The Department of Housing & Urban Development (HUD) is preparing to publish a Notice of Proposed Rulemaking in the Federal Register. The rule will be titled “Affirmatively Furthering Fair Housing (AFFH),” and is designed to meet President Biden’s call to fully enforce the 1968 Fair Housing Act.
The proposed rule implements the Fair Housing Act’s furthering fair housing mandate and streamlines the required fair housing analysis for local communities, states, and public housing agencies, and requires them to set ambitious goals to address fair housing issues facing their communities.
It is designed to spur HUD program participants to take action in order to ensure members of protected classes have equal access to affordable housing opportunities. The proposed rule incorporates much of the framework of the 2015 AFFH rule, which was effective for only a short time before the previous administration ended it, and includes several refinements based on feedback HUD received from a variety of stakeholders.
In particular, the proposed rule is designed to simplify the required fair housing analysis, emphasize goal setting, increase transparency for public review and comment, foster local commitment in addressing fair housing issues, enhance HUD technical assistance to local communities, and provide mechanisms for regular program evaluation and greater accountability.
Under the proposed rule, every five years program participants will submit to HUD for review and acceptance an Equity Plan. That plan would contain the local analysis of fair housing issues confronting the communities, goals, and strategies to remedy those issues. 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. 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 the rule.
It is important to note that the rule does not apply to individual developers or management companies – either for-profit or non-profit.
Timing of Equity Plan Submissions
The proposed rule would require larger, higher-capacity program participants to submit Equity Plans first. Submission deadlines would then be staggered across the different categories of program participants, again based on size as well as their respective program year or fiscal year start dates.
Who Will the Rule Apply to?
The rule will apply to local governments, states, and insular areas participating in and required to submit consolidated plans for the Community Development Block Grant (CDBG) program, the Emergency Solutions Grants (ESG) program, the HOME program, the Housing Trust Fund (HTF), and the Housing Opportunities for Persons with AIDS (HOPWA) program. The rule will also apply to public housing agencies (PHAs) receiving assistance under Section 8 or 9 of the United States Housing Act of 1937.
The comment period for the AFFH proposed rule will end 60 days after the date of publication in the Federal Register – not the publication on HUD’s website. The public may make comments through regulations.gov.
States, localities, and PHAs that will be subject to this rule should review the proposed rule as soon as it is published and comment to HUD on the workability of the proposal.