Affirmatively Furthering Fair Housing rule (2023)
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The Affirmatively Furthering Fair Housing rule is a significant rule issued by the U.S. Department of Housing and Urban Development (HUD) published February 9, 2023, that would implement the provisions of the Affirmatively Furthering Fair Housing (AFFH) rule, pursuant to the Fair Housing Act.[1]
Timeline
The following timeline details key rulemaking activity:
- April 10, 2023: Comment period closed.[1]
- February 9, 2023: Proposed rule issued and comment period opened.[1]
Background
The Fair Housing Act (FHA), enacted in 1968, aims to ensure fair housing practices across the United States, prohibiting discrimination in the sale, rental, financing, and other housing-related transactions based on race, color, religion, sex, familial status, national origin, or disability. In addition to anti-discrimination measures, the FHA mandates that Department of Housing and Urban Development (HUD) programs actively further its policies, and other federal agencies are directed to cooperate with HUD in this effort. The "affirmatively furthering fair housing" mandate requires actions beyond mere non-discrimination, emphasizing efforts to address historical patterns of segregation and barriers and promoting equal housing opportunities.
Summary of the rule
The following is a summary of the rule from the rule's entry in the Federal Register:
| “ | Through this rulemaking, HUD proposes to implement the obligation to affirmatively further the purposes and policies of the Fair Housing Act, which is title VIII of the Civil Rights Act of 1968, with respect to certain recipients of HUD funds. The Fair Housing Act not only prohibits discrimination, but also directs HUD to ensure that the agency and its program participants will proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in housing-related opportunities, and foster inclusive communities that are free from discrimination. This proposed rule builds on the steps previously taken in HUD's 2015 Affirmatively Furthering Fair Housing (AFFH) final rule to implement the AFFH obligation and ensure that Federal funding is used in a systematic way to further the policies and goals of the Fair Housing Act. This rule proposes to retain much of the 2015 AFFH Rule's core planning process, with certain improvements such as a more robust community engagement requirement, a streamlined required analysis, greater transparency, and an increased emphasis on goal setting and measuring progress. It also includes mechanisms to hold program participants accountable for achieving positive fair housing outcomes and complying with their obligation to affirmatively further fair housing, modeled after those processes under other Federal civil rights statutes that apply to recipients of Federal financial assistance.[2] | ” |
Summary of provisions
The following is a summary of the provisions from the rule's entry in the Federal Register:[1]
| “ | The proposed rule retains much of the framework of the 2015 AFFH Rule. Under the proposed rule, as under the 2015 AFFH Rule, program participants will identify fair housing issues, prioritize the fair housing issues they will focus on overcoming in the next three to five years, and develop the goals they will implement to overcome those fair housing issues. The proposed rule contains refinements based on HUD's experience implementing the 2015 AFFH Rule and input from many stakeholders. It is structured to simplify and provide greater flexibility: regarding the analysis that program participants must perform as part of their Equity Plans (which are a modified version of the Assessments of Fair Housing performed under the 2015 AFFH Rule), to allow more time and energy to be spent on effective goal setting; to provide clarity, direction, and guidance for program participants to promote fair housing choice; to provide more transparency to the public and greater opportunity for public input; and to provide accountability, a mechanism for regular progress evaluation, and a greater set of enforcement options to ensure that program participants are meeting their planning commitments and to provide them the opportunity to revise commitments where circumstances change. The proposed rule will advance these objectives in a manner that is informed by the lessons HUD learned from the implementation of the 2015 AFFH Rule by:
a. Giving underserved communities a greater say in the actions program participants will take to address fair housing issues. When HUD implemented its 2015 AFFH Rule, program participants and community members alike consistently reported to HUD that community engagement (then called community participation) was an extremely effective and important part of identifying fair housing issues and figuring out how best to prioritize and address them. The proposed rule makes that process more inclusive and robust, for example by requiring program participants to consult with a broad range of community members, to hold meetings in diverse settings, ensure that individuals with disabilities and their advocates have equal access to those meetings, and partner with local community-based organizations and stakeholders to engage with protected class groups and underserved communities. The proposed rule empowers broader segments of the community by, for example, requiring program participants to engage with a broad cross-section of the community, which could include advocates, clergy, community organizations, local universities, resident advisory boards, healthcare professionals and other service providers, and fair housing groups. HUD will also make the data HUD provides to program participants