Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the Assessment Tool for Local Governments, 4388-4403 [2017-00714]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Notices]
[Pages 4388-4403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00714]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5173-N-10]


Affirmatively Furthering Fair Housing: Announcement of Renewal of 
Approval of the Assessment Tool for Local Governments

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

ACTION: Notice.

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SUMMARY: This notice announces that the Office of Management and Budget 
(OMB) has approved HUD's request to renew for approval under the 
Paperwork Reduction Act (PRA), the Assessment Tool developed by HUD for 
use by local governments that receive Community Development Block 
Grants (CDBG), HOME Investment Partnerships Program (HOME), Emergency 
Solutions Grants (ESG), or Housing Opportunities for Persons with AIDS 
(HOPWA) formula funding from HUD when conducting and submitting their 
own Assessment of Fair Housing (AFH). This Assessment Tool, referred to 
as the Local Government Assessment Tool, is used for AFHs conducted by 
joint and regional collaborations between: (1) Such local governments; 
(2) one or more such local governments with one or more public housing 
agency (PHA) partners, including qualified PHAs (QPHAs); and (3) other 
collaborations in which such a local government is designated as the 
lead for the collaboration. Through the notice and comment process 
required by the PRA, HUD did make changes to the Local Government 
Assessment Tool approved by OMB in 2015. HUD's Web page at https://www.hudexchange.info/programs/affh/ highlights the differences between 
the 2015 Local Government Assessment Tool and this 2016 Local 
Government Assessment Tool. This notice also highlights significant 
issues raised by commenters on the 30-day notice published in the 
Federal Register on August 23, 2016.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 16, 2015, at 80 FR 42357, HUD published in the Federal 
Register its Affirmatively Furthering Fair Housing (AFFH) final rule. 
The AFFH final rule provides HUD program participants with a new 
approach for planning for fair housing outcomes that will assist them 
in meeting their statutory obligation to affirmatively further fair 
housing as required by the Fair Housing Act. To assist HUD program 
participants in improving planning to achieve meaningful fair housing 
outcomes, the new approach involves an ``assessment tool'' for use in 
completing the regulatory requirement to conduct an assessment of fair 
housing (AFH) as set out in the AFFH rule. Because of the variations in 
the HUD program participants subject to the AFFH rule, HUD has 
developed three separate assessment tools: One for local governments, 
which is the subject of this notice, the Local Government Assessment 
Tool; one for public housing agencies (PHAs), the PHA Assessment Tool; 
and one for States and Insular Areas, the State and Insular Areas 
Assessment Tool. HUD is currently developing all tools to allow for a 
joint or regional collaboration with local governments of all sizes and 
public housing agencies. All three assessments tools, because they are 
information collection documents, are required to undergo the PRA 
notice and comment process. HUD has also committed to developing a 
fourth Assessment Tool specifically for use by QPHAs who choose to 
conduct and submit an individual AFH or that collaborate with other 
QPHAs to conduct and submit a joint AFH.

II. Local Government Assessment Tool

A. The PRA Process

    The Local Government Assessment Tool was approved by OMB under the 
Paperwork Reduction Act (PRA) in December 2015, and HUD announced the 
approval of this tool and the availability of its use by notice 
published in the Federal Register on December 31, 2015, at 80 FR 81840. 
The Local Government Assessment Tool was approved by OMB for a period 
of one year and in 2016, HUD began the process for renewal of the Local 
Government Assessment Tool.
    On March 23, 2016, at 81 FR 15546, HUD published its 60-day notice, 
the first notice for public comment required by the PRA, to commence 
the process for renewal of approval of the Local Government Assessment 
Tool. Although

[[Page 4389]]

HUD made no changes to the Local Government Assessment Tool approved by 
OMB in December 2015, HUD specifically solicited public comment on 6 
issues (inadvertently numbered as 7 in the March 23, 2016 publication). 
The 60-day public comment period ended on May 23, 2016. HUD received 18 
public comments.
    On August 23, 2016, at 81 FR 57602, HUD published its 30-day notice 
under the PRA. In the 30-day notice, HUD addressed the significant 
issues raised by the commenters on the 60-day notice. HUD received 28 
public comments in response to the 30-day notice. HUD appreciates the 
comments received in response to the 30-day notice, and, in developing 
this final version of the Assessment Tool all comments were carefully 
considered. The significant issues commenters raised and HUD's 
responses to these issues are addressed in Section II.C. of this 
notice. All comments submitted on the August 23, 2016, notice can be 
found on www.regulations.gov at https://www.regulations.gov/docketBrowser?rpp=50&so=ASC&sb=docId &po=0&dct=PS&D=HUD-2016-0090.
    In addition, and as noted earlier in this notice, HUD has posted on 
its Web site at https://www.huduser.gov/portal/affht_pt.html and https://www.hudexchange.info/programs/affh/, a comparison of the Local 
Government Assessment Tool approved by OMB in 2016 and that approved by 
OMB in 2015.

B. Differences in the Local Government Assessment in 2016

    This section highlights the key changes between the approved 2015 
Local Government Assessment Tool and this 2016 Local Government 
Assessment Tool that differ from the approved 2015 Local Government 
Assessment Tool. A comparison draft of the 2016 Local Government 
Assessment Tool to the 2015 Local Government Assessment Tool that shows 
all of the differences can be found at https://www.hudexchange.info/programs/affh/.\1\ The following lists the more significant 
differences:
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    \1\ In addition to the redline/strikeout version of the 
assessment tool that provides a compare of the 2016 tool to the 2015 
tool, HUD also provides at https://www.hudexchange.info/programs/affh/ a redline/strikeout of the Assessment Tool that accompanied 
the 30-day PRA notice and this final version.
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     The most significant difference between the 2016 and 2015 
Assessment Tools is that in the 2016 Assessment Tool, HUD has included 
two inserts designed to facilitate collaboration between different 
types of program participants that choose to conduct a joint or 
regional AFH with a local government as the lead entity, and to reduce 
burden for smaller program participants choosing to enter into joint or 
regional collaborations.
    [cir] The first is an insert for use by PHAs with 1,250 or fewer 
units, which are PHAs with a combined unit total of 1,250 or fewer 
public housing units and Section 8 vouchers. PHAs that collaborate with 
local governments are still required to complete an analysis of their 
service area and region, as required by the AFFH rule, but the insert 
is designed to make the analysis less burdensome. For PHAs with service 
areas in the same core-based statistical area (CBSA) as the local 
government, the analysis required in the insert is intended to meet the 
requirements of a PHA service area analysis, and it is expected that 
the local government's analysis of the CBSA would satisfy the PHA's 
regional analysis. For PHAs whose service area extends beyond, or is 
outside of, the local government's CBSA, the analysis in the insert 
must cover the PHA's service area and region. See table below:

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

    [cir] The second insert is for use by local government consolidated 
plan program participants that received a CDBG grant of $500,000 or 
less, including HOME consortia whose members collectively received 
$500,000 or less in CDBG funds or whose members received no CDBG funds, 
in the most recent fiscal year prior to the due date of the joint or 
regional AFH.
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    \2\ HUD acknowledges that there are other PHAs, including 
regional PHAs, that may have differing or unique geographies from 
the categories in this table. HUD may provide data in the AFFH Data 
and Mapping Tool for such PHAs appropriate for their geographies 
based on administrative and data considerations. All program 
participants are required to conduct an analysis of their 
jurisdiction and region consistent with the AFFH Final Rule.
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     The 2016 Assessment Tool emphasizes that the solicitation 
of information on whether there are any demographic trends, policies, 
or practices that could lead to higher segregation in the jurisdiction 
or region in the future, is not to be read as HUD seeking an inventory 
of local laws, policies or practices. A similar instruction has been 
added noting that the regional analysis across multiple sections is not 
meant to be interpreted as an inventory of local policies and practices 
in all of the local governments throughout the region.
     In the Disparities in Access to Opportunity section of the 
2016 Assessment Tool, HUD identifies where it provides data for each of 
the opportunity areas to be assessed, while the instructions make clear 
which protected class groups the HUD-provided data includes. HUD also 
clarifies which questions in the Disparities in Access to Opportunity

[[Page 4390]]

section require a jurisdictional and regional analysis.
     In the Publicly Supported Housing analysis of the 2016 
tool, HUD changed the list of contributing factors that may affect the 
jurisdiction and region that should be considered.
     In the Disability and Access analysis of the 2016 
Assessment Tool, HUD clarifies that the analysis should cover both the 
jurisdiction and the region as identified in the Assessment Tool.
     The accompanying instructions have been revised to reflect 
the changes to questions in the Assessment Tool, changes made to the 
HUD-provided data, and to provide additional guidance to assist program 
participants in conducting the AFHs.

