Affirmatively Furthering Fair Housing Assessment Tool: Announcement of Final Approved Document, 81840-81856 [2015-32680]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 80, Number 251 (Thursday, December 31, 2015)]
[Notices]
[Pages 81840-81856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32680]


-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5173-N-07]


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

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

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice announces the Assessment Tool developed by HUD for 
use by local governments that receive Community Development Block 
Grants (CDBG), HOME Investment Partnerships Program (HOME), Emergency 
Solutions Grants (ESG), or Housing for Persons with AIDS (HOPWA) 
formula funding from HUD when conducting and submitting their own 
Assessment of Fair Housing (AFH). The Assessment Tool will also be used 
for AFHs conducted by joint and regional collaborations between: (1) 
Such local governments; (2) one or more such local governments with one 
or more public housing agency (PHA) partners; and (3) other 
collaborations in which such a local government is designed as the lead 
for the collaboration. For purposes of this Assessment Tool, no AFH 
will be due before October 4, 2016. Please see HUD's Web page at 
https://www.hudexchange.info/programs/affh/ for the schedule of 
submission dates of AFHs.
    The requirement to conduct and submit an AFH is set forth in HUD's 
Affirmatively Furthering Fair Housing (AFFH) regulations, and this 
Assessment Tool has completed the notice and comment process required 
by the Paperwork Reduction Act (PRA), been reviewed by the Office of 
Management and Budget (OMB) and approved. The Assessment Tool announced 
in this notice, and the guidance accompanying this Assessment Tool (the 
Guidebook) can be found at https://www.hudexchange.info/programs/affh/.
    This Federal Register notice also highlights changes made by HUD to 
the Assessment Tool based on comments submitted in response to HUD's 
July 16, 2015, notice, which solicited comment on the Assessment Tool 
for a period of 30 days. HUD will issue separate Assessment Tools for 
use by States and Insular areas and PHAs that will also be used for: 
(1) Joint and regional collaborations where the State or Insular Area 
is designated as the lead entity; and (2) joint collaborations with 
only PHA partners.

FOR FURTHER INFORMATION CONTACT: George D. Williams, Sr., Deputy 
Assistant Secretary for Policy, Legislative Initiatives and Outreach, 
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

The AFFH Proposed Rule

    On July 19, 2013, at 78 FR 43710, HUD published for public comment 
its AFFH proposed rule. The July 19, 2013, AFFH rule proposed a new 
approach that would enable program participants to more fully 
incorporate fair housing considerations into their existing planning 
processes and assist them in complying with their duty to affirmatively 
further fair housing as required by the Fair Housing Act (Title VIII of 
the Civil Rights Act) and other authorities. The new process, the 
Assessment of Fair Housing (AFH), builds upon and refines the prior 
fair housing planning process, called the analysis of impediments to 
fair housing choice (AI). As part of the new AFH process HUD advised 
that it would issue an ``Assessment Tool'' for use by program 
participants in completing and submitting their AFHs. The Assessment 
Tool, which includes instructions and nationally-uniform data provided 
by HUD, consists of a series of questions designed to help program 
participants identify, among other things, areas of racially and 
ethnically concentrated areas of poverty, patterns of integration and 
segregation, disparities in access to opportunity, and disproportionate 
housing needs.
    At the time of publication of the July 19, 2013, AFFH proposed 
rule, HUD also posted and sought public comment on a draft ``Data 
Documentation'' paper online at https://www.huduser.gov/portal/affht_pt.html and at https://www.hudexchange.info/programs/affh/ (under 
the heading Data Methodology). HUD requested public comments on the 
categories, sources, and format of data that would be provided by HUD 
to program participants to assist them in completing their AFH, and 
many program participants responded with comments on the Data 
Documentation.

The 60-Day Notice on the Assessment Tool (Initial Assessment Tool)

    On September 26, 2014, at 79 FR 57949, HUD issued a notice for 
public comment on the Assessment Tool found at https://www.huduser.gov/portal/affht_pt.html. As noted in the Summary, the Assessment Tool was 
designed for use by local governments that receive CDBG, HOME, ESG, or 
HOPWA formula funding from HUD when conducting and submitting their own 
AFH; that is the Assessment Tool was designed for use by local 
governments and consortia required to submit consolidated plans under 
HUD's Consolidated Plan regulations, codified in 24 CFR part 91, 
specifically subparts C and E, which pertain to local governments and 
consortia.\1\ In this notice, HUD uses the term ``local governments'' 
to refer to those consolidated plan program participants for which this 
tool is primarily designed. The Assessment Tool is also designed for 
joint and regional AFHs conducted by joint and regional collaborations 
between: (1) Such local governments; (2) one or more such local 
governments with one or more PHA partners; and (3) other collaborations 
in which such a local government is designed as the lead for the 
collaboration. While the Assessment Tool was designed for local 
governments and for joint or regional submissions by local governments 
and PHAs, HUD invited comments by all types of program participants, as 
it, ``present[ed] the basic structure of the Assessment Tool to be used 
by all program participants, and is illustrative

[[Page 81841]]

of the questions that will be asked of all program participants.''
---------------------------------------------------------------------------

    \1\ In HUD's AFFH proposed rule published on July 19, 2013, at 
78 FR 43710, HUD noted that a consortium participating in HUD's HOME 
Investment Partnerships program (HOME program), and which term 
(consortium) is defined 24 CFR 91.5, must submit an AFH. HUD stated 
that a HOME consortium is considered a single unit of general local 
government (see 78 FR at 43731).
---------------------------------------------------------------------------

    In developing the Assessment Tool, HUD had four key objectives in 
mind. First, the Assessment Tool must ask questions that would be 
sufficient to enable program participants to perform a meaningful 
assessment of key fair housing issues and contributing factors \2\ and 
set meaningful fair housing goals and priorities. Second, the 
Assessment Tool must clearly convey the analysis of fair housing issues 
and contributing factors that program participants must undertake in 
order for an AFH to be accepted by HUD. Third, the Assessment Tool must 
be designed so program participants would be able to use it to prepare 
an AFH that would be accepted by HUD without unnecessary burden. 
Fourth, the Assessment Tool must facilitate HUD's review of the AFHs 
submitted by program participants, since the AFFH rule requires HUD to 
determine, within a certain period of time, whether to accept or not 
accept each AFH or revised AFH submitted to HUD.
---------------------------------------------------------------------------

    \2\ The term ``fair housing determinants'' was changed to ``fair 
housing contributing factors'' in the AFFH final rule. This notice 
therefore uses the term ``fair housing contributing factors.''
---------------------------------------------------------------------------

    With these objectives in mind, HUD issued a first version of the 
Assessment Tool (Initial Assessment Tool) for public comment for a 
period of 60 days. The 60-day notice provided a detailed description of 
the five main sections of the Assessment Tool: Section I--Cover Sheet 
and Certification; Section II--Executive Summary; Section III--
Community Participation Process; Section IV--Analysis; and Section V--
Fair Housing Goals and Priorities.
    By the close of the comment period on November 25, 2014, HUD 
received 281 public comments. Commenters included PHAs, grantees of 
Community Development Block Grants (CDBG), including States and local 
governments, advocacy groups, nonprofit organizations, and various 
individuals. All public comments received in response to the 60-day 
notice can be found at: https://www.regulations.gov/#!documentDetail;D=HUD-2014-0080-0001.

The January 15, 2015 Notice on AFH Staggered Submission Deadlines

    On January 15, 2015, at 80 FR 2062, HUD published a notice that 
solicited public comment on a staggered submission deadline for AFHs to 
be submitted for specific types of program participants. In the January 
2015 notice, HUD advised that it was considering providing certain HUD 
program participants--States, Insular Areas, qualified PHAs,\3\ and 
jurisdictions receiving a CDBG grant under $500,000 with the option of 
submitting their first AFH at a date later than would otherwise be 
required of entitlement jurisdictions. In addition to proposing a 
staggered submission deadline, HUD had previously announced that it 
would be developing separate assessment tools for certain types of 
program participants, including for States and Insular Areas, and for 
PHAs not submitting an AFH in a joint or regional collaboration with a 
local government.
---------------------------------------------------------------------------

    \3\ Section 2702 of title II of the Housing and Economic 
Recovery Act (HERA) defined ``qualified PHAs'' as PHAs that have 
fewer than 550 units, including public housing and section 8 
vouchers.
---------------------------------------------------------------------------

The AFFH Final Rule

    On July 16, 2015, at 80 FR 42272, HUD published the AFFH final 
rule. The AFFH final rule provides, at Sec.  5.160, for staggered 
submission deadlines for program participants, an aspect of the final 
rule for which HUD first solicited public comment on January 15, 2015. 
The final rule provides that each category of program participants 
listed in Sec.  5.160 their first AFH shall be submitted no later than 
270 days prior to the start of (1) their program year or fiscal year 
for which a new consolidated plan is due, or for which, in the case of 
PHAs, except qualified PHAs, a new 5-year plan is due. The action that 
commences the count of 270 days is issuance of an approved Final 
Assessment Tool for the specific category of program participants. The 
final rule also provides that if the first AFH submission date results 
in a preparation period for the AFH that is less than 9 months after 
the date of publication of the Assessment Tool that is applicable to 
the program participant or the lead entity if the submission is to be a 
regional AFH, then the submission deadline will be extended to a date 
that is not less than 9 months from the date of publication of the 
applicable Assessment Tool.
    Under the AFFH final rule, program participants that received less 
than a $500,000 CDBG grant in Fiscal Year (FY) 2015 and qualified PHAs, 
as such term is defined in the rule, will have additional time to 
conduct and submit their first AFH.

The 30-Day Notice on the Revised Assessment Tool

    On July 16, 2015, at 80 FR 42108, HUD published, in accordance with 
the PRA, its notice soliciting public comment for a period of 30 days, 
on a revised Assessment Tool (Revised Assessment Tool) in response to 
comments submitted on the 60-day notice. The July 2015 notice responded 
to significant issues public commenters on HUD's 60-day notice raised 
and requested comments on specific questions, at 80 FR 42116 and 42117. 
The changes that HUD made to the Revised Assessment Tool in response to 
comments received on the 60-day notice are described in the July 16, 
2015, notice, at 80 FR 42111 through 42114.
    By the close of the comment period on August 17, 2015, HUD received 
40 public comments. All public comments received in response to the 30-
day notice can be found at: https://www.regulations.gov/#!docketBrowser;rpp=25;so=ASC;sb=docId;po=0;dct=PS;D=HUD-2015-0063.
    Solicitation of Comment on Specific Questions. Many of the 
commenters directly responded to questions on which HUD specifically 
solicited comment, and these questions were as follows.
    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;
    2. The accuracy of the agency's estimate of the burden of the 
proposed collection of information;
    3. Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    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 submissions of responses;
    5. Whether Option A or Option B of the Revised Assessment Tool 
would be the most effective and efficient way of conducting the 
analysis with respect to the selection of contributing factors.\4\ If 
one option is preferred over the other, please state the reasons for 
the preference;
---------------------------------------------------------------------------

    \4\ As discussed in the following section of this preamble, HUD 
submitted for public comment, two formats on how to structure the 
Assessment Tool.
---------------------------------------------------------------------------

    6. While the Revised Assessment Tool was designed to set minimum 
AFH requirements as well as providing a straightforward process for HUD 
to review the AFH, how might program participants use the template to 
conduct broader collaborations including more comprehensive cross-
sector collaborations? How could the Revised Assessment Tool provide 
greater flexibility for participants to collaborate and expand upon the 
framework HUD has set in the Revised Assessment Tool?

