Affirmatively Furthering Fair Housing: Assessment Tool for States and Insular Area-Information Collection: Solicitation of Comment First 30-Day Notice Under Paperwork Reduction Act of 1995, 66754-66782 [2016-23449]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)]
[Notices]
[Pages 66754-66782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23449]



[[Page 66753]]

Vol. 81

Wednesday,

No. 188

September 28, 2016

Part II





Department of Housing and Urban Development





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





 Affirmatively Furthering Fair Housing: Assessment Tool for States and 
Insular Area--Information Collection: Solicitation of Comment First 30-
Day Notice Under Paperwork Reduction Act of 1995; Notice

Federal Register / Vol. 81 , No. 188 / Wednesday, September 28, 2016 
/ Notices

[[Page 66754]]


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

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5173-N-08-B]


Affirmatively Furthering Fair Housing: Assessment Tool for States 
and Insular Area--Information Collection: Solicitation of Comment First 
30-Day Notice Under Paperwork Reduction Act of 1995

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

ACTION: Notice.

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

SUMMARY: This notice solicits public comment for a period of 30 days, 
consistent with the Paperwork Reduction Act of 1995 (PRA), on the State 
and Insular Area Assessment Tool. This Assessment Tool will be used by 
States, including for joint or regional collaborations where the State 
is the lead entity and they are joined by local governments and PHAs. 
The Assessment Tool issued for public comment under this Notice 
includes a streamlined analysis for ``small program participants,'' 
which are either QPHAs or local governments that received a CDBG grant 
of $500,000 or less in the most recent fiscal year prior to the due 
date for the joint or regional AFH or a HOME consortium whose members 
collectively received less than $500,000 in CDBG funds or received no 
CDBG funding in the most recent fiscal year prior to the due date for 
the joint or regional AFH.
    In addition, this Assessment Tool will be used by other local 
governments and public housing agencies when these entities collaborate 
with a State agency that is acting as the lead entity for a joint 
assessment of fair housing. HUD recognizes that questions within this 
Assessment Tool have been written primarily for States with inserts for 
QPHAs and small program participants. After this 30-day public comment 
period HUD commits to update the Assessment Tool to facilitate 
collaborations with local governments and PHAs which are not QPHAs or 
other small program participants.
    On March 11, 2016, HUD solicited public comment for a period of 60 
days on the State and Insular Area Assessment Tool. The 60-day notice 
commenced the notice and comment process required by the PRA in order 
to obtain approval from the Office of Management and Budget (OMB) for 
the information proposed to be collected by the State and Insular Area 
Assessment Tool. In this Notice, HUD is also announcing an extended 
two-stage process for soliciting public feedback on this Assessment 
Tool. This process is being implemented in response to the substantial 
public comments received during the 60-day comment period for this 
Assessment Tool. HUD is committed to providing the public with this 
opportunity. This 30-Day Notice is intended to solicit comment relating 
to the Assessment Tool, the instructions that accompany the Assessment 
Tool, and the descriptions of the contributing factors contained in the 
Appendix. The second stage is intended to elicit feedback on the beta 
Data and Mapping tool for States, allow for feedback on the interaction 
of the Assessment Tool and the supporting Data and Mapping Tool, and 
make any feasible improvements to the final Data and Mapping tool for 
States, as well as make any necessary conforming changes to the 
Assessment Tool. This process is described in more detail in the Notice 
below.
    To facilitate public input on the State and Insular Area Assessment 
Tool, HUD will post the revised Assessment Tool as well as a compare of 
this revised Assessment Tool to the proposed Assessment Tool from the 
60-day public comment period at www.hudexchange.info/programs/affh.

DATES: Comment Due Date: October 28, 2016.

ADDRESSES: Interested persons are invited to submit comments regarding 
this notice to the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW., Room 
10276, Washington, DC 20410-0500. Communications must refer to the 
above docket number and title. There are two methods for submitting 
public comments. All submissions must refer to the above docket number 
and title.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make them immediately available to 
the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.
    Note: To receive consideration as public comments, comments must be 
submitted through one of the two methods specified above. All 
submissions must refer to the docket number and title of the notice.
    No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
    Public Inspection of Public Comments. All properly submitted 
comments and communications submitted to HUD will be available for 
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the 
above address. Due to security measures at the HUD Headquarters 
building, an advance appointment to review the public comments must be 
scheduled by calling the Regulations Division at 202-708-3055 (this is 
not a toll-free number). Individuals who are deaf or hard of hearing 
and individuals with speech impairments may access this number via TTY 
by calling the Federal Relay Service at 800-877-8339. Copies of all 
comments submitted are available for inspection and downloading at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Sunaree Marshall, 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). Individuals with hearing or 
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. The 60-Day Notice for the State and Insular Area Assessment Tool

    On March 11, 2016, at 81 FR 12921, HUD published its 60-day notice, 
the first notice for public comment required by the PRA, to commence 
the process for approval of the State and Insular Area Assessment Tool. 
The State and Insular Area Assessment Tool was modeled on the Local 
Government Assessment Tool, approved by OMB on December 31, 2015, but 
with modifications to address the differing authority that States and 
Insular Areas have, and how fair housing planning may be undertaken by 
States and Insular Areas in a meaningful manner. As with the Local 
Government Assessment Tool, the State and Insular Area Assessment Tool 
allows for collaboration among program participants.

[[Page 66755]]

    The 60-day public comment period ended on May 10, 2016, and HUD 
received 50 public comments. Section II explains the two-stage process 
for public comment and feedback for this Assessment Tool. Section III 
highlights changes made to the State and Insular Area Assessment Tool 
in response to public comment received on the 60-day notice, and 
further consideration of issues by HUD. Section IV responds to the 
significant issues raised by public commenters during the 60-day 
comment period. Section VI provides HUD's estimation of the burden 
hours associated with the State and Insular Area Assessment Tool, and 
further solicits issues for public comment, those required to be 
solicited by the PRA, and additional issues which HUD specifically 
solicits public comment.

II. Two-Stage Process for Public Comment and Feedback for the 
Assessment Tool for States and Insular Areas

    Based on the need for the public to have an opportunity to comment 
on the AFFH Data and Mapping Tool (AFFH-T) for States and Insular 
Areas, HUD is adding a second 30-day comment period.
    This extended process will include two stages with notices for 
public review and comment. This Notice is the first 30-day comment 
period, and relates to the Assessment Tool itself, as well as the 
instructions that accompany the Assessment Tool, and the descriptions 
of contributing factors in the Appendix. Once this comment period has 
closed, HUD will consider the comments received and make any needed 
changes. Please note, however, that States and Insular Areas will not 
be required to begin undertaking an AFH until after the second 30-day 
comment period has closed, and HUD subsequently publishes a final 
Notice announcing the availability of this Assessment Tool for use. The 
purpose of this extended comment process is to allow the public 
advanced review of the requirements in the Assessment Tool as HUD 
continues to finalize the AFFH-T. As part of the first stage of this 
extended PRA process, HUD will also conduct usability testing regarding 
the Assessment Tool. This usability testing includes HUD soliciting 
feedback to improve the Assessment Tool and the potential data and user 
interface IT components.
    Following this first stage of the extended PRA process, HUD will 
provide an updated version of the Assessment Tool. States and Insular 
Areas will not be required to use the Assessment Tool to complete an 
AFH until such time HUD publishes a final Notice announcing the 
availability of the final Assessment Tool and final AFFH-T for States 
and Insular Areas. This final Notice will not be published until after 
the second stage of this extended PRA process has been completed. By 
providing the updated version of the Assessment Tool prior to issuance 
of the final Notice, HUD is providing an opportunity for the public and 
program participants to have advanced review of the proposed 
requirements.
    The second stage of this extended PRA process will include a second 
Notice to solicit public comment and will be accompanied by an updated 
version of the AFFH-T with components designed specifically for use by 
States. In addition to the Notice soliciting comment, this second stage 
will also include additional usability testing intended to elicit 
feedback on the interaction between the Assessment Tool and the AFFH-T, 
to inform any necessary changes to the Assessment Tool itself.
    This extended PRA process will allow for HUD to issue policy of 
relevant AFFH documents at several stages as well as result in a more 
accurate estimate of burden for States based on interactive feedback 
and more realistic conditions for evaluating the information collection 
instruments being proposed while maintaining a meaningful fair housing 
analysis. This extended process is also intended to help HUD fulfill 
the commitment it announced in the Preamble to the AFFH Final Rule, 
``that HUD will provide versions of the Assessment Tools . . . that are 
tailored to the roles and responsibilities of the various program 
participants covered by this rule. HUD [agrees] that a one size 
Assessment Tool does not fit all and that Assessment Tools tailored to 
the roles and responsibilities of the various program participants, 
whether they are entitlement jurisdictions, States, or public housing 
agencies (PHAs), will eliminate examination of areas that are outside 
of a program participant's area of responsibility.'' 80 FR 42349 (July 
16, 2015).

III. Changes Made to the State and Insular Area Assessment Tool

    The following highlights changes made to the State and Insular Area 
Assessment Tool in response to public comment and further consideration 
of issues by HUD.
    Inserts. In addition to the insert HUD proposed in its first 
solicitation of public comment for Qualified Public Housing Agencies, 
HUD has created a streamlined set of questions (an ``insert'') that may 
be used by local government consolidated plan program participants that 
receive relatively small CDBG grants and collaborate with a State, 
where the State is the lead entity, using this Assessment Tool. HUD is 
proposing that local governments that received a CDBG grant of $500,000 
or less in the most recent fiscal year prior to the due date for the 
joint or regional AFH may use the insert as part of a collaboration. 
HOME consortia whose members collectively received less than $500,000 
in CDBG funds or received no CDBG funding, in the most recent fiscal 
year prior to the due date for the joint or regional AFH would also be 
permitted to use the insert. HUD welcomes input with regard to the 
utility of the proposed QPHA insert and the proposed insert for local 
governments that receive smaller amounts of CDBG funds for conducting 
the jurisdictional and regional analysis of fair housing issues and 
contributing factors as well as the classifications of grantees that 
would be permitted to use the inserts as part of a collaboration. HUD 
will continue to assess the content of such inserts at the next 
opportunity for Paperwork Reduction Act approval.
    Further, HUD has committed to issuing a fourth assessment tool to 
be used by Qualified PHAs (including joint collaborations among 
multiple QPHAs). HUD is also committed to continue to explore 
opportunities to reduce the burden of conducting AFFH analyses by 
consolidated planning agencies that receive relatively small amounts of 
HUD funding.
    Segregation/Integration Section. HUD has clarified the questions in 
this section so that they are more applicable to States. HUD has also 
clarified how the State should analyze trends relating to patterns of 
segregation and integration in the State.
    Racially or Ethnically Concentrated Areas of Poverty (R/ECAPs) 
Section. HUD has clarified the scope of the analysis that States must 
conduct when analyzing R/ECAPs. HUD has also clarified how the State 
should analyze trends relating to R/ECAPs in the State.
    Disparities in Access to Opportunity Section. HUD has changed the 
questions throughout this section of the Assessment Tool to address the 
scope of the analysis at the State-level. HUD has also included a 
question in the ``Additional Information'' subsection of the 
Disparities in Access to Opportunity Section that relates to other 
categories of opportunity. This question is limited to information 
obtained through the community participation process regarding 
disparities in access to opportunity by protected class groups

[[Page 66756]]

and place of residence. These other categories may include State level 
programs, resources, or services related to: Public safety (e.g., 
crime, fire and emergency medical services, and services for survivors 
of domestic violence); public health (e.g., chronic disease 
prevention); housing finance and other financial services (e.g., State 
lending programs, tax incentives, and other housing finance programs); 
prisoner re-entry (e.g., re-entry housing, employment, counseling, 
education, and other opportunities for offenders transitioning back 
into the community); emergency management and preparedness (e.g., 
prevention, protection, mitigation, response, and recovery); and any 
other opportunity areas obtained through community participation.
    Disproportionate Housing Needs. HUD has clarified the question in 
this section relating to how States should analyze trends relating to 
disproportionate housing needs in the State.
    Publicly Supported Housing. HUD has clarified the questions in the 
Low Income Housing Tax Credit (LIHTC) subsection.
    Disability and Access. HUD has clarified the questions in the 
Housing Accessibility subsection. HUD has also added a question to the 
Integration of Persons with Disabilities Living in Institutions or 
Other Segregated Settings subsection that relates to the Money Follows 
the Persons Program, Medicaid, and other State programs serving 
individuals with disabilities in integrated settings. In the 
Disparities in Access to Opportunity subsection of the Disability and 
Access Section, HUD has revised the opportunities included in the first 
question. Program participants are now asked to assess the extent to 
which persons with disabilities are able to access the following and 
other major barriers faced: State government services and facilities; 
State-funded public infrastructure; State-funded transportation; State-
funded proficient schools and educational programs, including post-
secondary and vocational educational opportunities; State jobs and job 
programs; State parks and recreational facilities; and State-funded 
criminal justice diversion and post-incarceration re-entry services.
    Fair Housing Monitoring and Enforcement, Outreach Capacity, and 
Resources. HUD has revised the heading of this section of the 
Assessment Tool to include ``Monitoring'' due to the role States play 
with respect to fair housing. HUD has also included two additional 
questions in this section. The first relates to the State's monitoring 
and enforcement of sub-recipients to ensure compliance with the 
obligation to affirmatively further fair housing and other fair housing 
and civil rights requirements. The second relates to how the State 
ensures that projects comply with Federal, state, and other 
accessibility requirements (e.g., monitoring, inspection, training, 
etc.), and how the State enforces these requirements.
    Instructions. HUD has added clarifying language throughout the 
instructions to the Assessment Tool. For example, HUD has clarified 
that States will have flexibility should they choose to select sub-
state areas to facilitate their fair housing analysis. HUD has provided 
additional guidance relating to how program participants might consider 
assessing the success of their community participation process. In the 
instructions that relate to the Disparities in Access to Opportunity 
section, HUD has provided revised instructions for the new question 
structure that has been adopted in that section of the Assessment Tool, 
as well as additional guidance on how to use the Opportunity Indices to 
conduct a fair housing analysis at the State-level. HUD has included 
additional potential sources of local data and local knowledge 
specifically related to the Disability and Access analysis. HUD has 
also provided general instructions, as well as question-by-question 
instructions for the two inserts--for QPHAs and Small Program 
Participants.

IV. Public Comments on the State and Insular Area Assessment Tool and 
HUD's Responses

    Several commenters commended HUD on the Assessment Tool, 
complimenting HUD on the structure of the tool, and expressed 
appreciation of HUD's efforts to clarify responsibilities and 
expectations with respect to the Assessment of Fair Housing for States 
and Insular Areas. Some also asked HUD to require additional analysis 
in certain parts of the Assessment Tool, including additional 
questions. However, other commenters expressed concerns about and 
disagreement with components of the Assessment Tool published for 
purposes of the 60-day Paperwork Reduction Act comment period.

Comments on the Assessment Tool

    Do not base the State Tool on the Local Government Tool. Commenters 
stated that HUD should reconsider the development of a de novo tool for 
States rather than adapting the one created for local governments 
because of the different scales involved. The commenters stated that 
most States are much larger and more geographically and demographically 
diverse than individual communities. The commenters also stated that 
the tool does not provide sufficient differentiation between 
entitlement and non-entitlement areas of the State. The commenters 
stated that the State tool should provide a structure for an 
appropriately scaled State-level analysis, which would offer States the 
flexibility to incorporate detailed, local-level analysis if necessary.
    Several commenters stated that the tool appears to be developed for 
local jurisdictions where detailed evaluation can occur; aggregating 
the information up to the State level dilutes the level of detail and 
specific circumstances that need to be addressed to promote access to 
safe, decent, and affordable housing. The commenters stated that the 
expanded scope of the AFH compared to the Analysis of Impediments (AI) 
will raise the cost substantially and will be less useful because it 
will divert resources to collaborating with PHAs, analyzing data, and 
reporting to HUD. Another commenter stated that States do not have the 
planning or mapping departments that many local municipalities have to 
do the comparisons or overlaying of factors.
    Other commenters stated that the tool for States and Insular Areas 
includes components not found in the other program participants' tool, 
such as a far greater extent of analysis in each section, requiring 
State grantees to include an assessment of past fair housing goals of 
other public entities goals, actions, and strategies, requiring State 
grantees to conduct AFHs for small PHAs, including limited English 
proficiency (LEP) persons in every section of the tool for only State 
grantees, and no option to collaborate with other program participants 
in a regional AFH without being the lead entity.
    HUD Response: HUD understands and appreciates the commenters' 
concerns. The AFFH Regulation sets forth the broad framework that each 
of the assessment tools must follow in terms of assessing the 
regulatory categories of fair housing issues, identifying and 
prioritizing contributing factors, and setting fair housing goals. 
While the proposed State Tool adopts the framework of the Local 
Government Assessment Tool, HUD has adapted the content to try to 
account for the different scope, level of geography, and role of 
States. With regards to concerns about the scope, HUD notes that States 
must set priorities and goals for overcoming significant contributing

[[Page 66757]]

factors and related fair housing issues. See 24 CFR 5.154(d)(iii). That 
standard applies to all program participants that must comply with the 
AFFH Rule. See 24 CFR 5.154(b). HUD also notes that in each Assessment 
Tool, program participants must use the HUD-provided data, which 
includes limited English proficient (LEP) persons; as such, this 
requirement is not limited to States.
    The tool is and is not a good mechanism for affirmatively 
furthering fair housing. Commenters stated that the tool is costly and 
will produce nothing but higher areas of poverty, and HUD should 
instead spend taxpayer money on programs that create opportunities for 
low-income people to become self-sufficient. A commenter stated that 
HUD should identify areas of high economic growth within each State and 
work to increase affordable fair housing opportunities in these areas. 
Another commenter similarly stated that HUD should simply adopt clear 
definitions of areas of opportunity and areas of concentrated 
revitalization initiative, and require HUD funding recipients to 
dedicate a specified percentage of the HUD resources to addressing 
those two categories.
    In contrast to these commenters, other commenters praised HUD's 
renewed focus on affirmatively furthering fair housing and expressed 
support for revamping the existing AI planning tool into an assessment 
that will provide meaningful analysis of fair housing issues and fully 
supports the goals of the Fair Housing Act and spirit of the Assessment 
of Fair Housing. Another commenter applauded HUD's efforts to draw 
attention to systemic housing disparity and encourages HUD to recognize 
the difference between State and local authority, information, and 
context. A commenter commended HUD for designing an AFH that 
incorporates fair housing more logically into the planning process, 
strengthens robust community participation, and provides program 
participants with nationally uniform data and data tools for analysis.
    There were also other commenters that stated HUD should have 
retained the AI. A commenter stated that the AI continues to be an 
excellent means of affirmatively furthering fair housing. Another 
commenter stated that it recently completed its AI and attempted to 
complete the analysis outlined in HUD's rule and found it awkward for a 
State-wide analysis. Another commenter stated that the tool shifts a 
substantial amount of uncertainty to State grantees on whether they are 
meeting their obligation to affirmatively further fair housing in order 
to receive HUD funds.
    HUD Response: HUD believes that the Assessment Tool will assist 
States' efforts to affirmatively further fair housing and is committed 
to improving the Assessment Tool based on feedback received and 
experience going forward. HUD also notes that the focus of the 
Assessment Tool is primarily on the protected classes under the Fair 
Housing Act, as opposed to poverty or income, but the tool does include 
certain areas of analysis and HUD-provided data relating to poverty or 
income.
    Terminology-related comments. A commenter stated that because 
``area'' is not a defined term it appears to be interchangeable with 
``region,'' allowing the State to conduct its analysis on a county 
basis, an intrastate regional basis, or a census tract basis. The 
commenter stated that only the census tract basis would capture R/
ECAPs. A commenter stated that definitions of ``region'' or ``local 
area'' may differ for funding purposes based on the particular State 
agency or program within a State agency, which may be relevant for 
Sates when prioritizing fair housing goals. Another commenter asked 
that HUD provide clarification on the term ``characteristics'' versus 
``protected classes.'' A commenter stated that HUD must define 
disparities in access to opportunity and explain how such analysis is 
to be operationalized by HUD. The commenter asked what counts as a 
disparity. Another commenter stated that HUD must define what metrics, 
statistics, and other quantifiable information would be subject to a 
determination of statistical validity by HUD with respect to local 
data. A commenter stated that HUD should clarify when a ``granular'' 
analysis (as provided in the instructions for the Draft State Tool) 
versus a more high-level analysis is appropriate. The commenter stated 
that, for example, HUD may want to suggest using the required community 
participation and consultation processes to identify areas of the State 
that warrant a more ``granular'' analysis. Another commenter stated 
that HUD should use the more generic word ``area'' instead of 
``neighborhoods.'' A commenter stated that the following sentence 
appears at two points in the Draft State Tool's instructions--``Note 
that the percentages reflect the proportion of the total population 
living in R/ECAPs that has a protected characteristic, not the 
proportion of individuals with a particular protected characteristic 
living in R/ECAPs''--and that this sentence is unclear; restating this 
distinction and including an example would help better clarify this 
point.
    HUD Response: HUD notes that the AFFH rule defines ``Geographic 
Area'' as ``a jurisdiction, region, State, Core-Based Statistical Area 
(CBSA), or another applicable area (e.g., census tract, neighborhood, 
Zip code, block group, housing development, or portion thereof) 
relevant to the analysis required to complete the assessment of fair 
housing as specified in the Assessment Tool.'' 24 CFR 5.152. HUD 
understands that States in particular may experience differing regional 
fair housing issues, and for that reason HUD is providing States with 
certain flexibility when conducting a regional fair housing analysis. 
To facilitate this regional analysis, HUD uses the phrase ``to the 
extent [a fair housing issue] extends into another state or broader 
geographic area . . .'' in particular questions where a regional 
analysis is required. HUD believes that this phrase provides States 
with flexibility, within certain parameters, rather than a definition, 
with respect to their regional analysis, since States may vary in terms 
of the regional fair housing issues affecting their jurisdictions. HUD 
acknowledges that States may use the term ``region'' to refer to areas 
within their State; however, in the context of the AFFH rule, the term 
region refers to a geographic area that is larger than the jurisdiction 
(i.e., the State). For this reason, to avoid confusion, HUD is using 
the term ``sub-State area'' to refer to areas within the State. The 
Assessment Tool provides States with flexibility, within certain 
parameters, rather than a definition, with respect to their areas of 
analysis, since States will vary with respect to the regional fair 
housing issues that impact their jurisdictions. States must assess 
their entire State, and in certain places in the Assessment Tool, ``a 
broader geographic area'' extending beyond the State. HUD believes 
program participants are in the best position to determine how broad 
that area must be with respect to their fair housing issues, based on 
the HUD-provided data, local data, and local knowledge, including 
information gained through community participation.
    With respect to the ``granular'' analysis, HUD has added the 
following language to the instructions in the Assessment Tool: ``A 
State is not expected to conduct the same analysis that local 
governments conduct using the Assessment Tool designed for use by Local 
Governments, however HUD is providing States with similar data in the 
AFFH Data and Mapping Tool (AFFH-T) so that more granular analysis can 
be

