Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 23922-23927 [2018-11146]
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17:33 May 22, 2018
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conflict with the requirements of PHSA
Section 337.
Dated: May 17, 2018.
Jay Womack,
Acting Deputy Director, Division of Executive
Secretariat.
[FR Doc. 2018–11034 Filed 5–22–18; 8:45 am]
BILLING CODE 4165–15–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–5173–N–17]
Affirmatively Furthering Fair Housing:
Withdrawal of the Assessment Tool for
Local Governments
Office of the Assistant
Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice.
AGENCY:
HUD announces the
withdrawal of the Local Government
Assessment Tool developed by HUD for
use by local governments that receive
Community Development Block Grants,
HOME Investment Partnerships
Program, Emergency Solutions Grants,
or Housing Opportunities for Persons
With AIDS formula funding from HUD
when conducting and submitting their
own Assessment of Fair Housing (AFH)
under the Affirmatively Furthering Fair
Housing (AFFH) regulations. Through
Federal Register notice published on
January 13, 2017, HUD announced the
Office of Management and Budget’s
renewed approval of the Assessment
Tool under the Paperwork Reduction
Act. Since that time, HUD has become
aware of significant deficiencies in the
Tool impeding completion of
meaningful assessments by program
participants. HUD therefore is
withdrawing the Local Government
Assessment Tool because it is
inadequate to accomplish its purpose of
guiding program participants to produce
meaningful AFHs. Following this
withdrawal of the Local Government
Assessment Tool, HUD will review the
Assessment Tool and its function under
the AFFH regulations to make it less
burdensome and more helpful in
creating impactful fair housing goals.
Accordingly, this withdrawal notice
also solicits comments and suggestions
geared to creating a less burdensome
and more helpful AFH Tool for local
governments.
DATES:
Applicability Date: May 23, 2018.
Comment Due Date: Comments on
improvement to the AFH Tool for Local
Governments are due on or before July
23, 2018.
SUMMARY:
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Interested persons are
invited to submit comments to the
Office of the General Counsel, Rules
Docket Clerk, Department of Housing
and Urban Development, 451 Seventh
Street SW, Room 10276, Washington,
DC 20410–0001. Communications
should refer to the above docket number
and title and should contain the
information specified in the ‘‘Request
for Comments’’ section. There are two
methods for submitting public
comments.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW, Room 10276,
Washington, DC 20410–0500. Due to
security measures at all federal agencies,
however, submission of comments by
mail often results in delayed delivery.
To ensure timely receipt of comments,
HUD recommends that comments
submitted by mail be submitted at least
two weeks in advance of the public
comment deadline.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
https://www.regulations.gov. HUD
strongly encourages commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit a comment, ensures
timely receipt by HUD, and enables
HUD to make comments immediately
available to the public. Comments
submitted electronically through the
https://www.regulations.gov website can
be viewed by other commenters and
interested members of the public.
Commenters should follow instructions
provided on that site to submit
comments electronically.
ADDRESSES:
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. Again, all submissions must refer to
the docket number and title of the notice.
No Facsimile Comments. Facsimile
(fax) comments are not acceptable.
Public Inspection of Comments. All
comments and communications
submitted to HUD will be available, for
public inspection and copying between
8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an advance
appointment to review the public
comments must be scheduled by calling
the Regulations Division at (202) 708–
3055 (this is not a toll-free number).
Copies of all comments submitted are
available for inspection and
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downloading at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Krista Mills, Deputy Assistant Secretary,
Office of Policy, Legislative Initiatives,
and Outreach, Office Fair Housing and
Equal Opportunity, Department of
Housing and Urban Development, 451
7th Street SW, Room 5246, Washington,
DC 20410; telephone number 202–402–
6577. Individuals with hearing or
speech impediments may access this
number via TTY by calling the toll-free
Federal Relay Service during working
hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
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I. Background
On July 16, 2015, HUD published in
the Federal Register its Affirmatively
Furthering Fair Housing (AFFH) final
rule.1 The AFFH final rule provided
HUD program participants with a
revised planning approach to assist
them in meeting their legal obligation to
affirmatively further fair housing. The
AFFH regulations are codified in 24
CFR part 5, subpart A.2
To assist program participants, the
revised 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 been developing
separate Assessment Tools for use by
different types of program participants.
In addition to Assessment Tools for use
by public housing agencies (PHAs) and
States and Insular Areas, there is one for
local governments, which is the subject
of this notice. It is called the Local
Government Assessment Tool. All the
Assessments Tools, because they are
information collection documents, are
subject to approval by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act (PRA).3
The Local Government Assessment
Tool was developed by HUD for use by
local governments that receive
Community Development Block Grants,
HOME Investment Partnerships
Program, Emergency Solutions Grants,
or Housing Opportunities for Persons
With AIDS formula funding from HUD,
when conducting and submitting their
AFH. OMB granted PRA approval of the
initial iteration of the Local Government
Assessment Tool in December 2015, and
HUD announced the approval and the
availability of the Tool’s use by notice
1 80
FR 42357.
2 §§ 5.150–5.168.
3 44
U.S.C. 3501 et seq.
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published in the Federal Register on
December 31, 2015.4 The initial
iteration of the Local Government
Assessment Tool (known as ‘‘LG2015’’)
was approved by OMB for a period of
one year. In 2016, HUD began the
process for renewed approval of that
information collection device.
The PRA establishes a notice and
comment process for information
collection approvals, involving the
publication of two Federal Register
notices, one for 60 days of public
comments and another for a 30-day
comment period.5 HUD’s 60-day notice
for renewed approval of the Local
Government Assessment Tool was
published on March 23, 2016.6 The 30day notice was published on August 23,
2016, and addressed the significant
issues raised by the comments received
on the 60-day notice.7
HUD announced the renewed PRA
approval by OMB of a Local
Government Assessment Tool through
Federal Register notice published on
January 13, 2017.8 In addition to
announcing the PRA approval of the
Tool, the January 13, 2017, notice
addressed the significant issues raised
by the comments received in response
to the 30-day notice. This current
version of the Tool, which is the subject
of this notice, is known as ‘‘LG2017.’’ 9
II. This Notice—Withdrawal of the
Local Government Assessment Tool
Through this notice, HUD announces
its withdrawal of the current version of
the Local Government Assessment Tool
(OMB Control No: 2529–0054). As noted
above, the PRA establishes a notice-andcomment process for information
collection approvals, but not for
withdrawals. Accordingly, this
withdrawal is effective immediately.
In the January 13, 2017, Federal
Register notice announcing the
availability of that Assessment Tool,
HUD noted its agreement with
commenters that ‘‘a more accurate
estimate of the time and cost involved
in preparing the AFH may not be known
until program participants submit their
4 80
FR 81840.
e.g., 44 U.S.C. 3506–07
6 81 FR 15546.
7 81 FR 57602.
8 83 FR 4368.
9 Both the original iteration (LG2015) and current
version (LG2017) of the Local Government
Assessment Tool are available at https://
www.hudexchange.info/resource/5216/assessmentof-fair-housing-tool-for-local-governments/.
Program participants with a due date of October 13,
2017 or earlier were required to use the LG2015
version of the Assessment Tool. Program
participants with a due date of October 14, 2017,
or later must use the LG2017 version of the
Assessment Tool. This notice pertains to the current
(LG2017) version.
