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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-23449

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** September 28, 2016
- **Citation:** 81 FR 66754

## Text

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5173-N-08-B]
Affirmatively Furthering Fair Housing: Assessment Tool for States and Insular Area—Information Collection: Solicitation of Comment First 30-Day Notice Under Paperwork Reduction Act of 1995

AGENCY:

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

ACTION:

Notice.

SUMMARY:

This notice solicits public comment for a period of 30 days, consistent with the Paperwork Reduction Act of 1995 (PRA), on the State and Insular Area Assessment Tool. This Assessment Tool will be used by States, including for joint or regional collaborations where the State is the lead entity and they are joined by local governments and PHAs. The Assessment Tool issued for public comment under this Notice includes a streamlined analysis for “small program participants,” which are either QPHAs or local governments that received a CDBG grant of $500,000 or less in the most recent fiscal year prior to the due date for the joint or regional AFH or a HOME consortium whose members collectively received less than $500,000 in CDBG funds or received no CDBG funding in the most recent fiscal year prior to the due date for the joint or regional AFH.

In addition, this Assessment Tool will be used by other local governments and public housing agencies when these entities collaborate with a State agency that is acting as the lead entity for a joint assessment of fair housing. HUD recognizes that questions within this Assessment Tool have been written primarily for States with inserts for QPHAs and small program participants. After this 30-day public comment period HUD commits to update the Assessment Tool to facilitate collaborations with local governments and PHAs which are not QPHAs or other small program participants.

On March 11, 2016, HUD solicited public comment for a period of 60 days on the State and Insular Area Assessment Tool. The 60-day notice commenced the notice and comment process required by the PRA in order to obtain approval from the Office of Management and Budget (OMB) for the information proposed to be collected by the State and Insular Area Assessment Tool. In this Notice, HUD is also announcing an extended two-stage process for soliciting public feedback on this Assessment Tool. This process is being implemented in response to the substantial public comments received during the 60-day comment period for this Assessment Tool. HUD is committed to providing the public with this opportunity. This 30-Day Notice is intended to solicit comment relating to the Assessment Tool, the instructions that accompany the Assessment Tool, and the descriptions of the contributing factors contained in the Appendix. The second stage is intended to elicit feedback on the beta Data and Mapping tool for States, allow for feedback on the interaction of the Assessment Tool and the supporting Data and Mapping Tool, and make any feasible improvements to the final Data and Mapping tool for States, as well as make any necessary conforming changes to the Assessment Tool. This process is described in more detail in the Notice below.

To facilitate public input on the State and Insular Area Assessment Tool, HUD will post the revised Assessment Tool as well as a compare of this revised Assessment Tool to the proposed Assessment Tool from the 60-day public comment period at
www.hudexchange.info/programs/affh.

DATES:

Comment Due Date:
October 28, 2016.

ADDRESSES:

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

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

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

Note:
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. All submissions must refer to the docket number and title of the notice.

No Facsimile Comments.
Facsimile (FAX) comments are not acceptable.

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

FOR FURTHER INFORMATION CONTACT:

Sunaree Marshall, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW., Room 5246, Washington, DC 20410; telephone number 866-234-2689 (toll-free). Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. The 60-Day Notice for the State and Insular Area Assessment Tool

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

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

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

Based on the need for the public to have an opportunity to comment on the AFFH Data and Mapping Tool (AFFH-T) for States and Insular Areas, HUD is adding a second 30-day comment period.

This extended process will include two stages with notices for public review and comment. This Notice is the first 30-day comment period, and relates to the Assessment Tool itself, as well as the instructions that accompany the Assessment Tool, and the descriptions of contributing factors in the Appendix. Once this comment period has closed, HUD will consider the comments received and make any needed changes. Please note, however, that States and Insular Areas will not be required to begin undertaking an AFH until after the second 30-day comment period has closed, and HUD subsequently publishes a final Notice announcing the availability of this Assessment Tool for use. The purpose of this extended comment process is to allow the public advanced review of the requirements in the Assessment Tool as HUD continues to finalize the AFFH-T. As part of the first stage of this extended PRA process, HUD will also conduct usability testing regarding the Assessment Tool. This usability testing includes HUD soliciting feedback to improve the Assessment Tool and the potential data and user interface IT components.

Following this first stage of the extended PRA process, HUD will provide an updated version of the Assessment Tool. States and Insular Areas will not be required to use the Assessment Tool to complete an AFH until such time HUD publishes a final Notice announcing the availability of the final Assessment Tool and final AFFH-T for States and Insular Areas. This final Notice will not be published until after the second stage of this extended PRA process has been completed. By providing the updated version of the Assessment Tool prior to issuance of the final Notice, HUD is providing an opportunity for the public and program participants to have advanced review of the proposed requirements.

The second stage of this extended PRA process will include a second Notice to solicit public comment and will be accompanied by an updated version of the AFFH-T with components designed specifically for use by States. In addition to the Notice soliciting comment, this second stage will also include additional usability testing intended to elicit feedback on the interaction between the Assessment Tool and the AFFH-T, to inform any necessary changes to the Assessment Tool itself.

This extended PRA process will allow for HUD to issue policy of relevant AFFH documents at several stages as well as result in a more accurate estimate of burden for States based on interactive feedback and more realistic conditions for evaluating the information collection instruments being proposed while maintaining a meaningful fair housing analysis. This extended process is also intended to help HUD fulfill the commitment it announced in the Preamble to the AFFH Final Rule, “that HUD will provide versions of the Assessment Tools . . . that are tailored to the roles and responsibilities of the various program participants covered by this rule. HUD [agrees] that a one size Assessment Tool does not fit all and that Assessment Tools tailored to the roles and responsibilities of the various program participants, whether they are entitlement jurisdictions, States, or public housing agencies (PHAs), will eliminate examination of areas that are outside of a program participant's area of responsibility.” 80 FR 42349 (July 16, 2015).

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

The following highlights changes made to the State and Insular Area Assessment Tool in response to public comment and further consideration of issues by HUD.

Inserts.
In addition to the insert HUD proposed in its first solicitation of public comment for Qualified Public Housing Agencies, HUD has created a streamlined set of questions (an “insert”) that may be used by local government consolidated plan program participants that receive relatively small CDBG grants and collaborate with a State, where the State is the lead entity, using this Assessment Tool. HUD is proposing that local governments that received a CDBG grant of $500,000 or less in the most recent fiscal year prior to the due date for the joint or regional AFH may use the insert as part of a collaboration. HOME consortia whose members collectively received less than $500,000 in CDBG funds or received no CDBG funding, in the most recent fiscal year prior to the due date for the joint or regional AFH would also be permitted to use the insert. HUD welcomes input with regard to the utility of the proposed QPHA insert and the proposed insert for local governments that receive smaller amounts of CDBG funds for conducting the jurisdictional and regional analysis of fair housing issues and contributing factors as well as the classifications of grantees that would be permitted to use the inserts as part of a collaboration. HUD will continue to assess the content of such inserts at the next opportunity for Paperwork Reduction Act approval.

Further, HUD has committed to issuing a fourth assessment tool to be used by Qualified PHAs (including joint collaborations among multiple QPHAs). HUD is also committed to continue to explore opportunities to reduce the burden of conducting AFFH analyses by consolidated planning agencies that receive relatively small amounts of HUD funding.

Segregation/Integration Section.
HUD has clarified the questions in this section so that they are more applicable to States. HUD has also clarified how the State should analyze trends relating to patterns of segregation and integration in the State.

Racially or Ethnically Concentrated Areas of Poverty (R/ECAPs) Section.
HUD has clarified the scope of the analysis that States must conduct when analyzing R/ECAPs. HUD has also clarified how the State should analyze trends relating to R/ECAPs in the State.

Disparities in Access to Opportunity Section.
HUD has changed the questions throughout this section of the Assessment Tool to address the scope of the analysis at the State-level. HUD has also included a question in the “Additional Information” subsection of the Disparities in Access to Opportunity Section that relates to other categories of opportunity. This question is limited to information obtained through the community participation process regarding disparities in access to opportunity by protected class groups

and place of residence. These other categories may include State level programs, resources, or services related to: Public safety (
e.g.,
crime, fire and emergency medical services, and services for survivors of domestic violence); public health (
e.g.,
chronic disease prevention); housing finance and other financial services (
e.g.,
State lending programs, tax incentives, and other housing finance programs); prisoner re-entry (
e.g.,
re-entry housing, employment, counseling, education, and other opportunities for offenders transitioning back into the community); emergency management and preparedness (
e.g.,
prevention, protection, mitigation, response, and recovery); and any other opportunity areas obtained through community participation.

Disproportionate Housing Needs.
HUD has clarified the question in this section relating to how States should analyze trends relating to disproportionate housing needs in the State.

Publicly Supported Housing.
HUD has clarified the questions in the Low Income Housing Tax Credit (LIHTC) subsection.

Disability and Access.
HUD has clarified the questions in the Housing Accessibility subsection. HUD has also added a question to the Integration of Persons with Disabilities Living in Institutions or Other Segregated Settings subsection that relates to the Money Follows the Persons Program, Medicaid, and other State programs serving individuals with disabilities in integrated settings. In the Disparities in Access to Opportunity subsection of the Disability and Access Section, HUD has revised the opportunities included in the first question. Program participants are now asked to assess the extent to which persons with disabilities are able to access the following and other major barriers faced: State government services and facilities; State-funded public infrastructure; State-funded transportation; State-funded proficient schools and educational programs, including post-secondary and vocational educational opportunities; State jobs and job programs; State parks and recreational facilities; and State-funded criminal justice diversion and post-incarceration re-entry services.

Fair Housing Monitoring and Enforcement, Outreach Capacity, and Resources.
HUD has revised the heading of this section of the Assessment Tool to include “Monitoring” due to the role States play with respect to fair housing. HUD has also included two additional questions in this section. The first relates to the State's monitoring and enforcement of sub-recipients to ensure compliance with the obligation to affirmatively further fair housing and other fair housing and civil rights requirements. The second relates to how the State ensures that projects comply with Federal, state, and other accessibility requirements (
e.g.,
monitoring, inspection, training, etc.), and how the State enforces these requirements.