[[Page 66758]]

conducted where appropriate. For example, during the community 
participation process a State may receive information that is not 
reflected in the HUD-provided County level maps, which may require 
further analysis using dot density maps. Additionally, the AFFH-T 
provides functionality for States to select sub-State areas to 
facilitate their analysis. The assessment of areas not covered by AFHs 
conducting by local governments is an important focus for States as 
they determine how their AFFH oversight responsibilities should be 
carried out throughout the State.'' HUD also notes that it has removed 
the word ``neighborhood'' from the Assessment Tool where appropriate.
    HUD has previously stated how local data will be subject to a 
determination of statistical validity. HUD 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.' '' 80 FR 81848 (Dec. 31, 2015).
    HUD notes that the terms protected class and protected 
characteristic are defined by the AFFH rule at 24 CFR 5.152. The Final 
Rule provides: ``Protected characteristics are race, color, religion, 
sex, familial status, national origin, having a disability, and having 
a type of disability.'' 24 CFR 5.152. The Final Rule provides: 
``Protected class means a group of persons who have the same protected 
characteristic; e.g., a group of persons who are of the same race are a 
protected class. Similarly, a person who has a mobility disability is a 
member of the protected class of persons with disabilities and a member 
of the protected class of persons with mobility disabilities.'' 24 CFR 
5.152. HUD will continue to provide clarification relating to protected 
class where necessary in the Assessment Tools.
    HUD appreciates the commenters' request for clarification with 
respect to language in the instructions, specifically regarding R/
ECAPs. In response to these comments, HUD has added the following 
language to the instructions: ``The table provides the demographics by 
protected class of the population living within R/ECAPs. It does not 
show the proportion of each protected class group that live in R/ECAPs 
compared to the proportion of each protected class that live in the 
jurisdiction outside of R/ECAPs or the jurisdiction as a whole''
    Including entitlement jurisdictions in the State's assessment 
should not be required. A few commenters stated that the tool was not 
clear whether States have to include entitlement areas in their 
assessment. For commenters who are aware that States must include 
entitlement areas in their assessments, several commenters stated that 
since each entitlement jurisdiction will prepare its own assessment, 
State assessments should not be required to include these areas in the 
State assessment but they may choose to do so. The commenters stated 
that the State tool should only mandate analysis of geographical and 
subject matter where the State agency responsible for applying the AFFH 
rule has jurisdiction. The commenters stated that each State should be 
encouraged, but not required to pursue analysis beyond those boundaries 
to the extent it possesses such authority.
    Commenters stated that the State tool should be restructured to 
eliminate the need for extensive, repetitive, and local-level analysis. 
The commenters stated that it is redundant and wasteful to include 
entitlement jurisdictions, will create confusion between State grantees 
and entitlement jurisdictions, and State grantees have no authority 
over how entitlement jurisdictions spend their funds and cannot 
meaningfully impact contributing factors in those areas. Commenters 
stated that States be able to rely on the analysis conducted by local 
governments and PHAs. The commenters further stated that Community 
Development Block Grant (CDBG) programs cannot serve entitlements, and 
those funds cannot be used to help address housing issues within 
entitlements. The commenters stated that the analysis performed by 
entitlement communities should be linked to the State analysis instead 
of requiring States to duplicate efforts and analyze the same data to 
create a separate plan.
    Commenters also stated that inconsistencies and incompatible action 
steps could be developed if the State must analyze the entitlement 
areas. The commenters stated that because the State and Local 
Government tools may have inconsistent results, HUD will be placed in 
the position of having to determine which AFH is ``more right'' for a 
given area, given that conclusions may not be coordinated within the 
HUD review process. The commenters stated that HUD must clarify the 
relationship between the State assessment and the local participating 
jurisdiction assessments since they are not only duplicative, but could 
have competing results. States should have the opportunity to adopt 
those assessments where another participating jurisdiction has a 
current assessment.
    Commenters stated that the proposed tool should limit States' 
obligation to consult with entitlement jurisdictions and PHAs and 
tailor the tool to State activities. The commenters stated that 
contrary to statements in HUD's response to commenters published with 
the AFFH final rule, the AFH tool does not explicitly limit the 
consultation obligations to non-entitlement areas and by referring to 
24 CFR 91.110 without further clarification, the tool appears to 
require consultation with all local PHAs operating in the jurisdiction. 
The commenters stated that the proposed tool should only focus on and 
use data for non-entitlement jurisdictions, since State grantee's 
programmatic responsibility is for rural areas not covered by 
entitlement jurisdictions.
    A commenter similarly stated that HUD should not require inter-
State analysis as it would require the collection and analysis of 
information from other jurisdictions that would significantly increase 
the burden of compliance, and the analysis should only expand outside 
the jurisdiction when applicable. Another commenter stated the entire 
State should be covered by an assessment, however, conducting a full 
State analysis should be optional if seamless coverage of the State 
could occur through other means, and States should have the flexibility 
of conducting a sub-State analysis that is meaningful.
    In contrast to these commenters, other commenters stated that 
because contributing factors are at the very core of the fair housing 
goals and priorities, the conclusions of entitlement jurisdictions 
within a State will significantly influence the State analysis, and 
States should not simply accept the conclusions without an independent 
analysis.
    HUD Response: HUD understands the concerns of these commenters. HUD 
notes that the final Rule requires an assessment of the entire 
jurisdiction, or State in this case, not just non-entitlement areas, 
and for this reason States are expected to consider statewide policies 
and investments that affect fair housing issues. At the same time, HUD 
recognizes that the State is not expected to do the analysis that local 
governments conduct in their AFHs (for example, neighborhood-by-
neighborhood analyses). HUD has added language to the instructions 
clarifying that while the entire State must be analyzed, the program 
participant may take into account the different fair housing issues and 
contributing factors affecting different parts of the State. For 
instance, more rural, non-entitlement parts of the State may have 
different fair

[[Page 66759]]

housing issues, which the State should take into account particularly 
for setting priorities and goals in the AFH.
    HUD also notes that States may use information contained in an AFH 
of a local government. States are accountable for the information 
contained in its AFH that is submitted to HUD. If States are utilizing 
information from another AFH, States should consider the following: (1) 
Whether the AFH has been accepted by HUD; (2) whether the AFH is a 
draft AFH that was published for the purposes of conducting the 
community participation process; and/or (3) whether the AFH meets the 
criteria for local data and local knowledge under 24 CFR 5.152 and the 
instructions to the Assessment Tool.
    HUD plans to provide the States with data that cover the entire 
State, as well as data that are specific to the non-entitlement areas 
of the State, which may provide for useful comparisons when conducting 
a fair housing analysis. While local governments may identify different 
contributing factors and fair housing issues in their AFHs from States, 
these are separate planning documents related to different HUD 
grantees' fair housing planning. With respect to public housing or 
Housing Choice Voucher programs, the State shall consult with any 
housing agency administering public housing or the Housing Choice 
Voucher program on a Statewide basis as well as all PHAs that certify 
consistency with the State's consolidated plan. If a PHA is required to 
implement remedies under a Voluntary Compliance Agreement, the State 
should consult with the PHA and identify actions the State may take, if 
any, to assist the PHA in implementing the required remedies.
    Additionally, HUD notes that fair housing issues are not confined 
to jurisdictional, geographic, or political boundaries; for that 
reason, a regional analysis broader than the State in order to provide 
context for the fair housing issues identified and to assist in 
developing regional solutions for overcoming contributing factors and 
related fair housing issues.
    Elaborate on list of organizations consulted. A commenter stated 
that Question 2 of Section III should incorporate language from 24 CFR 
91.110(a) and elaborate on the requirement that States provide a list 
of organizations consulted. The commenter stated that the question 
should include the following language: ``Describe how the organizations 
consulted (including, but not limited to, State-based and regionally-
based organizations that represent protected class members and 
organizations that enforce fair housing laws, health services 
organizations, social service organizations, and public and private 
agencies providing assisted housing--including any State housing agency 
that administers public housing) reflect a representative selection of 
organizations from all parts of the State, including entitlement and 
non-entitlement jurisdictions and social service organizations should 
be defined as those focusing on services to children, elderly persons, 
persons with disabilities, persons with HIV/AIDS and their families, 
and homeless persons.'' A commenter stated that HUD should clarify 
whether the State must consult with every Resident Advisory Board or 
just those in the limited number of jurisdictions that are non-
entitlement entities.
    HUD Response: HUD appreciates this commenter's suggestion, but 
declines to include the proposed language in the Assessment Tool. The 
instructions for Question 2 in Section III specifically include the 
requirements of 24 CFR 91.110. The requirement to consult with PHAs 
applies to those PHAs that receive a certificate of consistency with 
the consolidated plan of the State. The references in this Assessment 
Tool to meetings with Resident Advisory Boards is only applicable when 
a PHA is conducting a joint or regional AFH with the State. HUD will 
provide additional guidance for States and Insular Areas on the 
community participation process, as well as general guidance relating 
to the Assessment of Fair Housing, once OMB approves this Assessment 
Tool.
    Elaborate on community participation requirements and coordination 
with other entities. A few commenters asked whether States are 
obligated to conduct community participation within entitlement 
jurisdictions and tribal areas. Other commenters asked HUD to clarify 
whether comparing the turnout for public meetings, the number of 
substantive comments received, and the number and quality of responses 
to public and stakeholder surveys is an acceptable approach to 
measuring the success of the community participation process. The 
commenters also asked HUD to provide an explanation of what 
``meaningful'' means in the context of ``meaningful community 
participation.'' A commenter stated that the community participation 
process is a vital part of the fair housing assessment, and that this 
section of the assessment tool should elicit more detailed information, 
including more specific details about outreach activities. The 
commenter further stated that outreach to persons with disabilities 
should include outreach targeted to those living in both institutional 
and community-based settings. Another commenter made a similar comment 
that the tool should provide meaningful guidance and robust 
instructions for the community participation process.
    A commenter asked HUD to clarify whether ``any'' oversight, 
coordination, or assistance of other public entities' goals, actions, 
and strategies is optional. The commenter stated that the final rule 
suggests that it is not optional, but the question in the Assessment 
Tool seems as if it is optional. The commenter added that States do not 
have legal authority to oversee or control local program participants' 
AFH processes and many will not welcome State involvement in their 
planning efforts.
    HUD Response: In the AFFH Rule Guidebook, available at https://www.hudexchange.info/resource/4866/affh-rule-guidebook/, HUD has 
provided guidance on conducting community participation. HUD will 
continue to provide technical assistance and guidance to program 
participants on the requirements surrounding the community 
participation process.
    HUD understands that there are State and local constraints on which 
entities have authority to operate and monitor the actions of other 
entities. HUD encourages collaboration to the extent feasible and 
permitted by State and local law.
    Encourage coordination between States and local jurisdictions to 
eliminate duplicative work and possible inconsistencies. Commenters 
stated that it would be an important improvement if there was 
encouraged coordination between the local jurisdictions and the State 
so that the findings are complimentary, rather than redundant. The 
commenters stated, for example, States could be involved in the 
development of the local PHA's plans so that the information is 
consistent and allows the State to focus on the balance of state 
geographies and the impacts of State policy on access to housing. The 
commenter stated that sharing findings from local jurisdictions in a 
systemic and organized way would also be helpful.
    HUD Response: HUD has and will continue to encourage collaboration 
among various types of program participants that must conduct and 
submit an AFH to HUD. HUD also recognizes that its program participants 
need flexibility as they embark on conducting an AFH, and for that 
reason, HUD is not prescribing how such collaboration is to be 
achieved. Instead, HUD leaves this up to program participants that 
conduct a joint or

[[Page 66760]]

regional AFH, as described at 24 CFR 5.156. HUD will also continue to 
provide technical assistance and guidance to program participants with 
respect to the issues raised by these commenters.
    States reaching out to PHAs for certification of consistency with 
the State's consolidated plan is not reasonable or practicable. A 
commenter stated that while it is reasonable to expect a local 
government to consult and reach out to local PHAs that seek 
certification of consistency with the State's consolidated plan, it is 
not reasonable or practicable to expect the same of a State with a 
large number of local PHAs. Another commenter stated that the AFH Final 
Rule and tool seem to suggest that States are obligated to 
independently evaluate the AFH analysis and methods for addressing fair 
housing issues in jointly prepared PHA AFHs for which PHAs seek 
certification of consistency with the State plan. However, States may 
be hesitant to certify a PHA plan when they do not agree with its goals 
and priorities for addressing fair housing issues, which sets up a 
potential conflict between PHAs and States. This is an unfair 
consequence because States do not administer the HUD-funded programs 
that the certifications pertain to. The commenter stated that HUD 
should eliminate this requirement or not require States to certify 
consistency until after HUD has approved the PHA's AFH.
    Another commenter stated that a State cannot truthfully certify 
that it is in compliance with its obligation to AFFH if it is not 
monitoring the compliance of its subrecipients. The commenter 
recommended that subrecipients be required to report certain 
information to the State demonstrating compliance. The commenter also 
recommended the development and implementation of a streamlined AFH 
process for non-entitlement communities based on the Analysis of 
Impediments to Fair Housing--Texas (FHAST). The commenter stated that 
the FHAST allows the State to monitor its subrecipients' compliance 
with the AFFH certification and make its own truthful certification. 
The commenter recommended that to make the process more effective the 
approach should be modified so that the assessment form is tailored to 
the size of the jurisdiction, that there be more robust training and 
technical assistance provide, and ensure that training and technical 
assistance focuses on the meaning of AFFH beyond housing programs.
    HUD Response: HUD disagrees with the commenters' characterization 
of the requirements under the AFFH rule HUD notes that several of the 
comments appear to reference requirements that are not within the scope 
of the AFFH Rule or the assessment tool. States are not required to 
independently evaluate the analyses conducted by other program 
participants. Note, if the State is involved in conducting 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. See 24 CFR 5.156(a)(3). Note that 
collaborating program participants are also accountable for their 
individual analysis, goals, and priorities to be included in the 
collaborative AFH. See 24 CFR 5.156(a)(3).
    HUD appreciates the concerns of the commenters regarding the 
State's role in monitoring subrecipients. In response, HUD has added 
two questions to the final section of the analysis section of the 
Assessment Tool to account for this responsibility. Examples for States 
to consider regarding the oversight of the AFFH requirements--such as 
the FHAST example--may be considered for additional guidance.
    As previously stated, HUD will continue to provide training, 
guidance, and technical assistance to program participants with respect 
to implementation of and compliance with the AFFH rule.
    Level of analysis required by tool is inappropriate for States. 
Commenters stated that the proposed tool requires far greater analysis 
from a State given its larger jurisdiction with respect to size and 
diversity of local jurisdictions within it. A commenter expressed 
concern that most, if not all, of the issues will not be in the State's 
domain to take action. The commenter recommended that it would be 
helpful if HUD provide a clear statement of how HUD intends to utilize 
the Assessment and what the expectations are for States.
    A commenter stated that this is challenging for States with 
hundreds of cities and towns with considerable autonomy under State 
law, and many of the directed questions and contributing factors are of 
a municipal-level nature and would require a State to obtain and review 
municipal data and to conduct significant fact finding. A commenter 
stated that examples of areas for which significant fact finding would 
be needed include community opposition, land use and zoning, local 
policies and practices, lack of private and public investments, 
infrastructure, accessibility of government services, sidewalks, 
pedestrian crossings, infrastructure, access to proficient schools, 
educational programs, recreational facilities for persons with 
disabilities, education policies, and access to financial services.
    Another commenter stated that the tool requires States to carry out 
an in-depth assessment, set priorities, and develop action timeframes 
based on a set of metrics that involves agencies besides housing and 
community development, including participation by public and private 
stakeholders, and numerous State agencies that are not recipients of 
HUD funding but are instead subject to oversight from other federal 
agencies.
    Several commenters stated that it is not feasible or appropriate 
for States to drill down to a neighborhood-by-neighborhood analysis. 
The commenters stated that States need flexibility in tailoring the 
content of the assessment to ensure that analysis conducted will be 
meaningful and under the authority of state housing agencies. The 
commenters stated that States should have the flexibility to use the 
HUD data at appropriate scales, drilling down into local analysis of 
areas such as opportunity for employment, education, and transportation 
in locations of the State where they are most impactful. The commenters 
also stated that census tract analysis is not feasible for States, and 
data should be consolidated at a higher level (county, MSA, regional). 
The commenters stated that many of the opportunity questions in the 
State Assessment Tool should be removed because they are only 
appropriate at the neighborhood level. The commenters stated for a 
large State, local decision making and local policies are the bases for 
determining whether housing is ``fair'' since it is not reasonable to 
expect State residents to move long distances from their current 
locations to access housing opportunities.
    HUD Response: As previously stated, HUD understands the limitations 
States may have with respect to their authority in certain areas of the 
State due to State or local law. The AFH is intended to assist States 
in engaging in meaningful fair housing planning. HUD has made several 
modifications to the assessment tool in order to clarify the level of 
detail and analysis that are required. The descriptions of numerous 
contributing factors have also been amended to better reflect a state-
level rather than municipal level analysis.
    HUD has also added language to clarify that States are not 
generally required to conduct a neighborhood-level analysis. This 
language, added in several key questions throughout the