5 See,
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23923
AFHs.’’ 10 Accordingly, that notice
stated that ‘‘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
fair housing outcomes.’’ 11 Consistent
with this response to comments, since
the publication of this notice on January
13, 2017, HUD has become aware of
significant deficiencies in the Tool that
have made it unduly burdensome for
program participants to use the Tool to
create acceptable and meaningful AFHs
with impactful fair housing goals.
HUD’s decision is, in part, informed
by its review of the initial round of AFH
submissions that were developed using
the Local Government Assessment Tool.
This review led HUD to conclude that
the Tool is unworkable based upon: (1)
The high failure rate from the initial
round of submissions; and (2) the level
of technical assistance HUD provided to
this initial round of 49 AFHs, which
cannot be scaled up to accommodate the
increase in the number of local
government program participants with
AFH submission deadlines in 2018 and
2019.
1. Experience With the Initial Group of
AFH Submissions Demonstrates That
the Tool Is Unduly Burdensome and
Ineffective at Assisting Program
Participants With the Creation of
Acceptable AFHs
Between October 2016 and December
2017, HUD received, reviewed, and
issued initial decisions on 49 AFHs
submitted by local government program
participants. In 2018, the Department
conducted an evaluation of these
submissions and found that, among this
initial group of 49 AFH submissions, a
significant proportion of program
participants had difficulty completing
or understanding how to use the Tool to
complete acceptable AFHs. Indeed, the
proportion of submissions determined
to be unacceptable indicates that the
Tool was unduly burdensome and not
working as an effective device to assist
program participants with the creation
of acceptable and meaningful AFHs
with impactful fair housing goals.
For instance, only 37% of the initial
49 submissions (18/49) had been
determined to be acceptable on initial
submission. HUD returned 35% of these
(17/49) as unacceptable. Many other
AFH submissions (28% or 14/49) were
accepted only after the program
participants submitted revisions and
additional information in the form of
addendums in response to HUD’s
10 82
FR 4391.
11 Id.
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technical assistance. Taken together,
63% of the 49 AFHs submitted were
either: (a) Returned as unacceptable and
have not been successfully resubmitted,
or (b) accepted only after the program
participant supplied necessary
additional information and revisions.
Tellingly, despite the fact that joint
and regional submissions benefit from
the sharing of resources by program
participants, enabling them to address
fair housing issues from the broader
perspective provided by collaboration,
joint and regional collaborations
nonetheless suffered from the same
defects as individual AFH submissions.
For example, the largest regional AFH
submitted to HUD involved a total of 19
program participants. In its review of
the AFH, HUD determined that each of
the 19 program participants would have
met the regulatory standards for
nonacceptance.
Additionally, many jurisdictions
found it necessary to incur additional
expense to hire consultants to complete
their AFHs. Particularly in light of the
high initial fail rates, this fact further
demonstrates that the Assessment Tool
is unduly burdensome as an information
collection device and must be improved
to reduce the burden upon respondents.
HUD’s analysis shows that the
excessively high rate of unacceptable
AFHs was due, in large measure, to
problems with the Local Government
Assessment Tool, and that efficiency
gains over time from experience
working with the Tool would be
unlikely to address HUD’s concerns
about both the inadequacy of the Tool
and the burden to program participants
in using the Tool to complete acceptable
AFHs. Specifically, HUD’s analysis
found a pattern of problems with the
initial 49 AFH submissions, indicating
at least seven different categories of
critical problems with the Local
Government Assessment Tool: (a)
Inadequate community participation; (b)
insufficient use of local data and
knowledge; (c) lack of regional analysis;
(d) problems with identification of
contributing factors; (e) prioritization of
contributing factors; (f) problems with
setting goals; and (g) inadequate
responses due to duplication of
questions. While there may have been
myriad issues that caused an individual
AFH submission to have been nonaccepted, in the aggregate, this summary
of issues describes the basis for HUD’s
determination that the Assessment Tool
is ineffective and unduly burdensome
on program participants.
(a) Inadequate Community
Participation. A significant cause of the
high non-acceptance rate was
inadequate community participation.
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The AFFH regulations require program
participants to ‘‘give the public
reasonable opportunities for
involvement in the development of the
AFH and in the incorporation of the
AFH into the consolidated plan, PHA
Plan, and other required planning
documents.’’ 12 However, the questions
in the Local Government Assessment
Tool regarding community participation
have resulted in confusion. The
questions vaguely incorporate by
reference the existing community
participation requirements in HUD’s
Consolidated Plan regulations 13 and the
comparable requirements in HUD’s
Public Housing regulations.14 The
questions do not explicitly state the
specific requirements or ask that
program participants explain how they
met these specific requirements. As a
result, many of the initial AFH
submissions did not fulfill these
requirements and/or did not explain in
their responses how they fulfilled the
requirements. For example, the
regulation at 24 CFR 91.105(b)(4)
requires a period of not less than 30
calendar days for comment by the
community; however, one community
posted a draft AFH for public comment
on a Friday and submitted the final AFH
to HUD the following Monday, after
providing only three days for public
comment.15
(b) Insufficient Use of Local Data and
Knowledge. The Assessment Tool
requires local governments to utilize
their local data and local knowledge to
supplement the HUD-provided data, or,
when appropriate, to replace HUDprovided data. HUD requires the use of
local data only if the program
participants can find and use such data
at little or no cost. While many program
participants utilized local data and local
knowledge exactly as intended, a
substantial number did not. The absence
of local data, or failure to use it, resulted
in an inability to address issues in a
community that have not manifested
themselves in the HUD-provided data.
For example, when discussing
environmental health issues, one
program participant did not identify
multiple Superfund locations in their
jurisdiction. While this is information
that a local government would know,
specific Superfund locations are not
noted on HUD maps. The questions in
the Tool thus are inadequate to inform
CFR 5.158(a).
CFR part 91.
14 24 CFR part 903.
15 See, e.g., Section III, Questions 1–4 of LG2015
and LG2017.
the program participants when to use
local data and knowledge.16
(c) Lack of Regional Analysis.
Questions throughout the Assessment
Tool require program participants to
undertake both a jurisdictional and a
regional analysis of fair housing issues.
Many of the 49 AFH submissions did
not complete or adequately complete
the regional component of the analysis
of fair housing issues. Others may have
completed the analysis but did so in a
way that did not compare the
jurisdiction to the region. The regional
analysis is often a critical component of
the AFH because fair housing issues
may cross jurisdictional boundaries and
demographic trends may extend across
entire regions. HUD provides both
jurisdictional and regional data through
the AFFH data and mapping tool for
each program participant. However, the
Assessment Tool inadequately guides
program participants in the use of such
data to perform the type of regional
analysis of fair housing issues that
would be necessary for an acceptable
AFH.
(d) Identification of Contributing
Factors. Throughout the analysis of fair
housing issues, the Assessment Tool
requires that the program participant
identify the contributing factors that
create, contribute to, or perpetuate fair
housing issues in their community.
However, the Assessment Tool does not
explicitly require the program
participant to connect the identified
contributing factors to the fair housing
issues they will address until the final
section where the program participant
determines goals to overcome those
contributing factors.
Because the Assessment Tool fails to
instruct the program participants to
connect these concepts, many of the 49
AFH submissions identified
contributing factors which did not
logically connect to the analysis of fair
housing issues undertaken. In addition,
factors which the program participants
themselves identified in other portions
of the Assessment Tool were not
identified in the responses to these
questions. For example, one AFH
included 3 pages of detailed analysis of
Home Mortgage Disclosure Act (HMDA)
information outlining the lending
discrimination occurring, yet the
program participants did not identify
lending discrimination as a contributing
factor.17
(e) Prioritization of Contributing
Factors. The final section of the
12 24
13 24
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16 See, e.g., Section V, Questions B.3.1.a.3/
B.3.1.b.3/B.3.1.c.3/B.3.1.d.3/B.3.1.e.3 (LG2017).
