A HUD Exchange email arriving at 4:34 pm on Friday, May 18 announced that HUD would be publishing three separate notices in the Federal Register indefinitely suspending implementation of the 2015 Affirmatively Furthering Fair Housing (AFFH) rule and removing its Assessment of Fair Housing (AFH) tool for local governments.
The first, short draft notice stated that HUD would be withdrawing the January 5, 2018 Federal Register notice (see Memo, 1/8) that extended the deadline to 2024 or 2025 for an estimated 856 local governments to submit an AFH. At first glance, the notice might have been interpreted to mean that HUD was reversing course and would implement the AFFH rule. The other two notices make it clear, however, that HUD is in fact reinforcing its resistance to AFFH by indefinitely suspending implementation of the AFFH rule.
The second draft notice is much more substantive than the first. As it claimed in the January 5 notice, HUD asserts that there are “significant deficiencies in the [AFH assessment] Tool impeding completion of meaningful assessments by program participants. HUD therefore is withdrawing the Local Government Assessment Tool because it is inadequate to accomplish its purpose of guiding program participants to produce meaningful AFHs.”
In order to comply with the Paperwork Reduction Act (PRA), over the course of several years the assessment tool went through two public review and comment opportunities, each offering 60-day and 30-day public comment opportunities. HUD acknowledges this thorough process but claims the PRA applies only to information-collection approvals – not withdrawals. Hence, HUD is immediately withdrawing the assessment tool and, by extension, implementation of the AFFH rule for all but 32 jurisdictions, without public comment.
As in the January 5 notice, HUD is basing its drastic action on the experience of only the first 49 AFH submissions. Eighteen of the 49 were accepted by HUD on initial submission and, according to HUD, 32 were ultimately approved. As advocates have noted, the AFFH rule anticipated a learning curve and provided for an iterative process by which HUD would identify problems with a draft AFH that a jurisdiction could fix.
The second draft notice states that HUD identified seven categories of problems and elaborates on those problems. For example, HUD points to inadequate community participation, which HUD blames on the wording of the assessment tool: “…the questions in the Local Government Assessment Tool regarding community participation have resulted in confusion. The questions vaguely incorporate by reference the existing community participation requirements in HUD’s Consolidated Plan regulations….”
Advocates note, however, that jurisdictions should be experts at providing meaningful public participation because it has been a requirement since the Community Development Block Grant (CDBG) program was authorized in 1974 and elaborated on in subsequent CDBG and Consolidated Plan regulations. Nevertheless, over the decades advocates have encountered significant disregard for genuine public participation. In such cases it is appropriate for HUD to decline a recalcitrant jurisdiction’s AFH. The notice itself cites a blatant violation of traditional public participation regulations, “For example, the regulation at 24 CFR 91.105(b)(4) requires a period of not less than 30 calendar days for comment by the community; however, one community posted a draft AFH for public comment on a Friday and submitted the final AFH to HUD the following Monday, after providing only three days for public comment.” Such behavior by a jurisdiction is not a reflection of vague AFH questions.
Another problem HUD refers to is “insufficient use of local data and knowledge” as required by the AFFH rule. HUD claims the failure to use local data “resulted in an inability to address issues in a community that have not manifest themselves in the HUD-provided data.” As an example, HUD points to a jurisdiction that did not identify multiple Superfund locations in their jurisdiction when discussing environmental health issues. HUD blames this omission on the fact that the HUD-provided maps did not include Superfund sites. Identifying Superfund sites would seem to be easy for a jurisdiction to do. It would be equally simple for HUD to request and for a jurisdiction to include in an AFH a discussion of the impact of Superfund sites on people living in racial/ethnic areas of concentrated poverty.
A third problem claimed by HUD relates to the identification of “contributing factors” to “fair housing issues.” The example in the draft notice is of a jurisdiction including three pages of detailed analysis of Home Mortgage Disclosure Act (HMDA) information outlining lending discrimination. The jurisdiction did not take the logical next step of identifying lending discrimination as a “contributing factor.” Again, the iterative process provided for in the AFFH rule could have readily corrected this shortcoming.
The third, four-page draft notice merely reiterates that “HUD has withdrawn the current version of the information collection device used by local government program participants to assess fair housing issues as part of their planning for use of housing and community development block grants.” The AFFH regulation requires local governments to use the local government assessment tool when conducting and submitting an AFH for HUD approval. Without the assessment tool there can be no AFH, and by extension the AFFH and its other components cannot be implemented. The third draft notice reminds jurisdictions that they must revert to the failed Analysis of Impediments (AI) to fair housing process. On a positive note, HUD indicated that the data HUD has developed and made available to jurisdictions will remain available.
HUD is withdrawing the local government assessment tool with the intent to revise it. HUD again requests public comment regarding revising the assessment tool.
More about the July 2015 AFFH rule is on page 7-5 of NLIHC’s 2018 Advocates’ Guide at: https://bit.ly/2G2zU8q
More about the Analysis of Impediments is on page 7-17 of NLIHC’s 2018 Advocates’ Guide at: https://bit.ly/2IckAIB