Instructions.
HUD has added clarifying language throughout the instructions to the Assessment Tool. For example, HUD has clarified that States will have flexibility should they choose to select sub-state areas to facilitate their fair housing analysis. HUD has provided additional guidance relating to how program participants might consider assessing the success of their community participation process. In the instructions that relate to the Disparities in Access to Opportunity section, HUD has provided revised instructions for the new question structure that has been adopted in that section of the Assessment Tool, as well as additional guidance on how to use the Opportunity Indices to conduct a fair housing analysis at the State-level. HUD has included additional potential sources of local data and local knowledge specifically related to the Disability and Access analysis. HUD has also provided general instructions, as well as question-by-question instructions for the two inserts—for QPHAs and Small Program Participants.

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

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

Comments on the Assessment Tool

Do not base the State Tool on the Local Government Tool.
Commenters stated that HUD should reconsider the development of a de novo tool for States rather than adapting the one created for local governments because of the different scales involved. The commenters stated that most States are much larger and more geographically and demographically diverse than individual communities. The commenters also stated that the tool does not provide sufficient differentiation between entitlement and non-entitlement areas of the State. The commenters stated that the State tool should provide a structure for an appropriately scaled State-level analysis, which would offer States the flexibility to incorporate detailed, local-level analysis if necessary.

Several commenters stated that the tool appears to be developed for local jurisdictions where detailed evaluation can occur; aggregating the information up to the State level dilutes the level of detail and specific circumstances that need to be addressed to promote access to safe, decent, and affordable housing. The commenters stated that the expanded scope of the AFH compared to the Analysis of Impediments (AI) will raise the cost substantially and will be less useful because it will divert resources to collaborating with PHAs, analyzing data, and reporting to HUD. Another commenter stated that States do not have the planning or mapping departments that many local municipalities have to do the comparisons or overlaying of factors.

Other commenters stated that the tool for States and Insular Areas includes components not found in the other program participants' tool, such as a far greater extent of analysis in each section, requiring State grantees to include an assessment of past fair housing goals of other public entities goals, actions, and strategies, requiring State grantees to conduct AFHs for small PHAs, including limited English proficiency (LEP) persons in every section of the tool for only State grantees, and no option to collaborate with other program participants in a regional AFH without being the lead entity.

HUD Response:
HUD understands and appreciates the commenters' concerns. The AFFH Regulation sets forth the broad framework that each of the assessment tools must follow in terms of assessing the regulatory categories of fair housing issues, identifying and prioritizing contributing factors, and setting fair housing goals. While the proposed State Tool adopts the framework of the Local Government Assessment Tool, HUD has adapted the content to try to account for the different scope, level of geography, and role of States. With regards to concerns about the scope, HUD notes that States must set priorities and goals for overcoming significant contributing

factors and related fair housing issues. See 24 CFR 5.154(d)(iii). That standard applies to all program participants that must comply with the AFFH Rule. See 24 CFR 5.154(b). HUD also notes that in each Assessment Tool, program participants must use the HUD-provided data, which includes limited English proficient (LEP) persons; as such, this requirement is not limited to States.

The tool is and is not a good mechanism for affirmatively furthering fair housing.
Commenters stated that the tool is costly and will produce nothing but higher areas of poverty, and HUD should instead spend taxpayer money on programs that create opportunities for low-income people to become self-sufficient. A commenter stated that HUD should identify areas of high economic growth within each State and work to increase affordable fair housing opportunities in these areas. Another commenter similarly stated that HUD should simply adopt clear definitions of areas of opportunity and areas of concentrated revitalization initiative, and require HUD funding recipients to dedicate a specified percentage of the HUD resources to addressing those two categories.

In contrast to these commenters, other commenters praised HUD's renewed focus on affirmatively furthering fair housing and expressed support for revamping the existing AI planning tool into an assessment that will provide meaningful analysis of fair housing issues and fully supports the goals of the Fair Housing Act and spirit of the Assessment of Fair Housing. Another commenter applauded HUD's efforts to draw attention to systemic housing disparity and encourages HUD to recognize the difference between State and local authority, information, and context. A commenter commended HUD for designing an AFH that incorporates fair housing more logically into the planning process, strengthens robust community participation, and provides program participants with nationally uniform data and data tools for analysis.

There were also other commenters that stated HUD should have retained the AI. A commenter stated that the AI continues to be an excellent means of affirmatively furthering fair housing. Another commenter stated that it recently completed its AI and attempted to complete the analysis outlined in HUD's rule and found it awkward for a State-wide analysis. Another commenter stated that the tool shifts a substantial amount of uncertainty to State grantees on whether they are meeting their obligation to affirmatively further fair housing in order to receive HUD funds.

HUD Response:
HUD believes that the Assessment Tool will assist States' efforts to affirmatively further fair housing and is committed to improving the Assessment Tool based on feedback received and experience going forward. HUD also notes that the focus of the Assessment Tool is primarily on the protected classes under the Fair Housing Act, as opposed to poverty or income, but the tool does include certain areas of analysis and HUD-provided data relating to poverty or income.

Terminology-related comments.
A commenter stated that because “area” is not a defined term it appears to be interchangeable with “region,” allowing the State to conduct its analysis on a county basis, an intrastate regional basis, or a census tract basis. The commenter stated that only the census tract basis would capture R/ECAPs. A commenter stated that definitions of “region” or “local area” may differ for funding purposes based on the particular State agency or program within a State agency, which may be relevant for Sates when prioritizing fair housing goals. Another commenter asked that HUD provide clarification on the term “characteristics” versus “protected classes.” A commenter stated that HUD must define disparities in access to opportunity and explain how such analysis is to be operationalized by HUD. The commenter asked what counts as a disparity. Another commenter stated that HUD must define what metrics, statistics, and other quantifiable information would be subject to a determination of statistical validity by HUD with respect to local data. A commenter stated that HUD should clarify when a “granular” analysis (as provided in the instructions for the Draft State Tool) versus a more high-level analysis is appropriate. The commenter stated that, for example, HUD may want to suggest using the required community participation and consultation processes to identify areas of the State that warrant a more “granular” analysis. Another commenter stated that HUD should use the more generic word “area” instead of “neighborhoods.” A commenter stated that the following sentence appears at two points in the Draft State Tool's instructions—“Note that the percentages reflect the proportion of the total population living in R/ECAPs that has a protected characteristic, not the proportion of individuals with a particular protected characteristic living in R/ECAPs”—and that this sentence is unclear; restating this distinction and including an example would help better clarify this point.

HUD Response:
HUD notes that the AFFH rule defines “Geographic Area” as “a jurisdiction, region, State, Core-Based Statistical Area (CBSA), or another applicable area (
e.g.,
census tract, neighborhood, Zip code, block group, housing development, or portion thereof) relevant to the analysis required to complete the assessment of fair housing as specified in the Assessment Tool.” 24 CFR 5.152. HUD understands that States in particular may experience differing regional fair housing issues, and for that reason HUD is providing States with certain flexibility when conducting a regional fair housing analysis. To facilitate this regional analysis, HUD uses the phrase “to the extent [a fair housing issue] extends into another state or broader geographic area . . .” in particular questions where a regional analysis is required. HUD believes that this phrase provides States with flexibility, within certain parameters, rather than a definition, with respect to their regional analysis, since States may vary in terms of the regional fair housing issues affecting their jurisdictions. HUD acknowledges that States may use the term “region” to refer to areas within their State; however, in the context of the AFFH rule, the term region refers to a geographic area that is larger than the jurisdiction (
i.e.,
the State). For this reason, to avoid confusion, HUD is using the term “sub-State area” to refer to areas within the State. The Assessment Tool provides States with flexibility, within certain parameters, rather than a definition, with respect to their areas of analysis, since States will vary with respect to the regional fair housing issues that impact their jurisdictions. States must assess their entire State, and in certain places in the Assessment Tool, “a broader geographic area” extending beyond the State. HUD believes program participants are in the best position to determine how broad that area must be with respect to their fair housing issues, based on the HUD-provided data, local data, and local knowledge, including information gained through community participation.

With respect to the “granular” analysis, HUD has added the following language to the instructions in the Assessment Tool: “A State is not expected to conduct the same analysis that local governments conduct using the Assessment Tool designed for use by Local Governments, however HUD is providing States with similar data in the AFFH Data and Mapping Tool (AFFH-T) so that more granular analysis can be

conducted where appropriate. For example, during the community participation process a State may receive information that is not reflected in the HUD-provided County level maps, which may require further analysis using dot density maps. Additionally, the AFFH-T provides functionality for States to select sub-State areas to facilitate their analysis. The assessment of areas not covered by AFHs conducting by local governments is an important focus for States as they determine how their AFFH oversight responsibilities should be carried out throughout the State.” HUD also notes that it has removed the word “neighborhood” from the Assessment Tool where appropriate.

HUD has previously stated how local data will be subject to a determination of statistical validity. HUD stated in the Preamble to the Final Rule this provision is intended to `clarify that HUD may decline to accept local data that HUD has determined is not valid [and not] that HUD will apply a rigorous statistical validity test for all local data.' ” 80 FR 81848 (Dec. 31, 2015).

HUD notes that the terms protected class and protected characteristic are defined by the AFFH rule at 24 CFR 5.152. The Final Rule provides: “Protected characteristics are race, color, religion, sex, familial status, national origin, having a disability, and having a type of disability.” 24 CFR 5.152. The Final Rule provides: “Protected class means a group of persons who have the same protected characteristic;
e.g.,
a group of persons who are of the same race are a protected class. Similarly, a person who has a mobility disability is a member of the protected class of persons with disabilities and a member of the protected class of persons with mobility disabilities.” 24 CFR 5.152. HUD will continue to provide clarification relating to protected class where necessary in the Assessment Tools.

HUD appreciates the commenters' request for clarification with respect to language in the instructions, specifically regarding R/ECAPs. In response to these comments, HUD has added the following language to the instructions: “The table provides the demographics by protected class of the population living within R/ECAPs. It does not show the proportion of each protected class group that live in R/ECAPs compared to the proportion of each protected class that live in the jurisdiction outside of R/ECAPs or the jurisdiction as a whole”

Including entitlement jurisdictions in the State's assessment should not be required.
A few commenters stated that the tool was not clear whether States have to include entitlement areas in their assessment. For commenters who are aware that States must include entitlement areas in their assessments, several commenters stated that since each entitlement jurisdiction will prepare its own assessment, State assessments should not be required to include these areas in the State assessment but they may choose to do so. The commenters stated that the State tool should only mandate analysis of geographical and subject matter where the State agency responsible for applying the AFFH rule has jurisdiction. The commenters stated that each State should be encouraged, but not required to pursue analysis beyond those boundaries to the extent it possesses such authority.