17 See, e.g., Section V, Questions B.1.3/B.2.3/
B.3.3/B.4.3/C.3/D.7 (LG2015 and LG2017).
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Assessment Tool requires that the
program participant(s) prioritize the
contributing factors identified for each
fair housing issue analyzed in the fair
housing analysis sections. The program
participant(s) must then justify the
prioritization of the contributing factors.
Finally, the program participant(s) set
goals designed to overcome the
contributing factors identified as
significant. Jurisdictions must
reasonably exercise their discretion to
prioritize contributing factors. The
justification provides an opportunity to
explain the prioritization method
selected. Many of the 49 submissions
either included in this question
contributing factors not identified in the
Goal
analysis of fair housing issues or did not
include the contributing factors that
were identified. Many program
participants also did not explain their
prioritization method. Without this
critical link, the analysis of fair housing
issues and the goals do not connect,
making the AFH unacceptable. The
Assessment Tool thus fails to provide
adequate guidance for the prioritization
of contributing factors.18
(f) Goals Section was Highly
Problematic. The goals section was an
issue in or the sole reason for the
majority of initially non-accepted AFHs.
In several submissions, the goals were
not likely to result in meaningful
actions, lacked metrics and milestones,
Contributing
factors
were not linked to contributing factors
and fair housing issues, and generally
lacked adequate discussion.
Program participants are responsible
for identifying their own fair housing
goals. However, the goals set by the
program participant must connect to the
analysis of fair housing issues and result
in meaningful actions to affirmatively
further fair housing.
These goals will then be incorporated
into Consolidated Plans and Public
Housing Plans. Along with extensive
guidance, HUD provides the following
chart in the assessment tool to assist
program participants in completing this
question.
Metrics,
milestones, and
timeframe for
achievement
Fair housing
issues
23925
Responsible
program
participant(s)
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Discussion:
within the Tool without responding
fully to the specific question asked. The
lack of clarity in the questions led to
responses that merely assumed a
question was being asked twice and
thus failed to respond fully to the
question at hand. Similarities in the
sentence structure and terminology used
in the questions may have caused
program participants to overlook slight
or nuanced differences between
questions.20
Many of the 49 AFHs reviewed were
deficient in this section, which is the
culmination of the AFH. Goals were
frequently overbroad or would not
result in meaningful actions, for
example, to ‘‘increase housing choice,’’
or ‘‘partner with . . . .’’ Program
participants frequently failed to connect
their fair housing goals to the AFH
analysis, or to the contributing factors or
fair housing issues identified in the
AFH.
Metrics and milestones for evaluating
the accomplishment of fair housing
goals were the most frequent source of
deficiency in this section. However,
frequently those established in the
AFHs were neither time-bound nor
measurable. The discussion section of
the chart is a program participant’s
opportunity to explain the goal to
ensure that HUD understands its
intention and can often counter-balance
deficiencies in or confusion caused by
other sections of the chart. Many of the
program participants did not complete
this section or provided only a vague
discussion. HUD is therefore concerned
that the roadmap provided in the
Assessment Tool is inadequate to lead
to the development of effective goals.19
(g) Inadequate Responses Due to
Duplication. The Local Government
Assessment Tool contains several
questions that have elicited inadequate
responses which merely duplicate
previous responses to other questions
2. HUD Does Not Have the Resources To
Provide a Similar Level of Technical
Assistance to Expanding Numbers of
Program Participants in 2018 and 2019
Because of these significant problems
with the Tool, HUD has provided
substantial technical assistance to this
initial round of program participants,
even for the AFHs that have been
accepted. HUD does not have the
resources to continue to provide
program participants with the level of
technical assistance that they would
need to submit acceptable AFHs using
the current version of the Local
Government Assessment Tool. Despite
the fact that many jurisdictions
reportedly have found it necessary to
engage consultants to complete the
Assessment Tool, HUD estimates that it
has spent over $3.5 million on technical
assistance for the initial round of 49
AFH submissions. In addition to
contract technical assistance services,
18 See, e.g., Section VI, Question 1 (LG2015 and
LG2017).
19 See, e.g., Section VI, Question 2 (LG2015 and
LG2017).
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significant HUD staff resources are
required to review an AFH for
acceptability and to communicate with
program participants regarding HUD’s
determination to accept or non-accept
an AFH.
Although HUD anticipated providing
technical assistance to program
participants to assist them in submitting
acceptable assessments, the amount of
assistance that has proved to be required
with the current version of the Local
Government Assessment Tool is not
sustainable particularly in light of the
significant increase in AFH submissions
scheduled to occur in 2018 and 2019. In
2018, for example, 104 local government
program participants are scheduled to
submit AFHs to HUD. In 2019, the
number of local governments originally
scheduled to submit their AFHs rises to
752. The level of technical assistance
provided to the initial 49 participants
could not be extended to these numbers
of AFHs due in 2018 and 2019.
And due to the deficiencies in the
Local Government Assessment Tool,
HUD believes that, without the
withdrawal and revision of the Tool, a
high percentage of AFHs in future
rounds of submissions would not be
initially acceptable. Because the
problems with the Tool have created the
above-described patterns of deficiencies
in AFH submissions even from
collaborative groups leveraging the
resources of multiple jurisdictions, HUD
20 See, e.g., Section III, Question 3; Section IV,
Question 1; Section V, Questions B.1.1.b/B.3/B.4/
C.1.2/D.2.a (LG2017).
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does not believe that the level of
technical assistance it has been required
to provide to the initial 49 AFHs would
decrease meaningfully as result of
expanded usage of the Tool. As a result,
in 2018 and 2019, HUD would not be
able to provide all program participants
with the extent of assistance provided to
those in the initial round of AFHs,
meaning that these participants would
not have the help they would need to
correct their assessments. This would
lead to a great deal of uncertainty for
program participants as to how to
submit an acceptable AFH. Such
uncertainty would, in turn, lead to
uncertainty regarding the status of their
HUD-funded programs so long as they
do not have an accepted AFH in place.
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3. In Light of HUD and Local
Government Program Participants’
Resource Limitations, Temporary
Withdrawal of the Local Government
Assessment Tool Is Necessary as the
Most Efficient Way To Resolve the
Tool’s Significant Deficiencies
HUD is withdrawing the Tool to
produce a more effective and less
burdensome Assessment Tool. These
improvements to the Tool will make it
more effective in assisting program
participants with the creation of
meaningful assessments with impactful
fair housing goals to help them plan to
fulfill their legal obligation to
affirmatively further fair housing.
Withdrawal and revision of the
Assessment Tool will also conserve
HUD’s limited resources, allowing HUD
to use those limited resources more
effectively to help program participants
produce meaningful improvements in
the communities they serve. HUD also
believes that investing additional time
to improve its Data and Mapping Tool
(AFFH–T) and the User Interface
(AFFH–UI) will result in more
substantive assessments with greater fair
housing impact.
