NLIHC Submits Comments on HUD Suspension of AFFH Rule

NLIHC submitted comments regarding HUD effectively suspending without warning the Affirmatively Furthering Fair Housing (AFFH) rule on January 5. Even though the suspension was immediate, the Federal Register notice announcing it invited public comment.

The notice suspended most local governments’ obligation under the AFFH rule to submit an Assessment of Fair Housing (AFH) until after October 31, 2020, and in the vast majority of cases until 2024. The AFFH rule requires local governments to conduct an Assessment of Fair Housing using an “Assessment Tool” to assist them in meeting their obligation to affirmatively further fair housing. The suspension effectively postpones full implementation of the AFFH rule until 2024 for a large majority of jurisdictions (see Memo, 1/8).

NLIHC strenuously opposes the suspension. During this 50th anniversary year of the Fair Housing Act, instead of retreating, HUD should be moving forward to expedite efforts to reduce segregation and foster greater housing opportunity for people in protected classes. HUD’s decision is a serious loss for fair housing and puts the promise of making every neighborhood a community of opportunity further out of reach. NLIHC called on HUD to reverse its decision, withdraw the notice, and move ahead with implementation and enforcement of the Affirmatively Furthering Fair Housing rule. 

HUD rationalized its abrupt suspension by citing issues with some of the 49 initial AFH submissions. A mere 17 were not “accepted” upon initial submission, nine of which were ultimately accepted.

HUD indicated in the Federal Register notice that program participants need additional technical assistance in drafting AFHs that have clearer AFFH goals, metrics, and milestones. NLIHC commented that rather than taking the drastic action of suspending the entire AFFH rule until 2024 for the vast majority of program participants, HUD should have accelerated and augmented its technical assistance. In addition, HUD should have exercised a degree of patience with the small first and second cohorts of AFH submissions, learned from their experiences, and prepared for the major cohort of submissions originally scheduled for 2019.

To the extent there was a need for more time to adjust to the new Assessment Tool, HUD should have consulted stakeholders instead of halting implementation without warning. HUD’s precipitous action is inconsistent with the long and thorough manner in which the AFFH rule and the AFH Assessment Tool were promulgated and enacted from 2010 through January 13, 2017 in accordance with the Administrative Procedure Act and the Paperwork Reduction Act. By effectively suspending the AFFH rule without warning, HUD seems to be evading these laws.

The suspension aligns with HUD’s recent attempt to suspend the Small Area Fair Market Rent (FMR) rule, which was enjoined by a court as violating the Administrative Procedure Act. The district court found that HUD should have provided proper public notice and opportunity for comment related to the Small Area FMR rule suspension before proceeding. 

NLIHC’s comment letter is at: