Affirmatively Furthering Fair Housing Assessment Tool for Public Housing Agencies: Announcement of Final Approved Document, 4373-4388 [2017-00713]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Notices]
[Pages 4373-4388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00713]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5173-N-09-C]


Affirmatively Furthering Fair Housing Assessment Tool for Public 
Housing Agencies: Announcement of Final Approved Document

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Notice.

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SUMMARY: This notice announces that the Assessment Tool developed by 
HUD for use by Public Housing Agencies receiving assistance under the 
United States Housing Act of 1937 has completed the notice and comment 
process required by the Paperwork Reduction Act (PRA), been reviewed by 
the Office of Management and Budget and approved. While this Assessment 
Tool has been approved, this Notice does not trigger the obligation of 
PHAs to conduct and submit an AFH in accordance with 24 CFR 5.160, as 
HUD has not yet provided PHAs with the data they will need. As HUD 
makes data available for certain PHAs, HUD will publish, in the Federal 
Register, a Notice announcing the availability of data for certain 
PHAs, triggering their obligation to conduct and submit an AFH, and 
will post such Notice on the HUD Exchange. HUD also anticipates that, 
at that time, the online User Interface will be available for use by 
PHAs. Until such time that PHAs are required to conduct and submit an 
AFH, HUD notes that PHAs must continue to comply with existing fair 
housing and civil rights requirements. This Assessment Tool, referred 
to as the PHA Assessment Tool, was modeled on the Local Government 
Assessment Tool, first approved by OMB on December 31, 2015 but with 
modifications to address the different public housing and Housing 
Choice Voucher operations that PHAs have compared to local governments, 
and how fair housing planning may be undertaken by PHAs in a meaningful 
manner. As with the Local Government Assessment Tool, the PHA 
Assessment Tool allows for collaboration with other PHAs. To reduce 
burden for PHAs, HUD has increased the threshold for the insert from 
QPHAs that have 550 units or less to PHAs with 1,250 or fewer combined 
public housing and HCV units. HUD has also committed to developing an 
additional Assessment Tool specifically for use by Qualified PHAs 
(QPHAs) who conduct and submit an individual AFH or collaborate with 
other QPHAs to conduct and submit a joint AFH to be issued in 2017. 
Therefore, this PHA Assessment Tool will be for use by PHAs submitting 
AFHs individually or jointly, and for collaborations among PHAs with 
1,250 or fewer units and with PHAs with more than 1,250 units. In 
addition, to reduce burden further, this Assessment Tool includes an 
insert with streamlined questions for PHAs with 1,250 or fewer units to 
use if jointly submitting with PHA with more than 1,250 units. In 
addition, this Assessment Tool includes revised instructions based on 
public comments received during the 30-day PRA review that provide more 
guidance to PHAs in conducting the AFH, including how the regional 
analysis is to be prepared based on the location of a PHA's geographic 
region and program type. Through the notice and comment process 
required by the PRA, HUD made changes to the PHA Assessment Tool from 
the 30-day notice published in the Federal Register on August 23, 2016.

FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant 
Secretary, Office of Fair Housing and Equal Opportunity, Department of 
Housing and Urban Development, 451 7th Street SW., Room 5246, 
Washington, DC 20410; telephone number 866-234-2689 (toll-free) or 202-
402-1432 (local). Individuals who are deaf or hard of hearing and 
individuals with speech impediments may access this number via TTY by 
calling the toll-free Federal Relay Service during working hours at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 16, 2015, at 80 FR 42357, HUD published in the Federal 
Register its Affirmatively Furthering Fair Housing (AFFH) final rule. 
The AFFH final rule provides HUD program participants with a new 
approach for planning and implementing locally-developed housing goals, 
actions and strategies involving increasing choice, mobility, 
preservation, community revitalization and other collaborative or 
outreach efforts that are designed to reduce disparities in access to 
opportunity and improve fair housing outcomes that will assist them in 
meeting their statutory obligation to affirmatively further fair 
housing as required by the Fair Housing Act. To assist HUD program 
participants in improving planning to achieve meaningful fair housing 
outcomes, the new approach involves an ``assessment tool'' for use in 
completing the regulatory requirement to conduct an assessment of fair 
housing (AFH) as set out in the AFFH rule. Because of the variations in 
the different HUD program participants subject to the AFFH rule, HUD 
has developed three separate assessment tools: One for public housing 
agencies (PHAs) receiving assistance under section 8 or 9 of the United 
States Housing Act of 1937 (42 U.S.C. 1437f or 1437g), which is the 
subject of this notice, the PHA Assessment Tool; one for local 
governments, the Local Government Assessment Tool; and one for State 
and Insular Areas, the State and Insular Areas Assessment Tool. PHAs 
submitting alone or with other PHAs

[[Page 4374]]

will use the PHA Tool, PHAs submitting with local governments will use 
the Local Government Tool, and PHAs submitting with State or Insular 
Areas will use the State Tool. All three assessment tools, because they 
are information collection documents, are required to undergo the PRA 
notice and comment process. HUD has also committed to developing a 
fourth Assessment Tool specifically for use by QPHAs who choose to 
conduct and submit an individual AFH or that collaborate with other 
QPHAs to conduct and submit a joint AFH.

II. PHA Assessment Tool

A. The PRA Process

    On March 23, 2016, at 81 FR 15549, HUD published its 60-day notice, 
the first notice for public comment required by the PRA, to commence 
the process for approval of the PHA Assessment Tool. The 60-day public 
comment period ended on May 23, 2016, and HUD received 39 public 
comments.
    On September 20, 2016, at 81 FR 64475, HUD published its 30-day 
notice under the PRA. In the 30-day notice, HUD addressed the 
significant issues raised by the commenters on the 60-day notice. HUD 
received 142 public comments in response to the 30-day notice. HUD 
appreciates the comments received in response to the 30-day notice, 
and, in developing this final version of the Assessment Tool, all 
comments were carefully considered. The significant issues commenters 
raised and HUD's responses to these issues are addressed in Section 
II.C. of this notice. All comments submitted on the September 20, 2016, 
notice can be found on www.regulations.gov at https://www.regulations.gov/document?D=HUD-2016-0103-0001. In addition, HUD has 
posted on its Web site at https://www.huduser.gov/portal/affht_pt.html 
and https://www.hudexchange.info/programs/affh/, a comparison of the 
PHA Assessment Tool that was published for 30-day public comment on 
September 20, 2016 and this final PHA Assessment Tool as announced by 
this notice.

B. Changes Made to the PHA Assessment Tool

    The following highlights changes made to the Assessment Tool for 
Public Housing Agencies in response to public comment and further 
consideration of issues by HUD.
    Contributing Factors. HUD has tailored the definitions of 
Contributing Factors, found in Appendix D of the Assessment Tool, to 
better apply in the context of a PHA's operations. HUD has made changes 
to contributing factors that include: Admissions and occupancy policies 
and procedures, including preferences in publicly supported housing; 
Impediments to mobility; Lack of access to opportunity due to high 
housing costs; Lack of local public and/or private fair housing 
outreach, enforcement, and/or resources; Lack of meaningful language 
access; Lack of public and/or private investment in specific 
neighborhoods, including services or amenities; Land use and zoning 
laws; Location of accessible housing; Source of income discrimination; 
and State or local laws, policies, or practices that discourage 
individuals with disabilities from living in apartments, family homes, 
and other integrated settings. HUD has consolidated and therefore 
removed certain contributing factors based on public comment, such as: 
Lack of local public fair housing enforcement; Lack of resources for 
fair housing agencies and organizations; Lack of state or local fair 
housing laws; Local Restrictions or Requirements for Landlords Renting 
to Voucher-holders; and Nuisance laws. HUD has combined and added 
certain contributing factors based on public comment, such as: 
Displacement of and/or lack of housing support for victims of domestic 
violence, dating violence, sexual assault, and stalking; Loss of 
affordable housing; and Private Discrimination and/or lack of fair 
housing laws.
    Goal Setting. HUD has provided further clarifying instructions 
about how PHAs should identify contributing factors and that PHAs 
should create fair housing goals that are within their own capacity. 
For PHAs in a joint or regional collaboration, the User Interface will 
provide for PHAs to identify which fair housing goal is to be 
accomplished by which PHA (or PHAs) in the collaboration.
    Insert for PHAs with 1,250 or fewer Units. In the 30-day PRA 
notice, HUD added an insert for use by QPHAs (eligible PHAs with a 
combined unit total of 550 or fewer) that collaborate with non-
qualified PHAs. HUD has revised this threshold, and PHAs with a 
combined unit total of 1,250 or fewer combined public housing units or 
Housing Choice Vouchers (HCVs, i.e., Section 8) units can use this 
insert when collaborating with a PHA with a combined unit total above 
1,250. The insert is meant to cover the analysis required for the 
collaborating PHA's service area, and region, where applicable--i.e., 
not analyzed by another PHA, such as in the case where PHAs have 
overlapping regional geographies. For PHAs with 1,250 or fewer units, 
the insert is designed to make the analysis less burdensome while 
retaining the fair housing analysis required by the AFFH Rule. The 
instructions to the Assessment Tool have also been revised to explain 
this and help program participants to understand which Tool to use.
    PHA Regional Analysis. In this final version of the Assessment Tool 
designed for PHAs, HUD has provided instructions related to the 
regional analysis that various size PHAs and QPHAs (e.g., rural PHAs, 
PHAs within metropolitan areas, PHAs within micropolitan areas, etc.) 
must conduct when completing an AFH. There are multiple parts to this 
explanation: (1) A description of the service area, also known as the 
jurisdiction, of various size PHAs in terms of their authorized 
geographic operations; (2) a description of the PHA's region for 
purposes of analysis under the AFFH rule; (3) a description of the HUD-
provided data for the PHA's applicable region; (4) instructions related 
to use of data and identification of fair housing issues and related 
contributing factors for different size PHAs; and (5) instructions 
related to rural PHAs, State PHAs, and PHAs in Insular Areas.

------------------------------------------------------------------------
                                            HUD-provided data for PHA
   PHA jurisdiction/service area \1\                  region
------------------------------------------------------------------------
Metropolitan and Micropolitan (CBSA)     Maps and Tables for the CBSA.
 PHAs: PHA jurisdiction/service area is
 located within a CBSA.
Sub-County Rural (Non-CBSA) PHAs: PHA    Tables for the county. Maps are
 jurisdiction/service area is outside     available for the county and
 of a CBSA and smaller than a county.     if patterns of segregation, R/
                                          ECAPs, disparities in access
                                          to opportunity extend into a
                                          broader area, maps are also
                                          available to identify such
                                          patterns, trends, and issues.

[[Page 4375]]

 
County-Wide or Larger Rural (Non-CBSA)   Tables for all contiguous
 PHAs \2\: PHA jurisdiction/service       counties, including PHA
 area is outside of a CBSA and            county, in the same state.
 boundaries are consistent with the       Maps are available for all
 county or larger.                        counties and if patterns of
                                          segregation, R/ECAPs,
                                          disparities in access to
                                          opportunity extend into a
                                          broader area, maps are also
                                          available to identify such
                                          patterns, trends, and issues.
Statewide PHAs: The PHA's jurisdiction/  HUD will generally provide data
 service area is the State..              consistent with that provided
                                          to the State. Maps may be used
                                          to analyze fair housing issues
                                          that extend beyond the state's
                                          borders, where applicable, but
                                          tables are provided with data
                                          within the state's borders.
------------------------------------------------------------------------

    As the above chart indicates, HUD will provide regional data for 
PHAs with different service areas based on geographic areas used by the 
U.S. Census Bureau. As explained further in the full instructions to 
the Tool, the standard data that HUD will provide may not always be the 
most relevant from a fair housing perspective. For PHAs and all other 
program participants under the AFFH rule, the Assessment Tool is framed 
so that it can be applied to Public Housing-only or HCV-only PHAs and 
combined PHAs with various types of Publicly Supported Housing (PSH) 
\3\ under their inventory with a wide variety of populations of 
different agency types and geographies with unique fair housing issues. 
Note that in completing the Assessment Tool, program participants must 
use the HUD-provided data, as well as local data and local knowledge, 
and information received in the community participation process.
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    \1\ All references to counties include counties or statistically 
equivalent areas (e.g., parishes).
    \2\ HUD acknowledges that there are other PHAs, including 
regional PHAs, that may have differing or unique geographies from 
the categories in this table. HUD may provide data in the AFFH Data 
and Mapping Tool for such PHAs appropriate for their geographies 
based on administrative and data considerations. All program 
participants are required to conduct an analysis of their 
jurisdiction and region consistent with the AFFH Final Rule.
    \3\ The term ``publicly supported housing'' refers to housing 
assisted, subsidized, or financed with funding through Federal, 
State, or local agencies or programs as well as housing that is 
financed or administered by or through any such agencies or 
programs. HUD is currently providing data on five specific 
categories of housing: Public Housing; Project-Based Section 8; 
``Other Multifamily Housing'' (including Section 202--Supportive 
Housing for the Elderly and Section 811--Supportive Housing for 
Persons with Disabilities); Low Income Housing Tax Credit (LIHTC) 
housing; and Housing Choice Vouchers (HCV). Other publicly supported 
housing relevant to the analysis includes housing funded through 
state and local programs, other federal agencies, such as USDA and 
VA, or other HUD-funded housing not captured in the five categories 
listed above.
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    Disparities in Access to Opportunity. In order to reduce burden 
while still eliciting a meaningful fair housing analysis, HUD has 
clarified that for PHAs that do not administer the Housing Choice 
Voucher Program (HCV), the regional analysis part of this section is 
not required. However, if PHAs receive information during community 
participation about regional disparities in access to opportunities, 
which is relevant to the PHA's service area, such information must be 
considered. Due to data limitations for PHAs and QPHAs in rural areas 
outside of CBSA regions, program participants can request technical 
assistance for additional guidance on how local data and knowledge may 
be used to respond to questions on disparities in access to opportunity 
in PHA service areas.
    Assessment of Past Goals, Actions and Strategies: HUD has clarified 
when PHAs must complete this section. This section may be inapplicable 
for PHAs that have not previously submitted AFHs or an Analysis of 
Impediments. However, PHAs are to indicate what fair housing goals were 
selected by the PHAs in past Analyses of Impediments (if prepared 
jointly with a local government) or Assessments of Fair Housing, if 
applicable.
    Fair Housing Analysis of Rental Housing. The questions in this 
section have been streamlined and revised to reduce burden while still 
eliciting a meaningful fair housing assessment.
    Other Publicly Supported Housing Programs. The questions and 
structure of this section have been edited to tailor the analysis to 
PHA program operations and reduce burden while still obtaining a 
meaningful fair housing analysis. HUD has clarified which types of 
other publicly supported housing the PHA must analyze.
    Local Data and Local Knowledge. HUD has clarified the instructions 
in the Tool regarding local data and local knowledge--including where 
local data and local knowledge is particularly useful because HUD data 
is not provided or is limited. It has reiterated in the instructions to 
the Tool that the phrase ``subject to a determination of statistical 
validity by HUD'' is included to clarify that HUD may decline to accept 
local data that HUD has determined is not valid but not that HUD will 
apply a rigorous statistical validity test for all local data. In 
addition, HUD will provide additional further guidance to PHAs on 
potential sources of additional information or options for partnering 
with outside agencies, for example in relation to disparities in access 
to opportunity.
    Maps and Tables. The accompanying instructions have been revised to 
reflect the appropriate Map and Table numbers of HUD-provided data that 
program participants must use in answering each question of the 
Assessment Tool. Descriptions of HUD-provided maps are available in 
Appendix B of the Assessment Tool instructions, and descriptions of 
HUD-provided tables are available in Appendix C.
    Segregation. In the Assessment Tool, HUD has clarified the 
definition of ``segregation'' by referencing the regulatory definition 
and has noted that in identifying areas that may be segregated or 
integrated, program participants should take care to ensure they are 
focusing on all protected characteristics, and not solely focus on 
minority populations in their jurisdictions and regions. HUD has also 
included instructions related to analyzing segregation in so-called 
``majority-minority'' communities and where there are concentrations of 
particular national origin, ethnic, or religious groups in their 
jurisdictions and regions.
    Answering Questions in Collaborations. HUD has added language to 
the instructions to the Tool which reminds PHAs that are collaborating 
to note which contributing factors apply to which or all of the program 
participants. HUD has also added language that reminds PHAs that are 
collaborating that each program participant is responsible for 
answering the Assessment of Past Goals, Actions, and Strategies 
questions (as discussed above).

C. Responses to Significant Issues Raised by Public Commenters on the 
30-Day Notice

1. Specific Questions Posed by HUD in the 30-Day Notice
    In the 30-day notice, HUD posed a series of questions for which HUD 
specifically sought comment.

[[Page 4376]]

    1. Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility.
    In response to this question, there were commenters who stated that 
completion of the Assessment Tool is not necessary for the proper 
performance of agency functions and will not have practical utility, 
because the commenters are already committed to and practicing 
deconcentration efforts under the HCV Program. Commenters stated that 
the Tool was a burden, particularly on small PHAs which lack the staff 
capacity and expertise to complete the Assessment and on small rural 
PHAs. A commenter was concerned that their agency would become 
``troubled.'' Commenters expressed concern that nothing would be done 
with the information collected and that the Tool required PHAs to 
become reporting services. The commenters stated that they lack the 
funding to complete the Assessment, and High Performing PHAs should be 
exempt from the regulation until funding is returned and increased. A 
commenter noted that the approach ignores proportionality and local 
context, and in smaller communities with only one high school, there 
are no disparities in access to opportunity. Commenters stated that 
QPHAs in particular have little influence over factors in the region. 
Another commenter noted that some questions and terminology are broad 
and vague.
    HUD Response: HUD continues to submit that the Assessment Tool has 
substantial utility for program participants in assessing fair housing 
issues, identifying significant contributing factors, formulating 
meaningful fair housing goals, and ultimately meeting their obligation 
to affirmatively further fair housing. One of the primary purposes of 
the Assessment Tool is to consider a wide range of policies, practices, 
and activities underway in a program participant's jurisdiction and 
region and to consider how its policies, practices, or activities may 
facilitate or present barriers to fair housing choice and access to 
opportunity, and to further consider actions that a program participant 
may take to overcome such barriers. The series of questions in the 
Assessment Tool enables program participants to perform a meaningful 
assessment of key fair housing issues and contributing factors and set 
meaningful fair housing goals and priorities. The Assessment Tool also 
clearly conveys the analysis of fair housing issues and contributing 
factors that program participants must undertake. In essence, HUD 
submits that the Assessment Tool, and the entire AFH approach, better 
implements the AFFH mandate under the Fair Housing Act than the 
Analysis of Impediments to Fair Housing Choice (AI).
    In terms of resource limitations, HUD is aware that PHAs may be 
limited in the actions that they can take to overcome barriers to fair 
housing choice and that the AFH process does not mandate specific 
outcomes. The purpose of the AFH is for PHAs to identify fair housing 
issues and develop local solutions based on available resources. 
However, that does not mean that the PHA cannot take any action, or 
that the PHA should not strive to first understand the fair housing 
issues facing their communities and then work to overcome barriers to 
fair housing choice or disparities in access to opportunity. HUD has 
taken steps to streamline the Assessment Tool to reduce burden, while 
still maintaining a meaningful fair housing analysis. HUD has issued 
guidance on how program participants may establish appropriate goals to 
address contributing factors and fair housing issues that are beyond 
their direct control or PHA expertise. HUD has added clarifying 
instructions regarding prioritization of contributing factors and 
setting goals, consistent with the AFFH Final Rule and AFFH-related 
guidance. These edits state that, ``Program participants have 
discretion, within the requirements of the AFFH Rule, to analyze and 
interpret data and information, identify significant contributing 
factors, and set goals and priorities using the Assessment Tools 
provided by HUD. As more fully discussed in the guidance on HUD's 
review of AFHs, HUD will consider local context and the resources the 
program participant has available.'' It is HUD's stated policy that 
PHAs should be able to complete the assessment tool using their own 
available staff without the need to hire or contract for outside 
consultants. For instance, a cost limitation is one factor built 
directly into the regulatory definition of the term, ``local data.'' 
HUD has also issued a public guidance document providing further 
information on the standards HUD will use to review AFH submissions. As 
stated in this guidance, ``HUD does not expect program participants to 
hire statisticians or other consultants to locate and analyze all 
possible sources of local data.'' Furthermore, the guidance states, 
``HUD's review of AFHs will likewise take into consideration the 
different circumstances of individual program participants and their 
varying locales and available resources.'' See ``Guidance on HUD's 
Review of Assessments of Fair Housing'' available at: https://www.hudexchange.info/resources/documents/Guidance-on-HUDs-Review-of-Assessments-of-Fair-Housing-AFH.pdf. As discussed above, HUD has 
tailored questions to PHAs' programmatic operations. HUD has also made 
key changes to the instructions to clarify issues raised by the 
commenters including the scale and scope of the service area and 
regional analysis that is required. For example, PHAs that do not 
administer the Housing Choice Voucher Program would not be required to 
conduct the regional analysis part of the Disparities in Access to 
Opportunity section. However, if PHAs receive information during 
community participation about regional disparities in access to 
opportunities, which is relevant to the PHA's service area, such 
information must be considered. HUD has also provided further 
instructions about the HUD-provided data in maps and tables and where 
local data and local knowledge may be most important, such as the 
Disparities in Access to Opportunity and Disability and Access sections 
of the analysis. These clarifications include that, ``The questions in 
the Assessment Tool are written broadly by HUD to enable PHAs in many 
different parts of the country to identify the fair housing issues that 
are present in their service areas and regions. PHAs should provide an 
analysis based on the HUD-provided data with respect to the fair 
housing issues analyzed in the AFH, as opposed to providing an 
inventory of what the data show.'' HUD also expects that PHAs will have 
the benefit of local data and local knowledge, including information 
obtained through the community participation process, to conduct an 
appropriate AFH.
    PHAs are required to identify the fair housing issues that are 
present in their service areas and regions, as even issues beyond the 
PHA's control can affect the population that the PHA serves and the 
PHA's operations, and influence the PHA's actions to affirmatively 
further fair housing within its own programs. HUD recognizes that some 
of these issues are outside of the PHA's control, and as more fully 
discussed in HUD guidance, the AFH planning framework, including 
prioritization of significant contributing factors and setting goals, 
allows for program participants to match their goals to their local 
circumstances and to set goals within the PHA's unique control. The 
AFFH process also envisions the possibility of