III. Effects of Withdrawal of Assessment
Tool
The AFFH regulations at 24 CFR
5.160(a)(1)(ii) provide that if the
specified AFH submission deadline
results in a submission date that is less
than 9 months after the Assessment
Tool designed for the relevant type of
program participant is available for use,
‘‘the participants(s)’ submission
deadline will be extended . . . to a date
that will be not less than 9 months from
the date of publication of the
Assessment Tool.’’ For example, in the
case of the Assessment Tool for use by
PHAs, HUD published a notice in
January 2017, advising that the
Assessment Tool had been approved
VerDate Sep<11>2014
17:33 May 22, 2018
Jkt 244001
pursuant to the PRA process, but was
not yet available for use by PHAs
because the HUD data needed to make
the Assessment Tool workable was not
yet available.21 Accordingly, under 24
CFR 5.160(a)(1)(ii), the deadline for first
AFH submissions by PHAs was
extended until a workable Assessment
Tool becomes available.
Similarly, in the case of the Local
Government Assessment Tool, HUD has
determined that the current iteration of
the Tool, although published after PRA
procedures, is substantively deficient
and unduly burdensome because it has
resulted in great expense to program
participants and HUD, yet it is not
adequately guiding participants through
the creation of acceptable AFHs.
Accordingly, HUD is immediately
withdrawing the Local Government
Assessment Tool. As a result, local
jurisdictions do not have an approved
Assessment Tool that is published and
available for use in completing the
AFHs. Pursuant to 24 CFR
5.160(a)(1)(ii), the deadline for local
government program participants to
submit a first AFH is thus extended to
a date not less than 9 months following
the future publication of a revised and
approved Local Government
Assessment Tool. HUD is immediately
seeking comment on ways to make the
Local Government Assessment Tool
workable and effective. Pursuant to 24
CFR 5.160(a)(1)(ii), the future published
notice announcing that a revised and
approved Local Government
Assessment Tool is available will also
provide program participants with the
revised due date for first AFH
submissions.
Consolidated plan program
participants that have not yet submitted
their first AFHs must nonetheless
continue to comply with existing,
ongoing legal obligations to
affirmatively further fair housing (legal
obligations which AFHs were merely
intended to help participants plan to
fulfill). Pursuant to 24 CFR 5.160(a)(3),
until a consolidated plan program
participant submits its first AFH, it will
continue to provide the AFFH
certification with its Consolidated Plan,
in accordance with the requirements
that existed prior to August 17, 2015.
Those requirements obligate a program
participant to certify that it will
affirmatively further fair housing, which
means that it will conduct an analysis
of impediments (AI) to fair housing
choice within the jurisdiction, take
appropriate actions to overcome the
effects of any impediments identified
through that analysis, and maintain
21 82
PO 00000
FR 4373.
Frm 00043
Fmt 4703
Sfmt 4703
records reflecting the analysis and
actions.
For Consolidated plan program
participants that are starting a new 3–5year Consolidated plan cycle that begins
before their due date for an AFH, the AI
should continue to be updated in
accordance with the HUD, Fair Housing
Planning Guide (1996), available at
https://www.hud.gov/sites/documents/
FHPG.PDF. The data HUD has
developed in order to implement the
AFFH rule will remain available for
program participants to use in
conducting their AIs. HUD encourages
program participants to collaborate to
develop a regional AI, as regional
collaborations provide an opportunity
for program participants to share
resources and address fair housing
issues that cross jurisdictional
boundaries.22
Program participants that have
already submitted an AFH which has
been accepted by HUD must continue to
execute the goals of that accepted AFH
and are not required to conduct a
separate AI. HUD will discontinue the
review of AFHs submitted by local
governments that are currently under
review and will not render a decision to
accept or not accept. In cases where
HUD denied acceptance of an AFH
submission that used the withdrawn
Local Government Assessment Tool and
the program participant(s) were
preparing to re-submit an AFH, the
participant(s) should not submit a
revised AFH. Finally, local governments
prepared to submit their first AFH
should not submit an AFH to HUD.
Local governments that have not
received an accept or non-accept
determination from HUD, or that have
received a non-accept but will no longer
be required to resubmit their AFH, are
still required to prepare an AI, as
described above in this notice. Program
participants must continue to fulfill
their legal obligations to affirmatively
further fair housing.
IV. Request for Public Comment on
Improvements to the Local Government
Assessment Tool
This notice offers the opportunity for
the public to provide information and
recommendations on revisions to the
Local Government Assessment Tool.
HUD welcomes and will consider all
22 Please refer to HUD’s 2017 interim guidance for
additional information on collaboration,
specifically the Q&A captioned: ‘‘How can States
Collaborate with Local Governments or PHAs?’’.
The guidance is available at: https://
www.hudexchange.info/resources/documents/
Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions.pdf. This guidance is generally applicable
to all types of program participants.
E:\FR\FM\23MYN1.SGM
23MYN1
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices
responses to this notice when
reconsidering the Assessment Tool
Dated: May 18, 2018.
´
Anna Maria Farıas,
Assistant Secretary for Fair Housing and
Equal Opportunity.
[FR Doc. 2018–11146 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–5173–N–18]
Affirmatively Furthering Fair Housing
(AFFH): Responsibility To Conduct
Analysis of Impediments
Office of the Assistant
Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice.
AGENCY:
By notice published
elsewhere in today’s Federal Register,
HUD has withdrawn the current version
of the information collection device
used by local government program
participants to assess fair housing issues
as part of their planning for use of
housing and community development
block grants. The device is referred to as
the Local Government Assessment Tool;
the resulting assessment is referred to as
an Assessment of Fair Housing (AFH).
As explained in that notice, the
withdrawal of the lack of a working
information collection device means
that a program participant that has not
yet submitted an AFH using that device
that has been accepted by HUD must
continue to carry out its duty to
affirmatively further fair housing by,
inter alia, continuing to assess fair
housing issues as part of planning for
use of housing and community
development block grants in accordance
with pre-existing requirements. The preexisting requirements referred to the fair
housing assessment as an ‘‘analysis of
impediments to fair housing choice’’
(AI). This notice reminds program
participants of the requirements and
standards for completing the AI.
DATES: Applicability Date: May 23,
2018.
SUMMARY:
daltland on DSKBBV9HB2PROD with NOTICES
FOR FURTHER INFORMATION CONTACT:
Krista Mills, Deputy Assistant Secretary,
Office of Policy, Legislative Initiatives,
and Outreach, Office Fair Housing and
Equal Opportunity, Department of
Housing and Urban Development, 451
7th Street SW, Room 5246, Washington,
DC 20410; telephone number 202–402–
6577. Individuals with hearing or
speech impediments may access this
number via TTY by calling the toll-free
VerDate Sep<11>2014
17:33 May 22, 2018
Jkt 244001
Federal Relay Service during working
hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION: On July
16, 2015, HUD published in the Federal
Register its Affirmatively Furthering
Fair Housing (AFFH) final rule.1 The
AFFH final rule provides HUD program
participants with a revised planning
approach to assist them in meeting their
legal obligation to affirmatively further
fair housing. To assist HUD program
participants in meeting this obligation,
the AFFH rule provides that program
participants must conduct an
Assessment of Fair Housing (AFH) using
an ‘‘Assessment Tool.’’ The AFFH
regulations are codified in 24 CFR part
5, subpart A (§§ 5.150–5.168).
Through notice published elsewhere
in today’s Federal Register, HUD
announces its withdrawal of the Local
Government Assessment Tool (OMB
Control No: 2529–0054). As explained
in that notice, the AFFH regulations at
24 CFR 5.160(a)(1)(ii) provide that if the
specified AFH submission deadline
results in a submission date that is less
than 9 months after the Assessment
Tool designed for the relevant type of
program participant is available for use,
‘‘the participant(s)’ submission deadline
will be extended . . . to a date that will
be not less than 9 months from the date
of publication of the Assessment Tool.’’
