HUD Moves to Reinstate Affirmatively Furthering Fair Housing Rule

The Department of Housing and Urban Development will formally propose a revised version of the Obama-era Affirmatively Furthering Fair Housing (AFFH) rule in the Federal Register tomorrow and seek to have the rule officially go into effect on July 31, 2021.

This 2021 version of the rule will not require local governments to report progress in identifying and addressing affordable housing barriers back to HUD as the Obama-era rule did.

Under the 2015 AFFH rule, as a condition of receiving certain HUD funds, state and local governments and public housing agencies (PHAs) had to work to identify barriers to fair housing choice, ensure that their practices and policies did not promote racial segregation, and complete costly, administratively burdensome Assessment of Fair Housing plans.

For decades, HUD has required recipients of federal financial assistance such as states, local governments, insular areas, and PHAs to engage in fair housing planning. Such planning has previously consisted of the Analysis of Impediments to Fair Housing Choice and the Assessment of Fair Housing and was done in connection with other types of planning required by program requirements, such as the consolidated plan, annual action plan, and PHA plan. The Trump administration repealed the AFFH rule as well as the Analysis of Impediments, and replaced it with the 2020 Preserving Communities and Neighborhood Choice rule.

HUD’s 2021 Interim Final Rule (IFR), “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications,” requires program participants to submit certifications that they will affirmatively further fair housing in connection with their consolidated plans, annual action plans, and PHA plans. In order to support these certifications, the IFR creates a voluntary fair housing planning process for which HUD will provide technical assistance and support.

The IFR also rescinds the 2020 Preserving Communities and Neighborhood Choice rule. HUD says the 2020 rule was causing funding recipients to certify “compliance” with a regulatory definition that is not a reasonable construction of the Fair Housing Act’s mandate to affirmatively further fair housing.

The IFR does not require program participants to undertake any specific type of fair housing planning to support their certifications, and commits HUD to providing technical assistance to those that wish to undertake Assessments of Fair Housing (AFHs), Analyses of Impediments to Fair Housing Choice (AIs), or other forms of fair housing planning. HUD is providing resources to assist program participants.

HUD is accepting comments on this IFR and NAHB intends to weigh in.