[[Page 4377]]

adopting innovative and collaborative goals and priorities as a way of 
attempting different approaches that may yield positive fair housing 
outcomes. This may be useful in helping PHAs to address disparities in 
access to opportunity (access to proficient schools, transportation, 
employment clusters) and contributing factors, particularly at the 
regional level. HUD encourages PHAs and all program participants to 
work within their communities to develop cooperative approaches to fair 
housing issues.
    2. The accuracy of the agency's estimate of the burden of the 
proposed collection of information.
    Commenters disagreed with HUD's burden estimate and suggested that 
HUD conduct a more thorough analysis. One commenter estimated that the 
burden is likely three or four times HUD's estimate of 240 hours. 
Numerous commenters stated that HUD's estimate of burden was an 
underestimate of the actual burden that would be required, both for 
individual PHA respondents and for the total overall estimate. Numerous 
commenters stated that their PHA did not have adequate staffing or 
funding that would be needed to complete the assessment tool.
    HUD Response: HUD appreciates the comments provided on HUD's burden 
estimate. HUD has made a number of improvements to reduce burden on 
program participants while conducting a meaningful fair housing 
assessment that will result in appropriate fair housing outcomes. These 
steps include the addition of the streamlined analysis (insert) as part 
of all three assessment tools and the commitment to develop a separate 
standalone assessment tool for QPHAs. Through this Notice, HUD is also 
announcing the expansion to the threshold number of units for a PHA to 
use the insert from 550 units to 1,250 units.
    HUD intends to continue to monitor and assess the impact and burden 
and implementation costs of the AFH process on PHAs, including on the 
range of different program participants. This will include working 
directly with PHAs and other program participants and through the 
provision of technical assistance. It will also include conducting a 
process and implementation study based on actual program participant 
experience, including a review of costs and staff burden as well as 
barriers or obstacles faced by PHAs and other program participant 
across different types, sizes and locations. HUD expects to prepare 
revised workload and costs estimates as PHAs prepare and submit actual 
AFH plans in the future. Going forward, HUD will review the 
appropriateness of this threshold and the possibility of increasing the 
1,250-unit threshold in the future it based on experience with AFH 
submissions. HUD will also assess actual burden on all program 
participants in order to consider the need for additional improvements 
and prior to the renewal of the assessment tool at the end of the 3-
year PRA approval period.
    3. Ways to enhance the quality, utility, and clarity of the 
information to be collected.
    A commenter suggested that instead of using a separate Assessment 
Tool, HUD should expand the requirements of Consolidated Plans to 
include fair housing, as the Assessment Tool is duplicative of the CDBG 
entitlement community's AFH. Another commenter suggested that HUD ask 
PHAs what their service area is, as this will not be an additional 
burden for PHAs. A commenter noted that HUD should further enhance HUD-
provided maps to allow PHAs to accurately and clearly view their data.
    HUD Response: HUD appreciates commenters' suggestions for enhancing 
the quality, utility, and clarity of the information to be collected. 
The Assessment Tool, and the entire AFH approach, implements the AFFH 
mandate under the Fair Housing Act. The Tool facilitates program 
participants' meaningful analysis of key fair housing issues and 
contributing factors to fair housing issues, and that analysis is 
intended to lead them to set meaningful fair housing goals and 
priorities. This meaningful analysis of fair housing issues is not 
captured as fully in other HUD planning documents that have different 
purposes than Affirmatively Furthering Fair Housing.
    As part of the development of the AFFH Data and Mapping Tool (AFFH-
T) changes for PHAs, HUD will be gathering information on PHA service 
areas and will add this significant new information to the AFFH-T as it 
becomes available. With respect to enhanced ways to make maps and data 
easily accessible to program participants, HUD continues to work to 
make the HUD-provided data and maps easily accessible and easily 
readable to its program participants, including unique functionality 
for PHAs, such as the ability to view only the PHA's housing stock and 
vouchers.
    4. Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.
    Commenters provided a number of suggestions to HUD to minimize the 
burden of collection of information from PHAs. A commenter suggested 
that HUD create and provide a sample completed AFH for different sized 
PHAs. A commenter stated that HUD should provide suggestions for 
defining R/ECAPs in rural areas. A commenter noted that HUD should 
simplify the Assessment Tool to the greatest extent possible so that 
PHAs would not have to rely on expensive consultants. Multiple 
commenters stated that the Assessment Tool asked for information beyond 
a PHA's mission, expertise, or influence, such as a regional analysis 
and analysis of access and barriers to transportation, schools, and 
work. Commenters recommended that HUD not require a regional analysis 
outside of a PHA's service area or where data is not provided by HUD. 
Another commenter suggested that PHAs that serve more than two 
counties--i.e., the case of regional PHAs--should define their own 
regions.
    A commenter expressed concern that HUD is using an online system 
for the Assessment Tool, because the agency must successfully implement 
web-based information collecting and keep its reporting systems up to 
date. Another commenter found electronic submissions of AFH responses 
helpful, and requested that HUD report back data that it has already 
collected in other formats from PHAs to reduce burden.
    A commenter is encouraged by HUD's application of the rental 
housing analysis to only PHAs that operate voucher programs, but thinks 
the analysis is still too broad because the data is not readily 
available. A commenter noted that HUD should not require program 
participants to analyze demographics because HUD already has this 
information. Instead, HUD should provide PHAs with the comparison of 
the demographics of occupants of the PHA's housing to the community. 
HUD also has thorough demographic information of RAD properties and 
should provide it to PHAs, instead of requiring PHAs to again provide 
it to HUD. HUD requires PHAs to submit data to HUD on the location of 
assisted housing in the locality and the region, but HUD should provide 
that to PHAs. HUD should provide data to support analysis of the change 
in the location of rental housing over time, or eliminate it from the 
tool. HUD should not require PHAs to identify the location of LIHTC, 
but HUD should instead identify the locations. The commenter states 
that the analysis of access to opportunity for other assisted housing 
is duplicative.

[[Page 4378]]

The commenter also notes that the Fair Housing Enforcement section 
requires an inventory of fair housing laws, and HUD already has this 
information and instead should provide it to PHAs.
    Commenters appreciated that HUD removed public housing from the 
analysis of rental housing, as well as the inclusion of the QPHA insert 
and drafting of a separate QPHA tool, as this will minimize burden for 
PHAs with smaller operations.
    HUD Response: HUD thanks commenters for their suggestions for 
minimizing burden. HUD has worked to streamline the Assessment Tool and 
provide clarifying instructions to simplify the process for program 
participants that are completing the AFH, while providing a meaningful 
framework in which program participants can analyze the fair housing 
issues and contributing factors in their communities and set meaningful 
goals and priorities. This notice clarifies that the regional analysis 
across multiple sections is not meant to be interpreted as an inventory 
of local policies and practices in all of the local governments 
throughout the region. The Tool emphasizes that the solicitation of 
information on whether there are any demographic trends, policies, or 
practices that could lead to higher segregation in the jurisdiction or 
region in the future, is not to be read as HUD seeking an inventory of 
local laws, policies, or practices. Understanding the demographic 
patterns and trends of a PHA's service area contextually within the 
PHA's region is important to identify fair housing issues and related 
contributing factors affecting the PHA's operations and inform goal 
setting designed to affirmatively further fair housing, especially for 
portability and increasing choice in the housing choice voucher 
program. Fair housing issues and contributing factors are often not 
bound by geographic or political boundaries. PHAs are not expected to 
conduct a neighborhood-by-neighborhood or jurisdiction-by-jurisdiction 
analysis, but instead are asked to identify patterns and trends over 
time. PHAs are advised to begin the regional analysis starting with 
areas immediately surrounding the PHA service areas. This analysis will 
cover residential living patterns, segregated and R/ECAP areas more 
integrated areas of opportunity (with access to proficient schools, 
public transportation and employment opportunities) in the immediate 
jurisdictions outside of their service area where there is adequate 
rental supply available for lease-up and utilization by voucher 
holders. The regional analysis will also use integrated areas of 
opportunity that are feasible for new construction of affordable 
housing that will enhance mobility and decrease concentration of 
protected class while adding to the supply of affordable, low-income 
housing. HUD will continue to provide data through the AFFH-T as it 
becomes available.
    HUD is exploring options for posting AFHs as an online resource for 
program participants and the public.
    HUD appreciates comments regarding simplifying analysis and 
believes in this final version of the Assessment Tool designed for PHAs 
that it has undertaken significant steps to do so, including tailoring 
of questions, instructions, and contributing factor descriptions to the 
public housing and Housing Choice Voucher operations of PHAs. Regarding 
the comment on regional analysis and analysis of transportation, 
schools, and work to reduce disparities in access to opportunity for 
protected classes and recipients of publicly supported housing, HUD 
believes that such analyses are important to achieving meaningful fair 
housing outcomes. In particular, a PHA's regional analysis provides a 
contextual baseline for PHAs to understand the residential living 
patterns, rental market, and the unique fair housing issues and 
challenges facing their operations and service areas. In addition, such 
a regional analysis is important for understanding fair housing 
outcomes in the broader region related to mobility, portability, and 
collaborative efforts and goals with neighboring organizations, 
including other PHAs, such as the use of shared waitlists, landlord 
lists, and other collaborative efforts designed to address barriers to 
meaningful fair housing choice involving voucher mobility or production 
of affordable housing in areas of opportunity throughout a region. To 
achieve these types of goals, regional analysis and collaboration or 
information sharing is necessary among PHAs and local governments. With 
respect to analysis of transportation, schools, and work, HUD notes 
that disparities in access to such opportunities affect the PHA's 
assisted residents, and waitlisted residents, but also have significant 
importance from a fair housing perspective when considering goals such 
as how to increase voucher utilization in areas of opportunity to 
overcome disparities by protected classes in accessing such 
opportunities and when siting affordable housing. HUD has taken steps 
to streamline this analysis, while maintaining efforts at appropriate 
fair housing outcomes. Analysis of disparities in access to opportunity 
for the PHA's service area can be helpful for considering how the PHA's 
own assets (and HCVs where applicable) are positioned and in 
identifying places in the surrounding area that might be appropriate 
for additional new affordable housing opportunities when possible. Some 
of these issues may be beyond the scope of expertise for PHA staff, but 
consultation and cooperation with government agencies may be helpful. 
HUD acknowledges that staffing and funding realities may limit the 
level of inter-governmental and inter-agency interaction that is 
possible, as well as the availability and cooperation of other agencies 
or organizations to participate or to engage in information sharing, 
mutual analysis, or goal setting. Nonetheless, shared information and 
resources may assist PHAs and other agencies with meeting fair housing 
objectives. In support of this goal of PHAs performing a fair housing 
analysis and to address the workload concerns of PHAs, this Notice 
clarifies that HUD has increased the threshold for PHAs with 1,250 or 
fewer combined units to use the insert.
    HUD appreciates the comment regarding the unique service areas of 
regional PHAs and has provided a baseline set of data and expectations 
as far as regional analysis for such entities. The instructions and 
this notice provide more information to PHAs on how to identify the 
required regional analysis based on their different geographic areas. 
HUD notes that all program participants may conduct analysis beyond the 
baseline required by the Assessment Tool.
    HUD appreciates the comments regarding the provision of data. HUD 
continues to evaluate methods of reliably providing additional 
nationally available sources of data, including data that may be 
provided in other HUD programs, to program participants.
    5. Are there other ways in which HUD can further tailor this 
Assessment Tool for use by PHAs? If so, please provide specific 
recommendations for how particular questions may be reworded while 
still conducting a meaningful fair housing analysis, or questions that 
are not relevant for conducting a meaningful fair housing analysis, or 
other specific suggestions that will reduce burden for PHAs while still 
facilitating the required fair housing analysis.
    Commenters noted ways in which HUD could further tailor the 
Assessment Tool for PHA use. One commenter suggested that HUD create a 
shorter guidance document specifically from the PHA's perspective. 
Commenters noted that HUD should

