‘attributes:’’ 

Housing that is affordable, safe, decent, 

free of unlawful discrimination, or 

accessible as required under civil rights 

laws. Put simply, under PCNC, HUD is 

not requiring program participants to 

certify that they are taking actions that 

meet their actual statutory obligation to 

AFFH, and HUD risks not fulfilling its 

own understanding of its statutory 

obligations. 

The PCNC rule thus does not 

represent a selection among reasonable 

options within HUD’s discretion. Had 

HUD given notice and taken comment 

before promulgating it, this substantive 

infirmity would almost certainly have 

been pointed out and HUD would have 

had to address it. The failure to abide 

by notice-and-comment requirements 

before promulgating the PCNC rule 

therefore is closely connected with the 

failure to put in place regulatory 

definitions that are consistent with 

precedent and that foster compliance 

with the law. HUD believes the public 

interest is best served by the timely 

reinstatement, prior to the deadline by 

which a great number of program 

participants must certify compliance, of 

definitions that not only went through 

notice-and-comment procedures but are 

familiar to program participants; are 

consistent with well-established judicial 

and agency precedent construing the 

AFFH obligation and certifications 

incorporating these definitions; and are 

further elaborated by years of regulatory 


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12See 42 U.S.C. 5316(b); 24 CFR 91.15(a); 24 CFR 

570.304(c)(1). 

13See Petry v. Block, 737 F.2d 1193, 1200 (D.C. 

Cir. 1984) (‘‘For here the combination of several 

extraordinary factors validates the Department’s 

adoption of the interim rule under the mantle of 

‘good cause.’ ’’); see also Nat’l Women, Infants, & 

Children Grocers Ass’n v. Food & Nutrition Serv., 

416 F. Supp. 2d 92, 105–107 (D.D.C. 2006) (finding 

that, under the totality of circumstances, a 

combination of the four reasons advanced by the 

agency established good cause to promulgate an 

interim final rule). 

guidance that HUD has issued to assist 

grantees in compliance. Compliance 

with AFFH is included as a condition in 

a myriad of funding notices that HUD 

publishes on a regular basis and that it 

cannot delay past the effective date of 

this interim final rule. Similarly, HUD 

cannot delay past the effective date of 

this interim final rule because 

participants in the Community 

Development Block Grant (CDBG) 

program must submit their Annual 

Action Plans, which include AFFH 

certifications, by August 16 each year. 

Each year, HUD provides States, local 

governments, and public housing 

agencies with billions of dollars in 

federal financial assistance, 

appropriated and authorized by 

Congress. As part of HUD’s obligations 

as a grantor agency, consistent with 

longstanding statutory requirements, 

HUD oversees the use of such funds to 

ensure that taxpayer dollars are used in 

a responsible manner that is consistent 

with the law. For example, HUD is 

obligated to ensure that all federal 

grants are made consistently and in 

accordance with federal grant making 

requirements set forth at 2 CFR part 200. 

These requirements obligate HUD to 

engage in active oversight of its 

recipients, including ensuring 

compliance with civil rights 

requirements. See, e.g., 2 CFR 200.300 

(‘‘The Federal awarding agency must 

manage and administer the Federal 

award in a manner so as to ensure that 

Federal funding is expended and 

associated programs are implemented in 

full accordance with the U.S. 

Constitution, Federal Law, and public 

policy requirements: Including, but not 

limited to, those protecting free speech, 

religious liberty, public welfare, the 

environment, and prohibiting 

discrimination.’’). 

As a vital part of this oversight role, 

HUD requires program participants to 

annually certify that they will comply 

with various federal requirements, 

including the obligation to affirmatively 

further fair housing. Under the PCNC 

Rule, these certifications are to a 

standard that is inconsistent with the 

underlying legal obligation, preventing 

HUD from relying on them to carry out 

its oversight obligations. For these 

reasons, and with impending deadlines 

including the August 16 CDBG annual 

action plan deadline, it is imperative 

that HUD immediately provide its 

recipients with legally supportable 

definitions and certifications for HUD to 

meet its own obligations as a grantor 

agency and put its grantees on notice 

that PCNC represents a standard that 

HUD now believes is not consistent 

with the statutory obligation to 

affirmatively further fair housing. 

Moreover, because certifications made 

under the PCNC rule do not require 

compliance with the Fair Housing Act, 

allowing that rule to remain in place 

risks further entrenching segregation 

and inequity in access to housing and 

opportunity, challenges that have been 

exacerbated by presently converging 

health, economic, and climate crises. 

HUD Is Delaying the Effective Date of 

This Interim Final Rule Until July 31, 

2021 

While HUD is providing notice 

immediately that it does not regard the 

PCNC definitions as compliant with the 

statutory AFFH obligation, HUD’s prior 

interpretations, and judicial precedent, 

HUD is delaying the effective date of 

this interim final rule until July 31, 2021 

to give program participants time to 

adjust. HUD has determined that this is 

the longest delay of the effective date it 

can provide while ensuring that 

municipalities and other participants in 

the Community Development Block 

Grant program can submit annual action 

plans, including AFFH certifications, 

that are consistent with the AFFH 

statutory obligation as described above. 

CDBG annual action plans must be 

submitted by August 16 each year, and 

so HUD has determined that it is 

necessary for this rule to go into effect 

before then and to provide program 

participants with sufficient notice.12

Between the date of publication and 

the effective date, HUD will provide 

additional clarity to affected program 

participants. HUD will provide 

guidance and technical support to 

program participants regarding the 

interim final rule, including with 

respect to the reinstated definitions and 

certifications and with respect to fair 

housing planning and actions that 

program participants may voluntarily 

undertake in support of their 

certifications. Additionally, although 

the definitions have already been the 

subject of notice-and-comment 

rulemaking, HUD will seek comment for 

a period of 30 days from publication to 

solicit additional views. HUD will 

carefully consider all such comments 

and in response to those comments, as 

it deems appropriate, may amend the 

interim final rule accordingly. 

