Affirmatively Furthering Fair Housing Assessment Tool for Public Housing Agencies Solicitation of Comment-60-Day Notice Under Paperwork Reduction Act of 1995

AGENCY:

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

ACTION:

Notice.

SUMMARY:

On July 16, 2015, HUD published the Affirmatively Furthering Fair Housing (AFFH) final rule that provides HUD program participants with a new process for planning for fair housing outcomes that will assist them in meeting their statutory obligation to affirmatively further fair housing. This process includes an assessment tool that program participants must use to evaluate fair housing choice and access to opportunity in their jurisdictions, to identify barriers to fair housing choice and opportunity at the local and regional levels, and to set fair housing goals to overcome such barriers and advance fair housing choice.

HUD committed to issue three assessment tools for its program participants covered by the AFFH final rule. One assessment tool is for use by local governments (Local Government Assessment Tool) that receive assistance under certain grant programs administered by HUD's Office of Community Planning and Development (CPD), as well as by joint and regional collaborations between: (i) Local governments; (ii) one or more local governments and one or more public housing agency (PHA) partners; and (iii) other collaborations in which such a local government is designated as the lead for the collaboration. The second tool is for States and Insular Areas (State and Insular Area Assessment Tool), including joint collaborations (with local governments and/or PHAs, both of which would require HUD approval) where the State is designated as the lead entity. The third assessment tool, which is the subject of this Notice, is for PHAs (including for joint collaborations among multiple PHAs) (PHA Assessment Tool). On December 31, 2015, following 60-day and 30-day public comment periods under the Paperwork Reduction Act, HUD issued the Local Government Assessment Tool. On March 11, 2016, at 81 FR 12921, HUD issued for public comment the proposed State and Insular Area Assessment Tool for a 60-day period of public comment.

This Notice solicits public comment for a period of 60 days on the proposed PHA Assessment Tool. In seeking comment for a period of 60 days, this notice commences the process for compliance with the Paperwork Reduction Act of 1995 (PRA). The PRA requires two public comment periods—a public comment period of 60 days and a second comment period of 30 days. After consideration of the public comments submitted in response to this notice, HUD will solicit a second round of public comments for a period of 30 days on the proposed PHA Assessment Tool.

DATES:

Comment Due Date: May 23, 2016.

ADDRESSES:

Interested persons are invited to submit comments regarding this notice to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.

1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.

2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make public comments immediately available to the public. Comments submitted electronically through the www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

Note:

To receive consideration as public comments, comments must be submitted through one of the two methods specified above. 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 Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals who are deaf or hard of hearing and individuals with speech impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Dustin Parks, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW., Room 5249, Washington, DC 20410-0500; telephone number 202-708-1112 (this is not a toll-free number). Persons who are deaf or hard of hearing and persons with speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On July 16, 2015, at 80 FR 42272, HUD issued its final AFFH rule. The AFFH rule provides a new approach to enable program participants to more fully incorporate fair housing considerations into their existing planning processes and assist them in their efforts to comply with their duty to affirmatively further fair housing as required by the Fair Housing Act, which is Title VIII of the Civil Rights Act, and other authorities. The Fair Housing Act not only prohibits discrimination, but, in conjunction with other statutes, directs HUD's program participants to take meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.

The new approach established by HUD replaces the existing analysis of impediments (AI) process. The approach is designed to assist program participants in analyzing their fair housing environment, identifying fair housing issues and the related contributing factors, and setting fair housing goals, and, ultimately, taking meaningful actions to affirmatively further fair housing. This approach builds upon and refines the fair housing elements of the existing fair housing planning processes that are in the process of being replaced as the AFH process is being phased in pursuant to the AFFH rule.

To assist 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.). To aid in the completion of an AFH, HUD committed to provide program participants and the public with certain nationally available data relevant to the AFH. The HUD provided data includes certain data related to: Demographics; patterns of integration and segregation; racially or ethnically concentrated areas of poverty (R/ECAPs); disparities in access to education, employment, low-poverty neighborhoods, transportation, and environmental health; disproportionate housing needs; data on publicly supported housing, including location and occupancy patterns. Using these data, together with other available local data and local knowledge, program participants will evaluate their present fair housing environment to assess fair housing issues, identify significant contributing factors that create, contribute to, perpetuate, or increase the severity of those issues, and set forth fair housing priorities and goals to address fair housing issues and significant contributing factors. By engaging in the analysis of this information, program participants, with the input of the community, can set fair housing priorities and goals that will better inform their AFFH strategies and actions.