[[Page 4379]]

tailor the Tool to focus more on housing preservation strategies and 
HUD should eliminate the analysis of rental housing, since it is not 
applicable to PHAs. Another commenter stated that HUD should provide a 
streamlined set of questions for QPHAs that choose not to collaborate.
    HUD response: HUD thanks commenters for their suggestions. HUD will 
issue further guidance to assist program participants, including PHAs, 
in completing their AFHs. HUD appreciates the suggestion to 
specifically release a streamlined guidance document for smaller PHAs. 
HUD will continue to provide guidance involving the balanced approach 
and mobility and comprehensive community revitalization strategies to 
address areas where PHAs engage in preservation and new construction of 
affordable housing in their jurisdictions. HUD added a question to the 
insert for PHAs to identify areas where PHAs engage in comprehensive 
community revitalization strategies and to address fair housing and 
disparities in access to opportunity issues. HUD has committed to 
developing a fourth Assessment Tool specifically for use by QPHAs who 
choose to conduct and submit an individual AFH or that collaborate with 
other QPHAs to conduct and submit a joint AFH.
    6. Whether HUD should include any other contributing factors or 
amend any of the descriptions of the contributing factors to more 
accurately assess fair housing issues affecting PHAs' service areas and 
regions. If so, please provide any other factors that should be 
included or any additional language for the contributing factor 
description for which changes are recommended.
    A number of commenters provided other contributing factors that 
they believe HUD should add to the Assessment Tool. A commenter 
suggested adding adverse housing decisions and policies based on 
criminal history as a factor. Another suggestion was to add landlords 
exiting the HCV program into the description of the contributing 
factor, ``displacement of residents due to economic pressures.'' A 
commenter proposed that lack of public and private investment should 
not be merged into one contributing factor, but suggested that HUD add 
``and/or'' between the two if it does merge the factors. The commenter 
also mentioned that HUD should add ``discrimination on the basis of 
limited English proficiency'' to the ``lack of meaningful language 
access'' contributing factor, and this should make reference to HUD and 
USDA's LEP guidance and Title VI. A commenter suggested adding lead-
based paint to the environmental health hazards factor, editing the 
factor regarding ``survivors of domestic violence'' to be consistent 
with the Violence Against Women Act by including survivors of sexual 
assault, dating violence, and stalking, adding in a factor for 
displacement and lack of housing support for victims of harassment 
based on membership in a protected class, and including individuals 
with disabilities under the ``nuisance laws'' factor. The commenter 
applauded HUD's addition of ``Policies related to payment standards, 
FMR, and rent subsidies,'' but suggested that it also include PHA's 
policies and procedures for determining rent reasonableness for the 
Housing Choice Voucher program. A commenter suggested that ``Private 
Discrimination'' should not have been omitted, and that HUD should add 
it back into the Assessment Tool. Another commenter mentioned that 
contributing factors that are only addressed in some sections, such as 
lack of meaningful language access, should be included in all sections. 
The commenter suggested adding ``limitations of federal regulations,'' 
``low vacancy cities,'' and place-based nature of public housing as 
contributing factors. Another commenter noted that ``access to reliable 
automobile transportation'' should be added to the Disparities in 
Access to Opportunity section. A commenter noted that HUD should remind 
Program Participants that ``PHAs are required to identify contributing 
factors that are not listed if that contributing factor creates, 
perpetuates, contributes to, or increases the severity of at least one 
fair housing issue.''
    Other commenters suggested that HUD limit contributing factors in 
the Assessment Tool. Commenters noted that contributing factors should 
be limited to those that are ``housing related.'' A commenter mentioned 
that in the segregation section of the tool, the contributing factor 
related to admissions and occupancy policies and procedures should be 
limited to a discussion of only the PHA's policies and procedures, 
because otherwise it is too broad and requires PHAs to collect and 
analyze policies from hundreds of properties.
    HUD Response: HUD thanks commenters for their suggestions. In the 
final version of the Assessment Tool, HUD has tailored the descriptions 
of the contributing factors so that they better apply in the context of 
a PHA's analysis. HUD will continue to update and provide guidance to 
assist PHAs as they consider contributing factors of fair housing 
issues in completing their AFHs.
    While HUD has amended some contributing factors descriptions so 
that they are better tailored to meet the ways in which PHAs operate, 
HUD reminds program participants that they must identify contributing 
factors for their service area and region if that factor significantly 
creates, contributes to, perpetuates, or increases the severity of one 
or more fair housing issues. HUD acknowledges that program participants 
may need to identify contributing factors that are outside of their 
control or the boundaries of their service areas. If the program 
participant has met its planning requirements by identifying such 
factors, but addressing those factors is outside that program 
participant's control, the program participants are expected to 
undertake appropriate, good faith collaborative and outreach efforts 
with local government, private sector and other applicable governmental 
entities related to goal-setting to address the identified fair housing 
issue. HUD notes that addressing these types of contributing factors 
may require a collaborative approach that includes local, state, and 
private sector entities, and HUD encourages such collaboration.
    HUD appreciates the suggestions from commenters of other 
contributing factors that may create, contribute to, perpetuate, or 
increase the severity of one or more fair housing issues in the PHA's 
service area or region. HUD agrees with the commenter that suggested 
that vacancy rates in cities may contribute to, perpetuate, or increase 
the severity of one or more fair housing issues, and has noted this in 
the updated definition of ``lack of access to opportunity due to high 
housing costs.'' HUD accepts the comment to add ``and/or'' between 
``private'' and ``public'' in the contributing factor related to 
investment. HUD thanks the commenter for the recommendation to revise 
the ``domestic violence'' contributing factor so that it is consistent 
with VAWA, and has accepted this recommendation. HUD has also added a 
definition of ``private discrimination'' into the tool, in combination 
with ``lack of fair housing laws.''
    7. Whether the inclusion of the ``insert'' for Qualified PHAs 
(QPHAs) will facilitate collaboration between QPHAs and non-qualified 
PHAs, and whether these entities anticipate collaborating to conduct 
and submit a joint AFH. Please note any changes to these inserts that 
(a) would better facilitate collaboration; (b) provide for a more 
robust and meaningful fair housing analysis; and (c) encourage

[[Page 4380]]

collaboration among these program participants that do not anticipate 
collaborating at this time.
    Commenters support the inclusion of the QPHA insert and commended 
HUD for reducing administrative burden, and some suggested that HUD go 
even further. Commenters noted that all PHAs should be able to use the 
QPHA insert, as this will facilitate PHAs to collaborate with States, 
and the QPHA insert should be the approach for all program 
participants, regardless of whether they are collaborating. A commenter 
noted that the insert should not require QPHAs to conduct a regional 
analysis. Commenters believe that the QPHA insert will facilitate 
collaboration, and offered suggestions for how to further facilitate 
this collaboration. One commenter noted that a way to do this is to 
integrate data from multiple agencies across tables and maps. Another 
commenter asked HUD to provide assurances that PHAs will be able to 
certify under their State's plan.
    Other commenters appreciated HUD's efforts to reduce burden on 
small entities, but suggested that the QPHA insert be eliminated or 
revised in order to ensure a meaningful analysis. A commenter warned 
that the QPHA insert could send a message to QPHAs that they will be 
held to a different standard of analysis and it risks creating 
confusion. The commenter was particularly concerned that HUD combined 
all of the opportunity indicators into one question in the insert. The 
commenter suggested that the policies and practices section of the 
Publicly Supported Housing section should ask the QPHA to consider its 
Admission and Continued Occupancy Plan (ACOP) and Administrative Plans 
more broadly, as this merely requires QPHAs to evaluate aspects of 
their current policies and will not increase burden. PHAs should report 
on grounds for denial of admission, evictions, or terminations of 
subsidies, policies regarding accessibility for persons with 
disabilities and to LEP persons.
    HUD Response: HUD thanks commenters for their responses to the 
insert. By allowing the inserts for some PHAs, HUD has sought to reduce 
burden on smaller program participants, while still facilitating a 
robust analysis of fair housing issues that will allow these PHAs to 
set meaningful fair housing goals and priorities. The approach adopted 
attempts to address the issue of burden for these smaller agencies, by 
organizing the identification of contributing factors for the four fair 
housing issues (Segregation, R/ECAPs, Disparities in Access to 
Opportunity, and Disproportionate Housing Needs) in one step. This is 
intended to reduce any unnecessary duplication of effort and to better 
focus the analysis and identification steps to help produce meaningful 
fair housing goals. HUD has decided to reduce the burden for PHAs with 
1,250 or fewer combined public housing and Housing Choice Voucher units 
by permitting them to also use the insert. At this time, HUD declines 
to extend the use of the insert to include all program participants but 
will continue to explore ways to reduce burden, regional HCV mobility 
planning and execution, and synchronization of AFH and PHA Agency 
planning, while appropriate analysis of fair housing issues is 
undertaken. HUD will continue to consider ways to incentivize and 
expand collaborations among PHAs to establish regional HCV mobility and 
portability efforts to increase tenant choice and utilization, PHA 
cooperation, and landlord outreach across multiple PHA service areas 
and regions. However, HUD has designed Assessment Tools that allow for 
collaboration between local governments and PHAs with 1,250 or fewer 
units and States and PHAs with 1,250 or fewer units. HUD has also 
committed to developing an additional Assessment Tool specifically for 
use by Qualified PHAs (QPHAs) who choose to conduct and submit an 
individual AFH or that collaborate with other QPHAs to conduct and 
submit a joint AFH.
    With respect to the comment about PHAs certifying under their 
State's plan, HUD notes that PHAs will be able to partner with States 
when the State acts as the lead entity in the Assessment Tool designed 
for States, but that each program participant is ultimately responsible 
for its own assessment of fair housing and certifications. HUD will 
continue to seek ways to flexibly allow for collaborations by PHAs with 
other program participants.
    HUD disagrees with the comment that the addition of streamlined 
Assessment Tool inserts for smaller program participants might 
inadvertently send a message that such smaller program participants are 
being held to a different standard of analysis. As HUD stated in the 
Preamble to the AFFH Final Rule, ``. . . HUD commits to tailor its 
[Assessment Tools] to the program participant in a manner that strives 
to reduce burden and create an achievable AFH for all involved. HUD 
intends to provide, in the Assessment Tool, a set of questions in a 
standard format to clarify and ease the analysis that program 
participants must undertake. The Assessment Tool, coupled with the data 
provided by HUD, is designed to provide an easier way to undertake a 
fair housing assessment.'' 80 FR 42272, at p. 42345 (July 16, 2015). 
Moreover, the inclusion of the inserts is also intended to facilitate 
joint and regional partnerships with smaller program participants. Such 
partnerships can result not only in improved planning and fair housing 
analysis but in intergovernmental and interagency cooperation and 
collaboration in goal setting, program operations, and results.
    HUD has revised the Policies and Practices question in the insert, 
as it did in the Local Government tool, to elicit a more meaningful 
fair housing analysis by prompting PHAs of the types of policies and 
practices to consider with a focus on HCV portability, mobility, 
balanced approaches and comprehensive community revitalization 
strategies.
    8. Whether HUD's change to the structure and content of the 
questions in the Disparities in Access to Opportunity section with 
respect to the protected class groups that PHAs must analyze is 
sufficiently clear and will yield a meaningful fair housing analysis. 
Additionally, HUD specifically solicits comment on whether an 
appropriate fair housing analysis can and will be conducted if the 
other protected class groups are assessed only in the ``Additional 
Information'' question at the end of the section, as opposed to in each 
subsection and question in the larger Disparities in Access to 
Opportunity section. HUD also requests comment on whether it would be 
most efficient for PHAs to have the protected class groups specified in 
each question in this section. If so, please provide an explanation. 
Alternatively, HUD requests comment on whether each subsection within 
the Disparities in Access to Opportunity section should include an 
additional question related to disparities in access to the particular 
opportunity assessed based on all of the protected classes under the 
Fair Housing Act.
    Commenters expressed concern that the Assessment Tool does not 
require program participants to consider local data and local knowledge 
in completing the Disparities in Access to Opportunity section. 
Commenters suggested that PHAs should consider other protected classes 
under the Fair Housing Act and other fair housing laws, including sex 
and disability. Since the questions currently instruct program 
participants to answer based on HUD-provided data, and national data on 
disabilities is limited, commenters noted that this section excludes 
persons with disabilities. Commenters suggested that program 
participants use local data and

