HUD Issues New Proposed "Affirmatively Furthering Fair Housing" Rule
On February 9, the United States Department of Housing and Urban Development (HUD) published a proposed rule in the Federal Register to implement an obligation to affirmatively further fair housing, as required by the Fair Housing Act. The proposed rule aims to spur HUD program participants to take action in order to ensure members of protected classes have equitable access to affordable housing opportunities, as well as streamline the required fair housing analysis. The proposed rule applies to public housing agencies (PHAs), jurisdictions and insular areas that are required to submit consolidated plans in connection with Community Development Block Grant (CDBG), Emergency Solution Grants (ESG), HOME Investment Partnerships, Housing Opportunities for Persons with AIDS (HOPWA), or Housing Trust Fund (HTF) funding.
Background
In 2015, the Obama administration implemented the Affirmatively Furthering Fair Housing (AFFH) rule. The Trump administration rescinded and replaced AFFH with the “Preserving Neighborhood and Community Choice” (PNCC) rule. In 2021, the Biden administration rescinded and replaced the PNCC rule with “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” in 2021. The 2021 rule restored certain definitions and certifications from the 2015 AFFH rule but did not restore the 2015 rule’s procedural provisions governing how HUD grantees conducted fair housing and reviewed the planning work.
Similarities and Differences From the 2015 AFFH Rule
The proposed rule incorporates much of the framework of the 2015 AFFH rule. Similar to the 2015 AFFH rule, the proposed rule implements the Fair Housing Act’s AFFH mandate by requiring state and local communities as well as public housing agencies to identify and address fair housing issues. Program participants are still required to identify fair housing issues, prioritize the fair housing issues they would focus on overcoming in the next three to five years, and develop the goals they would implement to overcome those fair housing goals.
The proposed rule simplifies the required fair housing analysis, emphasizes goal setting, increases transparency for public review and comment, fosters local commitment to addressing fair housing issues, enhances HUD technical assistances to local communities, and provides mechanisms for regular program evaluation and greater accountability.
Key Takeaways/Requirements of the Proposed Rule
Goal Setting: Implementing Equity Plans
Every five years, program participants must submit an Equity Plan to HUD for review and acceptance. The plan, developed following robust community engagement, would contain their analysis of fair housing issues confronting their communities, goals, strategies to remedy those issues, and a description of community engagement. The proposed rule requires program participants to incorporate the outlined goals and strategies into subsequent planning documents (e.g., Consolidated Plans, Annual Action Plans, and Public Housing Agency Plans).
Program participants will utilize HUD-provided data, local data, and local knowledge to identify and shape the goals in the Equity Plan. Program participants are expected to identify all fair housing issues. However, they are not required to set fair housing goals for categories that do not have identified fair housing issues. The Equity Plan must focus on at minimum, seven areas of core fair housing goal categories. Goal categories include: segregation and integration, racially or ethnically concentrated areas of poverty (R/ECAPs), disparities in access to opportunity, inequitable access to affordable housing and homeownership opportunities, laws, ordinances, policies, practices, and procedures, that impede the provisions of affordable housing in areas of opportunity, including housing for those with disabilities, inequitable distribution of local resources, which may include municipal services and investment in infrastructure, and discrimination or violations of civil rights law or regulations related to housing or access to community assets based on protected classes. Program participants have to answer roughly 60 questions on the aforementioned topics to help shape the creation and prioritization of their fair housing goals.
Program participants must prioritize the identified fair housing issues that they plan to address in the next three to five years. This can include short-and long-term goals. The highest prioritization should be given to fair housing issues that will result in the most effective fair housing goals for achieving material positive change for underserved communities. HUD recognizes that all goals may not be fully achieved during a five-year cycle.