Conclusion 

Under the totality of the 

circumstances described above, HUD 

believes this limited-in-scope interim 

final rule is justified by good cause.13

HUD finds that the PCNC rule is 

contrary to the AFFH statutory mandate 

and constitutes a substantial departure 

from HUD’s prior interpretations and 

judicial precedent. Moreover, the PCNC 

rule is contrary to multiple 

Congressional mandates with which 

HUD must act promptly to comply by 

removing the PCNC regulation and 

restoring definitions upon which 

program participants can reasonably 

rely in certifying compliance with their 

statutory duty to AFFH. HUD further 

finds that the PCNC rule was 

improperly promulgated without a 

sufficient reason for forgoing notice and 

comment rulemaking. This interim final 

rule reinstates provisions that have 

already undergone sufficient notice and 

comment processes, and HUD is now 

inviting additional comment and 

delaying the effective date of this 

interim final rule until July 31, 2021. 

HUD may further revise this interim 

final rule before its effective date in 

response to these comments. 

Additionally, HUD is reestablishing 

voluntary processes and technical 

assistance to assist program participants 

in complying with their statutory AFFH 

obligations and engage in fair housing 

planning. 

III. This Interim Final Rule 

Against this backdrop, this interim 

rulemaking is narrowly focused to meet 

the urgent need to withdraw the PCNC 

rule definition, which promotes 

confusion and noncompliance with the 

statutory obligation to AFFH, and to 

reinstate a definition that properly states 

that duty and is the result of notice and 

comment rulemaking. This interim final 

rule restores the understanding of the 

AFFH obligation for certain recipients of 

federal financial assistance from HUD to 

the previously established 

understanding by reinstating legally 

supportable definitions that are 

consistent with a meaningful AFFH 

requirement and certifications that 

incorporate these definitions. HUD has 

also amended the certifications in the 

program regulations at 24 CFR 91.225, 

91.325, 91.425, 570.487, 903.7, and 

related record keeping requirements to 

restore meaningful AFFH certifications 

that incorporate appropriate definitions. 


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14While some definitions from the 2015 AFFH 

rule referred to the Assessment Tool to provide 

more information, HUD does not restore these 

references. HUD has removed references to the AFH 

and other provisions of the 2015 AFFH rule that are 

no longer applicable. HUD restores 24 CFR 5.150 to 

similarly align with this approach, explaining that 

the purpose of the regulations, pursuant to the 

statutory obligation to affirmatively further fair 

housing, is to provide program participants with a 

substantive definition of the AFFH requirement, as 

well as to provide access to an effective planning 

approach to aid those program participants that 

wish to avail themselves of it in taking meaningful 

actions to overcome historic patterns of segregation, 

promote fair housing choice, and foster inclusive 

communities that are free from discrimination. 

These conforming edits to the definitions and 

purpose do not change the meaning of the terms; 

they merely align them to the previously published 

regulations that are restored here. HUD believes that 

the restoration of these definitions will be helpful 

to recipients as they certify that they are 

affirmatively furthering fair housing consistent with 

prior judicial interpretations of the statutory 

mandate to affirmatively further fair housing. 

Amendments to 24 CFR parts 92, 570, 

574, and 576 include updated crossreferences and clarification of program 

participants in the HOME, CDBG, 

Housing Opportunities for Persons With 

AIDS (HOPWA), and Emergency 

Solutions Grants programs regarding 

recordkeeping requirements. In a similar 

manner, this interim final rule amends 

24 CFR 903.7(o), 903.15, and 24 CFR 

903.23(f) to update cross-references to 

the amended definitions and 

certification provisions in 24 CFR 5.151 

and 5.152 and to explain the 

relationship of the public housing 

agency plans to the consolidated plan 

and a PHA’s fair housing requirements. 

The regulations also explain how HUD 

will assist program participants in 

carrying out their obligation and 

provides attendant definitions in 24 

CFR 5.152. With this interim final rule, 

HUD does not, however, reinstate the 

obligation to conduct an AFH or AI, or 

mandate any specific fair housing 

planning mechanism. 

The effect of the reinstatement of the 

2015 AFFH rule definitions and 

certifications incorporating those 

definitions is that recipients once again 

can rely on HUD’s regulatory definition 

to accurately articulate the purpose and 

meaning of their AFFH obligation. The 

critical importance of requiring funding 

recipients to certify to a regulatory 

definition that is consistent with 

longtime understandings of the AFFH 

obligation was recognized by the court 

in National Fair Housing Alliance v. 

Carson, 330 F. Supp. 3d 14 (D.D.C. 

2018). In that case, plaintiffs challenged 

HUD’s withdrawal of the Local 

Government Assessment Tools (and 

effective suspension of the AFH 

process), contending that eliminating 

these procedural requirements put HUD 

in violation of its own obligation to 

ensure that funding recipients comply 

with the AFFH requirement. The court 

determined that HUD’s actions were not 

contrary to the Fair Housing Act 

because the AI requirement and the 

2015 rule’s definitions and certifications 

incorporating those definitions 

remained in place. See 330 F. Supp. 3d 

at 45. Accordingly, when HUD 

published PCNC and replaced the 2015 

rule’s definitions with ones unmoored 

from the Fair Housing Act, it withdrew 

the underpinnings of National Fair 

Housing Alliance v. Carson’s reasoning 

that HUD was continuing to require 

compliance with the Act’s substantive 

obligation. 

Since some of the 2015 Rule’s 

definitions may not be applicable absent 

the obligation to conduct an AFH or AI, 

HUD is not reinstating all definitions 

from the 2015 AFFH rule at 24 CFR 

5.152 (2015). Instead, HUD is 

promulgating only those that are 

applicable and in force under this 

limited-in-scope interim final rule.14

HUD is providing the definitions at 24 

CFR 5.151 in order to inform program 

participants of how these terms are 

applied. The definitions include: 

‘‘Affirmatively Furthering Fair 

Housing,’’ ‘‘Disability,’’ ‘‘Fair Housing 

Choice,’’ ‘‘Housing Programs Serving 

Specified Populations,’’ ‘‘Integration,’’ 

‘‘Meaningful Actions,’’ ‘‘Racially or 

Ethnically Concentrated Areas of 

Poverty,’’ ‘‘Segregation,’’ and 

‘‘Significant Disparities in 

Opportunity.’’ These definitions 

correspond with the AFFH statutory 

mandates, HUD’s long-standing 

interpretations, and judicial precedent. 

HUD provides the definition of 

‘‘Affirmatively Furthering Fair Housing’’ 

based on numerous judicial 

interpretations of the Fair Housing Act. 