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

1. Specific Questions Posed by HUD in the 30-Day Notice
    In the 30-day notice, HUD posed a series of questions for which HUD 
specifically sought comment.
    1. Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility.
    In response to this question, there were commenters that stated 
completion of the Assessment Tool is not necessary for the proper 
performance of agency functions and will not have practical utility, 
because agencies must already comply with income deconcentration to 
help eliminate R/ECAPs, and that racial and ethnic concentrations are 
analyzed and measures taken to eliminate segregation. The commenters 
stated that for many small grantees, much of the collection of 
information will be superfluous and will have little utility because 
grantees do not have the resources or capacity to address issues 
identified in the analysis. The commenters stated that providing 
additional time and ``inserts'' to small CDBG grantees is an inadequate 
response to the burden. The commenters stated that AFH is a complicated 
and burdensome process, and HUD should have corrected deficiencies in 
the comparatively simple process for Analysis of Impediments. Commenter 
stated that submitters have the burden of analyzing a broad set of 
variables, many of which they have little or no control over, such as 
the regional analysis over territory where they do not exercise 
control. Core-based statistical areas (CBSAs) often cover multiple 
states/counties/jurisdictions/school districts/special districts--which 
include urban cores, inner and outer suburbs, exurban communities, and 
rural jurisdictions. The commenters stated that the analyses will be 
time-consuming, likely unsupported by data, and provide little benefit 
to the Fair Housing Act goals.
    HUD Response: HUD continues to submit that the Assessment Tool has 
substantial utility for program participants in assessing fair housing 
issues, identifying significant contributing factors, formulating 
meaningful fair housing goals, and ultimately meeting their obligation 
to affirmatively further fair housing. One of the primary purposes of 
the Assessment Tool is to consider a wide range of policies, practices, 
and activities underway in a program participant's jurisdiction and 
region and to consider how its policies, practices, or activities may 
facilitate or present barriers to fair housing choice and access to 
opportunity, and to further consider actions that a program participant 
may take to overcome such barriers. The series of questions in the 
Assessment Tool enables program participants to perform a meaningful 
assessment of key fair housing issues and contributing factors and set 
meaningful fair housing goals and priorities. The Assessment Tool also 
clearly conveys the analysis of fair housing issues and contributing 
factors that program participants must undertake. In essence, HUD 
submits that the Assessment Tool, and the entire AFH approach, better 
implements the AFFH mandate under the Fair Housing Act.
    In terms of resource limitations, HUD is aware that program 
participants may be limited in the actions that they can take to 
overcome barriers to fair housing choice and notes that the AFH process 
does not mandate specific outcomes. However, that does not mean that no 
actions can be taken, or that program participants should not strive to 
first understand the fair housing issues facing their communities and 
then work to overcome barriers to fair housing choice or disparities in 
access to opportunity. HUD has issued guidance on how program 
participants may establish appropriate goals pertaining to outreach, 
collaboration, etc. to address contributing factors and fair housing 
issues that are beyond their direct control or expertise. HUD has added 
clarifying instructions regarding prioritization of contributing 
factors and setting goals, consistent with the AFFH Final Rule and 
AFFH-related guidance. These edits state that, ``Program participants 
have discretion, within the requirements of the AFFH Rule, to analyze 
and interpret data and information, identify significant contributing 
factors, and set goals and priorities using the Assessment Tools 
provided by HUD. As more fully discussed in the guidance on HUD's 
review of AFHs, HUD will consider local context and the resources the 
program participant has available.''
    HUD has also made key changes to the instructions to clarify issues 
raised by the commenters including the scale and scope of the analysis 
that is required. These clarifications include that, ``The questions in 
the Assessment Tool are written broadly by HUD to enable program 
participants in many different parts of the country to identify the 
fair housing issues that are present in their jurisdictions and 
regions.'' These and similar clarifications are intended to note that 
the Assessment Tool is intended to be scalable to meet the needs of a 
wide variety of different local governments and potential joint and 
regional partners. Program participants may choose to set goals and 
priorities based on the level of impact they can have; for example, 
whether the goal will have a greater impact in the short-term versus 
the long-term, or vice versa. HUD also recognizes that efforts 
involving the need for cooperation between different agencies or 
between different local governments may often be dependent on having 
effective intergovernmental coordination.
    The AFH planning framework, including prioritization of significant 
contributing factors and setting goals allows for program participants 
to match goals and policy options to different local circumstances and 
the different types of fair housing issues communities face. For 
instance, different approaches and goals may be needed in high cost 
versus low cost markets, housing markets with higher vacancy versus 
lower vacancy rates, in areas with different patterns of single family 
versus mixed use development, or in areas experiencing economic or 
population growth versus longer-term decline. Applying place-based, 
mobility, preservation and rehabilitation or incentives for new 
construction, affordable rental or single family approaches may be 
appropriate as described in the balanced approach and depending on fair 
housing issues and related contributing factors as identified in the 
AFH. The AFFH process also envisions the possibility of adopting 
innovative and experimental goals and priorities as a way of attempting 
different approaches that may yield positive fair housing outcomes.

[[Page 4391]]

    With respect to smaller program participants, HUD continues to 
strive to find ways to better enable these entities to comply with 
their obligation to affirmatively further fair housing while 
recognizing their resource limitations.
    In this regard, HUD published a notice in the Federal Register on 
October 24, 2016, at 81 FR 73129, in which HUD announced that it moved 
the AFH submission deadline for grantees that receive less than 
$500,000 in CDBG who would otherwise be due to submit based on the 
program year that begins on or after January 1, 2018, for which a new 3 
to 5-year consolidated plan is due, to the program year that begins on 
or after January 1, 2019, for which a new 3 to 5-year consolidated plan 
is due. HUD believes that the one-year delay in the submission deadline 
will not only help program participants that receive smaller CDBG 
grants, but will give HUD additional time to find ways to reduce burden 
for program participants that receive relatively small CDBG grants, as 
well as for qualified public housing agencies (QPHAs) that will also 
begin submitting based on their first planning cycle beginning on or 
after January 1, 2019.
    2. The accuracy of the agency's estimate of the burden of the 
proposed collection of information.
    Several commenters stated that they could not advise whether HUD's 
estimate of 240 hours is accurate, but that they could advise that 
completion of the assessment tool is an insurmountable financial and 
physical burden, especially because the consolidated planning process 
immediately follows. A few commenters stated they had to hire 
consultants to do their 2015 consolidated plan (using city money, 
because they would have gone over the 20 percent cap using CDBG money); 
listed salaries and other costs. Other commenters stated that it is 
difficult to know what the burden will be, as administrative burdens 
have been doubled for early submitters because training is just now 
being offered and changes to the tool have been issued while 
participants are doing the assessments. A commenter stated that large 
local governments and joint/regional AFHs cannot quantify the amount of 
community engagement required.
    Other commenters stated that the estimate of 240 hours is too low. 
A commenter stated that HUD's estimate is ``grossly underestimated,'' 
particularly for participants that have not previously completed robust 
AIs. Another commenter stated that the 240 hour estimate is inadequate, 
due to the time required to plan and run public meetings, translate 
notices, interpret information; obtain and analyze supplementary data 
that is not included in the tool; and to review and to coordinate with 
several city departments, other cities in the region, the county, and 
the housing authority. A commenter stated that one grantee documented 
over 600 staff hours, and another documented 250 hours solely for 
community engagement. Another commenter adds that grantee staff cannot 
complete the AFH due to other required reports and administrative 
duties associated with the CDBG program--Citizen Participation Plan, 5-
Year Consolidated Plan, Annual Action Plan, Semi-Annual Labor Reports, 
Consolidated Annual Performance and Evaluation Report (CAPER), 
quarterly financial reports, Section 3 reporting, Minority Business 
Enterprise (MBE)/Women Business Enterprise (WBE) report, Integrated 
Disbursement and Information System (IDIS) input and environmental 
review for each activity, sub-recipient monitoring, Federal Funding 
Accountability and Transparency Act (FFATA), Central Contractor 
Registration (CCR)/Data Universal Numbering System (DUNS), Davis-Bacon, 
OMB directives, and Office of Inspector General (OIG) Bulletins.
    A commenter stated that the estimate should be revised after 
participants complete AFHs. Another commenter stated that the AFH 
should ask grantees to track the hours and cost for preparing the AFH.
    HUD Response: HUD appreciates the comments provided on HUD's burden 
estimate. HUD agrees with the commenter that a more accurate estimate 
of the time and cost involved in preparing the AFH may not be known 
until program participants submit their AFHs. HUD also appreciates the 
suggestion made by the commenter that the AFH should ask grantees to 
advise of hours and costs involved in preparing their AFH. HUD intends 
to also continue to monitor and assess the impact and burden of 
implementation of the AFH process on program participants, including on 
the range of different fair housing outcomes.
    3. Ways to enhance the quality, utility, and clarity of the 
information to be collected.
    Commenters stated that in the segregation section, participants are 
asked to identify areas in the jurisdiction and region that are 
segregated and integrated, and referred to Table 3 (dissimilarity 
index). The commenters stated that the dissimilarity index calculates 
values for the jurisdiction and region as a whole, does not indicate 
spatial patterns, and provides no values for areas within the 
jurisdiction and region. The commenters asked that HUD make available 
values for each jurisdiction within the region and a comparison. The 
commenters stated that the segregation section asks for tenure data, 
which is not provided. The commenters stated that tract-by-tract tenure 
data is available on HUD's Comprehensive Housing Affordability Strategy 
(CHAS) site but is unlikely to be accessed unless it is part of the 
data for which HUD requires consideration.
    Commenters stated that gaps in HUD-provided data will impede 
assessment of needs of individuals with disabilities. Specifically, HUD 
should provide Federal data from (1) the Money Follows the Person 
program, and the Medicaid home and community-based waiver programs and 
options from the Center for Medicare and Medicaid Services (CMS); (2) 
data on persons with disabilities living in nursing facilities and 
intermediate care facilities for individuals with development 
disabilities from CMS (including data about answers by individuals in 
nursing facilities to a question about whether they want to leave the 
facility and return to the community); and (3) data on people with 
disabilities experiencing homelessness (from the HUD Homeless 
Management Information System (HMIS) and/or Annual Homeless Assessment 
Report (AHAR) databases). The commenters stated that despite the lack 
of uniform data about people with disabilities, the lack of data is not 
a reason to exclude consideration of the information. One of the 
commenters stated that the data provided on persons with disabilities 
should be further broken down by income and renter status. Another 
commenter stated that if HUD is unable to provide data on access issues 
for people with disabilities, and local data is unavailable, this 
analysis should not be required.
    Other commenters stated that the focus on R/ECAPs is misplaced 
without similar analysis of areas of concentrated white affluence; that 
identifying these areas and factors contributing to their creation and 
perpetuation is important to further fair housing, address segregation, 
and promote mobility.
    Another commenter stated that HUD should explore the possibility of 
including more questions that would prompt a discussion within 
communities and regions that may have considerable concentrations of 
wealth, but low instances of integration, to better facilitate goal-
setting for purposes