As a result of the withdrawal of the
Local Government Assessment Tool and
the lack of available HUD data for the
PHA Assessment Tool, currently no
type of program participant has an
Assessment Tool available for use.2
Pursuant to 24 CFR 5.160(a)(1)(ii), the
deadline for local government program
participants to submit a first AFH is
thus extended to a date not less than 9
months following the future publication
of a revised and approved Local
Government Assessment Tool.
In the meantime, as explained in the
notice withdrawing the Local
Government Assessment Tool,
Consolidated Plan program participants
that have not yet submitted an
assessment using a HUD-provided
assessment tool that must be accepted,
must nonetheless continue to comply
with existing, ongoing legal obligations
to affirmatively further fair housing.
Congress has repeatedly reinforced this
mandate, requiring in the Housing and
Community Development Act of 1974
and the Cranston-Gonzalez National
Affordable Housing Act, for example,
that covered HUD program participants
certify, as a condition of receiving
Federal funds, that they will
1 80
FR 42357.
82 FR 4373.
2 See
PO 00000
Frm 00044
Fmt 4703
Sfmt 4703
23927
affirmatively further fair housing.3
Pursuant to 24 CFR 5.160(a)(3), until a
Consolidated Plan program participant
submits its first accepted AFH, it will
continue to provide the AFFH
certification with its Consolidated Plan,
in accordance with the requirements
that existed prior to August 17, 2015.4
Those requirements obligate a program
participant to certify that it will
affirmatively further fair housing, which
means that it will conduct an analysis
of impediments (AI) to fair housing
choice within the jurisdiction, take
appropriate actions to overcome the
effects of any impediments identified
through that analysis, and maintain
records reflecting the analysis and
actions.
Program participants are hereby
reminded that the legal obligation to
affirmatively further fair housing
remains in effect, and that HUD places
a high priority upon the responsibility
of program participants to ensure that
their AIs serve as effective fair housing
planning tools. For Consolidated Plan
program participants that are starting a
new 3–5-year Consolidated Plan cycle
that begins before their due date for an
AFH, the AI should continue to be
updated in accordance with the HUD
Fair Housing Planning Guide (1996).5
The data HUD has developed in order
to implement the AFFH rule will remain
available for program participants to use
in conducting their AIs. HUD
encourages program participants to
collaborate to develop a regional AI, as
regional collaborations provide an
opportunity for program participants to
share resources and address fair housing
issues that cross jurisdictional
boundaries.6
Further, program participants are
hereby reminded that if HUD believes
the AI or actions taken to affirmatively
further fair housing to be inadequate,
HUD may require submission of the full
AI and other documentation. If HUD
concludes that the AI is substantially
incomplete, or the actions taken were
plainly inappropriate to address the
identified impediments, HUD may
3 See, e.g., 42 U.S.C. 5304(b)(2), 5306(d)(7)(B),
12705(b)(15).
4 See, e.g., 24 CFR 91.225(a)(1) (2014); 24 CFR
91.325(a)(1) (2014).
5 Available at https://www.hud.gov/sites/
documents/FHPG.PDF.
6 Please refer to HUD’s 2017 interim guidance for
additional information on collaboration,
specifically the Q&A captioned: ‘‘How can States
Collaborate with Local Governments or PHAs?’’.
The guidance is available at: https://
www.hudexchange.info/resources/documents/
Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions.pdf. This guidance is generally applicable
to all types of program participants.
E:\FR\FM\23MYN1.SGM
23MYN1
]]>Agencies
[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Notices]
[Pages 23922-23927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11146]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5173-N-17]
Affirmatively Furthering Fair Housing: Withdrawal of the
Assessment Tool for Local Governments
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: HUD announces the withdrawal of the Local Government
Assessment Tool developed by HUD for use by local governments that
receive Community Development Block Grants, HOME Investment
Partnerships Program, Emergency Solutions Grants, or Housing
Opportunities for Persons With AIDS formula funding from HUD when
conducting and submitting their own Assessment of Fair Housing (AFH)
under the Affirmatively Furthering Fair Housing (AFFH) regulations.
Through Federal Register notice published on January 13, 2017, HUD
announced the Office of Management and Budget's renewed approval of the
Assessment Tool under the Paperwork Reduction Act. Since that time, HUD
has become aware of significant deficiencies in the Tool impeding
completion of meaningful assessments by program participants. HUD
therefore is withdrawing the Local Government Assessment Tool because
it is inadequate to accomplish its purpose of guiding program
participants to produce meaningful AFHs. Following this withdrawal of
the Local Government Assessment Tool, HUD will review the Assessment
Tool and its function under the AFFH regulations to make it less
burdensome and more helpful in creating impactful fair housing goals.
Accordingly, this withdrawal notice also solicits comments and
suggestions geared to creating a less burdensome and more helpful AFH
Tool for local governments.
DATES:
Applicability Date: May 23, 2018.
Comment Due Date: Comments on improvement to the AFH Tool for Local
Governments are due on or before July 23, 2018.
ADDRESSES: Interested persons are invited to submit comments to the
Office of the General Counsel, Rules Docket Clerk, Department of
Housing and Urban Development, 451 Seventh Street SW, Room 10276,
Washington, DC 20410-0001. Communications should refer to the above
docket number and title and should contain the information specified in
the ``Request for Comments'' section. There are two methods for
submitting public comments.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500. Due to security measures at all federal
agencies, however, submission of comments by mail often results in
delayed delivery. To ensure timely receipt of comments, HUD recommends
that comments submitted by mail be submitted at least two weeks in
advance of the public comment deadline.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
https://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make comments
immediately available to the public. Comments submitted electronically
through the https://www.regulations.gov website can be viewed by other
commenters and interested members of the public. Commenters should
follow instructions provided on that site to submit comments
electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
notice.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Comments. All comments and communications
submitted to HUD will be available, for public inspection and copying
between 8 a.m. and 5 p.m. weekdays at the above address. Due to
security measures at the HUD Headquarters building, an advance
appointment to review the public comments must be scheduled by calling
the Regulations Division at (202) 708-3055 (this is not a toll-free
number). Copies of all comments submitted are available for inspection
and
[[Page 23923]]
downloading at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant
Secretary, Office of Policy, Legislative Initiatives, and Outreach,
Office Fair Housing and Equal Opportunity, Department of Housing and
Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410;
telephone number 202-402-6577. Individuals with hearing or speech
impediments may access this number via TTY by calling the toll-free
Federal Relay Service during working hours at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, HUD published in the Federal Register its
Affirmatively Furthering Fair Housing (AFFH) final rule.\1\ The AFFH
final rule provided HUD program participants with a revised planning
approach to assist them in meeting their legal obligation to
affirmatively further fair housing. The AFFH regulations are codified
in 24 CFR part 5, subpart A.\2\
---------------------------------------------------------------------------
\1\ 80 FR 42357.
\2\ Sec. Sec. 5.150-5.168.
