NAHMA HUD Update: HUD Issues Affirmatively Furthering Fair Housing Interim Final Rule

June 10, 2021

Dear NAHMA Members,


HUD today issued an interim final rule titled Restoring Affirmatively Furthering Fair Housing Definitions and Certifications. Per the summary of the ruleThe Department of Housing and Urban Development (HUD) publishes this interim final rule to restore certain definitions and certifications that have been through notice-and-comment scrutiny and that are grounded in legal precedent to its regulations implementing the Fair Housing Act’s requirement to affirmatively further fair housing (AFFH) and reinstate a process by which HUD will provide technical assistance and other support to funding recipients who are engaged in fair housing planning to support their certifications. No program participant will be required to participate in this process, which is for the benefit of those who want assistance in fulfilling their statutory obligations. HUD will provide these services prior to the effective date of this interim final rule. HUD determined that it is necessary for this narrowly focused rule to go into effect on July 31, 2021, because HUD funding recipients must certify compliance with their duty to AFFH on an annual basis and HUD itself has a continuous statutory obligation to ensure that the Fair Housing Act’s AFFH obligations are followed. HUD finds that the definitions in the current regulation, which was promulgated in 2020 without notice-and-comment procedures, are at odds with the statutory AFFH duty as described in decades of judicial precedent and agency practice. This risks confusing funding recipients, who are certifying compliance with a regulatory definition that does not in fact satisfy their statutory AFFH obligation. While HUD therefore has determined that this rule will go into effect on July 31, it nonetheless solicits comments on this action so that it may consider public views before the effective date. HUD promulgates this interim final rule to ensure that program participants have regulatory certainty, while delaying the effective date long enough to provide time for HUD to review comments and, if necessary, act on them prior to the effective date.” HUD will also provide technical assistance and support for grantees that want help with fair housing planning to support their certifications once the rule goes into effect on July 31, 2021.

HUD has requested public comments for 30 days and may revise the interim final rule before its effective date based on the public comments it receives. If you would like NAHMA to submit comments to HUD on the interim final rule  (Restoring Affirmatively Furthering Fair Housing Definitions and Certifications), please provide NAHMA staff comments by Thursday, July 9,, 2021.

The Restoring Affirmatively Furthering Fair Housing Definitions and Certifications Interim Final Rule is attached and also available here.

The HUD press release is available here.