[[Page 66761]]

assessment tool states, ``[participants] should focus on trends that 
affect the state or trends that affect areas of the state rather than 
creating an inventory of local laws, policies, or practices.'' They are 
not required to create inventories of local ordinances or policies that 
are having an effect at the local or neighborhood level. HUD notes, 
however, that local ordinances or policies may be considered local data 
or local knowledge. States are expected to focus on patterns or trends 
affecting fair housing issues in the State, including those that may be 
having an affect across the State's region.
    In contrast to the data provided to local governments and PHAs, 
which HUD is providing data at the census tract level, HUD is providing 
States with data at the county level, and will allow States to create 
``sub-state areas,'' which may be comprised of groupings of counties. 
This flexibility is intended to allow States to conduct their analysis 
while reducing burden by raising the level of geography at which States 
must conduct their analysis. A State is not expected to conduct the 
same analysis that local governments conduct using the Assessment Tool 
designed for use by Local Governments; however, HUD is providing States 
with similar data in the AFFH-T so that more granular analyses can be 
conducted where appropriate.
    The AFFH-T will provide users with the flexibility to shift their 
level of focus between the maps provided for States at the County 
level, with more detailed maps that provide data below the County 
level. For instance, dot density maps are also available in the AFFH-T. 
A dot density map (also known as dot distribution map) uses a color-
coded dot symbols representing the presence of a specified number of 
individuals sharing a particular characteristic to show a spatial 
pattern. Thematic maps can obscure patterns of segregation within a 
County and a dot density map maybe useful to see more granular 
patterns. When viewing a dot density map, the presence of residential 
segregation may appear as clusters of a single color of dots 
representing one protected class, or as clusters of more than one color 
of dots representing a number of protected classes but still excluding 
one or more protected classes. More integrated areas will appear as a 
variety of colored dots.
    HUD has also revised the questions in the Disparities in Access to 
Opportunity section of the Assessment Tool based on the commenters' 
concerns.
    On a more general note, HUD announced the second stage of the 
extended public comment process, as described above.
    The Assessment Tool does not take into consideration ``home rule'' 
States. Several commenters stated that the tool does not take into 
consideration a ``home rule'' State in which the state Constitution 
grants every city and town the right of self-governance in local 
matters. The commenter stated that in addition to the burden of 
gathering and analyzing local data, it is unclear how HUD expects them 
to be addressed, and within the timeframes, under the Fair Housing 
Goals and Priorities Section of the tool because the State lacks the 
legal authority to overcome locally imposed impediments to fair 
housing, thus an analysis of this information will not likely enhance 
efforts to affirmatively further fair housing at the State level. The 
commenters stated that each unit of local government creates its own 
policies and programs, which often do not align with the State. The 
commenters stated that for example, North Carolina has 100 counties, 
more than 500 incorporated municipalities, with 115 school districts 
and as many charter schools, and that even if actions identified 
through the collection of local data and the analysis can impact change 
relative to fair housing, it would be outside of the State agency's 
authority to and ability to impact.
    HUD Response: HUD understands that there are State and local 
constraints on which entities have authority to operate and monitor the 
actions of other entities. HUD encourages collaboration to the extent 
feasible and permitted by State and local law.
    HUD also notes that in order to set fair housing priorities and 
goals, the State must understand the local and regional context for the 
fair housing issues and contributing factors it identifies in its 
assessment.
    HUD has clarified that several questions are asking state agencies 
to focus on trends or patterns, ``that affect the state or trends that 
affect areas of the state rather than creating an inventory of local 
laws, policies, or practices.'' A similar instruction was added stating 
that, ``For broader questions about policies and laws, HUD expects that 
States use information available to it through the community 
participation and consultation process and does not expect the State to 
collect all possible sources of data or create inventories of local 
laws or policies throughout the State. Program participants can 
reference studies or reports issued by other State agencies, and these 
studies or reports may be necessary and relevant for the completion of 
the AFH. Referencing such studies and reports may be useful in certain 
areas of the fair housing analysis when the program participant does 
not, itself, have first-hand knowledge of the topic at hand. HUD 
acknowledges that such reports will have been conducted for purposes 
other than informing an AFFH analysis and these may still provide 
valuable information.''
    Requirement for regional analysis is burdensome and meaningless. 
Several commenters stated that HUD continues to insist that State 
grantees conduct an exhaustive analysis for all regions within the 
geographic boundary of their State (including entitlement 
jurisdictions) on a broad range of factors, many outside of the State 
grantee's expertise, authority, and ability to impact. Commenters 
stated that the scope of the tool must be scaled back significantly so 
that State grantees can reasonably conduct a meaningful AFH on issues 
they can meaningfully address. Another commenter suggested that the 
tool acknowledges that the content of responses required by these 
sections is categorically not being viewed from a position of subject-
matter expertise.
    Several other commenters stated that the ability to access and 
meaningfully analyze data beyond the State's boundaries is not 
feasible. The commenters stated that the requirement that States 
conduct a regional analysis where there are ``broader regional patterns 
or trends affecting multiple states'' by analyzing local data and 
knowledge, and that consulting the existing AIs and AFH's of 
neighboring States and jurisdictions is not achievable without 
additional resources and time.
    Other commenters suggested that including regional data should be 
optional for States and States should be able to determine when 
regional perspectives on specific topics or fair housing issues is 
appropriate and relevant and will enhance the AFH. The commenters 
stated that HUD should not require inter-State analysis as it would 
require the collection and analysis of information from other 
jurisdictions that would significantly increase the burden of 
compliance, and the analysis should only expand outside the 
jurisdiction when applicable. The commenters stated that if the purpose 
is just to assess issues in neighboring States without attempting to 
change policy, then that requirement is understandable. However, if the 
purpose is to change policy in another State, then this will be 
problematic. The commenters concluded by stating that this analysis is 
more appropriate at the local level or possibly at the metropolitan 
statistical area (MSA) level that share a local policy-making body or 
mechanism.

[[Page 66762]]

    A few commenters stated that the currently proposed format of the 
tool that incorporates regional analysis throughout the sections is 
preferable to a regional section. The commenters stated that actual 
placement of the questions currently is not problematic; however, only 
Statewide and sub-State analysis should be required when data are 
provided.
    Other commenter requested clarification on what regional analysis 
means. A commenter stated that its State is divided into 8 regions, and 
asked if HUD is requiring an analysis of each of these regions. Another 
commenter stated that the proposed tool is vague on whether the regions 
within the states would be established.
    A commenter requested that HUD provide separate sub-sections to 
address multi-State issues, with the opportunity to reference, rather 
than restate the jurisdictional analysis.
    HUD Response: As stated above, HUD notes a regional analysis is not 
only meaningful when conducting a fair housing analysis, but is 
required by the regulation. In particular, fair housing issues are not 
confined to jurisdictional, geographic, or political boundaries; for 
that reason, certain regional analyses may be required, as directed by 
the Assessment Tool, in order to provide context for the fair housing 
issues identified and to assist in developing regional solutions for 
overcoming contributing factors and related fair housing issues. HUD 
also notes that understanding how regional fair housing issues 
affecting the State are influenced by external factors may provide 
insight into how the State can overcome the effects of contributing 
factors and related fair housing issues. HUD understands that States 
will not necessarily be able to affect policy in another State, but it 
may better implement its own fair housing-related policy. In response 
to the public comments on the interstate regional analysis requirements 
of the AFH, HUD has made a number of changes. These include removing 
separate questions calling for such an interstate analysis. Instead 
several key questions were amended to state that, ``to the extent that 
[such patterns] extend into another state or broader geographic area, 
identify where that occurs.''
    HUD also distinguishes between a ``regional'' analysis in this 
Assessment Tool, which is larger than the State and an analysis within 
the State that may be comprised of ``sub-state areas.'' HUD recognizes 
that many jurisdictions may also use the term ``region'' to refer to an 
area within the State. HUD is seeking comment on the use of terms that 
would be clearest to program participants and the public when referring 
to these different types of geography.
    Analysis of the entire State is important. Commenters stated that 
the instructions for and questions in the tool should require an 
analysis of the entire State, not just the non-entitlement areas. The 
commenters stated that HUD should make clear that participation by 
stakeholders in entitlement jurisdictions during community 
participation is important because they are affected by State-wide 
laws, polices, and practices. The commenters stated that HUD should 
modify questions in Section III to ensure that States will conduct the 
community participation process in a manner that is representative of 
all areas of the State, both entitlement jurisdictions as well as non-
entitlement jurisdictions. The commenters stated that Question 1 of 
Section III should include the following language at the end of the 
existing question: ``In these activities, explain efforts made to 
ensure meaningful community participation representative of all parts 
of the State, including entitlement and non-entitlement jurisdictions. 
If sub-State areas are utilized in the analysis, identify community 
participation efforts conducted in each sub-State area.''
    Other commenters stated that the tool appropriately takes into 
consideration that States and State housing finance agencies administer 
programs between CDBG, Emergency Solutions Grants (ESG), Home 
Investment Partnerships (HOME), and Housing Opportunities for Persons 
With AIDS (HOPWA), including LIHTC and State affordable housing trust 
programs. The commenters stated that since Fair Housing is complex and 
extensive, it is appropriate that a variety of State functions are 
taken into account and evaluated as a whole; and that such efforts 
should be taken into account when considering a State's progress 
towards affirmatively furthering fair housing.
    Some commenters stated that inclusion of entitlement jurisdictions 
within the State's analysis is a pivotal distinction and a necessary 
condition for any meaningful fair housing analysis at the State level. 
The commenters stated that State agencies administer the largest 
federal affordable housing program (LIHTC) predominantly within 
entitlement jurisdictions; many entitlement jurisdictions only receive 
direct allocation of CDBG funds from HUD while other formula grant 
programs are administered by States or other large grantees; state-
level policies and practices often establish the framework that defines 
the policy options that are available to local governments, including 
entitlement jurisdictions; and this approach is required by the 
language of the regulation. The commenters stated that unlike under the 
Analysis of Impediment requirements, States should not omit entitlement 
jurisdictions from their scope of analysis.
    HUD Response: HUD appreciates these commenters' suggestions and 
observations. However, HUD declines to change the questions in Section 
III of the Assessment Tool, as the questions are based on the 
requirements of the AFFH rule, HUD program-related program regulations, 
and other fair housing and civil rights requirements. However, the 
scope of the questions in this Assessment Tool include an analysis of 
the entire State, including entitlement and non-entitlement areas.
    HUD has made several changes to clarify the scope of analysis for 
States and to clarify how States may choose to consider the unique 
needs and issues facing rural areas of their State. For state agencies 
that administer programs that primarily benefit rural and non-
entitlement areas of the State, the Assessment Tool provides for 
specific focus on the fair housing issues affecting these areas, while 
still considering State-wide fair housing issues.
    All non-housing related questions should be optional. Commenters 
stated that the State's analysis should focus on areas of opportunities 
related to housing, which is the focus of a State's qualified 
allocation plans (QAPs), in which points are provided for developments 
based on their physical location relative to that opportunity, and the 
metric is assessed by its outcome and not the underlying policies in 
these areas that result in these outcomes. Commenters stated that non-
housing related questions should be optional. Commenters stated that 
the new areas of emergency preparedness, prisoner re-entry, public 
health, and public safety should be optional because there is no HUD-
provided data, and they are only tangentially related to housing and 
are outside of the authority of State agencies that administer HUD 
grant funds. Commenters stated that a State should focus on a thorough 
policy and program analysis of factors directly related to housing and 
in areas that are within the authority of the agencies administering 
the grant funds, instead of a full policy analysis of all tangentially 
related areas, which is burdensome and would necessitate the hiring of 
outside consultants with expertise in each area. Commenters stated that 
HUD's proposal to add even more questions for States that would 
additionally involve State

[[Page 66763]]

public health, public safety, corrections, health care, and emergency 
management/preparedness makes the task of completing the AFH unwieldy; 
analysis of a multitude of local conditions renders the AFH 
impracticable for States given the time allotted and inadequacy of 
resources.
    Commenters stated that HUD may well be interested in learning about 
the impact of education related to laws, policies, and practices that 
affect the ability of residents in different areas of the state to 
attend post-secondary and vocational education, shifting the 
significant burden of researching and analyzing information on to 
entities that receive HUD funding is inappropriate. The commenters 
questioned whether the information gathered under such a sweeping 
request will be of practical utility since program participants will be 
required to engage in research and analysis regarding a host of broad 
policy areas to attempt to learn and opine on the detailed requirements 
and policies of areas besides the creation and provision of housing, 
calling into question accuracy and conclusions. The commenters stated 
that if the ultimate goal is to help program participants develop 
thoughtful and coherent strategies to further fair housing, a tool that 
requires devoting time and resources to learning and documenting policy 
in other areas is not clearly targeted to the ultimate goal and may 
result in a less robust analysis of the data and policies directly 
related the provision of fair housing.
    Other commenters stated that it is appropriate for States to have 
to describe laws, policies, and practices affecting affordable rental 
housing, homeownership, and mortgage access in the State; but HUD 
should not ask States to analyze other issues for which they do not 
have expertise. The commenters stated that requiring an in-depth 
analysis of the data and ``laws, policies, and practices'' regarding 
the wide array of topic areas that the AFH covers goes above and beyond 
what is necessary for the proper functions of HUD. Another commenter 
stated that the vastness of the request and the questionable nature of 
the conclusions drawn makes these types of questions in the tool an 
untenable exercise. A commenter similarly stated that the repeated use 
of the clause ``demographic trends, laws, policies, or practices'' as 
it requests information on specific subject areas is too broad. The 
information to be gathered is potentially unlimited and its actual 
causality is speculative at best.
    In contrast to these comments, a commenter stated that States must 
be required to discuss ``other indicators of environmental health based 
on local data and local knowledge,'' including the siting highways, 
industrial plants, waste sites, and Superfund and brownfield sites. The 
commenter stated that limiting any examination of environmental health 
hazards to air pollution would miss the continuing impact of 
environmental racism on communities of color in cities such as Flint, 
Michigan, and in the Donna colonias in the Rio Grande Valley in Texas. 
The commenter stated that vulnerability to the effects of a natural 
disaster should also be considered part of the environmental health of 
a neighborhood. Another commenter stated that the following should be 
included in the opportunity section--include an analysis of early 
education programs, especially quality early education programs and the 
relationship of access to state programs, policies, and funding, 
including child care subsidy policies, explicitly include state tax 
policies in the list of state actions to be analyzed, and include 
questions related to income, including minimum wage policies and access 
to income supports.
    HUD Response: HUD appreciates the commenters' feedback on these 
issues. HUD notes that the question relating to the other opportunity 
areas (i.e., the question on emergency preparedness, prisoner re-entry, 
public health and public safety) have now been included in the 
``Additional Information'' section of the Disparities in Access to 
Opportunity section of the Assessment Tool. This question is limited to 
information the State obtains through the community participation 
process.
    HUD appreciates the comments received recommending the addition of 
various additional types of opportunity measures that might be 
considered. HUD is aware that the state agencies responsible for 
administering HUD programs, including CDBG and HOME, have limited 
expertise and access to information on the numerous other types of 
opportunity areas that might be considered. Being mindful of adding 
excessive burden, HUD has chosen not to require the analysis of the 
other opportunity areas proposed in the 60-day Notice. HUD is also 
aware that some issues may be more salient in some States but not 
others. In recognition of these considerations, HUD instead has added a 
new component to the ``additional information'' questions in the 
Disparities in Access to Opportunity section. HUD notes that such other 
categories may be ``identified through the community participation 
process,'' and ``may include State level programs, resources, or 
services related to . . . [public safety, public health, housing 
finance, prisoner re-entry, emergency management, or other opportunity 
areas].'' These additional information questions provide a space for 
State program participants that choose to include information relevant 
to their State and their assessment.
    HUD has also revised the ``laws, policies, and practices'' 
questions such that they are to be informed by information obtained 
through the community participation process.
    Under the AFFH rule, program participants must undertake an 
analysis that will identify significant disparities in access to 
opportunity for any protected class within the jurisdiction and region. 
See 24 CFR 5.154(d)(2). It is important to assess whether protected 
classes experience disparities in access to opportunity, such as 
education, employment, transportation, environmental health, low 
poverty, among others.
    HUD appreciates the commenter's suggestion to have States discuss 
``other indicators of environmental health based on local data and 
local knowledge.'' The contributing factor ``Location of environmental 
health hazards'' is included in the State Tool within the ``Disparities 
in Access to Opportunity'' section in the version submitted during the 
60-day public comment period. The definition of this contributing 
factor is available in the Assessment Tool's appendix.
    Requirement to analyze disparities in access to opportunity and to 
identify significant contributing factors exceeds requirements of the 
Fair Housing Act. Commenters stated that many States consider the 
requirement to analyze disparities in access to opportunity to be 
overstepping the requirements of the Fair Housing Act and is not 
necessary to reasonably determine impediments to fair housing choice. 
Commenters stated that for a State to thoroughly evaluate segregation/
integration, it must evaluate the context of each occurrence of 
segregation to determine its validity and characteristics. Other 
commenters stated that States must make an interpretive leap to 
identify contributing factors to observed patterns, but these are 
uniquely local variables that will exert influence in different ways in 
different jurisdictions and therefore states will be compelled to 
fracture the AFH into an ``analysis of boundless sets of local 
circumstances in order to meaningfully isolate variables that 
contribute to certain fair housing issues.'' Other commenters stated 
that the tool requires States to draw conclusions as to segregation and 
causation, which is an analysis State agency staff are not equipped to 
undertake and draw

[[Page 66764]]

conclusions from complex data correlations. The commenters stated that 
to make a causal analysis anything but double blind experiments or 
other highly sophisticated research techniques would be legally 
irresponsible and may result in significant legal ramifications arising 
from incorrect conclusions.
    Other commenters stated that the tool erroneously requires that any 
finding of disparate impact is a fair housing issue. A commenter stated 
that this requirement goes far beyond the legal one articulated by the 
Supreme Court in Texas Department of Housing and Community Affairs 
Inclusive Communities Project, Inc. The commenter stated that it would 
be legally flawed to make general conclusions of causation without 
significant substantive proof and an understanding of the origin and 
application of policies outside the State's purview.
    HUD Response: HUD notes that the affirmatively furthering fair 
housing mandate under the Fair Housing Act is distinct from the 
theories of liability under the Act, such as disparate treatment and 
disparate impact. In order to set meaningful fair housing goals with 
respect to affirmatively furthering fair housing, program participants 
must assess whether residents of their communities' experience 
disparities in access to opportunity on the basis of race, color, 
national origin, religion, sex, familial status, or disability. For 
these reasons, an analysis of disparities in access to opportunity is 
vital to conducting a meaningful fair housing analysis.
    Requirement to undertake an AFH must come with funding. A commenter 
stated that it is not aware of any similarly sweeping assessment 
obligation from a Federal agency without a commitment of Federal 
resources to assist in implementation. The commenter stated that for 
example, the Department of Education offered $500,000 planning grants 
to support its Promise Neighborhoods Program, which similarly 
recognized the importance of breaking down agency ``silos'' to ensure 
Federal, State, and local cooperation, but also recognized the enormous 
scope of the work and need for commitment of substantial resources to 
carry it out, even within a very limited target geography.
    HUD Response: HUD notes that States already had an obligation to 
undertake fair housing planning by completing an Analysis of 
Impediments to Fair Housing Choice. The Assessment of Fair Housing is 
largely similar to the prior existing process, but updates it with the 
HUD-provided data and tools and creating a standardized form for use by 
HUD's grantees and public housing agencies. Subject to program rules 
and limits, funding for program administration including fair housing 
planning continues to be an allowable use of HUD funding.
    Information needed for the tool will be extremely difficult to 
collect. Several commenters stated that the tool requests an 
extraordinary amount of information that will be extremely difficult 
for States to collect and analyze in a meaningful matter and relies too 
much on local data. The commenters stated that some questions are 
nearly impossible to answer from a State-wide perspective, such as 
questions on education policy, which will vary from district to 
district, and questions on zoning and land use policies.
    A commenter stated that the tool encourages broad and sweeping 
interpretations about policies of sister agencies without participation 
in the policy making process and without the availability and 
understanding of all relevant information. The commenter stated that 
this would be legally irresponsible as the responses in the tool could 
be used as a basis for a fair housing complaint against the State or 
other State agencies (e.g., questions related to education, employment, 
and transportation). The commenter stated that the State does not have 
the legal authority to compel the cooperation of other agencies in the 
analysis or the goals. The commenter provided an example of its State 
transportation department, which has 5,700 employees and the state has 
regional, county, and local transportation agencies. The commenter 
stated that to be able to analyze all aspects of this topic would be 
unduly burdensome.
    Another commenter requested that States not be required to answer 
questions that will necessitate the collection of new local data.
    HUD Response: There are limitations on what information program 
participants must use when completing an AFH. The definitions of local 
data and local knowledge at 24 CFR 5.152 and the instructions to the 
Assessment Tool explain what local data and local knowledge are and 
when they must be used. HUD understands the limitations of coordinating 
with various agencies or departments on issues relating to access to 
opportunity; however, the Assessment Tool is designed to assist program 
participants in identifying where issues are present and then figure 
out how they might go about solving them. In addition, HUD has 
clarified in certain questions in the Assessment Tool when the analysis 
is intended to focus on any trends in demographics, law, policies, or 
practices that could impact fair housing issues. These questions are to 
be informed by the community participation process, any consultation 
with other relevant government agencies, and the State's own local data 
and local knowledge. HUD has also included the following language to 
clarify the focus of these questions: ``Participants should focus on 
trends that affect that State or trends that affect areas of the State 
rather than creating an inventory of local laws, policies, or 
practices.
    The evaluation of all publicly supported housing in the State is 
important to the State assessment. Several commenters expressed support 
for the evaluation of all publicly supported housing in the State as 
part of the assessment including LIHTC. A commenter requested that the 
definition of publicly supported housing include State-funded housing 
programs and the federal LIHTC program, consistent with the definition 
in the local government tool, and possibly include Rental Assistance 
Demonstration (RAD). The commenter stated that to provide a meaningful 
analysis, the locational analysis of publicly supported housing needs 
to be conducted at the census tract level or otherwise local level 
geography, not the county level.
    HUD Response: HUD appreciates this comment and notes that the 
instructions to the Assessment Tool make clear what is considered 
publicly supported housing for purposes of conducting an AFH. The 
instructions state that the term ``publicly supported housing'' refers 
to housing assisted, subsidized, or financed with funding through 
Federal, State, or local agencies or programs. HUD also notes in the 
instructions that other publicly supported housing, aside from the 
categories for which HUD is providing data, relevant to the analysis 
includes housing funded through state and local programs, or other 
Federal agencies, such as the U.S. Department of Agriculture and the 
U.S. Department of Veterans Affairs, or other HUD funded housing not 
captured in the HUD-provided data.
    HUD appreciates the commenters' concern about the level of the 
geography of the publicly supported housing analysis. HUD also 
recognizes the burden that conducting an analysis at the census tract 
level might place on States, and believes that the level of geography 
for this part of the analysis in the Assessment Tool will provide for a 
meaningful fair housing analysis. However, HUD notes that States may 
receive information in community