[[Page 4392]]

of expanding fair housing choice for members of protected class groups.
    Another commenter stated that HUD should provide data underlying 
maps as maps can help spot issues but the maps are worthless for making 
objective, quantitative comparisons. A commenter stated that in the 
disproportionate housing needs section, Tables 9 and 10 contain no data 
for areas within the jurisdiction and the maps are useless for 
quantitative analysis. The commenter stated that HUD should provide 
tables underlying every map. Another commenter stated that HUD's 
failure to provide a data mapping tool for housing authorities means 
that participants may need to decide whether to collaborate without 
adequate information, as the map examples are insufficient.
    A commenter suggested that HUD provide grantees with proposed 
assessments that they may accept or modify to develop locally tailored 
approach to affirmatively further fair housing. Another commenter 
stated that ``region'' must be better defined. The commenter added that 
although regional assessment is a core element of the assessment, this 
assessment using existing HUD data will be difficult, and that it is 
unclear what is required, and should be optional.
    HUD Response: HUD appreciates the suggestions of the commenters. 
The 2016 Assessment Tool addresses some of these concerns, but not all 
at this time. In the 2016 Assessment Tool HUD has provided, in the 
instructions, that in identifying areas of segregation and integration 
program participants should not only focus on areas of minority 
concentration in their jurisdictions and regions, but also areas of 
majority concentration. With respect to enhanced ways to make maps and 
data easily accessible to program participants, HUD continues to work 
to make the HUD-provided data and maps easily accessible and easily 
readable to its program participants. HUD believes it has made 
considerable progress in this area, and acknowledges it has more work 
to do here. HUD will continue to provide updates to the AFFH Data and 
Mapping Tool (AFFH-T) as more current data becomes available.
    4. Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.
    Commenters recommended that the AFH tool should be accessible 
through IDIS and eliminate redundancies and overlap between the AFH and 
the consolidated plan. A commenter stated that electronic submission is 
the only practical and logical method. Another commenter stated that 
there should be an option to download the maps and tables that are pre-
populated with HUD-provided data (similar to the Action Plan and CAPER 
in the eCon Planning Suite).
    A commenter stated that data should be available through the portal 
directly, so that it is accessible to stakeholders without specialized 
training. Another commenter stated that there should be a way to 
download shape files and data in tabular format from the Assessment 
Tool for additional in-house geographic information system (GIS) 
analysis.
    A commenter stated that it is concerning that to participate in a 
less-cumbersome process smaller communities must participate with 
another eligible community. The commenter stated that partnering to 
write the AFH would force the community to spend money the community 
does not have, particularly because HUD's new rules related to grant-
based accounting have limited the administrative dollars the city can 
``tap into each grant.''
    Another commenter recommended that program participants only be 
required to conduct an AFH every 10 years, prior to the consolidated 
plan that follows the decennial census.
    HUD Response: As stated in HUD's response to comments on question 
3, HUD appreciates the commenters' suggestions. This 2016 version of 
the Assessment Tool has made progress in this area over the 2015 tool. 
HUD is continuing to work to increase the ease of electronic 
availability of the Assessment Tool, maps and data. HUD continues to 
work to make the HUD-provided data and maps easily accessible and 
easily readable to its program participants. HUD will continue to 
explore options for making improvements to the User Interface, to data 
provided and the functionality of the data tool, and providing 
additional guidance on using the HUD-provided data in the instructions 
to the Assessment Tool, as well as through other guidance materials. As 
HUD assesses longer-term improvements to the Assessment Tool data, HUD 
will continue to consider the comments received that recommended 
significant changes.
    In determining the frequency in which an AFH should be prepared, 
HUD determined that every 5 years was an appropriate time period, 
similar to the time period for the PHA 5-year plan and the 5-year 
consolidated plan (although some consolidated plans are submitted every 
3 years at the election of the program participant).
    5.\3\ Whether the inclusion of the ``inserts'' for Qualified PHAs 
(QPHAs) and small program participants will facilitate collaboration; 
whether entities anticipate collaborating; (a): Any changes to inserts 
that would facilitate collaboration; (b): Changes that would provide 
more robust fair housing analysis; (c): Any changes that would 
encourage collaboration.
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    \3\ The prior Notice inadvertently numbered this question as 
question 6. For clarity, this and the following questions have been 
renumbered in this summary.
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    In response to this question, commenters had a variety of 
suggestions. Several commenters stated that QPHA inserts will 
facilitate collaboration and that inclusion of the inserts is headed in 
the right direction. The commenters, however, suggested removing 
regional analysis by QPHAs so QPHAs can focus on areas for which they 
have control, and local governments can focus on larger regional 
control areas. The commenters stated that adoption of this proposal 
would reduce duplicative analysis for overlapping areas, but if not 
adopted, HUD must clarify when QPHAs and small program participants 
must conduct a regional analysis.
    Another commenter recommended that to facilitate collaboration, the 
assessment tool should allow focus on ``known'' areas of concentration 
and on ``known'' locations of R/ECAPs and protected class groups, and 
HUD should provide data on protected class groups in PHA service area 
as this information is not readily known to QPHAs.
    A commenter stated that HUD should substantially restructure the 
questions and accompanying instructions for the inserts. The commenter 
stated that it understood HUD's efforts to streamline the process for 
program participants with fewer resources, but stated the questions run 
the risk of sending a message to these program participants that they 
are being held to a different standard of analysis. The commenter 
stated that the AFFH rule already provides flexibility to smaller 
program participants when conducting joint or regional collaborations 
by allowing them to ``divide work as they choose,'' and the inserts may 
inhibit community participation, as the analysis of these program 
participants will be separated from the rest of the fair housing 
analysis in the Assessment Tool. The commenter recommended that the 
inserts explicitly instruct these program participants to consider the 
sections of the assessment tool outside of the Fair Housing

[[Page 4393]]

Analysis section, such as community participation and the assessment of 
past goals, actions, and strategies. The commenter stated that if HUD 
retains these inserts, HUD must provide instructions at the beginning 
of each section of the insert that cross reference the remaining pieces 
of the analysis in the main portion of the Assessment Tool.
    A commenter stated that in the QPHA insert, HUD should include a 
question regarding the QPHA's service area using geographic boundaries 
and other indicators commonly known in the community. The commenter 
stated that this will help place the maps in the HUD-provided data into 
context for the QPHA analysis and better facilitate community 
participation on the QPHA insert.
    Another commenter stated that the disparities in access to 
opportunity question in the insert combines several questions, which is 
not conducive to a meaningful analysis. The commenter stated that the 
instructions in the QPHA insert are unclear as to whether QPHAs would 
have to review Table 12 (opportunity indices), which implies QPHAs are 
being held to a different standard. Other commenters recommended that 
the disparities in access to opportunity section of the QPHA insert be 
made optional for QPHAs because they do not have the skill set to 
meaningfully analyze transportation or education policies. Another 
commenter stated that program participants should be required to 
identify contributing factors in the inserts and that the disparities 
in access to opportunity section of the insert should include the same 
sub-questions as the main Assessment Tool. The commenter stated that 
the ``secondary'' participants should identify whether their own 
policies and processes contribute to segregation, lack of access to 
opportunity indices, or other fair housing issues.
    A commenter stated that the ``policies and practices'' section of 
the QPHA insert should ask the QPHA to consider its admissions and 
occupancy policies more broadly, including grounds for denial of 
admission, as well as grounds for eviction or subsidy termination. The 
commenter stated that the grounds for which the QPHA decides to admit 
or evict a family, or terminate a subsidy can raise fair housing 
concerns. The commenter also recommended that this section ask the QPHA 
to outline its policies regarding providing access to persons with 
disabilities and LEP persons.
    Another commenter stated that the list of programmatic barriers is 
too cursory and PHAs should examine a more comprehensive list of 
programmatic barriers, and that the list should include source of 
income and other discrimination, availability of landlord outreach 
programs, low payment standards, portability restrictions, inspection 
delays, refusal to extend search times, lack of notice to families of 
their choices, lack of assistance in locating housing in opportunity 
areas, and geographic concentration of apartment listings provided to 
Housing Choice Voucher (HCV) families by the PHA.
    Other commenters recommended that joint participants should adopt 
explicit measures to ensure that the community participation process 
includes the focused solicitation of information and recommendations 
pertinent to each individual participant, as well as the combined AFH.
    A commenter stated that some small grantees are located outside of 
metropolitan statistical areas (MSAs), and the commenter suggested 
working with the National Community Development Association (NCDA) to 
reduce the scope of the proposed insert.
    Other commenters stated that the insert does not provide enough of 
an incentive for small grantees to collaborate. The commenters stated 
that providing additional time and offering these inserts is an 
inadequate response to the burden small entities face in conducting an 
AFH.
    A commenter did not propose changes to the inserts but recommended 
that HUD raise the threshold of those PHAs that may use the QPHA insert 
to PHAs with 2,000 total units instead of 550 total units. The 
commenter also recommended that HUD raise the threshold for small 
program participants that may use the insert to those that receive a 
CDBG grant of (at least) $1 million or less, stating that this would 
reduce administrative burden and would benefit HUD staff by reducing 
the number of separate AFH submissions. Another commenter requested 
that HUD provide an additional 60-day comment period on the inserts 
since they were not introduced until the 30-day notice.
    HUD Response: As noted earlier in this notice, HUD has raised the 
threshold for use of the insert from QPHAs with 550 or fewer units to 
PHAs with 1,250 or fewer units, which is reflected in the redline/
strikeout version of the Assessment Tool that provides a comparison of 
the 2016 tool to the 2015 tool, HUD also provides at https://www.hudexchange.info/programs/affh/ a redline/strikeout of the 
Assessment Tool that accompanied the 30-day PRA notice and this final 
version. This redline/strikeout version reflects the many changes that 
HUD made in response to public comment. The accompanying instructions 
for the insert also address questions of the commenters seeking 
clarification about certain aspects of the inserts.
    With respect to additional time to comment on the inserts, HUD 
submits that 30 days was sufficient time to comment, and PHAs and 
grantees that received a CDBG grant of $500,000 or less are not 
required to undertake the analysis provided by the inserts. They may 
use the inserts or the main portions of the Assessment Tool to 
undertake the required analysis.
    HUD disagrees with the comment that the addition of streamlined 
Assessment Tool (inserts) for smaller program participants might 
inadvertently send a message that such smaller program participants are 
being held to a different standard of analysis. As HUD stated in the 
Preamble to the AFFH Final Rule, ``. . . HUD commits to tailor its AFHs 
to the program participant in a manner that strives to reduce burden 
and create an achievable AFH for all involved. HUD intends to provide, 
in the Assessment Tool, a set of questions in a standard format to 
clarify and ease the analysis that program participants must undertake. 
The Assessment Tool, coupled with the data provided by HUD, is designed 
to provide an easier way to undertake a fair housing assessment.'' 80 
FR 42345 (July 16, 2015). Moreover, the inclusion of the inserts is 
also intended to facilitate joint and regional partnerships with 
smaller program participants. Such partnerships can result not only in 
improved planning and fair housing analysis but in intergovernmental 
and interagency cooperation and collaboration in goal setting, program 
operations and results.
    Also, in the inserts for smaller program participants, HUD has 
adopted a modified approach in the final Assessment Tool for 
identifying contributing factors. The approach adopted also attempts to 
address the issue of burden for these smaller agencies, by combining 
the identification of such factors for the four fair housing issues 
assessed in the Assessment Tool (Segregation, R/ECAPs, Disparities in 
Access to Opportunity, and Disproportionate Housing Needs) in one step. 
This is intended to reduce any unnecessary duplication of effort and to 
better focus the analysis and identification steps to help produce 
meaningful fair housing goals.
    HUD notes that all program participants using the full Assessment 
Tool also have the option of completing

