HUD Restores Affirmatively Furthering Fair Housing Requirement

The U.S. Department of Housing and Urban Development (HUD) published an interim final rule on June 10 to restore the implementation of the Fair Housing Act’s Affirmatively Furthering Fair Housing (AFFH) requirement. The publication provides a robust definition of the duty to affirmatively further fair housing, to which many HUD grantees must certify compliance. Additionally, HUD will provide communities that receive HUD funding with the technical support they need to meet their long-standing fair housing obligations.

In addition to barring housing discrimination, the Fair Housing Act requires HUD and its funding recipients, such as local communities, to also take affirmative steps to remedy fair housing issues such as racially segregated neighborhoods, lack of housing choice, and unequal access to housing-related opportunities. To fulfill this requirement, in 2015, HUD promulgated a rule that compelled each covered funding recipient to undertake a defined fair housing planning process. Funding recipients were required to complete an assessment of fair housing issues, identify fair housing priorities and goals, and then commit to meaningful actions to meet those goals and remedy identified issues, with HUD reviewing each assessment. The last administration suspended the implementation of this rule and eliminated the 2015 rule’s procedural requirements, redefining the regulatory AFFH requirement for communities.

Under the restored AFFH regulatory definition announced on June 10, municipalities and other HUD funding recipients that must regularly certify compliance with the Fair Housing Act’s AFFH requirement will, in doing so, commit to taking steps to remedy their unique fair housing issues. To support compliance with AFFH, HUD will provide a voluntary process that funding recipients can choose to use to identify the fair housing concerns that exist locally and commit to specific steps to remedy them. HUD will provide technical assistance and support to funding recipients that carry out this voluntary fair housing planning process.

This rule is one of the ways in which HUD fulfills its legal mandate under the Fair Housing Act to “affirmatively further” the purposes of the Act. Additionally, it is consistent with President Biden’s January 26 Memorandum, Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, which directed HUD to examine the prior Administration’s fair housing rules and take all steps necessary to implement the Fair Housing Act’s requirement that HUD administer its programs in a manner that affirmatively furthers fair housing. With this action, HUD is rescinding the previous Administration’s rule (entitled “Preserving Neighborhood and Community Choice,” or PCNC) and restoring certain definitions and other selected parts from the 2015 AFFH rule.

The interim final rule will go into effect on July 31, 2021. HUD will take comments for 30 days after publication and may act on them prior to the effective date of the rule.

HUD intends to undertake a separate rulemaking to build upon and further improve the 2015 AFFH rule by instituting a new fair housing planning process and framework that increases efficiency and improves outcomes for communities across the country.

It should be noted that this rule affects cities, counties, and states, and is not a requirement of individual developers or housing operators.