[[Page 66765]]

participation that indicates a need to evaluate a fair housing issue at 
a lower level than a County.
    Analysis of publicly supported housing should include information 
from residents. Commenters stated that in the publicly supported 
housing section, the tool should direct program participants to include 
information about whether residents prefer their developments to be 
improved and preserved or prefer assistance in moving to areas that may 
offer other opportunities. The commenters stated that the tool should 
also require a description of efforts made, underway, or planned to 
preserve project-based section 8 developments at risk of opting out of 
the program or prepaying their mortgage, or of other HUD multifamily 
assisted developments from leaving the affordable housing stock due to 
Federal Housing Administration (FHA) mortgage maturity. The commenters 
stated that the tool should also require a description of efforts to 
preserve LIHTC developments including at year 15 and beyond year 30. A 
commenter stated that the tool should require program participants to 
identify areas where residents are suffering from or at risk of 
displacement due to gentrification.
    HUD Response: HUD appreciates the suggestions of these commenters 
and agrees that this sort of outreach would lend invaluable information 
to States when conducting their AFH. HUD notes that States must comply 
with the requirements for community participation, consultation, and 
coordination as set forth at 24 CFR 5.158, and the applicable 
regulations in Part 91.
    Restore the section on mobility for residents of publicly supported 
housing. Commenters stated that HUD should restore the discrete section 
on mobility for residents of publicly supported housing to all AFH 
Assessment Tools. Commenters stated that the discrete sub-section on 
mobility for residents of publicly supported housing must be restored 
because of the various level involvement of States--i.e., State-level 
agencies in 30 States administer the HCV program, two States administer 
public housing throughout the State or in most of the State, many 
States have State-level agencies that have oversight for HUD's 
multifamily assisted properties, and State housing agencies have the 
potential to play a catalytic role in facilitating housing mobility for 
residents of publicly supported housing, including properties converted 
under RAD. The commenters stated that HUD should at least include 
State-administered HCV and public housing programs in the list of 
programs for which information is required under section V(C)(1)(d)(i) 
of the tool.
    Another commenter stated that the policy options for increasing 
mobility at the county level as opposed to the neighborhood level are 
significantly more challenging. The commenter stated that to make 
funding decisions accordingly, the State would need to completely 
rework its method of distribution and scoring criteria for grant 
applications.
    HUD Response: HUD appreciates the suggestions of these commenters, 
HUD has stated previously that it decided to address many issues 
related to mobility in the contributing factors, such as the 
contributing factors of ``Impediments to Mobility.'' HUD also asks 
about mobility in the additional information questions at the end of 
each section of the Assessment Tool. HUD also appreciates the 
commenters' recommendation to add State-administered HCV and public 
housing programs to the ``Other State Administered Programs Related to 
Housing and Urban Development'' subsection. At this time, HUD declines 
to include this reference.
    Clarify the analysis needed for Rental Assistance Demonstration 
(RAD) units. Another commenter suggests that the final tool 
instructions should clarify why RAD units should be analyzed as part of 
HCV and not project-based Section 8 subsidies.
    HUD Response: HUD has clarified the instructions to the Assessment 
Tool that now state data on projects converted under RAD is included in 
the data on project-based Section 8 or HCVs. HUD has provided the 
following language in the instructions: ``Relevant information may also 
include assisted housing converted under the Rental Assistance 
Demonstration (RAD) program. Data on RAD-converted properties are not 
provided separately, but are included in the overall data on Project-
based Section 8 and for Project Based Vouchers in the overall data on 
Housing Choice Vouchers.''
    Limit analysis for the State to the use of HUD funds. Commenters 
stated that the State Assessment Tool should not cover funding sources 
outside the purview of HUD. The commenters stated that LIHTC and the 
State's QAP, as well as, ``other State-administered programs related to 
housing and urban development'' are outside HUD's statutory authority 
given to it by Congress. The commenters stated that States do not agree 
that accepting HUD funds requires the State to use non-HUD funds in a 
manner proscribed by HUD. A commenter stated that such requirement 
poses serious concerns under the Tenth Amendment to the United States 
Constitution. The commenter stated that the tool, as crafted, 
effectively creates a process that promotes race-based decision-making 
by recipients of HUD funds in violation of the Equal Protection Clause 
of the United States Constitution.
    HUD Response: The Fair Housing Act provides HUD specific authority 
over programs and activities relating to housing and urban development. 
Program participants are required to analyze Low Income Housing Tax 
Credits (LIHTC) data as a part of their Assessment of Fair Housing 
(AFH). LIHTC are the primary producers of affordable housing 
nationwide. Additionally, LIHTCs are required to include a certain 
proportion of affordable units and accept vouchers, and States play a 
pivotal role in deciding where this housing is located. For these 
reasons, an analysis of this type of affordable housing is highly 
useful and appropriate when conducting a fair housing analysis.
    LIHTC questions are important to a State's analysis, but need to be 
more detailed. A commenter stated that the questions relating to the 
analysis of LIHTC are an appropriate information collection process 
that will have practical utility for evaluating States' AFFH 
obligations. Another commenter similarly stated that a statewide 
analysis of LIHTC will not only allow the State to identify issues in 
its own administration of the program, but to identify areas where the 
lack of LIHTC developments indicates there may be policies preventing 
affordable housing from being located in high-opportunity areas. The 
commenter stated that ``concerted community revitalization plans'' must 
be defined in a way that ensures they are meaningful and effective, and 
must set out clear standards for review and assessment of these plans, 
and that allowing jurisdictions to simply designate nominal 
``revitalization'' areas perpetuates segregation by steering LIHTC 
developments into distressed neighborhoods. The commenter further 
stated that since LIHTC is a housing production program, the State's 
primary concern in assessing its QAP and program administration must be 
whether it is producing housing opportunities in high opportunity 
areas. A commenter supportive of the LIHTC questions stated that HUD, 
however, should respect the LIHTC administering agencies, Department of 
Treasury and Internal Revenue Service (IRS), and provide States with 
considerable discretion in designing their QAPs.

[[Page 66766]]

    Other commenters stated that in addition to describing program-by-
program demographics and distributions, States should describe the 
combined distributions and overall demographics in macro to fully 
evaluate the impacts of publicly supported housing together, since 
different programs often have inherently different demographic and 
geographic distributions (for example, market-driven home mortgages and 
demand-driven LIHTC).
    Another commenter recommended that HUD include a question asking 
about efforts to leverage the LIHTC program to increase the supply of 
housing units that are accessible to persons with disabilities.
    A commenter stated that HUD should clarify how States with sub-
allocators should handle the analysis of states' LIHTC and QAPs. A 
commenter pointed out that the State of Minnesota has a unique system 
in which the development of QAPs are a separate process for the State 
and several local level sub-allocators. The commenter stated that sub-
allocators are participating jurisdictions and will be conducting their 
own assessment of fair housing, so when applicable, local participating 
jurisdictions with their own QAPs and States should be required to 
provide analysis of only the QAPs that are in their control. The 
commenter stated that while the evaluation of LIHTC properties funded 
through 9 percent and 4 percent tax credits will be valuable, the 
commenter clarifies that the 9 percent credits are those most impacted 
by QAPs.
    A commenter stated the LIHTC questions are important but need more 
detail, including the differing weights assigned to preferences and 
incentives; the question must also discuss results. The commenter 
stated that additional guidance is also needed with respect to the 
analysis of LIHTC, including recommendations for local data sources 
that are easily accessed by states, improvements to the instructions 
for this section, examples of the types of agreements that include 
restrictions against discrimination of voucher holders, and the 
opportunity for states to include any regional policies and 
initiatives. The commenter stated that the LIHTC section of the 
publicly supported housing section is confusing as written. The 
commenter stated that it seems to require the State to research all 
local land use law in over 200 communities in the State and provide an 
explanation, town-by-town of how each influence the location of LIHTC 
units. The commenter stated that it believes the question was meant to 
determine access to LIHTC units instead. Another commenter stated that 
more robust instructions would help ensure that the LIHTC sub-section 
prompts a meaningful fair housing analysis; the instructions should 
explain that 26 U.S.C. 42(m)(1)(B)(ii)(II) requires that housing 
finance agencies give priority among selected developments in high-
poverty qualified census tracts if those developments contribute to 
concerted community revitalization, but the statute does not more 
broadly require incentives for developments in high poverty 
neighborhoods.
    HUD Response: HUD appreciates these commenters' observations and 
recommendations. HUD has revised some of the questions in the LIHTC 
subsection of the Publicly Supported Housing section of the Assessment 
Tool. HUD believes that the questions relating to LIHTC in the 
Assessment Tool now address these issues more fully. For instance, HUD 
has included language in the questions relating to units for persons 
with disabilities, permanent supportive housing, and preservation of 
existing long-term affordable housing.
    HUD will continue to provide guidance and technical assistance to 
program participants, and will further address the analysis of LIHTC 
when it updates the AFFH Rule Guidebook. HUD also notes that, as with 
all questions in the Assessment Tool, program participants need only 
use local data and local knowledge when they meet the criteria 
specified at 24 CFR 5.152 and the instructions to the Assessment Tool. 
In the case of ``local data,'' under the regulation's definition, such 
data are ``readily available at little or no cost.'' In the case of 
``local knowledge,'' under the regulation's definition, such 
information, ``is known or becomes known'' to the program participant, 
indicating it is either already within the state agency's own 
information or it is made available, for instance from another agency 
or through information that can be considered in the community 
participation process.
    Comments on local data and local knowledge. Commenters stated that 
while the AFFH final rule defines ``local data'' and ``local 
knowledge'' as readily available information that requires little to no 
cost to obtain, it also notes that local data may be more relevant and 
current than HUD-provided data and requires program participants to 
supplement HUD-provided data with local data when it is relevant and 
easily obtainable. The commenters stated that this creates an 
expectation of analysis, instead of an allowance of, local data without 
considering the enormity of data that is available to states through a 
reasonable amount of searching the internet alone. The commenters 
stated that jurisdictions with strong affordable housing and academic 
research communities that provide a wealth of information at little to 
no cost are penalized because they have a higher burden of reviewing 
and analyzing locally available data since more high quality data is 
available. The commenters also stated that absent dedicated funding 
from HUD, a State is unlikely to be able to analyze and properly 
present local data in a manner consistent and relatable with other 
components of the tool, nor can State housing agencies adequately 
compile and analyze local data that is available at little to no cost 
with respect to the non-housing elements that the tool instructs States 
to analyze. The commenters further stated that without HUD provided 
guidance to its grantees and the public regarding the extent to which 
local data must inform conclusions and be displayed within the AFH, 
States are vulnerable to complaints even where HUD considers a State to 
have met its burden; oral comments from HUD staff are not sufficient 
and States will expend more resources defending complaints, as will HUD 
in processing such complaints.
    Other commenters stated that HUD should give States the flexibility 
to use HUD-provided county data, tract level data, or locally supplied 
data as appropriate. The commenters stated that, for example, 
educational access is not a meaningful indicator at the county level, 
and while the local level (tract based) is more appropriate, the state 
would utilize data directly from its department of education.
    Other commenters stated that collecting the data required to 
provide meaningful explanations would be extremely challenging at best 
and although States are not required to collect primary data they are 
uncertain of how to compile the information for the assessment without 
doing so. The commenters stated while the tool says States are not 
required to collect primary data, it is unclear how States will 
otherwise acquire local data besides administrative data sources. The 
commenters stated that even though collecting primary data is not 
required, it would require time consuming and costly surveys to amass 
the other primary qualitative data to conduct analyses in areas such as 
education.
    Commenters stated that HUD should not permit program participants 
to assert that data and knowledge are unavailable, which HUD currently 
proposed to be a potentially ``complete and acceptable response.'' 
Rather, HUD

[[Page 66767]]

should require the use of local data and local knowledge, including for 
persons with disabilities served in home or community-based settings 
and those served in institutions, assisted living facilities, and those 
ready for discharge from psychiatric hospitals. Another commenter 
stated that program participants should be required to describe efforts 
to identify supplemental data and local knowledge from sources such as 
universities, advocacy organizations, service providers, planning 
bodies, transportation departments, school districts, healthcare 
departments, employment services, unions, and business organizations, 
and they should be required to summarize and report what information it 
chose to use and why.
    Other commenters stated that States should have flexibility to 
determine when including fine-scale local data is appropriate. 
Commenters stated that States should be allowed to use their own data 
to complete the tool and HUD data should be optional since State data 
may be more representative of the State's true characteristics.
    A commenter stated that HUD should not impose a statistical 
validity test on State and local data that is so strict as to prevent 
States from using certain data sources that may be helpful in their 
planning efforts.
    Another commenter asked whether HUD data supersede local data. The 
commenter stated that it appears that local data needs to validate HUD 
data and it is unclear what happens when the data results are 
inconsistent.
    A commenter stated that the tool should be structured such that the 
tool provides recommendations on the use of local data and knowledge 
including on scope of issues, best practices for information-gathering, 
and coordination with local agencies.
    HUD Response: HUD appreciates all of the commenters' suggestions 
and recommendations. HUD has provided language in the instructions to 
the Assessment Tool regarding the use of local data and local 
knowledge. Additionally, the AFFH Rule Guidebook addresses the issue of 
when to use this information. Further, HUD has explained that HUD-
provided data must be used when conducting the AFH; however, in the 
event that the program participant has local data that is more current 
or accurate than the HUD-provided data, the program participant is 
welcome to use such data, so long as it provides HUD with the local 
data and an explanation of why it is being used in place of the HUD-
provided data. HUD has explained how it will assess the statistical 
validity of local data above.
    An analysis of income-levels is important. A commenter stated that 
when discussing affordability of housing units in the definitions 
section and throughout, it is important to clarify that it is not 
sufficient to have units that are affordable at 80 percent of area 
median income (AMI) or other moderate incomes. The commenter stated 
that when looking at inclusionary zoning or other affordable housing 
policies, it is important to consider which income levels are included 
and excluded. The commenter further stated that availability of housing 
at different affordability levels should be included in the definitions 
of ``location and type of affordable housing'' and ``availability of 
affordable units in a range of sizes.''
    HUD Response: HUD appreciates these suggestions, and notes that 
some of the HUD-provided data does include income levels. In addition, 
consideration of the level of affordability of housing for lower income 
groups is included in the contributing factors, ``availability of 
affordable units in a range of sizes,'' ``lack of affordable, 
accessible housing in a range of unit sizes,'' and ``location and type 
of affordable housing. HUD will further consider additional guidance as 
it relates to the affordability of housing and how it might relate to 
fair housing issues.

Comments Specifically Directed to Burden

    While many commenters commented on burden; the following comments 
supplemented the comments already provided on burden by specifying the 
number of hours they believe it will take to complete the AFH.
    Several commenters stated that the estimate of 1,000 hours per year 
to complete this paperwork is excessive. The commenters asked what 
paperwork can be eliminated in order to complete this form. The 
commenters also asked what is going to be done with this information 
once HUD collects the information. A commenter stated that HUD should 
hire contractors and not place the task onto PHAs. Another commenter 
stated that if the State of Massachusetts assumes even half of the 
estimated burden of 120 hours of staff time per PHA that the State 
coordinates with, based on HUD's estimate that one-third of PHAs may 
seek to enter into joint AFHs with their relevant State, this would be 
an additional burden of approximately 7,800 hours of staff time.
    Commenters stated that HUD's estimate of the burden of compliance 
with the proposed tool is not accurate, that the tool will take at 
least 2,500 hours to complete. Commenter stated that the estimate of 
1,500 hours may be too low considering the volume of information and 
scope of work, which falls outside the normal activities for most 
agencies. Commenters stated that they would need to devote a full-time 
staff person to do the AFH for 37 weeks. A commenter stated that it 
estimates the burden at 2,000 hours and a cost of $150,000 to $200,000. 
Another commenter stated that the burden estimate is glaringly low and 
will be four to five times the 1,500 hours that HUD estimated. Another 
commenter stated that it spent 6,000 hours to complete its last AI over 
a two-year period. Another commenter stated it will take 4,000 hours to 
complete the AFH. Another commenter stated that it took two individuals 
6 months to complete the AI and expect completion of the AFH to take 
considerably longer. A commenter stated that its State is considering 
hiring additional staff, reallocating staff resources, and/or 
contracting out, but this will have major budget implications for the 
agency, especially because of the level of specialized experience 
required to administer the tool and analysis.
    Another commenter stated that in the State of Ohio, acquiring and 
evaluating the data would involve a significant obligation of resources 
from at least 11 different State agencies and would require an 
estimated 1,500 hours. The commenter stated that the State of Ohio will 
likely be forced to contract with an outside vendor and could costs 
hundreds of thousands of dollars which will likely have to come out of 
funding for Training and Technical Assistance and administration of the 
State's HUD programs. A commenter stated that the assessment will be 
very expensive, and that the State of Iowa spent $148,000 on a 
consultant to prepare the 2015-2019 Consolidated Plan and Analysis of 
Impediments to Fair Housing and expects the cost to prepare the 
proposed tool to be even greater; with CDBG and HOME programs 
experiencing considerable reductions since 2010. Commenters stated that 
States have fewer administrative dollars to pay for the development of 
such plans. A commenter stated that the Massachusetts Department of 
Housing and Community Development estimates that the time required 
would be at least 5,000 hours of staff time plus approximately $150,000 
in consultation fees.
    HUD Response: HUD appreciates and understands the concerns of these 
commenters. Now that HUD has announced that there will be a second 30-
day comment period relating to the data in and functionality of the 
AFFH-

[[Page 66768]]

T for States and Insular Areas as described above, the public will have 
an additional chance to provide HUD with feedback.
    HUD appreciates the work of its program participants in this area. 
HUD is committed to and will continue to find ways to reduce burden for 
its program participants while still providing for an appropriate fair 
housing analysis and the setting of meaningful fair housing goals. 
Furthermore, HUD will continue to provide training and technical 
assistance to program participants to increase their capacity to 
conduct a meaningful AFH.