Submission Requirements
When submitting an Equity Plan, a program participant must certify that everything contained within the plan is true and that they will take meaningful action towards goals and affirmatively furthering fair housing. Submission deadlines for consolidated plan program participants vary by how much grant funding a program participant receives, while submission deadlines for PHAs vary by the number of combined public housing and voucher units an agency has.
| PHA Unit Count | First Equity Plan Submission Deadline |
|---|---|
| 50,000 or more |
No later than 24 months after the effective date of the regulation or 365 days before the date for which a new five-year plan is due following the start of the fiscal year that begins on or after Jan. 1, 2024, whichever is earlier |
| 10,000-49,999 |
No later than 365 days prior to the date for which a new five-year plan is due following the start of the fiscal year that begins on or after Jan. 1, 2025 |
|
1,000-9,999 |
No later than 365 days prior to the date for which a five-year plan is due following the start of the fiscal year that begins on or after Jan. 1, 2026 |
|
Less than 1,000 |
No later than 365 days prior to the date for which a new five-year plan is due following the start of the fiscal year that begins on or after Jan. 1, 2027 |
Subsequent plans shall be submitted within a year from the date for which a new consolidated plan or PHA plan is due. HUD will publish and review Equity Plans within 60 days. HUD will accept the Equity Plan within 100 days. The public may submit comments during this process. Acceptance of an Equity Plan does not equate to compliance with AFFH. If HUD rejects an Equity Plan, they will provide a notice with the reasoning for the rejection in writing. The notice will include revision procedures and may be published.
Possible reasons for rejection include: non-compliance with the AFFH rule, violation of civil rights laws, failure to appropriately identify fair housing issues, failure of the plan to result in meaningful changes, plan solely focused on compliance with non-discrimination laws, plan developed without community engagement, the analysis contradicts evidence or data, plan does not contain the required certifications, and failure to identify issues identified during the community engagement process.
Program participants will have no more than 60 days from notice to revise and resubmit the equity plan. HUD will have 75 days from receipt to review the revisions. If the plan is rejected again, the revision process will restart. Program participants may revise their accepted equity plans within 120 days of submission to HUD. Plans must be revised if there is a material change.
Increased Transparency
The proposed rule contains recordkeeping requirements. Program participants must establish and maintain sufficient records to determine their compliance of AFFH. Program participants would be required to conduct and submit annual progress evaluations describing progress toward and/or any needed modifications of each goal in the Equity Plan. The Equity Plans and the annual progress evaluations would be posted online.
Under the proposed rule, members of the public (an individual, association, or other organization) can file complaints with HUD alleging that program participants are not meeting their AFFH commitments or other requirements. HUD will investigate the complaints but aims for voluntary resolutions. Absent voluntary resolution, HUD will issue a Letter of Findings. The Letter will include findings of fact and conclusions of law, a remedy for each violation, a notice of rights and procedures, and a notice for the letter to be reviewed within 30 days. Upon request, the review will take place within 120 days. Absent a request for review, the Letter of Findings will become a formal determination.
If voluntary compliance does not occur, HUD may send a referral to the Department of Justice, initiate an administrative proceeding, initiate debarment, move forward with other applicable proceedings under state or local law, or cut funding.
Fosters Local Commitment: Public Engagement
The proposed rule is intended to empower and require program participants to meaningfully engage with their communities. Program participants must engage with the public prior to and during the development of the Equity Plan. During the development of an Equity Plan, participants must hold at least three public meetings, at various accessible locations and at different times. At least one of these meetings must be held in an underserved community in the program participants jurisdiction and efforts should be made to receive feedback from underserved populations who do not live in underserved neighborhoods. When the equity plan is in effect, program participants must continue to engage with their communities on an annual basis by holding at least two public meetings in various accessible locations at different times. The data and information of fair housing issues should be made available to the public.
Program participants can combine this engagement with other community, resident, or citizen participation required for the purposes of other HUD programs and planning processes. If a program participant opts to do this, the participant must explain the Fair Housing Act’s affirmatively furthering fair housing duty and ensure the engagement regarding the Equity Plan meets all specific criteria set in the AFFH rule. Program participants that are required to have a consolidated plan may combine engagement for the Equity Plan with its applicable citizen participation plan requirements. PHAs may also combine engagement for the Equity Plan with efforts to obtain Resident Advisory Board and community feedback, and address complaints for its PHA Plan.
Public Comment
HUD seeks public comment on this proposed rule and invites all interested parties and members of the public to submit their views, comments, and recommendations for improvement for this proposal by April 10, 2023. Comments may be submitted electronically through www.regulations.gov, or by mail as provided in the proposed rule.