[[Page 81842]]

How could the Revised Assessment Tool allow program participants to 
incorporate better or additional data, alternative mapping tools, or 
other data presentations; and
    7. Whether additional changes to the Revised Assessment Tool would 
better facilitate regional collaboration among program participants.
    Response to the 30-Day Notice-Overview. Many of the commenters 
expressed support for the Revised Assessment Tool, stating that HUD 
adopted several of the changes recommended by the commenters in 
response to the 60-day notice. Revisions to the Assessment Tool for 
which commenters expressed appreciation included: The listing of local 
knowledge received from the community participation process and reasons 
for not using certain local knowledge obtained; inclusion of language 
regarding ``displacement of residents due to economic pressures''; the 
inclusion of ``school enrollment policies'' and their impact on 
students' abilities to attend proficient schools; increased discussion 
of language barriers and identification of limited English proficiency 
(LEP) populations; and descriptions of contributing factors and the 
detailed instructions for how to complete the template section-by-
section.
    Other commenters, however, stated that the Revised Assessment Tool 
reflected that HUD did not consider important changes recommended by 
the commenters, that the analysis was still highly burdensome, was 
largely incomprehensible, and showed little understanding of the 
dynamics of successful housing integration, and some commenters 
requested that HUD withdraw the Assessment Tool and commence the PRA 
process anew with a new version.
    For those commenters recommending changes and identifying areas in 
need of improvement, the majority of commenters focused on the 
following: (1) That, in their view, the Assessment Tool does not 
account for the resource limitations of program participants and 
actions that program participants can reasonably take; (2) the data HUD 
is providing and the Data Tool; (3) the contributing factors--both with 
respect to the lists included and specific revisions to the 
explanations provided in Appendix C; (4) the process for setting goals; 
and (5) how HUD will evaluate submitted AFHs.
    With respect to the two formats for structuring the Assessment 
Tool, Option A and Option B, offered in the 30-day notice, commenters 
expressed their preference for Option B, but those expressing 
preference for Option B recommended revisions that they thought would 
improve the utility of Option B. Overall, commenters on the 30-day 
notice provided detailed suggestions on how they believed the 
Assessment Tool could be structured to reduce burden, provide greater 
clarity, and improve the fair housing assessment process. Other 
commenters stated that, regardless of format, this Assessment Tool was 
not appropriate for certain program participants, such as States.
    Certain commenters submitted comments on the AFFH rule, raising 
comments previously submitted and addressed by HUD in the rulemaking 
process, such as HUD has no authority to issue this rule, the rule is 
an unfunded mandate, HUD lacks the capacity to administer this rule, 
and HUD needs to establish safe harbors. Since the rulemaking process 
has been completed and the 30-day notice (and the 60-day notice) sought 
comment on the Assessment Tool, HUD is not responding to these comments 
in this notice.

Development of Assessment Tools for Specific Program Participants

    HUD will be issuing separate Assessment Tools for States and 
Insular Areas, and for PHAs that are not submitting an AFH as part of a 
joint submission or regional collaboration. While HUD will take into 
consideration the issues raised by commenters about States in 
developing the State Assessment Tool, HUD will not respond to those 
comments in this notice. The State and Insular Areas Assessment Tool, 
and the PHA Assessment Tool, will all undergo the full PRA process that 
provides the public with two opportunities for comment.
    HUD is also considering how burden may be reduced for small 
entities and qualified PHAs. HUD will soon be publishing a notice that 
seeks advance comment on how the Assessment Tool can best be used by 
small entities without jeopardizing the ability to undertake a 
meaningful assessment of fair housing.
    HUD appreciates all comments on the Assessment Tool 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.B. of this notice. Additionally, 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 Final Assessment Tool compared to the Option B 
version of the Revised Assessment Tool (Compare Assessment Tool) so 
that program participants and the public can see all changes made.

II. The Final Assessment Tool

A. Highlights of the Final Assessment Tool

    This section highlights the key features of the final Assessment 
Tool, and those that differ from the Revised Assessment Tool.
    Format of Final Assessment Tool. This final Assessment Tool is 
based on the ``Option B'' format presented in the 30-day notice. As 
provided in the 30-day notice, the two formats did not differ in 
content or analysis, but differed with respect to where the analysis of 
contributing factors was placed. For the commenters who responded to 
HUD's question as to which format was preferred, the majority favored 
Option B, but offered suggestions on how Option B could be improved.
    Content of the Assessment--Highlight of Changes to Option B. The 
Final Assessment Tool now contains additional questions in the 
Community Participation Process section; asks questions on 
homeownership in certain sections; clarifies questions commenters 
advised were unclear; augments the Fair Housing Enforcement, Outreach 
Capacity, and Resources section; provides direction to program 
participants on questions where they may describe relevant ongoing 
activities relating to, among other things, housing preservation, 
community revitalization, and mobility; clarifies instructions on how 
to identifying and prioritizing contributing factors and setting goals; 
includes additional information in the descriptions of certain 
contributing factors, located in Appendix C; and provides additional 
examples of possible sources of information program participants may 
use, in addition to the HUD-provided data, in completing the 
assessment.

B. Public Comments Received in Response to the 30-Day Notice and HUD's 
Responses

    This section provides a summary of the most significant issues 
raised by commenters and HUD's responses.
Issues on Overall View of the Assessment Tool
    Issue: The Assessment Tool has little utility. Several comments 
stated that the Assessment Tool is unreasonably detailed such that it 
is a technocratic study of the conditions at play in a

[[Page 81843]]

program participant's jurisdiction and region. Commenters stated that 
many of these conditions lay outside the control of the program 
participant and therefore the Assessment Tool is nothing more than an 
academic exercise with little ability to advance the goals of the Fair 
Housing Act. Commenters stated that the Assessment Tool does not align 
the required analysis with the programmatic tools available to each 
program participant, or account for resource limitations with respect 
to the setting of goals that can be realistically achieved. In terms of 
resource limitations, commenters raised concerns about both: (1) The 
resources available to program participants, including but not limited 
to small entities, to conduct and complete the assessment itself; and 
(2) whether the Assessment Tool and HUD's review and acceptance or non-
acceptance of the AFH adequately recognize resource limitations of 
program participants in setting and achieving goals and their ability 
to influence any contributing factors as having a significant impact. 
Other commenters stated that because program participants do not have 
control or are unable to directly influence issues relating to 
disparities in access to opportunity the analysis will have no utility. 
Certain commenters stated that the collection of information will have 
more relevance and value for larger program participants that 
administer a wide range of housing and community development 
activities, but not for smaller program participants. For smaller 
program participants, they stated that the information collection will 
be a significant burden with little value added.
    HUD Response: HUD believes that the Assessment Tool will be helpful 
and will have utility for program participants in assessing fair 
housing issues, identifying contributing factors, formulating realistic 
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.
    In terms of resource limitations, HUD reiterates here what HUD has 
stated previously, and that is that HUD is aware that program 
participants 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. However, that does not mean that no 
actions can be taken, or that program participants should not strive to 
overcome barriers to fair housing choice or disparities in access to 
opportunity. With respect to small program participants, HUD continues 
to consider ways to better enable small entities in complying with 
their obligation to affirmatively further fair housing while 
recognizing their resource limitations. In this regard and, as further 
discussed below, HUD will be issuing an advance notice for comment on 
how the Assessment Tool can best be used by small entities while 
providing for meaningful assessment of fair housing issues, 
contributing factors, and goal setting. As HUD explained in the 
preamble to the final rule, ``HUD recognizes that smaller program 
participants do not have the same capacity as larger participants and 
therefore burdens can be greater. HUD has strived in this final rule to 
reduce costs and burden involved in implementation of the new AFH as 
much as possible, especially for smaller program participants. The 
guidance that HUD intends to provide will further refine the 
application of the rule's requirements to specific types of program 
participants, especially smaller PHAs and local government agencies 
with limited staff and resources.''
    Issue: Ways to enhance the utility of the Assessment Tool. 
Commenters suggested ways that would enhance the utility of the 
Assessment Tool. These suggestions included the following: When using 
tables to compare groups, provide guidance on what HUD considers 
significant differences; acknowledge that while historical data has 
significance, if more recent data is not provided to program 
participants, the data will have limited relevance for the fair housing 
assessment; and provide technical assistance through national capacity 
builders.
    HUD Response: HUD appreciates these suggestions, and has 
incorporated some examples in the Guidebook. With respect to the data 
contained in the maps and tables, HUD has strived, and will continue to 
strive, to make these more user friendly, and, as new data becomes 
available or updated, HUD will make that data available to program 
participants.
    Issue: Ways to reduce burden. Several commenters stated that the 
completion of the Assessment Tool will require tremendous expenditure 
of time and resources on the part of program participants, and that HUD 
underestimated the time and resources that would be needed to complete 
the Assessment Tool. Commenters offered suggestions on ways that burden 
could be reduced. These suggestions included the following: HUD 
providing for batch exports of maps and data tables, rather than 
exporting only one map or table at a time; allowing for electronic 
submission of AFHs; HUD providing Home Mortgage Disclosure Act (HMDA) 
data at the census tract level; allowing program participants to 
identify actions they can realistically take and then prioritize those 
actions based on potential impacts; HUD should not only reference that 
data is available at the census tract level but should identify the 
census tracts to allow larger program participants to match them 
against community areas within an urban county; and having tables show 
data at both the city-wide and census tract level. Commenters suggested 
that HUD should identify where there is an absence of valid, 
appropriate data to reduce any time that may be spent searching for 
such data. Finally, commenters suggested that HUD allow each 
collaborating participant in a joint or regional AFH to conduct their 
own, separate local analysis.
    HUD Response: HUD appreciates the comments regarding improved 
functionality for the HUD-provided data and HUD is taking all comments 
into account in its continuing design and improvements of the online 
tools that will be made available to program participants. These online 
tools include the Data Tool (which will also be publicly available) 
that contains the maps and tables, as well as the online web-based 
portal (``user interface'') that HUD is creating to allow program 
participants to conduct and submit their AFHs while incorporating the 
tables and maps form the Data Tool.
    While HMDA data is currently available from public sources, HUD did 
not require its use at this time. HUD is continuing to work to provide 
for batch exports of maps and data tables. With respect to identifying 
where there is an absence of data, the Final Assessment Tool identifies 
where local data and knowledge may be particularly helpful. Community 
participation is also expected to provide supplemental local data.
    With respect to program participants setting goals that they can 
realistically be expected to achieve, as noted in response to an 
earlier comment, although program participants are required to 
affirmatively further fair housing, HUD has repeatedly stated that the 
AFH process does not dictate specific actions, goals, or outcomes,