---------------------------------------------------------------------------
To assist program participants, the revised 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 been developing separate Assessment Tools for
use by different types of program participants. In addition to
Assessment Tools for use by public housing agencies (PHAs) and States
and Insular Areas, there is one for local governments, which is the
subject of this notice. It is called the Local Government Assessment
Tool. All the Assessments Tools, because they are information
collection documents, are subject to approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA).\3\
---------------------------------------------------------------------------
\3\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
The Local Government Assessment Tool was developed by HUD for use
by local governments that receive Community Development Block Grants,
HOME Investment Partnerships Program, Emergency Solutions Grants, or
Housing Opportunities for Persons With AIDS formula funding from HUD,
when conducting and submitting their AFH. OMB granted PRA approval of
the initial iteration of the Local Government Assessment Tool in
December 2015, and HUD announced the approval and the availability of
the Tool's use by notice published in the Federal Register on December
31, 2015.\4\ The initial iteration of the Local Government Assessment
Tool (known as ``LG2015'') was approved by OMB for a period of one
year. In 2016, HUD began the process for renewed approval of that
information collection device.
---------------------------------------------------------------------------
\4\ 80 FR 81840.
---------------------------------------------------------------------------
The PRA establishes a notice and comment process for information
collection approvals, involving the publication of two Federal Register
notices, one for 60 days of public comments and another for a 30-day
comment period.\5\ HUD's 60-day notice for renewed approval of the
Local Government Assessment Tool was published on March 23, 2016.\6\
The 30-day notice was published on August 23, 2016, and addressed the
significant issues raised by the comments received on the 60-day
notice.\7\
---------------------------------------------------------------------------
\5\ See, e.g., 44 U.S.C. 3506-07
\6\ 81 FR 15546.
\7\ 81 FR 57602.
---------------------------------------------------------------------------
HUD announced the renewed PRA approval by OMB of a Local Government
Assessment Tool through Federal Register notice published on January
13, 2017.\8\ In addition to announcing the PRA approval of the Tool,
the January 13, 2017, notice addressed the significant issues raised by
the comments received in response to the 30-day notice. This current
version of the Tool, which is the subject of this notice, is known as
``LG2017.'' \9\
---------------------------------------------------------------------------
\8\ 83 FR 4368.
\9\ Both the original iteration (LG2015) and current version
(LG2017) of the Local Government Assessment Tool are available at
https://www.hudexchange.info/resource/5216/assessment-of-fair-housing-tool-for-local-governments/. Program participants with a due
date of October 13, 2017 or earlier were required to use the LG2015
version of the Assessment Tool. Program participants with a due date
of October 14, 2017, or later must use the LG2017 version of the
Assessment Tool. This notice pertains to the current (LG2017)
version.
---------------------------------------------------------------------------
II. This Notice--Withdrawal of the Local Government Assessment Tool
Through this notice, HUD announces its withdrawal of the current
version of the Local Government Assessment Tool (OMB Control No: 2529-
0054). As noted above, the PRA establishes a notice-and-comment process
for information collection approvals, but not for withdrawals.
Accordingly, this withdrawal is effective immediately.
In the January 13, 2017, Federal Register notice announcing the
availability of that Assessment Tool, HUD noted its agreement with
commenters 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.'' \10\ Accordingly, that notice stated
that ``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 fair housing outcomes.'' \11\
Consistent with this response to comments, since the publication of
this notice on January 13, 2017, HUD has become aware of significant
deficiencies in the Tool that have made it unduly burdensome for
program participants to use the Tool to create acceptable and
meaningful AFHs with impactful fair housing goals.
---------------------------------------------------------------------------
\10\ 82 FR 4391.
\11\ Id.
---------------------------------------------------------------------------
HUD's decision is, in part, informed by its review of the initial
round of AFH submissions that were developed using the Local Government
Assessment Tool. This review led HUD to conclude that the Tool is
unworkable based upon: (1) The high failure rate from the initial round
of submissions; and (2) the level of technical assistance HUD provided
to this initial round of 49 AFHs, which cannot be scaled up to
accommodate the increase in the number of local government program
participants with AFH submission deadlines in 2018 and 2019.
1. Experience With the Initial Group of AFH Submissions Demonstrates
That the Tool Is Unduly Burdensome and Ineffective at Assisting Program
Participants With the Creation of Acceptable AFHs
Between October 2016 and December 2017, HUD received, reviewed, and
issued initial decisions on 49 AFHs submitted by local government
program participants. In 2018, the Department conducted an evaluation
of these submissions and found that, among this initial group of 49 AFH
submissions, a significant proportion of program participants had
difficulty completing or understanding how to use the Tool to complete
acceptable AFHs. Indeed, the proportion of submissions determined to be
unacceptable indicates that the Tool was unduly burdensome and not
working as an effective device to assist program participants with the
creation of acceptable and meaningful AFHs with impactful fair housing
goals.
For instance, only 37% of the initial 49 submissions (18/49) had
been determined to be acceptable on initial submission. HUD returned
35% of these (17/49) as unacceptable. Many other AFH submissions (28%
or 14/49) were accepted only after the program participants submitted
revisions and additional information in the form of addendums in
response to HUD's
[[Page 23924]]
technical assistance. Taken together, 63% of the 49 AFHs submitted were
either: (a) Returned as unacceptable and have not been successfully
resubmitted, or (b) accepted only after the program participant
supplied necessary additional information and revisions.
Tellingly, despite the fact that joint and regional submissions
benefit from the sharing of resources by program participants, enabling
them to address fair housing issues from the broader perspective
provided by collaboration, joint and regional collaborations
nonetheless suffered from the same defects as individual AFH
submissions. For example, the largest regional AFH submitted to HUD
involved a total of 19 program participants. In its review of the AFH,
HUD determined that each of the 19 program participants would have met
the regulatory standards for nonacceptance.
Additionally, many jurisdictions found it necessary to incur
additional expense to hire consultants to complete their AFHs.
Particularly in light of the high initial fail rates, this fact further
demonstrates that the Assessment Tool is unduly burdensome as an
information collection device and must be improved to reduce the burden
upon respondents.
HUD's analysis shows that the excessively high rate of unacceptable
AFHs was due, in large measure, to problems with the Local Government
Assessment Tool, and that efficiency gains over time from experience
working with the Tool would be unlikely to address HUD's concerns about
both the inadequacy of the Tool and the burden to program participants
in using the Tool to complete acceptable AFHs. Specifically, HUD's
analysis found a pattern of problems with the initial 49 AFH
submissions, indicating at least seven different categories of critical
problems with the Local Government Assessment Tool: (a) Inadequate
community participation; (b) insufficient use of local data and
knowledge; (c) lack of regional analysis; (d) problems with
identification of contributing factors; (e) prioritization of
contributing factors; (f) problems with setting goals; and (g)
inadequate responses due to duplication of questions. While there may
have been myriad issues that caused an individual AFH submission to
have been non-accepted, in the aggregate, this summary of issues
describes the basis for HUD's determination that the Assessment Tool is
ineffective and unduly burdensome on program participants.
(a) Inadequate Community Participation. A significant cause of the
high non-acceptance rate was inadequate community participation. The
AFFH regulations require program participants to ``give the public
reasonable opportunities for involvement in the development of the AFH
and in the incorporation of the AFH into the consolidated plan, PHA
Plan, and other required planning documents.'' \12\ However, the
questions in the Local Government Assessment Tool regarding community
participation have resulted in confusion. The questions vaguely
incorporate by reference the existing community participation
requirements in HUD's Consolidated Plan regulations \13\ and the
comparable requirements in HUD's Public Housing regulations.\14\ The
questions do not explicitly state the specific requirements or ask that
program participants explain how they met these specific requirements.
