On February 9, HUD published a proposed Affirmatively Furthering Fair Housing (AFFH) rule. PHADA has published two articles on its concerns with the content of the new proposal, and those articles, the proposed rule, and other matters are included in the Current Issues section on PHADA’s website.
Comments on the proposal are due by April 10, 2023, and may be submitted through the regulations.gov website here.
PHADA will submit comments, and it encourages members and other HA professionals to consider submitting comments as well. HA comments are most effective when they explain with some detail the impacts the proposal will have on the agency, on the agency’s clients and applicants, and on the community in which the HA operates.
In order to help members think about these issues, PHADA has prepared a set of points that members can consider as they prepare comments for submission. It is most helpful when those comments describe issues of particular concern locally rather than simply quote the issues that PHADA will probably raise in its comments.
In addition to these issues, HUD has posed a lengthy list of questions on which it solicits comments. PHADA members can consider addressing any of those questions that are particularly important to them. HAs should not feel a need to address all the issues HUD raises in its questions. So far, 101 comments submitted by the public have been posted at Regulations.gov, and members may review those comments here.
PHADA’s Suggested Points:
Procedural Compliance or Fair Housing Accomplishments
- The proposed rule requires procedural compliance of program participants.
- It offers little justification that compliance will have any impact on segregated housing patterns.
The Inclusion and Exclusion of Housing Providers as Program Participants is Arbitrary
- HUD has not justified its inclusion of HAs as program participants.
- HAs are more like non-profit housing management organizations than local governments (the other kind of organization defined as “program participants”).
- Their governing board membership is generally determined by local governments.
- In HUD’s treatment of affiliated organizations, the department would consider them to be subsidiaries of local governments.
- State enabling statutes typically treat HAs as political subdivisions of the state government.
- HAs should not be included as program participants.
- They may be required to collaborate with local government program participants in preparing Equity Plans.
- HUD has failed to justify excluding private assisted housing providers managing federally supported assisted housing.
- Project Based Rental Assistance supports approximately 1.2 million housing units.
- Low-Income Housing Tax Credits support approximately 2 million housing units.
- The five largest affordable housing owners control between 26,000 and 45,000 units each or a total of over 165,000 units. These owners are as large as the five largest HAs.
- Non-HAs that provide federally supported assisted housing control approximately half of the inventory of federally assisted housing.
HUD Requires Unreasonable Analyses and Goal Setting for Topics and Geographies Outside of the Authority of HAs and Other Program Participants
- Equity Plans require that HAs assess issues outside of their institutional expertise and control.
- Examples include the quality of “community assets” available to members of protected classes. Community assets may include:
- Efficient transportation services.
- High-performing educational systems, daycare, and other childhood education resources.
- Employment opportunities.
- Safe and well-maintained parks and recreational opportunities.
- Well-resourced libraries and community centers.
- Community-based supportive services for individuals with disabilities.
- Responsive law enforcement and emergency services.
- Healthcare services.
- Retail options including groceries.
- Neighborhoods with clean air, clean water, and access to healthy food.
- Infrastructure and municipal services.
- Banking and financial institutions.
- Zoning and land use regulations. These requirements may govern:
- Lot size.
- Housing density.
- Siting of rental housing.
- Siting of assisted housing.
- Parking requirements.
- Equity Plans require program participants to conduct regional analyses covering geographies well beyond their authority to influence or control.
- For program participants within a Core Based Statistical Areas (CBSAs), HUD requires analyses “including but not necessarily limited to,” the CBSA.
- The Washington, DC, CBSA is bounded by Fredericksburg, VA, Hagerstown, MD (120 miles apart), the Chesapeake Bay, and Clarksburg, WV (250 miles apart), and includes two states and the District of Columbia.
- The Chicago IL CBSA includes 3 states and is bounded by Dekalb IL, Michigan City IN (120 miles apart), Oak Creek WI, and Danville IL (220 miles apart.
- For program participants outside of but adjacent to CBSAs, HUD requires analyses that include the adjacent CBSA.
The Proposal Lacks Any Standards for Acceptability or Compliance
- HUD has published a complex proposal requiring significant investment to produce plans and annual progress reports subject to the department’s review and “acceptance.”
- The proposal fails to describe or discuss any standards the department will use to accept or reject an Equity Plan.
- Nor does the department describe any standards for its monitoring and oversight of annual progress reports required of program participants.
- Lack of standards will lead to the department’s second-guessing program participants’ submissions.
- AFFH certification of compliance.
- HUD’s required certification has no standards or bases to know whether that certification is correct or not.
- Lack of standards place program participants at unknown risks concerning compliance and non-compliance.
HUD Has Failed to Address Differences Among Program Participants
- HUD requests comments concerning the proposal’s treatment of small program participants.
- HUD should include proposals for the rule’s treatment of agencies with dramatically different characteristics.
- Size.
- Rural, suburban, and urban.
- Single program agencies and multiple program agencies.
- The only accommodation for agency size is in HUD’s proposed implementation schedule where smaller agencies will be the last Equity Plan submitters.
