HUD’s Proposed Affirmatively Furthering Fair Housing Rule Clears OIRA

A proposed Affirmatively Furthering Fair Housing (AFFH) rule cleared the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) on December 18. The proposed rule must still go to the Senate Banking, Housing, and Urban Affairs Committee and the House Financial Services Committee for a 15-calendar-day review period before it can be published in the Federal Register. The 15-day period includes days that Congress is not in session. 

AFFH is enshrined in the “Fair Housing Act of 1968,” but no meaningful guidance existed until a final rule was published on July 16, 2015. However, on January 8, 2018, HUD suspended until 2025 the obligation of about 900 of 1,200 jurisdictions to submit an Assessment of Fair Housing (AFH) as required by the AFFH rule. HUD justified the suspension because 18 of the first 49 initial AFH submissions were sent back to jurisdictions for improvements. HUD ultimately accepted 32 AFH submissions. On May 23, 2018, HUD removed the Assessment Tool that the AFFH rule required jurisdictions to use to create an AFH, thereby indefinitely suspending implementation of the AFFH rule.

HUD published in the Federal Register on August 16 an Advance Notice of Proposed Rulemaking (ANPR), “Affirmatively Furthering Fair Housing: Streamlining and Enhancements,” inviting public comment on amending the AFFH rule (see Memo, 8/20/18). The opening summary of the ANPR listed five changes HUD sought to make: minimize regulatory burden; create a process 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. NLIHC prepared a comprehensive assessment of the ANPR and submitted a comment letter in response to the ANPR.

The OIRA “EO 12866 Regulatory Review” page indicating that OIRA concluded its review of the proposed AFFH rule links to HUD’s Fall Regulatory Agenda. The one-paragraph abstract of the proposed rule repeats the five changes sought in the ANPR. When the proposed AFFH rule becomes available, NLIHC will summarize and analyze it and urge advocates to submit comments.

Title VIII of the “Civil Rights Act of 1968” (the “Fair Housing Act”) requires jurisdictions receiving federal funds for housing and urban development activities to affirmatively further fair housing. The Fair Housing Act not only makes it unlawful for jurisdictions to discriminate; the law also requires jurisdictions to take actions that can undo historic patterns of segregation and other types of discrimination, as well as to take actions to promote fair housing choice and to foster inclusive communities. The protected classes of the Fair Housing Act are determined by race, color, national origin, religion, sex, disability, and/or familial status.

Information indicating that OIRA concluded its review of the proposed AFFH rule is on the “EO 12866 Regulatory Review” page at:  Go to the bottom option “Regulatory Review Completed in Last 30 Days” and select Department of Housing and Urban Development.  Click on the link to “RIN 2529-AA97” and from there click on “Fall 2019” to see HUD’s sketch of what was proposed at the time.

More information about AFFH is on pages 7-14, 7-21, and 7-26 of NLIHC’s 2019 Advocates’ Guide.