Commenters stated that the State tool should be restructured to eliminate the need for extensive, repetitive, and local-level analysis. The commenters stated that it is redundant and wasteful to include entitlement jurisdictions, will create confusion between State grantees and entitlement jurisdictions, and State grantees have no authority over how entitlement jurisdictions spend their funds and cannot meaningfully impact contributing factors in those areas. Commenters stated that States be able to rely on the analysis conducted by local governments and PHAs. The commenters further stated that Community Development Block Grant (CDBG) programs cannot serve entitlements, and those funds cannot be used to help address housing issues within entitlements. The commenters stated that the analysis performed by entitlement communities should be linked to the State analysis instead of requiring States to duplicate efforts and analyze the same data to create a separate plan.

Commenters also stated that inconsistencies and incompatible action steps could be developed if the State must analyze the entitlement areas. The commenters stated that because the State and Local Government tools may have inconsistent results, HUD will be placed in the position of having to determine which AFH is “more right” for a given area, given that conclusions may not be coordinated within the HUD review process. The commenters stated that HUD must clarify the relationship between the State assessment and the local participating jurisdiction assessments since they are not only duplicative, but could have competing results. States should have the opportunity to adopt those assessments where another participating jurisdiction has a current assessment.

Commenters stated that the proposed tool should limit States' obligation to consult with entitlement jurisdictions and PHAs and tailor the tool to State activities. The commenters stated that contrary to statements in HUD's response to commenters published with the AFFH final rule, the AFH tool does not explicitly limit the consultation obligations to non-entitlement areas and by referring to 24 CFR 91.110 without further clarification, the tool appears to require consultation with all local PHAs operating in the jurisdiction. The commenters stated that the proposed tool should only focus on and use data for non-entitlement jurisdictions, since State grantee's programmatic responsibility is for rural areas not covered by entitlement jurisdictions.

A commenter similarly stated that HUD should not require inter-State analysis as it would require the collection and analysis of information from other jurisdictions that would significantly increase the burden of compliance, and the analysis should only expand outside the jurisdiction when applicable. Another commenter stated the entire State should be covered by an assessment, however, conducting a full State analysis should be optional if seamless coverage of the State could occur through other means, and States should have the flexibility of conducting a sub-State analysis that is meaningful.

In contrast to these commenters, other commenters stated that because contributing factors are at the very core of the fair housing goals and priorities, the conclusions of entitlement jurisdictions within a State will significantly influence the State analysis, and States should not simply accept the conclusions without an independent analysis.

HUD Response:
HUD understands the concerns of these commenters. HUD notes that the final Rule requires an assessment of the entire jurisdiction, or State in this case, not just non-entitlement areas, and for this reason States are expected to consider statewide policies and investments that affect fair housing issues. At the same time, HUD recognizes that the State is not expected to do the analysis that local governments conduct in their AFHs (for example, neighborhood-by-neighborhood analyses). HUD has added language to the instructions clarifying that while the entire State must be analyzed, the program participant may take into account the different fair housing issues and contributing factors affecting different parts of the State. For instance, more rural, non-entitlement parts of the State may have different fair

housing issues, which the State should take into account particularly for setting priorities and goals in the AFH.

HUD also notes that States may use information contained in an AFH of a local government. States are accountable for the information contained in its AFH that is submitted to HUD. If States are utilizing information from another AFH, States should consider the following: (1) Whether the AFH has been accepted by HUD; (2) whether the AFH is a draft AFH that was published for the purposes of conducting the community participation process; and/or (3) whether the AFH meets the criteria for local data and local knowledge under 24 CFR 5.152 and the instructions to the Assessment Tool.

HUD plans to provide the States with data that cover the entire State, as well as data that are specific to the non-entitlement areas of the State, which may provide for useful comparisons when conducting a fair housing analysis. While local governments may identify different contributing factors and fair housing issues in their AFHs from States, these are separate planning documents related to different HUD grantees' fair housing planning. With respect to public housing or Housing Choice Voucher programs, the State shall consult with any housing agency administering public housing or the Housing Choice Voucher program on a Statewide basis as well as all PHAs that certify consistency with the State's consolidated plan. If a PHA is required to implement remedies under a Voluntary Compliance Agreement, the State should consult with the PHA and identify actions the State may take, if any, to assist the PHA in implementing the required remedies.

Additionally, HUD notes that fair housing issues are not confined to jurisdictional, geographic, or political boundaries; for that reason, a regional analysis broader than the State in order to provide context for the fair housing issues identified and to assist in developing regional solutions for overcoming contributing factors and related fair housing issues.

Elaborate on list of organizations consulted.
A commenter stated that Question 2 of Section III should incorporate language from 24 CFR 91.110(a) and elaborate on the requirement that States provide a list of organizations consulted. The commenter stated that the question should include the following language: “Describe how the organizations consulted (including, but not limited to, State-based and regionally-based organizations that represent protected class members and organizations that enforce fair housing laws, health services organizations, social service organizations, and public and private agencies providing assisted housing—including any State housing agency that administers public housing) reflect a representative selection of organizations from all parts of the State, including entitlement and non-entitlement jurisdictions and social service organizations should be defined as those focusing on services to children, elderly persons, persons with disabilities, persons with HIV/AIDS and their families, and homeless persons.” A commenter stated that HUD should clarify whether the State must consult with every Resident Advisory Board or just those in the limited number of jurisdictions that are non-entitlement entities.

HUD Response:
HUD appreciates this commenter's suggestion, but declines to include the proposed language in the Assessment Tool. The instructions for Question 2 in Section III specifically include the requirements of 24 CFR 91.110. The requirement to consult with PHAs applies to those PHAs that receive a certificate of consistency with the consolidated plan of the State. The references in this Assessment Tool to meetings with Resident Advisory Boards is only applicable when a PHA is conducting a joint or regional AFH with the State. HUD will provide additional guidance for States and Insular Areas on the community participation process, as well as general guidance relating to the Assessment of Fair Housing, once OMB approves this Assessment Tool.

Elaborate on community participation requirements and coordination with other entities.
A few commenters asked whether States are obligated to conduct community participation within entitlement jurisdictions and tribal areas. Other commenters asked HUD to clarify whether comparing the turnout for public meetings, the number of substantive comments received, and the number and quality of responses to public and stakeholder surveys is an acceptable approach to measuring the success of the community participation process. The commenters also asked HUD to provide an explanation of what “meaningful” means in the context of “meaningful community participation.” A commenter stated that the community participation process is a vital part of the fair housing assessment, and that this section of the assessment tool should elicit more detailed information, including more specific details about outreach activities. The commenter further stated that outreach to persons with disabilities should include outreach targeted to those living in both institutional and community-based settings. Another commenter made a similar comment that the tool should provide meaningful guidance and robust instructions for the community participation process.

A commenter asked HUD to clarify whether “any” oversight, coordination, or assistance of other public entities' goals, actions, and strategies is optional. The commenter stated that the final rule suggests that it is not optional, but the question in the Assessment Tool seems as if it is optional. The commenter added that States do not have legal authority to oversee or control local program participants' AFH processes and many will not welcome State involvement in their planning efforts.

HUD Response:
In the AFFH Rule Guidebook, available at
https://www.hudexchange.info/resource/4866/affh-rule-guidebook/
, HUD has provided guidance on conducting community participation. HUD will continue to provide technical assistance and guidance to program participants on the requirements surrounding the community participation process.

HUD understands that there are State and local constraints on which entities have authority to operate and monitor the actions of other entities. HUD encourages collaboration to the extent feasible and permitted by State and local law.

Encourage coordination between States and local jurisdictions to eliminate duplicative work and possible inconsistencies.
Commenters stated that it would be an important improvement if there was encouraged coordination between the local jurisdictions and the State so that the findings are complimentary, rather than redundant. The commenters stated, for example, States could be involved in the development of the local PHA's plans so that the information is consistent and allows the State to focus on the balance of state geographies and the impacts of State policy on access to housing. The commenter stated that sharing findings from local jurisdictions in a systemic and organized way would also be helpful.

HUD Response:
HUD has and will continue to encourage collaboration among various types of program participants that must conduct and submit an AFH to HUD. HUD also recognizes that its program participants need flexibility as they embark on conducting an AFH, and for that reason, HUD is not prescribing how such collaboration is to be achieved. Instead, HUD leaves this up to program participants that conduct a joint or

regional AFH, as described at 24 CFR 5.156. HUD will also continue to provide technical assistance and guidance to program participants with respect to the issues raised by these commenters.

States reaching out to PHAs for certification of consistency with the State's consolidated plan is not reasonable or practicable.
A commenter stated that while it is reasonable to expect a local government to consult and reach out to local PHAs that seek certification of consistency with the State's consolidated plan, it is not reasonable or practicable to expect the same of a State with a large number of local PHAs. Another commenter stated that the AFH Final Rule and tool seem to suggest that States are obligated to independently evaluate the AFH analysis and methods for addressing fair housing issues in jointly prepared PHA AFHs for which PHAs seek certification of consistency with the State plan. However, States may be hesitant to certify a PHA plan when they do not agree with its goals and priorities for addressing fair housing issues, which sets up a potential conflict between PHAs and States. This is an unfair consequence because States do not administer the HUD-funded programs that the certifications pertain to. The commenter stated that HUD should eliminate this requirement or not require States to certify consistency until after HUD has approved the PHA's AFH.

Another commenter stated that a State cannot truthfully certify that it is in compliance with its obligation to AFFH if it is not monitoring the compliance of its subrecipients. The commenter recommended that subrecipients be required to report certain information to the State demonstrating compliance. The commenter also recommended the development and implementation of a streamlined AFH process for non-entitlement communities based on the Analysis of Impediments to Fair Housing—Texas (FHAST). The commenter stated that the FHAST allows the State to monitor its subrecipients' compliance with the AFFH certification and make its own truthful certification. The commenter recommended that to make the process more effective the approach should be modified so that the assessment form is tailored to the size of the jurisdiction, that there be more robust training and technical assistance provide, and ensure that training and technical assistance focuses on the meaning of AFFH beyond housing programs.

