HUD Publishes Proposed Rule on Affirmatively Furthering Fair Housing

On February 9, the U.S. Department of Housing and Urban Development (HUD) published a proposed rule on Affirmatively Furthering Fair Housing (AFFH) through a Notice of Proposed Rulemaking.

Comments on the proposed rule are due by April 10, 2023. CHAPA is preparing comments and will submit a letter on the proposed rule.

According to the Notice of Proposed Rulemaking, HUD proposes to implement the obligation to affirmatively further the purposes and policies of the Fair Housing Act, with respect to certain recipients of HUD funds.

The Fair Housing Act not only prohibits discrimination, but also directs HUD to ensure that the agency and its program participants proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in housing-related opportunities, and foster inclusive communities that are free from discrimination.

The proposed rule would build on the framework of an AFFH rule put in place by the Obama Administration in 2015. The Trump Administration suspended this rule in 2018 and later withdrew the rule in 2020. The Biden Administration partially restored the AFFH rule in 2021 as an interim final rule.

According to HUD, this rule would retain much of the 2015 AFFH Rule's core planning process, with certain improvements such as a more robust community engagement requirement, a streamlined required analysis, greater transparency, and an increased emphasis on goal setting and measuring progress.

The rule also includes mechanisms to hold program participants accountable for achieving positive fair housing outcomes and complying with their obligation to affirmatively further fair housing, modeled after those processes under other Federal civil rights statutes that apply to recipients of Federal financial assistance.

As described in HUD's press release on the proposed rule, it would simplify the required fair housing analysis, emphasize goal-setting, increase transparency for public review and comment, foster local commitment to addressing fair housing issues, enhance HUD technical assistance to local communities, and provide mechanisms for regular program evaluation and greater accountability, among other changes.

Under the proposed rule, program participants every five years would submit to HUD for review and acceptance an Equity Plan. That plan, which must be developed following robust community engagement, would contain their analysis of fair housing issues confronting their communities, goals, and strategies to remedy those issues in concrete ways, and a description of community engagement. The proposed rule would then require program participants to incorporate goals and strategies from their accepted Equity Plans into subsequent planning documents (e.g., Consolidated Plans, Annual Action Plans, and Public Housing Agency Plans).

In addition, program participants would be required to conduct and submit to HUD annual progress evaluations that describe progress toward and/or any needed modifications of each goal in the Equity Plan. Both the Equity Plans and the annual progress evaluations would be posted online. The proposed rule includes provisions that permit members of the public to file complaints with HUD if program participants are not living up to their AFFH commitments and various other provisions that enable HUD to ensure that program participants are held accountable for complying with this rule.

For more information, read Klein Hornig's excellent summary highlighting the similarities and key differences between the proposed rule and the 2015 rule.