AGENCY:

Office of Fair Housing, HUD.

ACTION:

Final rule.

SUMMARY:

HUD grantees are generally required to certify that they will “affirmatively further fair housing” (AFFH) through HUD's implementation of the 1968 Fair Housing Act and other applicable statutes. For years after this certification was first required, it was merely part of a general commitment to use the funds in good faith and accompanied similar certifications not to violate various civil rights statutes. Over time however, HUD began to use this AFFH certification as a vehicle to force states and localities to change zoning and other land use laws. This was done via a series of regulations and guidance documents culminating with the 2015 AFFH rule. This approach is not required by applicable statutes, which give HUD considerable discretion in determining what “affirmatively furthering fair housing” means, and it is also at odds with both federalism principles and specific statutes protecting local control over housing policy. For example, Congress specifically barred HUD from using funding to force grantees to change any public policy, regulation, or law. HUD has reexamined the 2015 AFFH rule and the definition of AFFH. In the new rule, HUD repeals the 2015 AFFH rule and its related accretions. The new rule returns to the original understanding of what the AFFH certification was for the first eleven years of its existence: AFFH certifications will be deemed sufficient provided grantees took affirmative steps to further fair housing policy during the relevant period.

DATES:

Effective date: September 8, 2020.

FOR FURTHER INFORMATION CONTACT:

Andrew Hughes, Chief of Staff, or Andrew McCall, Deputy Chief of Staff, U.S. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410, telephone number 202-402-5955 (this is not a toll-free number). Persons with hearing or speech challenges may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

The 1968 Fair Housing Act requires that agencies administering housing-related programs do so “in a manner affirmatively to further the purposes” of the Act.^[1] Similarly, HUD grantees are generally required to certify that they will “affirmatively further fair housing.” ^[2]

This phrase is not defined in statute. Until 1994, HUD did not define it by regulation. It was simply among a series of certifications designed to ensure that the funds were generally used as intended and consistent with civil rights law. Since then, the obligations surrounding the certification have expanded significantly.

II. The Evolution of the AFFH Obligation

In 1994, President Clinton signed an Executive Order directing HUD to issue AFFH regulations. Among other things, the regulations were to “describe a method to identify impediments in programs or activities that restrict fair housing choice.” ^[3] The same year, HUD promulgated a rule dictating that a grantee would fulfill its AFFH obligation by conducting an analysis of “impediments to fair housing choice within its jurisdiction” and “taking appropriate actions to overcome the effects of any impediments.” ^[4] Recipients were to gather data and keep written records of their analyses. They were encouraged to communicate with the public about the process, but were not required to submit materials to HUD beyond a summary of the Analysis of Impediments (AI).^[5] In 1996, HUD issued a 170-page guidance document to explain further the meaning of the four-word phrase “affirmatively further fair housing.” ^[6]

Once in place, the AI process became a vehicle for interest groups and HUD to impose even greater and more controversial obligations on state and local grantees. In 2006, a housing organization sued Westchester County under the Federal False Claims Act on the theory that the AFFH certification the County made to obtain funding was false.^[7] Meritorious False Claims Act cases are typically taken on by the government with the original litigant sharing in any award. In fact of the 4,294 cases filed by the end of 2003, DOJ declined to intervene in 2,653 cases (62%); the United States intervened (or the cases were otherwise pursued) in 750 cases, and the remainder (891 cases) are still under investigation.^[8] After the change in administrations in 2009, however, HUD decided to intervene. HUD negotiated a settlement forcing the County to change its zoning laws and to pass legislation requiring landlords to accept Section 8 tenants, both highly controversial propositions never authorized by law.^[9]

Following that expansion of requirements imposed under the guise of the AFFH certification, HUD promulgated an even more aggressive AFFH rule finalized in 2015. The 2015 rule, for the first time, provided a detailed definition of AFFH and provided a new process called an Assessment of Fair Housing (AFH), effectively replacing AI. The regulation specifically required a detailed analysis of the grantee jurisdiction's “zoning and land use” laws.^[10] Those were not the only local matters targeted. The regulation noted that fair housing issues “may arise from such factors as . . . public services that may be offered in connection with housing (e.g., water, sanitation), and a host of other issues.^[11] Its accompanying assessment tool forced Public Housing Authority grantees to analyze and consider data and policies beyond their jurisdictional control and typical subject-matter expertise.^[12] For example, the rule required identifying disparities in “access to public transportation, quality schools and jobs . . . [and] environmental health hazards” and “programs, policies, or funding mechanisms that affect disparities” to such access. In some cases, grantees were required to gather data going back to the 1990s.^[13]