[[Page 81844]]

which will depend on local fair housing issues, contributing factors, 
and the program participants' designation of goals to address them. The 
AFH process provides basic parameters to help guide program 
participants in their public sector housing and community development 
planning and investment decisions by being better informed about fair 
housing concerns.
    With respect to the comment that collaborating participants should 
be allowed to conduct their own separate local analysis, the AFFH final 
regulations state that while program participants may divide work as 
they choose, all collaborating program participants are accountable for 
the analysis and any joint goals and priorities to be included in the 
collaborative AFH, and they are also accountable for their individual 
analysis, goals, and priorities to be included in the collaborative 
AFH.
    Issue: Ways to enhance community participation. Several commenters 
offered suggestions on how community participation could be enhanced. 
These suggestions included: HUD providing lists of organizations that 
program participants may wish to consult, such as transportation 
advocacy groups, transportation planners, public health advocates, and 
community based organizations; requiring program participants to engage 
in partnerships with fair housing and other civil rights organizations; 
requiring program participants to identify and consult with any 
subrecipient of HUD funds to which program participants or others 
provide HUD funding, along with any other partners, that will provide 
for a more collaborative effort in achieving fair housing goals.
    HUD Response: The community participation requirements for the AFH 
process are largely based on the existing citizen participation 
requirements in HUD's Consolidated Plan regulations in 24 CFR part 91 
and the comparable requirements in HUD's Public Housing regulations in 
24 CFR part 903. It was HUD's view at the time of development of the 
AFFH rule that these requirements, longstanding and familiar to 
consolidated plan participants and PHAs were appropriate for the AFH, 
and this continues to be HUD's view. However, these are the minimum 
requirements, and program participants are always permitted and in fact 
encouraged to exceed the minimum requirements. Through the Guidebook, 
HUD offers ways in which community participation may be enhanced. In 
response to public comment, the Final Assessment Tool, however, does 
include additional questions in the Community Participation Process 
section included to help program participants better evaluate the 
success of the community participation process they undertook.
    Issue: Ways to enhance joint and regional collaboration. Commenters 
commended HUD for encouraging program participants to collaborate by 
allowing program participants to align their program years. Commenters 
offered the following suggestions to further promote regional 
collaboration: HUD should offer deadline extensions or offer other 
incentives that would encourage program participants to continue 
collaboration in succeeding AFH submission years; establishing an 
optional regional section of the template to facilitate jurisdictions 
and PHAs collaborating and informing each of their analyses; 
encouraging a consortium structure, which a commenter stated could help 
establish equity advocates and disadvantaged communities' leaders' 
decisionmaking roles, contribute to meaningful understanding of 
regional housing markets and patterns of segregation and isolation of 
opportunity, and enhance the ability to address these issues; allowing 
collaborating jurisdictions to decide about what types of data are 
available and most relevant; and promoting advisory councils with 
cross-sector representatives to help overcome any lack of local 
political interest or will in collaborating.
    HUD Response: HUD appreciates these suggestions on how to promote 
joint and regional collaboration. Many of the steps suggested by 
commenters are beyond the scope of this Assessment Tool and would 
require additional regulatory and programmatic changes. HUD will 
continue to consider the options available to it with respect to 
promoting these sorts of collaborations. While the Final Assessment 
Tool does not incorporate these suggestions, HUD will give 
consideration to these recommendations for future changes to the 
Assessment Tool. Several of the suggestions may also be addressed not 
in this Assessment Tool, but in the Guidebook and additional guidance 
documents.
    HUD encourages both regional and joint submissions of AFHs. Both 
types of submissions have the potential to greatly increase the 
positive impact of fair housing planning as well as potentially 
reducing the burden of completing the AFH for many entities. All 
program participants are encouraged to consider options for either a 
joint or regional submission. In such consideration, program 
participants should consult the AFFH final rule for all requirements on 
joint or regional collaboration, including submission deadlines.
    Issue: Format of the Assessment Tool. Some commenters stated that 
the two options presented differences without distinctions. Most 
commenters stated that Option B was preferable because it presents a 
list of contributing factors after the analysis of each fair housing 
issue and it was more straightforward. The commenters stated that since 
the nature of contributing factors can vary depending on the type of 
fair housing issue, a list of factors tailored to a given issue would 
elicit more complete and appropriate responses. However, other 
commenters stated that Option A is preferable because the contributing 
factors are more specifically outlined, and they thought Option B was 
less clear for program participants than Option A. Other commenters 
suggested that both Options A and B have strengths, but that HUD should 
allow program participants to decide which option best suits their 
needs.
    HUD Response: As noted earlier, the Final Assessment Tool is based 
on Option B. HUD appreciates those commenters who responded to HUD's 
request for comment on the structure of the Assessment Tool. Neither of 
the formats was unanimously endorsed by commenters as a format that 
should be adopted without change, and HUD has made several changes to 
the Option B format in response to public comment. At this time, HUD 
cannot offer program participants the ongoing option to choose which 
format works best for them but will evaluate whether it is feasible to 
do so at some future time. HUD notes that program participants, 
however, may complete the Final Assessment Tool in any order they 
choose, which may provide some additional flexibility or avoid 
unnecessary duplication of effort, so long as all elements of the AFH 
are completed. For example, program participants may choose to complete 
all questions in the template and then identify significant 
contributing factors.
    The Final Assessment Tool still retains the streamlined 
consideration of contributing factors that was adopted following the 
first round of public comments. As stated in HUD's 30-day notice on the 
Revised Assessment Tool, ``The Initial Assessment Tool would have 
required contributing factors to be identified twice, once separately 
and again in answering specific questions. The Revised Assessment Tool 
only requires that contributing factors be identified once. The 
contributing factors analysis has also been revised by removing the 
previous requirements to

[[Page 81845]]

list all contributing factors and then rate their degree of 
significance. In the Revised Assessment Tool, program participants are 
required to identify those contributing factors that significantly 
impact specific fair housing issues, and for the purposes of setting 
goals prioritize them, giving the highest priority to those factors 
that limit or deny fair housing choice or access to opportunity, or 
negatively impact compliance with fair housing or civil rights law.'' 
In addition, the Guidebook provides guidance to assist program 
participants in identifying and prioritizing contributing factors.
    Issue: Preservation of Affordable Housing. A number of commenters 
requested clarification of the continuing importance of affordable 
housing preservation and rehabilitation and how these vital program 
activities can be addressed in different parts of the Assessment Tool.
    A commenter requested that specific housing preservation strategies 
should be included in the analysis questions and/or instructions, and 
suggested mentioning strategies such as, ``preventing Project-based 
Section 8 contract opt outs, providing rehab assistance for existing 
subsidized projects, and recapitalizing and extending affordability for 
projects with maturing mortgages or expiring use restrictions.''
    One commenter stated the explanation of the potential contributing 
factor on Lack of Community Revitalization should have explicitly 
mentioned housing preservation as, ``an important tool within 
comprehensive community revitalization strategies and should be 
included.''
    One specific suggestion made by commenters was to clarify the 
description of the contributing factor on ``Siting selection policies'' 
to remove the reference to housing rehabilitation in two places in the 
description, including in the sentence, ``[t]he term `siting selection' 
refers here to the placement of new or rehabilitated publicly supported 
housing developments.''
    A commenter requested that questions should be added to the 
analysis, ``asking jurisdictions to identify affordable housing 
developments in areas of opportunity that are threatened with loss.''
    HUD Response. HUD appreciates these comments and made a number of 
clarifications to the Final Assessment Tool to respond to the concerns 
within the overall fair housing planning context of the AFH.
    First, the additional information questions in the analysis section 
of the Assessment Tool were clarified to indicate that they provide an 
opportunity for program participants to include information on the role 
of affordable housing as it relates to the analysis of the fair housing 
issues in each relevant section.
    Regarding the comment suggesting the list of specific preservation 
activities, HUD has clarified in the instructions to the additional 
information questions that housing preservation activities that are 
related to fair housing issues may be discussed there. Also a change 
was made to the contributing factor on ``displacement due to economic 
pressures'' to clarify that economic pressures can include the loss of 
affordability restrictions, which can include items mentioned in the 
commenter's list.
    Regarding the comment on the description of the Lack of Community 
Revitalization contributing factor, HUD amended the contributing factor 
description to include, ``When a community is being revitalized, the 
preservation of affordable housing units can be a strategy to promote 
integration.'' Moreover, fair housing considerations relating to 
housing preservation are also already covered in a number of other 
contributing factors, including displacement of persons due to economic 
pressures; and location and type of affordable housing. In addition, 
throughout the Assessment Tool, program participants also must identify 
``other'' contributing factors that are not included in the HUD 
provided list.
    The ``Siting selection policies'' contributing factor was clarified 
by deleting two references to rehabilitated housing where they 
originally appeared and adding this more precise description: 
``Placement of new housing refers to new construction or acquisition 
with rehabilitation of previously unsubsidized housing. State and local 
policies, practices, and decisions can significantly affect the 
location of new publicly supported housing.'' This change was made to 
distinguish between rehabilitation activities relating to the 
preservation of subsidized housing and the siting of new subsidized 
housing that sometimes can involve acquisition of a previously 
unsubsidized building. Fair housing issues relating to the location of 
existing publicly supported housing would be addressed under the 
Location and Type of Publicly Supported Housing contributing factor. 
HUD notes that program participants still have the ability to consider 
other relevant factors when comparing the very different program 
activities of new construction and rehabilitation, such cost-
effectiveness and trends in the overall market availability of units 
affordable to those with the lowest incomes.
    HUD declined to adopt the commenters' suggestion that new questions 
be added to the analysis to identify specific affordable housing 
developments at risk of loss or conversion because HUD believes that 
the Assessment Tool provides adequate opportunities to discuss such 
concerns in several sections of the analysis and through the 
contributing factors analysis. HUD did respond, however, by amending 
the contributing factor, ``displacement of residents due to economic 
pressures'' to clarify that it can be applied to individual buildings 
at risk of loss of affordability as well as to neighborhoods undergoing 
rapid economic change and where preservation may be an appropriate fair 
housing related goal.
    There were additional clarifications that were made in response to 
the general concerns raised, as reflected in the Compare Assessment 
Tool.
    Issue: Loss of Affordable Housing. One commenter requested that the 
contributing factors identified in the Tool for the ``Fair Housing 
Issues Analysis'' section should explicitly acknowledge that the loss 
of affordable housing--whether it be in the form of the failure to 
preserve existing affordable housing, or the failure to produce more 
affordable housing units--impacts fair housing choice for many 
families.
    HUD Response. HUD declined to add the new suggested contributing 
factor, but did clarify the instructions to the Demographics section by 
adding the following language: ``Program participants may also describe 
trends in the availability of affordable housing in the jurisdiction 
and region for that time period.'' HUD also believes that the 
``Additional Information'' question in the Disproportionate Housing 
Needs section would be an appropriate place to include such local data 
and local knowledge and, for purposes of assessing fair housing 
concerns, any resulting disparities that may be experienced by certain 
protected class groups. In addition, HUD amended the language on the 
potential contributing factor, ``Displacement of Residents Due to 
Economic Pressures'' to clarify this factor can include the loss of 
affordability restrictions at individual buildings as well as in 
particular geographic areas.
    Issue: Community Assets, Organizations and Characteristics. 
Commenters requested that questions be included in the Assessment Tool 
to allow program participants to include information beyond the HUD-
provided

[[Page 81846]]