For example, in Otero v. New York City 

Housing Auth., the Second Circuit held 

that the AFFH mandate requires that 

‘‘[a]ction must be taken to fulfill, as 

much as possible, the goal of open, 

integrated residential housing patterns 

and to prevent the increase of 

segregation, in ghettos, of racial groups 

whose lack of opportunities the Act was 

designed to combat.’’ Otero, 484 F.2d at 

1134. It found that this requirement 

flows from the evident legislative 

purpose, as Senator Mondale ‘‘pointed 

out that the proposed law was designed 

to replace the ghettos ‘by truly 

integrated and balanced living 

patterns.’ ’’ Otero, 484 F.2d at 1134 

(citing 114 Cong. Reg. 3422). 

Similarly, in NAACP, Boston Chapter 

v. HUD, 817 F.2d at 154, the First 

Circuit held that ‘‘as a matter of 

language and logic, a statute that 

instructs an agency ‘affirmatively to 

further’ a national policy of 

nondiscrimination would seem to 

impose an obligation to do more than 

simply not discriminate itself.’’ NAACP, 

Boston Chapter, 817 F.2d at 154. It 

found that ‘‘. . . a failure to ‘consider 

the effect of a HUD grant on the racial 

and socio-economic composition of the 

surrounding area’ ’’ would be 

inconsistent with the Fair Housing Act’s 

mandate. Id. at 156. Further, the court 

found that ‘‘the need for such 

consideration itself implies, at a 

minimum, an obligation to assess 

negatively those aspects of a proposed 

course of action that would further limit 

the supply of genuinely open housing 

and to assess positively those aspects of 

a proposed course of action that would 

increase that supply.’’ Id. If HUD is 

‘‘doing so in any meaningful way, one 

would expect to see, over time, if not in 

any individual case, HUD activity that 

tends to increase, or at least, that does 

not significantly diminish, the supply of 

open housing.’’ Id. 

Similarly, in Thompson v. HUD, the 

court found that the AFFH mandate 

requires consideration of the effect of its 

policies on the racial and 

socioeconomic composition of the 

surrounding area. Thompson, 348. F. 

Supp. 2d at 409; see also Garrett v. 

Hamtramck, 335 F. Supp. 16, 27 (E.D. 

Mich. 1971), aff’d 503 F.2d 1236 (6th 

Cir. 1974). HUD believes the 2015 rule’s 

definition of AFFH is consistent with 

these rulings and others and can ensure 

that HUD and its program participants 

comply with the AFFH requirement. 

Relatedly, in this interim final rule, 

HUD is including a definition of ‘‘Fair 

Housing Choice’’ that is consistent with 

these cases and others. For example, in 

Thompson, the court found that, ‘‘it is 

appropriate to note that there is a 

distinction between telling a person that 

he or she may not live in [a] place 

because of race and giving the person a 

choice so long as the place in question 

is, in fact, available to anyone without 

regard to race.’’ 348 F. Supp. 2d at 450. 

The other definitions provided in this 

interim final rule, which help to detail 

the meaning of the AFFH obligation, are 

similarly rooted in judicial precedent 

and statutory purpose. In Otero, the 

Second Circuit held that the AFFH 

mandate extends beyond HUD and to its 

recipients (in that case, the housing 

authority) and required funding 

recipients to take affirmative steps to 

promote integration. 484 F.2d at 1124. 

The obligation of program participants 

to take ‘‘Meaningful Actions,’’ as 

defined in the 2015 rule and in this 

interim final rule, is a reasonable 

interpretation of this holding. See also 

NAACP, Boston Chapter, 817 F.2d at 


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154 (requiring the assessment of actions 

in a ‘‘meaningful way’’). 

In addition, because the AFFH 

obligation as intended by Congress and 

construed by the courts requires efforts 

to decrease segregation and promote 

integration, HUD finds it appropriate to 

once again include those concepts in the 

definition of AFFH and, in turn, 

reinstate the definitions for both 

‘‘Segregation’’ and the converse, 

‘‘Integration,’’ from the 2015 rule. See 

Client’s Council v. Pierce, 711 F.2d 

1406, 1425 (8th Cir. 1983) (‘‘Congress 

enacted section 3608(e)(5) to cure the 

widespread problem of segregation in 

public housing’’); see also Resident 

Advisory Bd. v. Rizzo, 425 F. Supp. 987, 

1013–1019 (E.D. Pa. 1976) aff’d in part, 

rev’d in part on other grounds, 564 F.2d 

126 (3d Cir.), cert. denied, 435 U.S. 908 

(1977) (‘‘Each case brought under 

[3608(e)(5)] requires a close analysis of 

the facts peculiar to that case and the 

city in which the facts have occurred 

. . . in view of the pattern of racial 

segregation which prevailed in both 

private and public housing in 

Philadelphia, the City of Philadelphia 

has not, under the facts of this case, met 

its duty of affirmatively implementing 

the national policy of fair housing and 

has violated Title VIII of the Civil Rights 

Act of 1968.); Otero, 484 F.2d at 1133– 

34 (explaining that ‘‘. . . the affirmative 

duty placed on the Secretary of HUD by 

§ 3608(e)(5) and through him on other 

agencies administering federallyassisted housing programs also requires 

that consideration be given to the 

impact of proposed public housing 

programs on the racial concentration in 

the area in which the proposed housing 

is to be built.’’). 

HUD is also reinstating the definition 

of ‘‘Housing Programs Serving Specified 

Populations’’ in this rule. Such 

programs include HUD and Federal 

Housing programs, such as HUD’s 

Supportive Housing for the Elderly, 

Supportive Housing for Persons with 

Disabilities, and homeless assistance 

programs under McKinney-Vento 

Homeless Assistance Act (42 

U.S.C.11301, et seq.), and housing 

designated under section 7 of the United 

States Housing Act of 1937 (42 U.S.C. 

1437e) that serve specific identified 

populations and comply with Federal 

civil rights statutes and regulations. The 

inclusion of this definition is necessary 

to assure current and prospective 

program participants that participation 

in these specified Federal housing 

programs does not present a fair housing 

issue of segregation, provided that such 

programs are administered to comply 

with program regulations and applicable 

civil rights requirements. 