[[Page 4381]]

local knowledge, to the extent available, in the context of the 
opportunity indicator at issue to consider other protected classes.
    HUD Response: HUD thanks commenters for their suggestions. Note, 
the regional analysis in the Disparities in Access to Opportunity 
section is only applicable to PHAs that administer HCVs. HUD believes 
that the structure of this section of the Tool in the version of the 
Tool that accompanied the 30-day PRA notice presents the appropriate 
questions to yield a meaningful analysis. HUD notes that in the final 
version of the Assessment Tool designed for PHAs, the instructions 
clarify for which questions and which protected classes HUD is 
currently providing data and for which questions local data and local 
knowledge, including community participation, will be used to answer 
questions regarding other protected classes. With respect to access to 
opportunity for individuals with disabilities, the instructions note 
that the second question in each section of the Disparities in Access 
to Opportunity section notes that disability may be identified either 
in such responses or in the responses related to disparities in access 
to opportunity in the Disability and Access section, or both, provided 
all required aspects are analyzed.
    9. What sources of local data or local knowledge do PHAs anticipate 
using with respect to their analysis? Please specify which sections of 
the Assessment Tool PHAs anticipate using local data and local 
knowledge. For example, what sources of local data or local knowledge, 
including information obtained through the community participation 
process and any consultation with other relevant governmental agencies, 
do PHAs anticipate using for the service area as compared to the region 
regarding disparities in access to opportunity? Are there any different 
sources of local data or local knowledge for the question on 
disparities in access to opportunity in the publicly supported housing 
section?
    Commenters noted a number of sources of local data and local 
knowledge that they anticipate using. These sources include their own 
internal demographics data collected through the annual review process 
for its public housing and Section 8 programs; data through a specific 
PHA's open portal on transportation, education and schools, 
environment, housing and development, and health and human services; 
community outreach to stakeholders, local service providers, local 
government agencies, program participants, and advocates; and internal 
information systems. A commenter noted it would use information from 
the PHA's housing and vacancy survey, as conducted by the Census 
Bureau, which enables PHAs to conduct extensive analysis of the 
locality's residential population and households, race/ethnicity, 
household composition and types, crowding and doubling-up, immigration, 
incomes and labor market, education, homeownership, the housing 
inventory, vacancies and vacancy rates, rent levels, affordability, and 
conditions of housing and neighborhoods including trends. A commenter 
mentioned that it will use local data and local knowledge in analyzing 
factors that prevent clients from accessing housing or constitute other 
barriers to opportunity. One commenter expressed concern that using 
local data and local knowledge will divert agency staff from completing 
their housing-related duties.
    HUD Response: HUD thanks commenters for their responses. As HUD 
provides continued guidance and information on how program participants 
can use local data and local knowledge to facilitate a meaningful 
analysis of fair housing issues and goal setting and priorities, it 
will consider how to use this helpful information from commenters. HUD 
anticipates that it will continue to update guidance materials to 
identify potential sources of local data and local knowledge, including 
sources identified by public commenters through the various public 
comment periods associated with the Paperwork Reduction Act process 
associated with the various Assessment Tools. HUD also encourages 
commenters and other stakeholders to participate in and provide 
information during community participation when PHAs and other program 
participants in their communities are preparing to submit their AFHs.
    (10) Whether the instructions to the Assessment Tool provide 
sufficient detail to assist PHAs in responding to the questions in the 
Assessment Tool. If not, please provide specific recommendations of 
areas that would benefit from further clarity.
    A commenter requested that HUD provide a streamlined guidance 
document to assist in completing the Assessment Tool and using the 
instructions.
    A commenter stated that instructions on goals and priorities are 
not sufficient, and it is unclear what factors would not meet the 
standards for prioritization.
    HUD Response: In this final version of the PHA Assessment Tool, HUD 
has tailored the instructions to provide PHAs with more guidance as 
they complete the Assessment Tool, including instructions related to 
contributing factors, prioritization, goal-setting and the scope of 
regional analysis in the AFH. HUD will continue to explore options for 
further guidance beyond the instructions. HUD will provide additional 
guidance for specific questions where local data and knowledge can be 
used to respond to specific questions due to HUD data limitations.
    (11) How can HUD best facilitate the analysis PHAs must conduct 
with respect to disparities in access to opportunity? For example, are 
questions based on the overall service area and region of the various 
opportunity indicators the best way for PHAs to identify access to 
opportunity with respect to their residents, including voucher holders? 
With regards to disparities in access to opportunity, how might the PHA 
identify contributing factors and set goals for overcoming disparities 
in access to opportunity?
    Some commenters suggested that HUD make this section optional for 
PHAs because these questions are not relevant to a PHA's operations. 
They note that PHAs have little control over transportation, 
employment, and schools in a large metropolitan area. One commenter 
stated that in particular, PHAs should not be required to analyze job 
training data. Another commenter noted that the analysis of disparities 
in access to opportunity affecting individuals with disabilities is 
burdensome because data is not available and it should be deleted.
    HUD Response: HUD disagrees with commenters who stated that the 
questions asked in the Disparities in Access to Opportunity section of 
the Tool are not relevant to a PHA's operations. PHAs are required to 
identify the fair housing issues and disparities in access to 
opportunities that are present in their service areas and regions, as 
even issues beyond the PHA's control can affect the residents that the 
PHA serves. Indeed, some PHAs may have little influence over education, 
transportation, and job-related activities. HUD notes, however, that 
PHAs are responsible for ensuring that their programs and activities 
are administered in a manner to affirmatively further fair housing, and 
that PHAs are responsible for ensuring the administration of such 
programs and activities do not perpetuate, contribute to, or exacerbate 
fair housing issues. HUD recognizes that some of these issues may be 
outside of the PHA's control and staff expertise, and as more fully 
discussed in HUD guidance and in this notice, the AFH planning

[[Page 4382]]

framework, including prioritization of significant contributing factors 
and setting goals, allows for program participants to match their goals 
to their unique local circumstances. HUD notes that while PHAs should 
identify all relevant contributing factors, even if they are outside of 
the PHA's control, PHAs should select goals that are within the control 
of the PHA, and that are realistically designed to affirmatively 
further fair housing.
    HUD notes that addressing certain types of contributing factors may 
require a collaborative approach that includes local, State, and 
private sector entities. Program participants are expected to identify 
contributing factors regardless of their ability to exert control over 
a contributing factor or their proximity to the contributing factor 
identified if that factor significantly creates, contributes to, 
perpetuates, or increases the severity of one or more fair housing 
issues. However, if the program participant has met its planning 
requirements by identifying such factors, but addressing those factors 
is outside that program participant's control, the program participants 
are expected to undertake good faith collaborative and outreach efforts 
in the form of appropriate goals with local government, private sector, 
and other applicable governmental entities to address the identified 
fair housing issue and related contributing factors.
    (12) What additional guidance would be useful to PHAs to assist in 
conducting the fair housing analysis in the Assessment Tool? In 
particular, which fair housing issues and contributing factors would 
benefit from additional guidance? For example, in the disparities in 
access to opportunity section, what guidance would PHAs benefit from?
    A commenter suggested that to provide guidance, HUD should publish 
sample AFHs from various size program participants. Another commenter 
stated that HUD should provide additional guidance on the 
prioritization of contributing factors and goals.
    HUD Response: HUD thanks commenters for their suggestions and will 
continue to explore ways to facilitate meaningful AFHs by issuing 
further guidance. HUD is exploring options for posting AFHs as an 
online resource for program participants and the public. HUD has 
provided additional guidance in the Tool's instructions about 
prioritization of contributing factors and goals.
    (13) In the publicly supported housing section, there are several 
questions related to assisted housing programs that are not owned or 
operated by the PHA. Are these questions sufficiently clear, or would 
additional instructions beyond those that are provided be helpful to 
PHAs in answering these questions? Are there other or different 
questions that would facilitate the PHAs' analyses of publicly 
supported housing, specifically for the other categories of publicly 
supported housing included in this Assessment Tool?
    A number of commenters had specific suggestions for improving this 
section. A commenter suggested questions to be added to the Assessment 
Tool regarding the Housing Choice Voucher (HCV) program and geographic 
mobility. The commenter urged HUD to include these questions in the 
main Assessment Tool and not only in the QPHA insert, because this is 
HUD's largest assisted housing program, and persons receiving HCV 
assistance often face barriers to mobility. Another commenter suggested 
that HUD ask about waiting list demographics. A commenter suggested 
that the word ``voucher'' be added to the phrase ``project-based 
developments'' in Question V.D.1.b.i. to clarify that this refers to 
properties where the PHA has entered into a contract to provide 
project-based voucher assistance. A commenter suggested adding to the 
end of Question V.D.2.b.iv.A, which asks about LIHTC, ``and whether 
there are differences in the neighborhood attributes of LIHTC 
developments where the PHA's vouchers are in use by members of 
protected classes.'' A commenter stated that PHAs participating in RAD 
should be asked whether their tenants are informed of their Choice/
Mobility options and are offered moving assistance. Another commenter 
expressed that PHAs should not have to analyze housing stock outside of 
its control.
    A commenter noted that it supported HUD's balanced approach, but 
was concerned that PHAs will not make meaningful changes, and therefore 
requested that HUD keep the balanced approach in perspective when it 
revises the Guidebook.
    HUD Response: HUD appreciates commenters' responses. HUD accepted 
the commenter's suggestion to add the word ``voucher'' to the phrase 
``project-based developments'' in Question V.D.i.2.a (previously 
question V.D.1.b.i). HUD has also revised the Tool to help PHAs to 
better analyze the fair housing impacts on persons in the HCV program 
by encouraging program participants to do outreach to HCV holders while 
conducting community participation, and by asking about HCV holders in 
the questions within this section.
    HUD disagrees with commenters who noted that PHAs should only 
analyze housing stock in its control. Issues beyond the PHA's express 
control can affect the participants that the PHA serves.
    In a broader context related to the balanced approach to 
affirmatively furthering fair housing, HUD has made a number of 
modifications to the Assessment Tool to recognize the importance of 
preserving existing affordable housing in connection with affirmative 
fair housing goals and strategies in connection with community 
revitalization, as well as modifications with respect to mobility. The 
balanced approach does not relieve PHAs of their duties to set 
meaningful goals and priorities to overcome fair housing issues in 
their jurisdictions and regions. As HUD's own studies on worst case 
needs for affordable housing make clear, there is an ongoing national 
crisis in housing affordability that particularly affects lower income 
families. In many local and regional housing markets, low income 
households are priced out of the market altogether with some form of 
income support or housing subsidy being needed to access decent, safe 
and affordable housing. This makes the preservation of the existing 
limited supply of long-term affordable stock a key component of any 
balanced approach to addressing the fair housing issues and 
contributing factors identified in assessments of fair housing. At the 
same time, HUD maintains the importance of mobility solutions in 
connection with affirmative fair housing goals and strategies, and 
notes that such strategies are not mutually exclusive.
    In support of HUD's commitment to the balanced approach to 
addressing fair housing issues, a number of key changes have been made 
to the Assessment Tool:
    (1) Added the contributing factor on the ``Loss of Affordable 
Housing.'' This factor was previously released for public comment as 
part of the Assessment Tool for States and Insular Areas. This 
contributing factor notes that, ``The loss of existing affordable 
housing can limit the housing choices and exacerbate fair housing 
issues affecting protected class groups.'' This factor, along with the 
contributing factor on ``displacement of residents due to economic 
pressures,'' allows program participants to recognize the need to 
preserve affordable housing in areas undergoing economic improvement as 
a way of maintaining access to opportunity assets for low-income 
residents and protected class groups as these areas experience 
increased opportunity.
    (2) The Assessment Tool has strengthened the connection between the 
analysis of disproportionate housing