As noted in the Summary of this document, HUD has committed to issue three assessment tools: The Local Government Assessment Tool, the State and Insular Area Assessment Tool, and the PHA Assessment Tool. The final Local Government Assessment Tool issued by HUD and published in the Federal Register, at 80 FR 81840, on December 31, 2015. The Local Government Assessment Tool provides the basic structure and primary areas to be covered by all three assessment tools. The final Local Government Assessment Tool, the instructions for this tool, an AFFH Rule Guidebook, and the AFFH Data and Mapping Tool can all be found at https://www.hudexchange.info/programs/affh/. As also noted in the Summary of this document, HUD issued for public comment the proposed State and Insular Area Assessment Tool. The proposed State and Insular Area Assessment Tool can also be found at https://www.hudexchange.info/programs/affh/.

As with the Local Government Assessment Tool and the State and Insular Area Assessment Tool, the PHA Assessment Tool will allow for collaboration with other PHAs. In all of the three assessment tools, HUD encourages such collaboration.

II. The Proposed PHA Assessment Tool

A. Sources of Data and Information To Complete the Assessment of Fair Housing

HUD-Provided Data: One of HUD's major considerations in formulating the new AFFH planning process is to provide certain nationally uniform data to program participants that would be useful in completing an AFH. All program participants must use the HUD-provided data, which includes data for the program participant's jurisdiction and region, to complete the AFH. A collaborative AFH must reference the HUD-provided data for each program participant's jurisdiction and region The HUD-provided data will help program participants assess local and regional fair housing issues and contributing factors and set priorities and goals to overcome them. The HUD-provided data will be used by various types of program participants (e.g. those in urban areas, rural areas, suburban areas, majority-minority communities), which may have unique characteristics, issues, and challenges. As such, HUD-provided data may have limitations, including limitations in how they apply to geographic areas with different characteristics.

HUD is only able to provide data for those protected class groups for which nationally uniform data are available. For this reason, some questions in the PHA Assessment Tool focus on specific protected classes based on the availability of such data. For these questions, local data and local knowledge may provide information to supplement the analysis for protected classes not covered by the HUD-provided data. Local data and local knowledge can be particularly helpful to supplement the HUD-provided data. For instance, when they are more up-to-date or more accurate than the HUD-provided data or when the HUD-provided data do not cover all of the protected classes that would be relevant to program participants' analyses.

Local Data and Local Knowledge: In addition to the nationally uniform data provided by HUD, program participants are required to use local data and local knowledge to inform their assessments. However, the AFH process does not require program participants to create or compile new data. Rather program participants must consider existing local data and local knowledge that is relevant in order to answer questions in the assessment tool. Local data and local knowledge include data and information gained through the community participation, consultation, and coordination processes set out in the AFFH rule at § 5.158.

Local data are, “metrics, statistics, and other quantified information, subject to a determination of statistical validity by HUD, relevant to the program participant's geographic areas of analysis, that can be found through a reasonable amount of search, are readily available at little or no cost, and are necessary for the completion of the AFH using the Assessment Tool.”

Local knowledge is information “provided by the program participant that relates to the participant's geographic areas of analysis and that is relevant to the program participant's AFH, is known or becomes known to the program participant, and is necessary for the completion of the AFH using the Assessment Tool.” A program participant must complete its AFH using the assessment tool with the assistance of the HUD-provided data, along with local data, local knowledge, including information gained through community participation, that meets the criteria of the definitions above. Program participants must also use reasonable judgment in deciding what supplemental information from among the numerous sources available would be most relevant to their analysis. HUD does not expect program participants to hire statisticians or other consultants to locate and analyze all possible sources of local data. To the extent that HUD does not provide data for a program participant to respond to a question in the assessment tool, and there is no local data and no local knowledge that would be responsive to the question, stating that data and knowledge are unavailable to the program participant is an acceptable and complete response to that particular question.

B. Structure of the Proposed PHA Assessment Tool

This proposed PHA Assessment Tool has three key objectives. First, the assessment tool must ask questions that would be sufficient to enable program participants to perform a meaningful assessment of key fair housing issues and contributing factors and set meaningful fair housing goals and priorities. Second, the assessment tool must clearly convey the analysis of fair housing issues and contributing factors that program participants must undertake in order for an AFH to be accepted by HUD. Third, the assessment tool must be designed so program participants would be able to use it to prepare an AFH that HUD would accept without unnecessary burden.

The following discussion presents the structure for the proposed PHA Assessment Tool program.