Comments in Response to HUD Specific Issues for Comment

    As noted earlier, HUD solicited comment on 6 specific issues. The 
issues and the comments received in response to these issues are as 
follows:

Content of the Proposed State and Insular Area Assessment Tool

    1a. Which approach to the opportunity indicators would be more 
beneficial in eliciting an appropriate fair housing analysis from 
States and insular areas? (That is, more general questions or targeted 
questions)
    Commenters were divided on the approach to take. A few commenters 
stated that they preferred more general questions, as opposed to the 
targeted ones, as proposed by HUD. The commenters stated that more 
general questions would enable States to structure and prioritize their 
analysis as well as discern when it is appropriate to apply a more 
targeted analysis in smaller communities and rural areas. The 
commenters further stated that targeted questions go too far into some 
areas that are only tangentially related to housing. Other commenters 
stated that the targeted questions require an analysis of information 
and polices that are beyond the State's purview, control, and 
understanding. The commenters stated that they would not be able to 
provide meaningful answers to guide program decisions and allocations 
of CDBG funds, so these questions should be eliminated from the State 
tool.
    Another set of commenters supported adding targeted questions 
regarding the five topics proposed by HUD. The commenters suggested 
specific areas of focus within each of these topics: (1) For re-entry, 
the tool should ask about existing laws, policies, and practices that 
help or hinder successful re-entry of members of protected classes to 
housing, employment, education, counseling, and other opportunities; 
(2) for emergency management, the tool should add a question focused on 
emergency preparedness and response for people with limited English 
proficiency (LEP); (3) for public safety, the tool should refer to 
access to housing for women and children encountering or threatened 
with domestic violence; (4) for public health, the assessment tool 
should refer to lack of access to quality, affordable food and should 
ask about the impact of the policies, practices, and resources of 
neighboring states/the broader geographic area.
    HUD Response: HUD appreciates the commenters' feedback on this 
issue. As stated above, HUD has included certain opportunity areas for 
consideration if they arise during community participation. HUD has 
decided to include additional opportunity areas in the ``Additional 
Information'' section of the Disparities in Access to Opportunity 
section of the Assessment Tool and has specified that this portion of 
the analysis is limited to information obtained through the community 
participation process. HUD notes that other categories that are not 
listed may also be identified through the community participation 
process.
    1b. Has HUD captured the appropriate level of information from 
States and insular areas? Are there additional areas of analysis that 
should be included given the areas of responsibility, programs, 
policymaking, and jurisdictions of States and insular areas?
    Several commenters stated that the tool requests an extraordinary 
amount of information that will be extremely difficult for States to 
collect and analyze in a meaningful matter and relies too much on local 
data; some questions are nearly impossible to answer from a statewide 
perspective, such as questions on education policy which will vary from 
district to district and questions on zoning and land use policies. The 
commenters stated that the scope of the proposed tool must be scaled 
back significantly so that State grantees can reasonably conduct a 
meaningful AFH on issues they can meaningfully address.
    Other commenters identified specific targeted questions for 
inclusion. A commenter stated that a discussion of both segregation and 
integration are important, but HUD only asks States to identify groups 
living in these areas; a more meaningful assessment would include case 
studies outlining characteristics, such as favorable policies and 
programs evident in integrated areas. The commenter also stated that 
assessing the demographic trends over time with respect to segregation 
and integration is important, but that it would be valuable to require 
States to identify within areas that experienced a significant 
demographic change, any patterns that can be attributed to laws, 
policies, practices, or market forces. The commenter stated that this 
will aid in identifying local and regional forces that are counter to 
the State's obligation to AFFH. The commenter further stated that while 
it is important for the State's to assess laws, policies, and 
practices, it is also important to review a history of laws, policies, 
and practices that contributed to the demographic patterns currently 
evident in a State because understanding the history of segregation and 
the public policy that shaped it is indispensable to an assessment of 
fair housing. Another commenter stated that States should consider fair 
housing issues affecting protected classes that are protected by State 
fair housing laws--even if those groups are not explicitly protected by 
the Fair Housing Act (e.g., members of the LGBT community, section 8 
voucher holders).
    Another commenter stated that HUD should reconsider the development 
of a de novo tool for States rather than adapting the one created for 
local governments because of the different scales involved. The 
commenter stated that most States are much larger and more 
geographically and demographically diverse than individual communities. 
The commenters stated that States need flexibility in tailoring the 
content of the assessment to ensure that analysis conducted will be 
meaningful and under the authority of state housing agencies. The 
commenters stated that States should have the flexibility to use the 
HUD data at appropriate scales, drilling down into local analysis of 
areas such as opportunity for employment, education, and transportation 
in locations of the State where they are most impactful. The commenters 
stated that many of the opportunity questions in the State Assessment 
Tool should be removed because they are only appropriate at the 
neighborhood level. The commenters stated for a large State, local 
decision making and local policies are the bases for determining 
whether housing is ``fair'' since it is not reasonable to expect State 
residents to move long distances from their current locations to access 
housing opportunities.
    A commenter stated that the tool should instruct State participants 
to examine how State level policies affect fair housing to avoid the 
hazard that AFH may produce a compilation of local level issues while 
failing to

[[Page 66769]]

document meaningful responsibilities of the States and State-level 
structural issues. The commenters stated that HUD should make this 
explicit throughout the guidance, such as: Adding instructions and 
expanding lists in the discussions of contributing factors; inserting a 
paragraph or two that illustrates this in the instructions; adding 
examples of structural State-level goals into the example goals on page 
42; and amending the contributing factor descriptions.
    This commenter also stated that States should be prompted to 
consider the following issues: State tax structures; fiscal systems, 
such as revenue distribution with regard to transportation (i.e., 
highway or transit funding), or funding programs that incentivize 
certain development patterns, e.g., economic development of 
greenfields; laws and regulations in areas that affect redevelopment, 
such as foreclosure, bankruptcy, land banking; State-level laws and 
policies that affect or incentivize zoning and other land use 
structures; administration and funding programs of social services; 
ways that States create barriers or disincentives (or can set goals 
that encourage) regional cooperation among local jurisdictions, as with 
tax-sharing, government consolidation, joint planning and program 
implementation, and shared services; and executive decisions to sign 
into law legislation which prevents local governments from adding 
protected classes to their local fair housing laws.
    HUD Response: HUD appreciates all of the recommendations of the 
commenters. While HUD is maintaining the basic structure of the 
Assessment Tool as outlined by the AFFH Rule, HUD has made significant 
modifications to this Assessment Tool to account for the differing 
level of geography, authority, and role of States. HUD remains 
committed to issuing Assessment Tools that are tailored to each type of 
program participant, appropriate to their roles and responsibilities, 
in a manner that strives to reduce burden, while still achieving a 
meaningful fair housing analysis. Part of this commitment is being 
implemented with the additions of the extended PRA process, including a 
second 30-day comment period on the State level data in the AFFH-T so 
that the public and program participants may see how the data HUD is 
providing will be tailored to the State.
    In response to the comments offering specific suggestions for 
improvements, HUD has made a number of changes. These include amending 
some of the contributing factor descriptions based on these commenters' 
suggestions. For example, HUD has amended the description of ``Land use 
and zoning laws'' so that it is more specific to the role of States. 
HUD also acknowledges the limitations of States in terms of their 
authority or lack thereof imposed by State and local law. HUD has added 
language to the questions and instructions to clarify that States are 
not required to compile inventories of local laws and practices but 
should focus on trends affecting fair housing issues in the State or 
areas of the State.
    In terms of the comments on requiring analysis of entitlement 
areas, HUD has declined to remove consideration of all areas of the 
State, but has made some clarifying modifications. The Assessment Tool 
still requires State wide assessment, including fair housing issues 
across the state, including entitlement areas.
    Nonetheless, HUD believes that in order for the State to set 
meaningful fair housing goals, it must conduct an analysis of the 
entire State. As stated above, States may refer to AFHs of entitlement 
jurisdictions within the state, but should keep the considerations 
mentioned above in mind. Note, States are accountable for the 
information contained in the AFH they submit to HUD.

States With Rural Areas, Tribal Areas and Other Key Differences Among 
States

    2a. Are there particular questions that HUD should include in the 
State and Insular Area Assessment Tool to ensure the appropriate focus 
on rural areas? What sources of information do States have access to 
when considering fair housing issues in rural areas? HUD seek comment 
on any additional questions or additional data that should be included 
and the applicable section of the Assessment Tool to address how States 
and insular areas can assess rural areas.
    Commenters stated that, in most cases there would be little or no 
local data for the balance of the State. Commenters stated that local 
data is likely to be administrative such as public housing units, 
vouchers, and associated geographic and demographic data for those 
units/vouchers and the State does not have access to this data. 
Commenters stated that other possible sources include social services, 
school, and health department data, but the State does not have access 
to this data either and it is unclear at this time how feasible it 
would be to obtain it.
    Commenters stated that the Ohio Poverty Report, published by the 
Ohio Development Service Agency, identifies areas of highest 
concentration of people living in poverty, and these counties have 
predominantly white populations. The commenters asked whether HUD 
considered that these areas are predominantly white, not because of 
discrimination but because minorities do not want to move to areas that 
are limited on employment, transportation, medical care, grocery stores 
and other services. The commenters stated that diversifying these 
counties will ensure fair housing but will not help people rise from 
poverty because these areas are impoverished.
    A commenter stated that HUD should prioritize establishing housing 
in areas with access to services, employment, and medical care and not 
move people away from these services.
    Other commenters stated that county-level maps and data are likely 
to be misleading, particularly in States with large rural areas. The 
commenters stated that data quality and availability is a severe 
impediment to accurate analysis in States with large rural areas, and 
acquiring local data is prohibitively burdensome. The commenters stated 
that the tool should explicitly incorporate flexibility for States to 
determine the appropriate scale for addressing their rural areas. 
Another commenter stated that the characteristics of a small city could 
strongly influence the data value for a county, and thereby 
misrepresent the non-urban portion of that county.
    Commenters stated that HUD data is limited on rural areas and 
therefore States should be able to use their own data instead of HUD 
data. A commenter stated that HUD should provide guidance instructing 
States to consider additional local data for rural areas when 
evaluating the dissimilarity index for rural communities, and should 
provide examples of potential data sources.
    Other commenters stated that rural areas have particular challenges 
regarding data quality with respect to all areas of analysis required 
in the AFH. The commenters stated that the HUD provided data on areas 
of opportunity are not as applicable in rural areas as in urban, and 
said, for example, there is less transit in rural areas so these areas 
would be unfairly biased. The commenters also said that HUD data is 
also biased for quality schools in rural areas since there is usually 
only one choice for school attendance in the area, unlike in an urban 
area, so prioritizing locations based on school quality could dismiss 
many markets who otherwise have significant needs for affordable 
housing. Another commenter stated that it is not clear how States are 
expected to analyze public infrastructure in rural

[[Page 66770]]

areas, and the lack of certain infrastructure that requires higher 
population densities may or may not imply poverty or lack of 
opportunity. The commenters stated that a State cannot use its CDBG or 
HOME funding in HUD direct entitlement/urban areas of the State and 
these are where the population is densest, so the tool will indicate 
the best place for resolving fair housing impediments are in the urban 
areas yet state's federal funding cannot be used there.
    A commenter stated that in rural areas, there are more cases of a 
lack of education on the part of local leaders or business people to 
the needs of fair housing and a lack of ordinances to assist 
development in these areas.
    Other commenters stated that there will be significant differences 
between States that are rural and those with large urban cores or a 
combination of both, but there is not enough information to determine 
how the assessments might be made and how the tool might make these 
distinctions since a fully functioning map tool is not yet available.
    A commenter expressed concern about the specific questions in the 
tool that will apply in a rural context; it is hard to interpret the 
phrase low or high poverty in a rural context when ``neighbors'' may be 
\1/4\ mile or more away from each other. The commenter stated that the 
tool does not contemplate significant differences in States' 
geographic, demographic, organizational, and governance structure. The 
commenter described itself as a State with 159 counties and 188 PHAs 
and diverse geographic areas, and that it is unclear how the analysis 
for rural areas will be achieved.
    Another commenter stated that determining indicators for access to 
opportunity in rural areas will be difficult and in smaller States, 
low-income households tend to live in metropolitan areas in order to 
access what they need if they do not own an automobile. A State 
commenter stated that the template does not define ``low poverty 
neighborhood,'' but requires an analysis of it in both urban and rural 
areas. The commenter stated that this is not realistic for rural areas 
because there is often no data available, even at the local level. The 
commenter stated that the basic needs of rural areas are different from 
urban areas; therefore, analyzing general issues such as employment, 
education, and disaster emergency preparedness does not reflect the 
primary challenges of the State's rural communities.
    A commenter stated that so long as a community provides services 
and resources, people with vouchers should be allowed to use them 
wherever they wish. The commenter stated that by requiring various 
populations to move for the sake of opportunity would mean moving out 
of small town America and require vouchers to be used only in large 
metropolitan areas where we as a nation believe all opportunity exists.
    HUD Response: HUD appreciates the views of the commenters and their 
feedback. HUD acknowledges that data in rural areas presents certain 
challenges for States and is committed to providing technical 
assistance and guidance on how to assess fair housing issues in rural 
areas. In response to comments on the unique needs of rural areas, and 
how State agencies may consider rural issues, HUD has added the 
following language to the instructions:
    ``HUD acknowledges that the HUD-provided data on some opportunity 
indicators, such as transit and jobs proximity index, while potentially 
useful for assessing metropolitan and suburban areas will be less 
applicable for rural areas. State agencies may also need to utilize 
measures that are more relevant for their rural areas. For example, 
water and sewer and the need for basic infrastructure may be 
appropriate and necessary to analyze. Some HUD-provided data may be 
interpreted differently in rural areas and urban areas (e.g., the R/
ECAP thresholds and opportunity indicators). This is not intended to 
result in comparisons between different parts of the state that would 
result in inappropriately setting goals for affordable housing and 
economic development activities. HUD does not intend the analysis to 
limit investment decisions for affordable housing or community 
development in rural areas when compared to other parts of the State. 
HUD programs, including CDBG, HOME and Section 8 play an important role 
in addressing the needs of rural areas. The State's analysis of non-
entitlement areas can inform goal setting within those areas. States 
should take into account the unique housing and economic development 
needs of rural areas in informing their program-related goals.''
    2b. HUD seeks comment on any key areas beyond those HUD has 
presented in the State and Insular Area Assessment Tool.
    Several commenters asked that HUD not add any areas to the tool, 
but rather, reduce the areas of analysis expected of States.
    Another commenter stated that the tool should require States and 
Insular areas to set as many goals as are necessary to address each 
contributing factor. The commenter stated that the tool should clarify 
that inclusionary zoning is a strategy for addressing contributing 
factors rather than a contributing factor itself by including the 
phrase ``lack of'' in front of ``inclusionary zoning'' in the bullet 
list of relevant types of land use and zoning laws. A commenter 
suggests that the definition in the Appendix be changed to reflect 
this.
    Another commenter suggested very specific questions for inclusion 
in the tool. The commenter stated that the tool should ask more 
specific questions about gentrification and displacement, since these 
patterns pose a risk of contributing the re-segregation of city 
neighborhoods; States and Insular Areas play an important role in the 
administration LIHTC and other programs so there is a great deal they 
can do to ensure that revitalizing neighborhoods in cities emerge as 
stable, integrated communities of opportunity in which resident choice 
and autonomy is respected. The commenter also stated that the tool 
should ask specific questions about the administration of relocation 
assistance and the location of replacement housing, particularly 
because States have a unique role in administering federal disaster 
relief and recovery funds. The commenter further stated that HUD must 
include a question about whether a State has a truly ``substantially 
equivalent'' fair housing law in the Fair Housing Enforcement, Outreach 
Capacity, and Resources Analysis, and HUD must ask whether States have 
adopted legislation that limits the ability of local governments to 
protect the fair housing rights of individuals and families. The 
commenter stated that the tool should clarify the definition of 
``substantially equivalent'' in the context of State and Local Fair 
Housing laws by explaining that the Federal Fair Housing Act provides a 
floor and not a ceiling, and they must also have procedures for 
adjudication and enforcement that conform with those under the Federal 
Fair Housing Act. The commenter stated that there is evidence that some 
States do not know what the term ``substantially equivalent'' means, 
and in light of actual or threatened changes to State fair housing laws 
and failure to properly administer programs funded under the Fair 
Housing Assistance Program, it is likely that States are out of 
compliance with their purported substantial equivalency. The commenter 
stated that HUD should provide examples of barriers to fair housing 
present in the procedures or practice of

[[Page 66771]]

enforcing the law. The commenter stated that the tool should provide 
recommendations on use of Fair Housing goals to inform planning 
processes, including examples of relevant goals and steps that can be 
taken to connect fair housing with community and interagency planning.
    HUD Response: HUD appreciates these commenters' suggestions. HUD 
has revised the description of land use and zoning in the Appendix to 
reflect the commenters' recommendations regarding inclusionary zoning. 
HUD also notes that the Assessment Tool previously and continues to 
included questions and contributing factors relating to State or local 
laws that have been determined to be ``substantially equivalent'' to 
state and local fair housing laws. HUD has also revised the questions 
in the Publicly Supported Housing Section, including the LIHTC-related 
questions in response to the recommendations from commenters.
    2c. Does the Assessment Tool adequately take into account, 
including in the terminology used, the issues and needs of Indian 
families and tribal communities while also factoring in the unique 
circumstances of tribal communities?
    A commenter stated that tribal areas should not be required to be 
included as part of any required full State analysis since reservations 
are primarily in remote locations without access to opportunities and 
often have concentrations of poverty, and these areas are sovereign 
nations within the borders of the State and are not required to provide 
the State with data. Another commenter stated that HUD must use 
appropriate indicators to assess fair housing in tribal areas. The 
commenter stated that these areas are likely to score poorly on 
measures such as use of public transportation and concentration of 
poverty. The commenter expressed concern that there will be penalties 
when these areas score low when considering disparities in access to 
opportunity. Another commenter stated that the tool does not adequately 
take into account the needs and issues affecting tribal communities, 
and the tool should focus on infrastructure that will help raise the 
standard of living in these communities.
    HUD Response: HUD appreciates the feedback from these commenters. 
HUD notes that the Assessment Tool does not explicitly require an 
analysis of tribal areas, but notes that inclusion of such an analysis, 
where appropriate and consistent with applicable law would be 
encouraged. If there are areas of analysis States believe to be of 
particular importance with respect to tribal areas, and to the extent 
allowed by law, they can set goals to address these fair housing 
issues, and HUD would encourage States to do so. HUD continues to seek 
comment on the needs and considerations regarding Native American 
reservations and trust lands and the unique government to government 
relationship between Native American tribal governments and the United 
States government. A specific request for public comment on these 
issues is included at the end of this Notice.

