Memo to Members

NLIHC Submits Comments Regarding HUD’s Proposal to “Streamline” AFFH Rule

Oct 22, 2018

NLIHC submitted comments in response to HUD’s Advance Notice of Proposed Rulemaking (ANPR) seeking to “streamline” the July 16, 2015 Affirmatively Furthering Fair Housing (AFFH) rule. NLIHC urged HUD to not make any changes to the AFFH rule until all 1,200 program participants have had substantial experience with it. Instead, HUD should immediately resume implementing the AFFH rule.

HUD published in the Federal Register on August 16, “Affirmatively Furthering Fair Housing: Streamlining and Enhancements,” an ANPR inviting public comment on amending the AFFH rule (see Memo, 8/20). The ANPR asked the public to comment on eight sets of questions.

The opening summary of the ANPR listed five changes that HUD will propose making:

  1. Minimize regulatory burden;
  2. Create a process that is focused primarily on accomplishing positive results, rather than on performing an analysis of community characteristics;
  3. Provide for greater local control;
  4. Encourage actions that lead to greater housing supply; and
  5. Use HUD resources more efficiently.

NLIHC urged HUD to not make any changes to the July 16, 2015 AFFH rule. Before HUD effectively suspended implementation on January 5, 2018, the rule had just begun to be implemented by a very small number of the approximately 1,200 local jurisdictions that would ultimately be required to comply over the coming years. Rather than amending the AFFH rule, NLIHC wrote that HUD should immediately resume implementing it.

Before responding to the eight sets of questions HUD posed in the ANPR, NLIHC addressed issues HUD raised in the background section of the ANPR. NLIHC wrote that HUD misconstrued research on the impacts of moving to areas of opportunity and exaggerated the timeframe the AFFH rule was in effect. NLIHC challenged HUD’s claims that the local government Assessment Tool was ineffective and that the AFFH rule did not sufficiently address the inadequate supply of affordable housing. NLIHC reminded HUD that the 2015 rule was developed with extensive stakeholder input over many years, and that the rule corrected the many deficiencies of the Analysis of Impediments (AI) to fair housing choice process.

Answering the eight sets of questions HUD posed in the ANPR, NLIHC:

  1. Endorsed the AFFH rule’s requirement for genuine public participation that is separate from the Consolidated Plan public participation process when drafting an Assessment of Fair Housing (AFH).
  2. Supported the requirement that program participants continue to use uniform, standard data.
  3. Opposed HUD’s notion that program participants only be required to rely on experiences instead of using data.
  4. Affirmed that program participants should provide detailed reports about their AFFH analysis, rather than a general summary; public officials need details to responsibly set priorities, and the public needs details to monitor compliance and keep officials accountable.
  5. Suggested that program participants annually report on their AFFH efforts in order for officials and the public to detect difficulties and make corrections or adjustments.
  6. Underscored the need for AFHs to be updated at least in sync with the Consolidated Plan and PHA Plan cycles lest they fail to reflect substantial changes.
  7. Stated that because the AFFH rule offers program participants great latitude in determining the number and types of fair housing obstacles to address and in establishing objectives in addressing such obstacles, there is no need to amend the rule in regard to these concerns as raised by HUD.
  8. Responded that there is no need to amend the rule to explicitly list the types of elements that would distinguish a program participant’s acceptable efforts to address fair housing issues from those that would be considered unacceptable; the only consideration should be whether the public agrees that an AFH identifies meaningful goals and activities.
  9. Replied that there is no need to amend the rule to specify certain levels of effort or specific actions that would be considered for a program participant to be in compliance; conditions vary from community to community, and ultimately it is up to the public to judge whether a program participant’s efforts are sufficient.  

NLIHC’s comment letter is at: https://bit.ly/2RYExaX

HUD’s ANPR is at: https://bit.ly/2OD43jG

More about the AFFH rule is on page 7-5 of NLIHC’s 2018 Advocates’ Guide, and more information about the flawed AI process is on page 7-17 of NLIHC’s 2018 Advocates’ Guide

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