Judicial precedents similarly held 

that, as a necessary precursor to 

fulfilling the ultimate obligation of 

pursuing actions that foster 

desegregation and avoid perpetuating 

segregation, the AFFH mandate requires 

program participants to assess the 

demographics of discrete geographic 

areas when conducting an analysis. For 

example, the Third Circuit found that 

the AFFH mandate requires obtaining 

the information necessary to make 

informed decisions on the effects of site 

selection or type selection of housing 

with regard to racial concentration, 

determining that even within the 

discretion afforded by the AFFH 

mandate, judgment must be ‘‘informed.’’ 

See Shannon, 436 F.2d at 820–22. 

In light of these judicial precedents, 

this rule reinstates the definitions of 

‘‘Data’’ and ‘‘Significant Disparities in 

Access to Opportunity.’’ In doing so, it 

restores a reasonable interpretation of 

precedents holding that the AFFH 

obligation requires the consideration of 

data such as the racial demographics of 

neighborhoods, other geographic areas, 

and housing developments, as a 

necessary precursor to taking 

meaningful action to promote 

integration, decrease segregation, undo 

racially or ethnically concentrated areas 

of poverty, and overcome significant 

disparities in access to opportunity. See, 

e.g., Blackshear Res. Org. v. Housing 

Auth. of City of Austin, 347 F. Supp. 

1138, 1148 (W.D. Tex. 1971) (holding 

that both the PHA and HUD were 

charged with the obligation to AFFH 

and their decision ‘‘failed to consider 

that policy’’ and must be set aside 

because HUD had not considered ‘‘hard, 

reliable data showing the racial 

demography of any of these areas’’ 

despite the readily available data that 

could have been consulted.). 

Finally, HUD is including definitions 

of ‘‘Protected Characteristic,’’ ‘‘Protected 

Class,’’ and ‘‘Disability.’’ The definition 

of ‘‘Disability’’ in this interim final rule, 

as in the 2015 AFFH Rule, is intended 

to be consistent with other federal civil 

rights laws with which program 

participants must comply, such as 

Section 504 of the Rehabilitation Act of 

1973 and the Americans with 

Disabilities Act of 1990, as amended by 

the ADA Amendments Act of 2008. 

HUD incorporates by reference the 

definition of disability under Section 

504 and the ADA as interpreted by the 

Attorney General, see 28 CFR 35.108, for 

purposes of the affirmatively furthering 

fair housing obligation under Section 

808(e)(5) so as to provide consistency 

and clarity to HUD program 

participants, which are all already 

bound by the same definition under 

those statutes. 

In addition to reinstating these 

definitions, HUD restores the 

certifications that incorporate these 

definitions. HUD has sometimes 

required funding recipients to certify to 

compliance with certain procedures 

(such as creating an AI) that implement 

the caselaw above and has sometimes 

required certification to a substantive 

standard. HUD is not mandating any 

particular procedure by which program 

participants must engage in fair housing 

planning in this interim final rule, but 

rather is reinstating a meaningful 

substantive definition of AFFH. 

Additionally, HUD interprets its own 

statutory obligation as requiring it to 

assist program participants with 

compliance, and in any event HUD’s 

experience teaches it that such 

assistance leads to better fair housing 

outcomes. Through this interim final 

rule, HUD resumes a process for 

providing technical assistance to 

program participants that engage in fair 

housing planning, including, in 

particular, the familiar AI and AFH 

processes. 

HUD anticipates that many program 

participants may wish to engage in 

voluntary fair housing planning 

processes that support their AFFH 

certifications. Most program 

participants have already prepared an 

AI or AFH, which were required by the 

regulations that preceded the PCNC 

rule, and so HUD anticipates that many 

program participants may wish to 

continue to implement or update their 

AI or AFH to support their AFFH 

certifications. Accordingly, HUD will 

provide technical assistance and other 

support to program participants that 

voluntarily engage in the AI or AFH 

planning processes. This interim final 

rule does not require program 

participants to comply with these 

processes, but HUD anticipates the 

continued use of the AI or AFH process 

are ways program participants may 

choose to support AFFH certifications 

while maintaining continuity. 

Program participants may also choose 

to support their certifications and 

maintain records in other meaningful 

ways, provided they can appropriately 

certify that they will AFFH, consistent 

with the definitions that are restored in 

this rule. Program participants are 

encouraged to seek technical assistance 

from HUD’s Office of Fair Housing and 

Equal Opportunity (FHEO) regarding 

any fair housing planning process. 

Under its authority regarding a 

grantee’s certifications, HUD may 

review recipients’ records and 

documents to confirm the validity of 


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15HUD has continued to update the data used in 

this tool on a yearly basis. The data was last 

updated in summer 2020. 

certifications submitted to HUD in 

connection with the receipt of Federal 

funds. HUD only intends to undertake 

such a review when it has reason to 

believe the certifications submitted are 

not supported by the recipients’ actions. 

HUD expects these instances to be rare 

and will provide all required notice to 

recipients of any review to be 

undertaken. 

Consistent with this interim final rule, 

HUD will separately restore the 

guidance and resources available for 

recipients’ use in conducting fair 

housing planning until such time as 

HUD finalizes a new regulation to 

implement the statutory mandate to 

AFFH at 42 U.S.C. 3608(e)(5). While the 

AFFH Rule Guidebook was published to 

further the implementation of the 2015 

AFFH rule, its content may assist 

recipients in identifying areas of 

analysis and strategies and actions that 

would overcome historic patterns of 

segregation, promote integration, 

increase access to opportunity, and 

ensure fair housing choice. As such, 

HUD will republish both the FHPG and 

the AFFH Rule Guidebook. It also will 

keep the AFFH Data and Mapping Tool 

(the AFFH–T) publicly available,15 so 

that program participants have racial, 

socioeconomic, and other data to engage 

in fair housing planning. 

HUD will also make available the 

Assessment Tool for Local Governments 

and the Assessment Tool for Public 

Housing Agencies, which previously 

were made available as an optional 

format to follow to conduct an AI, and 

which some program participants have 

chosen to use to guide their fair housing 

planning processes. 

HUD’s provision on a voluntary basis 

of a variety of familiar tools is intended 

to reduce the burden on recipients 

while ensuring that they have tools for 

fair housing planning in order to AFFH 

as HUD works toward an 

implementation scheme that will further 

reduce burden for recipients while 

bolstering fair housing outcomes. 

As noted, HUD will solicit comments 

through a separate NPRM on how to 

amend the 2015 AFFH rule to achieve 

both burden reduction and material, 

positive change that affirmatively 

furthers fair housing. 