The process for grantees was also overly burdensome and costly. The number of questions, the open-ended nature of many questions, and the lack of prioritization between questions made the planning process both inflexible and difficult to complete. Unsurprisingly, the rule required significant resources from grantees and its complexity and demands resulted in a high failure rate for jurisdictions to gain approval for their AFH in the first year of AFH submission. Grantees complained that it was extremely resource-intensive and complicated, placing a strain on limited budgets.^[14] Pursuant to the 2015 AFFH rule, HUD requested 64 full time staff at a cost of approximately $9 million merely to implement the new AFH process, with a total cost estimate to HUD and HUD grantees ranging anywhere from $15 million to $51.4 million annually.^[15]

The vast reach of the 2015 rule was well understood within the housing community. At a livestreamed conference, just weeks before it was unveiled, speakers discussed how AFFH would radically remake American suburbs and localities, even though the rule “sounds very obscure.” ^[16] One participant remarked: “Perhaps it's important to keep it sounding obscure, in order to get it through. Sometimes obscurity is the best political strategy.” ^[17]

Critics, including many in Congress, criticized the 2015 AFFH rule as an assault on local decision making. Senators Lee, Rubio and Enzi offered an amendment to block the rule that was supported by 37 Senators: “Every American should be free to choose where to live, and every community should be free to zone its neighborhoods and compete for new residents according to its distinct values.” We “don't need a National Zoning Board. Washington should let Americans `govern local.' ” ^[18] Similar bills passed in the House.^[19]

Under President Trump, HUD began to change course. In 2018, HUD withdrew the AFH assessment tool after a review of early submissions found it unduly burdensome and unworkable.^[20] In January 2020, HUD proposed a revised AFFH rule.^[21] That proposed rule took steps to reduce federal control of local housing decisions and lessen the burden of data requirements imposed on local governments.^[22] However, when the President reviewed the proposed rule, he expressed concern that the HUD approach did not go far enough on either prong. For example, grantee jurisdictions were still presented with a HUD list of “inherent barriers” to overcome, twelve of which directly interfered with local land development decisions.^[23] Grantees were also required to submit a plan detailing how they would overcome at least three obstacles or achieve three fair housing goals which resulted in an estimated annual paperwork burden of $13 million.^[24]

The President therefore asked HUD to reconsider the rule to see whether HUD could do more, consistent with the AFFH obligation and other legal requirements, to empower local communities and to reduce the regulatory burden of providing unnecessary data to HUD. After review, and based on prior internal discussions, HUD produced the current rule.

III. HUD's New Approach

“HUD possesses broad discretionary powers to develop, award, and administer its grants and to decide the degree to which they can be shaped to help achieve Title VIII's goals.” ^[25] AFFH is a vague, undefined term that could be open to several different plausible meanings. HUD's interpretation will be entitled to deference as long as it is reasonable.^[26]

The Definition of “Fair Housing”

It is imperative to note that the long-standing debate seeking to define “Fair Housing” has spanned the political spectrum. Senator Mondale, the chief sponsor of the Fair Housing Act (FHA), unambiguously acknowledged the limited scope of the concept of fair housing. He “made absolutely clear that Title VIII's policy to `provide . . . for fair housing' means `the elimination of discrimination in the sale or rental of housing. That is all it could possibly mean.' ” ^[27] Senator Mondale thus defined fair housing as simply housing that is free of discrimination. In this definition, housing is “fair” if anyone who can afford it faces no discrimination-based barriers to purchasing it. As the court in NAACP observed, “the law's supporters saw the ending of discrimination as a means toward truly opening the nation's housing stock to persons of every race and creed.” ^[28] They believed that “[d]iscrimination in the sale and rental of housing has been the root cause of the widespread patterns of de facto segregation.” Thus, by ensuring that housing is free of discrimination, the FHA would establish “a policy of dispersal through open housing” to “the point where the supply of genuinely open housing increases.” ^[29]

