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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations
154 requiring the assessment of actions in a meaningful way.
In addition, because the AFFH
obligation as intended by Congress and construed by the courts requires efforts to decrease segregation and promote integration, HUD finds it appropriate to once again include those concepts in the definition of AFFH and, in turn, reinstate the definitions for both Segregation and the converse, Integration, from the 2015 rule. See Clients Council v. Pierce, 711 F.2d 1406, 1425 8th Cir. 1983 Congress enacted section 3608e5 to cure the widespread problem of segregation in public housing; see also Resident Advisory Bd. v. Rizzo, 425 F. Supp. 987, 10131019 E.D. Pa. 1976 affd in part, revd in part on other grounds, 564 F.2d 126 3d Cir., cert. denied, 435 U.S. 908
1977 Each case brought under 3608e5 requires a close analysis of the facts peculiar to that case and the city in which the facts have occurred . . . in view of the pattern of racial segregation which prevailed in both private and public housing in Philadelphia, the City of Philadelphia has not, under the facts of this case, met its duty of affirmatively implementing the national policy of fair housing and has violated Title VIII of the Civil Rights Act of 1968.; Otero, 484 F.2d at 1133
34 explaining that . . . the affirmative duty placed on the Secretary of HUD by 3608e5 and through him on other agencies administering federallyassisted housing programs also requires that consideration be given to the impact of proposed public housing programs on the racial concentration in the area in which the proposed housing is to be built..
HUD is also reinstating the definition of Housing Programs Serving Specified Populations in this rule. Such programs include HUD and Federal Housing programs, such as HUDs Supportive Housing for the Elderly, Supportive Housing for Persons with Disabilities, and homeless assistance programs under McKinney-Vento Homeless Assistance Act 42
U.S.C.11301, et seq., and housing designated under section 7 of the United States Housing Act of 1937 42 U.S.C.
1437e that serve specific identified populations and comply with Federal civil rights statutes and regulations. The inclusion of this definition is necessary to assure current and prospective program participants that participation in these specified Federal housing programs does not present a fair housing issue of segregation, provided that such programs are administered to comply with program regulations and applicable civil rights requirements.

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Judicial precedents similarly held that, as a necessary precursor to fulfilling the ultimate obligation of pursuing actions that foster desegregation and avoid perpetuating segregation, the AFFH mandate requires program participants to assess the demographics of discrete geographic areas when conducting an analysis. For example, the Third Circuit found that the AFFH mandate requires obtaining the information necessary to make informed decisions on the effects of site selection or type selection of housing with regard to racial concentration, determining that even within the discretion afforded by the AFFH
mandate, judgment must be informed.
See Shannon, 436 F.2d at 82022.
In light of these judicial precedents, this rule reinstates the definitions of Data and Significant Disparities in Access to Opportunity. In doing so, it restores a reasonable interpretation of precedents holding that the AFFH
obligation requires the consideration of data such as the racial demographics of neighborhoods, other geographic areas, and housing developments, as a necessary precursor to taking meaningful action to promote integration, decrease segregation, undo racially or ethnically concentrated areas of poverty, and overcome significant disparities in access to opportunity. See, e.g., Blackshear Res. Org. v. Housing Auth. of City of Austin, 347 F. Supp.
1138, 1148 W.D. Tex. 1971 holding that both the PHA and HUD were charged with the obligation to AFFH
and their decision failed to consider that policy and must be set aside because HUD had not considered hard, reliable data showing the racial demography of any of these areas despite the readily available data that could have been consulted..
Finally, HUD is including definitions of Protected Characteristic, Protected Class, and Disability. The definition of Disability in this interim final rule, as in the 2015 AFFH Rule, is intended to be consistent with other federal civil rights laws with which program participants must comply, such as Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008.
HUD incorporates by reference the definition of disability under Section 504 and the ADA as interpreted by the Attorney General, see 28 CFR 35.108, for purposes of the affirmatively furthering fair housing obligation under Section 808e5 so as to provide consistency and clarity to HUD program participants, which are all already
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bound by the same definition under those statutes.
In addition to reinstating these definitions, HUD restores the certifications that incorporate these definitions. HUD has sometimes required funding recipients to certify to compliance with certain procedures such as creating an AI that implement the caselaw above and has sometimes required certification to a substantive standard. HUD is not mandating any particular procedure by which program participants must engage in fair housing planning in this interim final rule, but rather is reinstating a meaningful substantive definition of AFFH.
Additionally, HUD interprets its own statutory obligation as requiring it to assist program participants with compliance, and in any event HUDs experience teaches it that such assistance leads to better fair housing outcomes. Through this interim final rule, HUD resumes a process for providing technical assistance to program participants that engage in fair housing planning, including, in particular, the familiar AI and AFH
processes.
HUD anticipates that many program participants may wish to engage in voluntary fair housing planning processes that support their AFFH
certifications. Most program participants have already prepared an AI or AFH, which were required by the regulations that preceded the PCNC
rule, and so HUD anticipates that many program participants may wish to continue to implement or update their AI or AFH to support their AFFH
certifications. Accordingly, HUD will provide technical assistance and other support to program participants that voluntarily engage in the AI or AFH
planning processes. This interim final rule does not require program participants to comply with these processes, but HUD anticipates the continued use of the AI or AFH process are ways program participants may choose to support AFFH certifications while maintaining continuity.
Program participants may also choose to support their certifications and maintain records in other meaningful ways, provided they can appropriately certify that they will AFFH, consistent with the definitions that are restored in this rule. Program participants are encouraged to seek technical assistance from HUDs Office of Fair Housing and Equal Opportunity FHEO regarding any fair housing planning process.
Under its authority regarding a grantees certifications, HUD may review recipients records and documents to confirm the validity of
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