For the reasons described in this 

preamble, this rule is necessary to 

comply with the Congressional mandate 

to AFFH and the statutory certifications, 

consistent with the directive in the 

FY1998 appropriations. While HUD will 

solicit public comments on the NPRM 

through separate Federal Register 

notice, HUD here requests and 

encourages public comments on all 

matters addressed in this interim final 

rule. 

IV. 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. This interim final rule 

has been determined to be a ‘‘significant 

regulatory action,’’ as defined in section 

3(f) of Executive Order 12866, but not 

economically significant. Because 

nothing in this rule imposes any 

specific regulatory requirements and 

because the substantive standard that 

this rule reinstates is one that program 

participants have long followed, HUD 

anticipates that this rule will have no 

economic effects. 

Executive Order 13563 (Improving 

Regulations and Regulatory Review) 

directs executive agencies to analyze 

regulations that are ‘‘outmoded, 

ineffective, insufficient, or excessively 

burdensome, and to modify, streamline, 

expand, or repeal them in accordance 

with what has been learned.’’ Executive 

Order 13563 also directs that, where 

relevant, feasible, and consistent with 

regulatory objectives, and to the extent 

permitted by law, agencies are to 

identify and consider regulatory 

approaches that reduce burdens and 

maintain flexibility and freedom of 

choice for the public. This interim final 

rule clarifies the obligation with which 

HUD grantees are already required to 

comply by statute. HUD, therefore, 

believes that this final rule would 

provide flexibility and freedom for HUD 

grantees to AFFH, consistent with the 

statutory mandate, and is consistent 

with Executive Order 13563. 

Executive Order 13132, 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 

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 


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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 

■ 1. The authority citation for part 5, 

subpart A, continues to read as follows: 

Authority: 29 U.S.C. 794, 42 U.S.C. 1437a, 

1437c, 1437c–1(d), 1437d, 1437f, 1437n, 

3535(d), and Sec. 327, Pub. L. 109–115, 119 

Stat. 2936; 42 U.S.C. 3600–3620; 42 U.S.C. 

5304(b); 42 U.S.C. 12101 et seq.; 42 U.S.C. 

12704–12708; Executive Order 11063, 27 FR 

11527, 3 CFR, 1958–1963 Comp., p. 652; 

Executive Order 12892, 59 FR 2939, 3 CFR, 

1994 Comp., p. 849. 

■ 2. Revise § 5.150 to read as follows: 

§ 5.150 Affirmatively Furthering Fair 

Housing: Purpose. 

Pursuant to the affirmatively 

furthering fair housing mandate in 

section 808(e)(5) of the Fair Housing 

Act, and in subsequent legislative 

enactments, the purpose of the 

Affirmatively Furthering Fair Housing 

(AFFH) regulations is to provide 

program participants with a substantive 

definition of the AFFH requirement, as 

well as to provide access to an effective 

planning approach to aid those program 

participants that wish to avail 

themselves of it in taking meaningful 

actions to overcome historic patterns of 

segregation, promote fair housing 

choice, and foster inclusive 

communities that are free from 

discrimination. 

■ 3. Revise § 5.151 to read as follows: 

§ 5.151 Affirmatively Further Fair Housing: 

Definitions. 

For purposes of §§ 5.150 through 

5.152, the terms ‘‘consolidated plan,’’ 

‘‘consortium,’’ ‘‘unit of general local 

government,’’ ‘‘jurisdiction,’’ and 

‘‘State’’ are defined in 24 CFR part 91. 

For PHAs, ‘‘jurisdiction’’ is defined in 

24 CFR 982.4. The following additional 

definitions are provided solely for 

purposes of §§ 5.150 through 5.152 and 

related amendments in 24 CFR parts 91, 

92, 570, 574, 576, and 903: 

Affirmatively furthering fair housing 

means taking meaningful actions, in 

addition to combating discrimination, 

that overcome patterns of segregation 

and foster inclusive communities free 

from barriers that restrict access to 

opportunity based on protected 

characteristics. Specifically, 

affirmatively furthering fair housing 

means taking meaningful actions that, 

taken together, address significant 

disparities in housing needs and in 

access to opportunity, replacing 

segregated living patterns with truly 

integrated and balanced living patterns, 

transforming racially or ethnically 

concentrated areas of poverty into areas 

of opportunity, and fostering and 

maintaining compliance with civil 

rights and fair housing laws. The duty 

to affirmatively further fair housing 

extends to all of a program participant’s 

activities and programs relating to 

housing and urban development. 

Disability. (1) The term ‘‘disability’’ 

means, with respect to an individual: 

(i) A physical or mental impairment 

that substantially limits one or more 

major life activities of such individual; 

(ii) A record of such an impairment; 

or 

(iii) Being regarded as having such an 

impairment. 

(2) The term ‘‘disability’’ as used 

herein shall be interpreted consistent 

with the definition of such term under 

section 504 of the Rehabilitation Act of 

1973, as amended by the Americans 

with Disabilities Act Amendments Act 

of 2008. This definition does not change 

the definition of ‘‘disability’’ or 

‘‘disabled person’’ adopted pursuant to 

a HUD program statute for purposes of 

determining an individual’s eligibility 

to participate in a housing program that 

serves a specified population. 

Fair housing choice means that 

individuals and families have the 

information, opportunity, and options to 

live where they choose without 

unlawful discrimination and other 

barriers related to race, color, religion, 

sex, familial status, national origin, or 

disability. Fair housing choice 

encompasses: 

(1) Actual choice, which means the 

existence of realistic housing options; 

(2) Protected choice, which means 

housing that can be accessed without 

discrimination; and 

(3) Enabled choice, which means 

realistic access to sufficient information 

regarding options so that any choice is 

informed. For persons with disabilities, 

fair housing choice and access to 

opportunity include access to accessible 

housing and housing in the most 

integrated setting appropriate to an 

individual’s needs as required under 

Federal civil rights law, including 

disability-related services that an 

individual needs to live in such 

housing. 

