Affirmatively Furthering Fair Housing Revisions

<RULE> DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT <CFR>24 CFR Parts 5, 91, 92, 570, 574, 576, and 903</CFR> <DEPDOC>[Docket No. FR-6519-I-01]</DEPDOC> <RIN>RIN 2529-AB08</RIN> <SUBJECT>Affirmatively Furthering Fair Housing Revisions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the Secretary, U.S. Department of Housing and Urban Development (HUD). <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule revises HUD's regulation governing the Fair Housing Act's mandate that the Secretary administer HUD's program and activities in a manner that affirmatively furthers fair housing. This interim final rule returns to the original understanding of what the statutory AFFH certification was prior to 1994—a general commitment that grantees will take active steps to promote fair housing. Grantee AFFH certifications will be deemed sufficient provided they took any action during the relevant period rationally related to promoting fair housing, such as helping eliminate housing discrimination. This interim final rule does not, however, reinstate the obligation to conduct an Analysis of Impediments or mandate any specific fair housing planning mechanism; program participants must continue to affirmatively further fair housing as and to the extent required by the Fair Housing Act. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> April 2, 2025. <E T="03">Comment due date:</E> May 2, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are invited to submit comments regarding this rule. All submissions must refer to the docket number and title. There are two methods for submitting public comments. 1. <E T="03">Electronic Submission of Comments.</E> Interested persons may submit comments electronically through the Federal eRulemaking Portal at <E T="03">http://www.regulations.gov.</E> 2. <E T="03">Submission of Comments by Mail.</E> 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. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Andrew Hughes, Chief of Staff, or Brian Miller, Acting General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; telephone number 202-402-2244 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit <E T="03">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">History of AFFH Rulemaking</HD> In 1994, HUD promulgated a rule dictating that a grantee would fulfill its AFFH obligation by conducting an analysis of “impediments to fair housing choice within its jurisdiction” and “taking appropriate actions to overcome the effects of any impediments.”  <SU>1</SU> <FTREF/> In 1996, HUD issued a 170-page guidance document titled, “HUD Fair Housing Planning Gude” to explain further the meaning of the four-word phrase “affirmatively further fair housing.”  <FTNT> <SU>1</SU>  See <E T="03">https://www.federalregister.gov/documents/1994/08/05/94-18705/consolidated-submission-for-community-planning-and-development-program.</E> </FTNT> On July 16, 2015, at 80 FR 42357, HUD published in the <E T="04">Federal Register</E> HUD's Affirmatively Furthering Fair Housing (AFFH) final rule. The 2015 final rule required HUD program participants to undertake an expansive new approach for planning for fair housing outcomes consistent with the Obama Administration's vision of centralized direction of community planning, purporting to act under the statutory obligation to affirmatively further fair housing under the Fair Housing Act, 42 U.S.C. 3608. Ostensibly to assist HUD program participants in meeting this obligation, the 2015 final rule required program participants to conduct an Assessment of Fair Housing (“AFH”) using an “Assessment Tool.” HUD's 2015 final rule provided for a staggered AFH submission deadline for its program participants. HUD issued a <E T="04">Federal Register</E> notice extending those deadlines for consolidated plan program participants on January 5, 2018 (83 FR 683). HUD subsequently published three <E T="04">Federal Register</E> notices on May 23, 2018, one of which withdrew the Assessment Tool for Local Governments, the only HUD-provided Assessment Tool then available for program participants to use when conducting an AFH (83 FR 23922). As explained in a second <E T="04">Federal Register</E> notice published the same day, HUD directed all program participants who had not yet completed an AFH that they would continue to be required to conduct an “Analysis of Impediments” (AI) under previously issued sub-regulatory guidance (83 FR 23927). The third <E T="04">Federal Register</E> notice withdrew the notice extending the submission deadline for an Assessment of Fair