Section I. As is the case with the Local Government Assessment Tool and State and Insular Area Assessment Tool, Section I contains the Cover Sheet and Certification and addresses basic information applicable to the program participant or program participants (where there are joint submissions), such as the name of the entity making the submission, the type of submission (e.g., whether it is a submission by a PHA, individually, or a PHA in collaboration with one or more PHAs), the time period covered by the assessment, and the required certifications.

Section II. This section of the proposed PHA Assessment Tool is an Executive Summary, which provides the opportunity to present a general overview of the AFH's findings and the fair housing priorities and goals established.

Section III. This section of the proposed PHA Assessment Tool addresses the community participation process and directs the PHA to describe outreach activities to encourage community participation in the development and review of the AFH, to describe how successful its outreach efforts were in obtaining community participation related to the AFH, and to summarize all comments obtained in the community participation process, including a summary of any comments or views not accepted and the reasons why.

Section IV. This section of the proposed PHA Assessment Tool, entitled “Assessment of Past Goals and Actions,” asks PHAs to explain the fair housing goals they selected in their recent AIs, AFHs, or other relevant planning documents, and the extent of progress that was made in achieving these goals. In essence, this section requires PHAs to reflect upon the progress of past goals and actions and the efforts undertaken to achieve fair housing goals. This section also solicits information on how such experience influenced the selection of fair housing goals that the PHA sets in the current AFH.

Section V. This section of the proposed PHA Assessment Tool, entitled “Fair Housing Analysis,” presents the core analysis to be undertaken by PHAs. This section of the proposed PHA Assessment Tool is structured to help PHAs identify the fair housing issues and contributing factors in their service area and region. The proposed PHA Assessment Tool requires PHAs to examine fair housing issues that exist within the service area of the PHA and those that may go beyond the boundaries of the PHA's service area into a broader region. As stated in the other two assessment tools, fair housing issues often cross political-geographic boundaries, and the PHA must still consider if that is the case for any fair housing issues and significant contributing factors identified in their AFH.

Section V includes an assessment of certain key fair housing issues—segregation and integration, racially or ethnically concentrated areas of poverty, disparities in access to opportunity, disproportionate housing needs, publicly supported housing, and disability and access. Each subsection of Section V also includes targeted questions to help identify fair housing issues relevant to the PHA.

Section VI. Section VI, Fair Housing Goals and Priorities, contains a summary table of the fair housing issues that the PHA has identified. The table includes a framework for the PHA to establish fair housing goals to overcome significant contributing factors and related fair housing issues by setting specific goals that include metrics and milestones, and a timeframe for achievement. The preceding discussion presented a brief overview of the structure and content of the proposed PHA Assessment Tool. For PHAs, other HUD program participants, and the public generally, HUD provides at https://www.hudexchange.info/programs/affh/ a comparison of the proposed PHA Assessment Tool to the final Local Government Assessment Tool so that covered program participants and interested parties can see in detail the differences between this proposed PHA Assessment Tool and the Local Government Assessment Tool issued on December 31, 2015.

C. Instructions To Accompany the Proposed PHA Tool

The instructions, which will be part of the proposed PHA Assessment Tool, are also provided for public comment at https://www.hudexchange.info/programs/affh/. The comparison of this proposed PHA Assessment Tool to the Local Government Assessment Tool issued on December 31, 2015, also highlights the differences in instructions provided in the Local Government Assessment Tool and the proposed PHA Assessment Tool.

The instructions for completing an AFH include descriptions of the maps and data provided by HUD for PHAs' use in answering specific questions in the Assessment Tool. Some PHAs may not have had much experience analyzing data and may find some of the terminology in the instructions complex. HUD has attempted to address these concerns by providing explanations where it believed PHAs might not understand the terminology used. For example, before asking program participants to use the dissimilarity index, HUD described in the instructions what the dissimilarity index is and how to use it to answer the question. To aid PHAs and other program participants in understanding how to conduct an AFH using the PHA Assessment Tool, HUD will also provide additional information and explanation in the AFFH Rule Guidebook.

Specific solicitation of comment: HUD is soliciting comment on whether the instructions are effective in explaining the terminology used and in explaining the analysis required by the Assessment Tool. If commenters believe the instructions could be improved to provide more clarity for PHAs that are inexperienced in using data to assess fair housing issues, please specify ways in which HUD could revise the instructions or give more detailed guidance in the AFFH Rule Guidebook to provide more clarity for inexperience PHAs about the HUD-provided data and the required analysis.