data related to a wide variety of local and regional issues, assets and 
socio-economic conditions and trends. Many commenters provided often 
extensive lists of specific issues that HUD should include or call out 
for analysis or contributing factors sections or in the instructions. 
The comments covered a wide variety of issues, assets, organizations, 
strategies and activities related to their region, jurisdiction and 
neighborhoods. For example, one commenter requested questions on, 
``responsive community-based organizations, community development 
corporations that have worked for years to help revitalize the 
neighborhood, active tenant organizations, and other important social 
network and cultural support infrastructures.''
    Several commenters also requested a question or other space to 
provide information on immigrant communities including, ``cultural and 
religious organizations and social networks in local neighborhoods and 
communities.''
    HUD Response. In reviewing commenters' suggestions, HUD was mindful 
of the information collection burden that would be involved in adding 
mandatory questions on a wide variety of issues that may be relevant in 
some jurisdictions and regions but not in others. For this reason, HUD 
declined to adopt the suggested addition of new questions in the 
analysis section. HUD has clarified the ``additional information'' 
questions in each section of the analysis to provide program 
participants the opportunity to supplement with information they 
determine relevant to an assessment of fair housing in their 
jurisdiction and region. These questions provide a space for discussion 
of issues that are relevant to the assessment of fair housing issues 
without creating additional mandatory questions.
    While HUD declined to add specific questions or instructions on 
immigrant communities and their various characteristics, program 
participants may address fair housing issues relating to immigrant 
communities in several sections of the Assessment Tool, including the 
additional information questions as well as the descriptive narrative 
and analysis in the Demographics section. HUD is familiar with the 
research on immigrant communities and recognizes that there are complex 
issues associated with them, as noted in the preamble to the AFFH final 
rule (see 80 FR. 42279-42280).
    Issue: Colonias. One commenter recommended that issues related to 
the Colonias be added to the contributing factor on ``access to 
financial services'' by adding a reference to ``contract for sale'' 
arrangements.
    HUD Response. HUD declined to make this revision because such 
financing mechanisms can already be considered under the contributing 
factor, ``access to financial services'' and the new contributing 
factor on lending discrimination. Fair housing concerns related to 
Colonias can also be considered under the ``other'' category which 
allows program participants to add contributing factors not identified 
on the HUD-provided list.
    Issue: The Data Tool has promise but needs adjustment. Several 
commenters commended the Data Tool, advising that it has the potential 
to provide data that could not be previously accessed, and that it 
provides important opportunity metrics. Commenters however, requested 
improvements to the Data Tool in ways they stated would be more useful. 
Commenters requested that HUD enlarge the contrast and size of the dots 
because as currently presented, the contrast and size of dots is not 
large enough to allow for differentiation between the dots, and that 
some dots appear to be located where no one lives. Commenters also 
requested that the Data Tool provide information to communities where 
multiple program participants choose to collaborate, stating that the 
current Data Tool does not have this functionality and it is not 
possible for program participants to generate maps and tables for each 
of the entities that are collaborating and combine them without getting 
inaccurate results. Another commenter added that if the data, 
information, and analysis of various program participants in the region 
were shared with others, collaboration could be better facilitated. 
Another commenter stated that it was unable to generate or download 
tables over a two-week period, and therefore was unable to assess them. 
Commenters stated that it is not clear from the Data Tool whether the 
lack of identified racially and ethnically concentrated areas of 
poverty (R/ECAPs) in non-metropolitan communities is an artifact of the 
tool or whether these communities really do not include R/ECAPs. A 
commenter stated that the Data Tool identifies far fewer R/ECAPs due to 
the 40 percent threshold set. Another commenter stated that certain 
data elements in the Data Tool are incompatible with the Fair Housing 
Act, specifically with respect to foreign-born populations. The 
commenter stated that the foreign-born data from the census 
questionnaire does not track exactly with the definition of national 
origin under the Fair Housing Act.
    Additional suggestions on how the Data Tool could be improved 
included the following: Make the User Guide for the Data Tool easier to 
find without having to click through several screens before finding it; 
make both maps and tables exportable; divide the User Guide into two 
parts, one on maps and one on tables, and better define the terminology 
used in the Data Tool; add shape files (a data format for geographic 
information) for R/ECAPs that are available for download as well as 
different color options for shading census tracts to improve the 
readability of the maps; clarify that dot density maps defining R/ECAPs 
does provide a complete picture of segregation; better address family 
cluster indicators because they are not precisely geocoded, which may 
misrepresent the location of families away from community assets and 
away from opportunities and closer to hazards; if HUD is using 
sophisticated mapping software there is no reason why the maps provided 
by HUD cannot contain more layers, more symbols and more contrasting 
colors; clarify whether the data on the maps represents the 
distribution of publicly supported housing units within a census tract 
based on actual unit counts in the buildings located within the tract 
or if the count assumes that all units in a project are in a single 
building; include an ``identify'' tool that can provide existing 
information on the population in assisted developments; and allow 
program participants to overlay their own maps and data.
    HUD Response: HUD appreciates the detailed comments received about 
the Data Tool. HUD continues to make adjustments, refinements, and 
improvements to the Data Tool, many of which will address the concerns 
raised by commenters regarding its utility and functionality. HUD hopes 
to be able to provide the public with raw data, which may be used by 
program participants in their analyses, so long as any manipulated data 
is submitted along with the AFH submitted to HUD for review. HUD has 
also added an instruction in the Final Assessment Tool to address the 
concern about the location of publicly supported housing units, since 
HUD allows PHAs to group buildings under asset management projects 
(AMPs), which results in a single project displayed on a the map for a 
given asset management project.
    Issue: Application of HUD-provided data to jurisdictions. Many 
commenters expressed concern that various individual components of the 
HUD-provided data, including indices, R/ECAP measures, and maps were 
not always useful or applicable to their

[[Page 81847]]

jurisdiction's own characteristics or demographic composition. For 
instance, some commenters noted that R/ECAPs were not always applicable 
to their local demographics (e.g., majority-minority cities).
    HUD Response. The HUD-provided data are intentionally based on 
nationally available uniform data sources. The indices and measures 
adopted by HUD are intended to provide a baseline to facilitate the 
analysis for the jurisdiction and region. Program participants are 
required to use additional local data and local knowledge to provide a 
more complete fair housing analysis. This may include consideration of 
additional data sources, alternate measures, and qualitative analysis. 
As stated in the preamble to the AFFH final rule, ``HUD has worked to 
identify a comprehensive set of data that allows a multisector 
assessment. Moreover, because research on measuring access to community 
assets is continually evolving, HUD is committed to reviewing the data 
on an ongoing basis for potential improvements. As with all data 
metrics, the measures in each category have strengths as well as 
limitations, and no criteria should be assessed in isolation from the 
other measures or required assessments.'' The preamble addressed other 
known strengths and limitations of specific components of the HUD-
provided data, as well as provided a discussion of their applicability 
to individual program participant's unique local conditions.
    Issue: The indices in the Data Tool are unwieldy, difficult to 
understand, and several are not well-conceived. Commenters stated that 
the use of complex social science indices is largely unintelligible to 
most users and the general public. Another commenter stated that the 
use of opportunity indices may be related either directly or 
indirectly, and the meaning of differences between them may be unclear 
to program participants. A commenter stated that the data should be 
able to be used by the broadest possible audience, but in its current 
form it is too cryptic and too oriented toward the use of technical 
terms rather than plain language. A commenter stated that the 
dissimilarity index has several shortfalls and it should either be 
removed all together or HUD should explain its weaknesses in detail. 
Another commenter made a similar suggestion, stating that HUD needs to 
clarify how the dissimilarity index is being calculated to clarify for 
jurisdictions and how to interpret it for program participants that 
lack the knowledge or expertise to analyze the dissimilarity index. A 
commenter stated that instead of providing the various opportunity 
indices, HUD should require collection and analysis of data with 
respect to these issues. In contrast to these commenters, other 
commenters suggested that HUD provide the ``exposure index'' and the 
``race and income index'' in addition to the ``dissimilarity index.''
    Other commenters offered recommendations on specific indices. 
Commenters offered the following comments: With respect to the Poverty 
Index, instead of using a poverty rate, HUD should construct a poverty 
index that is the average of the family poverty rate and the percentage 
of households receiving public assistance; the Neighborhood School 
Proficiency Index captures the percentage of elementary school students 
who pass state tests in math and reading in the schools in a given 
neighborhood, but the commenters stated that this is measure of school 
quality, and there is no attempt to measure value added or even 
quality-adjust schools based upon the characteristics of its students; 
the Job Access Model measures the distance to job centers but does not 
make much of an attempt to match jobs to the skills of workers; explain 
the advantage of aggregating the factors considered by the labor market 
engagement index and the poverty index--that it would seem more 
practical to report the difference between the census tract and the 
national or regional rate and conduct a test for statistical 
significance.
    HUD Response: HUD appreciates the suggestions made by commenters, 
as with the comments on enhancing the availability of data, HUD has 
strived and will continue to strive to have the indices provide greater 
aid in the assessment of disparities. The HUD-provided indices of 
common indicators of opportunity--poverty, education, employment, 
transportation, and environmental health--were selected because 
existing research suggests that from a fair housing perspective, they 
have a bearing on a range of important outcomes. As with all of the 
HUD-provided data, these indices are based on nationally available data 
sources and one or more may have limited application for some 
jurisdictions, and may not include all protected classes required for 
analysis under the Fair Housing Act. As noted above in response to an 
earlier comment, HUD hopes to be able to provide the raw data from the 
Data Tool to the public. Regarding the comments on use of the 
``exposure index'' and the ``race and income index,'' HUD notes that it 
is providing the dissimilarity index in conjunction with dot density 
maps that, taken together, can often present a fuller picture of the 
levels and patterns of segregation and integration in the jurisdiction 
and region. However, use of outside, additional measures is by no means 
prohibited in the Final Assessment Tool and program participants may 
use these additional measures of segregation as well as information 
obtained from the community participation process.
    Issue: Concern with HUD's ability to implement web-based 
information collections. Commenters expressed concerns about HUD's 
ability to implement web-based information collections. The commenters 
stated that in the past HUD has often failed to keep existing systems 
and information up-to-date. Commenters stated that the concern is 
enhanced here because of the complexity of the Assessment Tool.
    HUD Response: HUD appreciates these concerns, and takes them 
seriously. Many commenters also provided specific and helpful feedback 
on functionality, that HUD aims to incorporate into the user interface 
that HUD is developing. HUD has administered web-based systems for many 
years and anticipates the Assessment Tool and associated web-based 
applications, such as the Data Tool and Assessment Tool Interface, will 
assist program participants in completing AFHs. HUD is taking 
appropriate measure so that the systems function properly.
    Issue: Enhance the ability to access Low-Income Housing Tax Credit 
(LIHTC) data. Commenters commended HUD for including LIHTC properties 
in the Assessment Tool, stating that the inclusion of these properties 
is important to a meaningful assessment of fair housing. While 
commenters appreciated the inclusion of LIHTC data, several recommended 
that HUD develop a plan to collect LIHTC data in a uniform way from 
State housing finance agencies, or in the alternative, HUD should 
acknowledge that the variation in State data may affect program 
participants' abilities to complete the AFH. Another commenter 
expressed concern that HUD does not have zip codes for 16 percent of 
the LIHTC inventory and that obtaining this information and making it 
available should be a straightforward process for HUD. Another 
commenter recommended inclusion of a table that identifies the numbers 
of units or any other characteristics of LIHTC developments since LIHTC 
is responsible for the majority of assisted housing in the nation. 
Commenter notes that the tables do not include the

[[Page 81848]]