HUD Response:
HUD disagrees with the commenters' characterization of the requirements under the AFFH rule HUD notes that several of the comments appear to reference requirements that are not within the scope of the AFFH Rule or the assessment tool. States are not required to independently evaluate the analyses conducted by other program participants. Note, if the State is involved in conducting a joint or regional AFH, program participants may divide work as they choose, but all program participants are accountable for the analysis and any joint goals and priorities, and each collaborating program participant must sign the AFH submitted to HUD. See 24 CFR 5.156(a)(3). Note that collaborating program participants are also accountable for their individual analysis, goals, and priorities to be included in the collaborative AFH. See 24 CFR 5.156(a)(3).

HUD appreciates the concerns of the commenters regarding the State's role in monitoring subrecipients. In response, HUD has added two questions to the final section of the analysis section of the Assessment Tool to account for this responsibility. Examples for States to consider regarding the oversight of the AFFH requirements—such as the FHAST example—may be considered for additional guidance.

As previously stated, HUD will continue to provide training, guidance, and technical assistance to program participants with respect to implementation of and compliance with the AFFH rule.

Level of analysis required by tool is inappropriate for States.
Commenters stated that the proposed tool requires far greater analysis from a State given its larger jurisdiction with respect to size and diversity of local jurisdictions within it. A commenter expressed concern that most, if not all, of the issues will not be in the State's domain to take action. The commenter recommended that it would be helpful if HUD provide a clear statement of how HUD intends to utilize the Assessment and what the expectations are for States.

A commenter stated that this is challenging for States with hundreds of cities and towns with considerable autonomy under State law, and many of the directed questions and contributing factors are of a municipal-level nature and would require a State to obtain and review municipal data and to conduct significant fact finding. A commenter stated that examples of areas for which significant fact finding would be needed include community opposition, land use and zoning, local policies and practices, lack of private and public investments, infrastructure, accessibility of government services, sidewalks, pedestrian crossings, infrastructure, access to proficient schools, educational programs, recreational facilities for persons with disabilities, education policies, and access to financial services.

Another commenter stated that the tool requires States to carry out an in-depth assessment, set priorities, and develop action timeframes based on a set of metrics that involves agencies besides housing and community development, including participation by public and private stakeholders, and numerous State agencies that are not recipients of HUD funding but are instead subject to oversight from other federal agencies.

Several commenters stated that it is not feasible or appropriate for States to drill down to a neighborhood-by-neighborhood analysis. The commenters stated that States need flexibility in tailoring the content of the assessment to ensure that analysis conducted will be meaningful and under the authority of state housing agencies. The commenters stated that States should have the flexibility to use the HUD data at appropriate scales, drilling down into local analysis of areas such as opportunity for employment, education, and transportation in locations of the State where they are most impactful. The commenters also stated that census tract analysis is not feasible for States, and data should be consolidated at a higher level (county, MSA, regional). The commenters stated that many of the opportunity questions in the State Assessment Tool should be removed because they are only appropriate at the neighborhood level. The commenters stated for a large State, local decision making and local policies are the bases for determining whether housing is “fair” since it is not reasonable to expect State residents to move long distances from their current locations to access housing opportunities.

HUD Response:
As previously stated, HUD understands the limitations States may have with respect to their authority in certain areas of the State due to State or local law. The AFH is intended to assist States in engaging in meaningful fair housing planning. HUD has made several modifications to the assessment tool in order to clarify the level of detail and analysis that are required. The descriptions of numerous contributing factors have also been amended to better reflect a state-level rather than municipal level analysis.

HUD has also added language to clarify that States are not generally required to conduct a neighborhood-level analysis. This language, added in several key questions throughout the

assessment tool states, “[participants] should focus on trends that affect the state or trends that affect areas of the state rather than creating an inventory of local laws, policies, or practices.” They are not required to create inventories of local ordinances or policies that are having an effect at the local or neighborhood level. HUD notes, however, that local ordinances or policies may be considered local data or local knowledge. States are expected to focus on patterns or trends affecting fair housing issues in the State, including those that may be having an affect across the State's region.

In contrast to the data provided to local governments and PHAs, which HUD is providing data at the census tract level, HUD is providing States with data at the county level, and will allow States to create “sub-state areas,” which may be comprised of groupings of counties. This flexibility is intended to allow States to conduct their analysis while reducing burden by raising the level of geography at which States must conduct their analysis. A State is not expected to conduct the same analysis that local governments conduct using the Assessment Tool designed for use by Local Governments; however, HUD is providing States with similar data in the AFFH-T so that more granular analyses can be conducted where appropriate.

The AFFH-T will provide users with the flexibility to shift their level of focus between the maps provided for States at the County level, with more detailed maps that provide data below the County level. For instance, dot density maps are also available in the AFFH-T. A dot density map (also known as dot distribution map) uses a color-coded dot symbols representing the presence of a specified number of individuals sharing a particular characteristic to show a spatial pattern. Thematic maps can obscure patterns of segregation within a County and a dot density map maybe useful to see more granular patterns. When viewing a dot density map, the presence of residential segregation may appear as clusters of a single color of dots representing one protected class, or as clusters of more than one color of dots representing a number of protected classes but still excluding one or more protected classes. More integrated areas will appear as a variety of colored dots.

HUD has also revised the questions in the Disparities in Access to Opportunity section of the Assessment Tool based on the commenters' concerns.

On a more general note, HUD announced the second stage of the extended public comment process, as described above.

The Assessment Tool does not take into consideration “home rule” States.
Several commenters stated that the tool does not take into consideration a “home rule” State in which the state Constitution grants every city and town the right of self-governance in local matters. The commenter stated that in addition to the burden of gathering and analyzing local data, it is unclear how HUD expects them to be addressed, and within the timeframes, under the Fair Housing Goals and Priorities Section of the tool because the State lacks the legal authority to overcome locally imposed impediments to fair housing, thus an analysis of this information will not likely enhance efforts to affirmatively further fair housing at the State level. The commenters stated that each unit of local government creates its own policies and programs, which often do not align with the State. The commenters stated that for example, North Carolina has 100 counties, more than 500 incorporated municipalities, with 115 school districts and as many charter schools, and that even if actions identified through the collection of local data and the analysis can impact change relative to fair housing, it would be outside of the State agency's authority to and ability to impact.

HUD Response:
HUD understands that there are State and local constraints on which entities have authority to operate and monitor the actions of other entities. HUD encourages collaboration to the extent feasible and permitted by State and local law.

HUD also notes that in order to set fair housing priorities and goals, the State must understand the local and regional context for the fair housing issues and contributing factors it identifies in its assessment.

HUD has clarified that several questions are asking state agencies to focus on trends or patterns, “that affect the state or trends that affect areas of the state rather than creating an inventory of local laws, policies, or practices.” A similar instruction was added stating that, “For broader questions about policies and laws, HUD expects that States use information available to it through the community participation and consultation process and does not expect the State to collect all possible sources of data or create inventories of local laws or policies throughout the State. Program participants can reference studies or reports issued by other State agencies, and these studies or reports may be necessary and relevant for the completion of the AFH. Referencing such studies and reports may be useful in certain areas of the fair housing analysis when the program participant does not, itself, have first-hand knowledge of the topic at hand. HUD acknowledges that such reports will have been conducted for purposes other than informing an AFFH analysis and these may still provide valuable information.”

Requirement for regional analysis is burdensome and meaningless.
Several commenters stated that HUD continues to insist that State grantees conduct an exhaustive analysis for all regions within the geographic boundary of their State (including entitlement jurisdictions) on a broad range of factors, many outside of the State grantee's expertise, authority, and ability to impact. Commenters stated that the scope of the tool must be scaled back significantly so that State grantees can reasonably conduct a meaningful AFH on issues they can meaningfully address. Another commenter suggested that the tool acknowledges that the content of responses required by these sections is categorically not being viewed from a position of subject-matter expertise.

Several other commenters stated that the ability to access and meaningfully analyze data beyond the State's boundaries is not feasible. The commenters stated that the requirement that States conduct a regional analysis where there are “broader regional patterns or trends affecting multiple states” by analyzing local data and knowledge, and that consulting the existing AIs and AFH's of neighboring States and jurisdictions is not achievable without additional resources and time.

Other commenters suggested that including regional data should be optional for States and States should be able to determine when regional perspectives on specific topics or fair housing issues is appropriate and relevant and will enhance the AFH. The commenters stated that HUD should not require inter-State analysis as it would require the collection and analysis of information from other jurisdictions that would significantly increase the burden of compliance, and the analysis should only expand outside the jurisdiction when applicable. The commenters stated that if the purpose is just to assess issues in neighboring States without attempting to change policy, then that requirement is understandable. However, if the purpose is to change policy in another State, then this will be problematic. The commenters concluded by stating that this analysis is more appropriate at the local level or possibly at the metropolitan statistical area (MSA) level that share a local policy-making body or mechanism.

A few commenters stated that the currently proposed format of the tool that incorporates regional analysis throughout the sections is preferable to a regional section. The commenters stated that actual placement of the questions currently is not problematic; however, only Statewide and sub-State analysis should be required when data are provided.

Other commenter requested clarification on what regional analysis means. A commenter stated that its State is divided into 8 regions, and asked if HUD is requiring an analysis of each of these regions. Another commenter stated that the proposed tool is vague on whether the regions within the states would be established.

A commenter requested that HUD provide separate sub-sections to address multi-State issues, with the opportunity to reference, rather than restate the jurisdictional analysis.

HUD Response:
As stated above, HUD notes a regional analysis is not only meaningful when conducting a fair housing analysis, but is required by the regulation. In particular, fair housing issues are not confined to jurisdictional, geographic, or political boundaries; for that reason, certain regional analyses may be required, as directed by the Assessment Tool, in order to provide context for the fair housing issues identified and to assist in developing regional solutions for overcoming contributing factors and related fair housing issues. HUD also notes that understanding how regional fair housing issues affecting the State are influenced by external factors may provide insight into how the State can overcome the effects of contributing factors and related fair housing issues. HUD understands that States will not necessarily be able to affect policy in another State, but it may better implement its own fair housing-related policy. In response to the public comments on the interstate regional analysis requirements of the AFH, HUD has made a number of changes. These include removing separate questions calling for such an interstate analysis. Instead several key questions were amended to state that, “to the extent that [such patterns] extend into another state or broader geographic area, identify where that occurs.”

