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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations
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 204100500.
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 204100500.
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 202402
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
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8008778339. 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 2024023413 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 8008778339 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.
36013619 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. 3608e5. 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 1 The term familial status is defined in the Fair Housing Act at 42 U.S.C. 3602k. It includes one or more children who are under the age of 18 years being domiciled with a parent or guardian.
2 Although 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 individuals 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.

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receiving Federal funds, that they will AFFH. See 42 U.S.C. 5304b2, 5306d7B, 12705b15, 1437C
1d16. As described below, Congress enacted these requirements against the background of judicial and administrative construction of the Fair Housing Acts 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 Acts 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 81920. 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 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,3 of 3 Reflecting the era in which it was enacted, the Fair Housing Acts legislative history and early
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