Disability and Access

    3. Is the Disability and Access section of the Assessment Tool 
adequately clear such that it includes the analysis of prior sections 
as it relates to disability and access issues?
    A commenter stated that HUD should allow and encourage States to 
structure the disability and access section of the assessment with 
their Olmstead planning efforts by giving flexibility in the format and 
structure of this section. The commenter stated that, for example, 
Minnesota's Olmstead plan established baseline data and demographic 
analysis including segregated setting counts and the State would use 
these baseline data and metrics and subsequent research in its 
Assessment of Fair Housing, where applicable. Another commenter stated 
that in the housing accessibly questions, include language relating to 
State actions to ensure compliance with Federal and State accessibility 
requirements and require a description of pending or settled Olmstead-
related lawsuits, settlements, or other agreements. In contrast to this 
latter comment, a comment stated that the sentence in the Disability 
and Access section, which states--``Include the extent to which 
individuals with disabilities who require accessible housing move out 
of or into the State to obtain accessible housing''--will be difficult 
if not impossible for States to determine this.
    Other commenters stated that HUD should clarify that definitions of 
persons or people with disabilities is consistent with the definition 
of the Americans with Disabilities Act, where an individual with a 
disability is a person who: (1) Has a physical or mental impairment 
that substantially limits one or more major life activities; (2) has a 
record of such an impairment; or (3) is regarded as having such an 
impairment.
    Another commenter stated that while a portion of the tool does 
cover assessing the needs of persons with disabilities, so much of the 
tool correlates to quantitative map results that are focused entirely 
on race and national origin raises concerns that it may be hard for the 
State to defend policy decisions to assist persons with disabilities if 
the same policy decision is not in harmony with the more quantified 
race-based results of the tool. The commenter stated that many of the 
questions relating to disability are highly localized, making State 
policy in this regard more imprecise.
    A commenter stated that the section on disability and access is 
clear as it relates to disability and access issues, but should be 
condensed to include focus areas that the State can really affect 
change in. A commenter similarly stated that local governments also 
have Olmstead obligations. The commenter stated that the Assessment 
Tool for Local Governments and the Guidebook provide little guidance in 
this regard. The commenter recommended that HUD develop additional 
guidance to better ensure that connections are made between the State 
and local governments engaged in AFH planning.
    Another commenter stated that HUD should ask States about the steps 
they take to monitor their publicly supported housing to ensure 
compliance with accessibility requirements and about where accessible 
units are located in relation to areas of opportunity and significant 
amenities. The commenter stated that HUD should omit the question 
asking States to assess whether persons with disabilities have had to 
move out of State to obtain accessible housing.
    A commenter stated that HUD should clarify that ``sheltered 
workshops'' rather than supported employment services raise civil 
rights concerns. This commenter also stated that HUD should clarify 
that the focus of educational opportunities for persons with 
disabilities should be on opportunities in integrated educational 
settings.
    HUD Response: HUD thanks the commenters for these recommendations. 
HUD recognizes that there is a lack of nationally-uniform data related 
to disability compared to other protected characteristics; however, no 
protected class under the Fair Housing Act is more important or more 
deserving of a fair housing analysis than another. HUD will continue to 
explore options for including additional data related to disability.
    HUD has included two questions related to the State's monitoring in 
the Fair Housing Monitoring and Enforcement, Outreach Capacity, and 
Resources section of the Assessment Tool.
    HUD appreciates the numerous comments suggesting clarifying,

[[Page 66772]]

technical and grammatical edits in the Disability and Accessibility 
analysis section, the accompanying instructions and relevant 
contributing factors. In response, a number of clarifications and 
revisions have been incorporated into the assessment tool. For example, 
regarding the commenters' recommendation regarding ``sheltered 
workshops,'' language was added to distinguish such institutionalized 
or segregated settings from other supported employment services that 
are not delivered in such settings. Similar clarifying and technical 
edits were made to the instructions and relevant contributing factors.
    HUD appreciates the other comments and intends to provide further 
guidance in support of the Assessment Tools to assist program 
participants in meeting their AFFH obligations under the Final Rule.

Contributing Factors

    4a. Are there additional contributing factors that should be 
included in the State and Insular Area Assessment Tool that are of 
particular importance for States and insular areas?
    Commenters stated that the following contributing factors should be 
added to the disability and access section: Community opposition, 
location and type of affordable housing, occupancy codes and 
restrictions, private discrimination, access to financial services, 
availability, type, frequency and reliability of public transportation, 
lack of state, regional, or other intergovernmental cooperation, 
admissions and occupancy policies and procedures including preferences 
in publicly supported housing, impediments to mobility, lack of private 
investment in specific areas within the State, lack of public 
investment in specific areas in the State including services and 
amenities, siting selection polices, practices, and decisions for 
publicly supported housing, and source of income discrimination. A 
commenter requested that HUD add the contributing factor of ``Threats 
to affordable housing preservation'' and the commenter provided a 
description of this factor as well. Another commenter stated that 
environmental hazards should be listed as a contributing factor to R/
ECAPs.
    A commenter requested that HUD add ``Access to public space for 
people experiencing homelessness'' as a contributing factor throughout 
the assessment because laws that criminalize the homeless or otherwise 
burden the use, or access to, public space for those without shelter or 
housing a deleterious and segregative impact on living patters and fair 
housing opportunity that is not captured in any of the contributing 
factors. The commenter stated that HUD could create a factor that 
mirrors ``regulatory barriers to providing housing and supportive 
services for persons with disabilities'' to include laws that have the 
effect of restricting provision of services to persons experiencing 
homelessness.
    A commenter stated that HUD should examine and consider the 
potential unintended consequences of major transportation investments 
on land use patterns, and hence housing affordability, since this is an 
area of policy over which States do have some control and some analysis 
tools have already developed. The commenter stated that in many ways, 
the patterns of inequity and segregation that the AFFH rule seeks to 
dismantle are byproducts of transportation policies and plans 
implemented by State agencies, particularly highway departments. The 
commenter stated that it recently completed a research project that 
made sophisticated econometric models of how real estate markets 
respond to transportation projects available within the planning tools 
commonly used to protect future land use conditions. The commenter 
stated that as a result, it is now possible to quantify and compare the 
impacts of alternative transportation plans on housing costs burdens 
and display this information on a map or chart for easy review.
    HUD Response: HUD appreciates these recommendations and has made 
certain revisions to the Assessment Tool in response to the comments. 
HUD has added contributing factors that were included in the Assessment 
Tool to other sections of the Assessment Tool, and has revised some of 
the descriptions of the contributing factors located in the Appendix. 
HUD has also added two new contributing factors of ``Nuisance Laws,'' 
and ``Loss of Affordable Housing.'' HUD has attempted to strike a 
balance between the number of potential contributing factors that are 
listed in each section of the analysis in order to focus on those 
factors that are most likely to pertain to that section while 
considering program participant burden to review each of the listed 
potential factors. Program participants may also consider additional 
contributing factors, including those listed in the appendix or other 
factors that do not appear in the overall list. HUD has also 
incorporated language into the descriptions of certain contributing 
factors relating to survivors of domestic violence and homelessness in 
response to comments received.
    4b. Contributing Factors Comments Generally.
    Commenters stated that the contributing factors are uniquely local 
variables that, by definition, will exert influence in different ways 
in different jurisdictions. The commenters stated that the tool should 
allow States to focus on appropriate scaled State-level contributing 
factors and provide the flexibility to incorporate detailed local level 
analysis if necessary. Other commenters stated that the list of 
contributing factors should be clarified as being examples and certain 
examples related to local polices and laws should be removed, such as 
land use and zoning laws.
    Commenters stated that only nine of the provided contributed 
factors are amendable to broader State analysis: (1) Lack of assistance 
for transitioning of assistance for transition from institutional 
settings to integrated housing; (2) state or local private fair housing 
outreach and enforcement; (3) state or local public fair housing 
enforcement; (4) lack of public investment in specific areas within the 
state, including services or amenities; (5) state, regional, or other 
inter-governmental cooperation; (6) state or local fair housing laws; 
and (7) siting selection policies, practices and decisions for publicly 
supported housing, including discretionary aspects of Qualified 
Allocation Plans and other programs; (8) State or local laws, policies, 
or practices that discourage individuals with disabilities from being 
placed in or living in apartments, family homes, and other integrated 
settings; and (9) unresolved violations of fair housing or civil rights 
law.
    A commenter stated that collecting information on contributing 
factor requires States to collect information that is not readily 
available to them, such as information from school districts, county 
health departments, and public transit agencies.
    Another commenter stated that contributing factors definitions in 
Appendix C are thoughtful and provide clarity as well as actual 
language that may be incorporated into the analysis. A commenter stated 
that in using the definitions in Appendix C, a more robust analysis of 
contributing factors should be required and recommend that rather than 
matching factors to issues, the State should be required to explain and 
analyze why a particular factor contributes to the identified fair 
housing issue.
    Other commenters stated that the nature of the contributing factors 
renders factors outside the authority or feasible control of States; 
zoning bylaws,

[[Page 66773]]

ordinances, policies, and decisions will remain critical gateways and 
potential barriers to housing opportunities in local communities 
regardless of whether the State is willing to allocate housing tax 
credits and/or funding. The commenters stated that some contributing 
factors may be outside the ability of program participants to directly 
control or influence, so HUD should clarify which methodologies would 
be acceptable for identifying the significance of these factors, as the 
tool's instructions require. The commenters stated that if there are no 
standardized methodologies for determining significance and they are 
instead subjective classifications, HUD should remove the reference to 
``significant'' as the term applies to specific statistical benchmarks. 
The commenters also stated that the list of contributing factors 
throughout the tool provide helpful context and examples for the 
States, but the complete list is out of scope with a statewide analysis 
as each area is not applicable or meaningful in every State.
    Another commenter suggested that States play an important role in 
the regulation of land use because State-level laws directly control 
land use and others set the parameters for effective action, and HUD 
should expand the list of examples of land use and zoning in its 
definition of this contributing factor since they are different in kind 
from the types of regulations that local governments use to control 
land use. The commenter stated that, for example, States laws could 
include environmental regulations and coastal preservation laws, and 
State laws that control parameters including zoning enabling acts and 
laws that allow for the appeal of zoning decisions that prevent 
development of affordable housing.
    A commenter stated that the Fair Housing Act does not directly 
prohibit source of income and HUD should not characterize property 
owners' business decisions as ``discrimination'' because such 
characterization ignores the many legitimate reasons property owners 
choose not to participate in the programs.
    A commenter asked whether HUD would accept qualitative bases for a 
State's assertions with respect to the identification of a particular 
factor, or must the State provide data to substantiate the claim that 
the factor is a contributing factor.
    Other commenters requested that HUD remove the contributing factors 
analysis section from the Assessment Tool. The commenters stated that 
this section would require States to conduct an extraordinary amount of 
new research to show whether individual contributing factors have a 
statistically significant impact on specific fair housing issues. The 
commenters stated that otherwise the determinations will be subjective, 
leaving the States vulnerable to liability. The commenters further 
stated that States should not be required to rank contributing factors 
when setting their goals due to the difficulty of proving causation.
    A commenter asked that HUD not add any new contributing factors and 
only retain those that are within the State's power to address. Another 
commenter stated that identifying contributing factors goes beyond the 
skill set of State PHA staff. Another commenter stated that States 
should be required to consider State tax structures, State education 
funding, and State transportation funding as part of contributing 
factors.
    HUD Response: HUD thanks the commenters for their feedback. HUD 
notes that the identification of contributing factors is required by 
the regulation at 24 CFR 5.154(d)(ii). Fair housing contributing 
factors are defined at 24 CFR 5.152 as factors that create, contribute 
to, perpetuate, or increase the severity of one or more fair housing 
issues. Further, goals in an AFH are designed to overcome the effects 
of one or more contributing factors and related fair housing issues, as 
provided in 24 CFR 5.154. Because program participants are required to 
prioritize contributing factors, giving the highest priority to factors 
that limit or deny fair housing choice or access to opportunity, or 
negatively impact fair housing or civil rights compliance, and set 
goals in accordance with that prioritization, it is possible that not 
every contributing factor will have a goal associated with it. However, 
program participants are required to have a goal for each fair housing 
issue that has significant contributing factors.
    HUD will continue to provide guidance and evaluate ways to refine 
the descriptions of contributing factors, and notes that program 
participants are free to consider any additional factors that meet the 
criteria of the definition at 24 CFR 5.152.
    HUD has considered the public comments on contributing factors and 
made certain changes. States, like the other program participants 
subject to the AFFH rule, are required to identify and prioritize 
significant contributing factors as part of their AFH. HUD will 
continue to consider comments relating to the contributing factors, as 
well as the descriptions of contributing factors as included in the 
Assessment Tool for public comment.

Regional Analysis

    5a. HUD is seeking comment on the best approach for States to 
conduct an effective fair housing regional analysis addressing the fair 
housing issues and contributing factors affecting their State. (Region 
throughout the Assessment Tool in specific questions vs. regional 
section).
    Commenters stated that the ability to access and meaningfully 
analyze data beyond the State's boundaries is not feasible. The 
commenters stated that the requirement that States conduct a regional 
analysis where there are ``broader regional patterns or trends 
affecting multiple States'' by analyzing local data and knowledge and 
consulting the existing analyses of impediments (AIs) and AFH's of 
neighboring States and jurisdictions is not achievable without 
additional resources and time.
    Other commenters stated that including regional data should be 
optional for States and States should be able to determine when 
regional perspectives on specific topics or fair housing issues is 
appropriate and relevant, and will enhance the AFH. The commenters 
stated that HUD should not require inter-State analysis as it would 
require the collection and analysis of information from other 
jurisdictions that would significantly increase the burden of 
compliance, and the analysis should only expand outside the 
jurisdiction when applicable. Another commenter stated that if the 
purpose is to assess issues in neighboring States alone, that is fine, 
but if the purpose is to change policy in other State, that this will 
be problematic. A commenter stated that this analysis is more 
appropriate at the local level or possibly at the MSA level that share 
a local policy-making body or mechanism.
    Commenters stated that the currently proposed format that 
incorporates regional analysis throughout the sections is preferable to 
a regional section. The commenters stated that actual placement of the 
questions currently is not problematic; however, only Statewide and 
sub-state analysis should be required when data are provided.
    A commenter stated that the AFFH regulation provides for voluntary 
collaboration among program participants so in this way, a State and 
one or more entitlement jurisdictions could formally coordinate data, 
analysis, and goals in a collaborative effort.
    HUD Response: HUD appreciates the views and recommendations of 
these

[[Page 66774]]

commenters and has clarified where a regional analysis is required in 
the Assessment Tool. As stated above, a regional analysis that extends 
beyond the State is required by the AFFH regulation and is a crucial 
part of an analysis of fair housing issues. A regional analysis is 
important because fair housing issues are often not confined to 
jurisdictional, geographic, or political boundaries.
    5b. HUD seeks comment on whether the proposed format appropriately 
provides for Insular Areas to describe regional fair housing impacts 
without imposing undue burden. HUD welcomes recommendations for 
specific questions tailored to capture regional fair housing analysis 
for Insular Areas while not imposing unnecessary burdens in view of the 
unique characteristics of Insular Areas.
    No comments were received in response to this question.

Data

    6a. Due to limitations of the Jobs Proximity Index at the State 
level, HUD is seeking comment on providing additional types of data 
(e.g., by education level, sector of the economy, race/ethnicity, 
numbers of jobs by location) that might be most useful for States in 
conducting an appropriate fair housing analysis in connection with 
disparities in access to employment opportunities.
    A commenter stated that HUD-provided data is generally limited to 
certain federal housing programs and census data and does not address 
other sources of data relating to education, transportation, jobs, and 
environmental health. Other commenters stated States cannot determine 
the labor market index and other information would be of assistance, 
which would include basic statistical facts, sample size, margin of 
error, level of significance, standard deviation and other guidance in 
understanding the meaning and limits of the indices provided.
    Other commenters stated that each of the opportunity indicators 
would require a tremendous amount of work to analyze, and the 
commenters asked what constitutes an area of opportunity.
    Another commenter stated that its contracted consultants examined 
the indices and the only index that was considered applicable at the 
state level was the School Proficiency Index.
    Other commenters recommended that HUD either provide its own 
complete data on disparities in access to opportunity to States that 
can be used in the development of the AFH, significantly change its 
expectations on the extent of analysis of the basic opportunity areas, 
or delete this requirement. The commenters stated that if HUD is going 
to require the analysis of school assignment policies, criminal justice 
diversion and post incarceration reentry services, it must provide data 
related to these areas. The commenters stated that, at the very least, 
HUD should be providing data on direct housing issues, such as 
foreclosures and evictions.
    Commenters asked that HUD consider using ACS commute time and 
section and income by location for evaluating employment opportunities. 
The commenters stated that in many rural areas, the number of jobs in 
the immediate market area is not a clear indication of economic 
opportunity as residents travel long distances to work. The commenters 
stated that ACS data includes data on commute time that may be useful 
in describing the economic opportunities available. The commenters also 
stated that HUD should not be using the untested Jobs Proximity Index 
for non-entitlement jurisdictions--measuring the location of jobs is 
not appropriate in rural areas or small cities.
    HUD Response: HUD appreciates the views and recommendations of the 
commenters. HUD will continue to evaluate how it can improve its 
provision of data with respect to disparities in access to opportunity, 
but at this time is making no changes to the opportunity data it is 
providing. HUD notes that where program participants have local data 
that meet the criteria set forth at 24 CFR 5.152 and the instructions 
to the Assessment Tool they must use such data. Local data and local 
knowledge, including information obtained through the community 
participation process, may be particularly useful in assessing 
disparities in access to opportunity.
    6b. What data are available to States and Insular Areas, including 
data at the local level, that would be relevant and most helpful to 
States and Insular Areas in conducting their respective analyses of 
fair housing issues and contributing factors in their jurisdiction and 
region?
    Commenters stated that States should have flexibility to determine 
when including fine-scale local data is appropriate. The commenters 
stated that the State's assessment will result in aggregated county 
data that will not identify the neighborhood disparities that exist in 
smaller communities. Another commenter stated that since counties 
encompass various types of smaller jurisdictions, such as cities, 
villages, and unincorporated rural areas, it will be difficult for a 
State to evaluate how different sets of sub-county data influence the 
overall county data value, and a single small city can strongly 
influence the data value for a county and thereby misrepresent the non-
urban portion of the county. Other commenters sated that States should 
be allowed to use their own data to complete the tool and HUD data 
should be optional since state data may be more representative of the 
State's true characteristics.
    Several commenters stated that HUD should require States to seek 
out and use sub-State data and knowledge relating to individuals with 
disabilities. The commenters stated that States should also be required 
to use national data available on persons with disabilities 
experiencing homelessness form HUD's Homeless Management Information 
System, and data from the Money Follows the Person program available 
from the Center for Medicare and Medicaid Services. The commenters 
stated that HUD should also include data on persons with disabilities 
living in nursing facilities and intermediate care facilities for 
individuals with developmental disabilities (available from CMS). The 
commenters further stated that States should be required to gather 
information on individuals with disabilities, consult with disability 
rights/advocacy organizations, Centers for Independent Living, 
Qualified Fair Housing Organizations, local HUD offices, local Fair 
Housing Assistance Program (FHAP) offices, and other relevant 
government and non-profit organizations.
    Commenters stated that the State would need to request data from a 
large number of agencies, which would be a lengthy, difficult process. 
The commenters stated that the State would not want to apply the data 
in a manner that creates conflict between the AFH and other planning 
processes for which the agencies originally collected the data. The 
commenters stated that not all data collected by other agencies may be 
easily included at the regional level, and that some data would be 
included by reference to existing reports or plans rather than analyzed 
as raw data.
    A commenter stated that the State has data relating to employment, 
poverty, and disadvantaged communities at the county level, but that 
the State lacks data for urban and rural areas. The commenter stated 
that the State does not have data relating to emergency preparedness, 
public safety, and prisoner reentry, as this data is not available for 
State housing agencies. The commenter stated that to obtain would 
require cooperation of many state agencies.

