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HUD/FHEO RIN: 2529-AB05 Publication ID: Fall 2021 
Title: Affirmatively Furthering Fair Housing (FR-6250) 
Abstract:

Through this proposed rule, HUD seeks to provide HUD and its program participants with a more effective means to affirmatively further the purposes and policies of the Fair Housing Act. The current procedures for affirmatively furthering fair housing carried out by program participants are not sufficiently effective to fulfill the purposes and policies of the Fair Housing Act. HUD will be seeking public comment on a new proposed rule that is focused on advancing equity and providing access to opportunity for underserved populations in a manner that is more effective in achieving measurable improvements while avoiding unnecessary burden.

 
Agency: Department of Housing and Urban Development(HUD)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 24 CFR 5, 91, 92, 570, 574, 576, and 903     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 42 U.S.C. 3608(e)(5)    42 U.S.C. 5304    42 U.S.C. 12705(b)    42 U.S.C. 1437c–1    42 U.S.C. 3535(d)    42 U.S.C. 3600 to 3620   
Legal Deadline:  None

Statement of Need:

The rule is needed to conform HUD regulations with statutory standards and judicial interpretations of those standards, and to ensure consistency in fair housing certifications across HUD programs. This proposed rule would consider HUD’s AFFH rule published on July 16, 2015 (80 FR 42272) (2015 AFFH rule) but improve upon its framework and impose less regulatory burden.

Summary of the Legal Basis:

Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, (86 FR 7009, January 20, 2021) requires each agency to consider whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs. Further, on January 26, 2021 (86 FR 7487), President Biden issued a Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, which explained that the Federal Government will work with communities to, among other things, end housing discrimination, lift barriers that restrict housing and neighborhood choice, promote diverse and inclusive communities, and secure equal access to housing opportunity for all.

Alternatives:

Alternatives to promulgating this rule involve finalizing the interim rule, Restoring Affirmatively Furthering Fair Housing Definitions and Certifications, without taking further action or repromulgating the 2015 AFFH rule without considering changes that could reduce regulatory burden and enable a more meaningful fair housing planning process. If HUD were to finalize the interim rule without taking further action, there would be inconsistency in fair housing certifications across different jurisdictions, as the interim rule does not require that jurisdictions submit fair housing plans in any particular form, such as an Analysis of Impediments or an Assessment of Fair Housing, as was previously required. If HUD were to repromulgate the 2015 AFFH rule without considering changes, HUD would miss an opportunity to improve upon that rule and reduce the significant regulatory burdens resulting from that rule. HUD believes neither of those options are better than providing for a new certification process that will undergo new public comment.

Anticipated Costs and Benefits:

Executive Order 12866, as amended, requires the agency to provide its best estimate of the combined aggregate costs and benefits of all regulations included in the agency's Regulatory Plan that will be pursued in FY 2022. HUD expects that the neither the total economic costs nor the total efficiency gains will exceed $100 million. HUD grantees are already familiar with the AFFH compliance process as instituted by the 2015 rule and the 2021 interim final rule. Having learned from prior rulemakings, HUD believes that the rule will create the right balance of analysis so that grantees will have the available data necessary to help them in completing any analytical requirements without adding the same level of costs associated with the 2015 rulemaking.

Risks:

Previous iterations of the AFFH rule have resulted in an amount of burden on grantees that made implementation challenging. HUD must balance the use of data and the depth of analysis that is required of differing sized grantees to ensure that grantees can implement the affirmatively furthering fair housing mandate while continuing to fulfill their programmatic requirements. In promulgating this rule, HUD will attempt to secure support from as many stakeholders as possible to ensure maximum compliance with the duty to AFFH.

Timetable:
Action Date FR Cite
NPRM  12/00/2021 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Demetria McCain
Principal Deputy Assistant Secretary for Fair Housing and Equal Opportunity
Department of Housing and Urban Development
Office of Fair Housing and Equal Opportunity
451 Seventh Street,
Washington, DC 20410
Phone:202 402-5188