Housing programs serving specified 

populations. Housing programs serving 

specified populations are HUD and 

Federal housing programs, including 

designations in the programs, as 

applicable, such as HUD’s Supportive 

Housing for the Elderly, Supportive 

Housing for Persons with Disabilities, 

homeless assistance programs under the 

McKinney-Vento Homeless Assistance 

Act (42 U.S.C. 11301 et seq.), and 

housing designated under section 7 of 

the United States Housing Act of 1937 

(42 U.S.C. 1437e), that: 

(1) Serve specific identified 

populations; and 

(2) Comply with title VI of the Civil 

Rights Act of 1964 (42 U.S.C. 2000d– 

2000d–4) (Nondiscrimination in 

Federally Assisted Programs); the Fair 

Housing Act (42 U.S.C. 3601–19), 

including the duty to affirmatively 


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further fair housing; section 504 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

794); the Americans with Disabilities 

Act (42 U.S.C. 12101, et seq.); and other 

Federal civil rights statutes and 

regulations. 

Integration means a condition, within 

the program participant’s geographic 

area of analysis, in which there is not a 

high concentration of persons of a 

particular race, color, religion, sex, 

familial status, national origin, or 

having a disability or a particular type 

of disability when compared to a 

broader geographic area. For individuals 

with disabilities, integration also means 

that such individuals are able to access 

housing and services in the most 

integrated setting appropriate to the 

individual’s needs. The most integrated 

setting is one that enables individuals 

with disabilities to interact with persons 

without disabilities to the fullest extent 

possible, consistent with the 

requirements of the Americans with 

Disabilities Act (42 U.S.C. 12101 et seq.) 

and section 504 of the Rehabilitation 

Act of 1973 (29 U.S.C. 794). See 28 CFR 

part 35, appendix B (2010) (addressing 

28 CFR 35.130 and providing guidance 

on the Americans with Disabilities Act 

regulation on nondiscrimination on the 

basis of disability in State and local 

government services). 

Meaningful actions means significant 

actions that are designed and can be 

reasonably expected to achieve a 

material positive change that 

affirmatively furthers fair housing by, 

for example, increasing fair housing 

choice or decreasing disparities in 

access to opportunity. 

Racially or ethnically concentrated 

area of poverty means a geographic area 

with significant concentrations of 

poverty and minority populations. 

Segregation means a condition, 

within the program participant’s 

geographic area of analysis, in which 

there is a high concentration of persons 

of a particular race, color, religion, sex, 

familial status, national origin, or 

having a disability or a type of disability 

in a particular geographic area when 

compared to a broader geographic area. 

For persons with disabilities, 

segregation includes a condition in 

which the housing or services are not in 

the most integrated setting appropriate 

to an individual’s needs in accordance 

with the requirements of the Americans 

with Disabilities Act (42 U.S.C. 12101, 

et seq.), and section 504 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

794). (See 28 CFR part 35, appendix B 

(2010), addressing 25 CFR 35.130.) 

Participation in ‘‘housing programs 

serving specified populations’’ as 

defined in this section does not present 

a fair housing issue of segregation, 

provided that such programs are 

administered to comply with title VI of 

the Civil Rights Act of 1964 (42 U.S.C. 

2000d–2000d–4) (Nondiscrimination in 

Federally Assisted Programs): The Fair 

Housing Act (42 U.S.C. 3601–19), 

including the duty to affirmatively 

further fair housing: Section 504 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

794); the Americans with Disabilities 

Act (42 U.S.C. 12101, et seq.); and other 

Federal civil rights statutes and 

regulations. 

Significant disparities in access to 

opportunity means substantial and 

measurable differences in access to 

educational, transportation, economic, 

and other important opportunities in a 

community, based on protected class 

related to housing. 

■ 4. Add § 5.152 to read as follows: 

§ 5.152 AFFH Certification and 

Administration. 

(a) Certifications. Program 

participants must certify that they will 

comply with their obligation of 

affirmatively furthering fair housing 

when required by statutes or regulations 

governing HUD programs. Such 

certifications are made in accordance 

with applicable regulations. 

Consolidated plan program participants 

are subject to the certification 

requirements in 24 CFR part 91, and 

PHA Plan program participants are 

subject to the certification requirements 

in 24 CFR part 903. 

(b) Administration. To assist program 

participants in carrying out their 

obligation of affirmatively furthering fair 

housing, and supporting their 

certifications pursuant to paragraph (a) 

of this section, HUD will provide 

technical assistance to program 

participants in various ways, including 

by: 

(1) Making HUD-provided data and 

informational resources available, 

including about how to voluntarily 

engage in fair housing planning, such 

as: 

(i) Analyzing fair housing data, 

assessing fair housing issues and 

contributing factors, assessing fair 

housing priorities and goals; taking 

meaningful actions to support identified 

goals; and taking no action that is 

materially inconsistent with the 

obligation to affirmatively further fair 

housing; or 

(ii) Conducting an analysis to identify 

impediments to fair housing choice 

within the jurisdiction, taking 

appropriate actions to overcome the 

effects of any impediments identified 

through that analysis, and maintaining 

records reflecting the analysis and 

actions in this regard; or 

(iii) Engaging in other means of fair 

housing planning that meaningfully 

supports this certification; 

(2) Permitting a program participant 

to voluntarily submit its fair housing 

planning for HUD feedback from the 

responsible office; and 

(3) Engaging in other forms of 

technical assistance. 

(c) Procedure for challenging the 

validity of an AFFH certification. The 

procedures for challenging the validity 

of an AFFH certification are as follows: 

(1) For consolidated plan program 

participants, HUD’s challenge to the 

validity of an AFFH certification will be 

as specified in 24 CFR part 91. 

(2) For PHA Plan program 

participants, HUD’s challenge to the 

validity of an AFFH certification will be 

as specified in 24 CFR part 903. 

(d) Definitions. For purposes of this 

section, the following definitions apply: 

(1) Data refers collectively to the 

sources of data provided in paragraphs 

(d)(1)(i) and (d)(1)(ii) of this definition. 

When identification of the specific 

source of data in paragraphs (d)(1)(i) 

and (d)(1)(ii) is necessary, the specific 

source (HUD-provided data or local 

data) will be stated. 

(i) HUD-provided data. The term 

‘‘HUD-provided data’’ refers to HUDprovided metrics, statistics, and other 

quantified information that may be used 

when conducting fair housing planning. 

HUD-provided data will not only be 

provided to program participants but 

will be posted on HUD’s website for 

availability to all of the public; 

(ii) Local data. The term ‘‘local data’’ 

refers to metrics, statistics, and other 

quantified information, relevant to the 

program participant’s geographic areas 

of analysis, that can be found through a 

reasonable amount of search, are readily 

available at little or no cost, and may be 

used to conduct fair housing planning. 

