HUD’s Interim Final Rule on Affirmatively Furthering Fair Housing (AFFH) was published in the Federal Register on June 10. The rule will restore the statutory definition of AFFH and some certifications that were removed from the 2015 AFFH rule by the previous administration (see Memo, 07/27/2020). The new rule will go into effect on July 31. The rule does not reinstate the 2015 rule’s procedural provisions that governed how HUD grantees conducted fair housing planning and how HUD reviews their planning work. The new rule does not require any specific fair housing planning process, but instead requires grantees to certify they are meeting the Fair Housing Act’s AFFH obligation. HUD plans to provide technical assistance for grantees that want help with fair housing planning to support certifications.
This publication of the Interim Final Rule was timed to take place before a significant number of program participants (e.g., CDBG grantees) must certify compliance and file certain program planning documents with HUD by August 16. The rule will require HUD grantees to certify that they will affirmatively further fair housing, to be defined as “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with racially balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing.” The Interim Final Rule restores most of the “meaningful action” definition, which was removed by the previous administration’s “Preserving Community and Neighborhood Choice” rule.
When the rule was published, HUD also returned technical assistance materials for voluntary fair housing planning by HUD grantees to its AFFH site. While HUD does not require grantees to participate in the fair housing planning process, the department strongly encourages grantees to engage in familiar fair housing processes such as continuing to implement a completed Analysis of Impediments (AI) or an Assessment of Fair Housing (AFH); update an existing AI or AFH; or conduct a new AI or AFH. The AFFH Data and Mapping Tool (AFFH-T) is a publicly available, interactive tool that provides access to HUD data that can be used to support fair housing planning and assess and analyze fair housing issues in jurisdictions.
A 30-day public comment period opened on June 10, and HUD will consider changes before the rules effective date on July 31 based on the comments it receives. If you would like to make comments, visit: regulations.gov
HUD Secretary Marcia Fudge stated in recent article that the department will issue a Notice of Proposed Rulemaking (NPRM) to create a new framework for grantees to achieve fair housing outcomes. “The publication of this interim rule is a significant first step in HUD’s efforts to fully enforce our duties under the Fair Housing Act. Our department is embarking on a process to design an additional, comprehensive rule that gives communities further tools and guidance. We will gather input from a wide range of sources — including civil rights organizations, elected officials, federal agencies, housing providers, policymakers, and members of the public. Once that process is complete, we plan to issue a final rule that responds to their valuable advice and provides clarity for all our stakeholders.”
This Interim Final Rule is a strong first step. NLIHC anticipates that the administration will do more to ensure that grantees are meeting the obligation in the Fair Housing Act to affirmatively further fair housing. We look forward to engaging with HUD staff in this process.
Read HUD’s Interim Final Rule on “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” in the Federal Register at: https://bit.ly/3gq4Pjp
An easy-to-read version can be found at: https://bit.ly/2ShOANv
Read HUD’s Press release on the Interim Final Rule at: https://bit.ly/3cz0tW6
More information about AFFH is on pages 7-14 and 7-17 of NLIHC’s 2021 Advocates’ Guide.