In 1971, President Richard Nixon stated, “[t]he very fact that so much progress is being made, however, has sharpened the focus on what has come to be called `fair housing'—a term employed, but not defined, in the Civil Rights Act of 1968, and to which many persons and groups have ascribed their own often widely varied meanings.” ^[30]

In 1983, President Ronald Reagan stated, “[f]airness is the foundation of our way of life and reflects the best of our traditional American values. Invidious, discriminatory housing practices undermine the strength and vitality of America and her people.” ^[31]

The FHA prohibited discrimination based on race, color, religion, national origin or sex, but Congress since expanded it to prohibit discrimination on the basis of handicap and familial status.^[32] Congress also broadened national housing policy grants administered by HUD, requiring AFFH certifications, to include goals such as a “decent, safe, and sanitary housing for every American” and increasing the supply of “affordable housing.” ^[33] Accordingly, HUD defines “fair housing” to encompass non-discrimination as well as these goals.

The Definition of “Affirmatively Further”

By statute, grantees must “affirmatively further” fair housing. In interpreting this phrase, HUD is guided by the “Ordinary-Meaning Canon” of statutory interpretation which states that “words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” ^[34] Given that the context for the phrase “affirmatively further” in the Fair Housing Act does not bear a technical sense, the words are assigned their generally-understood meanings.^[35] In this context, “further” is used as a verb. According to the Merriam-Webster Dictionary, to “further” is “to help forward.” ^[36] In seeking to further an objective, one acts to help it forward. Accordingly, HUD defines “further” to mean “promote.”

Similarly, Ballentine's Law Dictionary defines “affirm” verbatim as the following: “[. . .] to confirm or ratify a statement, belief, opinion, decision or judgement . . .” ^[37] The term “affirmative” is defined verbatim as the following: “an answer `yes'; something beyond passive tolerance or acceptance.” ^[38] In the context of the statute, the threshold to act “affirmatively” is met in undertaking an action that confirms adherence to the statute's requirements to “further” fair housing. In the housing context, the quantum of action required promoting fair housing to meet the requirement of “affirmatively” furthering fair housing is not specified in the statute. HUD interprets the phrase to be flexible and unspecified, but to mean generally that the grantee must take an active role rather than be passive.

Accordingly, in this rule, HUD determines that a grantees' AFFH certification will be deemed acceptable if the grantee has taken some active step to promote fair housing. HUD recognizes that jurisdictions may find many ways to advance fair housing that HUD officials cannot predict. This diversity of methods is a good thing that ought to be encouraged. This approach to the definition of “affirmatively furthering fair housing” preserves flexibility for jurisdictions to take action based on the needs, interests, and means of the local community, and respects the proper role and expertise of state and local authorities.

Court Interpretations of AFFH

There is case law that arguably takes a broader view of the obligations surrounding the AFFH requirement. However, the principal precedents were decided pre-1994, in the absence of an administrative interpretation from HUD.^[39] The statutory phrase AFFH is concededly ambiguous.^[40] Accordingly, under Chevron vs. NRDC, HUD retains discretion to formulate a different definition of this ambiguous phrase: ^[41]

The seminal case on the meaning of AFFH is the 1987 First Circuit decision in NAACP v. Secretary of HUD.^[42] It held that “affirmatively furthering” imposes an obligation “to do more than simply refrain from discriminating (and from purposely aiding discrimination by others).” ^[43] The question is how much more.

HUD's rule is consistent with the judicial consensus that AFFH requires more than simply not discriminating. Grantees may not be passive. They must actually promote fair housing for example by fighting overt discrimination. Thus in NAACP, HUD failed in its own AFFH obligation because, among other things, it failed to demand actual fair housing enforcement from the City of Boston.^[44]