- The proposed rule fails to consider the relationship between annual progress reporting and other planning requirements applicable to qualified HAs (the smallest HAs).
HUD’s Data is Inadequate
- HUD has published a collection of data in its AFFH Data and Mapping Tool.
- A powerful tool to aid program participants in analyzing fair housing issues.
- The tool remains incomplete for HAs.
- HUD no longer assures HAs that the tool will be complete before they must complete Equity Plans.
- There are other public and proprietary data sources that are clearer and more complete than HUD’s tool.
- Some program participants have found PolicyMap helpful, but it is expensive for smaller program sponsors.
- Some proprietary or publicly available may offer better assessments of, for instance, economic opportunity than HUD’s tool.
- HUD can consider offering HAs and other program participants suggestions for fair housing issues they could consider addressing in Equity Plans.
- Including such suggestions in HUD’s AFFH Data and Mapping Tool, for example, could reduce the complexity and burden of preparing Equity Plans.
- Suggestions may be very useful to very small program participants.
- Suggestions should be suggestions that do not impose any further requirements on HAs and other program participants.
HUD Has Proposed a Lengthy 7-Year Implementation Schedule
- The proposed implementation schedule will not begin for the smallest program participants until 2027.
- Those agencies must submit an Equity Plan 12 months before their next 5-year plan is due.
- Some will have submitted a 5-year plan in 2026 and their Equity Plans will become due during 2030.
- It will take the department 7 years to fully implement this proposed rule.
- Implementation of the proposal will fall within three separate federal administrations.
The Streamlining Is for HUD, Not for Program Participants
- The proposal significantly reduced requirements faced by the department.
- It has doubled the period HUD may use to review Equity Plans from 60 days to 180 days.
- HUD has eliminated requirements for Paperwork Reduction Act reviews by the Office of Management and Budget (OMB) for forms program participants must use.
- The proposal does little to streamline Equity Plan preparation for program participants.
- HUD has reduced the number of questions program participants must answer in Equity Plans.
- However, the scope of those questions does not appear to be different from those included in Assessment of Fair Housing forms published in 2015.
- The proposal raises the possibility of conducting AFFH community engagement efforts in conjunction with other planning efforts (5 Year Plan and Annual Plan development for HAs).
- But Equity Plan community engagement must occur in time to submit plans 12 months before 5-Year Plans and Consolidated Plans.
- The rule fails to explain how joint public participation efforts can inform Consolidated Plan or 5-Year Plan preparation that occurs more than one year after Equity Plans are due to HUD.
- HUD continues to encourage collaboration among program participants in preparing Equity Plans.
- HUD estimates that half of submitted Equity Plans will be collaborations.
- The only collaborator available to small, rural HAs in counties receiving no CDBG or HOME funding will be their state.
- HUD did not consider whether states will be willing or able to collaborate with large numbers of small non-urban HAs within their jurisdiction.
The Proposal Imposes Unreasonable Burdens on HUD and on HAs
For HAs
- HUD’s discussion of estimated burdens of this rule is unclear.
- 3,185 HAs face devoting almost 300,000 hours per year to comply with this proposed rule, or approximately 100 hours per agency per year.
- Since HUD has not published standards it will use in implementing this rule, HAs face the added burden of guessing what exactly the department will determine to be acceptable compliance.
For HUD
- It will take the department 7 years to complete implementation.
- HUD must complete, maintain, update, and improve its AFFH Data and Mapping Tool.
- HUD has promised to provide as yet undeveloped training and technical assistance resources for program participants to use in Equity Plan Development that must become available during 2024.
- When implementation is complete, HUD will receive 1,000 Equity Plan submissions and 250 Equity Plan revisions each year.
- There will be no forms or prescribed formats, so these will be in a wide variety of formats, both electronic and physical.
- Assessments of Fair Housing submitted under the earlier rule were hundreds of pages long.
- Its experience with a few Assessments of Fair Housing was that technical assistance required to arrive at acceptable assessments taxed the departments capacities.
- HUD must develop and maintain mechanisms for publication of Equity Plan submissions and their status.
- HUD will receive over 5,000 annual progress reports each year.
- HUD must develop and publish standards for assessing progress.
- HUD must develop and maintain mechanisms for publication of annual progress reports.
- In its estimate of burdens imposed by the proposed rule, HUD does not publish estimates of the burden the department must accommodate, only its estimates for the burden on program participants.
- HUD estimates that it may receive 100 complaints concerning AFFH compliance each year, an unreasonably small number.
- HUD makes no estimate of the number of public comments it will receive concerning Equity Plans and annual progress reports it must respond to each year.
- HAs constitute 76% of the program participants evaluated in HUD’s burden estimates.
- Reviewing, negotiating, and accepting HAs’ Equity Plans and monitoring and overseeing HAs’ annual progress reports appear to constitute 75% of HUD’s added workload for this proposed rule.
HUD Has Offered an Inadequate Comment Period
- HUD has been preparing this significant change in AFFH regulations since 2021.
- The department has published a 75-page proposed rule.
- The public needs the maximum amount of time to digest this proposal and its justification rather than the 60-day period provided by the notice.