publicly available, including maps and other information demonstrating the existence of fair housing issues such as segregated areas, to facilitate public engagement throughout the process. HUD specifically seeks comment below regarding how it can best ensure that community engagement is effective in informing the Equity Plan. The proposed rule also requires program participants to submit, along with their Equity Plans, more information regarding their community engagement efforts than was required by the 2015 AFFH Rule. Additionally, as described further below, the proposed rule allows the public to submit information directly to HUD regarding submitted Equity Plans, providing HUD greater ability to ensure that community engagement requirements are satisfied. HUD also intends to supply more technical assistance for program participants on effective ways to conduct community engagement. b. Streamlining the Equity Plan's required fair housing analysis, while providing easy-to-use data to support that analysis. HUD will help program participants and their communities understand the data HUD provides them. Aided by that data and more comprehensive community engagement, program participants will be empowered to identify key fair housing issues more effectively and efficiently without unnecessary burden. Under HUD's 2015 AFFH Rule, HUD provided program participants with considerable data and then required program participants to conduct extensive data analysis in response to a large number of questions. This data-driven analysis was very useful for identifying fair housing issues such as patterns of segregation, but some program participants, particularly smaller ones that lacked relevant expertise, found it more difficult to complete than HUD had intended. The 2015 AFFH Rule used an Assessment Tool that contained approximately 100 questions program participants were required to answer in a prescribed format, as well as about forty contributing factors that program participants were required to consider for each fair housing issue they identified. Some program participants, working on their own or with technical assistance from HUD, conducted successful fair housing analyses using the Assessment Tool. Other program participants, however, struggled to properly interpret the data provided by HUD, and several program participants retained consultants to perform the bulk of the fair housing analysis for them. In HUD's experience reviewing the fair housing plans submitted pursuant to the 2015 AFFH Rule, the fair housing analyses conducted by program participants themselves or with technical assistance from fair housing groups, universities, or HUD were typically of much better quality than the fair housing analyses prepared for program participants solely by consultants. Put differently, the fair housing plans prepared by program participants themselves typically reflected better analysis that gave greater consideration to local fair housing issues and history rather than more generic approaches taken by consultants that prepared analyses for multiple program participants in different geographic areas of the country. The proposed rule, therefore, reflects improvements on the 2015 AFFH Rule framework and is designed to reduce burden for program participants in conducting the fair housing analysis portion of their Equity Plan and identifying fair housing issues, leaving program participants more time to establish meaningful fair housing goals and making them more likely to conduct their own analyses. Under the proposed rule, program participants will conduct their fair housing analyses to identify fair housing issues by responding to questions in a few broad areas (seven for consolidated plan recipients, five for public housing agencies) that HUD is proposing to constitute the core areas of analysis. While HUD anticipates providing program participants with flexibility on the format of their Equity Plans, HUD will expect program participants to answer all required questions, including those that assess the reasons fair housing issues exist, as in the 2015 AFFH Rule. Under this proposed rule, HUD is considering ways to reduce burden for program participants by, for example, providing the program participant with not only raw data and maps, but is also considering providing technical assistance that helps highlight key takeaways and fair housing issues. HUD will also provide technical assistance on common fair housing issues, potential fair housing goals that could overcome fair housing issues, and additional training on how to identify and prioritize fair housing issues. Finally, HUD will make all program participants' Equity Plans available on a HUD-maintained web page, allowing program participants to review other program participants' Equity Plans that have been accepted by HUD and learn from the experiences of those who already have been through the process. While HUD believes these changes will make it easier for many program participants and their communities to effectively use HUD-provided data, it also understands that the raw data and the AFFH Data & Mapping Tool (AFFH-T) made available under the 2015 AFFH Rule have proven invaluable for researchers and high-capacity program participants, and HUD will continue to make such data available. c. Placing greater focus on fair housing goals. A key difference between the proposed rule and the 2015 AFFH Rule is a much greater focus on HUD's review of program participants' goals that will contribute to positive fair housing outcomes. While the proposed rule sets out questions for program participants to answer, it does not specify the content or length of responses. In some cases, the answer to the