HUD also distinguishes between a “regional” analysis in this Assessment Tool, which is larger than the State and an analysis within the State that may be comprised of “sub-state areas.” HUD recognizes that many jurisdictions may also use the term “region” to refer to an area within the State. HUD is seeking comment on the use of terms that would be clearest to program participants and the public when referring to these different types of geography.

Analysis of the entire State is important.
Commenters stated that the instructions for and questions in the tool should require an analysis of the entire State, not just the non-entitlement areas. The commenters stated that HUD should make clear that participation by stakeholders in entitlement jurisdictions during community participation is important because they are affected by State-wide laws, polices, and practices. The commenters stated that HUD should modify questions in Section III to ensure that States will conduct the community participation process in a manner that is representative of all areas of the State, both entitlement jurisdictions as well as non-entitlement jurisdictions. The commenters stated that Question 1 of Section III should include the following language at the end of the existing question: “In these activities, explain efforts made to ensure meaningful community participation representative of all parts of the State, including entitlement and non-entitlement jurisdictions. If sub-State areas are utilized in the analysis, identify community participation efforts conducted in each sub-State area.”

Other commenters stated that the tool appropriately takes into consideration that States and State housing finance agencies administer programs between CDBG, Emergency Solutions Grants (ESG), Home Investment Partnerships (HOME), and Housing Opportunities for Persons With AIDS (HOPWA), including LIHTC and State affordable housing trust programs. The commenters stated that since Fair Housing is complex and extensive, it is appropriate that a variety of State functions are taken into account and evaluated as a whole; and that such efforts should be taken into account when considering a State's progress towards affirmatively furthering fair housing.

Some commenters stated that inclusion of entitlement jurisdictions within the State's analysis is a pivotal distinction and a necessary condition for any meaningful fair housing analysis at the State level. The commenters stated that State agencies administer the largest federal affordable housing program (LIHTC) predominantly within entitlement jurisdictions; many entitlement jurisdictions only receive direct allocation of CDBG funds from HUD while other formula grant programs are administered by States or other large grantees; state-level policies and practices often establish the framework that defines the policy options that are available to local governments, including entitlement jurisdictions; and this approach is required by the language of the regulation. The commenters stated that unlike under the Analysis of Impediment requirements, States should not omit entitlement jurisdictions from their scope of analysis.

HUD Response:
HUD appreciates these commenters' suggestions and observations. However, HUD declines to change the questions in Section III of the Assessment Tool, as the questions are based on the requirements of the AFFH rule, HUD program-related program regulations, and other fair housing and civil rights requirements. However, the scope of the questions in this Assessment Tool include an analysis of the entire State, including entitlement and non-entitlement areas.

HUD has made several changes to clarify the scope of analysis for States and to clarify how States may choose to consider the unique needs and issues facing rural areas of their State. For state agencies that administer programs that primarily benefit rural and non-entitlement areas of the State, the Assessment Tool provides for specific focus on the fair housing issues affecting these areas, while still considering State-wide fair housing issues.

All non-housing related questions should be optional.
Commenters stated that the State's analysis should focus on areas of opportunities related to housing, which is the focus of a State's qualified allocation plans (QAPs), in which points are provided for developments based on their physical location relative to that opportunity, and the metric is assessed by its outcome and not the underlying policies in these areas that result in these outcomes. Commenters stated that non-housing related questions should be optional. Commenters stated that the new areas of emergency preparedness, prisoner re-entry, public health, and public safety should be optional because there is no HUD-provided data, and they are only tangentially related to housing and are outside of the authority of State agencies that administer HUD grant funds. Commenters stated that a State should focus on a thorough policy and program analysis of factors directly related to housing and in areas that are within the authority of the agencies administering the grant funds, instead of a full policy analysis of all tangentially related areas, which is burdensome and would necessitate the hiring of outside consultants with expertise in each area. Commenters stated that HUD's proposal to add even more questions for States that would additionally involve State

public health, public safety, corrections, health care, and emergency management/preparedness makes the task of completing the AFH unwieldy; analysis of a multitude of local conditions renders the AFH impracticable for States given the time allotted and inadequacy of resources.

Commenters stated that HUD may well be interested in learning about the impact of education related to laws, policies, and practices that affect the ability of residents in different areas of the state to attend post-secondary and vocational education, shifting the significant burden of researching and analyzing information on to entities that receive HUD funding is inappropriate. The commenters questioned whether the information gathered under such a sweeping request will be of practical utility since program participants will be required to engage in research and analysis regarding a host of broad policy areas to attempt to learn and opine on the detailed requirements and policies of areas besides the creation and provision of housing, calling into question accuracy and conclusions. The commenters stated that if the ultimate goal is to help program participants develop thoughtful and coherent strategies to further fair housing, a tool that requires devoting time and resources to learning and documenting policy in other areas is not clearly targeted to the ultimate goal and may result in a less robust analysis of the data and policies directly related the provision of fair housing.

Other commenters stated that it is appropriate for States to have to describe laws, policies, and practices affecting affordable rental housing, homeownership, and mortgage access in the State; but HUD should not ask States to analyze other issues for which they do not have expertise. The commenters stated that requiring an in-depth analysis of the data and “laws, policies, and practices” regarding the wide array of topic areas that the AFH covers goes above and beyond what is necessary for the proper functions of HUD. Another commenter stated that the vastness of the request and the questionable nature of the conclusions drawn makes these types of questions in the tool an untenable exercise. A commenter similarly stated that the repeated use of the clause “demographic trends, laws, policies, or practices” as it requests information on specific subject areas is too broad. The information to be gathered is potentially unlimited and its actual causality is speculative at best.

In contrast to these comments, a commenter stated that States must be required to discuss “other indicators of environmental health based on local data and local knowledge,” including the siting highways, industrial plants, waste sites, and Superfund and brownfield sites. The commenter stated that limiting any examination of environmental health hazards to air pollution would miss the continuing impact of environmental racism on communities of color in cities such as Flint, Michigan, and in the Donna colonias in the Rio Grande Valley in Texas. The commenter stated that vulnerability to the effects of a natural disaster should also be considered part of the environmental health of a neighborhood. Another commenter stated that the following should be included in the opportunity section—include an analysis of early education programs, especially quality early education programs and the relationship of access to state programs, policies, and funding, including child care subsidy policies, explicitly include state tax policies in the list of state actions to be analyzed, and include questions related to income, including minimum wage policies and access to income supports.

HUD Response:
HUD appreciates the commenters' feedback on these issues. HUD notes that the question relating to the other opportunity areas (
i.e.,
the question on emergency preparedness, prisoner re-entry, public health and public safety) have now been included in the “Additional Information” section of the Disparities in Access to Opportunity section of the Assessment Tool. This question is limited to information the State obtains through the community participation process.

HUD appreciates the comments received recommending the addition of various additional types of opportunity measures that might be considered. HUD is aware that the state agencies responsible for administering HUD programs, including CDBG and HOME, have limited expertise and access to information on the numerous other types of opportunity areas that might be considered. Being mindful of adding excessive burden, HUD has chosen not to require the analysis of the other opportunity areas proposed in the 60-day Notice. HUD is also aware that some issues may be more salient in some States but not others. In recognition of these considerations, HUD instead has added a new component to the “additional information” questions in the Disparities in Access to Opportunity section. HUD notes that such other categories may be “identified through the community participation process,” and “may include State level programs, resources, or services related to . . . [public safety, public health, housing finance, prisoner re-entry, emergency management, or other opportunity areas].” These additional information questions provide a space for State program participants that choose to include information relevant to their State and their assessment.

HUD has also revised the “laws, policies, and practices” questions such that they are to be informed by information obtained through the community participation process.

Under the AFFH rule, program participants must undertake an analysis that will identify significant disparities in access to opportunity for any protected class within the jurisdiction and region. See 24 CFR 5.154(d)(2). It is important to assess whether protected classes experience disparities in access to opportunity, such as education, employment, transportation, environmental health, low poverty, among others.

HUD appreciates the commenter's suggestion to have States discuss “other indicators of environmental health based on local data and local knowledge.” The contributing factor “Location of environmental health hazards” is included in the State Tool within the “Disparities in Access to Opportunity” section in the version submitted during the 60-day public comment period. The definition of this contributing factor is available in the Assessment Tool's appendix.

Requirement to analyze disparities in access to opportunity and to identify significant contributing factors exceeds requirements of the Fair Housing Act.
Commenters stated that many States consider the requirement to analyze disparities in access to opportunity to be overstepping the requirements of the Fair Housing Act and is not necessary to reasonably determine impediments to fair housing choice. Commenters stated that for a State to thoroughly evaluate segregation/integration, it must evaluate the context of each occurrence of segregation to determine its validity and characteristics. Other commenters stated that States must make an interpretive leap to identify contributing factors to observed patterns, but these are uniquely local variables that will exert influence in different ways in different jurisdictions and therefore states will be compelled to fracture the AFH into an “analysis of boundless sets of local circumstances in order to meaningfully isolate variables that contribute to certain fair housing issues.” Other commenters stated that the tool requires States to draw conclusions as to segregation and causation, which is an analysis State agency staff are not equipped to undertake and draw

conclusions from complex data correlations. The commenters stated that to make a causal analysis anything but double blind experiments or other highly sophisticated research techniques would be legally irresponsible and may result in significant legal ramifications arising from incorrect conclusions.

Other commenters stated that the tool erroneously requires that any finding of disparate impact is a fair housing issue. A commenter stated that this requirement goes far beyond the legal one articulated by the Supreme Court in Texas Department of Housing and Community Affairs Inclusive Communities Project, Inc. The commenter stated that it would be legally flawed to make general conclusions of causation without significant substantive proof and an understanding of the origin and application of policies outside the State's purview.

HUD Response:
HUD notes that the affirmatively furthering fair housing mandate under the Fair Housing Act is distinct from the theories of liability under the Act, such as disparate treatment and disparate impact. In order to set meaningful fair housing goals with respect to affirmatively furthering fair housing, program participants must assess whether residents of their communities' experience disparities in access to opportunity on the basis of race, color, national origin, religion, sex, familial status, or disability. For these reasons, an analysis of disparities in access to opportunity is vital to conducting a meaningful fair housing analysis.