The courts making the broadest claims of the AFFH requirement rely on selective quotations from the legislative history. Those decisions rely on legislative history about the FHA aiming to achieve “truly integrated and balanced living patterns” and ending patterns of segregation.^[45] The problem is that the same legislative history makes clear that these were long-term goals to be achieved through the narrow means of eliminating overt housing discrimination (e.g., restrictive covenants).^[46] As the court in NAACP observed, “the law's supporters saw the ending of discrimination as a means toward truly opening the nation's housing stock to persons of every race and creed.” ^[47] They believed that “[d]iscrimination in the sale and rental of housing has been the root cause of the widespread patterns of de facto segregation.” ^[48] The FHA was seen by its authors as only a “first step” in achieving a grander vision.^[49] By ensuring that housing is free of discrimination, the FHA would establish “a policy of dispersal through open housing” to “the point where the supply of genuinely open housing increases.” ^[50] In short, enforcing non-discrimination would produce open housing which in turn would reduce segregated living patterns by ensuring that families regardless of race could live where “where [they] wish . . . and where [they] can afford.” ^[51] Any broader construction of the AFFH obligation is difficult to square with the sponsor Senator Mondale's unambiguous pronouncement that the FHA's policy to “provide . . . for fair housing” means “the elimination of discrimination in the sale or rental of housing. That is all it could possibly mean.” ^[52]

HUD does not subscribe to broader interpretations of AFFH to the extent precedent for them may exist. The case law is clear that “HUD maintains discretion in determining how the agency will fulfill its AFFH obligation.” ^[53] Thus NAACP and its sister cases were all interpreting an ambiguous phrase that the agency would otherwise have some discretion to define. Indeed, those cases were decided years before HUD had formulated a definition by rule.

IV. Justification for the New Approach

Upon review, HUD concludes that there are sound policy reasons for abandoning its prior approach and taking a narrower view of the extent of the obligations surrounding the AFFH certification. These reasons are rooted in the principles of federalism.

Federalism & Preserving Local Control

HUD's revised interpretation better comports both with Congress's explicit intent to protect local decision making. Federal law explicitly prohibits HUD from using grants to interfere in local decision making. 42 U.S.C. 12711, under the heading “Protection of State and local authority” provides:

The Secretary shall not establish any criteria for allocating or denying funds made available under programs administered by the Secretary based on the adoption, continuation, or discontinuation by a jurisdiction of any public policy, regulation, or law that is (1) adopted, continued, or discontinued in accordance with the jurisdiction's duly established authority, and (2) not in violation of any Federal law.^[54]

Other statutes also cut against interpreting the AFFH certification to require an AI or similar assessment of housing barriers. To obtain Community Development Program (CPD) funding, States and localities are required to submit a housing strategy. That strategy must include an assessment of whether regulatory barriers, including “building codes, fees, growth limits, taxes, and zoning, increase housing costs as well as strategies to overcome any negative effects of these policies.” ^[55] Yet the law also independently requires an AFFH certification, which would be redundant if the certification inherently required a housing barriers analysis.^[56]

It is notable that even as Congress required jurisdictions to analyze housing barriers, it still acted unambiguously to protect local control. The law explicitly prohibits HUD from denying CPD funds based on a jurisdiction's failure to alter any of the regulatory barriers it identified in its housing strategy.^[57]

HUD's amended AFFH rule gives local communities maximum flexibility in designing and implementing sound policies responsive to unique local needs, and eliminates overly burdensome, intrusive and inconsistent reporting and monitoring requirements. The amended rule is consistent with relevant legislative enactments. In other instances, Congress has shown that it is perfectly capable of imposing strict reporting and monitoring requirements on grantees when it deems such requirements appropriate.^[58] Yet Congress has not imposed such detailed monitoring and reporting requirements in connection with grantees' AFFH obligations. Therefore, the agency exercises its discretion and declines to impose detailed monitoring or reporting requirements by regulation.^[59]

Furthermore, the Supreme Court has specifically held that the Fair Housing Act “is not an instrument to force housing authorities to reorder their priorities.” ^[60] Indeed, the Fair Housing Act “does not decree a particular vision of urban development.” ^[61] In short, the prescriptive nature of the prior rule was in tension with Congress's intent and the current legal landscape, which places trust in local jurisdictions to make the best decisions for themselves, within the broad confines of the Fair Housing Act's limitations, including its requirement that HUD grantees AFFH.^[62]

The AFFH Rule, as amended, is the most faithful to the text and purpose of the Fair Housing Act. It must be local governments, not HUD, that exercise control of administering local housing policies, including zoning and development policies that are unique to a particular community.

This does not mean HUD will retreat from its fair housing mission. Grantees' failure to take active steps to address discrimination in the rental and sale of housing would be a violation of the AFFH requirement at the most basic level. Moreover, as discussed above, entirely separate from the AFFH certification, Congress required certain CPD grantees, at a minimum, to evaluate potential barriers to affordable housing such as zoning and local land use laws.^[63] CPD grantees cover as many as 1200 states, counties, and cities, so HUD retains authority to pursue analysis of housing barriers through these grant instruments.^[64] In all cases, grantees must retain records sufficient to prove that they are properly discharging their obligations.