As a result, many of the initial AFH submissions did not fulfill these
requirements and/or did not explain in their responses how they
fulfilled the requirements. For example, the regulation at 24 CFR
91.105(b)(4) requires a period of not less than 30 calendar days for
comment by the community; however, one community posted a draft AFH for
public comment on a Friday and submitted the final AFH to HUD the
following Monday, after providing only three days for public
comment.\15\
---------------------------------------------------------------------------
\12\ 24 CFR 5.158(a).
\13\ 24 CFR part 91.
\14\ 24 CFR part 903.
\15\ See, e.g., Section III, Questions 1-4 of LG2015 and LG2017.
---------------------------------------------------------------------------
(b) Insufficient Use of Local Data and Knowledge. The Assessment
Tool requires local governments to utilize their local data and local
knowledge to supplement the HUD-provided data, or, when appropriate, to
replace HUD-provided data. HUD requires the use of local data only if
the program participants can find and use such data at little or no
cost. While many program participants utilized local data and local
knowledge exactly as intended, a substantial number did not. The
absence of local data, or failure to use it, resulted in an inability
to address issues in a community that have not manifested themselves in
the HUD-provided data. For example, when discussing environmental
health issues, one program participant did not identify multiple
Superfund locations in their jurisdiction. While this is information
that a local government would know, specific Superfund locations are
not noted on HUD maps. The questions in the Tool thus are inadequate to
inform the program participants when to use local data and
knowledge.\16\
---------------------------------------------------------------------------
\16\ See, e.g., Section V, Questions B.3.1.a.3/B.3.1.b.3/
B.3.1.c.3/B.3.1.d.3/B.3.1.e.3 (LG2017).
---------------------------------------------------------------------------
(c) Lack of Regional Analysis. Questions throughout the Assessment
Tool require program participants to undertake both a jurisdictional
and a regional analysis of fair housing issues. Many of the 49 AFH
submissions did not complete or adequately complete the regional
component of the analysis of fair housing issues. Others may have
completed the analysis but did so in a way that did not compare the
jurisdiction to the region. The regional analysis is often a critical
component of the AFH because fair housing issues may cross
jurisdictional boundaries and demographic trends may extend across
entire regions. HUD provides both jurisdictional and regional data
through the AFFH data and mapping tool for each program participant.
However, the Assessment Tool inadequately guides program participants
in the use of such data to perform the type of regional analysis of
fair housing issues that would be necessary for an acceptable AFH.
(d) Identification of Contributing Factors. Throughout the analysis
of fair housing issues, the Assessment Tool requires that the program
participant identify the contributing factors that create, contribute
to, or perpetuate fair housing issues in their community. However, the
Assessment Tool does not explicitly require the program participant to
connect the identified contributing factors to the fair housing issues
they will address until the final section where the program participant
determines goals to overcome those contributing factors.
Because the Assessment Tool fails to instruct the program
participants to connect these concepts, many of the 49 AFH submissions
identified contributing factors which did not logically connect to the
analysis of fair housing issues undertaken. In addition, factors which
the program participants themselves identified in other portions of the
Assessment Tool were not identified in the responses to these
questions. For example, one AFH included 3 pages of detailed analysis
of Home Mortgage Disclosure Act (HMDA) information outlining the
lending discrimination occurring, yet the program participants did not
identify lending discrimination as a contributing factor.\17\
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\17\ See, e.g., Section V, Questions B.1.3/B.2.3/B.3.3/B.4.3/
C.3/D.7 (LG2015 and LG2017).
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(e) Prioritization of Contributing Factors. The final section of
the
[[Page 23925]]
Assessment Tool requires that the program participant(s) prioritize the
contributing factors identified for each fair housing issue analyzed in
the fair housing analysis sections. The program participant(s) must
then justify the prioritization of the contributing factors. Finally,
the program participant(s) set goals designed to overcome the
contributing factors identified as significant. Jurisdictions must
reasonably exercise their discretion to prioritize contributing
factors. The justification provides an opportunity to explain the
prioritization method selected. Many of the 49 submissions either
included in this question contributing factors not identified in the
analysis of fair housing issues or did not include the contributing
factors that were identified. Many program participants also did not
explain their prioritization method. Without this critical link, the
analysis of fair housing issues and the goals do not connect, making
the AFH unacceptable. The Assessment Tool thus fails to provide
adequate guidance for the prioritization of contributing factors.\18\
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\18\ See, e.g., Section VI, Question 1 (LG2015 and LG2017).
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(f) Goals Section was Highly Problematic. The goals section was an
issue in or the sole reason for the majority of initially non-accepted
AFHs. In several submissions, the goals were not likely to result in
meaningful actions, lacked metrics and milestones, were not linked to
contributing factors and fair housing issues, and generally lacked
adequate discussion.
Program participants are responsible for identifying their own fair
housing goals. However, the goals set by the program participant must
connect to the analysis of fair housing issues and result in meaningful
actions to affirmatively further fair housing.
These goals will then be incorporated into Consolidated Plans and
Public Housing Plans. Along with extensive guidance, HUD provides the
following chart in the assessment tool to assist program participants
in completing this question.
----------------------------------------------------------------------------------------------------------------
Metrics, milestones,
Goal Contributing factors Fair housing issues and timeframe for Responsible program
achievement participant(s)
----------------------------------------------------------------------------------------------------------------
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Discussion:
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Many of the 49 AFHs reviewed were deficient in this section, which
is the culmination of the AFH. Goals were frequently overbroad or would
not result in meaningful actions, for example, to ``increase housing
choice,'' or ``partner with . . . .'' Program participants frequently
failed to connect their fair housing goals to the AFH analysis, or to
the contributing factors or fair housing issues identified in the AFH.
Metrics and milestones for evaluating the accomplishment of fair
housing goals were the most frequent source of deficiency in this
section. However, frequently those established in the AFHs were neither
time-bound nor measurable. The discussion section of the chart is a
program participant's opportunity to explain the goal to ensure that
HUD understands its intention and can often counter-balance
deficiencies in or confusion caused by other sections of the chart.
Many of the program participants did not complete this section or
provided only a vague discussion. HUD is therefore concerned that the
roadmap provided in the Assessment Tool is inadequate to lead to the
development of effective goals.\19\
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\19\ See, e.g., Section VI, Question 2 (LG2015 and LG2017).
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(g) Inadequate Responses Due to Duplication. The Local Government
Assessment Tool contains several questions that have elicited
inadequate responses which merely duplicate previous responses to other
questions within the Tool without responding fully to the specific
question asked. The lack of clarity in the questions led to responses
that merely assumed a question was being asked twice and thus failed to
respond fully to the question at hand. Similarities in the sentence
structure and terminology used in the questions may have caused program
participants to overlook slight or nuanced differences between
questions.\20\
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\20\ See, e.g., Section III, Question 3; Section IV, Question 1;
Section V, Questions B.1.1.b/B.3/B.4/C.1.2/D.2.a (LG2017).
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2. HUD Does Not Have the Resources To Provide a Similar Level of
Technical Assistance to Expanding Numbers of Program Participants in
2018 and 2019
Because of these significant problems with the Tool, HUD has
provided substantial technical assistance to this initial round of
program participants, even for the AFHs that have been accepted. HUD
does not have the resources to continue to provide program participants
with the level of technical assistance that they would need to submit
acceptable AFHs using the current version of the Local Government
Assessment Tool. Despite the fact that many jurisdictions reportedly
have found it necessary to engage consultants to complete the
Assessment Tool, HUD estimates that it has spent over $3.5 million on
technical assistance for the initial round of 49 AFH submissions. In
addition to contract technical assistance services, significant HUD
staff resources are required to review an AFH for acceptability and to
communicate with program participants regarding HUD's determination to
accept or non-accept an AFH.