Requirement to undertake an AFH must come with funding.
A commenter stated that it is not aware of any similarly sweeping assessment obligation from a Federal agency without a commitment of Federal resources to assist in implementation. The commenter stated that for example, the Department of Education offered $500,000 planning grants to support its Promise Neighborhoods Program, which similarly recognized the importance of breaking down agency “silos” to ensure Federal, State, and local cooperation, but also recognized the enormous scope of the work and need for commitment of substantial resources to carry it out, even within a very limited target geography.

HUD Response:
HUD notes that States already had an obligation to undertake fair housing planning by completing an Analysis of Impediments to Fair Housing Choice. The Assessment of Fair Housing is largely similar to the prior existing process, but updates it with the HUD-provided data and tools and creating a standardized form for use by HUD's grantees and public housing agencies. Subject to program rules and limits, funding for program administration including fair housing planning continues to be an allowable use of HUD funding.

Information needed for the tool will be extremely difficult to collect.
Several commenters stated that the tool requests an extraordinary amount of information that will be extremely difficult for States to collect and analyze in a meaningful matter and relies too much on local data. The commenters stated that some questions are nearly impossible to answer from a State-wide perspective, such as questions on education policy, which will vary from district to district, and questions on zoning and land use policies.

A commenter stated that the tool encourages broad and sweeping interpretations about policies of sister agencies without participation in the policy making process and without the availability and understanding of all relevant information. The commenter stated that this would be legally irresponsible as the responses in the tool could be used as a basis for a fair housing complaint against the State or other State agencies (
e.g.,
questions related to education, employment, and transportation). The commenter stated that the State does not have the legal authority to compel the cooperation of other agencies in the analysis or the goals. The commenter provided an example of its State transportation department, which has 5,700 employees and the state has regional, county, and local transportation agencies. The commenter stated that to be able to analyze all aspects of this topic would be unduly burdensome.

Another commenter requested that States not be required to answer questions that will necessitate the collection of new local data.

HUD Response:
There are limitations on what information program participants must use when completing an AFH. The definitions of local data and local knowledge at 24 CFR 5.152 and the instructions to the Assessment Tool explain what local data and local knowledge are and when they must be used. HUD understands the limitations of coordinating with various agencies or departments on issues relating to access to opportunity; however, the Assessment Tool is designed to assist program participants in identifying where issues are present and then figure out how they might go about solving them. In addition, HUD has clarified in certain questions in the Assessment Tool when the analysis is intended to focus on any trends in demographics, law, policies, or practices that could impact fair housing issues. These questions are to be informed by the community participation process, any consultation with other relevant government agencies, and the State's own local data and local knowledge. HUD has also included the following language to clarify the focus of these questions: “Participants should focus on trends that affect that State or trends that affect areas of the State rather than creating an inventory of local laws, policies, or practices.

The evaluation of all publicly supported housing in the State is important to the State assessment.
Several commenters expressed support for the evaluation of all publicly supported housing in the State as part of the assessment including LIHTC. A commenter requested that the definition of publicly supported housing include State-funded housing programs and the federal LIHTC program, consistent with the definition in the local government tool, and possibly include Rental Assistance Demonstration (RAD). The commenter stated that to provide a meaningful analysis, the locational analysis of publicly supported housing needs to be conducted at the census tract level or otherwise local level geography, not the county level.

HUD Response:
HUD appreciates this comment and notes that the instructions to the Assessment Tool make clear what is considered publicly supported housing for purposes of conducting an AFH. The instructions state that the term “publicly supported housing” refers to housing assisted, subsidized, or financed with funding through Federal, State, or local agencies or programs. HUD also notes in the instructions that other publicly supported housing, aside from the categories for which HUD is providing data, relevant to the analysis includes housing funded through state and local programs, or other Federal agencies, such as the U.S. Department of Agriculture and the U.S. Department of Veterans Affairs, or other HUD funded housing not captured in the HUD-provided data.

HUD appreciates the commenters' concern about the level of the geography of the publicly supported housing analysis. HUD also recognizes the burden that conducting an analysis at the census tract level might place on States, and believes that the level of geography for this part of the analysis in the Assessment Tool will provide for a meaningful fair housing analysis. However, HUD notes that States may receive information in community

participation that indicates a need to evaluate a fair housing issue at a lower level than a County.

Analysis of publicly supported housing should include information from residents.
Commenters stated that in the publicly supported housing section, the tool should direct program participants to include information about whether residents prefer their developments to be improved and preserved or prefer assistance in moving to areas that may offer other opportunities. The commenters stated that the tool should also require a description of efforts made, underway, or planned to preserve project-based section 8 developments at risk of opting out of the program or prepaying their mortgage, or of other HUD multifamily assisted developments from leaving the affordable housing stock due to Federal Housing Administration (FHA) mortgage maturity. The commenters stated that the tool should also require a description of efforts to preserve LIHTC developments including at year 15 and beyond year 30. A commenter stated that the tool should require program participants to identify areas where residents are suffering from or at risk of displacement due to gentrification.

HUD Response:
HUD appreciates the suggestions of these commenters and agrees that this sort of outreach would lend invaluable information to States when conducting their AFH. HUD notes that States must comply with the requirements for community participation, consultation, and coordination as set forth at 24 CFR 5.158, and the applicable regulations in Part 91.

Restore the section on mobility for residents of publicly supported housing.
Commenters stated that HUD should restore the discrete section on mobility for residents of publicly supported housing to all AFH Assessment Tools. Commenters stated that the discrete sub-section on mobility for residents of publicly supported housing must be restored because of the various level involvement of States—
i.e.
, State-level agencies in 30 States administer the HCV program, two States administer public housing throughout the State or in most of the State, many States have State-level agencies that have oversight for HUD's multifamily assisted properties, and State housing agencies have the potential to play a catalytic role in facilitating housing mobility for residents of publicly supported housing, including properties converted under RAD. The commenters stated that HUD should at least include State-administered HCV and public housing programs in the list of programs for which information is required under section V(C)(1)(d)(i) of the tool.

Another commenter stated that the policy options for increasing mobility at the county level as opposed to the neighborhood level are significantly more challenging. The commenter stated that to make funding decisions accordingly, the State would need to completely rework its method of distribution and scoring criteria for grant applications.

HUD Response:
HUD appreciates the suggestions of these commenters, HUD has stated previously that it decided to address many issues related to mobility in the contributing factors, such as the contributing factors of “Impediments to Mobility.” HUD also asks about mobility in the additional information questions at the end of each section of the Assessment Tool. HUD also appreciates the commenters' recommendation to add State-administered HCV and public housing programs to the “Other State Administered Programs Related to Housing and Urban Development” subsection. At this time, HUD declines to include this reference.

Clarify the analysis needed for Rental Assistance Demonstration (RAD) units.
Another commenter suggests that the final tool instructions should clarify why RAD units should be analyzed as part of HCV and not project-based Section 8 subsidies.

HUD Response:
HUD has clarified the instructions to the Assessment Tool that now state data on projects converted under RAD is included in the data on project-based Section 8 or HCVs. HUD has provided the following language in the instructions: “Relevant information may also include assisted housing converted under the Rental Assistance Demonstration (RAD) program. Data on RAD-converted properties are not provided separately, but are included in the overall data on Project-based Section 8 and for Project Based Vouchers in the overall data on Housing Choice Vouchers.”

Limit analysis for the State to the use of HUD funds.
Commenters stated that the State Assessment Tool should not cover funding sources outside the purview of HUD. The commenters stated that LIHTC and the State's QAP, as well as, “other State-administered programs related to housing and urban development” are outside HUD's statutory authority given to it by Congress. The commenters stated that States do not agree that accepting HUD funds requires the State to use non-HUD funds in a manner proscribed by HUD. A commenter stated that such requirement poses serious concerns under the Tenth Amendment to the United States Constitution. The commenter stated that the tool, as crafted, effectively creates a process that promotes race-based decision-making by recipients of HUD funds in violation of the Equal Protection Clause of the United States Constitution.

HUD Response:
The Fair Housing Act provides HUD specific authority over programs and activities relating to housing and urban development. Program participants are required to analyze Low Income Housing Tax Credits (LIHTC) data as a part of their Assessment of Fair Housing (AFH). LIHTC are the primary producers of affordable housing nationwide. Additionally, LIHTCs are required to include a certain proportion of affordable units and accept vouchers, and States play a pivotal role in deciding where this housing is located. For these reasons, an analysis of this type of affordable housing is highly useful and appropriate when conducting a fair housing analysis.

LIHTC questions are important to a State's analysis, but need to be more detailed.
A commenter stated that the questions relating to the analysis of LIHTC are an appropriate information collection process that will have practical utility for evaluating States' AFFH obligations. Another commenter similarly stated that a statewide analysis of LIHTC will not only allow the State to identify issues in its own administration of the program, but to identify areas where the lack of LIHTC developments indicates there may be policies preventing affordable housing from being located in high-opportunity areas. The commenter stated that “concerted community revitalization plans” must be defined in a way that ensures they are meaningful and effective, and must set out clear standards for review and assessment of these plans, and that allowing jurisdictions to simply designate nominal “revitalization” areas perpetuates segregation by steering LIHTC developments into distressed neighborhoods. The commenter further stated that since LIHTC is a housing production program, the State's primary concern in assessing its QAP and program administration must be whether it is producing housing opportunities in high opportunity areas. A commenter supportive of the LIHTC questions stated that HUD, however, should respect the LIHTC administering agencies, Department of Treasury and Internal Revenue Service (IRS), and provide States with considerable discretion in designing their QAPs.

Other commenters stated that in addition to describing program-by-program demographics and distributions, States should describe the combined distributions and overall demographics in macro to fully evaluate the impacts of publicly supported housing together, since different programs often have inherently different demographic and geographic distributions (for example, market-driven home mortgages and demand-driven LIHTC).

Another commenter recommended that HUD include a question asking about efforts to leverage the LIHTC program to increase the supply of housing units that are accessible to persons with disabilities.

