HUD Interim Rule Reinstates Aspects of Affirmatively Furthering Fair Housing Requirements; Does Not Yet Require Specific Fair Housing Planning

Today, the Department of Housing and Urban Development (HUD) published an interim final rule and request for comments repealing the Trump Administration’s Preserving Community and Neighborhood Choice (PCNC) regulation and reinstating aspects of the 2015 Affirmatively Furthering Fair Housing (AFFH) rule in effect under the Obama Administration. The 2021 AFFH interim final rule reinstates relevant definitions that had been rewritten under PCNC and the certifications that incorporate those definitions, including the requirement that HUD program participants certify “they take meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” The provisions reinstated by the 2021 AFFH interim final rule include only those HUD believes have previously undergone sufficient notice and comment processes.

The interim final rule is intended to:

• Restore the understanding of the AFFH obligation for certain recipients of HUD assistance by reinstating legally supportable definitions;
• Amend program regulations and cross-references and related record-keeping requirements to restore meaningful AFFH certifications relevant to participants in the HOME Investment Partnerships, Community Development Block Grant, Housing Opportunities for Persons With AIDS, and Emergency Solutions Grant programs;
• Explain the relationship of the public housing agency (PHA) plans and consolidated plan with PHAs’ fair housing requirements; and
• Explain how HUD will assist program participants in carrying out their obligations.

Unlike the 2015 AFFH rule, this interim final rule does not set a particular type of fair housing planning requirement for HUD program participants, though it does provide that HUD will offer technical support and other assistance to jurisdictions that intend to undertake an Assessment of Fair Housing (as was required by the 2015 AFFH rule), an Analysis of Impediments (as required prior to the adoption of the 2015 AFFH rule), or other form of fair housing planning. HUD expects many of its program participants will want to engage in voluntary fair housing planning to support their AFFH certifications. To that end, HUD plans to restore the guidance and resources available to program participants for their use in conducting fair housing planning until HUD finalizes new regulations to implement more specific planning requirements under AFFH. This includes the AFFH Rule Guidebook, the Fair Housing Planning Guide, the local government and PHA AFFH Data and Mapping tool, and the Assessment Tool for PHAs and local governments (the state AFFH Data and Mapping tool and Assessment Tool were never finalized).

HUD expects to issue separately a Notice of Proposed Rulemaking (ANPR) addressing other provisions not included in the interim final rule that require the formal notice and comment rulemaking process.  The ANPR will seek to build on and improve the planning process established in the 2015 AFFH rule.

The 2021 AFFH interim final rule will be effective on July 31. However, HUD is inviting comments on the rule so that it may consider public views before the effective date. Comments are due to HUD by July 9. Please send your feedback to Jennifer Schwartz no later than June 25 so that we may consider it for NCSHA’s comment letter.