address or census tract of each publicly supported and LIHTC property.
    HUD Response: HUD acknowledges the limited availability of LIHTC 
data on tenant characteristics at the development level. HUD is 
continuing its efforts to collect and report on this data. However, 
commenters should also be aware that information at the development-
level will often not be available due to federal privacy requirements 
and the small project sizes in a large portion of the LIHTC inventory.
    HUD will include census tract information in the HUD-provided data 
through the online AFFH Data and Mapping Tool. The Data and Mapping 
Tool will include a query tool that will allow users to filter and sort 
demographic data for both developments and census tracts by common 
characteristics for public housing, project-based Section 8, and Other 
HUD Multifamily housing (including Section 202 and Section 811). The 
query tool will include census tract demographic characteristics for 
LIHTC developments. The Data and Mapping Tool will also allow users to 
export tables showing this data from the query tool or the resulting 
comparisons from a query. These changes are intended to reduce grantee 
burden, improve the accuracy of analyses and reduce the risk of 
incorrect results (for example from drawing incorrect correlations from 
potentially complex data), as well as to better inform the community 
participation process.
    Issue: Clarify use of local data and local knowledge and efforts to 
obtain such information. Commenters stated that the Assessment Tool 
should provide examples of local knowledge such as: Efforts to preserve 
publicly-supported housing; community-based revitalization efforts; 
public housing Section 8 demolition or disposition application 
proposals; Rental Assistance Demonstration (RAD) conversion 
applications; transit-oriented development plans; major redevelopment 
plans; comprehensive planning or zoning updates; source of income 
ordinance campaigns; and inclusive housing provision campaigns. Other 
commenters requested that HUD include examples of available local data, 
such as neighborhood crime statistics; school demographic and school 
performance data, State and local health department data by 
neighborhood; lead paint hot spots; data about the institutionalization 
of persons with disabilities and the availability of community-based 
services from state and local Medicaid agencies and disability services 
departments; and reports and studies already completed by state and 
local research and advocacy groups.
    Other commenters suggested that HUD require program participants to 
describe their efforts to identify supplemental data and local 
knowledge such as from universities, advocacy organizations, service 
providers, planning bodies, transportation departments, school 
districts, healthcare departments, employment services, unions, and 
business organizations. Other commenters went further, suggesting that 
HUD require program participants to conduct research for topics on 
which HUD is not providing data. Another commenter stated that local 
data should not be subject to a determination of statistical validity 
because such data is generally combined with local knowledge, which is 
not always statistical. Other commenters asked that HUD encourage all 
local data be made publicly available on Web sites prior to the 
community participation process, and that HUD-provided data must be 
publicly available as well. Another commenter requested that the 
Assessment Tool include a separate section on local knowledge or 
provide for local knowledge to be included in each question for each 
section in the Assessment.
    HUD Response: HUD notes that the HUD-provided data will be made 
publicly available. HUD anticipates that in some cases the data and 
mapping tool will allow program participants to set thresholds when 
using the data, for instance by adjusting the display of some mapping 
features to better reflect their local demographics. Since thresholds 
may have a significant effect on the analysis conducted, any thresholds 
set by program participants in using these data must be disclosed in 
the AFH made public during the community participation process and in 
the AFH submitted to HUD.
    While HUD has not adopted the commenter's suggestion to establish a 
separate section on local knowledge, HUD has added to the instructions 
many additional references to local knowledge and local data, to 
identify where HUD believes such knowledge and data would be 
particularly helpful in responding to questions. HUD believes these 
additional references provide the clarity that commenters sought. 
Additionally, HUD expects that local data and local knowledge will 
often be made available to program participants through the community 
participation process, and HUD will further addresses local data and 
local knowledge in the Guidebook to provide additional examples of 
local data and local knowledge and where such sources can be accessed.
    HUD declines to impose additional requirements on program 
participants to searching for local data and to require program 
participants to describe their efforts to identify supplemental local 
data and local knowledge. HUD requires program participants to 
supplement HUD-provided data with local data and local knowledge 
because HUD acknowledges that it is not able to provide data on all 
areas relevant to a fair housing assessment from nationally uniform 
sources, and local data may be able to fill such gaps. For example, 
program participants may find valuable data through a variety of 
sources, including from other federal and state agencies Web sites. 
Some examples of federal online data sources include: The Department of 
Treasury's Community Development Financial Institution's Information 
Mapping System (https://www.cdfifund.gov/Pages/mapping-system.aspx), 
the EPA's Environmental Justice Screening and Mapping Tool (https://www2.epa.gov/ejscreen), the General Services Administration's Data.Gov 
Web site, and HUD's own resources (e.g. https://www.huduser.gov/portal/datasets/gis.html). Additionally, local data may be the more recent and 
relevant data to rely on compared to the HUD-provided data. However, 
HUD has repeatedly said that local data and local knowledge constitute 
information which can be found, through a reasonable amount of 
searching, are readily available at little or no cost, and are 
necessary for the completion of the AFH.
    With respect to the requirement that local data is subject to a 
determination of statistical validity, HUD notes that this is a 
requirement of the Final Rule itself, but as stated in the Preamble to 
the Final Rule this provision is intended to, ``clarify that HUD may 
decline to accept local data that HUD has determined is not valid [and 
not] that HUD will apply a rigorous statistical validity test for all 
local data.''
    Issue: HUD needs to provide certain data. Commenters offered 
suggestions on data that HUD should provide. These suggestions included 
the following: Data on voucher holders; project-level data for each 
separate housing program for each jurisdiction and region, or at least 
provide guidance on how program participants may collect project-level 
data; cross-tabulated data on disability, race, and poverty; 2008-2012 
American Community Survey data (5-year data); data on persons with 
disabilities living in segregated settings; data on local crime; 
ratings from the Community Development Financial Institution

[[Page 81849]]

distress index; data on access to broadband infrastructure; and data 
for all categories of publicly supported housing, including those 
outside the control of PHAs. With respect to the last suggestion, 
commenters stated that if HUD cannot provide such data, PHAs should not 
be required to address this area. Commenters asked that HUD not provide 
any data that is not statistically significant or geographically 
appropriate. Commenters also stated that HUD establish a process for 
program participants to identify data discrepancies or missing data and 
hold program participants harmless from not using resources that are 
inconsistent for the covered entity's first round of submitting an AFH.
    HUD Response: HUD appreciates the suggestions made by commenters. 
HUD has strived and will continue to strive to provide program 
participants with as much nationally uniform data as possible. HUD 
anticipates that it will be able to add to the data that it makes 
available over the years. With respect to areas where HUD has not 
provided data, as HUD stated in response to the preceding comment, 
program participants must use relevant local data that they can find 
through a reasonable amount of search, are available at little or no 
cost, and are necessary for the completion of the Assessment Tool. If 
such local data cannot be found, then local knowledge gained through 
the community participation process may be helpful in this regard. HUD 
staff in the applicable HUD program offices are available to provide 
technical assistance on the data and mapping tool and the user 
interface.
    Issue: Do not relegate maps and tables to appendices and separate 
housing cost burdens. A commenter stated that the maps and tables 
should not be relegated to appendices and that separating the data from 
the parts of the document in which program participants will conduct 
their analysis increases the risk that some key data points or 
geographic patterns will not be addressed in the analysis. Other 
commenters stated that the maps and tables should allow for separation 
on the basis of housing cost burdens, crowding, and lack of facilities, 
and that the housing cost burdens need to further filter out higher 
income households where higher costs are not the actual measure of 
distress.
    HUD Response: The listing of maps and tables in appendices is a 
convenient organizational structure to advise program participants of 
the maps and tables that HUD is providing as part of the Assessment 
Tool for the purposes of public comment. HUD anticipates that the user 
interface and the data and mapping tool will allow the program 
participant to incorporate maps and tables directly into the body of 
the template. HUD appreciates the suggestion to improve the provision 
of data on housing needs and these comments will be taken into account 
in further refinement of the HUD-provided data.
Issues on Specific Content of Assessment Tool
    Issue: Additional guidance needed about the community participation 
process. Commenters stated that this section of the template needs to 
provide more guidance for program participants and should afford 
stakeholders a means of assessing the thoroughness of a program 
participant's efforts to encourage and provide community participation. 
Another commenter requested that HUD revise the community participation 
section in a way that ensures program participants are accountable for 
community engagement. A commenter requested that HUD add a question 
that requires program participants that are unsuccessful in eliciting 
community participation to assess possible reasons for low 
participation rates, stating that such an explanation is particularly 
important when historically underserved populations exhibit low 
participation rate.
    Other commenters stated that the program participants should be 
required to list the organizations they consulted, and further to 
provide a detailed list of the specific participation activities and 
the comments received or delivered at public hearings so that advocates 
can assess if the groups that participated represented a balance of 
opinions. Some commenters stated that program participants should be 
required to report on the discussions with residents of public and 
assisted housing and residents of R/ECAPs in places where community 
revitalization efforts existed or are planned to be undertaken in order 
to determine if residents wish to remain in their homes and communities 
or to relocate to areas that may offer other opportunities. A commenter 
stated that community participation should be given as much weight, if 
not more, than the data analysis conducted by program participants.
    HUD Response: HUD appreciates the many comments that it received on 
the community participation process. These comments and the earlier 
comments on community participation addressed in this preamble appear 
to underscore the importance of the community participation that 
program participants will obtain and consider in producing a meaningful 
assessment of fair housing. With respect to certain of the 
recommendations made by the commenters, the Final Assessment Tool does 
ask program participants to list the organizations with which they 
consulted, to describe the types of outreach activities undertaken and 
dates of public hearings or meetings held, and to explain how these 
outreach activities were designed to reach the broadest audience 
possible. In addition to these changes, HUD has provided additional 
instructions pertaining to the community participation process. The 
community participation process required for the AFH is largely based 
on longstanding community participation processes and outreach in the 
Consolidated Plan and Public Housing regulations. These are processes 
with which program participants are well familiar and have long 
undertaken. For these reasons, HUD does not find, at least at this 
time, which is the outset of the AFH process, that more requirements 
beyond the additional questions added in the Final Assessment Tool need 
to be imposed.
    Issue: HUD must accurately address individuals covered by the AFH. 
Commenters stated that the Assessment Tool needs to better clarify who 
will be covered by the AFH, particularly populations that do not fall 
under current protected classes. They stated that the template could be 
improved by clearly delineating which groups are required to be focused 
on, as well as providing guidance on how to engage with each group. 
Commenters stated that the Assessment Tool inappropriately elevates 
persons on the basis of income to a protected class. Other commenters 
stated that HUD must be diligent in making sure that racial and ethnic 
groups are consistently identified in the Assessment Tool and all AFH 
materials. Other commenters stated that all groups need to be treated 
the same in the Assessment Tool, stating as an example that immigrants 
should not be treated differently from native born residents, and women 
should not be treated differently from men.
    HUD Response: The AFH covers protected classes under the Fair 
Housing Act, and these classes are identified in the instructions 
accompanying the tool, and addressed in the Assessment Tool. HUD has 
added a question to the Fair Housing Enforcement, Outreach Capacity, 
and Resources section of the Final Assessment Tool, which asks program 
participants about any protected characteristics covered by State or 
local fair housing laws. HUD believes the revised instructions better 
guide

[[Page 81850]]

