What is the legal authority for substantial equivalence certification?
What types of organizations are eligible to apply for substantial equivalence certification?
Substantial equivalence certification is authorized by Section 810(f) and Section 817 of the federal Fair Housing Act, and 42 U.S.C. § 3535(d). The regulations governing substantial equivalence are located at 24 CFR Part 115.
When enacting or revising a fair housing law with the goal of substantial equivalence certification, agencies should rely upon the entire federal Fair Housing Act and its implementing regulations.
Section 810(f) of the federal Fair Housing Act limits the receipt of substantial equivalence certification to public agencies. Therefore, private organizations are not eligible. A state or local government agency with the authority to administer a fair housing law may apply for and obtain substantial equivalence certification. In considering eligibility, HUD may also take into consideration whether the jurisdiction is already served by a FHAP agency.
How does an agency request substantial equivalence certification?
A request for substantial equivalence certification must be submitted to HUD by the official having the principal responsibility for the administration of the state or local fair housing law.
The request must include the text of the fair housing statute or ordinance and any pertinent regulations, rules, directives or formal opinions by the jurisdiction's chief legal officer. In addition, the name and contact information (including address, telephone number, fax number, and e-mail address) for the person at the state or local agency that HUD should speak to about changes to the law must be included. An agency should direct its request for substantial equivalence to:
The Assistant Secretary for Fair Housing and Equal Opportunity
U.S. Department of Housing and Urban Development
451 Seventh Street, SW
Washington, DC 20410
What is HUD's procedure for reviewing a request for substantial equivalence certification?
Upon receipt of a request for substantial equivalence certification, the Office of Fair Housing and Equal Opportunity (FHEO) will review the request for completeness, acknowledge receipt of the request and, if necessary, secure additional information from the agency. With the assistance of HUD's Office of General Counsel, FHEO will then conduct a legal review of the agency's law to determine if it meets the criteria set forth in 24 CFR Section 115.204 (i.e., whether the law, on its face, provides substantive rights, procedures, remedies and the availability of judicial review that are substantially equivalent to the federal Fair Housing Act).
Following the legal review, FHEO may inform the agency of HUD's intent to offer interim certification. Alternatively, if HUD's legal review indicates that the law does not meet the criteria set forth in 24 CFR Section 115.204, FHEO will forward a legal analysis to the agency that identifies deficiencies in its law and how it may cure the deficiencies in its law (e.g., through amendment or through the enactment of rules, regulations or other policy guidance).
The agency may utilize the legal analysis as a guide in revising its legislation and resubmit another version to the Department for review. Resubmissions to HUD for legal analysis must include an entire copy of the agency's fair housing law, even if the state or local agency made only minor changes to the law. The agency should assure that all identified deficiencies are corrected in subsequent legislation forwarded to HUD.
Subject to resources HUD may review an agency's proposed legislation. However, an offer of interim certification is dependant upon enactment of a substantially equivalent law.
What if a state or local law contains additional protected classes beyond those in the Fair Housing Act?
In order to obtain certification, a state or local law must cover the protected classes in the fair housing act (race, color, national origin, religion, sex, disability and familiar status). A state or local that provides for additional protected classes may still be determined to be substantially equivalent.
What funding activities are allowable for interim and certified FHAP agencies?
A variety of FHAP funds are available to agencies with substantial equivalence interim certification and certification. Interim certification allows agencies to receive capacity building funds. These funds are to be used to provide complaint activities and to support activities that produce increased awareness of fair housing rights and remedies. Certified agencies can receive funds for complaint processing, administrative costs, partnerships, and funds for special enforcement activities. Both interim and fully certified agencies can receive funds for training.
What are the responsibilities of agencies with substantial equivalence certification?
The FHAP is intended as an intergovernmental enforcement partnership between HUD and the state or local agencies. As in any partnership, both parties must contribute to the success of the program.
While HUD provides significant resources to FHAP agencies in the form of training, technical assistance and funding, the FHAP agencies must demonstrate a commitment to thorough and professional complaint processing. This includes all phases of complaint processing, from accurate identification of issues at intake, through complete and sound investigations, to following through on administrative or judicial enforcement to ensure that victims of unlawful housing discrimination are fully compensated and the public interest is served. FHAP agencies should also work to develop relationships with public, private, and non-profit organizations in a grass roots approach to making fair and open housing a reality.
Of equal importance, the political jurisdictions in which they operate must understand their own commitment and must support the existence and the work of the FHAP agencies. Funding provided by HUD is not intended to cover 100 percent of the costs of the FHAP agencies' operations, therefore local resources must be provided by the jurisdiction to their respective FHAP agencies. Resources from the jurisdiction include not only funding but also the legal resources necessary to pursue administrative and/or judicial enforcement.
state or local agencies interested in participating in the FHAP should also consult the specific requirements enumerated in 24 C.F.R. § 115.307.
Additional questions about substantial equivalence certification should be directed to
Joseph A. Pelletier at Joseph.A.Pelletier@hud.gov or call (202) 402-2126.