[[Page 66775]]

    HUD Response: HUD thanks the commenters for these recommendations. 
HUD notes that where program participants have local data that is more 
current or accurate than the HUD-provided data and wish to use that 
data instead of relying on the HUD-provided data, program participants 
may use such data and explain why it is more useful than the HUD-
provided data. Additionally, HUD notes that program participants need 
only use local data and local knowledge when they meet the criteria set 
forth at 24 CFR 5.152 and the instructions to the Assessment Tool.
    HUD has also included in the instructions to the Assessment Tool 
some of the examples of sources of local data provided by commenters, 
such as Federally-funded independent living centers, among others, that 
might be useful to program participants when conducted an AFH.
    6c. Data Comments Generally.
    Commenters stated that the maps are very vague and unclear as to 
what information they are trying to convey, and the directions on how 
to use the information is confusing and hard to navigate. The 
commenters stated that the data and maps are not useful as presented. 
The commenters stated that HUD should ensure that the Data and Mapping 
Tool has incorporated the data and maps for States before the 
subsequent re-issuance of the Draft State Tool for the upcoming 30-day 
comment period. The commenters stated that, without access to that 
tool, only the following recommendations respecting data can be made: 
Ensure that counties and R/ECAPs are clearly labeled on the maps; 
provide the same level of detail for Housing Credit- and USDA-financed 
housing as provided for HUD-financed housing; ensure that demographic 
data can be interpreted at the county level; provide CBSA and county 
level data. The commenters stated that the data and mapping tool should 
include the ability to select and overlay layers (comparing multiple 
maps) and should provide county and CBSA data tables. The commenters 
stated that without an active tool with which to engage, any assessment 
cannot be fully complete, and the commenters stated the they therefore 
cannot and do not know what technical issues will arise. The commenters 
stated that they would like to avoid having to upload multiple 
attachments into the system.
    Commenters stated that collecting the data required to provide 
meaningful explanations would be extremely challenging at best and 
although States are not required to collect primary data they are 
uncertain of how to compile the information for the assessment without 
doing so. The commenters stated that while the notice says States are 
not required to collect primary data, it is unclear how States will 
otherwise acquire local data besides administrative data sources. The 
commenters further stated that even though collecting primary data is 
not required, it would require time consuming and costly surveys to 
amass the other primary qualitative data to conduct analyses in areas 
such as education.
    The commenters stated that HUD supplied data should only include 
non-entitlement data to auto-populate the tool, because if State 
grantees operating on ``balance of State'' programs have to draw 
conclusions for non-entitlement rural and suburban areas based on data 
that includes entitlement jurisdictions not eligible for State 
programs, the assessment will be inaccurate for this area and 
conclusions could be incorrect.
    Several commenters stated that HUD provided data should include a 
margin of error so that States can see if the information is 
statistically valid; if it is not valid, States should be able to use 
other resources. The commenters stated that inaccurate data could 
result in fair housing complaints against the State in which States 
would have to expend considerable public resources to present more 
accurate data in its defense. The commenters stated that by the time 
the commenter's AFH is due, the information in the 2010 Decennial 
Census will be almost 10 years old, calling into question the validity, 
adequacy, and accuracy of the data as a basis of analysis and 
heightening the need to rely on local data, increasing the burden on 
States; the American Community Survey (ACS) also has high margins of 
error.
    A commenter stated that HUD must ensure that the data it provides 
is accurate, meaningful, and user-friendly. Another commenter stated 
that the ACS data contains margins of error that increase conversely 
with sample size, making the data difficult if not impossible to rely 
on for smaller states. The commenters expressed concern about HUD-
provided data's completeness and statistical relevance. The commenter 
stated that the tool utilizes shape files in the mapping portion, so 
HUD should publicly share those to allow for GIS data integration with 
participating jurisdictions.
    Several commenters stated that while the AFFH final rule defines 
``local data'' and ``local knowledge'' as readily available information 
that requires little to no cost to obtain, the rule also notes that 
local data may be more relevant and current than HUD-provided data and 
requires program participants to supplement HUD-provided data with 
local data when it is relevant and easily obtainable. The commenters 
stated that this creates an expectation of analysis, instead of an 
allowance of, local data without considering the enormity of data that 
is available to States through a reasonable amount of searching the 
Internet alone. Commenters stated that jurisdictions with strong 
affordable housing and academic research communities that provide a 
wealth of information at little to no cost are penalized because they 
have a higher burden of reviewing and analyzing locally available data 
since more high quality data is available.
    Commenters stated that absent dedicated funding from HUD, a State 
is unlikely to be able to analyze and properly present local data in a 
matter consistent and relatable with other components of the tool, nor 
can State housing agencies adequately compile and analyze local data 
that is available at little to no cost with respect to the non-housing 
elements that the tool instructs States to analyze. Commenters stated 
that without HUD provided guidance to its grantees and the public 
regarding the extent to which local data must inform conclusions and be 
displayed within the AFH, States are vulnerable to complaints even 
where HUD considers a State to have met its burden; oral comments from 
HUD staff are not sufficient and States will expend more resources 
defending complaints, as will HUD in processing such complaints.
    A commenter stated that counties do not represent regions in 
Massachusetts, and HUD should provide user-friendly data that allows 
States to disaggregate and aggregate at levels other than the ``subs-
state areas'' identified in the explanation maps and tools published 
with the tool.
    Other commenters stated that all data should be available through 
tables instead of only time-intensive zooming on maps. A commenter 
stated that the Table 10-1, entitled ``R/ECAP and Non-R/ECAP 
Demographics by Publicly Supported Housing Program Category,'' is 
unclear as currently presented and it seems that there is likely 
crossover among the categories as presented. The commenter stated that 
for the sake of clarity, each protected category should be included as 
a separate, distinct table.
    Another commenter requests that HUD provide underlying data for 
maps and tables, such as actual figures behind R/ECAPS and ECPAs, in a 
user-friendly format so that States can refine their analysis as needed 
without incurring undue consulting costs.

[[Page 66776]]

    Commenters stated that HUD should grant States the flexibility to 
use HUD-provided county data, tract level data, or locally supplied 
data as appropriate. A commenter stated that, for example, educational 
access is not a meaningful indicator at the county level, and while the 
local level (tract based) is more appropriate, the State would utilize 
data directly from its department of education.
    Other commenters stated that baseline demographics data provided at 
the State, county, and user identified sub-State area will be valuable 
in capturing trends for protected class populations. Another commenter 
stated that the sample maps relating to certain demographic information 
such as race, limited English proficiency (LEP) populations, persons 
with disabilities, and poverty seem to be straightforward and commenter 
should be able to easily utilize these maps to answer basic questions 
in the AFH Tool.
    Several commenters stated that it is imperative to be able to group 
counties or areas into sub-States because participating jurisdictions 
are at both the county and municipality level, so the sub-State regions 
must be able to be created by groups of counties that exclude specific 
municipalities. The commenters stated that these sub-State areas should 
be able to be saved so States do not have to create them each time does 
it does analysis.
    Another commenter stated that sub-State areas should be required 
rather than optional, and another commenter suggests that if sub-State 
areas are not used, the State or Insular area should have to explain 
why it is unnecessary. The commenter stated that the tool's prompt that 
States and Insular Areas explain the rationale for their selection of 
sub-State areas should not be a disincentive for the creation of such 
areas. The commenter stated that the instructions should be expanded 
upon to provide criteria for the selection of sub-State areas, 
including but not limited to the contours of regional housing markets 
and common demographic, economic, and housing characteristics across 
contiguous rural markets. Another commenter requested that the data and 
mapping tool have the capability to group data based on the selection 
of numerous counties to build sub-State areas. A commenter suggested 
that breaking down a State into sub-State areas may be necessary to 
conduct a meaningful analysis even in small States because housing 
markets are not organized along state lines, and the demographics in 
regions within States may vary considerably thus complicating any 
analysis of segregation and integration based on HUD's definitions.
    A commenter stated that the dissimilarity index and opportunity 
indicators are not applicable to analyses at the county or State level 
since these metrics are locally based and indexed against a national 
average. The commenter stated that indices should either be flexible to 
benchmark against a State average or the data should be made available 
in raw form for States to evaluate.
    Commenters stated that evaluating R/ECAP at the State level is not 
applicable as not all R/ECAPs are in similar markets or have similar 
circumstances, and that, if such an analysis is required, States should 
be able to remove tribal census tracts from the evaluation.
    Commenters stated that dot density maps are more applicable to 
census tract level as they are smaller geographies with standardized 
population totals, and therefore dot-matrix maps are of limited use for 
States.
    Several commenters stated that in the past, data provided by HUD 
has been error prone and the commenter stated that HUD must take steps 
to address quality issues. The commenters stated that States should 
have the authority to use locally produced data as necessary to ensure 
quality and consistency, and that for LIHTC, HUD should reference data 
submitted to the agency by State housing finance agencies pursuant to 
HERA requirements. The commenters stated to the extent that HFAs retain 
similar occupancy data at the development level, States should use this 
information if it readily available in circumstances where more 
granular analysis of LIHTC is appropriate. The commenters stated that 
HFAs have reported that they have serious concerns about the 
reliability of Placed in Service (PIS) data, and HFAs are unable to 
remove properties that are no longer active LIHTC properties from the 
PIS database.
    A commenter stated that it would like to evaluate how the PIS 
database actually works in the mapping tool. Another commenter stated 
that States should not be required to look at data dating back to 1990 
because of the fluidity of data and there needs to be more flexibility 
that streamlines the historic look back of data. The commenter further 
stated that the data is already outdated generally because conditions 
on the ground are constantly changing. The commenter stated that a 
longitudinal analysis of demographic patterns is not a productive use 
of time and resources.
    Commenters stated that the tool requires States to comment, 
correlate data, and make specific findings regarding the impact that 
policies of other State agencies have on fair housing issues. The 
commenters stated that these policies include education, jobs, and 
transportation, and these policies are driven locally by the needs of 
communities.
    A commenter stated the limits of HUD provided and local data will 
make meaningful analysis difficult at best, instead, States will just 
be restating the obvious--that in more urban areas there are both some 
race and poverty concentrations.
    A commenter stated that the School Attendance Boundary Information 
System, on which the school proficiency index is based, has not been 
funded and the project has ended so no future data releases are 
planned. Another commenter urged HUD to reinstitute funding to School 
Attendance Boundary Information System (SABINS) or use a comparable 
ongoing service to ensure data reliability. A commenter stated that HUD 
should provide all disability data by age group.
    Another commenter stated that States do not necessarily have 
agreements or ongoing arrangements with most of the likely sources for 
local data. The commenter stated that even large States do not have the 
capacity to collect, analyze, store, and report it. The commenter 
stated that it is also unclear how States will be able to collect 
``primary data'' beyond the administrative ``secondary data.'' The 
commenter also stated that it is assumed that surveys, input sessions, 
consultation, and other methods are all primary qualitative data, which 
would be very expensive to conduct.
    Commenters stated that States have raised concerns about the 
accuracy and integrity of PIC data, and, stated that due to HUD's lack 
of transparency concerning this data, those concerns remain unresolved. 
HUD should provide states access to the raw datasets.
    A commenter stated that the segregation analysis should not rely 
solely on the dissimilarity index and HUD should include the ``exposure 
index'' and the ``race and income'' index. The commenter stated that 
these indices are necessary to provide a complete picture of 
segregation within an area, and that using the dissimilarity index 
alone can present a distorted picture of segregation.
    Another commenter stated that the mapping of R/ECAPs does not align 
with the 2013 Chicago Region Fair Housing and Equity Assessment, and 
that the data used for that assessment,

[[Page 66777]]

there are R/ECAPs that do not appear in the AFH mapping.
    A commenter stated that the HUD provided data is unwieldy and hard 
to understand. The commenter stated that the level of sophistication 
required is at odds with the emphasis on public participation. The 
commenter stated that HUD should remember that employees of PHAs, 
especially QPHAs, will have to stretch their work-related skill set in 
a new way to complete an AFH. A commenter stated that the map legend 
with varying shades of grey that are close in color are difficult to 
cross reference. The commenter stated that maps would be easier to read 
if there was more variance in the color by use of multiple colors.
    HUD Response: HUD appreciates and understands the commenters' 
concerns about not being able to test the AFFH Data and Mapping Tool 
with respect to State-level data. For that reason, as stated above, HUD 
has announced that there will be a second 30-day comment period 
relating to the data in and functionality of the AFFH-T for States and 
Insular Areas. The public will have an additional chance to provide HUD 
with feedback.
    As previously stated, HUD only requires that program participants 
use local data and local knowledge when they meet the criteria set 
forth at 24 CFR 5.152 and in the instructions to the Assessment Tool. 
Additionally, as noted above, HUD requires that States conduct a fair 
housing analysis of the entire State, but States may rely on the AFH of 
local governments. As stated above, States are accountable for 
compliance with the regulatory requirements for their AFHs. States 
should ensure that they agree with any other analysis used. Also noted 
above, States will have flexibility to zoom in or out of various scales 
of geography when conducting their analysis, but the data provided will 
be focused at the county level.
    HUD will continue to evaluate the suggestions made by commenters 
with respect to the HUD-provided data, and will continue to provide 
guidance and technical assistance to program participants as they use 
the HUD-provided data to conduct an AFH.

State or Insular Area Collaboration With Qualified PHAs (QPHAs)

    7a. Do other program participant contemplate collaborating with a 
State or Insular Area on an AFH? Do States and/or Insular Areas and 
QPHAs anticipate collaborating on a joint AFH? If not, are there ways 
HUD could better facilitate collaborations between States and QPHAs?
    A commenter stated that States would be a natural partner for the 
QPHA and it would be mutually beneficial. However, several commenters 
stated that the amount of coordination for collaboration presents 
serious challenges. The commenters stated that States should be 
required to take the lead in the process, contact and work with the 
QPHA since the State has the most experience in producing these types 
of plans. The commenters stated that the responsibilities of each need 
to be clearly stated as well as the timeline for required work to be 
started, public hearing requirements, deadlines for submission, etc. 
The commenters stated that significant State grantee resources 
including staff, technical assistance, expense, and time would be 
required to facilitate collaboration with small PHAs, and States do not 
have authority or management responsibilities relating to PHAs. The 
commenters stated that to successfully collaborate, better guidance and 
interpretation from HUD is needed on how to coordinate timing with 
multiple PHAs on different cycles. The commenters stated that this 
would be an enormous burden with respect to time, coordination, and 
monetary costs.
    Another commenter states that while it provides QPHAs with data and 
some analysis if they request it, conducting an AFH with specific 
analysis for QPHAs would be an unreasonable administrative burden. The 
commenter stated that a State is concerned that it would not only be 
taking on the work, but the potential liability of any perceived faulty 
conclusions were made. The commenter further stated that conclusions 
made at the State level are not necessarily going to be consistent with 
the conclusions at the localized QPHA level, causing confusion.
    A commenter expressed appreciation for the provisions for the State 
to include the PHAs under its consolidated planning authority, but 
stated that because of the distance and differences among PHAs the 
results of the analysis will be less than desirable.
    Several commenters identified individual States that would not be 
collaborating with QPHAs on a joint AFH because the State does not have 
an ongoing funding relationship with the QPHAs in the state, nor is the 
State involved in their operation or administration. The commenters 
stated that the State will consult with the PHAs that certify 
consistency with the State's plan, but not collaborate. The commenters 
stated that collaboration with QPHAs would impose substantial costs on 
states because they would inevitably serve as the lead entity and would 
therefore have to contribute significant resources on the collaboration 
on top of conducting its own AFH analysis; in some cases, the QPHA 
would lack the capacity to undertake the analysis or gather local data 
and the State would have to do it for the QPHA. Virginia has 
approximately 15-20 qualified PHAs and the State does not have an 
ongoing relationship with the housing authorities. Significant State 
resources, including staff, technical assistance, and time would be 
required to facilitate these collaborations. In Delaware, both PHAs 
meeting the criteria for QPHAs have ongoing relationships with 
entitlement jurisdictions and collaboration between these two entities 
would be more appropriate, as the State has little contact with either 
PHA. Another commenter adds that this would be redundant since PHAs 
have to conduct their own AFH. It is impracticable to expect States and 
QPHAs to collaborate on a joint AFH.
    A commenter stated that including small PHAs in a State grantee AFH 
should be strictly optional. Other commenters stated that the tool does 
not make clear that collaboration with QPHAs is optional. HUD should 
ensure the tool makes clear that States are only required to answer 
questions related to QPHAs if they enter into partnerships with those 
entities.
    Another commenter asked whether a State that is also a PHA be 
included as QPHA regardless of voucher volume and be able to be 
collaboratively included in the State tool if the state desires.
    A commenter stated that it has 328 QPHAs, and even if one-third 
wish to collaborate, as HUD estimates, there does not seem to be a 
decrease in the analysis required for QPHAs, only additional burden for 
the State to provide data and research to these entities. The commenter 
stated that there is no incentive to collaborate unless the QPHAs are 
bound to allocate some portion of their units based on the State-wide 
goals.
    Another commenter stated that the State is interested in exploring 
the possibility of collaborating with some or all of its QPHAs, but it 
is unclear of the implications for the level of analysis when 
collaborating with QPHAs. The commenter stated that the State is 
concerned it will be required to examine local fair housing issues for 
the QPHA's jurisdiction at a level that is not consistent with state-
level program administration.
    A commenter stated that QPHAs do not intend to collaborate with 
States, that QPHAs are concerned about

[[Page 66778]]

establishing relationships with the States, even if States were to 
conduct the necessary regional analysis for QPHAs. The commenter stated 
that QPHAs are concerned about the extent to which States will even 
want to collaborate with them. The commenter stated that States 
expressed this hesitation, and that coordination will be difficult and 
QPHAs have concerns about states' abilities to conduct the AFH.
    HUD Response: HUD appreciates the feedback it received from 
commenters on whether States and QPHAs anticipate collaborating on a 
joint or regional AFH. HUD will continue to provide the QPHA insert for 
use by QPHAs in order to facilitate joint collaborations.
    7b. How can the State and Insular Area Assessment Tool facilitate 
collaboration with QPHAs and strive to ensure the State's or Insular 
Area's analysis of the entire State or Insular Area provides a 
sufficiently detailed analysis to inform the QPHA's fair housing 
analysis and goal setting?
    Commenters stated that financial resources to make collaboration 
feasible, programmatic incentives, such as a streamlined AFH for States 
that collaborate with QPHAs would be beneficial. The commenters stated 
that adequate data must be provided both at and beneath the county 
level (a real challenge in rural areas), and that without this data, 
the QPHA context cannot be feasibly addressed.
    A commenter asked HUD to consider offering funds to interested 
States willing to pilot the concept of State/QPHA collaboration.
    Another commenter suggested that HUD streamline questions asked of 
States making it easier for both states and QPHAs to finish their 
respective sections of the AFH tool in a timely manner. The commenter 
stated that HUD should require that States provide all due assistance 
to QPHAs that may need it to complete their AFHs.
    A commenter stated that since the State Assessment Tool maps and 
data are at the State level, it would not be feasible or appropriate to 
require the type of granular analysis individual PHAs would need in 
order to inform their own fair housing analysis and goal setting.
    Another commenter stated that coordination with PHAs would not be 
an efficient use of government resources as it would duplicate HUD 
efforts in reviewing PHA AFHs and enforcing PHA obligations to 
affirmatively further fair housing. The commenter stated that under the 
final rule, PHAs that jointly participate with other PHAs in the 
creation of AFH must seek certification of consistency with the 
consolidated plan of either the local government or State governmental 
agency in which the PHA is located, which will burden the States by 
requiring them to review and evaluate large numbers of jointly prepared 
AFHs on the local level.
    HUD Response: HUD appreciates the recommendations of the 
commenters. HUD notes that collaboration can result in a reduction of 
burden and cost savings for the program participants involved, and 
provide for a more robust fair housing analysis and regional solutions 
to fair housing issues. HUD also notes that the AFFH Data and Mapping 
Tool is expected to allow for different types of program participants 
to access the data at various levels of geography appropriate to their 
required level of analysis. Finally, HUD reminds program participants 
and the public that collaboration is entirely voluntary and the program 
participants may divide work as they choose should they enter into a 
collaboration to conduct and submit a joint or regional AFH.
    In response to the numerous comments received on the topic of joint 
collaborations, including with QPHAs, HUD has made a number of changes 
to this Assessment Tool, as well as the Assessment Tool for Local 
Governments and the Assessment Tool for PHAs. HUD has also made the 
commitment to issue a fourth Assessment Tool for use by QPHAs, 
including for joint collaborations between QPHAs.
    7c. Given that HUD currently intends to focus States on thematic 
maps at the county or statistically equivalent level, how can the 
Assessment Tool facilitate collaboration with QPHAs by ensuring the 
State's analysis of the entire State provides sufficiently detailed 
analysis to inform the QPHA's fair housing analysis and goal setting?
    A commenter stated that this sort of collaboration is unrealistic. 
The commenter stated that to facilitate collaboration with QPHAs by 
ensuring the State analysis of the entire State is detailed enough, HUD 
would have to provide all data for the QPHA's service area, as well as 
the county in which the QPHA is located.
    HUD Response: HUD appreciates the feedback from this commenter and 
notes that the AFFH Data and Mapping Tool is expected to have added 
functionality, which will allow program participants to access the data 
at various levels of geography. HUD believes this functionality will 
further facilitate collaborations between States and program 
participants at lower levels of geography. It is HUD's intention to 
provide data for QPHAs that is relevant to the QPHA's required 
analysis. Note that a complete State analysis is expected to fulfill 
the required regional analysis for a QPHA.
    7d. Is the organizational structure the most efficient and useful 
means of conducting the analysis or whether these questions should be 
inserted into the respective sections of the Assessment Tool to which 
they apply?
    A commenter stated that if States and QPHAs decide to collaborate, 
then a separate section seems appropriate. Another commenter expressed 
its support for the organizational structure of the assessment tool 
with respect to QPHAs. The commenter stated that the part of analysis 
that QPHAs are responsible for should be kept separate from the other 
sections of the assessment tool.
    HUD Response: HUD appreciates these commenters' feedback and has 
retained the QPHA insert as a separate section of the Assessment Tool. 
In the Assessment Tool, HUD has noted that the Small Program 
Participant Insert is only to be completed when either: (1) A local 
government that received a CDBG grant of $500,000 or less in the most 
recent fiscal year prior to the due date for the joint or regional AFH 
collaborates with a local government that received a CDBG grant larger 
than $500,000 in the most recent fiscal year prior to the due date for 
the joint or region AFH; or (2) A HOME consortia whose members 
collectively received less than $500,000 in CDBG funds or received no 
CDBG funding partners with a local government that received a CDBG 
grant larger than $500,000 in the most recent fiscal year prior to the 
due date for the joint or region AFH.
    For small program participants in the same CBSA as the lead State, 
the analysis is intended to meet the requirements of jurisdictional 
analysis while relying on the lead State to complete the regional 
analysis. For small program participants whose service area extends 
beyond, or is outside of, the lead State's CBSA, the analysis must 
cover the small program participant's jurisdiction and region. Small 
program participants should refer to the Contributing Factors listed in 
each section above and will have to identify Contributing Factors. 
Small program participants must also identify any individual goals.]