Federalism Considerations

HUD's approach in the new rule is also supported by HUD's determination that federal agencies addressing matters that are traditionally within the authority of the States (such as housing) should take a narrow view of the scope of their power. A growing body of scholarship and judicial precedent is raising the alarm that the ballooning administrative state shifts important policy choices from Congress to comparatively unaccountable administrative agencies.^[65]

Recently, discussion of this broad principle has centered on an important concept in Administrative Law known as “the major issues doctrine.” Under this doctrine, judges “presume that Congress does not delegate its authority to settle or amend major social and economic policy decisions.” ^[66] The reason is that a “major policy change should be made by the most democratically accountable process.” ^[67] If an “agency wants to exercise expansive regulatory authority over some major social or regulatory activity . . . an ambiguous grant of statutory authority is not enough.” ^[68] As the Supreme Court has put it, when it comes to delegating authority to federal agencies, Congress “does not one might say, hide elephants in mouseholes.” ^[69] Thus, the Court has held that a regulatory interpretation by an agency is “unreasonable” if it results in “an enormous and transformative expansion in . . . regulatory authority without clear congressional authorization.” ^[70] Indeed, “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy,” the Supreme Court will “typically greet its announcement with a measure of skepticism.” ^[71] Rather, the Court expects that Congress will “speak clearly if it wishes to assign an agency decisions of vast economic and political significance.” ^[72]

In addition, it is states and local jurisdictions that have traditionally regulated zoning and development policy, not the federal government, and courts have readily acknowledged that “States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” ^[73] Indeed, the District of Columbia Circuit has held that federal law “may not be interpreted to reach into areas of State sovereignty unless the language of the federal law compels the intrusion.” ^[74] Thus, “if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” ^[75]

The phrase “affirmatively further fair housing” is vague and unclear. The ordinary meaning of the phrase does not invite a fundamental expansion of HUD regulations to include cumbersome policy, monitoring or reporting requirements that will significantly affect the economy by impacting local zoning and development policies across the nation. Hanging a massively intrusive regulatory structure on such a cryptic, four-word phrase is inconsistent with the bedrock principles of separation of powers.

V. This Final Rule

The rule repeals the 2015 AFH and 1994 AI requirements where they appear in regulation. Thus, it returns to the original understanding of what the statutory AFFH certification was prior to the 1994 regulation: A general commitment that grantees will use the funds to take active steps to promote fair housing. Thus, grantee AFFH certifications will be deemed sufficient provided they took any action during the relevant period rationally related to promoting fair housing, such as helping eliminate housing discrimination.

VI. Notice-and-Comment Does Not Apply

The Administrative Procedure Act exempts from notice-and-comment rulemaking any “matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” ^[76] Because this rule applies only to the AFFH obligation of grantees, it is exempt under the APA.

However, in 1969, the Administrative Conference of the United States (ACUS) urged Congress to amend the APA to remove this exemption. Congress declined. Still, several agencies, including HUD, issued statements of policy that had the effect of voluntarily adopting ACUS's recommendation.^[77] HUD's policy still remains in force, and while this policy can no longer be repealed, the Secretary retains the authority to waive the requirements of 24 CFR 10.1 in individual cases.^[78]

The AFFH rule is particularly well-suited to a waiver from public notice and comment because it has already been the subject of extensive public debate. Over the past several years, HUD has received extensive public feedback about AFFH. Both through the notice-and-comment period in connection with the July 2015 AFFH Rule and the notice-and-comment period that concluded earlier this year, HUD has received tens of thousands of comments covering a wide range of stakeholders, including public housing agencies, other housing providers, organizations representative of housing providers, governmental jurisdictions and agencies, civil rights organizations, tenant and other housing advocacy organizations, and concerned citizens. There has also been a thorough public debate on these issues in print and online. In light of this public engagement, further notice and comment concerning AFFH is unnecessary and would simply be a legal formality without adding substance to the debate.

Accordingly, HUD has waived its policy that would otherwise voluntarily subject the new AFFH rule to notice-and-comment. As required by law, the waiver will be printed in the Federal Register.