[[Page 4394]]

the analysis and identification of contributing factors steps in a 
variety of ways that make the most sense to them. HUD has added general 
instruction to the Assessment Tool to clarify this. For instance, 
program participants may choose to complete several of the analysis 
sections first and then consider and identify contributing factors as a 
next step for those sections. HUD acknowledges that contributing 
factors can often affect more than one fair housing issue. Some program 
participants may find it beneficial for them to identify contributing 
factors in combination across fair housing issues after completing the 
analysis for those sections first. The User Interface is set up in a 
way to allow for this approach.
    As noted above, HUD has raised the threshold of those PHAs that may 
use the insert to PHAs with 1,250 total units instead of 550 total 
units. HUD will continue to consider efforts to reduce administrative 
effort on all program participants, including PHAs and local 
governments. As lessons are learned, in the future, there may be 
opportunities to consider further enhancements to the Assessment Tool. 
HUD will continue to enhance the instructions and guidance on the 
analysis of jurisdictions and regions where there are new construction, 
rehabilitation of existing housing, mobility, and community 
revitalization, supporting program participants in conducting their 
AFH.
    Regarding the public comment that the PHA insert should ask the PHA 
to ``consider its admissions and occupancy policies more broadly,'' HUD 
has made revisions to instructions and the contributing factors 
definitions that clarify the demographic analysis of protected classes 
living in public housing, Housing Choice Vouchers residences, and other 
publicly supported housing developments as related to the fair housing 
concerns on the concentration due to admissions, income targeting, and 
the demographic composition and protected class characteristics of 
applicants on the array of publicly supported housing waiting lists.
    Regarding the public comments on PHA service areas and the need for 
HUD to provide accurate data for these important agencies, HUD 
reiterates its commitment to provide data that is useful for their 
AFHs. HUD's statements on the known limitations of national level data, 
maps and tables when applied in rural areas is intended as an 
acknowledgement of the need for flexibility for these agencies in 
conducting an AFH. Local data and local knowledge can often be useful 
or more readily applied to the questions and issues raised by the 
Assessment Tool. For instance, dot density maps may have limitations 
for large geographic areas with low population densities. In addition, 
as stated HUD will be providing data for individual PHA service areas 
as this information becomes available. Although, HUD has provided 
clearer instructions in the Assessment Tool related to the PHA Regional 
Analysis required regional analysis for PHAs in different geographic 
areas, which includes multiple parts to this explanation: (1) A 
description of the service area, also known as the jurisdiction, of 
various size PHAs in terms of their authorized geographic operations; 
(2) a description of the PHA's region for purposes of analysis under 
the AFFH rule; (3) a description of the HUD-provided data for the PHA's 
applicable region; (4) instructions related to use of data and 
identification of fair housing issues and related contributing factors 
for different size PHAs; and (5) instructions related to rural PHAs, 
State PHAs, and PHAs in Insular Areas.
    6. Clarity of changes in content/structure of questions in 
Disparities in Access to Opportunity with respect to protected classes. 
Also, whether appropriate analysis can be conducted if other protected 
classes are assessed only in ``Additional Information'' questions. 
Should protected classes be specified in each question? Additional 
question in Disparities in Access to Opportunity about all protected 
classes?
    A commenter stated that an analysis of disparities in access to 
environmentally healthy neighborhoods is necessary for CDBG program 
participants, as grantees must do environmental review for each CDBG 
activity. The commenter stated that applying this to each protected 
class would be difficult, and that small entitlements do not have the 
financial capability to use CDBG funds to effect significant change 
with respect to this area of analysis.
    Another commenter stated that the question relating to 
environmental policies should ask about siting and permitting 
processes, cumulative impact analyses, legislative or regulatory 
protections such as health impact assessments, and funding distribution 
processes that impact activities such as remediation. The commenter 
stated that these structural factors contribute to cumulative impacts 
of environmental burdens and should be included in the index and 
contributing factors appendix. The commenter stated that participants 
should assess, using local data and local knowledge, a range of 
environmental health factors (in addition to air quality), including 
soil and water toxins, mold, standing water and water-borne illnesses 
due to inadequate drainage, violence, and inequitable distributions of 
benefits such as park space.
    Other commenters stated that HUD has provided more structure and 
clearer directions for the disparities in access to opportunity 
section, and that such restructuring and clarity have made it 
sufficient to conduct the analysis for additional protected classes 
within the ``Additional Information'' question if there is sufficient 
space in that field. The commenters stated, however, that HUD should 
include the protected class groups within each question in this section 
to facilitate responses.
    Another commenter stated that the questions in the disparities in 
access to opportunity section are clear and will yield a meaningful 
analysis, but that the data provided is provided only by race/
ethnicity, national origin, and familial status. The commenter stated 
that it would be helpful if HUD provided data for other protected 
classes (sex, disability, age), and if HUD provided a more detailed 
breakdown of ethnicity (i.e., ``Asian'' broken into subcategories), and 
to cross-tabulate the categories with housing cost burden and median 
income by census tract--to facilitate meaningful analysis in large, 
diverse cities. The commenter stated that, if HUD cannot provide such 
data perhaps HUD can provide guidance on obtaining custom tabulations.
    A commenter stated that an appropriate analysis would include an 
assessment of all protected classes in each section; specification of 
protected class groups would ensure that participants address each 
group without considering whether groups were not included or 
inadvertently omitted. Another commenter similarly recommended that HUD 
include questions in each subsection of the disparities in access to 
opportunity section about other protected classes, not just those for 
which HUD is providing data, stating that doing so would provide for a 
fuller analysis within each subsection without requiring the program 
participant to revisit the topic in the ``additional information'' 
section. The commenter expressed concern about waiting until the 
``additional information'' section to conduct such an analysis could 
result in the exclusion of this portion of the analysis.
    Another commenter recommended that HUD restructure the disparities 
in access to opportunity section, stating that the questions in each 
subsection should, ask program participants to

[[Page 4395]]

examine HUD-provided data, local data, and local knowledge for all 
protected classes under the Fair Housing Act, and describe: (1) 
Disparities in access to opportunity for the given opportunity 
indicator; (2) how disparities regarding that opportunity indicator 
``relate to residential living patterns in the jurisdiction and 
region''; and (3) ``programs, policies, or funding mechanisms that 
affect disparities'' in access to a particular opportunity indicator. 
The commenter stated that if this structure is not feasible, HUD 
should, at a minimum, include questions about all protected classes 
under the Fair Housing Act in each subsection.
    A commenter stated that HUD should not add additional questions 
about disparities in access to particular opportunities because these 
questions will be addressed within the primary text. Another commenter 
similarly stated that an additional question related to disparities to 
the particular opportunity based on all protected classes would be 
redundant and too general.
    A commenter stated that the education questions do not assess 
students' actual access to proficient schools, and whether residential 
segregation results in educational segregation. The commenter stated 
that the questions must assess student presence or participation, and 
should ask: (1) The distribution of children by race/ethnicity 
attending proficient schools in the jurisdiction/region; (2) racial 
segregation in public schools in the jurisdiction/region; and (3) 
economic segregation of public schools in the region/jurisdiction.
    Another commenter stated that HUD should delete ``participant's 
own'' in qualifying ``local data and knowledge'' as participants should 
not only use local data and knowledge available within their own 
departments when assessing disparities in access to opportunity.
    A commenter stated the term ``access'' is vague and risks confusion 
or evasion by program participants, and recommended that HUD clarify 
that access is measured by both the physical proximity to employment, 
educational, environmental, and transportation assets, and actual rates 
of participation in programs and institutions (such as actual rates of 
enrollment in proficient schools). The commenter further stated that 
the quality of transportation to these assets may be relevant in 
assessing access.
    Another commenter stated that program participants should use local 
data and local knowledge to evaluate transportation policy, as well as 
cost and access, as transportation can drive revitalization/
gentrification, or can bypass poorer communities. The commenter stated 
that program participants should assess the approval, financing, and 
civil rights oversight of transportation policies.
    HUD Response: The redline/strikeout draft of the tool that compares 
this final version to the 2015 tool reflects the many changes that HUD 
made to the 2015 approved version, primarily in response to comments 
that HUD received on the 60-day PRA notice. HUD made some additional 
minor changes in response to the 30-day notice, but believes that the 
structure of this section of the tool in the version of the tool that 
accompanied the 30-day presents the appropriate questions to yield a 
meaningful analysis.
2. Other Issues Raised by the Public Commenters
Contributing Factors
    Several commenters offered suggestions on contributing factors. A 
commenter stated that the contributing factor of ``Land use and zoning 
laws'' (for segregation, R/ECAPs, disparities in access to opportunity, 
and disproportionate housing needs) is too narrow a categorization of 
local public policies affecting housing choice for lower income 
households. The commenter suggested replacing with: ``public policies 
that limit or promote production of affordable housing.'' Commenters 
stated that important categories of policies include: permitted project 
scale and density, provision of local financial resources, assistance 
with site selection, reduction of unnecessary parking requirements, fee 
reductions or waivers for affordable housing, reduction of 
administrative delays, permitted manufactured housing, and inclusionary 
housing policies. The commenter stated that ``Lack of support for 
developing and preserving affordable housing'' is a critical 
contributing factor for disproportionate housing needs section of the 
Assessment Tool.
    Another commenter asked under what circumstances HUD expects 
program participants to identify the contributing factor of 
``displacement of residents due to economic pressures.'' The commenter 
recommended that the analysis of housing be limited to the 
jurisdiction.
    Commenters stated that the contributing factor of ``lack of source 
of income protection'' fails to account for the different nature of 
housing voucher programs. The commenters stated that at the Federal 
level, Congress has not enacted a law to require private development 
owners to participate in any voucher programs.
    Several commenters thanked HUD for including barriers to fair 
housing choice faced by victims of domestic violence and harassment, 
and requested that HUD make certain changes to how this is accomplished 
based on VAWA and HUD's recent final Harassment Rule. One of the 
commenters stated that the contributing factor ``Lack of housing 
support for victims of sexual harassment, including victims of domestic 
violence'' should be divided into two factors because, as drafted, the 
factor conflates two distinct concepts that should be considered 
separately: (1) Displacement of and/or lack of housing support for 
victims of domestic violence, dating violence, sexual assault, and 
stalking (additions due to VAWA); and (2) sexual and other forms of 
harassment. Harassment includes quid pro quo and hostile environment--
and harassment due to membership in any protected class gives rise to 
FHA liability. The commenter stated that the first contributing factor 
should be included in Disparities in Access to Opportunity, 
Disproportionate Housing Needs, and Publicly Supported Housing, and 
recommended that the second factor be included in Disparities in Access 
to Opportunity, Disproportionate Housing Needs, and Publicly Supported 
Housing. The commenter proposed descriptions for both contributing 
factors to add to Appendix C.
    A commenter suggested adding ``Eviction policies and practices in 
the geographic area'' to the list of contributing factors in the 
following sections of the Assessment Tool: R/ECAPs, disparities in 
access to opportunity, and disproportionate housing needs. The 
commenter stated that eviction causes poverty, makes it difficult for 
such tenants to find housing, and tenants are unlikely to report 
habitability problems. The commenter stated that people living in R/
ECAPs, minorities, and individuals with disabilities disproportionately 
experience eviction. Commenter stated that Appendix C includes 
``eviction policies and procedures'' as part of a list relating to 
public housing, but that discussion of eviction should not be limited 
to public housing.
    Another commenter stated that HUD has provided a sufficient array 
of contributing factors, and should allow participants the flexibility 
to identify other factors relevant to the jurisdiction and region 
(rather than requiring analysis of additional inapplicable factors). 
Another commenter stated that the instructions on contributing factors