(2) Program participants means: 

(i) Jurisdictions and Insular Areas, as 

described in 570.405 and defined in 

570.3, that are required to submit 

consolidated plans for the following 

programs: 

(A) The Community Development 

Block Grant (CDBG) program (see 24 

CFR part 570, subparts D and I); 

(B) The Emergency Solutions Grants 

(ESG) program (see 24 CFR part 576); 

(C) The HOME Investment 

Partnerships (HOME) program (see 24 

CFR part 92); and 

(D) The Housing Opportunities for 

Persons With AIDS (HOPWA) program 

(see 24 CFR part 574). 

(ii) Public housing agencies (PHAs) 

receiving assistance under sections 8 or 


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9 of the United States Housing Act of 

1937 (42 U.S.C. 1437f or 42 U.S.C. 

1437g). 

(3) Protected characteristics are race, 

color, religion, sex, familial status, 

national origin, having a disability, and 

having a type of disability. 

(4) Protected class means a group of 

persons who have the same protected 

characteristic; e.g., a group of persons 

who are of the same race are a protected 

class. Similarly, a person who has a 

mobility disability is a member of the 

protected class of persons with 

disabilities and a member of the 

protected class of persons with mobility 

disabilities. 

PART 91—CONSOLIDATED 

SUBMISSIONS FOR COMMUNITY 

PLANNING AND DEVELOPMENT 

PROGRAMS 

■ 5. The authority citation for part 91 

continues to read as follows: 

Authority: 42 U.S.C. 3535(d), 3601–19, 

5301–5315, 11331–11388, 12701–12711, 

12741–12756, and 12901–12912. 

■ 6. Revise § 91.225(a)(1) to read as 

follows: 

§ 91.225 Certifications. 

(a) * * * 

(1) Affirmatively furthering fair 

housing. Each jurisdiction is required to 

submit a certification, consistent with 

§§ 5.151 and 5.152 of this title, that it 

will affirmatively further fair housing. 

* * * * * 

■ 7. Revise § 91.235(c)(4) to read as 

follows: 

(c) * * * 

(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 

§ 570.440 of this title. This includes the 

certification that the grantee will 

affirmatively further fair housing 

pursuant to §§ 5.151 and 5.152 of this 

title. 

* * * * * 

■ 8. Revise § 91.325(a)(1) to read as 

follows: 

§ 91.325 Certifications. 

(a) * * * 

(1) Affirmatively furthering fair 

housing. Each State is required to 

submit a certification, consistent with 

§§ 5.151 and 5.152 of this title, that it 

will affirmatively further fair housing. 

* * * * * 

■ 9. Revise § 91.425(a)(1)(i) to read as 

follows: 

§ 91.425 Certifications. 

(a) * * * (1) * * * (i) Affirmatively 

furthering fair housing. Each 

Consortium is required to submit a 

certification, consistent with §§ 5.151 

and 5.152 of this title, that it will 

affirmatively further fair housing. 

* * * * * 

PART 92—HOME INVESTMENT 

PARTNERSHIPS PROGRAM 

■ 10. 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. 

■ 11. Amend § 92.508 by revising 

paragraph (a)(7)(i)(C) to read as follows: 

§ 92.508 Recordkeeping. 

(a) * * * 

(7) * * * 

(i) * * * 

(B) Documentation of the actions the 

participating jurisdiction has taken to 

affirmatively further fair housing 

pursuant to §§ 5.151, 5.152, 91.225, 

91.325, and 91.425 of this title. 

* * * * * 

PART 570—COMMUNITY 

DEVELOPMENT BLOCK GRANTS 

■ 12. 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. 

■ 13. Revise § 570.487(b) to read as 

follows: 

§ 570.487 Other applicable laws and 

related program requirements. 

* * * * * 

(b) Affirmatively furthering fair 

housing. The Act requires the state to 

certify to HUD’s satisfaction that it will 

affirmatively further fair housing 

pursuant to §§ 5.151 and 5.152 of this 

title. The Act also requires each unit of 

general local government to certify that 

it will affirmatively further fair housing. 

* * * * * 

■ 14. In § 570.506, revise paragraph 

(g)(1) to read as follows: 

§ 570.506 Records to be maintained. 

* * * * * 

(g) * * * 

(1) Documentation of the actions the 

participating jurisdiction has taken to 

affirmatively further fair housing 

pursuant to §§ 5.151, 5.152, 91.225, 

91.325, and 91.425 of this title. 

■ 15. Revise § 570.601(a)(2) to read as 

follows: 

§ 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 community 

development in a manner to 

affirmatively further the policies of the 

Fair Housing Act. 

* * * * * 

PART 574—HOUSING 

OPPORTUNITIES FOR PERSONS WITH 

AIDS 

■ 16. The authority citation for part 574 

continues to read as follows: 

Authority: 12 U.S.C. 1701x, 1701 x–1; 42 

U.S.C. 3535(d) and 5301–5320. 

■ 17. Revise § 574.530(b) to read as 

follows: 

§ 574.530 Recordkeeping. 

* * * * * 

(b) Documentation of the actions the 

grantee has taken to affirmatively 

further fair housing, pursuant to 

§§ 5.151 and 5.152 of this title. 

* * * * * 

PART 576—EMERGENCY SOLUTIONS 

GRANTS PROGRAM 

■ 18. The authority citation for part 576 

continues to read as follows: 

Authority: 12 U.S.C. 1701x, 1701 x–1; 42 

U.S.C. 11371 et seq., 42 U.S.C. 3535(d). 

■ 19. Amend § 576.500 by revising 

paragraph (s)(1)(ii) to read as follows: 

§ 576.500 Recordkeeping and reporting 

requirements. 

* * * * * 

(s) * * * 

(1) * * * 

(ii) Documentation of the actions that 

the recipient has taken to affirmatively 

further fair housing, pursuant to 

§§ 5.151 and 5.152 of this title. 

* * * * * 

PART 903—PUBLIC HOUSING 

AGENCY PLANS 

■ 20. 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. 

■ 21. Amend § 903.7 by revising 

paragraph (o) to read as follows: 

§ 903.7 What information must a PHA 

provide in the Annual Plan? 

* * * * * 


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(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. 