question will be relatively clear based on the HUD-provided data and technical assistance, and the program participant will only then need to assess the causes and circumstances that result in fair housing issues. In other instances, program participant may need to do more analysis, including assessing local data, local knowledge, and information obtained through community engagement, in order to sufficiently respond to the question. HUD is making clear here, and will continue to do so with technical assistance and guidance, that the purpose of the questions is not to generate an extensive written analysis of local conditions for its own sake, but to require program participants to give serious consideration to the specific local conditions (such as the existence of segregation, or the lack of housing choice throughout a jurisdiction) that are likely to implicate fair housing issues faced by different protected class groups. Accordingly, HUD's review of program participants' answers to those questions will entail confirming that the program participant did an adequate job of identifying the fair housing issues revealed by the HUD-provided data and by information provided during community engagement. HUD's review of fair housing goals, meanwhile, will entail determining whether the program participant's goals have been designed and can be reasonably expected to overcome the fair housing issues that the program participant has identified and prioritized for action in the next three to five years. Stated plainly, HUD's review will focus primarily on whether the Equity Plan appropriately identifies the relevant fair housing issues and establishes fair housing goals that can realistically be expected to address them and produce meaningful fair housing outcomes for various protected class groups in the program participant's underserved communities; HUD's review will not focus on the volume of written analysis underlying the identification of the fair housing issues. d. Providing HUD more flexibility to work with program participants to improve a submitted Equity Plan and ensure it meets regulatory requirements. HUD's experience implementing the 2015 AFFH Rule demonstrated that a robust back and forth between HUD and program participants regarding the content of submitted plans was important to the rule's success; in many instances, a submitted plan improved substantially as a result of HUD engagement. However, the structure of the 2015 AFFH Rule limited HUD's practical ability to do this work. HUD was required to either accept or not accept a plan within 60 days of submission. If an Assessment of Fair Housing (AFH) was not accepted by HUD after the initial submission, HUD provided the program participant an opportunity to revise and resubmit the plan for HUD review; however, HUD then had a limited amount of time to review the revised plan, work with the program participant to address remaining issues, and then accept that plan before a decision on a submitted consolidated plan or public housing agency (PHA) plan needed to be rendered. If the program participant could not achieve an accepted AFH by the time the program participant's consolidated plan or PHA Plan was due, the automatic consequence was a cut-off of Federal funding. Faced with that consequence, HUD ultimately accepted every plan, although many of the plans that HUD accepted could still have benefited from improvements if there had been additional time for HUD to work with the program participant. This proposed rule provides HUD more time—100 days, with the ability to extend that time for good cause—to review a submitted Equity Plan and work with a program participant to ensure the plan meets the requirements of this proposed rule. In addition, the proposed rule provides that, if a program participant does not have an accepted Equity Plan by the time a consolidated plan or PHA Plan must be approved, to have that plan approved it must provide HUD with special assurances that it will achieve an Equity Plan that meets regulatory requirements within 180 days of the end of HUD's review period for its consolidated plan or PHA Plan. At the end of the 180-day period, if the program participant still does not have an Equity Plan that has been accepted by HUD, HUD will seek the most serious of remedies by initiating the termination of funding and will not grant or continue granting applicable funds. HUD believes this structure will provide it with the necessary enforcement authority and the flexibility to work with program participants to achieve an Equity Plan that meets this proposed rule's requirements. By obtaining special assurances, HUD will continue to have the ability to enforce this proposed rule by initiating the termination of funding for program participants that do not provide the required special assurances or that do not achieve an Equity Plan that is accepted by HUD in the time allotted. HUD believes the addition of the procedures relating to special assurances provide a stronger yet more flexible mechanism for HUD to compel compliance with the requirements of this proposed rule beyond what it could require under the 2015 AFFH Rule. e. Creating a more direct linkage between the Equity Plan's fair housing goals and the planning processes in the consolidated plan, annual action plan, or PHA Plan. The proposed rule requires the program participant to establish concrete fair housing goals that are designed and can be reasonably expected to achieve meaningful fair housing outcomes. In the process, program participants will identify the funding and any contingencies that must be met for the program participant to achieve the goal. The proposed rule then requires program participants