[[Page 4396]]

should make clear that program participants are required to identify 
contributing factors that are not listed in the HUD-provided lists if 
that contributing factor creates, perpetuates, contributes to, or 
increases the severity of at least one fair housing issue.
    A commenter recommended that HUD add the contributing factor of 
``Adverse housing decisions and policies based on criminal history'' to 
the list of contributing factors based on HUD's recently issued 
guidance on this subject. The commenter stated that the analysis should 
not be confined to the publicly supported housing section, but should 
be assessed more broadly, and include the private housing market. The 
commenter also recommended HUD include a new contributing factor of 
``Lack of meaningful language access for individuals with limited 
English proficiency'' and stated that it should be included in all 
sections of the assessment tool, except the disability and access 
section. The commenter also suggested that in the description of 
``community opposition,'' HUD include ``lack of political will'' that 
results from successful community opposition.
    HUD Response: Both redline/strikeout versions provided at https://www.hudexchange.info/programs/affh/ reflect the changes made in 
response to public comment received during 2016. In the instructions 
provided to the final approved Assessment Tool, HUD clarifies that 
while program participants are required to identify those factors that 
significantly create, contribute to, perpetuate, or increase the 
severity of one or more fair housing issues, program participants are 
not required to conduct separate statistical or similar analyses to 
determine which factors to identify and need only rely on the 
information considered in the community participation process, 
assessment of past goals and actions, and fair housing analysis 
sections of the Assessment Tool, including information obtained through 
the community participation process to meet its obligations to identify 
contributing factors under the AFFH Rule.
    In addition, the instructions highlight that program participants 
have flexibility in how they choose to prioritize significant 
contributing factors, so long as they give highest priority to those 
factors that limit or deny fair housing choice, access to opportunity, 
or negatively impact fair housing or civil rights compliance. Once fair 
housing issues and contributing factors have been identified and 
prioritized, the program participant has options in how to set goals 
for overcoming the effects of contributing factors and related fair 
housing issues. In setting goals, relevant considerations for doing so 
may include the resources, the likely effectiveness of the policy 
options that are available to the program participant, and 
collaborative goals among joint or regional partners.
    Also, HUD agrees with the commenter regarding the scope of the land 
use and zoning laws contributing factor. Specifically, HUD has 
responded to the comment by adding language to the contributing factor 
on ``Land Use and Zoning.'' Additional language was added to clarify 
that this contributing factor might include, ``[the lack] of support 
for development and preservation of affordable housing (may include 
efforts for neighborhood stabilization, green building, transit 
oriented development, and smart growth development).'' HUD also agrees 
with the commenter on this issue and the relationship between the 
analysis of ``disproportionate housing needs'' and potential policy 
goals. Additional clarification on this subject are discussed in this 
Notice, below in the HUD responses to comments related to publicly 
supported housing.
User Interface
    A commenter stated that user Interface is difficult to navigate. 
Another commenter stated that, within the Assessment Tool, it would be 
helpful to be able to view and print the entire document (the AFH tool 
webinar indicated each section would need to be printed separately). 
Other commenters recommended that HUD migrate the assessment tool from 
the User Interface to the existing IDIS e-Con planning suite which 
grantees are already familiar with, and this would enable closer 
integration of the AFH with Consolidated Plans and Action Plans.
    HUD Response: During the year since the Local Government Assessment 
Tool was approved in 2015, HUD has spent considerable time striving to 
make the User Interface easier to navigate. HUD believes that the 
current version is easier but acknowledges additional work is still 
needed. HUD will continue to further improve the User Interface, as 
well as the AFFH Data and Mapping Tool, to meet the needs of different 
program participants.
AFFH-T & HUD-Provided Data
    Several commenters stated that the data and mapping tool has often 
failed to load, and has crashed various browser. A commenter stated 
that when the AFFHT does work, it loads each map and changes to the map 
very slowly when it works. The commenter expressed concern about the 
utility of the tool when multiple agencies are using it. The commenter 
stated that HUD must ensure that the data is accurate, for example the 
geocoding from IMS/PIC. Another commenter requested that the loading 
speed for the maps be increased.
    Several commenters raised concerns about the dots in the dot 
density map. Commenters stated that the following: The size of the dots 
in the dot density maps should be adjustable to see them more clearly; 
when you zoom in the dot-size stays constant; if one adjusts the 
monitor, one loses portions of the map; there is insufficient contrast 
between colors at that size; the remaining dots shift if one is in the 
Table of Contents (TOC) and deselect a category; and that if one re-
selects a category, the dots shift again, but not to their original 
position. The commenters stated that all of these issues should be 
corrected.
    Commenters also raised issues about the maps and tables. With 
respect to maps, a commenter asked why the R/ECAP on Map 2 is different 
from the other maps, and another commenter stated that there are data 
errors in Map 5 as several Public Housing locations are missing, and 
several multifamily markers come up with Null, and some are 
misidentified, e.g., a hotel is listed as multifamily, and some markers 
are not active. Other commenters recommended that the HCV maps be 
layered with the publicly supported housing maps to comprehensively 
understand all subsidized housing in an area. Another commenter stated 
that currently, the assessment tool allows only 17 different maps to be 
displayed and indices can generally only be layered with demographic 
data. The commenter suggested that participants be able to choose from 
a menu of layers to use in one map and participants be able to layer 
more than one set of data over the indices (higher levels of user 
customization), and further stating that it should be easier to find 
the data sources for the 17 maps to facilitate verification and in-
house analysis.
    With respect to tables, a commenter stated that Tables 9 and 10 do 
not provide a useful basis for comparing the needs of families with 
children with publicly supported units, as the tables do not 
distinguish renter from homeowner needs and do not contain income group 
information available in the CHAS data (those with incomes less than 30 
percent of area median income (AMI) need different policies than those 
at 60-80 percent of AMI). Another commenter stated that Tables 5, 6, 8, 
and 11 for use in the publicly supported housing section do not include 
low-income housing tax credits (LIHTC)

[[Page 4397]]

units (although the instructions indicate that Map 5 produces LIHTC 
data and the data documentation incorrectly lists it as on Table 8). 
The commenter stated that, without LIHTC data, answers to the questions 
in this section have little value, as the data does not show current 
affordable housing. The commenter stated that Table 6 is misleading as 
``Housing Type'' counts households by race/ethnicity, but the next 
section shows race/ethnicity for the total population, and stated that 
note 2 in the table is wrong.
    Other commenters recommended that HUD add LIHTC projects, and 
provide separate breakouts of elderly and family public housing, and 
Section 202 and 811 developments. A commenter urged HUD to add 
demographic data for individual LIHTC developments to the AFFHT, 
stating that given the prevalence of the LIHTC program, it is 
imperative to have this information in order for communities to conduct 
a robust assessment of fair housing choice in a jurisdiction and 
region. The commenter also expressed support for differentiating 
between 4 percent and 9 percent tax credits in the AFFHT.
    Commenters stated that HUD should clarify: (1) How scattered site 
public housing is shown on the map and in the tables; (2) how units 
removed from the PIC as part of RAD will be shown on the map and in 
tables; and (3) how units with more than one subsidy (LIHTC, Section 8) 
are shown on the map and in tables. Another commenter stated that 
because the distribution of Section 8 vouchers may be different than 
project-based, it may be helpful to understand how multifamily rental 
stock is distributed (in addition to landlords' acceptance of Section 8 
vouchers). The commenter further suggested that HUD provide data on 
additional tenant characteristics including national origin, limited 
English proficiency (LEP), age, etc.
    Other commenters asked if there is an assumption that all analysis 
of segregation and integration will be at the census tract level. A 
commenter stated that voucher data should be available on the census 
tract level. Another commenter suggested that AFH downloadable data be 
available at census tract level (rather than jurisdictional level) to 
aid local data analysis, as it would be helpful for participants to be 
able to select areas on the map and obtain data for that selection--
whether census tract or group of census tracts--to approximate 
neighborhoods and planning districts.
    Commenters stated that on May 18, HUD stated that the R/ECAP map 
data was updated from 2006-2010 to 2009-2013 American Community Survey 
(ACS); however, the commenter stated that it is unclear which maps HUD 
was referring to and whether the rest of the ACS data in the maps and 
tables is 2006-2010 or 2009-2013. Commenters recommended that each 
table specify which ACS data is used. Another commenter stated that all 
data provided by HUD should be current ACS data in map and table format 
for accurate analysis and interpretation.
    A commenter recommended that HUD provide standardized calculations 
of the changes in demographic and other trends over time and of 
comparisons between the community and CBSA region, so grantees do not 
need to do the calculations themselves. The commenter stated that HUD 
should provide national data related to schools and education and allow 
grantees to supplement as needed with local data and knowledge. The 
commenter also stated that an analysis of fair lending is more central 
to a fair housing analysis than some of the opportunity index measures. 
HUD should provide data on home purchase loans by race/ethnicity and 
trends, and data on HECM loans.
    A commenter stated that HUD did not decide whether to exclude 
college students from the poverty rate in R/ECAPs, and asked that HUD 
reconsider excluding college students from the poverty rate calculation 
or calculate the poverty rate with and without college students. 
Another commenter expressed concern about how to appropriately define 
R/ECAPs in rural areas, stating that HUD should provide suggestions for 
how QPHAs should define R/ECAPs in rural areas, and notes that these 
suggestions could be included in the instructions to the assessment 
tool or in additional guidance.
    A commenter recommended that HUD provide data on evictions and 
subsidy terminations in the AFFHT, stating that this will allow program 
participants and members of the community to be able to evaluate the 
extent to which members of protected class groups are experiencing 
evictions and subsidy terminations.
    A commenter stated that HUD-provided data about disability has a 
variety of limitations and suggests requiring local governments to 
supplement with local data, and suggested that data on disability that 
is available to HUD be made available to localities, such as national 
data on disabilities among veterans. The commenter stated that HUD 
should obtain more data from local governments about the needs and 
opportunities for people with disabilities at a more granular level; 
the data and analysis should differentiate between physically 
accessible units for people with mobility and sensory disabilities, and 
the need for independent, supported, and shared housing options for 
people with disabilities including mental health and intellectual 
disabilities, and people with traumatic brain injuries.
    Another commenter stated that it is pleased that HUD advised that 
it would provide additional data on homeownership and rental housing 
but asks when this data will be available.
    Commenters stated that HUD should provide a schedule of planned 
data updates in advance to minimize mid-stream revisions of the AFH. A 
commenter stated that some data is over 5 years old and that data sets 
should be updated annually.
    HUD Response: HUD continues to thank all of the public commenters 
for their valuable and ongoing feedback on the AFFH Data and Mapping 
Tool, both via these public comments and through the HUD Exchange ``Ask 
A Question'' portal (https://www.hudexchange.info/get-assistance/my-question/).
    HUD offers the following responses to specific comments as follows:
    Regarding comments on the display of map information, HUD will 
continue to monitor and implement ways to improve performance, 
including improving the visual display of information and options for 
users to make adjustments according to their needs. Also, HUD is 
adopting a change in the maps for publicly supported housing by 
combining two separate maps into one map that can display Housing 
Choice Vouchers along with other housing programs simultaneously.
    HUD continues to work with program participants to improve 
geocoding accuracy of HUD administrative data. In addition, HUD will 
review and revise the data documentation and its footnotes and provide 
other explanatory language.
    Regarding comments on how current the HUD-provided data is and the 
frequency of updates, HUD will schedule regular updates and will 
provide notice of any updates on the HUD Exchange Web site. HUD will 
also provide guidance clarifying that program participants that have 
started conducting an AFH will not be required to use all newly updated 
data. HUD is also working on making improvements to the AFFH Data and 
Mapping Tool to minimize the effects of data updates on program 
participants while they are completing their AFH.
    Regarding the provision of additional types and formats for data, 
HUD notes that raw data is available for download directly from the HUD 
Exchange site,