program participants in addressing questions pertaining to the various 
protected classes under the Fair Housing Act.
    Issue: Information required by the Analysis Section is not reduced 
by fewer questions. Commenters stated that while it appears there are 
fewer questions, the consolidated questions require no less information 
than was previously being requested. Other commenters stated that 
compound questions make it difficult for stakeholders to extract the 
information they need from the AFH and increases the likelihood that 
certain questions may not be answered and may not allow for program 
participants to think critically about these issues and devise 
effective and creative strategies to advance true change. Another 
commenter stated that many of the questions are still very broad and 
complex, and consolidation only adds to the complexity.
    HUD Response: HUD appreciates these comments and on further review, 
HUD could see that certain questions were too broad. HUD has 
restructured several questions to better clarify the information 
sought.
    Issue: Provide more targeted questions, and seek specific 
information from program participants. Commenters stated that the 
Assessment Tool should contain more exact questions to allow program 
participants to better describe their selection and rationale for their 
fair housing strategy. Commenters stated that many questions are open-
ended and will require program participants to make assumptions. Other 
commenters stated that HUD should provide more specific, guided 
questions with the appropriate guidance as to the types of data sets 
for each question.
    Other commenters stated that ``additional information'' questions 
should require more specific information from program participants; 
that program participants should describe efforts that are planned, 
have been made, or that are underway to preserve project-based section 
8 developments at risk of opting out of the program, or other HUD 
multifamily-assisted developments from leaving the affordable housing 
stock due to FHA mortgage maturity. Commenters also stated that program 
participants should be required to describe such efforts with respect 
to LIHTC developments, including at Year 15 and beyond Year 30.
    HUD Response: HUD appreciates these comments. These commenters 
stated similar concerns expressed by commenters in the preceding issue. 
Again, HUD has strived to structure questions so that they are more 
targeted, and solicit more specific information from program 
participants. HUD has also revised the ``additional information'' 
questions in each section to allow program participants to include 
relevant information about ``activities such as place-based investments 
and mobility options for protected class groups.'' HUD has included 
these ``additional information'' questions to provide program 
participants with the discretion and latitude to include any other 
relevant information they wish to provide.
    Issue: The Analysis Section does not reflect a balanced approach. 
Commenters stated that the choice of long-time low income residents, 
especially residents who are members of protected classes, to remain in 
their publicly supported affordable housing in communities where they 
have social, cultural, and language ties, even if those communities are 
racially or ethnically segregated, is not accounted for in the 
Assessment Tool. Commenters stated that the Assessment Tool should 
specify that ``displacement'' includes both direct displacement, 
resulting from acquisition and demolition as well as economic 
displacement caused by increased rents and evictions. Other commenters 
stated that because the analysis section only raises questions about 
racial and ethnic concentrations of poverty and disparities in access 
to opportunity the template could be contrary to the AFFH final rule by 
suggesting that there is a prohibition on the use of resources in 
neighborhoods that have such concentrations or that lack opportunities. 
Commenters stated that the Assessment Tool must provide guidance 
reflecting that the obligation to affirmatively further fair housing 
means preserving affordable housing or revitalizing areas of racial or 
ethnic concentrations of poverty, as well as enhancing access to 
opportunity. A commenter stated that the AFH and the final rule do not 
include safeguards ensuring that a balanced approach be taken. Another 
commenter stated that publicly supported housing and disparities in 
access to opportunity sections should foster a more balanced approach. 
A commenter stated that it is important to make a concerted effort to 
continue investing in R/ECAPs to ensure communities thrive and reap the 
benefits of urban change.
    HUD Response: HUD appreciates these comments and made a number of 
key changes to the Assessment Tool to better reflect the balanced 
approach to fair housing planning as discussed in the preamble to the 
final AFFH rule. These changes and clarifications include additional 
references to housing preservation, community revitalization efforts, 
and mobility options to emphasize the importance of a balanced approach 
in overcoming fair housing contributing factors and related fair 
housing issues, in order to ensure fair housing choice and eliminate 
disparities in access to opportunity.
    Issue: The Assessment Tool relies on a disparate impact analysis. 
Commenters stated that the Assessment Tool relies on a disparate impact 
analysis, requiring communities to review their policies and practices 
and assess their outcomes, even if these policies and practices are 
facially neutral. These commenters stated that based on the recent 
Supreme Court decision in Texas Department of Housing and Community 
Affairs v. The Inclusive Communities Project, Inc., 576 U.S. ___ 
(2015), the AFH must be able to establish a causal connection between 
the policy or practice and disparate impact.
    HUD Response: HUD disagrees with these commenters and notes that 
the analysis required to determine whether a policy or practice 
violates the Fair Housing Act because it has an unjustified disparate 
impact is not the same as an analysis of the fair housing issues and 
contributing factors that a program participant would address through a 
goal to affirmatively further fair housing pursuant to HUD's AFFH rule. 
In conducting an AFH, the program participant need not prove that a 
policy or practice has an unjustified disparate impact in order to 
identify fair housing issues, factors that contribute to those issues, 
and goals to affirmatively further fair housing. However, HUD notes 
that should a program participant find, as part of its assessment of 
fair housing, that a particular group is facing discrimination in 
violation of the Fair Housing Act because of the unjustified disparate 
impact of one of its policies or practice, HUD would certainly expect 
the program participant to take prompt steps to remedy such 
discrimination. If such discrimination did not involve a policy or 
practice of the program participant, but instead involved another 
individual or entity covered by the Fair Housing Act, the program 
participant should bring such discrimination to HUD's attention.
    Issue: The Assessment Tool is challenging for rural areas. 
Commenters stated that the required analysis will be challenging for 
rural areas because of the limited availability of some basic 
opportunities. Commenters stated that in these areas there is little 
public transportation and personal transportation is a dominant 
variable in settlement patterns, creating or diffusing

[[Page 81851]]

population concentrations. The commenter explains that mobility affects 
the other opportunities, such as jobs or the choice of school system.
    HUD Response: HUD appreciates that program participants in rural 
areas may be challenged because of the greater undeveloped area and 
generally lower population that may present challenges in assessing 
fair housing. HUD will continue to work to provide additional guidance 
for program participants with regard to rural data and analysis issues. 
HUD agrees that the issue of public transportation versus personal 
transportation is worth consideration and has added instructions 
addressing this issue in the Disparities in Access to Opportunity 
section of the Final Assessment Tool. HUD has also revised the 
transportation data it is providing to include two indices--the transit 
trips index and the transit cost index, to better reflect access to 
affordable transportation in a variety of settings.
    Issue: The Disability and Access Section needs additional 
revisions. Commenters stated that in looking at the population profile 
of persons with disabilities, the analysis should include examples of 
sources of local data and local knowledge concerning the population of 
persons with disabilities to help guide program participants in 
accessing such information. Commenters stated that Question 2(a) in the 
Disability and Access section should read ``individuals with mobility 
disabilities,'' rather than ``individuals who use wheelchairs,'' and 
this section should include a description of efforts to ensure that new 
construction complies with the accessibility requirements of the Fair 
Housing Act and Section 504. A commenter stated that the analysis in 
this section would benefit from an assessment of the extent to which 
persons with disabilities are more likely than other groups to 
experience housing cost burden, overcrowding, and substandard housing, 
as well as what the greatest housing burden for persons with 
disabilities is in the jurisdiction and region. The commenter stated 
that the analysis should also include an assessment of the extent to 
which persons with disabilities experience disparities in access to 
environmentally healthy neighborhoods and to employment. Other 
commenters stated that even though there is a separate section on 
disability and access issues, including Olmstead, program participants 
should be required to analyze these issues throughout the AFH.
    HUD Response: HUD has made revisions to the Assessment Tool and the 
instructions to address many of these comments, including identifying 
possible sources of local data and local knowledge program participants 
may use to conduct their assessments of fair housing. HUD declined to 
substantially modify the structure of the Final Assessment Tool by 
scattering questions related to disability and access issues in each 
section to allow program participants to complete a more focused 
assessment of the fair housing issues faced by persons with 
disabilities, but has included additional questions in response to 
commenters related to homeownership and disproportionate housing needs.
    Issue: Important required analyses are missing from the Assessment 
Tool. Commenters identified certain analyses that they stated were not 
covered in the Assessment Tool, or not adequately covered and should be 
included in the Assessment Tool as required analyses. Commenters stated 
that the template does not contain a meaningful discussion of 
homeownership and mortgage lending, and requested that HUD provide data 
on the federal mortgage tax deduction to estimate the proportion of 
homeowners that qualify for the deduction. Commenters suggested that 
program participants be required to analyze the trends of homeownership 
for each protected class and how that has changed over the past five 
years, including an analysis of how homeownership may result in 
segregation among homeowners, the ability to access to homeowners 
insurance, disparate foreclosure patterns, and the comparative 
maintenance and management of foreclosed properties in communities of 
color.
    Other commenters recommended that the transportation analysis be 
required to cross-reference to Title VI, environmental justice, and 
other civil rights obligations under federal transportation guidance, 
including but not limited to relevant Federal Transit Administration 
circulars. Commenters stated that an analysis of LIHTC properties 
should be required for all program participants so that patterns of the 
distribution of government assisted housing is placed in the proper 
context, stating that LIHTC properties are often concentrated in 
certain neighborhoods and that there is an unacceptably high level of 
segregation in and among LIHTC properties. Commenters stated that an 
analysis of patterns of location and segregation within each government 
assisted housing program is an important analysis that must be included 
in the AFH. Commenters added that this analysis should be required for 
all program participants on a regional level in each AFH so that the 
pattern of government assisted housing distribution is placed in 
context.
    Commenters stated that the Assessment Tool does not properly 
recognize the changing factors of majority-minority localities that are 
experiencing an urban renewal renaissance where higher income and non-
minority populations are migrating from the suburbs to urban centers of 
large cities. Commenters stated that the analysis of disparities in 
access to opportunity should include an analysis of rates of voter 
registration and participation, representation by different racial and 
ethnic groups on elected and appointed boards and commissions, and 
representation among staff in the school district, police force, and 
other municipal departments. These commenters also stated that exposure 
to adverse community factors should include a description of public 
health issues and health disparities among neighborhoods within the 
jurisdiction and between the jurisdiction and region, including 
disparities in low birth weight, infant mortality, sentinel health 
conditions, deaths due to fire, homicide, and gun violence, pedestrian 
auto fatalities, rates of premature death, and life expectancy. 
Commenters also advised that environmental factors should be included, 
such as water pollution, flooding caused by loss of wetlands, and 
mobile sources of air pollution.
    HUD Response: HUD agrees with commenters that recommended inclusion 
of homeownership and mortgage lending and HUD has added questions on 
homeownership to certain sections of the Final Assessment Tool and 
included an additional contributing factor of ``lending 
discrimination.'' HUD has also enhanced instructions pertaining to 
transportation to help program participants better identify barriers to 
transportation opportunities. With respect to requiring an analysis of 
LIHTC properties of all program participants, LIHTC is the primary 
financing tool for affordable housing in the United States. The Final 
Assessment Tool retains the same analysis of LIHTC properties as the 
Revised Assessment Tool. HUD did not agree with the commenters that the 
questions in the publicly supported housing section should be changed. 
The questions were carefully worded to match the program categories 
(e.g., public housing, LIHTC, etc.) for analysis, as well as the 
analysis of individual buildings and developments within program 
categories. With respect to the myriad of other factors recommended by 
the

[[Page 81852]]

commenters, HUD has not added the majority of factors, such as low 
birth weight, infant mortality, deaths due to fire, pedestrian auto 
fatalities, and rates of premature death. However, program participants 
are permitted and encouraged to include any information that they 
believe to be relevant to assessing fair housing issues and 
contributing factors in their jurisdiction and region.
    Issue: Assessment Tool does not use or refer to geographic areas 
and geographic patterns appropriately. Commenters stated that HUD has 
overemphasized the geographic patterns analysis in the disproportionate 
housing needs section. Commenters stated that the emphasis of this 
section raises concerns, as it implies that small geographic areas with 
the greatest housing needs should be the primary recipients of 
additional low income housing assistance, while small geographic areas 
with the least need are ``off the hook.'' Commenters recommended 
eliminating this section or replacing it with a more meaningful 
regional fair share analysis. Other commenters stated that HUD should 
not conflate location with other factors that are unrelated to housing.
    HUD Response: HUD disagrees with these commenters and believes that 
an analysis of disproportionate housing needs in the jurisdiction and 
region is a necessary component of the assessment of fair housing.
    Issue: Restore the Mobility Section to the Assessment Tool. Several 
commenters requested that HUD add the section on mobility and Housing 
Choice Vouchers (HCV) back into the template. A commenter stated that 
omitting a discussion of aspects of the program that relate to mobility 
that PHAs are required to use for fair housing planning would be akin 
to not asking a local government to discuss its site selection policies 
with respect to the developments that receive HOME funds. Other 
commenters stated that even if an entitlement jurisdiction is not 
collaborating with a PHA, they still have a stake in HCV mobility 
issues and a policy toolkit they can use to help overcome barriers.
    HUD Response: In the Revised Assessment Tool, HUD made the decision 
to address many issues related to mobility in the contributing factors 
including in an expanded contributing factor on ``Impediments to 
Mobility,'' rather than in the publicly supported housing analysis 
section. The term ``mobility'' can include mobility for Housing Choice 
Voucher recipients as well as unassisted persons and families. While 
HUD has not included a separate section on mobility in the Final 
Assessment Tool, the additional information question in several 
subsections of the analysis references mobility. The Compare Assessment 
Tool reflects the many additional places where HUD requires program 
participants to consider mobility options and other considerations for 
housing choice vouchers.
    Issue: Include a reference to publicly supported housing in all 
sections of the Assessment Tool. Commenters stated that publicly 
supported housing should be consistently referred to throughout the 
template and that all categories of publicly supported housing should 
be included in each question.
    HUD Response: HUD declines to include references to publicly 
supported housing in each section of the Final Assessment Tool. Similar 
to HUD's response to commenters' requests that disability and access 
issues be references throughout the template, HUD believes that a 
designated section on publicly supported housing will provide a more 
focused and in-depth analysis of the fair housing issues faced by 
residents of publicly supported housing. HUD notes, however, that some 
specific questions related to publicly supported housing are included 
outside of the designated section on publicly supported housing--
including the disability and access and the disproportionate housing 
needs sections.
    Issue: Require examination of fair housing compliance. Commenters 
stated that HUD should require program participants to examine various 
types of complaints and other evidence that point to trends or emerging 
issues in fair housing compliance. Commenters stated that additional 
questions should be added to the Fair Housing Enforcement, Outreach 
Capacity, and Resources section of the template, and that these 
questions should capture information about any protected class under 
State or local law. Other commenters suggested that jurisdiction should 
be required to identify fair housing or other civil rights 
organizations operating in their area so that these organizations can 
be involved in the process.
    HUD Response: HUD agrees with some of the suggestions made by 
commenters and has added additional questions and instructions to the 
Fair Housing Enforcement, Outreach Capacity, and Resources section of 
the Final Assessment Tool.
    Issue: The Demographic Summary should clearly indicate demographic 
patterns. Commenters stated that the demographic summary should more 
clearly indicate which demographic patterns and trends should be 
described, including increases and decreases in the number of census 
tracts with greater than 20 percent, 30 percent, and 40 percent 
poverty, and increases or decreases in the number of persons residing 
in such census tracts. Another commenter stated that it appears that 
neighborhood demographics can shift in relatively short periods of 
time, and asked about the risk that the lag in data availability, which 
appears to be 2-3 years at minimum, leads to outdated estimates.
    HUD Response: HUD agrees with some of these commenters that 
additional clarity regarding the types of demographic trends that 
program participants are expected to analyze is necessary. Accordingly, 
HUD has provided additional instructions for this section to better 
explain what program participants must analyze in this portion of the 
Final Assessment Tool. With respect to the latter comment, HUD 
recognizes that the data being provided may not always be the most 
recent available or may not be as current as actual local conditions. 
HUD recognizes that a program participant's assessment of fair housing 
issues will reflect the data that HUD provided as well as any 
information revealed through local data and local knowledge, including 
information made available to the program participant in the community 
participation process.
    Issue: Contributing factors are confusing and often contradictory. 
Certain commenters stated that the focus on contributing factors with 
respect to housing segregation, both community-wide and in specific 
government housing programs, is consistent with the history and purpose 
of the Fair Housing Act, and they stated that such focus is a crucial 
step forward and will help program participants engage in constructive 
analyses to comply with their Fair Housing Act obligations. However, 
other commenters stated that the template is confusing in how it 
describes factors that may contribute to fair housing issues. Other 
commenters stated that many of the factors are ambiguous and 
potentially contradictory.
    While commenters stated that it is helpful that HUD has identified 
factors to be analyzed, the commenters stated that the list and 
descriptions of factors are characterized in ways that assume there is 
always a fair housing impact. Commenter stated that any potential bias 
should be removed. Commenters recommended that the list of contributing 
factors be referenced as ``Factors to be Considered.'' Other commenters 
stated that the term