[[Page 4383]]

needs and the analysis in the publicly supported housing section. These 
changes include adding an instruction noting that the analysis in these 
sections can be compared to each other, as well as by clarifying the 
analysis questions in the insert to compare the demographics of who is 
receiving housing assistance with disproportionate housing needs. The 
instructions to the insert have also been clarified to note the policy 
linkage between this analysis and the overriding housing needs analysis 
required in the PHA Plan as one possible practical application of the 
AFH analysis.
    (3) Adding instructions on LIHTC. The instructions indicate that 
program participants may distinguish between nine percent and four 
percent tax credits and the different uses that each can be used for, 
while analyzing the relation of such tax credit properties to fair 
housing issues and related contributing factors, including 
distinguishing for rehabilitation and preservation of affordable 
housing and for the various priorities available to state allocating 
agencies in meeting unique housing needs in their jurisdictions, in the 
context of identifying fair housing issues and related contributing 
factors.
    (4) Adding more detail to the instructions for the additional 
information questions in the Publicly Supported Housing section. These 
questions provide an opportunity for program participants to reference 
or highlight efforts intended to preserve affordability in order to 
meet unmet and disproportionate housing needs in the context of fair 
housing issues and related contributing factors. The added instructions 
state that, ``Program participants may describe efforts aimed at 
preserving affordable housing, including use of funds for 
rehabilitation, enacting tenant right to purchase requirements, 
providing incentives to extend existing affordable use agreements and 
preventing Section 8 opt-outs, encouraging the use of RAD conversion 
and the PBRA transfer authority. Program participants may also describe 
positive community assets and organizations, including community 
development corporations, non-profits, tenant organizations, community 
credit unions and community gardens.''
    (14) There have been new questions added to the Disability and 
Access Analysis section, under ``Housing Accessibility'' (Questions 
2(d) and 2(e)). Are these questions sufficiently clear, or would 
additional instructions beyond those that are provided be helpful to 
PHAs in answering these questions? Are there other or different 
questions that would facilitate the PHAs' analyses of disability, 
specifically related to housing accessibility?
    A commenter noted that questions in this section regarding 
disability and access should direct PHAs to consider local data and 
local knowledge, and HUD should instruct program participants that 
information gathered in community participation may provide valuable 
insight into the efficacy of the PHA's actions to engage in effective 
communications with persons with disabilities. Commenters stated that 
instructions should provide greater clarity to program participants 
regarding local data and local knowledge. The commenter noted that 
instead of instructing program participants to ``supplement'' HUD-
provided data with local data and local knowledge, HUD should instruct 
program participants that local data and local knowledge ``will likely 
be particularly useful'' and PHAs should be required to contact Centers 
for Independent Living (CILS), provide evidence of the efforts they 
made to collect local data and local knowledge, and note a lack of 
local data and local knowledge if there is none available.
    A commenter offered suggestions for questions that would further 
facilitate the PHA's analysis of disability. The commenter stated that 
in its current form, the Assessment Tool does not consider individuals 
with disabilities in relation to other barriers and it should consider 
intersectionality of disability and other protected classes. In this 
section, the Assessment Tool should ask about low poverty 
neighborhoods, environmentally healthy neighborhoods, and patterns in 
disparity in access to opportunity. The commenter offered the example 
that questions about effective communication should also include LEP.
    Another commenter noted that it disagreed with the Assessment 
Tool's requirement to analyze integration of individuals with 
disabilities in the regions, and felt it required PHAs to assess 
Olmstead plans developed by other entities.
    HUD Response: HUD has considered the public comments and has 
removed Question 2(e) under ``Housing Accessibility'' from the 
Assessment Tool, and instead explains in instructions that program 
participants should ``consider policies and practices that impact 
individuals' ability to access the housing, including such things as 
wait list procedures, admissions or occupancy policies (e.g., income 
targeting for new admissions), residency preferences, availability of 
different accessibility features, and Web site accessibility'' when 
responding to Question 2(b) in that section.
    HUD encourages PHAs and all program participants to seek the input 
of stakeholders, such as civil rights and disability rights groups, 
when conducting its community participation. Stakeholder groups are 
valuable sources of information and they can provide program 
participants with local data and local knowledge that will assist the 
PHA in completing its AFH and conducting a meaningful analysis of fair 
housing goals and priorities.
    HUD thanks commenters for their suggestion that the Assessment Tool 
consider intersectionality of disability and other protected classes. 
In the instructions to the Tool, HUD notes that ``individuals can be 
members of more than one protected class, for instance, race, 
ethnicity, national origin often overlap, as will persons with 
disabilities with other protected characteristics. PHAs are expected to 
analyze fair housing issues with respect to individuals with 
disabilities who are also members of additional protected classes.''
    (15) Are there other ways HUD can clarify the questions in the 
Assessment Tool, for example, through the provision of additional 
instructions, or different instructions from those that have been 
provided? Additionally, are there other or different questions or 
instructions that would better assist State PHAs in conducting their 
fair housing analysis? Please specify whether a particular section, 
question, or set of instructions requires clarification.
    Commenters suggested that the Assessment Tool should more clearly 
define the definitions of service area and region. This will help PHAs 
to understand the exact regional area that must be covered and the data 
necessary to complete the analysis.
    HUD Response: In response to commenters' request for more 
information regarding the service area and region that PHAs must 
analyze when completing their AFHs, HUD has added a chart identifying 
applicable regions for various size PHAs in terms of geography and 
operations and language to the instructions of the Assessment Tool. 
Appendix A at Part V: Fair Housing Analysis, explains these definitions 
in detail. The PHA's region varies based on its service area. The 
revised instructions to the Assessment Tool now include: (1) A 
description of the service area, also known as the jurisdiction, of 
various size PHAs in terms of their authorized geographic operations; 
(2) a description of the PHA's region for purposes of analysis

