President Biden Administration
President Biden issued “Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies” on January 26, 2021 to the HUD Secretary instructing the department to examine the effect of the previous administration’s August 7, 2020 final AFFH rule and its repeal of the 2015 AFFH rule (see end of this page for summary of the 2015 rule). The Biden memorandum also directed HUD to take the steps necessary to implement the Fair Housing Act’s requirement to administer its programs in a manner that affirmatively furthers fair housing. NLIHC is urging HUD to withdraw the Trump final rule and reinstating the 2015 AFFH rule or to propose a new AFFH rule.
In the meantime, states and localities must still comply with the obligation to have an Analysis of Impediments to Fair Housing Choice, also known as an AI. Information about the AI is here.
Trump Administration Eliminates AFFH Rule
The Trump Administration abruptly announced on July 32, 2020 that it would issue a final rule that would repeal the 2015 AFFH regulations. The announcement followed President Trump’s recent false Twitter claim that the AFFH rule was having “a devastating impact on these once thriving suburban areas,” would “destroy the suburbs,” and was “not fair to homeowners.” The final rule, “Preserving Community and Housing Choice,” was formally published in the Federal Register on August 7, 2020 and took effect on September 8.
The Administrative Procedure Act (APA) requires any meaningful change to HUD regulations to undergo a 60-day public review and comment. The final rule did not undergo any review and comment. According to the preamble to the final rule, HUD asserted that it was exempt from notice-and-comment rulemaking, citing a flimsy technicality.
The preamble to the final rule stated that after reviewing Secretary Carson’s proposed AFFH rule, “the President expressed concern that the HUD approach did not go far enough,” and “The President therefore asked HUD to reconsider the rule to see whether HUD could do more…to empower local communities and to reduce the regulatory burden of providing unnecessary data to HUD. After review, and based on prior internal discussions, HUD produced the current rule.”
In its final form the “AFFH” rule in essence is reduced to three lines, two of which are in a definition section. One defines “fair housing” to mean “housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible as required under civil rights laws.” The other defines “affirmatively further” to mean “to take any action rationally related to promoting any attribute or attributes of fair housing” (emphasis added). Theoretically, to “affirmatively further fair housing” a city could merely donate one abandoned building in a disinvested neighborhood to a developer to rehabilitate and rent to low-income households, some of whom might use Housing Choice Vouchers to make it affordable. States, local governments, and public housing agencies receiving HUD funds (“program participants”) must still certify that they are affirmatively furthering fair housing. The third line states that such a certification “is sufficient if the program participant takes any action that is rationally related to promoting one or more attributes of fair housing.”
An easy-to-read versions of the final rule is here.
The formal Federal Register version of the final rule is here.
An NLIHC Memo to Members article about the final rule is here.
The Proposed January 14, 2020 AFFH Rule
HUD published a proposed AFFH rule on January 14, 2020 that was not a fair housing rule. It considered housing that might be “affordable” to be the same as housing that is available to people in the Fair Housing Act’s protected classes based on race, color, national origin, sex, familial status, disability, or religion. The proposed rule even deleted the words “segregation” and “discrimination.” HUD proposed substituting a supply-side ideology that misleadingly assumes that an overall increase in the supply of housing will trickle down to become “affordable” housing without any consideration of jurisdictions’ policies and practices on race and other protected classes or on overcoming patterns of housing segregation.
Materials from NLIHC
A two-page summary is here.
An eight-page summary is here.
A thirty-page summary and analysis is here.
NLIHC’s formal comment letter is here.
A statement from Diane Yentel, NLIHC president and CEO is here.
An easy-to-read version of HUD’s proposed rule is here.
The formal Federal Register version of HUD’s proposed rule is here.
The Advanced Notice of Proposed Rule Making, August 16, 2018
HUD published in the Federal Register on August 16, “Affirmatively Furthering Fair Housing: Streamlining and Enhancements,” an Advance Notice of Proposed Rulemaking (ANPR) inviting public comment on amending the Affirmatively Furthering Fair Housing (AFFH) rule.
The opening summary of the ANPR listed five changes that HUD proposed making. HUD wanted to:
- Minimize regulatory burden;
- Create a process that is focused primarily on accomplishing positive results, rather than on performing an analysis of community characteristics;
- Provide for greater local control;
- Encourage actions that lead to greater housing supply; and
- Use HUD resources more efficiently.
The ANPR asked the public to comment on eight sets of questions. Five are discussed in NLIHC’s comprehensive assessment of the ANPR, available here.
NLIHC’s comment letter is here.