[[Page 81853]]

``contributing factors'' continues to suffer from the same lack of 
underlying validity, resulting in the creation of policy on the basis 
of incomplete information and personal perceptions, casting doubt on 
the Assessment Tool's ability to truly increase fair housing choice.
    Commenters stated that market driven forces should not be included 
in the list of contributing factors, because ``location of employers'' 
is an important issue driven by the free market, and that the factor of 
displacement of residents due to economic pressures is ill conceived. 
Commenters stated that there are inconsistencies between the lists of 
contributing factors in Options A and B and they must be reconciled in 
the final version. To add some clarity to contributing factors, a 
commenter recommended that HUD include a general statement that 
contributing factors may differ depending on local context.
    HUD Response: HUD believes the Final Assessment Tool reflects (as 
highlighted by the Compare Assessment Tool) the many changes made in 
response to public comment, to enhance clarity of the contributing 
factors. Many of the changes were made in the descriptions of and the 
instructions for selecting the contributing factors. With respect to 
commenters' concern that the list and descriptions of factors are 
characterized in ways that assume a fair housing impact, that is in 
fact the purpose of HUD's identification of contributing factors--to 
assess their impact on related fair housing issues. The Assessment Tool 
is unambiguous that the contributing factors listed by HUD are factors 
to be considered by the program participant in conducting the 
assessment--not predetermined factors that program participants are 
required to select even when they are not applicable. However, HUD did 
change the title of Appendix C to ``Descriptions of Potential 
Contributing Factors.'' Additionally, HUD agrees with the comment 
stating that contributing factors are not contributing factors until 
selected by program participants as being significant. Therefore, HUD 
has revised the language in each section of the Final Assessment Tool 
to read, ``Consider the listed factors and any other factors affecting 
the jurisdiction and region. Identify factors that create, contribute 
to, perpetuate, or increase the severity of [segregation, R/ECAPs, 
disparities in access to opportunity, or disproportionate housing 
needs.]''
    With respect to commenters' request that market driven forces be 
removed from the list of contributing factors, HUD disagrees and has 
not removed these factors. Such factors may have fair housing 
implications and are included for program participants to consider as 
part of their analysis.
    Issue: Restore certain contributing factors removed in the 
Assessment Tool provided in the 30-Day Notice, and include certain 
additional factors. Commenters stated that HUD eliminated critical 
contributing factors from the Assessment Tool that were the subject of 
comment for 30 days and these contributing factors should be restored. 
Commenters stated that HUD eliminated the following important 
contributing factors from the Assessment Tool: Foreclosure patterns; 
major private investments; residential steering; and the availability 
of units with two or more bedrooms. Commenters further stated that 
there are contributing factors that should be added to the lists in the 
segregation/integration and R/ECAPs sections of the template. A 
commenter recommended that State and local funding be included as 
contributing factors under the ``other'' category. Commenters provided 
lengthy lists of additional contributing factors that they recommended 
be included in the Assessment Tool.
    HUD Response: HUD evaluated the inclusion of additional 
contributing factors and factors previously included, but removed, from 
the Revised Assessment Tool. HUD determined that many of the issues 
raised by commenters concerning the contributing factors were similar 
to existing contributing factors and HUD modified the descriptions of 
existing contributing factors to include such concerns. HUD did include 
one new contributing factor--``lending discrimination''--in response to 
requests from commenters. Note, however, that program participants are 
required to identify contributing factors outside of the list provided 
in the Final Assessment Tool if those factors are significant.
    Issue: Restore the three levels of significance for contributing 
factors. Commenters stated that the three levels of significance--
highly significant, moderately significant, and not significant--should 
be restored in the analysis of contributing factors. Commenters stated 
that by requiring program participants to explicitly identify the 
significance of a factor would provide the public with a basis for 
raising objections to HUD reviewers. Commenters stated that this system 
provided a stronger basis for analysis, transparency, and 
accountability than the approach in the version of the Assessment Tool 
that was the subject of the 30-day notice.
    HUD Response: HUD did not include the three levels of significance 
in the Final Assessment Tool. HUD wants to give program participants 
the flexibility to prioritize contributing factors in a manner that 
works best for them. Commenters can prioritize contributing factors as 
highly significant, moderately significant or minimally significant, 
program participants can use a numbering system to prioritize 
contributing factors, or any other method of prioritization that 
program participants may wish to employ. The only requirement is that 
the prioritization method utilized by the program participant must 
prioritize significant contributing factors by giving highest priority 
to those factors that limit or deny fair housing choice or access to 
opportunity, or negatively impact fair housing or civil rights 
compliance.
    Issue: Source of income discrimination should not be a contributing 
factor. Commenters stated that there are many reasons for landlords to 
refuse tenant-based rental assistance and that the landlord's choice to 
avoid administrative burden should not be considered discrimination and 
should not be used as an example of discrimination.
    HUD Response: HUD has included source of income discrimination as a 
contributing factor because regardless of the reasons why a landlord 
may refuse to accept payment for rent based on certain sources of 
income, such refusals are a common barrier to fair housing choice and 
access to opportunity for many persons who rely on such income to pay 
for housing, including many members of minority groups and many persons 
with disabilities. Source of income discrimination is, therefore, an 
important consideration in a fair housing analysis. In response to 
comments on this specific contributing factor, HUD amended the language 
to clarify that it may apply to either Housing Choice Vouchers 
specifically or more broadly to other sources of income, such as Social 
Security Disability Insurance. HUD further clarified the last sentence 
of the factor to state, ``The elimination of source of income 
discrimination and acceptance of payment for housing, regardless of 
source or type of income, increases fair housing choice and access to 
opportunity.'' In addition, the description of the contributing factor 
on ``Impediments to Mobility'' was amended to add a reference to 
discrimination based on source of income.
    Issue: Include strategies and actions in the Assessment Tool. 
Commenters

[[Page 81854]]

stated that program participants should include their strategies and 
actions to implement the goals and priorities of the Assessment Tool, 
even though the final rule calls for strategies and actions only in the 
consolidated plan or PHA plan, or that, at a minimum, there should be 
an opportunity for program participants to mention specific strategies 
that can connect with the Consolidated Plan and the PHA plan. 
Commenters stated that providing a set of recommended actions in the 
Assessment Tool would more firmly and link the AFH to the subsequent 
planning processes. Other commenters requested that HUD provide 
examples of effective fair housing strategies and evidenced-based best 
practices.
    HUD Response: Program participants are free to include in the Final 
Assessment Tool strategies and actions to implement the priorities and 
goals set in their assessments of fair housing. However, HUD declines 
to mandate such inclusion. HUD believes that the inclusion of 
strategies and actions in the consolidated plan and PHA plan allows for 
full consideration of needs, resources, and objective of program 
participants. As provided in the final AFFH rule, the strategies and 
actions in the consolidated plan and PHA plan must be informed by the 
goals and priorities in the AFH.
    Issue: Recommended goal-setting changes. Commenters requested a 
number of changes and clarifications to the Fair Housing Goals and 
Priorities section and its instructions. Commenters stated that an 
additional column for ``Timeframe'' should be added to the goal-setting 
table. Commenters stated that this would provide a prompt to program 
participants to include a timeframe for achieving fair housing goals. 
Other commenters suggested that HUD establish specific metrics and 
timeframes for evaluating progress toward meeting fair housing goals. 
Other comments stated that while the formulation of goals is 
appropriately left with the program participants, HUD should ensure 
that examples of goals should be sufficient and diverse enough to aid 
program participants in developing goals to meet the needs of their 
communities. Other commenters stated that guidance on goal setting with 
examples is critical.
    Commenters requested that HUD require more than one goal and 
require robust and specific goals. Commenters stated that it is highly 
unlikely that a local government that sets just one goal would be doing 
enough to meaningfully address particularly complex issues like 
exclusionary zoning.
    HUD Response: HUD appreciates the suggestions made by commenters 
and has made changes to the Final Assessment Tool based on these 
suggestions. HUD has included ``timeframe for achievement'' as part of 
the metrics and milestones column of the goal-setting chart, and has 
added an additional column for ``responsible program participants.'' 
HUD recognizes that events may occur that make the metrics and 
milestones unachievable in the timeframe for achievement set by program 
participants; nonetheless, program participants must still take 
meaningful actions that address goals to affirmatively further fair 
housing. With respect to requiring program participants to establish 
more than one goal, this issue was addressed in the AFFH final rule, 
and HUD stated that it believes it would be a rare situation in which a 
program participant has only one goal but that HUD does not disregard 
the possibility that a program participant may identify a single 
contributing factor and have only one goal for addressing that 
contributing factor, or that a program participant that has more than 
one contributing factor may have the same goal for addressing each of 
those contributing factors. HUD further stated that it is interested in 
the substance of the goals and how a program participant's goal or 
goals would address contributing factors and related fair housing 
issues.
    By providing data and a framework for analysis, however, the AFH is 
intended to assist program participants in prioritization of fair 
housing contributing factors that inform policies and how best to 
allocate resources to meet identified local needs and comply with their 
duty to affirmatively further fair housing.
    ``A basic tenet of planning and performance management is 
recognition of ``external factors'' and other barriers to achieving 
goals, and which are beyond an organization to control (See, e.g., the 
Federal Government Performance and Results Act). This rule allows 
grantees to identify such barriers. Included in such considerations is 
the identification of funding dependencies and contingencies.'' The 
purpose of the AFH process is to set goals that will lead to meaningful 
actions that affirmatively further fair housing.
    With respect to providing examples of goals, HUD included such 
examples in the Guidebook.
    Issue: Vulnerability of program participants to litigation. 
Commenters stated that once a program participant has set goals, the 
program participant may be left vulnerable to litigation based on its 
ability to meet its goals. Other commenters stated that without 
concrete guidance and safe harbors, the Assessment Tool does not remedy 
the uncertainty about the legal liability of program participants.
    HUD Response: HUD emphasizes once again that the AFH process is a 
planning process, and the goals are objectives the program participant 
will strive to achieve. HUD recognizes that events may occur that may 
make the goals unachievable or unachievable within the timeframe 
initially established by the program participant. In the preamble to 
the final rule, since program participants are required to 
affirmatively further fair housing, HUD encouraged program participants 
to set goals that they believed they will be able to achieve.
    Issue: The Assessment Tool should include detailed guidance. 
Commenters stated that by including detailed guidance in the Assessment 
Tool, HUD will minimize the need for program participants to toggle 
between the final rule, subsequent guidance, and the Assessment Tool. 
Other commenters stated that HUD should provide additional guidance on 
the analysis of the fair housing issues and the formulation of goals, 
either through more comprehensive instructions or through a frequently-
asked-questions (FAQ) document. Other commenters stated that clear 
definitions of terms, such as national origin, color, family status, 
are important for helping to reduce burden. Commenters stated that 
Appendix C is very helpful, but requested that HUD provide additional 
guidance on contributing factors, along with examples where possible, 
as more elaboration on certain factors such as land use and zoning 
would be helpful. Commenters further requested that HUD provide 
clarification on several areas, such as admissions and occupancy 
policies and procedures, including preferences in publicly supported 
housing; community opposition; deteriorated and abandoned properties; 
lack of affordable in-home or community-based supportive services; lack 
of affordable, integrated housing for individuals who need supportive 
services; lack of State or local fair housing laws; land use and zoning 
laws; and location and type of affordable housing.
    HUD Response: HUD appreciates the comments provided, and to the 
Guidebook complements the Assessment Tool. However, HUD has concluded 
that guidance is not appropriate for inclusion in the Final Assessment 
Tool itself or the instructions for completing the template. Official 
HUD guidance on