A commenter stated that HUD should clarify how States with sub-allocators should handle the analysis of states' LIHTC and QAPs. A commenter pointed out that the State of Minnesota has a unique system in which the development of QAPs are a separate process for the State and several local level sub-allocators. The commenter stated that sub-allocators are participating jurisdictions and will be conducting their own assessment of fair housing, so when applicable, local participating jurisdictions with their own QAPs and States should be required to provide analysis of only the QAPs that are in their control. The commenter stated that while the evaluation of LIHTC properties funded through 9 percent and 4 percent tax credits will be valuable, the commenter clarifies that the 9 percent credits are those most impacted by QAPs.

A commenter stated the LIHTC questions are important but need more detail, including the differing weights assigned to preferences and incentives; the question must also discuss results. The commenter stated that additional guidance is also needed with respect to the analysis of LIHTC, including recommendations for local data sources that are easily accessed by states, improvements to the instructions for this section, examples of the types of agreements that include restrictions against discrimination of voucher holders, and the opportunity for states to include any regional policies and initiatives. The commenter stated that the LIHTC section of the publicly supported housing section is confusing as written. The commenter stated that it seems to require the State to research all local land use law in over 200 communities in the State and provide an explanation, town-by-town of how each influence the location of LIHTC units. The commenter stated that it believes the question was meant to determine access to LIHTC units instead. Another commenter stated that more robust instructions would help ensure that the LIHTC sub-section prompts a meaningful fair housing analysis; the instructions should explain that 26 U.S.C. 42(m)(1)(B)(ii)(II) requires that housing finance agencies give priority among selected developments in high-poverty qualified census tracts if those developments contribute to concerted community revitalization, but the statute does not more broadly require incentives for developments in high poverty neighborhoods.

HUD Response:
HUD appreciates these commenters' observations and recommendations. HUD has revised some of the questions in the LIHTC subsection of the Publicly Supported Housing section of the Assessment Tool. HUD believes that the questions relating to LIHTC in the Assessment Tool now address these issues more fully. For instance, HUD has included language in the questions relating to units for persons with disabilities, permanent supportive housing, and preservation of existing long-term affordable housing.

HUD will continue to provide guidance and technical assistance to program participants, and will further address the analysis of LIHTC when it updates the AFFH Rule Guidebook. HUD also notes that, as with all questions in the Assessment Tool, program participants need only use local data and local knowledge when they meet the criteria specified at 24 CFR 5.152 and the instructions to the Assessment Tool. In the case of “local data,” under the regulation's definition, such data are “readily available at little or no cost.” In the case of “local knowledge,” under the regulation's definition, such information, “is known or becomes known” to the program participant, indicating it is either already within the state agency's own information or it is made available, for instance from another agency or through information that can be considered in the community participation process.

Comments on local data and local knowledge.
Commenters stated that while the AFFH final rule defines “local data” and “local knowledge” as readily available information that requires little to no cost to obtain, it also notes that local data may be more relevant and current than HUD-provided data and requires program participants to supplement HUD-provided data with local data when it is relevant and easily obtainable. The commenters stated that this creates an expectation of analysis, instead of an allowance of, local data without considering the enormity of data that is available to states through a reasonable amount of searching the internet alone. The commenters stated that jurisdictions with strong affordable housing and academic research communities that provide a wealth of information at little to no cost are penalized because they have a higher burden of reviewing and analyzing locally available data since more high quality data is available. The commenters also stated that absent dedicated funding from HUD, a State is unlikely to be able to analyze and properly present local data in a manner consistent and relatable with other components of the tool, nor can State housing agencies adequately compile and analyze local data that is available at little to no cost with respect to the non-housing elements that the tool instructs States to analyze. The commenters further stated that without HUD provided guidance to its grantees and the public regarding the extent to which local data must inform conclusions and be displayed within the AFH, States are vulnerable to complaints even where HUD considers a State to have met its burden; oral comments from HUD staff are not sufficient and States will expend more resources defending complaints, as will HUD in processing such complaints.

Other commenters stated that HUD should give States the flexibility to use HUD-provided county data, tract level data, or locally supplied data as appropriate. The commenters stated that, for example, educational access is not a meaningful indicator at the county level, and while the local level (tract based) is more appropriate, the state would utilize data directly from its department of education.

Other commenters stated that collecting the data required to provide meaningful explanations would be extremely challenging at best and although States are not required to collect primary data they are uncertain of how to compile the information for the assessment without doing so. The commenters stated while the tool says States are not required to collect primary data, it is unclear how States will otherwise acquire local data besides administrative data sources. The commenters stated that even though collecting primary data is not required, it would require time consuming and costly surveys to amass the other primary qualitative data to conduct analyses in areas such as education.

Commenters stated that HUD should not permit program participants to assert that data and knowledge are unavailable, which HUD currently proposed to be a potentially “complete and acceptable response.” Rather, HUD

should require the use of local data and local knowledge, including for persons with disabilities served in home or community-based settings and those served in institutions, assisted living facilities, and those ready for discharge from psychiatric hospitals. Another commenter stated that program participants should be required to describe efforts to identify supplemental data and local knowledge from sources such as universities, advocacy organizations, service providers, planning bodies, transportation departments, school districts, healthcare departments, employment services, unions, and business organizations, and they should be required to summarize and report what information it chose to use and why.

Other commenters stated that States should have flexibility to determine when including fine-scale local data is appropriate. Commenters stated that States should be allowed to use their own data to complete the tool and HUD data should be optional since State data may be more representative of the State's true characteristics.

A commenter stated that HUD should not impose a statistical validity test on State and local data that is so strict as to prevent States from using certain data sources that may be helpful in their planning efforts.

Another commenter asked whether HUD data supersede local data. The commenter stated that it appears that local data needs to validate HUD data and it is unclear what happens when the data results are inconsistent.

A commenter stated that the tool should be structured such that the tool provides recommendations on the use of local data and knowledge including on scope of issues, best practices for information-gathering, and coordination with local agencies.

HUD Response:
HUD appreciates all of the commenters' suggestions and recommendations. HUD has provided language in the instructions to the Assessment Tool regarding the use of local data and local knowledge. Additionally, the AFFH Rule Guidebook addresses the issue of when to use this information. Further, HUD has explained that HUD-provided data must be used when conducting the AFH; however, in the event that the program participant has local data that is more current or accurate than the HUD-provided data, the program participant is welcome to use such data, so long as it provides HUD with the local data and an explanation of why it is being used in place of the HUD-provided data. HUD has explained how it will assess the statistical validity of local data above.

An analysis of income-levels is important.
A commenter stated that when discussing affordability of housing units in the definitions section and throughout, it is important to clarify that it is not sufficient to have units that are affordable at 80 percent of area median income (AMI) or other moderate incomes. The commenter stated that when looking at inclusionary zoning or other affordable housing policies, it is important to consider which income levels are included and excluded. The commenter further stated that availability of housing at different affordability levels should be included in the definitions of “location and type of affordable housing” and “availability of affordable units in a range of sizes.”

HUD Response:
HUD appreciates these suggestions, and notes that some of the HUD-provided data does include income levels. In addition, consideration of the level of affordability of housing for lower income groups is included in the contributing factors, “availability of affordable units in a range of sizes,” “lack of affordable, accessible housing in a range of unit sizes,” and “location and type of affordable housing. HUD will further consider additional guidance as it relates to the affordability of housing and how it might relate to fair housing issues.

Comments Specifically Directed to Burden

While many commenters commented on burden; the following comments supplemented the comments already provided on burden by specifying the number of hours they believe it will take to complete the AFH.

Several commenters stated that the estimate of 1,000 hours per year to complete this paperwork is excessive. The commenters asked what paperwork can be eliminated in order to complete this form. The commenters also asked what is going to be done with this information once HUD collects the information. A commenter stated that HUD should hire contractors and not place the task onto PHAs. Another commenter stated that if the State of Massachusetts assumes even half of the estimated burden of 120 hours of staff time per PHA that the State coordinates with, based on HUD's estimate that one-third of PHAs may seek to enter into joint AFHs with their relevant State, this would be an additional burden of approximately 7,800 hours of staff time.

Commenters stated that HUD's estimate of the burden of compliance with the proposed tool is not accurate, that the tool will take at least 2,500 hours to complete. Commenter stated that the estimate of 1,500 hours may be too low considering the volume of information and scope of work, which falls outside the normal activities for most agencies. Commenters stated that they would need to devote a full-time staff person to do the AFH for 37 weeks. A commenter stated that it estimates the burden at 2,000 hours and a cost of $150,000 to $200,000. Another commenter stated that the burden estimate is glaringly low and will be four to five times the 1,500 hours that HUD estimated. Another commenter stated that it spent 6,000 hours to complete its last AI over a two-year period. Another commenter stated it will take 4,000 hours to complete the AFH. Another commenter stated that it took two individuals 6 months to complete the AI and expect completion of the AFH to take considerably longer. A commenter stated that its State is considering hiring additional staff, reallocating staff resources, and/or contracting out, but this will have major budget implications for the agency, especially because of the level of specialized experience required to administer the tool and analysis.

Another commenter stated that in the State of Ohio, acquiring and evaluating the data would involve a significant obligation of resources from at least 11 different State agencies and would require an estimated 1,500 hours. The commenter stated that the State of Ohio will likely be forced to contract with an outside vendor and could costs hundreds of thousands of dollars which will likely have to come out of funding for Training and Technical Assistance and administration of the State's HUD programs. A commenter stated that the assessment will be very expensive, and that the State of Iowa spent $148,000 on a consultant to prepare the 2015-2019 Consolidated Plan and Analysis of Impediments to Fair Housing and expects the cost to prepare the proposed tool to be even greater; with CDBG and HOME programs experiencing considerable reductions since 2010. Commenters stated that States have fewer administrative dollars to pay for the development of such plans. A commenter stated that the Massachusetts Department of Housing and Community Development estimates that the time required would be at least 5,000 hours of staff time plus approximately $150,000 in consultation fees.

HUD Response:
HUD appreciates and understands the concerns of these commenters. Now that HUD has announced that there will be a second 30-day comment period relating to the data in and functionality of the AFFH-

T for States and Insular Areas as described above, the public will have an additional chance to provide HUD with feedback.

