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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations 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 903.7o, 903.15, and 24 CFR
903.23f 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 PHAs 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 HUDs 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 HUDs 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 HUDs actions were not contrary to the Fair Housing Act because the AI requirement and the 2015 rules 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
rules definitions with ones unmoored from the Fair Housing Act, it withdrew the underpinnings of National Fair Housing Alliance v. Carsons reasoning that HUD was continuing to require compliance with the Acts substantive obligation.
Since some of the 2015 Rules 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

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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, HUDs 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 action 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 14 While 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.

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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 Acts 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, affd 503 F.2d 1236 6th Cir. 1974. HUD believes the 2015 rules 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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