Insular Areas

    HUD received no comments in response to the following questions:
    8a. How can HUD assist insular areas to complete an AFH in terms of 
providing data, or where data is lacking, are there areas where HUD can 
provide

[[Page 66779]]

further assistance or guidance for insular areas?
    No comments were received in response to this question.
    8b. To what extent will insular areas be able to use the Assessment 
Tool to analyze fair housing issues and contributing factors and set 
goals and priorities without HUD-provided data?
    No comments were received in response to this question.
    8c. Are there ways in which HUD could adapt the Assessment Tool for 
insular areas? To what extent do insular areas have access to local 
data and/or local knowledge, including information that can be obtained 
through community participation, that could help identify areas of 
segregation, R/ECAPs, disparities in access to opportunity, and 
disproportionate housing needs where the HUD-provided data may be 
unavailable?
    No comments were received in response to this question.

Small Entities That Collaborate With States

    9a. Will collaboration with a State in conducting an AFH using the 
Assessment Tool reduce the burden that a small entity such as a QPHA 
would otherwise have in conducting an individual AFH?
    Commenters stated that PHAs have no staff hours to contribute to 
this undertaking. Other commenters stated that QPHAs that do not serve 
metropolitan areas should be exempt from the requirement. The 
commenters stated that since the goal of including small PHAs into a 
State grantee AFH is to remove AFH responsibility for small PHAs, a 
reasonable solution is to waive the AFH requirement for small PHAs 
altogether.
    Other commenters stated that HUD does not appear to be making a 
significant reduction in administrative burden. A commenter stated that 
in its State, in addition to the 328 QPHAs in the State, there are 79 
entitlement communities, of which 38 received less than $1 million in 
CPD funds for FY 2015. The commenter stated any reduction in burden for 
the QPHA is not actually a reduction in burden, but a shifting of 
burden to the State.
    HUD Response: HUD appreciates the suggestions from these commenters 
and will continue to evaluate how HUD can reduce burden for small 
entities and States that wish to collaborate. HUD has also developed an 
insert for local governments that received $500,000 or less in CDBG in 
the most recent fiscal year prior to the AFH submission to help allow 
for collaboration with a State should they choose to collaborate. HUD 
notes that it will create another assessment tool, specifically 
designed for use by QPHAs. The streamlined set of questions for smaller 
consolidated planning agencies will help facilitate joint partnerships 
with state agencies using this assessment tool.
    9b. To what extent do small entities, such as QPHAs, expect to rely 
on outside resources such as a consultant in conducting a collaborative 
AFH with a State?
    HUD received no comments to this question.

PHA-Specific Comments

    HUD received the following PHA-specific comments.
    A commenter stated that PHAs lack control over school policies, 
access to employment opportunities, access to transportation, or 
services for or distribution of persons with disabilities.
    Another commenter stated that PHA jurisdictional data should be 
gathered from Census data and information HUD has from PIC. The 
commenter stated that PHAs do not have access to information about most 
facilities except what they own and manage.
    Another commenter stated that, as a rural PHA serving 15,000 square 
miles, with communities that do not have any concentrations of a 
particular class, or race, or household type, the AFH will not 
affirmatively further fair housing. The commenter stated that it has 
vouchers in apartment buildings, trailer houses, and single-family 
homes scattered throughout these communities. The commenter stated that 
efforts should continue to be used on convincing landlords and property 
managers to work with our program to make units available to voucher 
holders. The commenter stated that a PHA mostly serves the elderly and 
persons with disabilities who appreciate the quality of life offered by 
small towns.
    Another commenter stated that it appears HUD is expecting PHAs to 
be versed in areas outside the public housing arena, such as 
demographic trends, laws, policies and practices involving other 
programs, and asked how is a PHA supposed to know about school 
enrollment policies?
    A commenter stated that in the ``Fair Housing Analysis of Rental 
Housing'' section, HUD will need to list the specific protected classes 
envisioned for analysis here. The commenter stated that there are 
certain protected classes with optional self-identification such as 
race, but other protected classes, such as religion, disability, and 
national origin may not be collected by PHAs. The commenter stated that 
it is important that residents feel secure and that PHAs do not 
unintentionally create requirements that perpetuate discriminatory 
practices.
    Another commenter asked whether State PHAs are supposed to complete 
the QPHA questions, and that, if so, HUD must describe in greater 
detail the expectations for State PHAs. The commenter stated that if 
this is required, the work necessary to complete the QPHA questions 
will require a contractor, and the commenter stated that its State has 
over 100 QPHAs, so this would be burdensome.
    Another commenter stated that since the tool does not take 
resources into account, PHAs are forced to prioritize fair housing 
activities, and consequently the tool ignores real-world constraints 
under which these entities operate.
    HUD Response: HUD appreciates these comments relating to PHAs. HUD 
will continue to evaluate the scope of the analysis required of PHAs, 
including how PHAs serving rural areas can conduct a meaningful fair 
housing analysis. HUD also appreciates the comment relating to the 
inclusion of protected class with respect to the Fair Housing Analysis 
of Rental Housing. HUD is continuing to evaluate this recommendation. 
Finally, HUD notes that the QPHA insert is intended for use only by 
PHAs that are QPHAs. State PHAs may only use this insert if they are 
conducting a joint or regional AFH with the State and are QPHAs.

V. Overview of Information Collection

    Under the PRA, HUD is required to report the following:
    Title of Proposal: State and Insular Area Assessment Tool.
    OMB Control Number, if applicable: N/A.
    Description of the need for the information and proposed use: The 
purpose of HUD's Affirmatively Furthering Fair Housing (AFFH) final 
rule is to provide HUD program participants with a more effective 
approach to fair housing planning so that they are better able to meet 
their statutory duty to affirmatively further fair housing. In this 
regard, the final rule requires HUD program participants to conduct and 
submit an AFH. In the AFH, program participants must identify and 
evaluate fair housing issues, and factors significantly contributing to 
fair housing issues (contributing factors) in the program participant's 
jurisdiction and region.
    The State and Insular Area Assessment Tool is the standardized 
document designed to aid State and Insular Area program participants in 
conducting the required assessment of fair housing issues and 
contributing

[[Page 66780]]

factors and priority and goal setting. The assessment tool asks a 
series of questions that program participants must respond to in 
carrying out an assessment of fair housing issues and contributing 
factors, and setting meaningful fair housing goals and priorities to 
overcome them.
    Agency form numbers, if applicable: Not applicable.
    Members of affected public: States and Insular Areas. These include 
the 50 States, the Commonwealth of Puerto Rico, and 4 Insular Areas 
(American Samoa, the Territory of Guam, the Commonwealth of the 
Northern Marianas Islands and the U.S. Virgin Islands). In addition, 
PHAs and local governments that will be able to choose to collaborate 
with a State or Insular area, where the State or Insular area is the 
lead entity.

VI. Estimation of the Total Numbers of Hours Needed To Prepare the 
Information Collection Including Number of Respondents, Frequency of 
Response, and Hours of Response

    The public reporting burden for the proposed State and Insular Area 
Assessment Tool is estimated to include the time for reviewing the 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The estimate of burden hours is an average within a range, with 
some AFHs requiring either more or less time and effort based on the 
size and complexity of the relevant program participant's assessment. 
Smaller program participants will have less total burden both in terms 
of staff hours and costs. A separate estimate for Insular Areas is 
included, at 240 hours per Insular Area program participant, which is 
the same level of burden that HUD estimated for the Local Government 
Assessment Tool.
    This estimate assumes that approximately one-third of the 3,942 
PHAs may seek to enter into joint AFHs with their relevant State 
program participant. This is consistent with the burden estimate 
included in the 30-Day PRA Notice for the Local Government Assessment 
Tool. The 120 hours per PHA is also consistent with the previous 
estimate; however, this may be an over-estimate given that numerous 
smaller sized PHAs may be more likely to enter into joint assessments 
with State program participants.
    This burden estimate assumes there would be cost savings for PHAs 
that opt to partner with a State agency. For instance, the proposed 
State and Insular Area Tool includes a distinct set of questions that 
would be required for Qualified PHAs (i.e. those with 550 or fewer 
public housing units and/or Housing Choice Vouchers). Qualified PHAs 
would also benefit from having the State agency's analysis fulfill the 
regional portion of the PHA's assessments. While there may be some cost 
savings for Qualified PHAs opting to participate in joint submissions 
using the proposed State and Insular Assessment Tool, they are still 
assumed to have some fixed costs, including those relating to staff 
training and conducting community participation, but reduced costs for 
conducting the analysis in the assessment tool itself.
    While local government program participants may also choose to 
partner with State agencies, the burden estimate for the Assessment 
Tool designed for their use included a total estimate for all of the 
1,192 local government agencies.
    All HUD program participants are greatly encouraged to conduct 
joint AFHs and to consider regional cooperation. More coordination in 
the initial years between State and local government program 
participants one the one hand and PHAs on the other will reduce total 
costs for both types of program participants in later years. In 
addition, combining and coordinating some elements of the Consolidated 
Plan and the PHA Plan will reduce total costs for both types of program 
participants. Completing an AFH in earlier years will also help reduce 
costs later, for instance by incorporating the completed analysis into 
later planning documents, such as the PHA plan, will help to better 
inform planning and goal setting decisions ahead of time.
    Information on the estimated public reporting burden is provided in 
the following table:

----------------------------------------------------------------------------------------------------------------
                                                                                     Estimated
                                                   Number of                       average time      Estimated
                                   Number of     responses per    Frequency of          for        total burden
                                  respondents     respondent        response        requirement     (in hours)
                                                                                    (in hours)
----------------------------------------------------------------------------------------------------------------
States *......................              51               1  Once every five            1,500          76,500
                                                                 years.
Insular Areas **..............               4               1  Once every five              240             960
                                                                 years.
Public Housing Agencies.......             665               1  Once every five              120          79,800
                                                                 years.
                               --------------------------------                  -------------------------------
    Total Burden..............  ..............  ..............  ................  ..............         157,260
----------------------------------------------------------------------------------------------------------------
The estimates represent the average level of burden for these grantee types. It should be noted that this staff
  cost is not an annual cost, but is incurred every five years.
* The term `State' includes the 50 States as well as Puerto Rico. See 42 U.S.C. 5302(2) & 42 U.S.C. 12704(2);
  The District of Columbia, as a CDBG formula entitlement entity will use the assessment tool developed for
  local government agencies.
** The term ``Insular Area'' includes Guam, the Northern Mariana Islands, the Virgin Islands, and American
  Samoa.'' See 42 U.S.C. 5302(24) & 42 U.S.C. 12704(24).

Explanation of the Change in Burden Estimate

    The total burden estimate of 157,260 hours is a reduction from the 
previous estimate of 235,140 hours. This change is solely attributable 
to the revision of the estimated number of potential public housing 
agency joint partners that will use the assessment tool for States and 
Insular Areas. While HUD has also revised the State assessment tool to 
add a new streamlined assessment tool for smaller consolidated planning 
agencies, the estimated burden for these agencies is still included in 
the overall burden estimate for the local government assessment tool. 
The estimates for public housing agency participation are discussed in 
more detail here.
    HUD is including the following information in the 30-Day PRA 
Notices for all three of the assessment tools that are currently 
undergoing public notice and comment. The information is intended to 
facilitate public review of HUD's burden estimates.
    HUD is revising its burden estimates for PHAs, including how many 
agencies will join with other entities (i.e. with State agencies, local 
governments, or with other PHAs), from the initial estimates included 
in the 60-Day PRA Notices for the three assessment tools. These 
revisions are based on several key changes and considerations:

[[Page 66781]]

    (1) HUD has added new option for QPHAs, to match the approach 
already presented in the State Assessment Tool as issued for the 60-Day 
PRA Notice, to facilitate joint partnerships with Local Governments or 
other PHAs using a streamlined ``insert'' assessment. Using this 
option, it is expected that the analysis of the QPHA's region would be 
met by the overall AFH submission, provided the QPHA's service area is 
within the jurisdictional and regional scope of the local government's 
Assessment of Fair Housing, with the QPHA responsible for answering the 
specific questions for its own programs and service area included in 
the insert.
    (2) HUD's commitment to issuing a separate assessment tool 
specifically for QPHAs that will be issued using a separate public 
notice and comment Paperwork Reduction Act process. This QPHA 
assessment tool would be available as an option for these agencies to 
submit an AFH rather than using one of the other assessment tools. HUD 
assumes that many QPHAs would take advantage of this option, 
particularly those QPHAs that may not be able to enter into a joint or 
regional collaboration with another partner. HUD is committing to 
working with QPHAs in the implementation of the AFFH Rule. This 
additional assessment tool to be developed by HUD with public input 
will be for use by QPHAs opting to submit an AFH on their own or with 
other QPHAs in a joint collaboration.
    (3) Public feedback received on all three assessment tools combined 
with refinements to the HUD burden estimate.
    Based on these considerations, HUD has refined the estimate of PHAs 
that would be likely to enter into joint collaborations with potential 
lead entities. In general, PHAs are estimated to be most likely to 
partner with a local government, next most likely to join with another 
PHA and least likely to join with a State agency.
    While all PHAs, regardless of size or location are able and 
encouraged to join with State agencies, for purposes of estimating 
burden hours, the PHAs that are assumed to be most likely to partner 
with States are QPHAs that are located outside of CBSAs.
    Under these assumptions, approximately one-third of QPHAs are 
estimated to use the QHPA template that will be developed by HUD 
specifically for their use (as lead entities and/or as joint 
participants), and approximately two-thirds are estimated to enter into 
joint partnerships using one of the QPHA streamlined assessment 
``inserts'' available under the three existing tools. These estimates 
are outlined in the following table:

Overview of Estimated PHA Lead Entities and Joint Participant 
Collaborations

----------------------------------------------------------------------------------------------------------------
                                                   QPHA outside     QPHA inside
                                                       CBSA            CBSA         PHA (non-Q)        Total
----------------------------------------------------------------------------------------------------------------
PHA Assessment Tool:
    (PHA acting as lead entity).................               x               x             814             814
    joint partner using PHA template............               x             300             100             400
Local Government Assessment Tool (# of PHA joint               x             900             200           1,100
 collaborations)................................
State Assessment Tool (# of PHA joint                        665               x               x             665
 collaborations)................................
                                                 ---------------------------------------------------------------
    subtotal....................................             665           1,200           1,114  ..............
QPHA template...................................             358             605  ..............             963
                                                 ---------------------------------------------------------------
        Total...................................           1,023           1,805  ..............           3,942
----------------------------------------------------------------------------------------------------------------
Notes: ``x'' denotes either zero or not applicable.

Solicitation of Comment Required by the PRA

    In accordance with 5 CFR 1320.8(d)(1), HUD is specifically 
soliciting comment from members of the public and affected program 
participants on the Assessment Tool on the following:
    (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; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.
    (5) Whether additional or different contributing factors should be 
added to a particular section of the Assessment Tool. If so, please 
specify the factor, the reason it should be included, and in which 
section it should be placed. Similarly, whether the descriptions of the 
contributing factors should be amended. If so, please specify the 
factor and the recommended amendments to the descriptions.
    (6) How can the QPHA insert be improved to provide for the QPHA to 
conduct a robust fair housing analysis and set meaningful fair housing 
goals when collaborating with a State.
    (7) Whether the Small Program Participant insert will facilitate 
collaboration among States and smaller local governments (those that 
receive $500,000 or less in CDBG and HOME consortia whose members 
receive $500,000 or less in CDBG funding or no CDBG funding, both in 
the most recent year before the collaborative AFH is due), and whether 
the insert will provide for these small program participant to conduct 
a robust fair housing analysis and set meaningful fair housing goals.
    (8) Whether there are other areas of analysis that are particularly 
unique to States such that they should be required to consider them as 
part of their AFH in order to conduct a meaningful fair housing 
analysis. If so, please explain why these areas of analysis should be 
included in the AFH.
    (9) Whether any alternative or additional questions should be 
included to address the unique geography of Insular Areas and the fair 
housing issues they may be experiencing. If so, please provide specific 
questions and the reasons they should be included in the AFH.
    (10) Whether the questions in the Disparities in Access to 
Opportunity section, as revised, more appropriately reflect the scope 
States should be required to analyze while still providing for a 
meaningful assessment of disparities in access to opportunity by 
protected class.
    (11) Whether the revised questions at the end of each section of 
the Assessment Tool better reflect the analysis States should be 
required to

[[Page 66782]]

conduct when assessing fair housing issues in their jurisdiction.
    (12) Native American considerations. Indian tribes receiving HUD 
assistance are not required to comply with AFFH requirements. However, 
under certain HUD programs, grantees that are subject to AFFH 
requirements also provide assistance to tribal communities on 
reservations. For example, under the HOME program, a State may fund 
projects on Indian reservations if the State includes Indian 
reservations in its Consolidated Plan. Does the Assessment Tool 
adequately take into account, including in the terminology used, the 
issues and needs of Indian families and tribal communities while also 
factoring in the unique circumstances of tribal communities?
    (13) Organization of contributing factors. Currently the draft 
assessment tool lists all contributing factors alphabetically. Should 
these be organized instead by subject matter?
    (14) HUD notes that the term ``region'' has particular meaning in 
the context of the AFFH rule, which is that a ``region'' is larger than 
a jurisdiction. HUD has explained that States have the flexibility to 
divide their State into smaller geographic areas to facilitate their 
analysis (so long as the entire State is analyzed), and refers to these 
smaller geographic areas as ``sub-State areas.'' How can HUD provide 
additional clarity with respect to the terminology and is the 
explanation provided in this Notice as well as the Assessment Tool 
clear as to the meaning of these terms?
    (15) HUD solicits public comment on ways HUD can better clarify the 
responsibilities for QPHAs that choose to participate in collaborations 
with States where the State is acting as the lead entity for a joint 
AFH. HUD also solicits comment on how HUD can facilitate such 
collaborations while ensuring an appropriate fair housing analysis 
consistent with the AFFH rule. In particular, are there ways that HUD 
can improve the clarity of the questions and instructions for States 
and QPHAs when collaborating on an AFH, including any analysis of sub-
state areas, that will allow for an appropriate fair housing analysis 
of all program participants in the collaboration.
    (16) How can the QPHA insert, which covers the QPHA's service area, 
(including HUD-provided maps and data) be improved to facilitate a 
meaningful fair housing analysis for QPHAs, including those that are in 
rural areas. What additional guidance can HUD provide to QPHAs to 
better assist them in establishing meaningful fair housing goals, 
including how those goals are implemented through actions and 
strategies, such as, for example through preservation or mobility 
strategies designed to address the fair housing issues identified by 
the analysis undertaken.
    (16) HUD is generally providing data that is displayed at the 
County level in the AFFH-T designed for States and Insular Areas. HUD 
is not requiring States to conduct a neighborhood by neighborhood 
analysis, but specifically solicits comment on when more granular data 
(e.g., dot density maps) may be necessary to identify fair housing 
issues for the State's analysis in the AFH. For example, in what 
situations would States find a more granular analysis necessary to help 
identify fair housing issues at a more local level--such as, when a 
fair housing issue raised during the community participation process 
that is not present in the HUD-provided data or when the State knows of 
fair housing issues that are not apparent in the HUD-provided data.
    HUD encourages not only program participants but interested persons 
to submit comments regarding the information collection requirements in 
this proposal. Comments must be received by October 28, 2016 to 
www.regulations.gov as provided under the ADDRESSES section of this 
notice. Comments must refer to the proposal by name and docket number 
(FR-5173-N-08-B). HUD encourages interested parties to submit comment 
in response to these questions.

    Dated: September 23, 2016.
Bryan Greene,
General Deputy Assistant Secretary for Office of Fair Housing and Equal 
Opportunity.
[FR Doc. 2016-23449 Filed 9-27-16; 8:45 am]
 BILLING CODE 4210-67-P