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under the AFFH rule; (3) a description of the HUD-provided data for the 
PHA's applicable region; (4) instructions related to use of data and 
identification of fair housing issues and related contributing factors 
for different size PHAs; and (5) instructions related to rural PHAs, 
State PHAs, Regional PHAs, and PHAs in Insular Areas.
2. Other Issues Raised by the Public Commenters
PHA Control Over Contributing Factors
    Commenters expressed concerns regarding legal exposure resulting 
from program participants' identification of contributing factors and 
goals set to address fair housing issues in the AFH. Specifically, 
commenters were concerned that many contributing factors address issues 
beyond the program participants' control and/or outside of the program 
participants' jurisdiction or service area for PHAs. Some commenters 
have expressed concern about potential litigation and expressed 
reluctance with regard to identifying contributing factors and 
developing goals that are primarily outside of their control or under 
the jurisdiction of the State or other local governments. These 
commenters have asked whether HUD acceptance of their AFH goals would 
shield program participants from litigation.
    The commenters requested that HUD take into account whether past 
goals may not be achieved due to a lack of external support, a lack of 
collaborative action from State or local government entities, or 
private sector investment when reviewing submitted AFH plans.
    Commenters have requested that HUD shield program participants from 
stakeholder litigation if a program participant fails to achieve a 
collaborative AFH goal when that program participant exerts good faith 
efforts to achieve collaborative AFH goals.
    HUD Response: HUD recognizes the concerns of these commenters. HUD 
notes that the AFH is a planning tool. By providing data and 
information intended to inform local planning and decision making. The 
AFFH process is intended to assist program participants in meeting 
their legal obligation to affirmatively further fair housing, which 
continues beyond the submission of the AFH. Program Participants have 
an ongoing obligation to comply with the Fair Housing Act and other 
civil rights requirements.
    Regarding the requirement that program participants, including 
PHAs, must identify significant fair housing issues and contributing 
factors that may be outside of their control to influence, HUD notes 
that doing so is still important for planning purposes. Even if they 
may not have the direct ability to impact or exert control over 
contributing factors, identifying these factors can, for example, 
provide context for the barriers facing the eligible populations that 
the PHA serves. HUD acknowledges that program participants may identify 
contributing factors that are outside of their control or the 
boundaries of their service areas. The AFH is a planning document, and 
a basic tenet of planning and performance management is recognition of 
``external factors'' and other barriers to achieving goals, which 
sometimes are beyond an organization's control (See, e.g., the Federal 
Government Performance and Results Act). The final AFFH rule requires 
grantees to identify such barriers. Included in such considerations is 
the identification of resources such as staffing and funding. HUD notes 
that addressing these types of contributing factors may require a 
collaborative approach that includes action by local, State, and 
private sector entities. Identifying contributing factors outside the 
control of a program participant may also be useful for considering 
interagency or public-private collaborative efforts. Program 
participants are expected to identify contributing factors regardless 
of their ability to exert control over a contributing factor or their 
proximity to the contributing factor identified if that factor 
significantly creates, contributes to, perpetuates, or increases the 
severity of one or more fair housing issues. However, if the program 
participant has met its planning requirements by identifying such 
factors, but addressing those factors is outside that program 
participant's control, the program participants are expected to 
undertake good faith collaborative and outreach efforts with local 
government, private sector, and other applicable governmental entities 
to address the identified fair housing issue. When these type of 
substantive collaborative actions are undertaken to address 
contributing factors outside of their direct sphere of influence or the 
service area of PHAs, HUD monitoring and oversight actions will take 
into consideration that there may be extenuating circumstances when 
there is a lack of collaboration by partnering program participants or 
private sector entities. Therefore, although collaborating program 
participants are responsible for any joint goals that are set, each 
collaborating program participant is only accountable for meeting its 
own planning requirements in addressing the contributing factors and 
related fair housing issues.
    HUD encourages program participants to set fair housing goals that 
are within their sphere of influence that can be reasonably expected to 
be achieved. Goals and priorities in the AFH should be meaningful, 
realistic, and focus on changes that are achievable. HUD understands 
that achievement of certain goals may depend on what resources are 
available or will become available within the timeframe set for 
achievement. Program participants have latitude in setting goals to 
account for available resources and to prioritize strategies and 
actions that are more likely to be successful and to achieve the 
greatest impact. A program participant need not, and indeed should not, 
set a goal over which it maintains no control. There may be instances 
where a program participant's efforts to address contributing factors 
it has control over will assist another program participant with a goal 
it has set.
    HUD recognizes public commenters' concerns regarding their ability 
to control contributing factors and their proximity to these 
contributing factors. HUD recommends program participants distinguish 
between significant contributing factors they control, and those they 
do not, as well as how they might respond to contributing factors they 
do not control, but can address in the context of their own operations. 
PHAs, in particular, are advised to consider these issues as they 
prioritize contributing factors and establish meaningful goals to 
overcome the effects of the fair housing issues they can control.
    HUD has included instructions in the Assessment Tools, and has 
issued additional guidance to clarify how program participants, 
including PHAs, may set collaborative goals to address contributing 
factors and fair housing issues that are beyond their direct purview, 
control, or expertise. HUD anticipates including further guidance, 
including in an updated version of the AFFH Rule Guidebook, on 
identifying contributing factors, prioritizing them, and setting 
appropriate goals.
HUD Provided Data
    Several commenters provided feedback on HUD-provided data that is 
to be used to complete the AFH. A number of commenters noted that the 
data currently provided by HUD is not sufficient to assist them in 
deciding whether to collaborate. Another commenter noted that some of 
the PHA's units were not included in HUD-provided data. Another 
commenter was

[[Page 4385]]

concerned that the data is not user-friendly enough, and may be outside 
the skillset of PHA staff. A commenter stated that the disparities in 
access to opportunity section should include Table 12, which HUD has 
made optional.
    Other commenters requested that HUD provide more data, or different 
data. A commenter requested that HUD provide data at a more granular 
level. The commenter noted that in order to advance fair housing, 
public policies must be adopted at the municipal level, but HUD does 
not provide relevant block-group level data by municipality. The 
commenter noted that Census tract-based data obscure concentrations of 
poverty and other characteristics within small cities where census 
tracts cross municipal boundaries. The commenter requested that HUD 
provide census data for the portion of the Census Tract within each 
municipality, or if it not reliable at the block group level within a 
portion of the Census Tract, HUD should provide data from multiple 
block groups of adjoining census tracts within the same municipality. 
Commenters requested that HUD provide additional data about individuals 
with disabilities, including Medicaid home and community-based waiver 
programs, Money Follows the Person program, disability, and individuals 
in nursing homes, and suggested that HUD should instruct program 
participants to seek supplemental information from Aging and Disability 
Resource Centers (ADRCs) and Centers for Independent Living (CILs). 
Commenters requested that HUD provide more information and demographic 
data on LIHTC properties, as HUD already collects data pursuant to the 
2008 Recovery Act, and if HUD is unable to provide data, it should 
instruct PHAs to use their own demographic data for any LIHTC-assisted 
PHA properties. Some commenters suggested that until HUD provides data 
on disabilities and LIHTC, it should not ask about these subjects.
    A commenter appreciated that HUD provides data in its raw format 
because PHAs otherwise cannot collect this raw data.
    HUD Response: HUD appreciates the commenters' suggestions. HUD is 
continuing to work to increase the ease of electronic availability of 
the Assessment Tool, maps, and tables. The agency will continue to 
improve upon the HUD-provided data and maps to strive to make them 
easily accessible and easily readable to its program participants. HUD 
will continue to explore options for making improvements to the User 
Interface, to data provided and the functionality of the data tool, and 
for providing additional guidance on using the HUD-provided data in the 
instructions to the Assessment Tool, as well as through other guidance 
materials. As HUD assesses longer-term improvements to the Assessment 
Tool data, HUD will continue to consider the comments received that 
recommended significant changes.
    As to the comments about LIHTC data, HUD continues to administer 
and improve the LIHTC data on projects placed-in-service and LIHTC 
tenant demographic data. HUD will work to provide data for AFFH-T at an 
appropriate level of geography (e.g., State, County, City, development 
and in rural areas outside of CBSA regions, etc.) as the data becomes 
available and verified for consistency and reliability. These data may 
be available in a variety of formats external to the AFFH-T Data and 
Mapping Tool. It is not expected that development level tenant data 
will be available in the near term due to current data quality issues. 
Additionally, compliance with federal privacy requirements will limit 
certain development-level data that will be available in the future. 
For background on data that are currently available, please see HUD's 
report, ``Data on Tenants in LIHTC Units as of December 31, 2013'' 
which is available at https://www.huduser.gov/portal/publications/data-tenants-LIHTC.html. HUD will also continue to pursue additional 
guidance on potential sources of readily and easily accessible 
information that may be useful as supplementary local data.
Reducing Burden Through Technical Assistance and Funding
    One commenter noted that HUD has stated that Technical Assistance 
will be provided to PHAs, but the commenter urges that HUD make this a 
priority. Commenters also encouraged HUD offices throughout the country 
to be knowledgeable about AFFH.
    Other commenters expressed concern about funding and hiring 
consultants. Some commenters urged HUD to request additional funding 
from Congress for PHAs to complete their AFHs.
    HUD Response: HUD thanks commenters for their responses. HUD is 
committed to providing program participants with the resources they 
need to complete their AFHs, and encourages program participants to 
review existing HUD guidance, notices, and responses. HUD will continue 
to explore opportunities for providing greater guidance, training and 
technical assistance to program participants.
Community Participation
    Some commenters stated that HUD should encourage more robust 
community participation. A commentator stated that program participants 
should be asked if they consulted stakeholders working in areas of 
public health, education, workforce development, environmental 
planning, or transportation so that program participants take an 
expansive view of their community members. Another commenter stated 
that HUD should inquire about the extent to which program participants 
effectively engaged in communications with persons with disabilities. A 
commenter noted that HUD's outreach to the RAB and other residents are 
positive improvements, and HUD should include additional language to 
reach residents of public housing, Section 8 HCV households, and 
persons eligible to be served by the PHA, including those currently on 
a PHA-administered waitlist. HUD should also require descriptions of 
how documents were provided to the community and require PHAs to 
include solicitation of feedback on preservation of properties, and 
resident relocation and mobility from R/ECAPs. The commenter agreed 
that PHAs should be given guidance that they can solicit feedback 
through surveys, but as a supplement, not a substitute, to that which 
community participation requires. Another commenter stated that HUD 
should remind program participants that collaboration does not relieve 
individual PHAs of the duty to engage in the community participation 
process.
    A commenter requested that ``HUD should note that HUD will not 
apply a rigorous statistical validity test for all local data when 
discussing `subject to statistical validity.' This is important so 
important local data and local knowledge is not dismissed by the PHA 
during community participation.''
    Other commenters urged HUD to lessen the requirements of the 
community participation process. One commenter suggested that HUD 
should tell program participants that they do not need to ``expend 
excessive or unreasonable staff time and cost to review data received 
during the community participation process beyond what is necessary to 
adequately consider the data in accordance with the AFFH rule.'' Other 
commenters stated that community participation should be limited to 
RABs and applicable community partners, and another stated that program 
participants should not be required to consult with other government 
agencies.

[[Page 4386]]