HUD appreciates the work of its program participants in this area. HUD is committed to and will continue to find ways to reduce burden for its program participants while still providing for an appropriate fair housing analysis and the setting of meaningful fair housing goals. Furthermore, HUD will continue to provide training and technical assistance to program participants to increase their capacity to conduct a meaningful AFH.

Comments in Response to HUD Specific Issues for Comment

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

Content of the Proposed State and Insular Area Assessment Tool

1a. Which approach to the opportunity indicators would be more beneficial in eliciting an appropriate fair housing analysis from States and insular areas?
(That is, more general questions or targeted questions)

Commenters were divided on the approach to take. A few commenters stated that they preferred more general questions, as opposed to the targeted ones, as proposed by HUD. The commenters stated that more general questions would enable States to structure and prioritize their analysis as well as discern when it is appropriate to apply a more targeted analysis in smaller communities and rural areas. The commenters further stated that targeted questions go too far into some areas that are only tangentially related to housing. Other commenters stated that the targeted questions require an analysis of information and polices that are beyond the State's purview, control, and understanding. The commenters stated that they would not be able to provide meaningful answers to guide program decisions and allocations of CDBG funds, so these questions should be eliminated from the State tool.

Another set of commenters supported adding targeted questions regarding the five topics proposed by HUD. The commenters suggested specific areas of focus within each of these topics: (1) For re-entry, the tool should ask about existing laws, policies, and practices that help or hinder successful re-entry of members of protected classes to housing, employment, education, counseling, and other opportunities; (2) for emergency management, the tool should add a question focused on emergency preparedness and response for people with limited English proficiency (LEP); (3) for public safety, the tool should refer to access to housing for women and children encountering or threatened with domestic violence; (4) for public health, the assessment tool should refer to lack of access to quality, affordable food and should ask about the impact of the policies, practices, and resources of neighboring states/the broader geographic area.

HUD Response:
HUD appreciates the commenters' feedback on this issue. As stated above, HUD has included certain opportunity areas for consideration if they arise during community participation. HUD has decided to include additional opportunity areas in the “Additional Information” section of the Disparities in Access to Opportunity section of the Assessment Tool and has specified that this portion of the analysis is limited to information obtained through the community participation process. HUD notes that other categories that are not listed may also be identified through the community participation process.

1b. Has HUD captured the appropriate level of information from States and insular areas? Are there additional areas of analysis that should be included given the areas of responsibility, programs, policymaking, and jurisdictions of States and insular areas?

Several commenters stated that the tool requests an extraordinary amount of information that will be extremely difficult for States to collect and analyze in a meaningful matter and relies too much on local data; some questions are nearly impossible to answer from a statewide perspective, such as questions on education policy which will vary from district to district and questions on zoning and land use policies. The commenters stated that the scope of the proposed tool must be scaled back significantly so that State grantees can reasonably conduct a meaningful AFH on issues they can meaningfully address.

Other commenters identified specific targeted questions for inclusion. A commenter stated that a discussion of both segregation and integration are important, but HUD only asks States to identify groups living in these areas; a more meaningful assessment would include case studies outlining characteristics, such as favorable policies and programs evident in integrated areas. The commenter also stated that assessing the demographic trends over time with respect to segregation and integration is important, but that it would be valuable to require States to identify within areas that experienced a significant demographic change, any patterns that can be attributed to laws, policies, practices, or market forces. The commenter stated that this will aid in identifying local and regional forces that are counter to the State's obligation to AFFH. The commenter further stated that while it is important for the State's to assess laws, policies, and practices, it is also important to review a history of laws, policies, and practices that contributed to the demographic patterns currently evident in a State because understanding the history of segregation and the public policy that shaped it is indispensable to an assessment of fair housing. Another commenter stated that States should consider fair housing issues affecting protected classes that are protected by State fair housing laws—even if those groups are not explicitly protected by the Fair Housing Act (
e.g.
, members of the LGBT community, section 8 voucher holders).

Another commenter stated that HUD should reconsider the development of a de novo tool for States rather than adapting the one created for local governments because of the different scales involved. The commenter stated that most States are much larger and more geographically and demographically diverse than individual communities. The commenters stated that States need flexibility in tailoring the content of the assessment to ensure that analysis conducted will be meaningful and under the authority of state housing agencies. The commenters stated that States should have the flexibility to use the HUD data at appropriate scales, drilling down into local analysis of areas such as opportunity for employment, education, and transportation in locations of the State where they are most impactful. The commenters stated that many of the opportunity questions in the State Assessment Tool should be removed because they are only appropriate at the neighborhood level. The commenters stated for a large State, local decision making and local policies are the bases for determining whether housing is “fair” since it is not reasonable to expect State residents to move long distances from their current locations to access housing opportunities.

A commenter stated that the tool should instruct State participants to examine how State level policies affect fair housing to avoid the hazard that AFH may produce a compilation of local level issues while failing to

document meaningful responsibilities of the States and State-level structural issues. The commenters stated that HUD should make this explicit throughout the guidance, such as: Adding instructions and expanding lists in the discussions of contributing factors; inserting a paragraph or two that illustrates this in the instructions; adding examples of structural State-level goals into the example goals on page 42; and amending the contributing factor descriptions.

This commenter also stated that States should be prompted to consider the following issues: State tax structures; fiscal systems, such as revenue distribution with regard to transportation (
i.e.
, highway or transit funding), or funding programs that incentivize certain development patterns,
e.g.
, economic development of greenfields; laws and regulations in areas that affect redevelopment, such as foreclosure, bankruptcy, land banking; State-level laws and policies that affect or incentivize zoning and other land use structures; administration and funding programs of social services; ways that States create barriers or disincentives (or can set goals that encourage) regional cooperation among local jurisdictions, as with tax-sharing, government consolidation, joint planning and program implementation, and shared services; and executive decisions to sign into law legislation which prevents local governments from adding protected classes to their local fair housing laws.

HUD Response:
HUD appreciates all of the recommendations of the commenters. While HUD is maintaining the basic structure of the Assessment Tool as outlined by the AFFH Rule, HUD has made significant modifications to this Assessment Tool to account for the differing level of geography, authority, and role of States. HUD remains committed to issuing Assessment Tools that are tailored to each type of program participant, appropriate to their roles and responsibilities, in a manner that strives to reduce burden, while still achieving a meaningful fair housing analysis. Part of this commitment is being implemented with the additions of the extended PRA process, including a second 30-day comment period on the State level data in the AFFH-T so that the public and program participants may see how the data HUD is providing will be tailored to the State.

In response to the comments offering specific suggestions for improvements, HUD has made a number of changes. These include amending some of the contributing factor descriptions based on these commenters' suggestions. For example, HUD has amended the description of “Land use and zoning laws” so that it is more specific to the role of States. HUD also acknowledges the limitations of States in terms of their authority or lack thereof imposed by State and local law. HUD has added language to the questions and instructions to clarify that States are not required to compile inventories of local laws and practices but should focus on trends affecting fair housing issues in the State or areas of the State.

In terms of the comments on requiring analysis of entitlement areas, HUD has declined to remove consideration of all areas of the State, but has made some clarifying modifications. The Assessment Tool still requires State wide assessment, including fair housing issues across the state, including entitlement areas.

Nonetheless, HUD believes that in order for the State to set meaningful fair housing goals, it must conduct an analysis of the entire State. As stated above, States may refer to AFHs of entitlement jurisdictions within the state, but should keep the considerations mentioned above in mind. Note, States are accountable for the information contained in the AFH they submit to HUD.

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

2a. Are there particular questions that HUD should include in the State and Insular Area Assessment Tool to ensure the appropriate focus on rural areas? What sources of information do States have access to when considering fair housing issues in rural areas? HUD seek comment on any additional questions or additional data that should be included and the applicable section of the Assessment Tool to address how States and insular areas can assess rural areas.

Commenters stated that, in most cases there would be little or no local data for the balance of the State. Commenters stated that local data is likely to be administrative such as public housing units, vouchers, and associated geographic and demographic data for those units/vouchers and the State does not have access to this data. Commenters stated that other possible sources include social services, school, and health department data, but the State does not have access to this data either and it is unclear at this time how feasible it would be to obtain it.

Commenters stated that the Ohio Poverty Report, published by the Ohio Development Service Agency, identifies areas of highest concentration of people living in poverty, and these counties have predominantly white populations. The commenters asked whether HUD considered that these areas are predominantly white, not because of discrimination but because minorities do not want to move to areas that are limited on employment, transportation, medical care, grocery stores and other services. The commenters stated that diversifying these counties will ensure fair housing but will not help people rise from poverty because these areas are impoverished.

A commenter stated that HUD should prioritize establishing housing in areas with access to services, employment, and medical care and not move people away from these services.

Other commenters stated that county-level maps and data are likely to be misleading, particularly in States with large rural areas. The commenters stated that data quality and availability is a severe impediment to accurate analysis in States with large rural areas, and acquiring local data is prohibitively burdensome. The commenters stated that the tool should explicitly incorporate flexibility for States to determine the appropriate scale for addressing their rural areas. Another commenter stated that the characteristics of a small city could strongly influence the data value for a county, and thereby misrepresent the non-urban portion of that county.

Commenters stated that HUD data is limited on rural areas and therefore States should be able to use their own data instead of HUD data. A commenter stated that HUD should provide guidance instructing States to consider additional local data for rural areas when evaluating the dissimilarity index for rural communities, and should provide examples of potential data sources.

Other commenters stated that rural areas have particular challenges regarding data quality with respect to all areas of analysis required in the AFH. The commenters stated that the HUD provided data on areas of opportunity are not as applicable in rural areas as in urban, and said, for example, there is less transit in rural areas so these areas would be unfairly biased. The commenters also said that HUD data is also biased for quality schools in rural areas since there is usually only one choice for school attendance in the area, unlike in an urban area, so prioritizing locations based on school quality could dismiss many markets who otherwise have significant needs for affordable housing. Another commenter stated that it is not clear how States are expected to analyze public infrastructure in rural

areas, and the lack of certain infrastructure that requires higher population densities may or may not imply poverty or lack of opportunity. The commenters stated that a State cannot use its CDBG or HOME funding in HUD direct entitlement/urban areas of the State and these are where the population is densest, so the tool will indicate the best place for resolving fair housing impediments are in the urban areas yet state's federal funding cannot be used ther

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-23449. Public record. Not legal advice.