VII. Findings and Certifications

Executive Orders 12866 and 13563, Regulatory Planning and Review

Pursuant to Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. In light of the waiver executed by Secretary Carson and the status of this regulation as exempt from notice and comment under 5 U.S.C. 553(a)(2), review of this regulation has been waived under Executive Order 12866 section 6(a)(3)(A).

Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. HUD believes that this final rule would provide maximum flexibility and freedom for HUD grantees to AFFH and is consistent with Executive Order 13563.

Executive Order 13771, Regulatory Costs

Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. This final rule is an Executive Order 13771 deregulatory action. The burden for the lengthy Assessment of Fair Housing (AFH), with its separate community engagement and reporting requirements, would be eliminated under this proposal. Jurisdictions would be able to determine their actions to AFFH based on their capacity and needs, allowing jurisdictions to avoid burdensome requirements beyond their abilities.

The previously approved information collections for the AFFH Local Government and PHA and Assessment Tools (2529-0054 and 2529-0055, respectively) had a total, combined 665,862 burden hours for all respondents. This was due to the extensive nature of the tools and the additional public meeting requirements to complete an AFH. HUD has already temporarily withdrawn the Local Government Assessment Tool, and this final rule makes that removal permanent. By removing these requirements, HUD expects that the AFFH process will result in a significant reduction from the previous process requirements.

The final rule significantly reduces the reporting burden for jurisdictions in the formulation of AFFH strategies, reducing costs by an estimated of no less than $23.7 million per year.

Executive Order 12612, Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of Section 6 of the Executive Order. This rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Environmental Impact

This final rule is a policy document that sets out fair housing and nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because HUD has determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid Office of Management and Budget (OMB) control number. The information collection requirements for Affirmatively Furthering Fair Housing collected have previously been approved by OMB under the Paperwork Reduction Act and assigned OMB control number 2506-0117 (Consolidated Plan, Annual Action Plan & Annual Performance Report).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; approved March 22, 1995) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any Federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of the UMRA.

List of Subjects

24 CFR Part 5

• Administrative practice and procedure
• Aged
• Claims
• Crime
• Government contracts
• Grant programs—housing and community development
• Individuals with disabilities
• Intergovernmental relations
• Loan programs—housing and community development
• Low and moderate income housing
• Mortgage insurance
• Penalties
• Pets
• Public housing
• Rent subsidies
• Reporting and recordkeeping requirements
• Social security
• Unemployment compensation
• Wages

24 CFR Part 91

• Aged; Grant programs—housing and community development; Homeless; Individuals with disabilities; Low and moderate income housing; Reporting and recordkeeping requirements

24 CFR Part 92

• Administrative practice and procedure; Low and moderate income housing; Manufactured homes; Rent subsidies; Reporting and recordkeeping requirements

24 CFR Part 570

• Administrative practice and procedure; American Samoa; Community development block grants; Grant programs—education; Grant programs—housing and community development; Guam; Indians; Loan programs—housing and community development; Low and moderate income housing; Northern Mariana Islands; Pacific Islands Trust Territory; Puerto Rico; Reporting and recordkeeping requirements; Student aid; Virgin Islands

24 CFR Part 574

• Community facilities; Grant programs—housing and community development; Grant programs—social programs; HIV/AIDS; Low- and moderate-income housing; Reporting and recordkeeping requirements

24 CFR Part 576

• Community facilities; Grant programs—housing and community development; Grant programs—social programs; Homeless; Reporting and recordkeeping requirements

24 CFR Part 903

• Administrative practice and procedure; Public housing; Reporting and recordkeeping requirements

Accordingly, for the reasons described in the preamble, HUD amends 24 CFR parts 5, 91, 92, 570, 574, 576, and 903 as follows:

PART 5—GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

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:

3. Revise § 5.151 as follows:

4. Remove §§ 5.152 through 5.168.

PART 91—CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND DEVELOPMENT PROGRAMS

5. The authority citation for part 91 continues to read as follows:

Authority: 42 U.S.C. 3535(d), 3601-19, 5301-5315, 11331-11388, 12701-12711, 12741-12756, and 12901-12912.