    HUD Response: The final rule strengthened the community 
participation requirements by directing each program participant to 
employ communications methods that are designed to reach the broadest 
audience. As HUD stated in the 30 Day PRA notice for the PHA Assessment 
Tool, ``HUD also notes that the community participation process that is 
part of conducting an AFH may yield important information from members 
of the community about [fair housing] issues for the PHA to consider as 
it conducts its AFH.'' 81 FR 64475, at p. 64481 (Sept. 20, 2016). HUD 
encourages program participants to consult stakeholders including fair 
housing groups, civil rights groups, disability rights groups, and 
other organizations in order to collect robust information through the 
community participation process that will provide valuable assistance 
to program participants in identifying contributing factors, 
prioritizing these factors, and setting meaningful goals that are 
designed to overcome fair housing issues. In the broader context, HUD 
notes that the area of encouraging and incorporating public involvement 
in planning activities is a growing field of interest and that there 
are likely to be technological ideas and solutions that may be worthy 
of additional interest and inquiry over time.
    With respect to the commenter who requested that HUD note that it 
will not apply a statistical validity test for all local data, as HUD 
noted in the preamble to the final AFFH rule, ``The phrase `subject to 
a determination of statistical validity by HUD' is included to clarify 
that HUD may decline to accept local data that HUD has determined is 
not valid but not that HUD will apply a rigorous statistical validity 
test for all local data.'' 80 FR 42272, at p. 42306 (July 16, 2015). 
HUD has revised the instructions to the Assessment Tool in the 
definition of ``local data and local knowledge'' to reiterate this.
Specific Suggestions for the Assessment Tool
    A commenter noted that HUD should clarify timelines for 
collaborations.
    Another commenter suggested that HUD reduce the segregation section 
to not require a segregation/integration analysis since PHAs are not 
experts. The commenter also suggested that HUD combine demographic 
analysis with the Publicly Supported Housing section and remove 
transportation, education, and employment from the disparities section. 
The commenter also stated that the instructions should be shortened.
    A commenter stated that the question that asks, ``Describe the 
waitlist(s) policy of the PHA to include preferences, placement 
determination (e.g., first-come, first-served vs. lottery), program 
selection (e.g., agency-wide waitlist or by development), application 
method, length of time application window is open, and average wait 
time list'' in the ``Disability and Access Analysis'' section should 
also be included in the Segregation and R/ECAPs sections because these 
practices also affect access for other protected groups. Another 
commenter objected to the question because HUD already requires 
waitlist policies and practices in five-year and Annual Plans. Another 
commenter was opposed to this question because of the number of 
individuals on the waitlist in some PHAs. Commenter suggested that 
instead, HUD should include one or more questions focused on a PHA's 
waiting list policies and administration from a fair housing 
perspective, including any PHA proposals to improve its processes to 
further fair housing goals.
    A commenter noted that the Housing Enforcement section should ask 
about pending fair housing or other civil rights complaints, which may 
be helpful in noticing emerging fair housing issues. Another commenter 
found this section to be vague.
    A commenter stated that the Assessment Tool should incorporate 
comprehensive consideration of sex, gender, and fair housing challenges 
experienced by women in the analysis, as well as address the fair 
housing barriers experienced by survivors of domestic violence and 
sexual assault. The commenter also suggested that the Tool ask for an 
analysis of barriers to fair housing choice by local nuisance laws.
    A commenter noted that HUD should eliminate reviews of Analyses of 
Impediments (AIs) in the Assessment Tool, and HUD should revert back to 
the AI process.
    A commenter suggested that HUD should modify the threshold for 
QPHAs.
    A commenter noted that limitations on use of local data and local 
knowledge should be included in notes to the public about use of local 
data and local knowledge.
    A commenter noted that asking PHAs to analyze trends that may 
influence segregation in the future is speculative, and the Assessment 
Tool should not ask this. The commenter also noted that the Tool should 
not require inventories of local laws, policies, and practices. The 
commenter suggested that the additional information questions be 
eliminated because they are redundant, and PHAs should not be required 
to conduct regional analysis of admissions and occupancy policies and 
procedures including preferences in publicly supported housing or to 
analyze regional analysis of nuisance laws, land use and zoning laws, a 
complete inventory of all assisted housing, policies related to rents 
and FMRs, and source of income discrimination. The commenter stated 
that it believed the occupancy codes and restrictions questions should 
not be included because it conflicts with HUD policies and practices. 
The commenter also objected to questions that asked for an analysis of 
R/ECAPs and noted that a regional analysis of R/ECAPs is not useful to 
PHAs.
    A commenter suggested removing the Disproportionate Housing Needs 
analysis because it is duplicative and is covered in other analysis.
    A commenter stated that instructions for the assessment of Past 
Goals, Actions, and Strategies should explain that ``other relevant 
planning documents'' include ACOPs, Administrative Plans, past PHA 
Plans (including Five Year and Annual Plans), and Language Assistance 
Plans to the extent the PHA has adopted policies, practices, or 
procedures that implicate fair housing choice.
    A commenter noted that HUD should change ``transforming R/ECAPs'' 
to ``expanding opportunity into R/ECAPs.''
    A commenter stated that the Assessment Tool should acknowledge the 
Equal Access Rule and should explore the denial of housing choice due 
to sexual orientation, gender identity, or marital status, and steps 
that PHAs and other HUD funded entities have taken to implement the 
Equal Access Rule.
    A commenter suggested that each section of the Assessment Tool 
should require PHAs to ask questions about disparities in access to 
services and infrastructure for members of protected classes who are 
(1) farmworkers, (2) mobile home residents, and (3) living in 
disadvantaged rural areas in the PHA's service area or region, using 
local data and local knowledge.
    HUD Response: HUD thanks commenters for their specific suggestions 
to improve the Assessment Tool.
    As to the first comment, HUD encourages program participants to 
consult Sec.  5.156 of the final rule for the rule's requirements for 
Joint and Regional AFHs.
    As to commenters who suggested eliminating sections or questions of 
the Assessment Tool and noted that the

[[Page 4387]]

Tool requires an inventory, HUD reiterates that the Tool does not 
require an inventory of laws, policies, and practices, and the Tool is 
a planning tool designed to create solutions and goals that respond to 
the fair housing and disparities in access issues identified. HUD 
thanks commenters for their suggestions, and remains committed to 
providing Program Participants with a Tool that will allow them to 
conduct an analysis of fair housing issues facing their services areas, 
jurisdictions, and regions that will inform meaningful goal setting and 
priorities.
    HUD also thanks commenters who suggested additional questions or 
areas to ask about in the Tool. HUD agrees that the Tool should ask 
about mobile home residents, and this is included in the final version 
of the Tool along with manufactured housing in the definition of the 
contributing factor, Land Use and Zoning Laws. HUD has also noted in 
the instructions to the Fair Housing and Enforcement section that 
program participants may discuss other protected classes covered by 
state and local fair housing and civil rights ordinances. While the 
final version of the Tool does not include Nuisance Laws as its own 
Contributing Factor, it adds the new factor, ``Displacement of and/or 
lack of housing support for victims of domestic violence, dating 
violence, sexual assault, and stalking.'' HUD has revised the 
Assessment Tool to better capture the nuances of nuisance laws by 
incorporating this into both the new abovementioned factor, and in the 
``Land Use and Zoning Laws'' contributing factor. HUD also revised the 
Assessment Tool to ask about the PHA's policies and practices, 
including those in the Admission and Continued Occupancy Policy (ACOP) 
and Administrative Plan, relating to fair housing.
    As to the commenter who believed HUD should revert back to the AI 
process, HUD notes that since the AI process was not as effective as 
envisioned, the new AFFH process is intended to provide a more robust 
fair housing analysis and to help program participants to select 
meaningful goals and priorities to meet their statutory obligation to 
Affirmatively Further Fair Housing.
    As to the comment seeking clarification about local data and local 
knowledge, HUD has clarified in the instructions that there may be 
limited nationally-uniform data available for the regional analysis for 
PHAs in rural areas, and such data limitations may be present in the 
AFFH Data and Mapping Tool. In cases where data is unavailable, HUD 
expects that PHAs in rural areas will consult local data and local 
knowledge, including information obtained through the community 
participation process, to complete this analysis.
    HUD has adopted the suggested change to modify the threshold of 
those PHAs that may use the insert, and has modified the threshold from 
QPHAs (550 units) to PHAs with 1,250 units or fewer. HUD will also 
continue to consider efforts to reduce administrative burden on all 
program participants, including PHAs.
Miscellaneous
    A commenter asked whether the Tool raises the level of scrutiny for 
housing above Lindsey v. Normet's minimum level of scrutiny. The 
commenter stated that Lindsey v. Normet, held: (1) There is no fairness 
component of housing because there is no fairness component of 
property, and (2) there is homelessness. The commenter stated that in 
the Tool and the policies underlying it, the Government finds that 
fairness is a component of property and housing; further, dignity is 
the essence of the Tool and a component of housing. The commenter noted 
that in the Government's statement of interest in the Boise 
homelessness case, the government found that homelessness does not 
exist as homeless people are housed people whose housing is assaulted. 
The government's policies show that housing has a higher level of 
scrutiny than minimum scrutiny, and the Supreme Court in the same-sex 
marriage case found that dignity is an individually enforceable right 
with a higher level of scrutiny than minimum scrutiny. The commenter 
asked: Does housing enjoy a level of scrutiny higher than minimum 
scrutiny? According to West Virginia v. Barnette, a fact is an 
individually enforceable right in court, and the level of scrutiny is 
raised, if, inter alia, the fact is ``unaffected by assaults upon it.'' 
Does the government deny that this is the test? Has the government 
found that housing passed this test? Who has the power to enforce the 
Rule in court and pursuant to what right? What parts of these policies 
are individually enforceable?
    A commenter noted that it felt its area did not lend itself to 
completing the Assessment Tool because the area is 99% white, with a 1% 
Native American population, and there is no segregation and schools are 
as integrated as they can be. The commenter noted that the government 
should stop trying to track differences.
    A commenter stated that using race to lead decision making has 
serious constitutional questions, and cited to Tex. Dep't of Hous. & 
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 
(2015).
    A commenter suggested that HUD create a working group to test the 
PHA Tool before implementation. HUD should require PHAs to conduct 
assessments as part of a demonstrations program before pursuing 
implementation.
    A commenter noted that HUD's new HUD Environmental Review Online 
System (HERO) requires a partial AFFH analysis of environmental 
factors, and this is duplicative and uncoordinated with the AFFH Tool 
submission. The commenter recommended relying on the AFH process, not 
HERO for this analysis.
    HUD Response: HUD has carefully reviewed the commenters' 
suggestions. As to the first commenter, HUD reviewed the case law cited 
by the commenter and has concluded that the cases are not applicable to 
the obligation to affirmatively further fair housing under the Fair 
Housing Act and under the AFFH rule. HUD continues to assert that the 
AFFH rule and the Assessment Tool implementing the requirements 
contained in the regulation will better facilitate compliance with the 
AFFH mandate under the Fair Housing Act.
    HUD notes that in the Assessment Tool, in the instructions, that in 
identifying areas of segregation and integration program participants 
should not only focus on areas of minority concentration in their 
jurisdictions and regions, but also areas of majority concentration. 
HUD notes that segregation and integration are defined in the AFFH 
regulation at 24 CFR 5.152 and apply to minority concentration and 
majority concentration, no matter the protected class. HUD has also 
included instructions related to analyzing segregation in majority-
minority communities and where there are concentrations of particular 
national origin, ethnic, or religious groups.
    HUD thanks commenters for their suggestions regarding testing the 
PHA Tool. HUD submits that it has given commenters sufficient time to 
comment on the Assessment Tool through the PRA process, with both the 
60-day and 30-day notices.
    Program Participants are reminded that they must apply with all 
applicable laws, including Fair Housing Laws and the Privacy Act.
    As to the last commenter, HUD notes that the AFFH rule requires 
fair housing planning and describes the required elements of the fair 
housing planning process. The first step in the planning process is 
completing the fair housing

[[Page 4388]]

analysis required in the AFH. The rule establishes specific 
requirements program participants will follow for developing and 
submitting an AFH and for incorporating and implementing that AFH into 
subsequent Consolidated Plans and Public Housing Agency (PHA) Plans in 
the form of strategies and actions. This process will help to connect 
housing and community development policy and investment planning with 
meaningful actions that affirmatively further fair housing. The new 
approach put in place by this rule is designed to improve program 
participants' fair housing planning processes by providing data and 
greater clarity to the steps that program participants must take to 
assess fair housing issues and contributing factors, set fair housing 
priorities and goals to overcome them, and, ultimately, take meaningful 
actions to affirmatively further fair housing. A goal of the AFFH rule 
is to make sure states and insular areas, local communities, and PHAs 
understand their responsibilities in the area of fair housing planning. 
As the Department works to foster effective fair housing planning, goal 
setting, strategies, and actions, it recognizes that the people who are 
most familiar with fair housing issues in cities, counties, and states 
are the people who live there and deal with these issues on a daily 
basis.

D. Summary

    In issuing this Public Housing Agency Assessment Tool, approved by 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act, HUD has strived to reach the appropriate balance in having program 
participants produce a meaningful assessment of fair housing that 
carefully considers barriers to fair housing choice and accessing 
opportunity and how such barriers can be overcome in respective service 
areas and regions without being unduly burdensome. HUD has further 
committed to addressing program participant burden by providing data, 
guidance, and technical assistance, and such assistance will occur 
throughout the AFH process. While HUD is not specifically soliciting 
comment for another prescribed period, HUD welcomes feedback from HUD 
grantees that use this Tool on their experience with this Tool.

    Dated: January 9, 2017.
Gustavo Velasquez,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2017-00713 Filed 1-12-17; 8:45 am]
 BILLING CODE 4210-67-P