[[Page 4398]]

where all other AFFH guidance and materials are also provided. HUD is 
planning to make the raw geo-enabled data available in GIS Open Data 
site where it can be downloaded in multiple open formats including GIS 
format.
    Regarding LIHTC related data, HUD continues to administer and 
improve the LIHTC data on projects placed-in-service and LIHTC tenant 
demographic data. HUD will work to provide data for AFFH-T at an 
appropriate level of geography (e.g., State, County, City, development, 
etc.) as the data becomes available and verified for consistency and 
reliability. These data may be available in a variety of formats 
external to the AFFH-T Data and Mapping tool. It is not expected that 
development level tenant data will be available in the near term due to 
current data quality issues. Additionally, compliance with federal 
privacy requirements will limit certain development-level data that 
will be available in the future. For background on data that are 
currently available, please see HUD's report, ``Data on Tenants in 
LIHTC Units as of December 31, 2013'' which is available at https://www.huduser.gov/portal/publications/data-tenants-LIHTC.html. HUD will 
also continue to pursue additional guidance on potential sources of 
readily and easily accessible information that may be useful as 
supplementary local data.
    Regarding the specific comment on scattered site public housing 
developments, HUD confirms that such developments are included in the 
maps and tables when they are listed as a single development in the HUD 
PIC administrative data system. HUD has added an instruction to the 
Assessment Tool noting this and advising program participants to use 
caution when considering such developments, particularly as it relates 
to census tract demographics. HUD intends to address this issue over 
time, as needed, but advises that this may involve addressing the 
issues on a case by case basis. Program participants are empowered to 
use local data and local knowledge in this and other cases where such 
information is superior to the HUD-provided data.
    In regard to the public comment regarding the use of data for joint 
collaborations between multiple agencies, HUD notes that the User 
Interface currently allows individual program participants to access 
the maps and tables that are relevant for their own jurisdiction. HUD 
is making further improvements to gather information on PHA service 
areas and will add this significant new information to the AFFH-T as it 
becomes available. Specifically regarding information relevant to PHAs, 
HUD is adding additional tables and functionality for maps to provide 
information on the assisted housing stock and residents served by 
individual PHAs. Also, HUD is exploring options for posting AFHs as an 
online resource for program participants and the public.
    Regarding comments on whether to exclude college students from the 
calculation of R/ECAPs, HUD is taking the comments into consideration 
and has not made any changes at this time. Any changes to the 
methodology in the future will be communicated through updates on HUD 
Exchange.
Publicly Supported Housing Section
    A commenter stated that there is no data on publicly supported 
housing by ``bedroom size'' and until the data is available, HUD should 
delete the question referencing bedroom size. The commenter stated that 
the analysis of comparing the demographics of publicly supported 
housing occupants to the demographics of the areas in which they are 
located implies that when the demographics comport with one another, 
this represents a positive fair housing outcome, but HUD has barred 
this approach. Other commenters recommended removing the new question 
added in the publicly supported housing section, stating that the 
comparison of the demographics of the types of publicly supported 
housing between the jurisdiction and region is not the right approach 
to the AFH.
    A commenter requested that HUD clarify the categories it expects 
participants to compare and what ``same category in the region'' means. 
The commenters expressed concern that the question implies a causal 
relationship that is difficult or impossible for localities to assess, 
and further stated that the various programs have different 
requirements and eligible populations, and without controlling for 
this, the comparisons may be incorrect or misleading. A commenter 
stated that the comparison would not take into account critical factors 
that limit participation in publicly supported housing--including 
federal requirements such as income limits (rather than the 
jurisdiction's choices). The commenter also stated that the data sets 
and responses required are unreasonable, as reliable data is 
unavailable and in many subsidized projects, data gathering and 
reporting is not required.
    HUD Response: HUD appreciates the comments received on the new 
question asking for a regional comparison of publicly supported 
housing. Specifically, this question asks for a comparison of the 
demographics of assisted housing in separate publicly supported housing 
program categories to the regional demographics for that same program 
category. Based on feedback, HUD has decided to retain this question in 
the final Assessment Tool and has made several clarifications in the 
instructions. The instructions clarify the specific comparisons that 
are being asked. HUD has also added an instruction that is generally 
applicable to all regional publicly supported housing questions 
providing additional context. Consistent with the balanced approach, 
there are a myriad of public policy options available to program 
participants involving preservation, mobility and siting of new housing 
opportunities when appropriate in relation to fair housing issues and 
related contributing factors. As with all questions in the Assessment 
Tool, on a continuing basis, HUD will consider and assess the utility 
of this question as it relates to conducting a meaningful fair housing 
analysis.
    The added instruction states, ``Conducting a regional analysis can 
help identify fair housing issues in a broader context, for instance if 
fair housing issues in the jurisdiction are affected by regional 
factors, and can inform regional solutions and goal setting. For 
example, depending on what the regional analysis shows, and always 
dependent on local conditions, regional solutions could include 
coordinated or merged waitlists, increasing HCV portability 
opportunities, affirmative marketing across jurisdictional lines, 
administering Section 8 vouchers on a regional basis with active 
mobility counseling, landlord recruitment (including sharing of 
landlord lists across PHAs) to provide greater access to housing in 
areas with opportunity or the need for the preservation of affordable 
housing. This regional analysis can also be compared to the 
Disproportionate Housing Needs conducted above.''
    In a broader context related to the balanced approach to 
affirmatively furthering fair housing, HUD has made a number of 
modifications to the Assessment Tool to recognize the importance of 
preserving existing affordable housing in connection with affirmative 
fair housing goals and strategies in connection with community 
revitalization. As HUD's own studies on worst case needs for affordable 
housing make clear, there is an ongoing national crisis in housing 
affordability that particularly affects lower income families. In many 
local and regional housing markets, low

[[Page 4399]]

income households are priced out of the market altogether with some 
form of income support or housing subsidy being needed to access 
decent, safe and affordable housing. This makes the preservation of the 
existing limited supply of long-term affordable stock a key component 
of any balanced approach to addressing the findings drawn from 
assessments of fair housing. At the same time, HUD maintains the 
importance of mobility solutions in connection with affirmative fair 
housing goals and strategies, and notes that such strategies are not 
mutually exclusive.
    In support of HUD's commitment to the balanced approach to 
addressing fair housing issues, a number of key changes have been made 
to the Assessment Tool.
    (1) Added the contributing factor on the ``Loss of Affordable 
Housing.'' This factor was previously released for public comment as 
part of the Assessment Tool for State and Insular Areas. This potential 
contributing factor notes that, ``The loss of existing affordable 
housing can limit the housing choices and exacerbate fair housing 
issues affecting protected class groups.'' This factor, along with the 
contributing factor on ``displacement of residents due to economic 
pressures'' allows program participants to recognize the need to 
preserve affordable housing in areas undergoing economic improvement as 
a way of maintaining access to opportunity assets for low-income 
residents and protected class groups as these areas experience 
increased access.
    (2) The Assessment Tool has strengthened the connection between the 
analysis of disproportionate housing needs and the analysis in the 
publicly supported housing section. These include adding an instruction 
noting that the analysis in these sections can be compared to each 
other, as well as by clarifying the analysis questions in the inserts 
for PHAs with 1,250 units or fewer and smaller local governments to 
compare the demographics of who is receiving housing assistance with 
disproportionate housing needs. The instructions to the 1,250 units or 
fewer PHA insert have also been clarified to note the policy linkage 
between this analysis and the overriding housing needs analysis 
required in the PHA Plan as one possible practical application of the 
AFH analysis.
    (3) Adding instructions on LIHTC. The instructions indicate that 
program participants may distinguish between nine and four percent tax 
credits and the different uses that each can be used for, while 
analyzing the relation of such tax credit properties to fair housing 
issues and related contributing factors, including distinguishing for 
rehabilitation and preservation of affordable housing and for the 
various priorities available to state allocating agencies in meeting 
unique housing needs in their jurisdictions, in the context of 
identifying fair housing issues and related contributing factors.
    (4) Adding more detail to the instructions for the additional 
information questions in the Publicly Supported Housing section. These 
questions provide an opportunity for program participants to reference 
or highlight efforts intended to preserve affordability in order to 
meet unmet and disproportionate housing needs in the context of fair 
housing issues and related contributing factors. The added instructions 
state that, ``Program participants may describe efforts aimed at 
preserving affordable housing, including use of funds for 
rehabilitation, enacting tenant right to purchase requirements, 
providing incentives to extend existing affordable use agreements and 
preventing Section 8 opt-outs, encouraging the use of RAD conversion 
and the PBRA transfer authority. Program participants may also describe 
positive community assets and organizations, including community 
development corporations, non-profits, tenant organizations, community 
credit unions and community gardens.''
    HUD thanks the commenter that stated that the ``analysis of 
comparing the demographics of publicly supported housing occupants to 
the demographics of the areas in which they are located implies that 
when the demographics comport with one another, this represents a 
positive fair housing outcome, but HUD has barred this approach.'' 
However, HUD notes that this analysis can assist in understanding who 
is being served in the housing programs, where they have housing 
opportunities, and how the location impacts the residents' access to 
opportunities. Thus, the same demographics in the public housing 
project in the census tract it is in may or may not represent a fair 
housing issue.
Community Participation
    A commenter stated that the requirement to describe how 
communications were designed to reach ``the broadest audience 
possible'' should be deleted as participants are submitting other 
information about community participation. The commenter stated that 
asking grantees to evaluate why there was low attendance is irrelevant 
and asks grantees to impute meaning without substantive information.
    Another commenter stated that there should be substantive community 
participation questions in the tool (not only suggestions in the 
Guidebook) in order to show its importance, communicate what 
constitutes the parameters of meaningful participation, and enable HUD, 
community members, and participants to understand what constitutes 
sufficient community participation. The commenter recommended that HUD 
include more substantive content in the tool's community participation 
process and direct participants to assess whether engagement has 
occurred to multiple groups, stakeholders, and protected classes for 
information relevant to each section of the tool. The commenter stated 
that stakeholders from multiple sectors should be actively solicited 
early on and throughout the AFH process, as stakeholders may be unaware 
of housing planning processes and localities with the most severe fair 
housing issues may suffer the most severe deficits in equitable public 
engagement. The commenter further stated that the assessment tool 
should ask, for example, that participants ``Describe efforts to 
include persons or organizations with local knowledge relating to 
public health, education, transportation, workforce development, or 
environmental quality.'' The commenter also recommended that the tool 
require documentation of compliance with regulatory consultation 
requirements. See, e.g., 24 CFR 91.100.
    Another commenter stated that effective, robust community 
participation is fundamental to the successful implementation of the 
AFFH regulation. The commenter commended HUD for retaining the question 
regarding low participation, as this question is crucial in assessing 
the extent to which efforts were made to ``give the public reasonable 
opportunities for involvement in the development of the AFH.'' The 
commenter recommended that the first question in the community 
participation section be amended to include other PHA resident 
outreach. The commenter also recommended that the instructions for the 
second question in the community participation section be improved by 
adding a checklist for the types of organizations that local 
governments and PHAs should consider consulting (see, e.g., 24 CFR 
91.100). The commenter further recommended that HUD consider adding 
examples of organizations that may fit within the broader categories, 
such as legal services organizations, which are community-based 
organizations that serve protected