D. Qualified PHAs

As noted in the Summary of this document, on March 11, 2016, HUD published in the Federal Register the State Assessment Tool for public comment for a period of 60 days. That Assessment Tool included a separate section with a set of discrete questions specifically designed for Qualified PHAs that seek to collaborate with a State Entity on a Joint or Regional AFH. It also included a separate section of Instructions specifically designed for those questions. The State Assessment Tool instructions were drafted with recognition that the HUD-provided maps and tables may have known limitations especially for very small jurisdictional areas and rural areas. In addition, the State Assessment Tool was intended to foster and encourage joint and regional collaborations with Qualified PHAs as the State's analysis is expected to fulfill the regional portion of the Qualified PHA's analysis, with specific questions regarding the Q-PHA's service area to be addressed in the section with those questions.

All program participants, regardless of size, have the legal duty to affirmatively further fair housing and to conduct an AFH. Each program participant may choose to submit an individual AFH or a collaborative AFH as set out in the AFFH rule. For program participants that choose to collaborate, a collaborative AFH may reduce burden, promote information and resource sharing, and provide a more comprehensive fair housing analysis for each collaborating program participant. For this reason, HUD encourages all program participants to collaborate. A Qualified PHA collaborating with another entity may be aided to the extent that the two agencies share in the responsibilities to conduct the AFH, and to the extent they share a common region (e.g. a State or a CBSA), they may also be able to rely on the analysis of that shared region to fulfill their responsibilities for the regional portion of their own analysis.

The PHA Assessment Tool may be used by PHAs, including Qualified PHAs that elect to submit either an individual AFH or a collaborative AFH involving a collaboration of more than one PHA. To make PHAs aware of additional sources of local knowledge that PHAs may consult to inform their AFHs, HUD has added language to the Instructions for the PHA Assessment Tool to clarify that PHAs may consult with existing AFHs or other planning documents (e.g. a Fair Housing Equity Assessment) already conducted by relevant agencies, such as a state or local government in the PHA's service area or region.

Specific solicitation of comment: HUD is specifically requesting comment on whether PHAs and Qualified PHAs expect to collaborate when submitting an AFH and, if so, the types of entities that they expect to collaborate with—i.e., States, local governments, or other PHAs? In addition, HUD seeks comment on the ways in which the PHA Assessment Tool can facilitate a collaborative AFH by a PHA and one or more Qualified PHAs. How could a joint or regional assessment using the PHA Assessment Tool be structured in a way to fulfill a regional analysis for Qualified PHAs in different types of areas, e.g. within metropolitan statistical areas, or in non-metro areas, including rural areas?

E. Solicitation of Specific Comment on the Proposed PHA Assessment Tool

While the primary purpose of comment under the Paperwork Reduction Act is to determine the burden of any information collection requirement, HUD also solicits comment on the content of the proposed PHA Assessment Tool, the clarity of the questions presented and whether there are areas of information sought that PHAs and the public believe are not necessary to a meaningful AFH, or whether there are important areas of information for conducting a meaningful fair housing analysis that HUD may have overlooked. HUD anticipates that it will conduct outreach to program participants and fair housing groups relating to these issues. HUD also solicits comments for the following questions:

Content of the Assessment Tool

In the proposed assessment tool for PHAs, HUD has made changes to the Local Government Assessment Tool in order to capture the appropriate level of information for PHAs conducting a fair housing analysis and priority and goal setting. Some questions have been removed, new questions have been added, and some questions remain, but with revisions. As noted earlier in this notice, HUD's AFFH Web page at https://www.hudexchange.info/programs/affh/ provides a comparison of the Local Government Assessment Tool and this proposed PHA Assessment Tool.

One of the differences between the Local Government Assessment Tool and the proposed PHA Assessment Tool is the structure of the publicly supported housing section. HUD has added two additional subsections to this part of the analysis. The first, “Public Housing Agency Program Analysis,” asks specific questions relating to the demographics and location and occupancy of the PHA's programs including public housing and Housing Choice Vouchers (HCV). The second, “Fair Housing Analysis of Rental Housing,” asks PHAs to assess rental housing, including affordable rental housing, in their service areas and regions. This subsection also asks for an analysis of HCVs in the service area and region with respect to whether HCV-assisted households, by protected class, are able to access affordable rental housing in areas that would promote integration and provide access to opportunity.

Specific solicitation of comment: HUD acknowledges that these two new subsections increases the number of questions in this section, while attempting to focus a particular set of questions directly to PHA program operations, developments and assisted residents. HUD seeks comment on whether this structure of adding a specific focus on PHA programs will better facilitate the fair housing analysis PHAs must conduct, or, whether these questions should be combined with the “Other Publicly Supported Housing Programs” subsection, using a structure similar to what was used in the Local Government Assessment Tool.