The Suspension of the 2015 Final AFFH Rule, January 5, 2018
In a surprise move, HUD published a notice in the Federal Register on January 5, 2018 suspending most local governments’ obligation under the Affirmatively Furthering Fair Housing (AFFH) rule to submit an Assessment of Fair Housing (AFH) well after October 31, 2020, and in most cases after 2025. HUD’s abrupt action was based on its review of the first 49 AFH initial submissions. Seventeen AFHs were not accepted when first submitted. However, the AFFH rule had a provision by which HUD was to indicate the shortcomings an AFH might have and provide jurisdictions chances to fix the shortcomings. HUD claimed that many local governments needed additional time and technical assistance to adjust to the relatively new AFFH process instituted in 2015.
More about the January 5, 2018 suspension is here.
In response to HUD’s action, three advocacy organizations sued HUD. The plaintiffs asserted that HUD violated the Administrative Procedure Act (APA) in three ways:
- HUD failed to provide the required public notice and comment procedures before suspending the AFFH rule's requirement for jurisdictions to submit an AFH.
- HUD acted in an arbitrary and capricious manner because it did not provide a reasoned basis for the suspension.
- HUD abdicated its duty under the Fair Housing Act to ensure that recipients of HUD funds affirmatively further fair housing.
More information about the lawsuit is here.
In addition, NLIHC signed onto an amicus brief.
On May 23, 2018, HUD went a step further, in effect indefinitely suspending implementation of the AFFH rule. HUD did this by withdrawing the January 5, 2018 notice suspending until 2024 the obligation of most jurisdictions to submit an AFH, indicating that HUD would re-write the Assessment Tool required to complete an AFH. Even a swift re-write would push use of the Assessment Tool and obligation to submit an AFH past the previous suspension period of 2024. More information about the indefinite suspension is here.
Although not exclusively about AFFH, on March 5, 2018, HUD proposed major changes to its Mission Statement. A draft statement removed previous references to creating “inclusive and sustainable communities free from discrimination.” The memo was circulated to senior political staff at HUD and sought input about the changes. Advocacy groups across the country immediately objected to the proposed modifications. NLIHC signed on to a letter from the Fair Housing Task Force urging Secretary Carson to not eliminate that phrase. That letter is available here.
Basics About the Final 2015 AFFH Rule
The opening text of the 2015 final AFFH rule declared that the purpose of the AFFH rule was to provide “program participants” (cities, counties, states, and PHAs) “with an effective planning approach to aid them in taking meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.”
In the preamble, HUD stressed that the new AFFH approach did not mandate specific outcomes; rather, it established basic parameters to help guide public sector housing and community development planning and investment decisions. The rule encouraged a more engaged and data-driven approach to assessing fair housing and planning actions. The rule established a standardized fair housing assessment and planning process to give jurisdictions and PHAs a more effective means to affirmatively further the purposes of the Fair Housing Act.
Although affirmatively furthering fair housing has been law since 1968, meaningful regulations to provide jurisdictions and PHAs with guidance on how to comply had not existed. The 1974 law creating CDBG required jurisdictions to certify that they would affirmatively furthering fair housing. Eventually, that certification was defined in CDBG regulations (and later in ConPlan regulations) to mean that the executive of a jurisdiction affirmed that the jurisdiction had an Analysis of Impediments (AI) to housing choice, that the jurisdiction would take appropriate actions to overcome the effects of the impediments, and that the jurisdiction would keep records of its actions.
The key differences the 2015 AFFH rule established, compared to the pre-existing AI system, included:
- The Assessment of Fair Housing (AFH) replaced the AI. There was no formal guidance for preparing an AI. The AFFH rule provided a standardized framework for “program participants” (the generic name given to local governments, states, and PHAs) to use to identify and examine what HUD called “fair housing issues” and the underlying “contributing factors” that cause the fair housing issues.
- HUD provided each program participant data covering not only the local jurisdiction, but also the surrounding region. Program participants were required to consider this data when assessing fair housing.
- HUD would for the first time receive and review AFHs; HUD did not receive or review AIs.
- The fair housing goals and priorities that program participants set in their AFH were to be incorporated into their ConPlans and PHA Plans.
- Public participation was required in the development of the AFH.
- The AFH had to be submitted every five years in sync with a new ConPlan or PHA Plan.
NLIHC’s Outline of the Final AFFH rule is here.
NLIHC Memo to Members article (July 13, 2015) is here.
NLIHC Media Release (July 8, 2015) is here.
Proposed Rule, July 19, 2013
The proposed rule is here.
NLIHC summary of the proposed regulations are here.
NLIHC comment letter is here.
NLIHC’s Memo to Members about the proposed rule is here.
HUD Listening Sessions 2009
HUD announced in the Federal Register on July 13, 2009 its intention to create a proposed rule concerning jurisdictions’ obligation to “affirmatively further fair housing,” commonly abbreviated to AFFH. The public was invited to offer ideas at a HUD “listening session” and via a webcast with call-in capacity. At this informal meeting, HUD sought suggestions on specific topics. At the session’s conclusion officials said the goal is to get a draft regulation to OMB by early September.