[[Page 4400]]

class members. The commenter requested that the instructions also 
remind program participants that they must explain why any comments 
from the community participation process were not accepted by the 
program participant.
    A commenter suggested that HUD ask program participants, in the 
community participation section of the tool to describe how it ensured 
accessibility including physical accessibility, effective 
communications, accessible Web sites and electronic materials, 
materials in alternate formats, and reasonable accommodations.
    HUD Response: In response to public commenters who were concerned 
that the question on levels of participation would require the program 
participant to speculate on possible reasons for low participation, HUD 
has revised that specific question and accompanying instruction. In the 
broader context, HUD notes that the area of encouraging and 
incorporating public involvement in planning activities is a growing 
field of interest and that there are likely to be technological ideas 
and solutions that may be worthy of additional interest and inquiry 
over time.
Local Data/Local Knowledge
    A commenter stated that HUD should require local governments to use 
local data and local knowledge (rather than allowing program 
participants to state that such data is unavailable) about individuals 
with disabilities in home or community-based settings (including 
Medicaid and local government funded services), those in institutional 
settings (nursing homes, board and care homes (``adult homes'' or 
``adult care homes''), assisted living facilities, and individuals 
ready for discharge from psychiatric hospitals). The commenter stated 
that if HUD does not require participants to use local data and local 
knowledge, AFH plans may have disparate and disadvantageous 
consideration of people with disabilities. Another commenter stated 
that HUD should provide additional guidance as to the types of local 
data and local knowledge that are likely available.
    Other commenters stated that HUD should require (or at least 
encourage) participants to consult and coordinate with other public 
agencies and other entities, such as academic institutions. A commenter 
stated that participants will not interpret ``reasonable amount of 
search'' to include consultation and coordination, and suggests adding: 
``However, the requirement to engage in a reasonable amount of 
searching means that a reasonable effort should be made to consult and 
coordinate with public agencies and public entities with access to 
relevant local data and local knowledge'' to the instructions for the 
tool.
    A commenter urged HUD to include a section that substantively 
guides participants' efforts to include local data and local knowledge, 
and requires participants to document strategies such as outreach to 
other government agencies. The commenter recommended that HUD issue 
guidance on institutionalizing informational pipelines among agencies 
and enforcement entities, and collaborations with local stakeholders, 
and provide lists of common resources to consult.
    A commenter recommended that HUD add a section within the tool that 
requires program participants to evaluate their efforts and processes 
to incorporate local data and local knowledge (similar to the community 
participation section).
    Another commenter recommended that program participants should 
encourage members of the community and other stakeholders to submit 
local data as part of the community participation process, and this 
should be added to the instructions to the tool. The commenter 
recommended that HUD include examples to provide some clarity on HUD's 
expectations with respect to the program participant's obligation to 
review local data received during the community participation process.
    A commenter stated that the instructions regarding local data, 
specifically the language telling program participants that they ``need 
not expend extensive resources,'' should be qualified and should depend 
on factors such as the size of the program participant and the division 
of responsibilities in a joint or regional collaboration.
    HUD Response: HUD did not agree to the suggestion to remove 
language from the Assessment Tool noting that program participants are 
not required to expend extensive resources in reviewing or validating 
complex reports or studies submitted by outside parties during the 
community participation process. The language states, ``[program 
participants] are required to consider the information received during 
the community participation process, but need not expend extensive 
resources in doing so.'' This is consistent with past HUD statements on 
the topic. For example, as HUD stated in the PRA Notice on the initial 
Local Government Assessment Tool on September 26, 2014:
    ``In addition, local knowledge may be supplemented with information 
received through the public participation process. In such cases, 
program participants retain the discretion to consider data or 
information collected through this process as well as the manner in 
which it may be incorporated into the AFH, whether in the Analysis 
section of the Assessment or in Section III of the AFH with an option 
to include extensive or lengthy comments in appendices or attachments. 
In short, the receipt of extensive public comments may require staff 
effort to review and consider input but would not result in a mandate 
to incur substantial additional costs and staff hours to do so. To the 
contrary, the public participation process should be viewed as a tool 
to acquire additional information to reduce burden.''
    HUD also notes that the requirements to conduct community 
participation and consultation are detailed for consolidated plan 
grantees in 24 CFR part 91, subpart B and 24 CFR 5.158.
Specific Suggestions for the Assessment Tool
    A commenter expressed disagreement with the newly added sentence 
that states ``Participants should focus on patterns that affect the 
jurisdiction and region rather than creating an inventory of local 
laws, policies, or practices,'' stating that requiring a detailed list 
of policies and practices that encourage or discourage affordable 
housing and mobility of lower income households is useful. The 
commenter stated that each category in the disparities in access to 
opportunity section asks for jurisdiction and region, except for the 
third item, implying that the question only asks about the 
jurisdiction. The commenter recommended that the question should also 
ask about region, because suburbs should provide resources and remove 
barriers for affordable housing, and cities should identify needed 
regional changes.
    Another commenter stated that HUD risks diluting housing patterns 
to peripheral matters not directly tied to segregation, stating that 
HUD should leave education to DOE, transportation to DOT, workforce 
development to DOL, health to HHS, and environment to EPA.
    Other commenters recommended deleting the Assessment of Past Goals 
and Actions section because it duplicates information participants have 
previously submitted to HUD.
    A commenter stated that parenthetical references to sections of the 
Code of Federal Regulations are confusing and recommended deleting such 
citations.
    A commenter stated that conducting a trend analysis over 27 years 
with data available at only 10-year intervals is meaningless and should 
be deleted. The

[[Page 4401]]

