NAHMA HUD Update: Comments Requested on Affirmatively Furthering Fair Housing (AFFH) Changes

NAHMA HUD Update: Comments Requested on Affirmatively Furthering Fair Housing (AFFH) Changes

This week, HUD released an advance notice of proposed rulemaking inviting public comment on amendments to HUD’s affirmatively furthering fair housing (AFFH) regulations. Please submit comments to us regarding the attached notice by Friday, September 7, 2018.

The stated purpose of the AFFH final rule was to provide HUD program participants (Local Governments, public housing agencies (PHAs), and States & Insular Areas) with a revised planning approach to assist them in meeting their legal obligation to affirmatively further the purposes of the Fair Housing Act. Since issuance of the final rule in July, 2015, however, HUD has concluded that the current regulations are ineffective in helping program participants to meet this obligation.

As HUD begins the process of developing a proposed rule to amend the existing AFFH regulations, it is soliciting comment on changes that will:

  • Minimize regulatory burden while more effectively aiding program participants to plan for fulfilling their obligation to affirmatively further the purposes and policies of the Fair Housing Act;
  • Create a process that is focused primarily on accomplishing positive results, rather than on performing analysis of community characteristics;
  • Provide for greater local control and innovation;
  • Seek to encourage actions that increase housing choice, including through greater housing supply; and
  • More efficiently utilize HUD resources.

In particular, HUD is interested in comments on the following questions:

  1. What type of community participation and consultation should program participants undertake in fulfilling their AFFH obligations? Do the issues under consideration in affirmatively furthering fair housing merit separate, or additional, public participation and consultation procedures than those already required of program participants in preparing their annual plans for housing and community development (i.e., the Consolidated Plan, Annual Action Plan, or PHA Plan)? Conversely, should public input on AFFH be included as part of the Consolidated Plan/PHA Plan public involvement process?
  2. How should the rule weigh the costs and benefits of data collection and analysis? Should the proposed rule allow program participants to develop or use the data of their choice? Alternatively, should HUD require the use of a uniform data set by all program participants in complying with their AFFH obligation? Should it vary by the nature of the program participant? Instead of a data-centric approach, should jurisdictions be permitted to rely upon their own experiences? If the latter, how should HUD assess this more qualitative approach?
  3. How should PHAs report their AFFH plans and progress? Should jurisdictions be required to provide a detailed report of the analysis performed or only summarize the goals? How often should program participants be required to report on their AFFH efforts? Should the 8 proposed rule retain or revise the current timeframes for required AFFH submissions? Should program participants continue reporting annually on their AFFH actions and results in their program plans and annual performance reports or, given the long-term nature of many AFFH goals, should the reporting period be longer? Should planning and/or results be integrated into existing report structures, such as Consolidated Plans and Consolidated Annual Performance and Evaluation Reports (CAPERs), or utilize an alternative structure?
  4. Should the proposed rule specify the types of obstacles to fair housing that program participants must address as part of their AFFH efforts, or should program participants be able to determine the number and types of obstacles to address? Should HUD incentivize program participants to collaborate regionally to identify and address obstacles to affirmatively furthering fair housing, without holding localities accountable for areas outside of their control? Should HUD incentivize grantees and PHAs to collaborate in the jurisdiction and the region to remove fair housing obstacles? What are examples of obstacles that the AFFH regulations should seek to address? How might a jurisdiction accurately determine itself to be free of material obstacles?
  5. How much deference should jurisdictions be provided in establishing objectives to address obstacles to identified fair housing goals, and associated metrics and milestones for measuring progress?
  6. How should HUD evaluate the AFFH efforts of program participants? What types of elements should distinguish acceptable efforts from those that should be deemed unacceptable? What should be required of, or imposed upon, jurisdictions with unacceptable efforts (other than potential statutory loss of Community Development Block Grant, HOME, or similar funding sources)? How should HUD address PHAs whose efforts to AFFH are unacceptable?
  7. Should the rule specify certain levels of effort on specific actions that will be deemed 9 to be in compliance with the obligation to affirmatively further the purposes and policies of the Fair Housing Act (i.e., “safe harbors”), and if so, what should they be?
  8. Are there any other revisions to the current AFFH regulations that could help further the policies of the Fair Housing Act, add clarity, reduce uncertainty, decrease regulatory burden, or otherwise assist program participants in meeting their AFFH obligations?

Again, please submit any comments to us by Friday, September 7, 2018. For more information, click here to read HUD’s press release, or click here to read the attached notice online.