to incorporate the fair housing goals from their Equity Plans into their consolidated plan, annual action plan, or PHA Plan. The direct linkage between the Equity Plan and subsequent program planning documents will enable program participants to make more informed decisions about how to overcome circumstances that cause, increase, contribute to, maintain, or perpetuate fair housing issues. By incorporating their fair housing goals, strategies, and actions into their planning documents, program participants will be better positioned to build equity and fairness into their decision-making processes for the use of resources and other investments, live up to the commitments they have made in Equity Plans, and ultimately fulfill their obligations to affirmatively further fair housing. f. Implementing a more transparent process for program participants' development and HUD's review of Equity Plans. The proposed rule will enable members of the public to have online access to all submitted Equity Plans; to provide HUD with additional information regarding Equity Plans that are under HUD review; and to know HUD decisions on Equity Plan acceptance and on program participants' annual progress evaluations. HUD will use information submitted by the public in its review of the Equity Plan. This transparency is intended, in part, to assist program participants with understanding how other similarly situated program participants conducted their analyses. HUD believes that this transparency will allow the public to be more engaged in the local fair housing planning process, the implementation of fair housing goals, and ultimately in assisting their local leaders in determining how to allocate resources to address fair housing issues. g. Tracking progress on fair housing goals. The proposed rule requires program participants to conduct annual progress evaluations regarding the progress made on each goal. These progress evaluations will be submitted to HUD, and HUD will make them publicly available on a HUD-maintained website. This annual progress evaluation ensures that goal implementation stays on track and that progress (or lack thereof) is disclosed to the public. In conducting this evaluation, a program participant must assess whether to establish a new fair housing goal or whether to modify an existing fair housing goal because it cannot be achieved in the amount of time previously anticipated. The proposed rule allows program participants, with HUD's permission, to submit a revised Equity Plan that modifies goals or set new goals if circumstances changed or if the established goals have been accomplished. HUD believes this ability to account for changed circumstances will make program participants more willing to set ambitious, creative goals that may be dependent on certain contingencies, since the goals can be updated if the contingencies are not met. However, HUD will not grant permission to alter goals if the program participant is simply choosing not to take necessary steps. The annual progress evaluation will allow for public awareness that a goal is not being met before it is too late to change course to meet it. h. Increasing accountability by creating a mechanism for members of the public to file complaints and for HUD to further engage in oversight and enforcement. Under the proposed rule, HUD will have the ability to open compliance reviews, and members of the public will be able to file complaints directly with HUD regarding a program participant's AFFH-related activities. While these processes are new to AFFH compliance, the proposed regulatory provisions relating to the filing and investigation of complaints and HUD's procedures for obtaining compliance are consistent with the oversight and enforcement mechanisms that exist for other Federal civil rights statutes that HUD implements. Accordingly, HUD anticipates that the agency, program participants, and the public should be able to readily acclimate themselves to these processes and that the associated burden will be manageable. These improvements are intended to result in tangible fair housing outcomes that advance equity and increase opportunity for people of color and other underserved communities while minimizing burden and constraints on program participants in how those outcomes are determined and achieved. Ultimately, those tangible fair housing outcomes will be locally driven based on the fair housing issues that are presented by local circumstances. This proposed rule does not dictate the particular steps a program participant must take to resolve a fair housing issue. Rather, the proposed rule is intended to empower and require program participants to meaningfully engage with their communities and confront difficult issues in order to achieve integrated living patterns, overcome historic and existing patterns of segregation, reduce racial and ethnic concentrations of poverty, increase access to homeownership, and ensure realistic and truly equal access to opportunity and community assets for members of protected class groups, including those in historically underserved communities.[2] |
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Significant impact
- See also: Significant regulatory action
Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.
Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]
The text of the Affirmatively Furthering Fair Housing states that OMB deemed this rule significant, but not economically significant:
| “ | This proposed action is “significant” and therefore subject to review by OMB under section 3(f)(4) of Executive Order 12866.[2] | ” |
Text of the rule
The full text of the rule is available below:[1]
See also
External links
Footnotes