Housing (AFH) by local government consolidated plan program participants (83 FR 23928). HUD published a proposed rule on January 14, 2020 (85 FR 2041), to repeal and replace the 2015 final rule. On August 7, 2020, at 85 FR 47899, HUD withdrew that proposed rule and instead promulgated a final rule (Preserving Community and Neighborhood Choice (“PCNC”)), which repealed the 2015 final rule. The 2020 PCNC final rule thus eliminated substantial regulatory burdens on program participants and simplified the definition of the AFFH obligation to which funding recipients must certify. On June 10, 2021 (86 FR 30779), HUD withdrew the 2020 PCNC final rule via issuance of an interim final rule. The 2021 interim final rule restored some elements of the 2015 final rule. Elements of the 2015 final rule related to the creation and submission of Assessments of Fair Housing that were removed by the PCNC final rule were not restored by the 2021 interim final rule, but the 2021 IFR did reinstate the requirement to certify that participants are fulfilling their obligation to AFFH consistent with the definition of AFFH restored by the 2021 rule. Finally, on February 9, 2023, HUD published a proposed rule (88 FR 8516), incorporating parts of, and expanding upon, the 2021 interim final rule, including elements of the 2015 final rule (but not the AFH). That proposed rule was withdrawn on January 16, 2025 (90 FR 4686). Thus, the rule currently in effect is the 2021 interim final rule published on June 10, 2021. <HD SOURCE="HD2">Justification for This Interim Final Rule</HD> Thirty years of expansive back and forth rulemaking over vague statutory directives is the epitome of regulatory overreach. HUD's 2020 PCNC final rule, while taking into account a number of considerations, as detailed in the notice thereof and incorporated herein, fairly targeted and reined in this overreach. Less effort and money spent across thousands of state and local jurisdictions attempting to validate community planning theories can mean more affordable and better housing for Americans. This interim final rule follows the directive of, and is consistent with, Executive Order 14192 (Unleashing Prosperity Through Deregulation). This interim final rule is narrowly focused to meet the urgent need to reset the tangle of rulemaking concerning AFFH, which promotes confusion and creates enormous costs that detract from the ability of thousands of state and local jurisdictions to provide decent, safe and affordable housing. It is relevant that in the past 30 years, no notable enforcement action by HUD has been based solely upon the failure of a local jurisdiction to meet AFFH obligations. <HD SOURCE="HD1">III. This Interim Final Rule</HD> This interim final rule repeals the 2021 interim final rule, including any parts of the 2015 AFFH Rule incorporated therein, and the 1994 AI requirements where they appear in regulation or guidance. Thus, it returns to the original understanding of what the statutory AFFH certification was prior to 1994—a general commitment that grantees will take active steps to promote fair housing. Grantee AFFH certifications will be deemed sufficient provided they took any action during the relevant period rationally related to promoting fair housing, such as helping to eliminate housing discrimination. In issuing this interim rule, HUD has reconsidered the need for §§ 91.205(b)(2) and 91.305(b)(2). These paragraphs require that local and state governments, respectively, compare whether the needs of any racial or ethnic group are disproportionately greater than the needs of the categories enumerated by §§ 91.205(b)(1) and 91.305(b)(1). Removing these requirements is consistent with the administration's view that under the Fair Housing Act HUD should ensure against housing discrimination based on all protected classes and not provide preferences based on racial or ethnic characteristics. Moreover, removing these requirements gives local communities maximum flexibility in designing and implementing sound policies responsive to unique local needs, and eliminates overly burdensome, intrusive and inconsistent reporting and monitoring requirements. This interim final rule also makes conforming amendments to the certifications in the relevant HUD program regulations at 24 CFR 91.225, 91.325, 91.425, 570.487, and 903.7. Amendments to 24 CFR parts 92, 570, 574, and 576 include updated cross-references and clarification of program participants in the HOME, Community Development Block Grant (CDBG), Housing Opportunities for Persons With AIDS (HOPWA), and Emer ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━