[[Page 81855]]

AFFH and the Assessment Tool, such as the Guidebook, will be posted on 
the HUD Exchange Web site at https://www.hudexchange.info/programs/affh/.
    Issue: Instructions need to be worded more clearly. Commenters 
stated that the instructions could be clearer by providing examples and 
more explanatory language. Commenters stated that while HUD did a good 
job of explaining the indices, the instructions could be clearer by 
providing more guidance on how to interpret them. Other commenters 
stated that the instructions related to disability and access 
``residency preferences'' are ambiguous, stating that the instruction 
could either be referring to preferences that give priority for 
assistance to households that reside within a given jurisdiction or 
preferences that give priority to persons with disabilities. The 
commenters stated that the first type of preference raises serious fair 
housing concerns and often perpetuates residential racial segregation, 
while the second type may be a necessary component of a strategy to 
overcome the historical legacy of discrimination against persons with 
disabilities and to promote meaningful community integration.
    Commenters stated that the descriptions of how to interpret the 
indices and dot density maps are helpful, and other commenters 
commended HUD for including a definition of ``siting selection.'' 
However, they stated while the term is correctly assigned to new 
developments, the definition conflates the issue of siting with respect 
to existing developments and this could lead to confusion. Commenters 
added that LIHTC is not a siting mechanism, but instead the primary 
financing tool for both rehabilitation and new construction of 
affordable housing. Other commenters stated that the outline for the 
template and instructions are not consistent and make it difficult to 
refer back and forth between the documents. To be more helpful, 
commenters suggested that the instructions should specifically note 
where local data and local knowledge may be relevant and provide 
examples of the types of local data and local knowledge that may be 
helpful. Other commenter stated that the instructions should emphasize 
the fact that program participants are required to supplement their 
responses for all questions when local data and local knowledge are 
available, even though HUD data is provided.
    HUD Response: As the Compare Assessment Tool reflects, HUD made 
considerable changes to the instructions to provide the clarity program 
participants requested, and to eliminate any contradictions identified 
by HUD.
    Issue: Guidance is needed for assessing fair housing issues for 
persons living in institutional settings. Commenters stated that the 
Assessment Tool should identify examples of policies that encourage or 
discourage individuals with disabilities living in integrated settings. 
Commenters state that the revised Assessment Tool is a step backward 
with respect to this analysis and that without this type of guidance, 
program participants will not be able to undertake fair housing 
planning and will be unable to adequately assess and address the fair 
housing needs of persons with disabilities who are institutionalized.
    HUD Response: HUD appreciates the comments and the need for 
guidance to identify strategies to address fair housing issues for 
individuals with disabilities, including individuals with disabilities 
living in institutional settings. HUD is evaluating the need for 
guidance in a variety of areas, including the disability context, and 
has provided some examples in the Guidebook. In the Final Assessment 
Tool, the contributing factor of ``lack of assistance for transitioning 
from institutional settings to integrated housing'' addresses the 
policy concerns raised by commenters. In addition, HUD directs program 
participants to the ``Statement of the Department of Housing and Urban 
Development on the Role of Housing in Accomplishing the Goals of 
Olmstead,'' located at https://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf.
    Issue: Clearly specify minimum requirements for acceptance of an 
AFH and HUD review of AFHs. Commenters stated that the Assessment Tool 
lacks clarity about the minimal expectations for program participants' 
AFHs to be accepted by HUD. Commenters recommended these requirements 
and explicit evaluation criteria be included in the Assessment Tool. 
Another commenter stated that HUD has not publicized a description of 
the standards it will use to accept or non-accept AFHs. Commenters 
requested that the standards for monitoring compliance be made public. 
Other commenters recommended that the ``Comments'' section on the cover 
page include a specific checklist of key compliance items.
    Commenters asked how HUD staff will review the AFH, including the 
contributing factors, and what metrics HUD staff will use to ensure 
clear and consistent review. Another commenter stated that metrics are 
needed to help HUD staff in reviewing a submitted AFH, and that 
similarly, metrics and benchmarks for contributing factors should be 
provided to help program participants and HUD staff to evaluate them. 
Other commenters requested that HUD identify the HUD reviewers of the 
AFH expressing concern that review may be conducted by an employee who 
does not have direct knowledge of the core functions of the program 
participant. Another commenter stated that the underlying principal 
behind the AFH must be to establish a causal connection between the 
policy or practice and the disparate impact. The commenter stated that 
Justice Kennedy has said that, ``it may be difficult to establish 
causation because of the multiple factors'' that go into a particular 
decision. Commenter suggested that this is the standard HUD should 
apply to the analysis in the AFH.
    HUD Response: The AFFH final rule, in Sec.  5.162, ``Review of 
AFH,'' sets forth standards under which HUD will review an AFH. Section 
5.162(a) provides that HUD's review of an AFH is to determine whether 
the program participant has met the requirements for providing its 
analysis, assessment, and goal setting, as set forth in Sec.  5.154(d). 
Section 5.154(d) of the AFFH regulations specifies the minimum required 
content of the AFH, which is a summary of fair housing issues and 
capacity, analysis of data, assessment of fair housing issues, 
identification of fair housing priorities and goals, strategies and 
actions planned to be taken by the program participant, and a summary 
of the community participation process. For each AFH submitted after 
the first AFH submission, the AFFH regulations provide that the program 
participant must provide a summary or progress achieved in meeting the 
goals and associated metrics and milestones of the prior submitted AFH, 
and must identify any barriers that impeded or prevented achievement of 
the program participant's goals.
    In Sec.  5.162(b) HUD provides the bases for HUD's non-acceptance 
of an AFH. This section provides that HUD will not accept an AFH if HUD 
finds that the AFH or a portion of the AFH is inconsistent with fair 
housing or civil rights requirements or is substantially incomplete. In 
Sec.  5.162(b)(i) and (ii), HUD provides, respectively, examples of an 
AFH that is inconsistent with fair housing and civil rights 
requirements, and an AFH that is substantially incomplete. For a 
regional or joint AFH, Sec.  5.162(b) provides that a determination by 
HUD to not accept the AFH with respect to one program participant does 
not necessarily affect the acceptance of

[[Page 81856]]

the AFH with respect to another program participant.
    Through these regulatory provisions, HUD sets out the standard for 
review of AFHs. HUD is further committed to providing technical 
assistance and examples that will help guide program participants as to 
what it means to have an AFH that is substantially incomplete or one 
that is inconsistent with fair housing or civil rights laws. HUD can, 
and will, provide a checklist to help program participants ensure they 
have responded to all required elements of the Assessment Tool.
    Issue: The certification statement for the Assessment Tool is too 
broad. A commenter stated that it is unreasonable to require broad 
certification of AFFH compliance without providing program participants 
with the standards HUD will use to assess that compliance. Another 
commenter suggested that HUD revise the certification language to read, 
``All information provided by the signatory entity in this assessment 
is true, complete, and accurate to the best of my knowledge and belief 
as of the date of this submission.'' The commenter stated that this 
will better facilitate submissions for program participants that will 
submit a single AFH on behalf of multiple agencies.
    HUD Response: Several changes were made to both the certification 
language itself to align it with the certification provisions in the 
AFFH final rule and clarifying language was also added to the 
instructions accompanying the Assessment Tool that pertain to the 
certification. First, a new item was added to the certification, 
reflecting the AFFH final rule:

    By this signature, I am authorized to certify on behalf of the 
program participant that the program participant will take 
meaningful actions to further the goals identified in its AFH 
conducted in accordance with the requirements in Sec. Sec.  5.150 
through 5.180 and 24 CFR 91.225(a)(1), 91.325(a)(1), 91.425(a)(1), 
570.487(b)(1), 570.601, 903.7(o), and 903.15(d), as applicable.

    Second, an instruction was added for the certification that states: 
``Please note, for a joint or regional AFH, each collaborating program 
participant must authorize a representative to sign the certification 
on the program participant's behalf. In a joint or regional AFH, when 
responding to each question, collaborating program participants may 
provide joint analyses and individual analyses. The authorized 
representative of each program participant certifies only to 
information the program participant provides individually or jointly in 
response to each question in the assessment. The authorized 
representative does not certify for information applicable only to 
other collaborating program participants' analyses, if any.'' HUD 
believes this additional instruction will provide greater clarity and 
further encourage joint and regional AFH submissions.
    As the AFFH final rule itself makes clear, joint and regional 
submitting agencies are both responsible for the joint portions of the 
Assessment, including joint goals, and for their own individual 
portions of the assessment, including their agencies individual goals 
and priorities. They are therefore not responsible for other agencies' 
individual goals and priorities. As stated in Sec.  5.156 (a)(3) of the 
AFFH final rule:

    Collaborating program participants must designate, through 
express written consent, one participant as the lead entity to 
oversee the submission of the joint or regional AFH on behalf of all 
collaborating program participants. When collaborating to submit a 
joint or regional AFH, program participants may divide work as they 
choose, but all program participants are accountable for the 
analysis and any joint goals and priorities, and each collaborating 
program participant must sign the AFH submitted to HUD. 
Collaborating program participants are also accountable for their 
individual analysis, goals, and priorities to be included in the 
collaborative AFH.

    HUD encourages program participants to enter into joint and 
regional collaborations. Doing so can have benefits for both the 
analysis of issues, which often cross-jurisdictional boundaries and for 
setting goals. HUD will work with all joint and regional participating 
entities to facilitate their cooperation and further clarify the roles 
and responsibilities of these agencies through additional technical 
assistance and guidance documents.

III. Summary

    In issuing this Final Assessment Tool, 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 jurisdictions 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.

    Dated: December 22, 2015.
Gustavo Velasquez,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2015-32680 Filed 12-30-15; 8:45 am]
BILLING CODE 4210-67-P