6. In § 91.5, revise the introductory paragraph to read as follows.

7. Amend § 91.100 to revise paragraphs (a)(1), (c)(1), and remove (e) to read as follows:

8. Amend § 91.105 by:

a. Revising paragraphs (a)(2)(i) through (iii);

b. Revising (b) introductory text;

c. Revising paragraph (b)(1)(i);

d. Revising paragraphs (b)(2) through (5);

e. Revising paragraph (c);

f. Revising paragraph (e)(1)(i);

g. Removing paragraph (e)(1)(iii);

h. Revising paragraphs (g) through (j); and

i. Removing paragraph (l).

The revisions read as follows:

9. Revise § 91.110 to read as follows:

10. Amend § 91.115 by:

a. Revising paragraph (a)(2)(i) and (ii);

b. Revising paragraph (b);

c. Redesignating paragraph (c)(1)(i) as paragraph (c)(1) and removing paragraph (c)(1)(ii);

d. Revising paragraphs (c)(2) and (3); and

e. Revising paragraphs (f) through (h)

The revisions read as follows:

11. Revise § 91.205(b)(2) to read as follows:

12. Amend § 91.215 by removing paragraph (a)(5).

13. Amend § 91.220 by removing paragraph (k)(1) and redesignating paragraph (k)(2) as paragraph (k).

14. Revise § 91.225(a)(1) to read as follows:

15. Revise § 91.230 to read as follows:

16. Amend § 91.235, by revising paragraphs (c)(1) and (4) to read as follows:

17. Revise § 91.305(b)(2) to read as follows:

18. Amend § 91.315 by removing paragraph (a)(5).

19. Amend § 91.320 by removing paragraph (j)(1) and redesignating paragraph (j)(2) as (j).

20. Revise § 91.325(a)(1) to read as follows:

21. Revise § 91.415 to read as follows:

22. Revise § 91.420(b) to read as follows:

23. Revise § 91.425(a)(1)(i) to read as follows:

24. Amend § 91.505 by removing paragraph (d).

PART 92—HOME INVESTMENT PARTNERSHIPS PROGRAM

25. The authority citation for part 92 continues to read as follows:

Authority: 42 U.S.C. 3535(d), 12 U.S.C. 1701x and 4568.

26. Revise § 92.104 to read as follows:

27. Amend § 92.508 by revising paragraph (a)(7)(i)(C) to read as follows:

PART 570—COMMUNITY DEVELOPMENT BLOCK GRANTS

28. The authority citation for part 570 continues to read as follows:

Authority: 12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 3535(d) and 5301-5320.

29. Amend § 570.3 to revise the introductory text to read as follows:

30. Amend § 570.205 by:

a. Removing paragraph (a)(4)(vii); and,

b. Redesignating paragraph (a)(4)(viii) as (a)(4)(vii) and revise the newly redesignated paragraph.

The revision reads as follows:

31. Amend § 570.441 by:

a. Revising (b) introductory text;

b. Revising paragraphs (b)(2) and (3);

c. Revising the paragraph heading to paragraph (c) and revising paragraph (c)(1);

d. Revising paragraphs (d) and (e); and,

32. Revise § 570.487(b) to read as follows:

33. Amend § 570.490 by revising paragraphs (a)(1) and (b) to read as follows:

34. In § 570.506, revise paragraph (g)(1) to read as follows:

35. Revise § 570.601(a)(2) to read as follows:

PART 574—HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS

36. The authority citation for part 574 continues to read as follows:

Authority: 12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 3535(d) and 5301-5320.

37. In § 574.530. revise paragraph (b) to read as follows:

PART 576—EMERGENCY SOLUTIONS GRANTS PROGRAM

38. The authority citation for part 576 continues to read as follows:

Authority: 12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 11371 et seq., 42 U.S.C. 3535(d).

39. Amend § 576.500 by revising paragraph (s)(1)(ii) to read as follows:

PART 903—PUBLIC HOUSING AGENCY PLANS

40. The authority citation for part 903 continues to read as follows:

Authority: 42 U.S.C. 1437c; 42 U.S.C. 1437c-1; Pub. L. 110-289; 42 U.S.C. 3535d.

41. Amend § 903.7 by revising paragraphs (a)(1)(iii) and (o) to read as follows:

42. Revise § 903.15 to read as follows:

43. Amend § 903.23 by revising paragraph (f) to read as follows:

Footnotes