Specific solicitation of comment: HUD seeks comment on whether conducting the new “Fair Housing Analysis of Rental Housing” for all PHAs will result in a more robust analysis of fair housing in the PHA's service area and region, even for PHAs that only administer public housing. HUD seeks comment on whether this section should apply only to PHAs that administer HCVs and, if so, asks commenters to provide the reasoning.

Another difference between the Local Government Assessment Tool and the proposed PHA Assessment Tool occurs in the analysis of contributing factors. HUD has removed some contributing factors that did not seem as relevant for PHAs, and also added other contributing factors that seem more relevant for PHAs. New contributing factors include: Restrictions on landlords accepting vouchers, impediments to portability, and policies related to payment standards, FMR, and rent subsidies. Descriptions of contributing factors are included as an appendix to the proposed PHA Assessment Tool.

Specific solicitation of comment: HUD acknowledges that the relevance of contributing factors may vary depending on the type of program participant conducting a fair housing analysis. HUD seeks comment on whether it has identified the most relevant contributing factors for PHAs for purposes of conducting a fair housing assessment and setting fair housing goals and priorities. Commenters are asked to state if there are contributing factors that are not relevant for PHAs, and to please identify them and provide an explanation for why they are not relevant to a PHA's fair housing analysis. Commenters are also asked if additional contributing factors should be included, and to please provide the factor and an explanation of why it is relevant to a PHA's fair housing analysis.

HUD has also reordered the sections of the proposed PHA Assessment Tool so the organization is different than in the Local Government Tool. The Disability and Access Analysis section now comes before the Publicly Supported Housing Analysis section.

Specific solicitation of comment: The analysis of disability and access will likely inform the PHA's analysis of publicly supported housing. HUD seeks comment on whether the order of the sections will better facilitate the PHA's fair housing analysis.

Identifying PHA Service Areas

As noted above, HUD intends to provide data that PHAs will use to conduct their AFH. HUD acknowledges that PHAs' service areas are determined by State legislation and their scope may vary. HUD does not currently have data for all PHAs' service areas. In order to provide data to assist PHAs in conducting their AFH, HUD will need to obtain information about each PHA's service area in order to provide relevant data to the PHA.

HUD will provide an online geospatial tool, either in the existing AFFH Data and Mapping Tool (AFFH-T) or in a related online web portal that will provide PHAs the ability to select from a variety of geographic units, the one unit or combination of units that most closely fits their service area. Geographic units include the most commonly used administrative geographic units mapped by the U.S. Census Bureau. These may include geographic entities such as census tracts, incorporated places or minor civil divisions (collectively known to HUD as units of general local government), entire counties, the balance of counties after incorporated entities have been removed, entire states, or the balance of states after incorporated local government jurisdictions have been removed. In many cases, PHA service areas will be the same as local governments that are already identified in the AFFH-T, while in others PHAs would have the ability to identify their unique service area borders using the online tool.

Specific solicitation of comment: HUD seeks comment on an efficient manner in which HUD could use to obtain information about each PHA's service area without causing unnecessary burden.

Specific solicitation of comment: HUD seeks comment on how fair housing issues may affect families on a PHA's waiting list. HUD understands that data may be limited with regards to the persons on such lists and seeks comment on whether PHAs have relevant information related to such residents. HUD specifically seeks comment on to what extent do PHAs have information to inform answers to the questions related to families on PHA waiting lists? Is HUD asking the appropriate questions with regards to this population or are there alternative considerations that PHAs should be asked to consider as part of the analysis?

III. Compliance With the Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a valid control number issued by the Office of Management and Budget (OMB). Through this notice, HUD commences the process for obtaining the requisite approval by OMB under the PRA process.

The public reporting burden for the proposed State and Insular Area Assessment Tool is estimated to include the time for reviewing the instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Information on the estimated public reporting burden is provided in the following table:

In accordance with 5 CFR 1320.8(d)(1), HUD is specifically soliciting comment on the proposed PHA Tool from members of the public and affected program participants on the following:

(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

HUD encourages not only program participants but interested persons to submit comments regarding the information collection requirements in this proposal. Comments must be received by May 23, 2016 to www.regulations.gov as provided under the ADDRESSES section of this notice. Comments must refer to the proposal by name and docket number (FR-5173-N-02).

Following consideration of public comments submitted in response to this notice, HUD will submit for further public comment, for a period of 30 days, a version of the PHA Assessment Tool that reflects consideration of the public comments received in response to this notice.