commenter stated that certain questions require participants to make 
speculative assumptions about causality and should be deleted, and 
recommended that, before requiring an analysis of education, HUD and 
DOE should develop (and provide to grantees) data about the 
relationships between school attendance, school performance, and 
residency. The commenter stated that in many districts, school 
assignment is no longer connected to residency, policies differ among 
districts, students in one community may attend schools in other 
districts with different policies, and students in one R/ECAP may 
attend a broad array of schools with widely varying performance. The 
commenter recommended that the regional analysis of access to high 
performing schools should not include schools in communities up to 128 
miles apart, stating that the regional assessment of access to 
transportation should only require localities to assess access to 
transportation in or near their jurisdiction, and that HUD should not 
be asking for a regional analysis in the ``additional information'' 
questions.
    Other commenters stated that Olmstead planning is primarily a State 
activity, but that local governments also have Olmstead obligations, 
and in some States disability service systems are largely controlled by 
local government agencies. One of the commenters stated that the tool 
and Guidebook provide insufficient guidance about Olmstead and the 
relationship between States and local governments with respect to 
Olmstead planning. The commenter recommended HUD develop additional 
guidance to better ensure that connections are made between the States 
and local governments engaged in AFH planning.
    Another commenter recommended that HUD include specific prompts 
aimed at assessing the jurisdiction's compliance with the Olmstead 
integration mandate, specifically ``To what degree do people with 
disabilities have meaningful access to integrated housing opportunities 
that are not solely in special needs housing, group homes, assisted 
living, and other congregate housing options? For persons with 
disabilities that require supportive housing, the commenter asked 
whether they are able to choose to receive the supports they need in 
housing of their choice; that is, are supportive housing options 
available within integrated housing developments.
    A commenter stated that, in the Disability and Access section, HUD 
should provide a more specific definition of ``infrastructure,'' 
recommending limiting ``public infrastructure'' to the external 
physical environment and excluding buildings, consistent with the 
distinction in the AFH Desktop between infrastructure, accessible 
housing, and accessible government facilities.
    Another commenter stated that with respect to the Assessment of 
Past Goals and Actions section, HUD must ensure that the AFH delivers 
concrete mechanisms for progress and accountability, stating that 
program participants should describe fair housing strategies, and 
whether they have institutionalized mechanisms (such as interagency 
partnerships) to facilitate implementation.
    A commenter stated that the tool ask about civil rights enforcement 
(pending complaints, resources, and efficacy of protections, 
enforcement, and remedies). The commenter recommended that participants 
be specifically instructed to examine the sufficiency of enforcement 
infrastructure in related areas, such as Title VI and environmental 
protections.
    Another commenter stated that HUD should revise the ``additional 
information'' sections throughout the tool. The commenter stated this 
should be done so that important considerations are not omitted from 
the core fair housing analysis, as this analysis informs the selection 
of contributing factors and goal setting.
    A commenter recommended that HUD encourage local jurisdictions to 
share information about waiting list demographics and specifically 
solicit information about applicants' needs for accessibility (physical 
and sensory) in its waiting list applications. The commenter stated 
that this information should be used in determining the needs of the 
jurisdiction to create more accessible housing, offer a reasonable 
modifications fund, or otherwise offer low-cost loans for accessibility 
modifications.
    Another commenter made several specific recommendations for 
revising the various sections of the tool. The commenter stated that, 
for example, the segregation analysis includes a reference to 
disability and that ``segregated setting'' be defined to include 
housing that is exclusively for persons with disabilities. The 
commenter recommended that certain contributing factors be added to 
other sections of the tool. The commenter also recommended that HUD ask 
jurisdictions to report on the loss of housing for persons with 
disabilities, particularly where developments have adopted tenancy 
preferences for senior citizens to the exclusion of persons with 
disabilities. The commenter stated that jurisdictions should evaluate 
the impact of the loss of housing for persons with disabilities in 
these situations and plan for how to mitigate them.
    A commenter recommended that when referring to R/ECAPs, HUD not use 
the phrase ``transforming R/ECAPs by addressing the combined effects of 
segregation and poverty,'' and instead use the phrase ``expanding 
opportunity into R/ECAPs.'' The commenter stated that there are 
community assets that may exist within R/ECAPs that residents would 
like to retain, while still attracting investment, opportunity, and 
expanding fair housing choice in the community.
    A commenter recommended that HUD include a question about the 
unequal provision of services and disparities in infrastructure in the 
jurisdiction.
    Another commenter stated that ``mobility'' is used both to refer to 
geographic mobility and mobility disabilities, and suggested using 
terms ``geographic mobility'' and ``physical mobility.''
    A commenter stated that local governments ensure that their own 
housing programs and facilities are accessible, and suggested that the 
tool ask local governments to state how they ensure accessibility 
throughout their own housing programs and the projects they fund. The 
commenter expressed appreciation for the emphasis given to the needs of 
people with disabilities by separating out the section on disabilities; 
however, many parts of the required analysis fail to require an 
analysis of disability needs and opportunities--either in the relevant 
or disability sections. The commenter recommended that the tool require 
local governments to include: (1) The number, location, and geographic 
distribution of Uniform Federal Accessibility Standards (UFAS) units 
with mobility and sensory disability accessibility in housing 
subsidized with federal funds; (2) how the locality informs people with 
disabilities about accessible units; (3) how the locality monitors the 
distribution of accessible units throughout each project subsidized 
with federal or other funds; (4) how the locality monitors the 
availability of accessible units including the number of individuals 
with disabilities on waiting and transfer lists; (5) how the locality 
monitors the marketing of accessible units to individuals with 
disabilities; and (6) how the locality insures that its building and 
permitting departments are requiring compliance with federal 
accessibility laws.
    Another commenter suggested including questions about segregation 
of

[[Page 4402]]

people with disabilities in the Segregation and R/ECAP sections of the 
tool, including whether the lack of accessible housing contributes to 
concentrations in R/ECAP areas, and whether land use, zoning laws, 
occupancy codes and restrictions, or lack of investment contribute to 
segregation in facilities that only house people with disabilities or 
fail to provide housing in integrated settings. The commenter also 
recommended asking participants to provide data about the availability 
of accessible transportation throughout the locality. The commenter 
also suggested adding ``disability'' to the list of protected class 
groups in the disproportionate housing needs section, because such 
individuals often face high costs burdens. The commenter recommended 
adding the following question: ``Compare the needs of families with a 
member with a disability who needs accessible features to the available 
housing stock with such accessible features in each category of 
publicly supported housing for the jurisdiction and region'' in the 
disproportionate housing needs section.
    This same commenter recommended that people with disabilities be 
included in all portions of analysis including the publicly supported 
housing section and in the disability section, and program participants 
should be required to discuss compliance with Section 504 and the 
Americans with Disabilities Act. The commenter stated that the 
questions in the disability and access section should more specifically 
distinguish between people with mobility and sensory disabilities and 
people who need supported and integrated housing. The commenter 
expressed concern that participants will not provide information about 
barriers, needs, and solutions for people with different types of 
disabilities. The commenter suggested that local governments separate 
out the locality's own compliance from general problems in the region. 
The commenter also suggested rewording the bullet that says: ``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'' to read: ``State or local laws, 
policies, or practices that discourage or prohibit individuals with 
disabilities from living in apartments, family homes, supported 
housing, shared housing, and other integrated settings.'' The commenter 
stated adoption of this language deletes ``placed in,'' which implies a 
lack of choice, and expands the options that should be, but often are 
not, available to people with disabilities; recent proposed ordinances 
in California have proposed restricting shared and supported housing, 
and sober living situations. In the fair housing enforcement section, 
the commenter suggested adding ``pending administrative complaints or 
lawsuits against the locality alleging fair housing violations or 
discrimination'' to the first question and asked HUD to add a question 
soliciting information on how localities handle discrimination in their 
respective jurisdictions.
    HUD Response: HUD appreciates all of the commenters' specific 
suggestions. As to the first comment, HUD thanks the commenter but 
believes that the analysis of residential living patterns within a 
jurisdiction and region does not require an inventory of laws and 
policies under an assessment and planning tool to create solutions and 
goals that respond to the fair housing and disparities in access issues 
identified.
    HUD appreciates the commenters' feedback related to the 
contributing factors, and notes that some of the definitions have been 
revised.
    HUD recognizes the public commenters' feedback in regard to school 
proficiency, and notes that it will continue to evaluate and consider 
best practices involving school performance, attendance and residency 
issues that impact access of protected classes to proficient schools.
    Regarding the comment that persons with disabilities be included in 
all portions of analysis including the Publicly Supported Housing 
section, HUD notes that the instructions state that: ``The Fair Housing 
Act protects individuals on the basis of race, color, religion, sex, 
familial status, national origin, or having a disability or a 
particular type of disability. HUD has provided data for [the Publicly 
Supported Housing] section only on race/ethnicity, national origin, 
familial status, and limited data on disability. Include any relevant 
information about other protected characteristics--but note that the 
analysis of disability is also specifically considered in Section V(D). 
Program participants may include an analysis of disability here, but 
still must include such analysis in Section V(D).''
Miscellaneous
    One commenter asked whether the tool raises the level of scrutiny 
for housing above Lindsey v. Normet's minimum level of scrutiny. The 
commenters stated that it is clear that the Administration does not 
want to raise the level of scrutiny because that would move housing 
issues from the political process to the courts, nonetheless, the 
Administration has clearly concluded that Lindsey is no longer good 
law. The commenters stated that the tool proposes fairness and dignity 
components to property (whereas Lindsey did not raise the level of 
scrutiny because that would interfere with the right to property). The 
commenters stated the Administration's statement of interest in Bell v. 
Boise stated that homelessness is an individual who is ``assaulted, 
unconstitutionally, in her or his housing.'' The commenter asked the 
following questions: What is the relation between the statement of 
interest and the tool? According to West Virginia v. Barnette, a fact 
is an individually enforceable right in court (vs. a fact for the 
political process), and the level of scrutiny is raised, if, inter 
alia, the fact is ``unaffected by assaults upon it.'' Is it the 
position of the Tool that housing is such a fact? What is the relation 
of the Collection Financial Standards (CFS) housing component to the 
tool? The commenters stated that according to Lindsey, the level of 
scrutiny for housing cannot be raised, and that Lindsey was premised on 
there not being a fairness component to housing and that there is such 
a thing as homelessness (which is contradicted by the Boise Statement 
of Interest). The commenters stated the tool contradicts both of these 
premises. The commenter stated that the government should give an 
instruction in the Tool (or explain why it did not) stating that the 
Tool is premised on the policy that Lindsey is no longer good law, 
housing is an individually enforceable right, and the level of scrutiny 
is above the minimum level.
    Other commenters recommended that HUD defer implementation of the 
AFH process until all elements applicable to each type of program 
participant are publicly available. Another commenter stated that HUD 
should revise submittal deadlines until after it has tested the HUD-
provided data, incorporated final comments into the tool, and provided 
adequate training; otherwise, early submitters may submit AFHs with 
questionable or misunderstood data.
    A commenter stated that HUD should extend the deadline for comments 
or solicit comments again to allow grantees to respond because most 
grantees are busy with CAPER submissions due September 30.
    A commenter identified a city as one of the most highly segregated 
cities in the area by race, ethnicity, poverty, and housing choice. The 
commenter stated that it appears that, due to predatory lending 
practices that led to the

[[Page 4403]]

foreclosure crisis, homes in the city's predominantly minority working 
class neighborhoods that were previously family-owned have been 
purchased in foreclosure by slumlords and these neighborhoods are now 
the victims of predatory rental and eviction practices. The commenter 
stated that the city did not update its AI for approximately 20 years 
(although it finally completed an AI this year).
    Another commenter requested notification from HUD when AFFH 
documents are published that impact local governments.
    HUD Response: HUD appreciates the commenters' suggestions. HUD 
reviewed the case law cited by the commenter and has concluded that the 
cases are not applicable to the obligation to affirmatively further 
fair housing under the Fair Housing Act and under the AFFH rule. HUD 
continues to assert that the AFFH rule and the Assessment Tool 
implementing the requirements contained in the regulation will better 
facilitate compliance with the AFFH mandate under the Fair Housing Act.
    In response to concerns raised regarding predatory lending and 
other single family and mortgage-related comments, HUD notes that these 
issues can be addressed in several ways in the existing Assessment 
Tool. The segregation section provides for an analysis of owner-
occupied and rental housing, by location. The contributing factors that 
can be considered under this section include Private Discrimination, 
Lending Practices and Access to Financial Services. Issues raised by 
commenters related to landlord tenant and eviction policies and 
practices can likewise be considered, including through changes that 
HUD has made to the Assessment Tool in the final stage, for instance in 
the contributing factor on Private Discrimination.

III. Summary

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

    Dated: January 5, 2017.
Bryan Greene,
General Deputy Assistant Secretary for Fair Housing and Equal 
Opportunity.
[FR Doc. 2017-00714 Filed 1-12-17; 8:45 am]
BILLING CODE 4210-67-P