HUD wants the same four paragraphs out of its civil rights rules that Treasury deleted a week ago, and it is reopening a comment period that will only accept comments on the new part
The January proposal was about the Fair Housing Act. This one is about the money.
HUD filed a supplemental proposal on Friday morning that leaves its January rulemaking on the Fair Housing Act disparate impact regulation where it stood, and opens a second front on a different part of the code entirely: 24 CFR part 1, the regulations implementing Title VI of the Civil Rights Act of 1964 for programmes that take HUD funding. Four paragraphs of section 1.4 would go or be edited.
Anyone who read this desk a week ago will recognise the list.
The four
Paragraph (b)(2)(i) prohibits a recipient from using criteria or methods of administration that have the effect of subjecting people to discrimination on the ground of race, colour or national origin. HUD proposes to remove it whole and renumber what follows.
Paragraph (b)(3) covers where a recipient puts its housing and facilities, and bars selections made with the purpose or effect of discriminating. Both uses of the phrase "or effect" would come out.
Paragraph (b)(6) requires affirmative action to overcome the effects of prior discrimination, and, in its second half, to overcome the effects of conditions that limited participation even where there was no prior discrimination. HUD proposes to remove the paragraph, arguing that the first half mandates what the Equal Protection Clause only permits and that the second half is unlawful under that clause.
Paragraph (c)(2) reaches a recipient's employment practices even where providing employment is not a primary objective of the federal funding. HUD argues this conflicts with 42 U.S.C. 2000d-3, which limits Title VI action on employment practices to cases where employment is a primary objective, and proposes to remove it. The surviving employment paragraph gets a technical fix: its cross reference to Executive Order 11246 becomes a reference to Executive Order 14173, which revoked it.
Why this one looks familiar
On 31 July the Department of the Treasury filed a final rule that rescinded 31 CFR 22.4(b)(2), struck both uses of "or effect" from 22.4(b)(3), and rescinded 22.4(b)(6) and 22.4(c)(2). Same four paragraphs, same order, different part of the code.
The procedural difference is the whole of the difference. Treasury issued its version as a final rule effective on publication, with no comment period, relying on the Administrative Procedure Act exception for rules relating to grants and benefits. HUD is proposing, and taking comment for 60 days from publication, which the filing sets for 10 August.
There is a catch in the invitation. HUD is reopening the comment period on its January proposed rule to do this, and the document states twice that comments will only be considered if they concern the changes proposed in the supplement. Anyone who wanted a second run at the Fair Housing Act question is not being offered one.
HUD says the change would improve consistency within its own regulations and with the Title VI regulations the Department of Justice revised recently. The document is signed by Scott Turner, the Secretary.