20000d–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), and title II of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 12101 

et seq.), and other applicable Federal 

civil rights laws. The PHA must also 

certify that it will affirmatively further 

fair housing pursuant to §§ 5.151 and 

5.152 of this title. 

(2) The certification is applicable to 

the 5-Year Plan and the Annual Plan. 

* * * * * 

■ 22. Amend § 903.15 by adding 

paragraph (c) to read as follows: 

§ 903.15 What is the relationship of the 

public housing agency plans to the 

Consolidated Plan and a PHA’s Fair 

Housing Requirements? 

* * * * * 

(c) Fair housing requirements. A PHA 

is obligated to affirmatively further fair 

housing in its operating policies, 

procedures, and capital activities. All 

admission and occupancy policies for 

public housing and Section 8 tenantbased housing programs must comply 

with Fair Housing Act requirements and 

other civil rights laws and regulations 

and with a PHA’s plans to affirmatively 

further fair housing. The PHA may not 

impose any specific income or racial 

quotas for any development or 

developments. 

(1) Nondiscrimination. A PHA must 

carry out its PHA Plan in conformity 

with the nondiscrimination 

requirements in Federal civil rights 

laws, including title VI of the Civil 

Rights Act of 1964, section 504 of the 

Rehabilitation Act of 1973, the 

Americans with Disabilities Act, and the 

Fair Housing Act. A PHA may not 

assign housing to persons in a particular 

section of a community or to a 

development or building based on race, 

color, religion, sex, disability, familial 

status, or national origin for purposes of 

segregating populations. 

(2) Affirmatively furthering fair 

housing. A PHA’s policies should be 

designed to reduce the concentration of 

tenants and other assisted persons by 

race, national origin, and disability. Any 

affirmative steps or incentives a PHA 

plans to take must be stated in the 

admission policy. 

(i) HUD regulations provide that 

PHAs must take steps to affirmatively 

further fair housing. PHA policies 

should include affirmative steps to 

overcome the effects of discrimination 

and the effects of conditions that 

resulted in limiting participation of 

persons because of their race, national 

origin, disability, or other protected 

class. 

(ii) Such affirmative steps may 

include, but are not limited to, 

marketing efforts, use of 

nondiscriminatory tenant selection and 

assignment policies that lead to 

desegregation, additional applicant 

consultation and information, provision 

of additional supportive services and 

amenities to a development (such as 

supportive services that enable an 

individual with a disability to transfer 

from an institutional setting into the 

community), and engagement in 

ongoing coordination with state and 

local disability agencies to provide 

additional community-based housing 

opportunities for individuals with 

disabilities and to connect such 

individuals with supportive services to 

enable an individual with a disability to 

transfer from an institutional setting 

into the community. 

(3) Validity of certification. (i) A 

PHA’s certification under § 903.7(o) will 

be subject to challenge by HUD where 

it appears that a PHA: 

(A) Fails to meet the affirmatively 

furthering fair housing requirements at 

24 CFR 5.150 through 5.152 

(B) Takes action that is materially 

inconsistent with its obligation to 

affirmatively further fair housing; or 

(C) Fails to meet the fair housing, civil 

rights, and affirmatively furthering fair 

housing requirements in 24 CFR 

903.7(o). 

(ii). If HUD challenges the validity of 

a PHA’s certification, HUD will do so in 

writing specifying the deficiencies, and 

will give the PHA an opportunity to 

respond to the particular challenge in 

writing. In responding to the specified 

deficiencies, a PHA must establish, as 

applicable, that it has complied with 

fair housing and civil rights laws and 

regulations, or has remedied violations 

of fair housing and civil rights laws and 

regulations, and has adopted policies 

and undertaken actions to affirmatively 

further fair housing, including, but not 

limited to, providing a full range of 

housing opportunities to applicants and 

tenants in a nondiscriminatory manner. 

In responding to the PHA, HUD may 

accept the PHA’s explanation and 

withdraw the challenge, undertake 

further investigation, or pursue other 

remedies available under law. HUD will 

seek to obtain voluntary corrective 

action consistent with the specified 

deficiencies. In determining whether a 

PHA has complied with its certification, 

HUD will review the PHA’s 

circumstances relevant to the specified 

deficiencies, including characteristics of 

the population served by the PHA; 

characteristics of the PHA’s existing 

housing stock; and decisions, plans, 

goals, priorities, strategies, and actions 

of the PHA, including those designed to 

affirmatively further fair housing. 

■ 23. Amend § 903.23 by revising 

paragraph (f) to read as follows: 

§ 903.23 What is the process by which 

HUD reviews, approves, or disapproves an 

Annual Plan? 

* * * * * 

(f) Recordkeeping. PHAs must 

maintain records reflecting actions to 

affirmatively further fair housing 

pursuant to §§ 5.151, 5.152, and 903.7(o) 

of this title. 

Dated: June 4, 2021. 

Marcia L. Fudge, 

Secretary. 

[FR Doc. 2021–12114 Filed 6–9–21; 8:45 am] 

BILLING CODE 4210–67–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2020–0327; FRL–10024– 

76–Region 1] 

Air Plan Approval; Maine; 

Infrastructure State Implementation 

Plan Requirements for the 2015 Ozone 

Standard and Negative Declaration for 

the Oil and Gas Industry for the 2008 

and 2015 Ozone Standards; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; correction. 

SUMMARY: The Environmental Protection 

Agency (EPA) is correcting a final rule 

that was published in the Federal 

Register on May 13, 2021 which will be 

effective on June 14, 2021. The final rule 

approved a State Implementation Plan 

(SIP) revision submitted by the State of 

Maine which addresses the 

infrastructure requirements of the Clean 

Air Act (CAA or Act) for the 2015 ozone 

National Ambient Air Quality Standards 

(NAAQS); as well as a SIP revision 

containing amendments to Maine’s 06– 

096 CMR Chapter 110, ‘‘Ambient Air 

Quality Standards,’’ and SIP revisions 

submitted by Maine that provide the 

state’s determination, via a negative 

declaration for the 2008 and 2015 ozone 

standards, that there are no facilities 

within its borders subject to EPA’s 2016 

Control Technique Guideline (CTG) for 

the oil and gas industry. This correction 

does not change any final action taken 

by EPA on May 13, 2021; this action 

merely provides further clarification on 

the amendments to the regulatory 


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