Although HUD anticipated providing technical assistance to program
participants to assist them in submitting acceptable assessments, the
amount of assistance that has proved to be required with the current
version of the Local Government Assessment Tool is not sustainable
particularly in light of the significant increase in AFH submissions
scheduled to occur in 2018 and 2019. In 2018, for example, 104 local
government program participants are scheduled to submit AFHs to HUD. In
2019, the number of local governments originally scheduled to submit
their AFHs rises to 752. The level of technical assistance provided to
the initial 49 participants could not be extended to these numbers of
AFHs due in 2018 and 2019.
And due to the deficiencies in the Local Government Assessment
Tool, HUD believes that, without the withdrawal and revision of the
Tool, a high percentage of AFHs in future rounds of submissions would
not be initially acceptable. Because the problems with the Tool have
created the above-described patterns of deficiencies in AFH submissions
even from collaborative groups leveraging the resources of multiple
jurisdictions, HUD
[[Page 23926]]
does not believe that the level of technical assistance it has been
required to provide to the initial 49 AFHs would decrease meaningfully
as result of expanded usage of the Tool. As a result, in 2018 and 2019,
HUD would not be able to provide all program participants with the
extent of assistance provided to those in the initial round of AFHs,
meaning that these participants would not have the help they would need
to correct their assessments. This would lead to a great deal of
uncertainty for program participants as to how to submit an acceptable
AFH. Such uncertainty would, in turn, lead to uncertainty regarding the
status of their HUD-funded programs so long as they do not have an
accepted AFH in place.
3. In Light of HUD and Local Government Program Participants' Resource
Limitations, Temporary Withdrawal of the Local Government Assessment
Tool Is Necessary as the Most Efficient Way To Resolve the Tool's
Significant Deficiencies
HUD is withdrawing the Tool to produce a more effective and less
burdensome Assessment Tool. These improvements to the Tool will make it
more effective in assisting program participants with the creation of
meaningful assessments with impactful fair housing goals to help them
plan to fulfill their legal obligation to affirmatively further fair
housing. Withdrawal and revision of the Assessment Tool will also
conserve HUD's limited resources, allowing HUD to use those limited
resources more effectively to help program participants produce
meaningful improvements in the communities they serve. HUD also
believes that investing additional time to improve its Data and Mapping
Tool (AFFH-T) and the User Interface (AFFH-UI) will result in more
substantive assessments with greater fair housing impact.
III. Effects of Withdrawal of Assessment Tool
The AFFH regulations at 24 CFR 5.160(a)(1)(ii) provide that if the
specified AFH submission deadline results in a submission date that is
less than 9 months after the Assessment Tool designed for the relevant
type of program participant is available for use, ``the
participants(s)' submission deadline will be extended . . . to a date
that will be not less than 9 months from the date of publication of the
Assessment Tool.'' For example, in the case of the Assessment Tool for
use by PHAs, HUD published a notice in January 2017, advising that the
Assessment Tool had been approved pursuant to the PRA process, but was
not yet available for use by PHAs because the HUD data needed to make
the Assessment Tool workable was not yet available.\21\ Accordingly,
under 24 CFR 5.160(a)(1)(ii), the deadline for first AFH submissions by
PHAs was extended until a workable Assessment Tool becomes available.
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\21\ 82 FR 4373.
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Similarly, in the case of the Local Government Assessment Tool, HUD
has determined that the current iteration of the Tool, although
published after PRA procedures, is substantively deficient and unduly
burdensome because it has resulted in great expense to program
participants and HUD, yet it is not adequately guiding participants
through the creation of acceptable AFHs. Accordingly, HUD is
immediately withdrawing the Local Government Assessment Tool. As a
result, local jurisdictions do not have an approved Assessment Tool
that is published and available for use in completing the AFHs.
Pursuant to 24 CFR 5.160(a)(1)(ii), the deadline for local government
program participants to submit a first AFH is thus extended to a date
not less than 9 months following the future publication of a revised
and approved Local Government Assessment Tool. HUD is immediately
seeking comment on ways to make the Local Government Assessment Tool
workable and effective. Pursuant to 24 CFR 5.160(a)(1)(ii), the future
published notice announcing that a revised and approved Local
Government Assessment Tool is available will also provide program
participants with the revised due date for first AFH submissions.
Consolidated plan program participants that have not yet submitted
their first AFHs must nonetheless continue to comply with existing,
ongoing legal obligations to affirmatively further fair housing (legal
obligations which AFHs were merely intended to help participants plan
to fulfill). Pursuant to 24 CFR 5.160(a)(3), until a consolidated plan
program participant submits its first AFH, it will continue to provide
the AFFH certification with its Consolidated Plan, in accordance with
the requirements that existed prior to August 17, 2015. Those
requirements obligate a program participant to certify that it will
affirmatively further fair housing, which means that it will conduct an
analysis of impediments (AI) to fair housing choice within the
jurisdiction, take appropriate actions to overcome the effects of any
impediments identified through that analysis, and maintain records
reflecting the analysis and actions.
For Consolidated plan program participants that are starting a new
3-5-year Consolidated plan cycle that begins before their due date for
an AFH, the AI should continue to be updated in accordance with the
HUD, Fair Housing Planning Guide (1996), available at https://www.hud.gov/sites/documents/FHPG.PDF. The data HUD has developed in
order to implement the AFFH rule will remain available for program
participants to use in conducting their AIs. HUD encourages program
participants to collaborate to develop a regional AI, as regional
collaborations provide an opportunity for program participants to share
resources and address fair housing issues that cross jurisdictional
boundaries.\22\
Program participants that have already submitted an AFH which has
been accepted by HUD must continue to execute the goals of that
accepted AFH and are not required to conduct a separate AI. HUD will
discontinue the review of AFHs submitted by local governments that are
currently under review and will not render a decision to accept or not
accept. In cases where HUD denied acceptance of an AFH submission that
used the withdrawn Local Government Assessment Tool and the program
participant(s) were preparing to re-submit an AFH, the participant(s)
should not submit a revised AFH. Finally, local governments prepared to
submit their first AFH should not submit an AFH to HUD. Local
governments that have not received an accept or non-accept
determination from HUD, or that have received a non-accept but will no
longer be required to resubmit their AFH, are still required to prepare
an AI, as described above in this notice. Program participants must
continue to fulfill their legal obligations to affirmatively further
fair housing.
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\22\ Please refer to HUD's 2017 interim guidance for additional
information on collaboration, specifically the Q&A captioned: ``How
can States Collaborate with Local Governments or PHAs?''. The
guidance is available at: https://www.hudexchange.info/resources/documents/Interim-Guidance-for-Program-Participants-on-Status-of-Assessment-Tools-and-Submission-Options.pdf. This guidance is
generally applicable to all types of program participants.
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IV. Request for Public Comment on Improvements to the Local Government
Assessment Tool
This notice offers the opportunity for the public to provide
information and recommendations on revisions to the Local Government
Assessment Tool. HUD welcomes and will consider all
[[Page 23927]]
responses to this notice when reconsidering the Assessment Tool
Dated: May 18, 2018.
Anna Maria Far[iacute]as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018-11146 Filed 5-21-18; 4:15 pm]
BILLING CODE 4210-67-P
